Almost every woman who is officially employed at an enterprise, going on maternity leave, is afraid of being laid off. However, in certain situations, the opposite happens - while already on maternity leave, the employee expresses a desire to resign on her own initiative. The following will describe the key features of this process.
Prohibition on dismissal of a maternity leaver by the employer
Labor legislation establishes a strict ban on the dismissal of women who are on maternity leave at the initiative of the employer.
It does not matter whether the expectant mother is working or is already on maternity leave. However, there are also exceptions to this rule. If the organization in which the woman is officially employed is liquidated, or an individual entrepreneur terminates his activities, the dismissal of a pregnant woman is permissible.
Moreover, this action will not be regarded as a violation of rights. In such cases, some employers take care of their subordinates and find available vacancies in other companies.
There are no other reasons for dismissing a pregnant woman or a young mother on maternity leave. This prohibition is regulated by the legislation of the Russian Federation. Moreover, its violation threatens the entrepreneur with a large fine and numerous inspections from regulatory authorities.
Is it possible to resign during the period before at your own request?
Many women are interested in whether it is possible to quit their job during maternity leave at their own request.
Dismissal from the workplace at the initiative of an employee who is on maternity leave occurs in the same manner as regular dismissal. The possibility of severing employment relations for this reason is spelled out in clause 3, part 1, art. 77 Labor Code of the Russian Federation.
It is noteworthy that the Labor Code does not provide for any prohibitions or restrictions on the dismissal of a maternity leave at their own request.
The procedure for dismissing a maternity worker at her own request
The dismissal procedure for any reason consists of a number of actions performed in a certain sequence. Violation of the algorithm may lead to a controversial situation.
Especially when it comes to dismissing a woman on maternity leave. When going to court, all doubts will be interpreted in favor of the employee.
It is important to remember that the employer does not have the right to put pressure and force the employee to write a statement. He cannot call a specialist on maternity leave, give him any instructions, or demand work.
At the same time, he also does not have the right to refuse dismissal based on a written request.
It is the employer’s responsibility to accept the application in a timely manner, complete the order and prepare all documents for the employee’s last day of work. By the same date, the calculation of all amounts due to the woman should be ready.
The date of dismissal is determined by the employee herself in a statement or in agreement with the employer.
Compensation calculation
Calculation of payments when dismissing an employee on maternity leave has a number of features. During maternity leave, no salary is paid, since the woman does not work.
Instead, a benefit is calculated, the amount of which is 40% of the average salary for the two previous (at the choice of the employee) years. After the child turns 1.5 years old, the payment stops.
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Therefore, when dismissing such an employee, the employer must only pay her compensation for vacation. But only if it was not used before the start of the maternity leave. Or if there are unused days from previous years.
The calculation of compensation is regulated by Art. 139 Labor Code of the Russian Federation.
The collective agreement may also provide for other payments upon dismissal. For example, severance pay or one-time financial assistance. In this case, these funds are included in the calculation.
All payments are made on the day of dismissal. However, the employer can do this earlier; such actions are not a violation of the law.
How to do it right
In order to dismiss an employee on maternity leave according to all the rules, you must adhere to Art. 84.1 Labor Code of the Russian Federation. It discusses in detail the procedure and timing of dismissal at the request of the employee.
In particular, the employee has the opportunity to change her mind and withdraw her application. In this case, after the end of the vacation, she returns to her previous place and continues to work.
Is it possible without working out?
In order to quit during maternity leave, it is not necessary to go to work or wait until the end of the vacation. Upon expiration of the period specified in the application, termination of the contract will occur automatically.
However, if both parties agree, the dismissal can be formalized earlier, for example, directly on the day of filing the application.
Can they ban
The ban on dismissal of women who are pregnant or on maternity leave applies exclusively to termination of an employment contract at the request of the employer. He does not have the right to refuse to dismiss an employee at his own request.
If the termination of employment relations is properly completed, supervisory authorities will have no grounds to punish the employer.
Labor guarantees during maternity leave
The law guarantees that women who go on leave in connection with childbirth and raising children will retain their previous position upon return. In addition, they are entitled to receive benefits equal to part of their earnings and to a lump sum maternity payment.
In case of dismissal, the responsibility for calculating benefits passes to the new employer or the employment service.
Algorithm of actions
The step-by-step dismissal procedure will look like this:
- Notifying the employer by filing an application. The notice period is the same as always - at least two weeks. The application is accepted and registered.
- Drawing up an order to terminate an employment contract on the basis of clause 3 of Art. 77 Labor Code of the Russian Federation. The order is endorsed by the immediate supervisor, the chief accountant and the head of the personnel department, and then signed by the head of the organization.
- Familiarization of the employee (or employee) with the order. This is a mandatory stage, which may coincide in time with the delivery of documents.
- Calculation of necessary payments based on the issued order.
- Making a record of dismissal at the employee's request in the work book, certified by the company seal.
- Issuance of work book and other documents, final payment.
How to register during parental leave for a child under 3 years old?
In order to terminate a working relationship, you must complete the following steps:
- draw up a letter of resignation;
- submit the application to the HR employee or manager;
- pick up your work book in 2 weeks and receive a full payment.
