How compensation for unused vacation is paid and calculated when a maternity leave is dismissed

What to do if your boss breaks the law?

If an employee believes that she was fired illegally, then you can do the following:

To try to resolve the situation peacefully - to do this, you need to draw up a letter of claim addressed to the director of the organization, in which you inform about the illegality of the procedure with reference to the norms of the labor code.
Report the violation to the Prosecutor's Office and the labor inspectorate.
Going to court is the most reliable way; if the court reveals a violation of labor laws, the employee will be reinstated in her workplace under the same conditions.

As mentioned above, after maternity leave, a woman loses additional rights to keep her job, except in special cases. However, Russian legislation reliably protects citizens from illegal dismissal. The surest way to keep your job is a responsible attitude towards your work, which implies full performance of job duties, compliance with ethics and disciplinary rules.

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Payment terms

If the employee was absent from the workplace that day, the funds must be provided to her no later than the next day the woman applied for payment.

This procedure is determined by Art. 140 Labor Code of the Russian Federation. If the employee does not agree with the settlement amount provided, the employer must pay the undisputed amount on the day of dismissal or on the day the settlement is applied for.

It can be concluded that the current law quite strictly protects the interests of pregnant women and young mothers. Since not every employer is well acquainted with existing legal norms, women should be aware of their own rights.

This way, they will be able to protect them when appropriate circumstances arise. Employers, in turn, should not neglect the established procedures for paying compensation to women on maternity leave, since if their rights are violated, the Labor Inspectorate and even the court may be interested in the issue.

https://youtube.com/watch?v=qJjVfU6%2520%2520frameborder%3D

How to resign of your own free will

Returning from maternity leave, especially if it occurs in connection with the child reaching the age of three, equalizes a woman in many responsibilities under labor law. This means, in particular, that she must announce her intention to resign 14 days in advance. This must be done in writing and handed over this document to the person responsible for personnel (sometimes this role is assigned personally to the manager).

An application for dismissal after maternity leave without work can be submitted at any time. The main thing is to find a sufficiently serious reason that can convince the employer of his respect and the need to let the employee go right now. This reason must be indicated in the application, and for greater persuasiveness, supporting documents can be attached to it. This is no longer needed for the management itself, but to justify its position before inspectors or the court, if everything goes that far.

Compensation is a sum of money that is accrued upon the dismissal of an employee in the presence of unused vacation by the coefficient established by the code in relation to the days that were worked.

The calculation of the total amount is made based on the number of days of vacation service, determining the calculation period along with the payments taken into account.

If the dismissal and the last day of the month (calendar) coincide, then the month is included in the billing period.

https://www.youtube.com/watch?v=ZEfsPG-7BPM

An employee on maternity leave has the full right to terminate her employment relationship with her employer.

This must be indicated in a written statement, which can be sent by mail to the organization.

An employee on such leave is exempt from required work for two weeks, if a written application was submitted on time - these 14 days are included in the period of legal leave.

To calculate the average daily earnings, we determine the amount of wages actually accrued to the employee for the billing period and divide it by 12 months and by the average monthly number of calendar days (29.4) (part 4 of article 139 of the Labor Code and paragraph 1 of clause 10 of the Regulations on the specifics of the procedure calculation of average wages, approved by Decree of the Government of the Russian Federation No. 922 of December 24, 2007).

Evteeva K.A. has been working at Burevestnik LLC since September 1, 2011. During the working period, she used 13 calendar days of vacation. On August 25, 2012, the employee submitted her resignation. Is the employee entitled to compensation for unused vacation and in what amount?

To calculate the average daily earnings in order to pay compensation for unused vacation provided in calendar days, it is necessary to divide the amount of wages actually accrued to the employee for the billing period by 12 months, multiplied by the average monthly number of calendar days.

If the company is liquidated and the employee is at home to care for her child, she must also be notified in advance of the upcoming dismissal. At the same time, the ban on dismissal does not apply to this situation (liquidation of an enterprise) at all.

And, the dismissed employee will have to receive not only compensation for the unused days of annual rest, but also the amount of severance pay.

The company must notify all its employees in the event of liquidation in advance, at least two months in advance, if the liquidation is not related to bankruptcy.

In accordance with the norms of the Labor Code of the Russian Federation, the employer must provide the employee with maternity leave at the birth of a child.

Some employees, after maternity leave, decide to quit on their own in order to devote more time to their family, some quit due to the termination of their employment relationship, which was established for a certain period, and dismissal is also possible by agreement of the parties.

In some cases, an employee is entitled to compensation upon dismissal after maternity leave. Let's consider when such payments are due and when not.

In judicial practice, there are many decisions made in favor of female workers in a situation where they were forced to write a letter of resignation, or were otherwise pressured to survive from the enterprise. The court will always be on the side of the pregnant woman, unless, of course, she came to work drunk and was not guilty of stealing material assets of the organization where she works.

If we talk about compensation, then the employee, in addition to earnings, receives money for unused vacation and other types of compensation provided for in the contract.

