Dismissal from maternity leave upon liquidation of an enterprise. How to fire a maternity leaver due to the liquidation of an enterprise. Procedure for dismissing a maternity worker during liquidation of an enterprise

Now, in the current 2020, in the Russian Federation many women work in different companies, approximately their number can be equated to the number of men. There is nothing surprising here. But at any moment a woman can become pregnant and have to go on maternity leave.

When a company is liquidated, absolutely everyone suffers. Layoffs cannot be avoided either by ordinary employees or by the director of the enterprise.

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But what should an employer do if it was during this period of time that the reduction personnel, and his company fell into liquidation? And what should you keep in mind when you need to fire women on maternity leave?

The Labor Code of the Russian Federation helps women solve the problem associated with their dismissal. The Labor Code contains laws that provide guarantees at the time of dismissal associated with the liquidation of a company.

According to Russian law, it is simply unacceptable to fire a pregnant woman, but only if the organization is not in danger of ceasing its activities. The expectant mother will be subject to a wave of layoffs, like other workers.

You need to be prepared for this and receive all the payments required by law and study all the necessary legal articles. The dismissal of pregnant women at the time of liquidation of the company is multifaceted, in this regard, you need to keep in mind all the nuances.

Both the employer and employees need to know them. Not knowing a small detail regarding the dismissal process can have serious consequences.

Reduction procedure

If a company goes into liquidation, then all its employees have the same rights, including maternity leavers.

The following have the right to liquidate a company:

• the founders themselves;
• body of a legal entity that is authorized by the constituent documents;

Liquidation of a company or its divisions, change of ownership, suspension of work in whole or in part - all this can happen only after the relevant trade unions have been notified (in advance, no less than 3 months) and negotiations will be held with them.

All employees of the company are subject to dismissal, including:

• pregnant employees;
• women with children under 3 years of age;
• single mothers with children under 14 years of age, or disabled children under 18 years of age;
• workers under 18 years of age.

Only after an entry is made in the unified state register of legal entities, according to which the liquidation of the organization is completed and the legal entity no longer exists, the liquidation process is considered completed

Basic steps

The dismissal procedure follows a certain pattern.

Each point has certain points that must be taken into account by both parties:

• a special notice is drawn up regarding the termination of employment relations - a certain form of such notice, therefore it is drawn up in any form;
• the employee must familiarize himself with the completed dismissal order against his signature;
• the required settlement amount is calculated;
• on the day when the employee quits, he is required to transfer all arrears of wages;
• the employee must receive all documents relating to the termination of the employment relationship.

But the elimination process also has several nuances associated with pregnant women.

If we are talking about ordinary dismissal, then this is possible only after the employee returns from maternity leave. But if the enterprise is liquidated, then you don’t have to wait for the end of the vacation.

The dismissal of a maternity leaver in connection with the liquidation of the enterprise occurs in accordance with paragraph 1 of part 1 of Art. 81 Labor Code of the Russian Federation. A decree is also written, which the pregnant employee must read.

Also, a pregnant woman can terminate the employment contract herself, in which case her written consent is required before the period prescribed by law expires. Then the woman is entitled to additional compensation.

It will be approximately equal to wages in the period from the moment of actual dismissal until the final liquidation of the company.

Alert

In accordance with paragraph 2 of Article 180 The Labor Code of the Russian Federation must notify the maternity leaver 2 months before dismissal, and always in writing.

The notice must be printed in 2 copies, because the first will remain with the employer, and the second will be taken by the pregnant employee. A notification that occurs orally will not have legal force - it is necessary to personally acquaint the woman with the notification and sign it.

Calculation procedure

If the company is suddenly liquidated, then all employees, as well as pregnant women, are entitled to certain payments:

• which employee worked for the company;
• in case the employee had unused vacations;
• all accruals recorded in collective and employment agreements;
• temporary disability benefits;
• child care allowance – when required.