Since the maternity leaver is not at work, the work book and salary will be provided to her no later than the next day after the announcement of the requirements for their provision. If we talk about two-week work, this event is conditional.
If you are about to leave on maternity leave at your own request, the employee needs to prepare an application on her own behalf. The document is drawn up in any form. In the header you need to indicate in whose name the appeal is made (the head of the enterprise) and the full name of the employee. In the text itself, the maternity leaver indicates a desire to resign of her own free will.
After this, the date and signature must be indicated. The application can be drawn up in two copies - one is given to the employer, and the other is marked with acceptance of this document. The second copy remains with the employee to confirm the fact of drawing up this document.
A woman is not required to indicate the exact reasons for terminating her employment contract. The law does not oblige her to do this.
Dismissal on your own initiative
This method of terminating an employment relationship is provided for by current legislation. The employee loses the right to receive payments related to pregnancy and childbirth. In this case, the employer pays the arrears of actually calculated wages. The cost of unused vacation must be compensated.
Depending on the grounds for dismissal, termination of employment relations with a pregnant employee is carried out in several stages. If the initiative comes from an employee, the following rules apply:
- submission and registration of an application for maternity leave is completed;
- the employee must work for two weeks (during this time the employer can find a new worker to fill the position);
- creating a dismissal order in accordance with current legislation;
- issuing a work book, making calculations.
Pregnant women can contact their employer to terminate their employment by agreement of the parties. In this case, the procedure is carried out using the following technology:
- the initiative must come from one employee;
- you need to agree on your decision to terminate the employment contract with the other party, draw up a formal agreement;
- transfer of entrusted cases that were provided for work to complete labor obligations;
- drawing up and issuing an order;
- making final payments to the worker, issuing a work book;
- payment of severance pay for the entire period established in accordance with labor legislation.
If the company is liquidated, employees are informed about this situation no later than 2 months in advance. Workers are dismissed in accordance with current legislation.
The employer issues an order to dismiss employees using the standard T-8 form. It provides for mass redundancy provisions. If the final payment is made, employees receive all the necessary documents.
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If dismissal occurs immediately after maternity leave
While a young mother is on maternity leave, the employer does not have the right to fire her. This norm is enshrined in Art. 261 Labor Code of the Russian Federation. However, after this period ends, completely different opportunities appear.
Dismissal after maternity leave can occur at the initiative of the employer. In this case, the manager must have valid reasons for dismissing the employee. This could be the liquidation of an enterprise, a reduction in staff, or a serious violation of labor discipline by an employee.
In other cases, dismissal may be considered a violation of the employee's rights. As for dismissal of her own free will, a woman on maternity leave can terminate her employment contract at any time: during her stay in it or after the end of her maternity period.
It is important to remember the two-week working period. The employer may require it while the search for a replacement is carried out. The resignation letter can be submitted to the head of the company in person. A note about it should be made in the secretariat.
How to quit after maternity leave without waiting 2 weeks
In order not to wait until the provisions provided for in Part 1 of Art. 80 Labor Code of Russia 2 weeks, the parties can provide for this situation in advance in the employment contract. In particular, the contract may stipulate that when submitting a resignation letter, you do not need to wait 2 weeks to complete the work, and the day of dismissal is considered the day the application was submitted or another date specified in the application. If this condition was not initially stated in the contract, then before submitting a letter of resignation, you can conclude an additional agreement to the employment contract in which this clause is stated.
It is also possible not to wait 2 weeks for dismissal if the employee is unable to continue working - for example, if he needs to start training, needs to leave due to a change of residence, etc. Also, immediate dismissal may be due to the fact that it was officially established that the employer violated the terms of the contract or labor legislation. Then, in accordance with Part 3 of Art. 80 of the Labor Code of Russia, dismissal at one’s own request must be made on the day specified in the employee’s application.
Another option is dismissal by agreement of the parties, the possibility of which is provided for in Art. 78 TK. By virtue of the norm, employment relations on this basis can be terminated at any time - the main thing is that neither the employer nor the employee objects to this.
The nuances of a woman leaving her place of work while on sick leave for pregnancy and childbirth
In accordance with the general rules, dismissal of women on maternity leave is possible only in three cases:
- at the employee’s own request;
- by agreement of the parties: in this case, neither party should be against dismissal. In this case, the consent of the woman herself is important;
- in the event of liquidation of the organization: the woman in this case must be notified. Appropriate financial compensation is awarded to her name.
If there is a fixed-term employment contract, the dismissal of an employee who is on maternity leave is unacceptable (even despite the termination of the contract). When going on maternity leave with a fixed-term contract, the agreement is extended until childbirth or until the employee returns from maternity leave. After this, the contract is canceled due to the expiration of its validity period.
It is also clarified that if a woman who is going on maternity leave was employed in the place of another employee, the manager has the right to dismiss her subject to certain rules:
- the pregnant woman was offered other vacancies;
- For certain reasons, a woman is not able to refute a transfer to another workplace.
An employee who is on maternity leave to care for a child until he reaches 3 years of age has the right to terminate the employment contract on his own initiative at any time. In this case, maternity leave will not be interrupted.
The employee must be familiarized (against signature) with all the entries that were transferred from the work book to the personal card. When leaving at your own request, the information that is present in the work book is noted in your personal card.