Before calculating compensation, the employer must calculate the number of days of annual leave and her average earnings. As for working off, she will not work for 2 weeks.

Often women have another child during this period and automatically extend their maternity leave for another three years. Naturally, not all employers are happy with this state of affairs. After all, they not only have to pay benefits, but also hire a temporary employee who will replace the young mother.

received average earnings in accordance with the legislation of the Russian Federation, with the exception of breaks for feeding the child;
received benefits for temporary disability or maternity benefits;
was released from work with full or partial retention of wages;
was on leave without pay (parental leave until the child reaches the age specified by law).

Dismissing a woman who is on maternity leave is a complex and very responsible process. Naturally, it must be carried out within the framework established by law. In accordance with the resolution of the Labor Code of the Russian Federation, every employer is obliged to provide each employee with maternity leave in the event of the birth of a child.

In some cases, women decide to quit during or after their vacation. In certain cases, an employee is paid compensation upon dismissal after maternity leave. Next we will consider in more detail when payments are due and when they are not.

Is compensation paid upon dismissal for maternity leave? This is a common question that many new mothers ask.

In accordance with Art. 127 of the Labor Code of the Russian Federation, in the event of dismissal, a subordinate is required to receive compensation for all vacations that were not used by him.

Compensation accruals in the case of an employee’s calculation at her own request are formed taking into account data on her actual income before the birth of the child.

This also takes into account information on average wages in the period before childbirth.

Termination of the employment relationship between a woman who is on maternity leave and the employer at the initiative of a subordinate is carried out within the framework of the standard rules for terminating an employment contract. In order for the process to go smoothly and the woman to receive the due payments, she needs to draw up a letter of resignation and send it to management in any convenient way.

Dismissal of an employee on maternity leave does not allow the woman to demand additional payments. In the event of a reduction or liquidation of an enterprise, the employee is entitled to all benefits that are indicated by the provisions of the Labor Code.

Compensation for unused vacation is a guaranteed payment in the event of dismissal. It is important to note that for women on maternity leave, general calculation rules are provided.

Calculation of compensation for the dismissal of a maternity leave at her own request is carried out in the following order:

the period of pregnancy and maternity leave is included in the length of service; they are used to determine the number of days of unused vacation. In accordance with the general rules, this period is 140 days;
if a young mother worked on maternity leave and started working part-time, the entire working period will be included in the length of service. To determine average earnings, time worked is also taken into account;
Average daily earnings are calculated according to general rules (Resolution No. 922). The calculation period must include the 12 months that preceded the month of dismissal;
when the entire billing period falls on maternity leave, the calculation must include the 12 calendar months that precede the month of maternity leave.

In almost all cases, the final figure is a fraction. At the same time, many people wonder whether it is necessary to round up the number of days of unused vacation? In accordance with the law, rounding is not provided for in this case.

If the billing period has not been fully worked (the woman could be on sick leave or on another vacation), the number of days not fully worked must be used for calculation.

If an employee was dismissed on maternity leave due to the liquidation of the company, she is entitled to additional compensation. Under such circumstances, severance pay is mandatory for all women on maternity leave without exception. Average earnings, as in other cases, are the basis for determining the amount of additional benefits.

If an employee quits immediately after the certificate of incapacity for work is closed and does not return to work after maternity leave, the calculation of unused vacation days is carried out as follows:

average earnings are determined taking into account the total amount accrued to the employee for the last year;
Average daily earnings are calculated using the formula: divide the amount of earnings by 12 and divide the resulting result by 29.4;
Knowing the duration of vacation in days and the cost of a working day, you can determine the amount of vacation pay that the employee is entitled to.

In accordance with current legislation, the employer must provide the employee with paid leave before going on maternity leave, the duration of which is 28 calendar days. In other words, leave is granted in full and in this case it does not matter whether the billing period for receiving leave has been worked out or not.

When an employee leaves her position immediately after maternity leave, she must return the excess vacation pay for vacation days that were not worked.

In accordance with Part 3 of Art. 256 of the Labor Code of the Russian Federation, an employee during maternity leave can work only on a part-time basis.

Algorithm for the dismissal procedure

But if a situation arises when a woman really wants to resign of her own free will, then the law is guided by Art. 80 of the Labor Code of the Russian Federation. The employer is obliged to accept the application from the maternity leaver in any case and record it. In this case, he cannot refuse.

HR specialists rarely encounter such a procedure, but the design principle is standard:

An employee who is on maternity leave or parental leave writes a letter of resignation 2 weeks before the required date.
The HR specialist registers the application in a special journal.
The management of the organization creates a dismissal order.
The dismissed employee is introduced to this order against her signature.
A corresponding entry is made in the work book (the number and date of the order must be entered).
On the last working day, the work book is issued to the employee.
The necessary cash payments are made (as a rule, this is compensation for unused vacation during the period of work).

The organization has no legal basis to demand that a woman on maternity leave or maternity leave work for a 2-week period before dismissal.