What to do with benefits when it comes to pregnant employees? Liquidation of an enterprise does not deprive a maternity leave of the sums of money due to her; this must be kept in mind.

If we are talking about maternity workers, according to the norms of Russian law, when an enterprise is liquidated, it is obliged to pay:

• severance pay equal to monthly earnings;
• an amount that is calculated as monthly wages for the entire working period and is paid for two months (due to the payment of severance pay);
• According to the order of the employment service, a pregnant woman is supposed to pay money for the third month, when, after 14 days After dismissal, the maternity leaver did not find and did not go to work in another organization.

Paperwork

Paperwork for a pregnant employee is completed in the same way as for other workers. The boss writes a decree within the company. It states the date, reason for dismissal and a reference to the payment of the amount of money that is provided for by law to the maternity leaver.

The dismissal order must be read and signed, otherwise it will be invalid.

After issuing and signing the order, the personnel service will make an entry about the dismissal in the work book and in the employee’s personal file. The work book indicates the order number, the reason for dismissal with a mandatory reference to an article from the Labor Code of the Russian Federation.

According to the woman, before dismissing her, the company is obliged to give her:

• salary certificate ( - );
• a certificate of the amount of wages, since it is necessary to make a calculation in connection with temporary disability due to pregnancy and childbirth, plus child care for up to one and a half years;
• copies of orders stating that the employee worked in the company, on transfer and dismissal;
• payslips for any period, including the day of dismissal.

Termination of the contract

Always, if the termination of an employment relationship is initiated by the employer, then all court decisions will be in favor of the employees. There is only one exception - the liquidation of the company.

An employee who is on maternity leave at the moment when the company is liquidated can be dismissed on a general basis.

All documents will be reissued, and the employee will be paid all amounts due to her, in accordance with current legislation. The company cannot give any guarantees in connection with liquidation.

Other cases of dismissal of maternity leave due to liquidation of an enterprise

Despite the fact that employees and women on maternity leave are protected by labor legislation more than others, if the organization is liquidated, then even they are subject to dismissal.

In addition to the pay that all employees receive in the event of dismissal, women on maternity leave are entitled to:

• child benefit, which is paid once;
• child benefits, which are paid every month.

If the maternity leaver brings all the necessary documents to the employer, then the social security authorities will also make payments related to pregnancy and childbirth.

If the monthly benefit has not been calculated by the day of dismissal, then it should be transferred in the amount 40% from average earnings for the last 12 calendar months until the moment of dismissal.

If an employee is fired while she is on maternity leave, the benefit amount will not be recalculated again, but will be paid in accordance with the amount calculated by the employer.

It is possible that a controversial situation may arise: a woman is on maternity leave to care for a child under three years old. There are doubts whether she is entitled to severance pay. You should not believe employees from the HR department who claim that benefits are not provided due to the fact that during 12 months there were no accruals.

In this situation, the period of maternity leave is not included in the calculation. Those. such compensation is calculated as the average salary for the period 12 months before the start of the employee's maternity leave.

According to sick leave

When leave related to pregnancy and childbirth, which can be considered the beginning of sick leave, begins before the day of dismissal, the boss undertakes to pay the pregnant employee money equal to the average salary for all this time.

The employer will not have to pay money to the maternity leaver if the sick leave according to the BIR began in the month when the employee was already fired.

According to the law, when BIR leave begins within a month after dismissal, a woman can receive benefits, but only when the employment contract is terminated due to:

• transfer of husband;
• illness - due to the lack of opportunity to continue working and living in these regions;
• the importance of caring for a family member who is seriously ill or is disabled in the first group.

The list does not contain an item regarding dismissal due to liquidation of the company.

On vacation

Being on leave related to pregnancy and childbirth, as can be seen from the above, a pregnant employee will be subject to dismissal if it concerns the liquidation of the enterprise.

