New rules for ending parental leave

When is it possible to dismiss an employee on parental leave?

The employer cannot initiate the dismissal of such an employee (Part 6, Article 81 of the Labor Code of the Russian Federation). However, there are other acceptable ways in which you are allowed to break off relations with him:

the term of the fixed-term employment contract has expired if there are no vacancies (Part 1 of Article 79 of the Labor Code of the Russian Federation);
the desire of the employee himself (clause 3, part 1, article 77 of the Labor Code of the Russian Federation).
termination of labor relations by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation);
liquidation of an enterprise (clause 3 of Article 261 of the Labor Code of the Russian Federation).

Topic: Dismissal of a maternity leaver by agreement of the parties and admission to a new organization

Hello everybody! The CJSC organization dismisses employees, incl. maternity leave for childcare up to 1.5 l., according to parties and hires everyone into the new LLC. The woman on maternity leave wants to go part-time while maintaining benefits and a one-month period of second maternity leave. I have only one question: is he entitled to benefits in the new organization? and on what grounds?

Good evening, please tell me how to “fearlessly” apply for a job, and whether it needs to be done at all (I mean working under an employment contract), if the employee at his main place is on vacation for up to 1.5 years and receives benefits. 1. Resign there, take a job with us, lose benefits? 2. Should I accept her as a part-time worker? (Does she still have the right to benefits?) 3. Conclude a GPC agreement with her? (then we won’t be able to pay her sick leave, etc.) maybe you have options, please share?

How to fire a maternity leaver by agreement of the parties

For employers, this is often the only possible option to terminate the employment relationship with an employee on maternity leave.
Dismissal is formalized under clause 1 of Art. 77 Labor Code of the Russian Federation. No processing is required. The dismissal procedure can be divided into several stages:

One of the parties decides to terminate the employment contract. If the initiative comes from the employer, he sends the employee a notice in any form, which indicates all the conditions for dismissal.
Negotiations are held at which the parties agree on all terms of termination.
An agreement between the parties is drawn up in two copies. The document spells out all the points that were agreed upon.
The employee responsible for personnel records issues an order to terminate the employment contract.
On the day specified in the agreement, all necessary payments are made (for unused vacation, compensation and other “severance” payments).
Fill out a work book with the wording: “The employment contract is terminated (terminated) by agreement of the parties, paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation.”

ConsultantPlus: Forums

Question: Based on an additional agreement to the employment contract, upon dismissal of an employee (specialist) from the organization, by agreement of the parties, he was paid compensation in the amount of three average monthly earnings. Is this compensation subject to personal income tax and insurance premiums?