If you need to resign immediately after maternity leave, then an application for release from your position is written 2 weeks before the end of parental leave. In the application, the last day of vacation is indicated as the last working day. In this case, the usual algorithm is maintained: execution of the order and entry in the work book, issuance of the necessary certificates and payment of the required compensation. The resigning employee is not required to work for 2 weeks.

It is worth noting that Ukraine similarly protects pregnant women and young mothers.

Writing an application

If an employee has decided to resign, he must submit a written application 14 days before the date of the event.

There is no established form of the application form at the legislative level. In this regard, the document is generated in free form.

The document header is located in the upper right corner. It consists of the following data:
Last name, first name and patronymic of the authorized person (manager, director, etc.).
Last name, first name and patronymic of the employee.
Department and personnel number of the employee.
Employee position.
Next, the name of the document (application) is written in the center.
The body of the application may have the following wording: “I ask you to dismiss me of my own free will, in accordance with the article …”.
The presence of errors and ambiguous phrases that may distort the meaning of the document is strictly unacceptable.
In the conclusion, the date of the desired dismissal is written and the current date is indicated, as well as the employee’s signature with a transcript.

The order is formed by the responsible employee of the enterprise. Usually these are HR department specialists or other persons whose responsibilities include this operation.

If the company’s staff does not have a unit with such responsibilities, the document can be drawn up personally by the manager. Individual entrepreneurs have the right to independently formulate orders.

The order is formed on a unified form, Form T-8. The employee is required to read it and personally sign it. The document has the following details:

Date and serial number.
Name of the enterprise.
Personal data of the employee (full name, position, personnel number, department).
Grounds (statement of the worker).
From what date to fire?
Full name and signatures of the responsible persons (director, HR specialist).
Signature of the employee himself after review.

The work book is a document that contains the history of work activity, therefore errors and corrections in it are prohibited.

In a situation of dismissal during maternity leave or parental leave, the following reasons can be reflected in the book:

Article 77 paragraph 3 – own desire.
Article 77 paragraph 2 – expiration of the contract.
Article 81 paragraph 1 – liquidation of the enterprise.

Important! On the last day, the employee is required to make all necessary accruals and payments

Payments upon dismissal after maternity leave

According to the Labor Code, before going on maternity leave, an employee can take the annual payment in full, regardless of the length of service in the company (Part 4 of Article 122 and Article 260 of the Labor Code of the Russian Federation).

What if an employee immediately quits her job due to pregnancy and childbirth or child care? How to correctly calculate the amount of compensation?

Is it allowed after the maternity period according to the Labor Code of the Russian Federation?

For women on maternity leave, the Labor Code of the Russian Federation provides an additional guarantee in the form of paid leave if she goes on it immediately after the end of maternity leave.

You can also go on vacation before maternity leave - details here.

This right is specified in Article 260 of the Labor Code of the Russian Federation.

If the right to paid leave under Article 260 of the Labor Code of the Russian Federation has already been used before the start of the maternity leave, then after its end you can ask for leave only on a general basis - on the basis of the vacation schedule or in agreement with the employer.

An important point: annual leave should begin immediately after maternity leave. Between them, a woman should not go to work.

If the employee has begun work duties, then the guarantees of Article 260 of the Labor Code of the Russian Federation no longer apply to her.

How to calculate duration?

If at the end of her maternity leave an employee submits an application for paid leave of 28 days under Article 260 of the Labor Code of the Russian Federation, then the employer should first calculate how many unused days the woman has and how many need to be provided in advance.

To calculate the length of unused rest, you need to follow these steps:

Step 1. Calculate the total number of vacation days due for the period of work from the date of employment until the start of maternity leave (each working year entitles you to 28 days).
Step 2. Subtract the days already used before the start of maternity leave from the resulting duration.
Step 3. Add the number of vacation days allotted for the period of sick leave for pregnancy and childbirth (140 days is 5 full months, 5 * 2.33 = 11.65 days allotted for maternity leave under the BiR). Maternity leave for up to 3 years does not provide vacation days.
Step 4. Calculate the number of days that need to be provided in advance.

Expiration of the employment contract

With a fixed-term employment contract, the dismissal of an employee who is on maternity leave is unacceptable, even despite the end of its validity. Within the framework of Art. 261 of the Labor Code of the Russian Federation, the legislator limited the employer’s options when dismissing employees on maternity leave.

Thus, in the case of going on maternity leave with a fixed-term employment contract, the agreement is extended until the moment of childbirth or until the employee returns from maternity leave, and then is canceled due to the expiration of the validity period. It is clarified that if a woman who is going on maternity leave was hired to replace another employee, the employer can fire her subject to the following rules:

The head of the organization offered the pregnant woman other vacant positions, but she refused them.
For some reason, a woman cannot confirm or deny her transfer to another place of work.

How to calculate compensation when dismissing a maternity leaver - Legalists

At the same time, the employee, of course, has every right to go to work if she wishes. She can count on shorter working hours and more favorable working conditions than other employees. At the same time, child benefit payments are retained for her in any case.

