Notice of departure from maternity leave of the main employee

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Published: 01/12/2018

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Before an employee goes on maternity leave, the employer is faced with the task of finding a temporary replacement for her.

Sometimes this is done by transferring another company employee to her place or registering an internal part-time job. However, the most convenient way that is used in practice is hiring a new employee .

It is worth determining what conditions the employer must fulfill when further dismissing such a temporary employee and how to carry out this procedure correctly.

• Status and legislative regulation of the work of temporary employees
• Algorithm for dismissing an employee Receiving information from the main employee about returning to work
• Issuing an order for an employee to return to work early
• Warning about the upcoming dismissal of a temporary employee
• Documentation of the procedure
• Carrying out all necessary settlements with the employee

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Return of the main employee from maternity leave as grounds for dismissal

Before an employee goes on maternity leave, the employer is faced with the task of finding a temporary replacement for her.
Sometimes this is done by transferring another company employee to her place or registering an internal part-time job. However, the most convenient method that is used in practice is hiring a new employee.

It is worth determining what conditions the employer must fulfill when further dismissing such a temporary employee and how to carry out this procedure correctly.

Status and legislative regulation of the work of temporary employees

If an employee is hired to replace someone who has gone on maternity or child care leave, the employer enters into a fixed-term employment contract with him.

However, it is not necessary and even undesirable to indicate the specific period of its validity (for example, 3 years) or the exact expiration date in the document.

This is due to the fact that maternity leave can be extended in some cases (for example, if there are complications), and the employee has the right to leave maternity leave at any time. There are no provisions in the law regarding mandatory advance warning to the employer about the end of maternity leave.

Therefore, the correct solution would be to indicate in the contract with a temporary employee the day before the main employee goes to work as the deadline. This will allow you to quickly and legally fire a temporary worker and avoid a situation in which there will be two people at the same workplace at the same time. Also, a temporary employee will not be able to challenge the dismissal and have it declared illegal, unlike in cases where the contract specifies a specific date.

When the main employee decides to return to perform his official duties, this will be considered the moment of expiration of the employment contract (according to Article 79 of the Labor Code of the Russian Federation) of the employee who is currently replacing him. In accordance with paragraph 2 of Art. 77 of the Labor Code of the Russian Federation, this ground is weighty enough to terminate the employment relationship between the parties.

The legislation also does not put forward any requirements to warn a temporary employee about the upcoming dismissal, unlike other situations with termination of an employment contract, in which the employer is obliged to do this at least three days in advance.

Since, when signing, the employee knows about the temporary nature of the document and the grounds for termination of the contract, his labor rights are not violated.

https://youtu.be/q-F5NIBnzr0

Legislative support for termination of employment relations with a temporary employee

It should be noted right away that the person who was hired instead of a maternity worker is a temporary worker, with whom an employment contract is also concluded, but a fixed-term one (Article 59 of the Labor Code of Russia), and not an indefinite one. The period is set, of course, in accordance with the maternity leave of the main employee without indicating the exact date, but simply with the words, for example, “for 3 years.” This should be done because maternity leave can be extended, but every maternity leaver has the right to go to work at any time, even without prior notice to her employer.

It is the date the main employee returns to work that will be considered the automatic termination of the employment agreement concluded with the temporary worker. This is stated in Article 79 and in paragraph 2 of Article 11 of the Labor Code of the Russian Federation. When an agreement is signed with a person who is replacing a maternity leaver, all these details are explained to him, and therefore his rights are not violated in any way. They can temporarily hire a part-time worker to replace a woman who has gone on maternity leave (Article 288 of the Labor Code of the Russian Federation). Such employees cannot be laid off, because then a full-time position is removed from the staff, and according to the law (Part 4 of Article 256 of the Labor Code of the Russian Federation and Part 4 of Article 261 of the Labor Code of the Russian Federation), it is impossible to deprive a woman on maternity leave of her job.

https://youtu.be/eNk2zhc9hTQ

Algorithm for dismissing an employee

The legislation does not have clear requirements regarding the procedure for dismissing a temporary employee and returning to work as a main one. But a certain algorithm should be followed. It includes the following steps:

Receiving information from the main employee about going to work

This is usually done by writing a statement indicating the desire to interrupt the vacation, which is drawn up in any form. An employee can write and submit this application to the employer at any time, even immediately before the actual day of going to work. There are no deadline requirements for it.