The procedure itself is quite standard and is carried out in certain stages:

• it is necessary to notify the employment service about the termination of the company’s activities;
• employees must be notified of dismissal, and always in writing; the text must contain the date when an application will be made to the HR department in order to obtain a work book and all other documentation;
• in cases where it is not possible to come in person, all documentation will be sent by mail to your home address;
• after this expires 2 months, a dismissal order is issued;
• all due amounts are calculated and paid;
• employees are given their work books.

Women's rights

At the moment, maternity workers have a large number of different rights and are the most protected group when it comes to reductions and dismissals. The actual dismissal of pregnant women is prohibited by law, but the liquidation of an organization is an exception to the rule.

Employees on maternity leave have several additional options, such as:

• if the organization is liquidated, then the woman on maternity leave can be fired later than the rest;
• liquidation can also occur through a merger or reorganization of the company, in which case the employer provides the pregnant employee with the opportunity to choose an alternative vacancy;
• similar to the situations described above, an employee on maternity leave must be notified about dismissal no less than 2 months.

Is it legal to fire a woman with a child under 1.5 years old?
Alya

Alas, but it is legal (colleagues cited the rules of the law earlier)

How does the dismissal process work?
Alya

You are required to notify YOU of liquidation in writing by sending a notice of at least 2 months in advance

Have you received this notification?

Labor Code of the Russian Federation, Article 180. Guarantees and compensation to employees upon liquidation of an organization, reduction in the number or staff of the organization’s employees
About the upcoming dismissal due to the liquidation of the organization, a reduction in the number or staff of an organization's employees, employees are warned by the employer personally and against signature at least two months before dismissal.

What compensations and payments are provided?
Alya

You are obligated to pay an allowance in the amount of a month’s earnings, and so on, an allowance for the next 2 months (provided that you do not get a job), which, accordingly, will not happen in your case.

Article 178 of the Labor Code of the Russian Federation. Severance benefits
Upon termination of an employment contract due to liquidation of the organization(clause 1 of part one of Article 81 of this Code) or a reduction in the number or staff of the organization’s employees (clause 2 of part one of Article 81 of this Code), the dismissed employee is paid severance pay in the amount of average monthly earnings, and the average monthly salary is retained for the period of employment, but not more than two months from the date of dismissal (including severance pay).
In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it.

You are also required to pay compensation for unused vacation if you did not go on annual leave before going on parental leave.

You will also receive child care benefits from social protection authorities until your child reaches 1.5 years of age.

Order of the Ministry of Health and Social Development of Russia dated December 23, 2009 N 1012n (as amended on July 22, 2014) “On approval of the Procedure and conditions for the appointment and payment of state benefits to citizens with children”

57. The basis for the appointment and payment of monthly child care benefits is:

V) for persons dismissed due to liquidation of organizations, termination by individuals of activities as individual entrepreneurs, termination of powers by notaries engaged in private practice, and termination of the status of a lawyer, as well as in connection with the termination of activities by other individuals, whose professional activities in accordance with federal laws are subject to state registration and (or) licensing, specified in subparagraphs “c” and “d” of paragraph 39 of this Procedure, persons specified in subparagraphs “d” and “f” of paragraph 39 of this Procedure - a decision of the social protection authority at the place of residence.
58. The decision to assign a monthly child care benefit is made within 10 days from the date of receipt (registration) of the application for the grant of benefits with all the necessary documents.
59. Monthly child care allowance is paid:
a) to the persons specified in subparagraph “a” of paragraph 39 of this Procedure - at the expense of the Social Insurance Fund of the Russian Federation;
c) persons from among those dismissed in connection with the liquidation of organizations, termination of activities by individuals as individual entrepreneurs, termination of powers by notaries engaged in private practice, and termination of the status of a lawyer, as well as in connection with the termination of activities by other individuals whose professional activities in accordance with with federal laws is subject to state registration and (or) licensing specified in subparagraphs “c” and “d” of paragraph 39 of this Procedure, as well as to persons specified in subparagraphs “d” and “f” of paragraph 39 of this Procedure - at the expense of federal funds budget provided in the form of subventions to the budgets of the constituent entities of the Russian Federation.

