Loopholes in the legislation on the dismissal of maternity
In accordance with the current Labor Code of the Russian Federation, the dismissal of a pregnant employee on maternity leave or the mother before her child reaches the age of three years, on the initiative of the employer, is unacceptable. However, there are a number of exceptions to this document whereby an employer has the right to dismiss an employee on maternity leave. Olga Primova, head of the practice of disputes with state bodies of the Status Quo Legal Center, lists the loopholes in the legislation that can be used when dismissing employees on maternity leave
It is important to note that there is no official concept of “maternity leave”. In practice, it means both maternity leave and maternity leave. The list of grounds for termination of employment with a woman on maternity leave is exhaustive today, we will consider each of them separately.
1. There is no prohibition on termination of an employment contract upon dismissal of an employee of his own free will during vacation, including childcare.
An employee has the right to submit a letter of resignation at any time (Part 1 of Article 80 of the Labor Code of the Russian Federation, Letter of the Rostrud dated September 5, 2006 No. 1551-6). In this case, the employee must submit an application in writing at least two weeks before the date when the completion of work is planned, unless otherwise specified in the employment contract or in addition to it. That is, if the parties stipulate in the contract a condition that there is no need to wait two weeks from the moment the employer is notified, the dismissal may occur on the same day when the employer receives the application.
On the day of dismissal of the employee, the preservation of his workplace ceases. On the same day he needs to issue a work book and make a final calculation, for example, to pay compensation for unused vacation.
At the same time, such a situation is possible when an employee took annual leave in advance and did not work all days off before dismissal. For example, a woman could take such leave before maternity leave immediately after maternity leave (article 260 of the Labor Code of the Russian Federation). In this case, upon dismissal, the employer has the right to withhold excessively paid vacation pay (for unworked vacation days), but not more than 20 percent of the amount of salary paid upon dismissal.
If the amount is more than 20 percent, then you can ask the employee to return unworked vacation pay voluntarily. Unfortunately, it will not be possible to recover this amount in court (part 2 of article 137, part 1 of article 138 of the Labor Code of the Russian Federation, Decree of the Supreme Court of the Russian Federation of October 25, 2013 No. 69-KG13-6).
In general, dismissing an employee during the period of parental leave of his own free will, standard documents on dismissal are issued. In particular, it is necessary to issue a dismissal order and make an entry in the work book.
2. In addition to dismissal at will, there is still the possibility of terminating the employment contract with a woman on maternity leave under a fixed-term employment contract concluded for a specific period of time or for the period of temporary absence of the main employee, since the expiration of the employment contract is not connected with the initiative of the employer and comes regardless of his will.
In this regard, when dismissing an employee on this basis, the employer is not obliged to take into account additional guarantees established by labor legislation for individual cases of dismissal of employees on the initiative of the employer (for example, in accordance with article 261 of the Labor Code of the Russian Federation, guarantees for pregnant women and women with children). The Labor Code of the Russian Federation does not provide for the employer’s obligation to extend a fixed-term employment contract with a person with children under the age of three years until the child reaches the specified age.
This position is confirmed by the prevailing judicial practice (Appeal ruling of the Krasnoyarsk Regional Court of January 24, 2018 in case No. 33-1067 / 2018; Appeal ruling of the Moscow City Court of December 6, 2016 in case No. 33-43583 / 2016; Appeal ruling of the Moscow Regional Court dated May 13, 2015 in case No. 33-10869 / 2015 and others).
The issue of termination of an employment contract with a pregnant woman after the expiration of the employment contract is somewhat different, in this case the judicial practice is not so uniform.
There is judicial practice according to which dismissal in such a situation is lawful (for example: the appeal ruling of the Nizhny Novgorod regional court of June 20, 2017 in case No. 33-5859 / 2017; the appeal ruling of the Saratov regional court of July 9, 2015 in case No. 33-4048 other).