If she decides to resign of her own free will, then all these payments are retained for her, in addition, if the child’s age is less than three years, she will still receive all the benefits that are provided for non-working mothers. Simply put, even if a person voluntarily left his place of work, social guarantees for him are preserved in any case.

Tips for employers As judicial practice shows, most often the decision is made in favor of the employee. The legislator initially provided that much more norms of the Labor Code and other legislative acts protect the interests of enterprise employees.

Attention

Until the child turns 3 years old, the law does not prohibit going on maternity leave at any time.

Penalty for dismissal of a maternity leaver

Dismissal of an employee who is on maternity leave is a violation of the law, for which both criminal and administrative liability are provided.

An employer who terminates an employment relationship with a woman on maternity leave may be held administratively liable under Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation, the sanction of which provides for punishment in the form of a warning or a fine in the following amounts:

officials pay from 10,000 rubles to 20,000 rubles;
individual entrepreneurs – from 1,000 rubles to 5,000 rubles;
legal entities – from 30,000 rubles to 50,000 rubles.

Depending on the circumstances of the dismissal, instead of administrative liability for the illegal dismissal of an employee on maternity leave, the employer may be held criminally liable under Article 145 of the Criminal Code of the Russian Federation.

Criminal Code of the Russian Federation Article 145. Unreasonable refusal to hire or unjustified dismissal of a pregnant woman or a woman with children under three years of age

Unreasonable refusal to hire or unjustified dismissal of a woman on the grounds of her pregnancy, as well as unjustified refusal to hire or unjustified dismissal from work of a woman who has children under three years of age, for these reasons - is punishable by a fine of up to two hundred thousand rubles. or in the amount of wages or other income of the convicted person for a period of up to eighteen months, or by compulsory work for a period of up to three hundred and sixty hours.

In certain cases, the legislator allows the dismissal of a woman on maternity leave. These cases are associated with the desire or consent of the employee herself, as well as with the complete cessation of the company’s activities.

In other cases, such actions by the employer will be regarded as a violation of the law with the application of appropriate sanctions, from administrative sanctions to criminal prosecution.

If a woman quits immediately without going to work

average earnings are determined taking into account the total amount accrued to the employee for the last year;
Average daily earnings are calculated using the formula: divide the amount of earnings by 12 and divide the resulting result by 29.4;
Knowing the duration of vacation in days and the cost of a working day, you can determine the amount of vacation pay that the employee is entitled to.

When an employee leaves her position immediately after maternity leave, she must return the excess vacation pay for vacation days that were not worked.

When does maternity leave end?

The concept of “maternity leave” does not exist in the Labor Code of the Russian Federation. In common parlance, this definition means the period from maternity leave until the child reaches three years of age. The last date is the end date of maternity leave. Even if a woman interrupted it and went back to full-time work, she can return to maternity leave until the child turns three years old.

The employer will be able to dismiss her on his own initiative during this period only in the event of liquidation of the enterprise or in the event of a gross violation of labor duties and discipline by the employee.

The procedure for calculating the number of days of unused vacation

To calculate the number of days of unused vacation, you need to know the employee’s length of service, which gives the right to annual leave, and the number of calendar days of vacation actually used.

————————¬ —————————-¬ —————¬¦ Quantity ¦ ¦ 28 calendars. days : 12 months x¦ ¦ Actually ¦¦ unused ¦ = ¦ number of full ¦ - ¦used¦¦ calendar days ¦ ¦ months <*> worked ¦ ¦ calendar ¦¦vacations for the working year¦ ¦ in the working year ¦ ¦ vacation days ¦L—— —————— L—————————- L—————

Example 1. M.A. Kolodyazhnaya has been working at Stalker OJSC since August 1, 2011. During her work, 17 calendar days of vacation were used. On July 23, 2012, the employee submitted her resignation. Is she entitled to compensation for unused vacation days and in what amount{q}

Solution. Before the dismissal of M.A. Kolodyazhnaya worked for the organization for 11 months and 23 days. 23 days are rounded up to a full month, since this is at least half of it (clause 35 of the Rules, Letter of Rostrud dated 08/09/2011 N 2368-6-1 and dated 07/02/2009 N 1917-6-1). Thus, the employee’s length of service, on the basis of which the duration of earned leave is determined, will be 12 months. This means that she has the right to leave for the full duration - 28 calendar days.

Let's calculate the number of unused vacation days. It is equal to 11 calendar days [(28 calendar days: 12 months) x 12 months. – 17 cal. days].

The employer must pay M.A. Kolodyazhnaya compensation for 11 calendar days of unused vacation.

This period, like the period of maternity leave, is included in the length of service giving the right to annual leave.

Example 4. Let's use the data from example 3, but send A.I. Berestov from August 1, 2011 to work on a part-time basis. For how many days of unused vacation in this case must the employer pay her compensation{q}

Solution. Let's determine the employee's vacation length.

During the first working year A.I. Berestova has the right to all days of annual leave, since the period of maternity leave is included in the vacation period. Since she used 13 calendar days of vacation before maternity leave, she had 15 calendar days left unused (28 calendar days - 13 calendar days).