Federal Law No. 330-FZ of November 21, 2021 introduced changes to the Tax Code of the Russian Federation regarding the imposition of personal income tax (hereinafter referred to as personal income tax) on amounts paid by an organization upon dismissal of employees. So, in accordance with paragraph 8 of paragraph 3 of Art. 217 of the Tax Code of the Russian Federation from 01.01.2021 are not subject to taxation (exempt from taxation) all types of compensation payments established by the current legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local self-government (within the limits established in accordance with the legislation of the Russian Federation), related to the dismissal of employees, with the exception, in particular, of the amount of payments in the form of severance pay, average monthly earnings for the period of employment, compensation to the manager, deputy managers and chief accountant of the organization in a part exceeding in general three times the average monthly salary or six times the average monthly earnings for workers dismissed from organizations located in the Far North and equivalent areas. Thus, paragraph 3 of Art. 217 of the Tax Code of the Russian Federation in the new edition provides for exemption from personal income tax on income of individuals received in the form of severance pay and not exceeding three times the average monthly earnings, if such severance pay is provided for by current legislation. Article 178 of the Labor Code of the Russian Federation, which regulates the procedure for the payment of severance pay, establishes that, in addition to the cases of payment of such benefits directly provided for by this article, the employment contract may provide for other cases of payment of severance pay. Moreover, according to Part 3 of Article 57 of the Labor Code of the Russian Federation, if at the conclusion of the employment contract any conditions were not included in it, these conditions can be determined in a separate agreement of the parties, concluded in writing, which is an integral part of the employment contract. Therefore, the condition on payments upon termination of an employment contract by agreement of the parties, stated in a separate agreement, which, by virtue of direct instructions (Part 3 of Article 57 of the Labor Code of the Russian Federation) is an integral part of the employment contract, qualifies as payments provided for by labor legislation. Thus, payments of this kind are exempt from personal income tax on the basis of clause 3 of Art. 217 of the Tax Code of the Russian Federation in an amount not exceeding in general three times the average monthly earnings (six times the average monthly earnings for workers dismissed from organizations located in the Far North and equivalent areas). Amounts exceeding three times (six times) average monthly earnings are subject to personal income tax in accordance with the established procedure. In connection with the entry into force on January 1, 2021 of the new edition of clause 3 of Art. 217 of the Tax Code of the Russian Federation, the Ministry of Finance of Russia explained in a number of letters that the specified provisions of paragraph 3 of Art. 217 of the Tax Code of the Russian Federation apply to all employees of the organization, regardless of their position, and also regardless of the grounds on which dismissal is made (see letters of the Ministry of Finance of Russia dated June 26, 2021 N 03-04-06/24333, dated May 15, 2021 N 03-04 -05/16928, dated 11/15/2021 N 03-04-06/1-321, dated 08/22/2021 N 03-04-06/6-255, dated 05/18/2021 N 03-04-06/6-138) .

We recommend reading: Characteristics of a child from a large family

Dismissal during maternity leave at your own request

Employees on maternity leave rarely express a desire to sever their employment relationship. In this case, the dismissal process is no different from the usual:

The employee writes a statement asking to be dismissed at his own request.
The application is registered as internal correspondence.
The director signs the document and sends it to the personnel service or the person responsible for personnel records management.
The personnel officer issues a work book to the dismissed person with a note on termination of the employment contract. Compensation for unused vacation is paid on the day of dismissal.

Every employee who goes on maternity leave is retained a job (Article 256 of the Labor Code of the Russian Federation).

After the dismissal of such an employee, the employer usually does not look for a new applicant, but employs an employee who temporarily performed the duties of a maternity leave (if he is completely satisfied with the employer).

End of a fixed-term contract for an employee on parental leave

An employee working under a fixed-term contract can also go on maternity leave. However, the employer does not have the right to terminate a fixed-term contract during parental leave.

You cannot say goodbye to an employee on vacation (any), even if a fixed-term contract or an employment contract was concluded with him during the absence of another employee. The contract is extended until the date of release from vacation (paragraph 2 of article 261 of the Labor Code of the Russian Federation).

If an employee goes on maternity leave from the rate of any absent employee (vacation, long business trip, maternity leave), then the employer must transfer her to another position that is vacant at that time and corresponds to her qualifications. When the contract expires and there are no suitable vacancies, the woman may be dismissed.

Do I need a letter of resignation from a woman on maternity leave if we are dismissing her by agreement of the parties?

Voluntary - carried out by decision of the owner. Feature: before an official decision is made to terminate activities, it is possible to transfer an employee to another company. A prerequisite is written consent.
Forced - the decision is made by higher-level companies or founders. It differs in that dismissal implies future employment (the responsibility is taken by the employment service).

dismissal on his initiative (exception - liquidation of the company);
involvement in overtime, rotational and night work;
call from leave (maternity or child care);
sending an employee on a business trip;
replacing vacation with cash.

We recommend reading: Material and living conditions

Dismissal of an employee on parental leave during liquidation of an enterprise

Liquidation of an organization is a long process. The employer must terminate the employment contracts of all employees. The procedure for dismissing employees on maternity leave can be divided into several stages:

Notifying the employee 2 months before the date of dismissal against signature. If it is not possible to meet in person, a registered letter with a receipt stamp is sent to the employee’s address.
At the end of the two-month period, a dismissal order is created and a work book is filled out.
They pay compensation for unused vacation, severance pay (for one month), and average monthly earnings while looking for a new job.