Staff reduction is an inevitable procedure during the liquidation of an organization. All employees, including pregnant women, are subject to dismissal. In accordance with the Labor Code of the Russian Federation, the latter can claim a number of privileges. What are the features of dismissing maternity workers during the liquidation of an enterprise?

Women's rights

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FOR FREE!

The current legislation contains a system of norms that ensure the protection of the rights and interests of women. All participants in labor relations, including the employer, must be guided by established standards.

Ignoring the norms is a violation of the Labor Code, which entails liability on the part of the violator.

Thus, among the norms protecting the interests of pregnant women, it is necessary to highlight the following:

• Article 41 of the Labor Code of the Russian Federation regulates the rights of women and children in relation to labor relations.
• Article 253 of the Labor Code of the Russian Federation includes norms that limit the work activity of women during pregnancy and caring for a child up to 1.5 years old.
• Articles 255 -258 of the Labor Code of the Russian Federation determine the procedure for women on maternity leave.
• Articles 259 - 261 of the Labor Code of the Russian Federation contain guarantees for this category of employees regarding exemption from working overtime, on weekends and holidays.

Working conditions

The Labor Code of the Russian Federation clearly defines the working conditions of women and the list of job responsibilities under which their work should be limited. Moreover, Article 41 of the Labor Code of the Russian Federation contains a number of benefits that should be applied to a pregnant employee.

During pregnancy, a girl has the right to demand a transfer to work that excludes the harmful effects of the work environment. The recommended list of work should be indicated in the medical report.

Generally accepted standards also contain provisions on what actions of an employer are prohibited in relation to a woman carrying a child.

Among them are the following:

• exploitation of labor of a pregnant woman during overtime work;
• assignment to night or rotational work, business trips;
• recall from maternity leave;
• replacing allotted vacation with financial compensation;
• termination of an employment contract at the initiative of the employer, except in cases of liquidation of the organization.

The procedure for dismissing a maternity leaver during the liquidation of an enterprise

When terminating an employment contract at the initiative of the employer, the Labor Code of the Russian Federation primarily protects the rights of pregnant employees. Whose side is the law on when liquidating an enterprise?

An employer has the right to dismiss a woman on maternity leave on a general basis, but at the same time the procedure is accompanied by subtleties that will allow the woman to protect her interests.

Can they fire me?

Liquidation of an organization involves the complete cessation of the activities of a business entity. The dismissal of an employee on maternity leave during the liquidation of an organization occurs on the general basis provided for by the Labor Code of the Russian Federation.

Current legislation strongly protects the rights of pregnant women. For this reason, women on maternity leave have several privileges when liquidating an enterprise, unlike other employees.

Among them are the following:

• When a company is liquidated, a pregnant woman may be fired later than other employees.
• In cases where liquidation is carried out through the reorganization or merger of a company, the employer must offer the maternity leaver an alternative job.
• A pregnant employee has the right to claim additional payments: a one-time or monthly child benefit.

Employee notification

When liquidating an enterprise, the employer is obliged to follow the procedure established by the Labor Code of the Russian Federation.

In accordance with generally accepted standards, the head of the organization is obliged to notify employees of dismissal at least two months before liquidation. must be provided to each employee against signature.

All employees, even those on vacation, sick leave or maternity leave, must receive notice of the upcoming dismissal.

The exceptions are seasonal workers and persons who have entered into employment agreements for up to two months. In the first case, the notification must be received no later than seven days before dismissal, and in the second no later than three days.

Please note. The manager has the right to terminate the employment relationship with a pregnant woman early. The basis for the procedure is the written consent of the employee.

If the employee refuses to sign the notice, the manager is advised to contact the post office and send the form by registered mail to the employee’s home address. Such measures will help avoid litigation.