During the second working year of A.I.’s vacation period. Berestova will include a period of 6 months (from August 1, 2011 to January 31, 2012) when she worked part-time. During this period, she earned 14 calendar days of vacation [(28 calendar days: 12 months) x 6 months].

For the third working year, the vacation period will include 7 months (from February 1, 2012 to August 1, 2012), which give the right to 16.33 calendar days of vacation [(28 calendar days: 12 months) x 7 months .].

Thus, upon dismissal of A.I. Berestova will receive compensation for 45.33 calendar days of vacation (15 calendar days, 14 calendar days, 16.33 calendar days) in the amount of RUB 35,794.83. (RUB 789.65 x 45.33 calendar days).

https://www.youtube.com/watch{q}v=FLLCiDch1WA

What payments are due to a departing employee depend on the reasons for and when she leaves.

So, if it was her own initiative or an agreement of the parties (in this case it is legally the same thing), then the dismissed person will receive payment, compensation for unused vacation and unpaid bonuses. She has no right to claim any more compensation.

It’s another matter if you have to leave due to the cessation of the company’s activities. In this case the following applies:

wage;
compensation for missed vacations (Article 127 of the Labor Code);
severance pay;
financial assistance for child care up to one and a half years old.

In this case, bankruptcy must be just that: bankruptcy, that is, the company has not reorganized, but has left the business market altogether.

Let's look at an example of calculating compensation for vacation:

Employee Ivanova has been working as a sales manager at Remont-Prime LLC since April 2012.
From September 2014 until the last day of January 2020, she was on maternity leave, from February 1, 2020 until November 22, 2020, to care for the child.
While still on vacation, she notified the CEO in writing that she was going to resign on November 23, 2020, that is, the day after her vacation ended.
During the entire time she has been working as a manager, 56 vacation days have been used.

To calculate the average daily earnings, we took the period from September 1, 2012 to August 31, 2014. Ivanova’s income during this time was 300 thousand rubles, vacation pay for a 28-day vacation was 24 thousand rubles. Eleven months fully worked. The total number of days is 324.25 days (the established average standard for the number of days is 29.3).

Only income is taken as a basis - those same three hundred thousand, vacation pay is excluded.

Ivanova’s average daily earnings is 925.21 rubles (300,000 rubles / 324.25 days).

Now we need to calculate how many vacation days were not used by Ivanova. For thirty-four months worked (and this is from April 2012 to January 2020 - 33 months and another 29 days, rounded up). During this time, the number of unused vacation days was 23.33 days.

(28 days/12 months x 34 months – 56 days used).

Total – 21 thousand 585 rubles kopecks. (925.21 rubles multiplied by 23.33 days).

Thus, a resigning or being dismissed maternity leave must receive full compensation for the days of vacation not taken off.

At the initiative of the employer

After maternity leave ends, some protections for women also end, and employers have the right to fire them at will.

In this case, the category of the terminated leave plays a role, whether it was related to pregnancy and childbirth or child care, as well as how old the child was.

The grounds for termination of an employment agreement are contained in Article 81 of the Labor Code.

Attention!

This is possible in the following cases:

the company is liquidated or the individual entrepreneur ceases its activities;
the staff or number of employees is being reduced;
the level of qualifications is insufficient, and this circumstance was established by the inspection carried out;
The internal structure of the organization has changed, or the owner has changed. This clause applies to the head of the institution, his deputies and the chief accountant;
the employee who was subject to disciplinary action committed a repeated violation;
the employee is absent from work for more than 4 hours, unless he has valid reasons;
the employee showed up at the workplace or organization after consuming alcohol or drugs;
the citizen allowed the disclosure of confidential information;
there was theft of things from colleagues or property of the organization - if this circumstance is confirmed by a judicial act;
labor safety requirements were violated, as a result of which an accident, catastrophe or accident occurred or could occur, if this circumstance was confirmed by an inspection;
actions have been taken as a result of which trust in a citizen has been lost if he works with money or valuable goods;
the commission of actions incompatible with moral standards by a citizen engaged in educational work;
making an unmotivated decision by the manager, which resulted in material damage to the company or loss of its property;
the employee, when concluding an employment agreement, provided false information about himself.

This list does not contain a complete list of violations. For certain groups of workers, special regulations provide for other reasons for severing employment relationships at the request of the employer.

Watch the video. How to maintain a position after maternity leave:

Features of dismissal of maternity leave at will

The reluctance to work in the same place for a woman who has just returned from maternity leave can be explained by various reasons. But she can’t just pick up and leave. The legislation does not provide any privileges to such mothers - they generally work out a 2-week period, starting from the moment the application is written.

It is noteworthy that the application itself can be written by a woman on maternity leave even at the moment she returns to work - her first working day after vacation. Of course, you can try to resolve the issue with the employer peacefully. He can meet halfway and release him from his position without working out. This is possible if:

a competent specialist works in place of the maternity leaver, who is completely satisfied with the management;
the woman presented serious arguments in her favor;
she occupied a less important position and the absence of an employee will not affect the efficiency of the enterprise;
There are many applicants for her place, which will allow you to quickly find a worthy replacement.

A woman herself can recommend someone to take her place in order to quit faster. But the employer must give the go-ahead for this.

What benefits do women have on maternity leave?

For pregnant women and mothers who have already given birth and are caring for a child, the legislation provides for a wide range of benefits. Labor legislation not only preserves their place and does not allow the employer to fire an employee, but also provides for a lot of other preferences.

Maternity leave usually lasts at least 1.5 years. If desired, a woman can care for a child and more - until he is 3 years old. The employer can only wait until the maternity leave ends, and during this time, hire another person.

Such a long absence of a person from his place can have a negative impact on work: a woman can forget most of the information that she knew before the maternity leave, during which time a huge number of innovations can appear. In this regard, the employer may decide that such an employee will not be useful to him. And then the woman may be asked to vacate her seat, but is such a demand legal? Here you need to consider the circumstances.

Let us remind you that any pregnant woman has the right to maternity leave. Additionally, she may be on sick leave for a long time due to poor health or being kept in hospital. The concept of maternity leave usually includes several time periods at once, namely:

prenatal – usually 70 days, regulated by Art. 255 Labor Code of the Russian Federation;
postpartum – also equal to 70 days if the woman does not have any health complications;
direct maternity leave - can reach a total of almost 3 years (from the moment of postpartum leave until the child turns 3 years old), regulated by Art. 256 Labor Code of the Russian Federation.

It is noteworthy that in the first two periods, the employer is obliged not only to keep the woman in her place, but also to make payments based on the size of her average salary. Even before 1.5 years, mothers are paid a benefit in the form of a certain percentage of the previously paid salary. They are prescribed until the baby is 1.5 years old. Until this time, the employer also cannot:

reduce;
fire;
transfer to another position.

The only thing he can do is fire the new mother due to the liquidation of the enterprise. But in this case, the latter is entitled to monetary compensation.

After 1.5 years, no compensation is paid. The monthly payment becomes very meager, which is why many women decide to go to work ahead of schedule. However, until the child turns 3 years old, they still have certain forms of protection (they cannot be laid off or fired without serious grounds in the form of misconduct).

Women's rights on maternity leave

Most of the working-age population in our country, in the old fashioned way, use the Soviet concept of “maternity leave,” meaning by it the period when a woman leaves work for a long time to give birth to a child and care for him. In fact, this rather long period is divided into three different periods:

prenatal (70 days, in a standard situation), Art. 255 TK;
postpartum (the same 70 days, if the woman in labor has no complications), Art. 255 TK;
leave allowing a woman to concentrate on her newborn until he is three years old, art. 256 TK.

During the first two stages, the maternity leaver not only retains her place, but is also paid an average salary. For the time remaining until the baby's third birthday, up to 1.5 years, she receives benefits and remains confident that she will be able to return to her position at any time. Moreover, during this period she cannot be disturbed by news of reductions and other global changes at the enterprise, except for its complete liquidation, Art. 261 TK.

Can they be fired if the employee was busy caring for a child?

If, during an employee’s maternity leave, a metamorphosis occurred in the organization—liquidation or staff reduction—the law is still on the mother’s side (we talked about the specifics of dismissing a maternity leave due to the liquidation of an enterprise here, and from this article you will learn about how you can whether to reduce a woman with a child under 3 years old.

The only acceptable case of dismissal on maternity leave is the termination of the activities of an individual entrepreneur or the liquidation of an organization (enterprise). The employer is obliged to notify the employee of dismissal no later than 2 months in advance and obtain her written consent. The work book says: “dismissed due to the liquidation of the organization.”

Read about whether an employee on maternity leave can be fired here, and from this material you will learn about when it is legal to lay off a woman with children under 3 years of age and when it is not.

What amount is due in this case?

The calculation for dismissal by a person on maternity leave is equal to the amount of the average monthly salary. In addition, the employer is obliged to pay the average monthly salary for the period while the woman is looking for a new job (no more than 2 months).

Staff reduction

If the rate at which a woman worked is subject to reduction during the period of maternity leave, the employer is obliged to offer alternative work. This could be 2-3 vacancies from related departments or work with similar functions.

To agree or not is a personal matter for each employee.

According to current standards, while a woman devotes herself to motherhood on legal leave, she retains her previous position and salary (Article 256 of the Labor Code). When she leaves, she returns to her job. If during this time a metamorphosis has occurred in the organization, they may offer a similar job, but with the same functionality and with the same earnings.

One thing we can advise in such a situation is not to sign any papers offered by the employer without receiving qualified legal advice.

By signing the consent, the woman deprives herself of the opportunity to make any claims in this regard, since this transition is regarded as her own desire.

Features of dismissal on maternity leave

As a general rule, dismissal of women on maternity leave is possible only in three cases:

By agreement of the parties, if neither party is against the dismissal of such an employee

In this case, the voluntary consent of the woman is important in the first place. Upon liquidation of the organization, when the woman was duly notified and received appropriate compensation payments. At the woman’s own request.. In other cases, dismissal is not allowed or is strictly limited by law

In other cases, dismissal is not permitted or is strictly limited by law.

Agreement of the parties

An employer and an employee on maternity leave may terminate their employment relationship by agreement of the parties. These standards are not prohibited by current legislation, so their use is completely legal. Upon dismissal in this way, similar data is entered into the work book. After completing the procedure, the employee receives the funds due to him, as well as a work book and other required documents from the employer.

In this case, the amount of compensation payments may be increased if the employer, for some reason, makes concessions to the employee and provides some kind of assistance upon dismissal.

Vacation compensation

If a woman decides to quit or the employer is forced to do so, she must receive compensation for unused vacation. When calculating it, you need to take into account earned vacation days. Time that relates to child care is not taken into account.

Important! In this case, both basic and additional vacation are subject to payment.

To make the correct calculations, you need to know how long the employee’s earnings are based on, as well as how to calculate the total number of vacation days. The difficulty of the calculation lies in the fact that the woman was absent from her place of work, but was still on the payroll, and, moreover, received certain payments. You also need to take into account that the employee was on maternity leave when the child was from 1.5 to 3 years old. In order not to make mistakes in the calculations, it is important to take into account certain tips and rules .

Compensation for unused vacation days of a dismissed person after maternity leave

For one month spent at the workplace, an employee is entitled to 2.33 days of rest, which constitutes calendar leave. But an employee who is on leave to look after a small child, although he is still on the staff of the company and occupies the position that he had before going on maternity leave, does not “earn” his days of rest (unlike a pregnant woman or a woman who has recently given birth). holiday according to the BiR).

This means that in order to calculate the number of unused days of a break from work, it is necessary to add the time spent on leave under the Labor and Employment Act to the unused days before the period of maternity leave - payment will be applied to them based on the average daily revenue for the previous year of work before the employee quit. Benefits and payments related to pregnancy and the birth of children are not included in the compensation amount.

It happens that the previous year, which should have been a calculation year, did not include the days worked by the employee - then the average salary determined for the position occupied by this employee is taken. So, the scheme for calculating compensation for dismissal after parental leave is as follows:

We calculate the required rest days.
We divide the total amount of days not taken off by 12 months.
We multiply the obtained result by the number of days on leave according to the BiR: 140 (in general), 156 (for complications during childbirth) or 194 days (for the birth of several babies at once), depending on how the pregnancy and childbirth proceeded.
The result is added to the total amount of days not taken off.
The woman’s average monthly earnings are then multiplied by this numerical value.
The result is compensation for unused vacation.

Upon liquidation of an enterprise

If the enterprise completely ceases to exist, any personnel can be dismissed, no matter what category of workers they belong to. Including pregnant women and those on vacation with a child under one and a half years old.

Typically the situation will look like this:

meeting of shareholders, making a decision on bankruptcy;
hiring an arbitration manager;
employee notification, negotiations;
dismissal order, order to the accounting department regarding accruals;
handing over documents and money to the dismissed person.

The outgoing subordinate will have to pay a lot - severance pay, payment along with vacation pay, and even cash payments until the son or daughter reaches the age of one and a half years. The list is impressive, it is possible to shorten it. This is the parties’ own desire or agreement (Article 77 of the Labor Code).

And it is this option that employers most often insist on if the prospect of bankruptcy has become quite real. Of course, you can accept the offer, but only of your own free will and aware of all the legal consequences of such a step .

The situation when a subordinate leaves immediately after maternity leave without working a single day deserves special attention. Here the question arises - how can she pay compensation for her vacation? In accordance with Regulation No. 922 on the calculation of average earnings and Art. 127 of the Labor Code, the basis is the woman’s actual earnings and the time she managed to work before going on maternity leave.

Calculation of monetary compensation

Number of unused days

The formula for calculating unused rest days is as follows:

ND = (EOO/12) * OM – ID, where:

ND – unused vacation days;
EOO – annual paid leave, in most cases it is equal to 28 days;
OM – number of months worked;
ID – rest days used.

Calculation of days while on maternity leave

As mentioned above, the time of maternity leave is not included in the vacation period. Let's look at an example of a calculation.

Colina G.G. was hired on 01/23/17. Her salary was 21,000 rubles. Maternity benefits were accrued from 06/01/17 to 10/18/17. Then the employee went on maternity leave for up to 1.5 years. After the end of Colin G.G.'s vacation decided to quit the organization without going to work.

To calculate vacation days, the period from 01/23/17 is taken. to 10/18/17. It is 9 months. The number of days is: 28/ 12 * 9 = 21 days.

Average daily wage

In general, it is 12 calendar months preceding the period for which the average daily wage must be paid.

Because During parental leave, no wages were accrued; for the calculation, the actual accrued wages before the employee went on maternity leave are used. If there was no average daily earnings, the salary or tariff scale is used for calculation.

Average daily earnings are determined as follows:

SDZ = ZP/ 12/ 29.3, where:

SDZ – average daily earnings;
ZP – salary accrued for 12 months;
12 – billing period;
29.3 – average number of days in a month.

If the pay period has not been fully worked out, then earnings are calculated based on the number of months actually worked. When calculating average daily earnings, maternity benefits are not taken into account.

So Colin G.G. in fact, she only worked for 4 months (from 01/23/17 to 06/01/17). Time worked in January is not taken into account, because she worked for less than half a month. Her average daily earnings will be calculated using the formula:

Salary = 21,000 * 4 = 84,000 SDZ = 84,000/ 4/ 29.3 = 717

Thus, compensation for unused vacation for Kolina G.G. will be: 717 * 21 = 15,057 rubles.

If a woman quits immediately without going to work

Maternity leave refers to three types of leave:

antenatal 70 days;
postpartum 70 days;
maternity leave for up to 1.5 or up to 3 years.

If an employee leaves after maternity leave, the calculation period is 12 months before going on maternity leave. Payments made during maternity leave are not taken into account when calculating average daily earnings, although this time is included in the vacation period.

Read about what payments are due if an employee quits her job after maternity leave at her own request or on the initiative of the employer.

Immediately as soon as it came out

If a woman did not work and did not receive a salary during maternity leave, this period is excluded when calculating vacation pay. Thus, the period preceding maternity leave is used for calculation.

How to calculate payments to a woman who worked part-time during maternity?

If an employee works part-time during maternity leave, she continues to receive appropriate benefits. In this case, the days will be included in the length of service when calculating compensation for vacation.

Drobysheva N.I. was on maternity leave for a child up to 1.5 years old until 04/23/18. For the last six months, she worked part-time and received 10,000 rubles a month. For six months she was paid 60,000 rubles. The required rest is 2 weeks ((28/12) * 6 = 14).

Calculation of average daily earnings: 60,000/ 12/ 29.3 =341

Calculation of due compensation: 341 * 14 =4774

How to calculate compensation when dismissing an employee after maternity leave

Rule No. 169 starting from the date of hire, with days worked comprising:

less than half a month - discarded;
more than half a month is counted as a full month.

Therefore, to determine the number of vacation days not used by an employee that are subject to compensation upon his dismissal, the employer needs to determine:

total length of service in the institution;
the presence of periods excluded from the length of service giving the right to leave, their duration in calendar days;
the number of vacation days due to an employee upon dismissal;
the number of vacation days used by the employee at the time of dismissal.

The length of service giving the right to leave is calculated as the difference between the employee’s total length of service in the institution and the periods not included in the leave length of service. This procedure is provided for by part 4 of article 139 of the Labor Code and paragraph 1 of clause 10 of the Regulations on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922. The billing period has not been fully worked out. In this case, the denominator will be the sum of the terms: In the formula, n is the number of months not fully worked. If some months in the billing period are fully worked out, they will be reflected in the denominator as the product of the number of such months and the average monthly number of calendar days (29.4). Other terms are the calculated values of the number of calendar days taken into account in each month that is not fully worked.

Compensation

After dismissal, the former employee is required to pay not only maternity benefits, but also a lump sum benefit, which is paid to each woman who gives birth. Moreover, the employer must pay the resigning employee the full amount of compensation for the vacation that she did not use. Next, you will look at how to calculate compensation upon dismissal after maternity leave.

Calculations

While the young mother is at home with the baby and until he is 1.5 years old, the employer pays her 40% of her salary monthly. Average earnings are calculated over a 2-year period. In practice, young mothers quit in this way only when they have managed to find a new job.

If the company goes through a liquidation procedure, the young mother will receive not only the amount of payments for unused vacation, but also a kind of severance pay. The young mother's salary should be one of the first to be paid according to the company's list of debts.

A young woman can quit even after she returns to work from maternity leave. In this case, the calculation takes place on the last day of her work. There are cases when a young mother refuses to continue working at an enterprise due to the fact that it has changed its location, or her department or workshop has been moved to another location. Of course, the employer is obliged to notify the maternity leaver in advance about such changes.

Compensation for unused vacation

Being on maternity leave is added to the employee’s length of service and gives her the full right to receive additional payment for the entire period of leave that the girl did not use. So, if she quits after maternity leave, then the organization is obliged to compensate not only the number of days that she did not use before the maternity leave, but also the days that were taken during maternity leave.

The resulting 11.67 vacation days must be added to other unused vacation days. These days are multiplied by the employee’s daily salary and the result is the amount that must be paid to the young mother for unused vacation.

Compensation for maternity leave for unused vacation

Therefore, for employees who decide to quit after maternity leave, it is better to do this while still on maternity leave, since the notice period includes being on vacation or on sick leave. In order to quit, there is no need to return from maternity leave to work.

You can send your resignation letter to the employer by mail, using registered mail with notification. Once you receive notice that your employer has received your application, it will be easier to count the 14 days. So, the letter was received by the employer on April 8, 2020, therefore, 14 days begin to be calculated from April 9, 2020, the end of the employment relationship will be April 22, 2017.