If an employee is entitled to benefits, she will be able to receive them from the social security agency.

Liquidation of an organization

Management must notify the company of liquidation at least 2 months in advance. Moreover, the notification must be signed by the employee. During the liquidation process, the manager is required to sign an order for the dismissal of employees. The corresponding mark is placed in the work book.

Upon liquidation, employees are paid the following accruals: - for all vacations missed during work; - severance pay equal to average monthly income; — while the employee is looking for a new job, the organization must make payments to him every month in the amount of the average monthly salary. The period of these payments should not exceed 2 months. If an employee is registered with the employment center within 2 weeks after the layoff, but is not employed within 2 months, the organization must pay the average monthly salary in the 3rd month.

An employee on maternity leave, dismissed due to the cessation of the organization's activities, is entitled to one of two payments to choose from: - unemployment benefits, if she registers with the employment service - child care benefits when applying to the Office of Social Protection of the Population.

If during the liquidation of the company a woman is on maternity leave, then the payment for the leave must be repaid in full for the entire period.

Responsibility of the employer when dismissing an employee on parental leave

An employee dismissed from parental leave at the initiative of the employer, except for the cases described in clauses 1, 5-8, 10, 11 of Part 1 of Art.
81 of the Labor Code of the Russian Federation, has every reason to appeal to the judicial authorities. If the court satisfies the employee’s demands, the employer is obliged to:

reinstate him in the same position;
pay the employee compensation for days of forced downtime;
pay for material damage.

In addition, the court may hold the employer administratively liable under paragraph 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation and impose fines:

from 2 to 5 thousand rubles for an official;
from 50 to 80 thousand rubles for an organization.

Information about any violations is transmitted to the labor inspectorate, so there is a high probability of unscheduled inspections of the enterprise. At the same time, inspectors will check not only data on maternity leavers.

Do I need a letter of resignation from a woman on maternity leave if we are dismissing her by agreement of the parties?

Type of leave (annual, educational, without pay, etc.) Period of work Number of calendar days of leave Date Basis from to beginning of end 1 2 3 4 5 6 7 Maternity leave 140 09.09.2021 26.01.2021 Order dated 09/07/2021 N 15-r Child care leave 1003 166 01/27/2021 10/25/2021

07/11/2021 Order dated 01/25/2021 N 5-ozh Order dated 07/12/2021 N 25

Limited Liability Company “————-” represented by Deputy Director Mikhail Ivanovich Avdeev, acting on the basis of Power of Attorney No. 1/10 dated 07/01/2021, hereinafter referred to as the “Employer” on the one hand, and UAH ) Tatyana Aleksandrovna Gorbacheva, passport series……. No.……. , issued on 09/11/2021 by the Chertanovo Central Department of Internal Affairs of Moscow, hereinafter referred to as the “Employee”, on the other hand, in connection with the application received from the “Employee” to establish part-time work from 03/01/2021, we concluded this agreement to amend the contract for the performance of labor duties: 1. Amend clause 6.1 as follows. contract for the performance of labor duties No. 378 dated 07/01/2021: “The employee is assigned a five-day working week, with a working time of 4 hours 15 minutes. in a day". 2. Clause 5.1. Contract for the performance of labor duties No. 378 dated 07/01/2021 should be read as follows: “The Employee is paid for the actual time worked based on the established official salary in the amount of 13,000 (thirteen thousand) rubles, according to the staffing table.” 3. The terms of the contract for the performance of labor duties not affected by this agreement remain unchanged. 4. This agreement is drawn up in 2 copies, one for each of the parties, having equal legal force. 5. This agreement is an integral part of the Contract for the performance of labor duties No. 378 dated 07/01/2021.

We recommend reading: Land plot for large families in Khanty-Mansi Autonomous Okrug 2021 official changes