Payments and compensations

The Labor Code of the Russian Federation clearly regulates payments allocated for women on maternity leave during the liquidation of a company.

Among them, the following should be highlighted:

• severance pay in the amount of monthly salary;
• financial compensation for unused vacation;
• wages for a two-month period before the collapse of the organization;
• child care allowance;
• additional payment.

In accordance with the order of the employment service, in addition to paying severance pay for two months, a woman in a position has the right to receive money for the third month in cases where the maternity leaver has not found a new job within two weeks from the date of dismissal.

Please note. To receive benefits for the third month, the employee is recommended to contact the Employment Center two weeks before the expected date of layoff.

Preparation of documentation

The Labor Code of the Russian Federation clearly regulates the procedure for terminating an employment contract during the liquidation of an enterprise. The procedure for registering the dismissal of a pregnant woman is similar to terminating employment relations with other categories of employees.

The employer must issue an internal dismissal order, handing the document form to each employee for signature.

The document must contain the following fundamentally important information:

• date of upcoming dismissal;
• the reason for the breakdown of the employment relationship;
• link to payment of financial compensation.

Please note. After issuing the order, the organization’s personnel service must make appropriate entries in the work book and in the personal file of each employee.

Before dismissal, a pregnant woman, on the basis of an application, has the right to request the following package of documents from the manager:

• help on form;
• salary certificate;

Please note. To apply for temporary disability benefits in connection with childbirth and child care, a citizen must obtain an additional certificate with a salary calculation.

• photocopies of internal orders on the appointment and dismissal of an employee;
• payslip for the period of work, including the day of termination of the employment agreement.

Recording in labor

As with other types of dismissal, when liquidating an organization, the employer is obliged to make appropriate entries in the employees’ work book. The document must be issued to the employee after the order on dismissal and payment of wages comes into force.

The employer's HR department must make entries in the work book of the maternity leaver, indicating the order number and the reason for dismissal, supporting it with links to the relevant norms of the Labor Code of the Russian Federation.

A work book drawn up in accordance with current standards is issued to the employee, who, in turn, must sign the organization’s accounting journal.

Video: What you need to know

Guarantees upon termination of an employment contract

When a legal entity is liquidated, employees are second priority creditors. As practice has shown, in the event of bankruptcy of an enterprise, the company’s financial resources may not be enough to pay compensation to employees, which, in accordance with the Labor Code of the Russian Federation, is not an offense.

As for pregnant women, the employer must provide this category of employees with the required payments, which is a guarantee upon termination of the employment contract:

• benefits for the entire period of maternity leave;
• child care payments;
• severance pay;
• compensation for unused vacation;
• additional compensation for termination of the employment agreement.

Judicial practice

When an enterprise is liquidated, both employees and the employer face many controversial issues. As practice has shown, former employees of an organization often resort to litigation to protect their rights and interests.

Legislation provides guarantees to certain categories of citizens in the implementation of labor relations. Among other things, special conditions for dismissal at the initiative of management are provided for women while they are on maternity leave (maternity leave).

Possibility of dismissal

Maternity leavers include women who have exercised their legal right to maternity and child care leave. Such leave is provided at the request of the employee, and management does not have the right to refuse to provide it. The legislation shares the legal consequences in labor relations for the following groups of women on maternity leave:

• pregnant women;
• women caring for children under 1.5 or 3 years of age.

For pregnant women, dismissal at the initiative of superiors is not allowed, except in cases of termination or termination of activity. For women who have given birth to a child and are engaged in caring for him before reaching the age of 3 years, the list of possible grounds for forced dismissal is much wider and is not limited to liquidation.

To comply with the requirements of the law when dismissing a maternity leaver during the liquidation of an organization, it is necessary to comply with the dismissal procedure provided for by the Labor Code of the Russian Federation.

The procedure for dismissing a maternity leaver during the liquidation of an enterprise is discussed below.