Issuing an order for an employee to return to work early

This document is drawn up on the basis of the received application and must contain the following information:

• the fact of interruption of parental leave;
• date of return to work;
• the work schedule in which the employee plans to work (this can be either full-time or part-time);
• Instructing the accounting department to calculate and transfer wages to the employee.

After drawing up this document, it is necessary to familiarize the main employee with signature.

Warning about the upcoming dismissal of a temporary employee

His rights are not protected in any way, so he can receive notice of dismissal even a day before the upcoming procedure, since the employer has no obligation to warn him about this in advance.

Documentation of the procedure

This stage is no different from the procedure provided for in general cases under Art. 84.1 Labor Code of the Russian Federation. It includes the following actions:

• issuing a dismissal order - this document is drawn up in writing (according to the established form) and is given to the employee for review against signature;
• making a record of dismissal in the employee’s personal card (after the end of the employment relationship, this document remains with the employer);
• making an entry in the work book (it is then given to the employee).

As for the wording that is included in the order and work book, the expiration of the employment contract may be indicated as the basis for dismissal. Legislative basis - clause 2 of Art. 77 Labor Code of the Russian Federation.

Carrying out all necessary settlements with the employee

The payments he is entitled to include compensation for unused vacation days and wages for the period worked. The employer must not make any additional payments or compensation.

These payments must be made on the last working day, which is also the date of dismissal. The same applies to the requirements for issuing the employee his completed work book.

It is worth noting that when dismissing a temporary employee, the legislation also does not contain any instructions regarding his mandatory service for a certain period (for example, two weeks).

If the employer prohibits the main employee from going to work during this period due to mandatory work by a temporary employee, then this is a violation of labor laws. Paying for a business trip on a weekend is quite realistic.

We do not recommend that you falsify sick leave - it is a criminal offense. For more information.

How to get maternity benefits for your husband? Read more about this in our article!

Special cases

Despite the simplicity of the procedure for dismissing a temporary employee, some difficulties may still arise. This may happen if it meets the following criteria:

1. He is a part-time worker. Both internal and external part-time workers can simultaneously perform the duties of two employees. In the first case, his main place of work will be the same company, in the second - a different employer. Regardless of this, an agreement on temporary work is concluded with the part-time worker only for the period of maternity leave of the main employee. After the end of this leave (both ahead of schedule and after the expiration of the term), the part-time worker from the position being filled can be quite legally dismissed.
2. I took maternity leave. If during the replacement period the temporary employee also went on maternity leave, then she retains the right to receive all payments that are due in other cases. However, if a key employee resigns from work, she will be dismissed from the day that employee begins his duties.
3. Is pregnant. When a subordinate is dismissed at the initiative of the employer, one of the socially protected categories of employees are pregnant women who are not subject to dismissal. However, the expiration of the employment contract is a circumstance that does not depend on the will of the parties, therefore, even if a temporary employee is pregnant, the employer can fire her. The only peculiarity in this case is that before terminating the employment relationship, management must offer the woman suitable vacant positions based on health and other criteria, if there are any in the company. However, the new position may require less qualifications or have lower pay. It is worth noting that the position of another employee who went on maternity leave is not vacant, so the employer is not obliged to offer it.
4. Is on vacation. In this case, the employer can dismiss the employee on the day when his vacation ends. However, the employment contract cannot be considered extended for an indefinite period. Payment for the vacation must follow before it begins.
5. I was on sick leave. The day of dismissal will be the last day of illness of the employee indicated on his certificate of temporary incapacity for work. In this case, the employee has the right to receive all payments due to him during the period of illness.

Obviously, the status of a temporary worker replacing an employee for a while

maternity leave, in Russian labor legislation is unprotected and is practically not regulated in any way. Such an employee can be fired at any time when the main employee decides to return to his duties. All these features must be taken into account even before concluding an employment contract, since after this the employee will confirm with his signature his consent to the conditions proposed by the employer and the temporary nature of the work activity.

Vyacheslav Sadchikov Lawyer. Practice in real estate, labor law, family law, consumer protection Subscribe to us in Yandex Zen

Notice of departure of the main employee

For the duration of the duties of an absent employee, whose place of work is retained in accordance with the law, a fixed-term employment contract is concluded with the newly hired employee (Part 1 of Article 59 of the Labor Code of the Russian Federation). A typical case is when an employee is on maternity leave (Part 4 of Article 256 of the Labor Code of the Russian Federation).

When the main employee wants to return to perform his work duties, the fixed-term employment contract with the temporary employee is terminated. This can happen either after the end of the period of absence initially agreed upon with the employer (for example, when the employee’s child reaches the age of 1.5 years), or ahead of schedule. In the latter case, the main employee submits a corresponding application to the employer. For example, an application to interrupt parental leave.

In order to warn a temporary employee about the departure of the main employee and, therefore, the upcoming termination of the employment contract with the “fixed-term” employee, the employer must prepare a corresponding notice for him. We will tell you how to draw up such a notice in our consultation.

Features and nuances

The process of losing the legal force of a fixed-term employment contract is quite simple, but certain nuances should be taken into account.

There are cases when the time to terminate the contract has come, but the additional employee is on vacation. Therefore, the employer has a question: how to carry out dismissal?

To do this, it is necessary to issue an order in which to indicate the last day of such citizen’s vacation as the date of termination of the contract.

The same applies to situations when an employee is on sick leave. Some difficulties arise when the temporary employee is a pregnant woman.

As a general rule, she cannot be fired, however, within the framework of temporary employment, there are certain concessions. The head of the organization can fire her only if she is offered another vacancy in his company.

If the pregnant woman refuses them, the employment agreement can be terminated in the usual manner.

If the temporary employee is already on maternity leave, then you can fire her without much difficulty. This happens by issuing an order indicating the reason for termination of the contract - the departure of the main employee.

We draw up a notice of resignation of the main employee

The employee’s notification that the main employee is returning to the position he occupies under a fixed-term employment contract is drawn up in any form.

In it, with reference to Part 3 of Art. 79 of the Labor Code of the Russian Federation indicates the upcoming departure of the main employee and the termination of the employment contract with the conscript in connection with this.

The notice must be given to an employee who is working under a fixed-term employment contract against signature.

Please note that the rule that the employer must notify the employee of dismissal at least 3 calendar days in advance does not apply if such an agreement was concluded for the duration of the duties of the absent employee (Part 1 of Article 79 of the Labor Code of the Russian Federation). Therefore, the employer decides how many days in advance to notify the employee of dismissal. That is, it is permissible to warn even 1 day in advance.

According to Rostrud, it is necessary to dismiss a conscript on the day before the day the main employee leaves (Rostrud Letter No. 4413-6 dated October 31, 2007). However, according to Part 3 of Art. 79 of the Labor Code of the Russian Federation, an employment contract concluded for the duration of the duties of an absent employee is terminated when this employee returns to work. Accordingly, there is no legal basis for dismissal until the date of departure of the main employee.

For notification of the main employee's departure, we provide a sample of how to fill it out.

Prev. / Next Notifications about leaving the main employee on maternity leave can be found here. Only subscribers of the Main Ledger magazine can download document forms.

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Of course, the mere fact of the departure of the main employee does not oblige the employer to part with the temporary employee. It is the employer’s responsibility to return the “reserved” job to the main employee, but dismissing the “conscript” is his right. If the employer does not want to part with an employee who performed the duties of an absent employee, he can, with the consent of the conscript, transfer him to another job on a permanent basis (if there is no reason to re-enter a fixed-term employment contract). To do this, an additional agreement is drawn up to the fixed-term employment contract. In this case, a notice of departure of the main employee is no longer drawn up.

Let us recall that the Labor Code of the Russian Federation gives the employer the right not only to hire a new employee under a fixed-term contract for the period of absence of the main employee, but also to transfer his current employee to a temporarily vacant position by concluding a written agreement with him. In this case, the employee performs the duties of the absent employee also until he returns to work. A notice of the upcoming departure of the main employee in this case can be drawn up according to a similar model, with the only difference that the temporarily transferred employee is not fired, but is given his previous job (Part 1 of Article 72.2 of the Labor Code of the Russian Federation).

Refusal to return to work

Several years is a long enough period for serious changes to occur at an enterprise. Therefore, women are often faced with the fact that when they return from maternity leave, they are denied a continuation of their employment relationship. And all employers know that this is a gross violation of the law, however, they demand that young mothers vacate their positions.

What can be done in this case? If necessary, you can compete for your place. To do this, you need to write a corresponding complaint to the labor inspectorate or other regulatory authorities. Some female employees prefer to quit because their boss will still not allow them to carry out their official duties. Experts recommend leaving not of your own free will, but to enter into an agreement. Then there is an opportunity to receive a good severance pay.

https://youtu.be/QN9S62QKzNQ

Is it necessary to issue a notice of dismissal for a conscript?

Article 79 of the Labor Code of the Russian Federation clearly states that the employer is obliged to notify an employee working under a fixed-term employment contract about the upcoming termination of its validity.

Moreover, this must be done in writing. Usually a notice is drawn up and delivered personally to the employee.

It is important to send notice of dismissal in a timely manner and draw it up on paper. Neglect of these rules is a violation of labor laws.

A competent employee who knows the norms of the Labor Code of the Russian Federation will be able to refuse to resign due to the lack of notification of the termination of a fixed-term employment relationship or its untimely transfer to the employee.

To avoid possible disputes and conflicts with a fixed-term employee, you should draw up a notice in two copies - one to give to the worker, the second to keep for yourself, having first received the employee’s signature acknowledging the imminent termination of the employment contract.

A notice must be drawn up if the contract is concluded:

• for a limited specific period;
• for the season;
• for the period of performance of work;
• for the period of provision of services.

It is important to remember that the maximum period for a fixed-term relationship is 5 years.

It is not necessary to warn the employee if the contract was concluded during the absence of another permanent employee.

How many days in advance must an employee be notified?

Article 79 of the Labor Code of the Russian Federation talks about the period of warning for a fixed-term employee to terminate the contract due to the expiration of its term - the conscript must be notified 3 calendar days in advance.

The employer can warn the employee earlier; the law does not prohibit advance notification of the termination of a fixed-term relationship.

In the case where a conscript is accepted to perform work or services, the contract is terminated upon completion, and there is also an obligation to notify the employee about this three days before termination of the agreement. Similar rules apply to contractual relationships concluded during the season, when the agreement is automatically terminated due to the end of the season.

If the contract is concluded during the absence of the main employee, then there are no restrictions on notifying the fixed-term employee.

Upon the departure of the main worker, the fixed-term agreement automatically terminates, and the temporary worker must resign on the same day.

How to notify about the termination of a fixed-term employment contract?

According to the Labor Code of the Russian Federation, the company management must warn the fixed-term employee about the expiration of the contract in writing.

The document is usually called a notice and is addressed personally to the person being dismissed.

It is better to hand over the notification form in person. If this is not possible, then you should send the document by mail in advance. The main thing is to maintain the required notice period, equal to three calendar days before the date of termination of the employment agreement.

A verbal warning is not sufficient. If the employer warns the employee about the expiration of the fixed-term contract verbally, then the employee on the day of dismissal may refuse to sign the dismissal order and will be right.

When are payments made?

On the last day of work, wages are calculated and vacation compensation is paid.
If the employee is absent on this day for some reason, then he is paid no later than the next day after applying for payments. Vacation compensation is due only to those temporarily hired workers with whom an agreement has been concluded for a year or more. Within six months after taking up his official duties, a person acquires the right to work rest.

In cases of staff reduction or cancellation of the company, severance pay is also provided. If the contract was concluded for a period of up to 2 months, then it is not applicable.

Issuing a warning due to the expiration of the deadline

As mentioned above, it is necessary to issue a written warning for a fixed-term employee only if the employment contract is signed for a limited period that expires in the near future, as well as when it is drawn up for the period of the season or the performance of work.

In this case, the text of the document is drawn up in any form, but you must make sure that the notification contains the following information:

• name of the paper, its number, date of preparation;
• contacting an employee whose employment relationship is expiring;
• information that the employment contract is expiring (indicate its number and date of conclusion);
• expiration date of the validity period (this date will be the date of dismissal; this will be the last working day of the conscript);
• the reason for termination of the employment relationship;
• link to the code article;
• manager's signature;
• The employee’s introductory signature is a mandatory and very important point, which will help prove the employer’s compliance with established job duties.

For registration, it is better to take the organization’s letterhead. You can write the text in any way - manually, on a computer.

It is not necessary to put a stamp under the text of the notification; a signature of the head of the organization or another employee of the company authorized to certify such documents is sufficient.

If the letter is sent by mail, then it is necessary to indicate the postal details of the addressee, and send the document itself by registered mail with return receipt requested.

After receiving an introductory visa from a conscript employee, you must register the document in the registration journal.

Sample for termination

notices of termination of a fixed-term contract upon expiration - .

notice of dismissal due to the main employee returning from maternity leave - .

Entry into the work book

The work book is one of the fundamental documents.
Every employed Russian citizen should have it. If an employee gets a job for the first time, then his employer is obliged to properly prepare the specified document. When making an entry in the work book of a resigning specialist, you must indicate the name of the enterprise, as well as the number and date of conclusion of the employment agreement. In addition, upon termination of the employment relationship, the director of the enterprise is obliged to indicate the reason for the termination of cooperation. To do this, a reference should be made in the work book to the corresponding article of the Labor Code of the Russian Federation. It should also indicate the number of the order according to which the relationship between the employer and the employee ends.

Drawing up a fixed-term employment contract allows you to replace an employee who is temporarily absent with another specialist. However, the employer can legally fire such a person when the main employee decides to begin his duties. But we must remember that the process of ending the relationship with a temporary worker must comply with the standards enshrined in the labor legal acts of the Russian Federation.

Answers to readers' questions

Question 1: We have a pregnant employee working under a fixed-term contract in place of a maternity leaver. A permanent employee goes to work, what to do with a pregnant conscript >>> answer.

Question 2: We dismiss an employee after the expiration of the contract, he has worked for 2 months, for how many days should compensation for vacation be calculated >>> answer.

Question 3: We are hiring a person for a limited period of time, is it necessary to require him to apply for employment >>> answer.

Calculation

Dismissal in connection with the return to work of a “maternity leaver” is carried out quite simply. The last stage is the issuance of the necessary funds and documents. Therefore, all calculations must be made before a person leaves. The employee has the right to receive:

• wages;
• vacation compensation;
• payment of sick leave;
• all necessary bonuses and rewards.

If you fire a temporary employee, you cannot force him to work for two weeks. There is no information about such work in labor legislation. Moreover, if this does happen, the employee has the right to complain about the boss to the labor inspectorate or the prosecutor's office.