The video below will tell you whether a pregnant woman can be fired:

The procedure for dismissing a maternity leaver in connection with the liquidation of an enterprise

Stages

The regulated procedure for terminating an employment contract with a maternity leaver provides for the following mandatory steps:

1. the emergence of legal grounds for liquidation of a legal entity (bankruptcy, decision of the founders, etc.);
2. making a decision to dismiss all staff due to liquidation, including maternity leave;
3. employee notification procedures;
4. payment of all necessary benefits to the dismissed employee;
5. termination of an employment contract and preparation of personnel records;
6. issuance of documents to maternity leave.

The dismissal of a maternity leaver is considered legal if the management was able to comply with all legal requirements not only with regard to the execution of documents, but also with regard to the procedural deadlines for notification.

Read below about what is required to dismiss a maternity worker during the liquidation of an organization.

Prerequisites and information

To comply with the legality of the procedure for dismissing a maternity leaver, the necessary conditions are:

• the fact that a woman is pregnant or is on maternity leave (confirmed by a certificate from a medical institution and personnel records);
• legal fact of liquidation of the enterprise (bankruptcy application or decision of the owners of the organization);
• compliance with the procedure and deadlines for notifying the employee.

If one of these elements is missing or is not met, the legality of the dismissal of the maternity leave may be challenged in court. Such reasons include the fact of imaginary liquidation, which may subsequently be declared illegal with the restoration of the labor rights of the dismissed employee.

Procedure

The main requirement for compliance with the procedure for dismissing a maternity worker is her proper notification in the event of liquidation of the enterprise. To do this, it is necessary to provide the following features:

• notification must be made no later than two months before the termination of the employment relationship;
• the notice must be served in a manner that allows reliable proof of its receipt.

The simplest scenario is to provide a written notice, which the maternity leaver will sign with her own hand. If personal service is not possible, written notice will be sent to the maternity leaver, and evidence of compliance with the procedure will be a document confirming receipt by mail.

In case of refusal of a personal signature or refusal to receive a notice, management has the right to draw up an appropriate commission act with the participation of representatives of the employer. This act will act as evidence in the event of a legal dispute regarding wrongful dismissal.

The video below will tell you about maternity payments in case of bankruptcy of an enterprise:

Payments

When terminating an employment relationship with a maternity leaver, the legislation provides additional guarantees in the form of payment:

• dismissal benefits in the amount of one month's earnings;
• payment of average earnings, taking into account severance pay for the period of employment, but not more than two months (at the request of the employment service, this payment can be extended for another month);
• payment of the entire amount of wage arrears.

The maternity leaver must receive all types of payments before the actual dismissal from work, otherwise the procedure for terminating the contract will be considered illegal.

Judicial practice on the dismissal of women on maternity leave during the liquidation of an enterprise is discussed below.

Judicial practice

The judicial practice of courts of general jurisdiction follows the path of maximum respect for the rights and legitimate interests of women on maternity leave who are dismissed from work. Courts carefully examine the grounds and procedure for terminating an employment agreement, including compliance with deadlines.

1. By the decision of the Oktyabrsky District Court of the Arkhangelsk Region in 2013, the rights of women dismissed during liquidation in violation of the notice period were restored. More than 2 months passed after the notice was served, after which the liquidation was terminated and the LLC carried out normal activities for another month. Then the founders nevertheless accepted the termination of activities, but the previously issued notice was used to dismiss the women on maternity leave. The court found this procedure to be a violation of the law and restored the rights of the employees.
2. In 2013, the Vologda Regional Court considered a complaint against a decision of one of the district courts regarding the violation of the rights of a maternity leaver when making payments during the dismissal process. During the consideration of the complaint, the court found that not only did the woman not receive payments, but after her dismissal, the enterprise actually returned to normal economic activity. The court upheld the complaint, as a result of which the woman returned to work, receiving compensation for the forced absence and infliction of moral damage.

The dismissal of a pregnant woman during reorganization is discussed in this video: