Can I be fired from a job if I have a minor child?
This question worries many working mothers, because now it is not so easy to find a new place.
Employees with young children have certain labor guarantees that provide them with strong legal protection. However, there are a number of cases when even they are not able to save a woman from being fired.
In accordance with Art. 261TC RF the reason for legal dismissal an employee raising a child under 18 may become:
- Distribution of classified or classified information;
- Theft, embezzlement of property belonging to the enterprise, or the commission of actions that led to financial losses.
It should also be noted that the employer cannot dismiss the employee during the period of vacation or temporary disability. The only exception is the liquidation or dissolution of the organization.
All other actions are illegal and can be appealed in court no later than 1 month from the date of dismissal (Article 392 of the Labor Code of the Russian Federation).
When initiating the dismissal of an employee, the head of the enterprise is obliged to submit documents that confirm the validity of the termination of cooperation.
Can a single mother with a minor child be made redundant? Russian legislation (Article 261 of the Labor Code of the Russian Federation) prohibits the "reduction" of subordinates if:
- They independently raise a child under the age of 14;
- There are several children under 18 in the family.
If a woman with a minor child falls under a reduction in staff, and for another employee who does not have such benefits, workplace has been retained, she may seek judicial or supervisory assistance.
Since we are talking about a violation of labor laws, the woman will not only be reinstated in her workplace, but will also receive a salary for the days in which she was absent.
If the reduction has not yet occurred, but the employee has already been warned about this, she can defend her rights in the labor inspectorate.
If the dismissal does take place, contact labor inspection will testify in favor of the victim.
In addition, the labor inspector will be required to provide her with full legal assistance.
When a staff reduction occurs on the basis of the termination of the enterprise, the employer is obliged to provide the dismissed employee raising a minor child with an alternative vacancy that will correspond to his qualifications and size. wages.
In the absence of such options, the employer may offer a position with a lower pay level. If there is no such job or the person refuses the offered vacancy, the enterprise breaks labor contract.
At the same time, it pays the laid-off employee the following compensation:
On a note! Sometimes, in order to save more jobs, the company establishes part-time work. But do not flatter yourself - this is a forced measure that is valid only for six months.
If a woman intends to terminate the employment contract for own will, she must notify the employer about this within 14 days (Article 80 of the Labor Code of the Russian Federation).
Having met the mother halfway, the management can carry out a dismissal without working out for 2 weeks, having minor children.
On a note! Upon dismissal of her own free will, a woman can ask that such an entry be made in her work book - “dismissed in connection with caring for a child under 14 years old.”
This is a well-founded requirement, which gives the right to benefits when registering with the Employment Center.
The nuances of dismissal of women with minor children
Restrictions on the dismissal of women largely depend on the age of the child - the younger he is, the greater the degree of protection she has.
There are a number of guarantees for workers caring for children under 3 years of age.
On the basis of Article 256 of the Labor Code of the Russian Federation, their position is retained even with staff reductions and other personnel changes (with the exception of serious misconduct or guilty actions).
In addition, such workers have the right to interrupt their vacation ahead of schedule, apply for part-time work and work at home with pay (Article 256 of the Labor Code of the Russian Federation).
Children under 14
Based on Art. 261 of the Labor Code of the Russian Federation, the dismissal of a mother raising a child from 3 to 14 years old is allowed only in special cases (for example, for immoral behavior).
In addition, such workers may demand a reduction in duties and the installation of a part-time shift / week.
Mother of a disabled child
According to Art. 261 of the Labor Code of the Russian Federation, an employer is not entitled to dismiss the mother of a disabled child until he is 18 years old.
Termination of an employment contract is possible only if the enterprise is liquidated or the woman commits serious misconduct.
Can a woman with two minor children be fired??
According to the law (Article 179 of the Labor Code of the Russian Federation), an employee raising two or more children has a significant advantage over her colleagues:
- She does not fall under staff reduction even when the children are already 18 years old, but they have not yet had time to get a job;
- She cannot be fired if she is the only breadwinner in the family (her father is not employed).
single mothers
Is it possible to fire a single mother with a minor child from her job? In accordance with Article 261 of the Labor Code of the Russian Federation, she cannot be dismissed until the latter is 14 years old.
All of the above guarantees are valid only until the child reaches the age of 18.
As you can see, our state has created all the conditions so that employees with young children do not worry about the unjustified loss of work and feel protected.
A minor employee involved in work on the basis of an employment contract may be dismissed at his own request, by agreement of the parties, or at the initiative of the employer. In the article, we will analyze what compensations for the dismissal of a minor are provided for by the current labor legislation, and also, using examples, we will calculate the amount of payments due to a minor employee upon dismissal.
Attracting minors to work: the position of the Labor Code of the Russian Federation
current labor law allows employers to employ persons under the age of 18 in the following order:
- citizens over 16 years old belong to the category of able-bodied persons, whose employment is carried out by concluding an employment contract. The parties to the agreement are the employer and the minor.
- Employment of persons of age from 14 to 16 years old carried out with the written consent of the legal representative of the minor (parent, adoptive parent, guardian, representative government agency guardianship, etc.), as well as on the condition that the work process does not cause harm to health and does not interfere with learning.
- The Labor Code of the Russian Federation provides for the possibility of employment of persons under 14 years old , by engaging in work in theaters, at concerts, in cinematography, etc., with the written consent of parents (guardians) and provided that participation in theatrical, concert, and other productions is carried out without harm to health, moral development, without damage learning process.
Labor guarantees for minors
Chapter 42 of the Labor Code of the Russian Federation regulates the procedure for providing labor guarantees minors in terms of labor rationing, provision of days of rest, termination labor relations, etc.
The list of labor guarantees for minor employees under the Labor Code of the Russian Federation is in the table below:
No. p / p | Type of labor guarantees for minors | Regulations of the Labor Code of the Russian Federation | Description |
| 1 | Prohibition on engaging in harmful/dangerous work | Art. 265 of the Labor Code of the Russian Federation | A minor employee cannot be recruited to work in harmful/dangerous conditions. Besides, in labor obligations a minor cannot include carrying weights in excess of the established norms. Also, a minor cannot be employed in an organization whose type of activity may harm the moral development of a minor, in particular:
|
| 2 | Overtime work prohibition | Art. 268 of the Labor Code of the Russian Federation | The employer does not have the right to involve an imperfect employee in:
In addition, a minor employee cannot be sent on a business trip. |
| Right to annual leave | Art. 267 of the Labor Code of the Russian Federation | When employing an employee under the age of 18, the employer is obliged to provide such an employee with annual paid leave for a period of 31 calendar days at any convenient time, based on the application ⇒. |
|
| Special procedure for dismissal at the initiative of the employer | Art. 269 of the Labor Code of the Russian Federation | Termination of an employment contract with a minor at the initiative of the employer (reduction of staff, violation of labor discipline by the employee) is carried out with the written consent of the GIT body and the labor commission for minors. |
Termination of an employment contract with a minor
The main provisions of the Labor Code of the Russian Federation apply to labor relations between an employer and a minor employee.
An employment contract with a minor employee may be terminated on the following grounds:
- at the employee's own request, on the basis of an application submitted at least 2 weeks before the planned dismissal;
- at the initiative of the employer (in connection with the liquidation of the organization, to reduce staff, in connection with the violation by the employee of labor discipline, rules work schedule, conditions, employment contract, other conditions in accordance with Art. 81 of the Labor Code of the Russian Federation);
- by agreement of the parties in accordance with Art. 78 of the Labor Code of the Russian Federation.
An order to dismiss a minor is drawn up in a general manner - using a unified form or in free form.
If the termination of the employment contract with a minor is carried out at the initiative of the employer (with the exception of the liquidation of the enterprise), then the dismissal order must contain the following column:
“Motivated opinion of the elected trade union body in writing(from "__" _____ 20__ N __) considered.
After the order is drawn up and signed by the head, the document is transferred to the minor employee for review. In cases of termination of an employment contract with a person under 14 years of age, the dismissal order is transferred to the legal representative of the minor employee.
Compensation for the dismissal of a minor
When terminating an employment contract with a minor employee, the employer is obliged to make payments and compensations provided for by the current norms of the Labor Code of the Russian Federation, namely to pay:
- salary for hours worked;
- compensation for unused vacation;
- severance pay(upon dismissal due to redundancy or in connection with liquidation).
The procedure and examples of calculating compensation for the dismissal of a minor will be discussed below.
Salary
When hiring a minor, the employer establishes and agrees with the employee a monthly remuneration, the amount of which is approved by signing the parties to the employment contract. At the same time, on the basis of Art. 92 of the Labor Code of the Russian Federation, the employer has the right to involve minor employees in work only on the terms of a shortened working day, the duration of which is:
- up to 24 hours a week - for employees under the age of 16;
- up to 35 hours per week - for employees aged 16 to 18 years.
Based on Art. 270 of the Labor Code of the Russian Federation, the establishment of a working time regime taking into account the requirements of the Labor Code of the Russian Federation and the determination of the amount of remuneration for a minor is carried out taking into account general production standards. This means that the employer calculates the salary of a minor worker based on general norms, but in proportion to the established reduced schedule.
When an employee is dismissed, the employer pays wages based on the number of days (shifts) worked in the reporting month. When calculating the payment, the employer takes into account the amount of the advance payment issued.
The salary of a minor paid upon dismissal is subject to personal income tax and insurance premiums in the general manner.
Consider an example . Kondratiev S.D. (17 years old) was hired by Optima LLC in the delivery department as a courier.
According to staffing, the salary of the courier in the delivery department is calculated in shifts - 775 rubles / shift with the established schedule of 40 hours working week(8-hour working day, 5 working days, 2 days off).
On the basis of the employment contract, Kondratiev was established:
- reduced work schedule - 35-hour working week (7-hour working day, 5 working days, 2 days off);
- salary in proportion to the schedule - 678 rubles / shift. (775 rubles / 8 hours * 7 hours).
According to the Procedure for remuneration of labor of Optima LLC, the salary in the organization is paid twice a month: advance payment - on the 15th day of the current month, salary - on the 5th day of the next month.
On November 5, 2020, Kondratiev received a salary for October in the amount of 15.594 rubles. (23 shifts * 678 rubles). The amount of payment, net of personal income tax, amounted to 13,566.78 rubles. (personal income tax 13% * 15.594 rubles = 2.027.22 rubles).
On November 9, 2020, Kondratiev was fired of his own free will. In November, Kondratiev worked 7 shifts.
On the day of dismissal, the accountant of Optima LLC:
- accrued Kondratiev's salary for November in the amount of 4.746 rubles. (7 shifts * 678 rubles);
- withheld personal income tax 616.98 rubles. (4.746 rubles * 13%);
- paid a salary of 4.29.02 rubles. (4.746 rubles - 616.98 rubles).
The amount of payment accrued insurance premiums in general order.
Compensation for unused vacation
According to Art. 267 of the Labor Code of the Russian Federation, a minor is granted the right to an annual paid leave of 31 calendar days.
If at the time of dismissal a minor employee has days of unused vacation, the employer pays the employee compensation in the amount of average earnings for each day of vacation.
The average earnings for calculating vacation compensation is determined for the billing period equal to 12 months preceding the month of dismissal.
When calculating average earnings, the total income paid to the minor in accordance with the employment contract (salary, bonuses, allowances, additional payments) is taken into account.
The formula for calculating average earnings for compensation for leave to a minor is as follows:
SrZar vacation compensation = Income / 12 months. / 29.3,
where Income- the amount of income of a minor during the reporting period;
29,3
- average number calendar days in a month.
The amount of compensation is determined by the formula:
Vacation compensation = SrZar * KolDn,
where SrZar – average earnings for the billing period;
KolDn- the number of calendar days of unused vacation.
Compensation for unused vacation is paid on the day the minor is dismissed, taking into account the withholding of the amount of personal income tax.
Consider an example. 11/01/2017 Grigoriev D.L. (16 years old) was hired by Shans LLC as an assistant sales manager with a salary of 16,000 rubles.
On November 1, 2020, Grigoriev was dismissed of his own free will.
For a year of work at Shans LLC, Grigoriev was accrued 31 days of paid leave, of which the employee used 25 days.
The accountant of Shans LLC calculated compensation for Grigoriev's unused vacation (6 days) in the following order:
- The settlement period for determining the average earnings is 11/01/17 - 10/31/18.
- Income for the billing period - 192.000 rubles. (16.000 rubles * 12 months).
- Average earnings - 546.08 rubles. (192,000 rubles / 12 months / 29.3).
- The amount of the accrued compensation is 3,276.45 rubles. (546.08 rubles * 6 days).
- Withheld personal income tax - 425.94 rubles. (3,276.45 rubles * 13%).
- Compensation paid - 2,850.51 rubles. (3.276.45 rubles - 425.94 rubles).
Compensation was paid to Grigoriev on the day of dismissal - 11/01/2020.
severance pay
Upon dismissal due to the liquidation of an enterprise or a reduction in staff, a minor is paid a severance pay in the amount of the average monthly earnings:
Retirement Benefit = Income / 12 months,
where Income- the amount of the employee's income for the billing period equal to 12 months preceding the month of dismissal.
Unlike compensation for unused vacation, the amount of severance pay paid to a minor upon dismissal is not subject to personal income tax and insurance premiums.
Consider an example . On September 1, 2020, an employee of Culinar LLC Stepanov (17 years old) received a notice of dismissal due to the liquidation of the enterprise.
The actual termination of the employment relationship was formalized after 2 months - 11/01/2020.
On the day of dismissal, Stepanov was paid a salary for 1 working day of the reporting period (11/01/18), compensation for unused vacation, as well as severance pay.
The severance pay was calculated for the billing period from 11/01/17 to 10/31/18, the income during which amounted to 200,300 rubles.
The allowance paid to Stepanov amounted to 16,691.67 rubles. (200.300 rubles / 12 months).
The severance pay was paid to Stepanov without withholding personal income tax.
As a rule, the dismissal of employees who have not reached the age of majority follows the same rules as the dismissal of adult employees. However, some nuances exist. They need to be taken into account.
General procedure for dismissal
The termination of an employment contract is formalized by an order (instruction) of the employer, with which the employee must be familiarized against signature (Article 84.1 of the Labor Code of the Russian Federation).
In the event that the specified order (instruction) on dismissal cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it against signature, an appropriate entry must be made on the order (instruction).
day of dismissal general rule is the last day of work (part 3 of article 84.1 of the Labor Code of the Russian Federation). On this day you need:
Make the final settlement with the employee (part 1 of article 140 of the Labor Code of the Russian Federation);
Issue work book with a record of dismissal entered into it, certified by the seal and signature of the employer and the employee himself, if the employee is present at work and does not refuse to receive it (part 4 of article 84.1 of the Labor Code of the Russian Federation). In the absence of an employee or his refusal to receive a work book, the employer is obliged to send a notification to the employee about the need to appear for a work book or agree to send it by mail (part 6 of article 84.1 of the Labor Code of the Russian Federation);
Issue a certificate of the amount of earnings for two calendar years preceding the year of termination of work (clause 3, part 2, article 4.1 federal law dated December 29, 2006 No. 255-FZ);
Transfer to the employee information on the accrued and paid insurance premiums for compulsory pension insurance (clause 4, article 11 of the Federal Law of 01.04.96 No. 27-FZ).
Also, at the written request of the employee, the employer is obliged to issue him:
Properly certified copies of documents related to work, for example, a copy of the dismissal order (part 1 of article 62 and part 2 of article 84.1 of the Labor Code of the Russian Federation);
Additional requirements for the dismissal of a minor
Lack of consent is the basis for recognizing the dismissal as illegal (paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1 “On the application of legislation regulating the labor of women, persons with family responsibilities and minors”).
Status and functions of the commission on juvenile affairs
Issues related to the activities of the commissions are referred by law to the competence of regional authorities.
Commissions for the affairs of minors and the protection of their rights are created in the manner prescribed by the legislation of the constituent entity of the Russian Federation. The procedure for the activities of these commissions is also determined by the legislation of the constituent entity of the Russian Federation. This procedure should be developed and approved in the regions, taking into account the requirements of the Model Regulations on Commissions for the Affairs of Minors and the Protection of Their Rights, approved by Decree of the Government of the Russian Federation of November 6, 2013 No. 995 (hereinafter referred to as the Model Regulations on Commissions), and cannot contradict it.
The Commission on Affairs of Minors and the Protection of Their Rights must establish that the rights of a teenager are not violated when an employment contract is terminated.
Dismissal of a minor at the initiative of the employer
The issue of terminating an employment contract with a teenager is considered at a scheduled or extraordinary meeting of the commission. Based on the results of the consideration, the commission will decide on giving consent to terminate the employment contract with a minor employee or on refusal (Article 11 of the Federal Law of June 24, 1999 No. 120-FZ “On the Basics of the System for Preventing Neglect and Juvenile Delinquency”, hereinafter - Law No. 120FZ, subparagraph "c" paragraph 7 of the Model Regulations on commissions).
That is, even if the company has every reason to part with an unsuitable employee, in the case of a minor, it is necessary:
First, draw up two written requests for the consent of these departments to dismiss.
Second, get positive written responses to inquiries;
And only thirdly, to issue an order to dismiss the child.
Please note: a request for termination of an employment contract with a teenager is sent to the state labor inspectorate and the commission for minors and the protection of their rights at his place of residence. An example is provided below in the article.
In the case of negative answers, it is impossible to dismiss a teenager on the grounds provided for in Article 81 of the Labor Code of the Russian Federation until he reaches the age of 18 years. But the employer has the right to appeal the refusal in an administrative or judicial manner (clause 23 of the Model Regulations on Commissions).
Request for Consent to Dismiss a Minor
There is no unified request form. The department can develop it independently and approve it by its own internal document, for example, by order. In cases where the form is not approved, the employer may prepare a free form document.
The requirements for a written appeal are defined by Article 7 of the Federal Law of May 2, 2006 No. 59-FZ “On the Procedure for Considering Citizens’ Appeals Russian Federation"(hereinafter - Law No. 59-FZ).
In particular, it should contain the essence of the request, the postal address to which the written response should be sent. If necessary, the employer must attach documents or copies of them to support his arguments.
If a minor employee decides to quit
When a child is dismissed of his own free will (clause 3, part 1, article 77 of the Labor Code of the Russian Federation), no additional approval is currently required.
The model regulation on commissions does not provide for any approval of the dismissal of a minor employee on the basis mentioned above, or for sending information about his dismissal to the commission for minors and the protection of their rights.
Dismissal of a minor at the end of the employment contract
If a fixed-term employment contract was concluded with a minor employee, it terminates upon the expiration of its validity period (clause 2, part 1, article 77 and part 1, article 79 of the Labor Code of the Russian Federation).
When can I conclude a fixed-term employment contract with a minor?
A fixed-term employment contract may be applied in labor relations with underage workers, if the employer is able to comply with mandatory conditions limitation of its duration. They are provided for in Article 59 of the Labor Code.
So, a minor employee can be hired under a fixed-term employment contract in the cases provided for by Part 1 of Article 59 of the Labor Code of the Russian Federation, namely:
For the duration of the performance of the duties of an absent employee, for example, for the period of his vacation (paragraph 2, part 1, article 59 of the Labor Code of the Russian Federation);
For the duration of temporary (up to two months) work, for example, to prepare a report (paragraph 3, part 1, article 59 of the Labor Code of the Russian Federation);
To perform seasonal work, which can only be carried out during certain period(paragraph 4, part 1, article 59, article 293 of the Labor Code of the Russian Federation);
Works directly related to practice, vocational training or additional vocational education in the form of an internship (paragraph 9, part 1, article 59 of the Labor Code of the Russian Federation).
Also, employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the field of retail and consumer services- 20 people) (paragraph 2, part 2, article 59 of the Labor Code of the Russian Federation).
A fixed-term employment contract can be concluded by agreement of the parties and if the teenager has medical report that he is allowed to work exclusively of a temporary nature (paragraph 3, part 2, article 59 of the Labor Code of the Russian Federation).
Temporarily, a child can be accepted (paragraph 7, part 2, article 59 of the Labor Code of the Russian Federation) as a creative worker to an employer with the status:
Mass media;
Cinematography Organizations;
Theatre, theater and concert organization;
A fixed-term employment contract can be concluded by agreement of the parties with persons receiving full-time education, for example, with schoolchildren (paragraph 9, part 2, article 59 of the Labor Code of the Russian Federation).
Is it necessary to warn the employee about the expiration of the employment contract?
The employee must be notified in writing of the termination of a fixed-term employment contract at least three calendar days before dismissal. The exception is cases when the term of a fixed-term employment contract concluded for the duration of the performance of the duties of an absent employee expires (part 1 of article 79 of the Labor Code of the Russian Federation).
Please note: if none of the parties to a fixed-term employment contract demanded its termination after its expiration, and the employee actually continues to work, this employment contract can be considered as an open-ended one, that is, concluded for an indefinite period (part 4 of article 58 of the Labor Code of the Russian Federation ).
We will show how an employer can terminate a fixed-term employment contract before its expiration due to a violation of labor discipline by a minor employee.
Example. JSC "Ecoservice" concluded a fixed-term employment contract for summer period for a period from June 1 to August 31, 2014 with V.G. Lyutikov, born in 1997, on a five-day working week (days off - Saturday, Sunday). The salary of an employee is 15,000 rubles. He is entitled to an extended annual basic paid leave of 31 calendar days (Article 267 of the Labor Code of the Russian Federation).
From June 17 to June 30, 2014 V.G. Lyutikov was absent from the workplace without a good reason and supporting documents.
In connection with this fact, the following actions were taken:
Compiled acts on the absence of the employee at the workplace;
Compiled memos of the immediate supervisor of the employee addressed to the head of the organization on the absence of the employee in the workplace;
In the time sheet, the days of absence of the employee from the workplace without good reasons(code in a unified form No. T-13 - "PR");
A written explanation from the employee was received.
Based on the results of an internal investigation, it was decided to dismiss V.G. Lyutikov for absenteeism (subparagraph “a”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation).
Before terminating a fixed-term employment contract with a 17-year-old employee, it is necessary to obtain consent to dismissal from the state labor inspectorate and the commission for minors and the protection of their rights.
Let's make two requests according to a single template. An example of one of them is shown below.
Since July 1, 2014 V.G. Lyutikov was allowed to work until the responses to the sent inquiries were received. The salary for June was accrued to him for the days actually worked in the amount of 7894.74 rubles. (15,000 rubles: 19 working days? 10 working days). It was paid on July 5 with personal income tax deducted.
On the same day we will make the final settlement with the employee.
In July, he worked 16 working days (from the 1st to the 22nd) out of 23 working days. The salary for July 2014 is 10,434.78 rubles. (15,000 rubles: 23 working days? 16 working days).
In addition to salary, the employee must be paid compensation for unused vacation.
We round this figure up to one full month in accordance with paragraph 35 of the Rules on regular and additional holidays, approved by the NCT of the USSR dated 04/30/30 No. 169.
Therefore, the employee is entitled to compensation for unused vacation for 2.58 calendar days per month worked (31 days: 12 months). The company does not provide rounding of this indicator.
The average daily wage is calculated by dividing the amount of actually accrued wages for the billing period by the number of calendar days taken into account in the billing period.
The settlement period for determining the amount of compensation for unused vacation is from June 1 to June 30, 2014.
One month fell into the calculation period - June 2014. Absenteeism is not excluded from the counted calendar days (clause 5 of the Regulations approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922).
For the purposes of calculating average earnings, June 2014 is considered fully worked out.
The number of counted calendar days for June is equal to the average monthly number of calendar days - 29.3.
The average daily earnings for the billing period (June) is 269.45 rubles. (7894.74 rubles: 29.3).
The amount of compensation for unused vacation will be 695.18 rubles. (269.45 rubles? 2.58 days).
The total amount of accruals V.G. Lyutikov for July 2014 is 11,129.96 rubles. (10,434.78 rubles + 695.18 rubles).
Personal income tax from this amount - 1447 rubles. (11,129.96 rubles? 13%).
After deducting personal income tax, he will receive 9882.96 rubles in the final settlement. (11,129.96 rubles - 1447 rubles).
Russian labor legislation clearly formulates the grounds and procedure for terminating an employment relationship (an employment contract).
In accordance with Art. 29 of the Labor Code of the Russian Federation, the grounds for termination of an employment contract are: 1)
agreement of the parties; 2)
expiration of the term (paragraphs 2 and 3 of Article 17 of the Labor Code of the Russian Federation), except for cases when the employment relationship actually continues and neither of the parties has demanded their termination; 3)
recruitment or admission of an employee to military service; 4)
termination of the employment contract (contract) at the initiative of the employee (Articles 31-32 of the Labor Code of the Russian Federation), at the initiative of the administration (Article 33 of the Labor Code of the Russian Federation) or at the request of the trade union body (Article 37 of the Labor Code of the Russian Federation); 5)
transfer of an employee, with his consent, to another enterprise, institution, organization or transfer to an elective position; 6)
the refusal of the employee to be transferred to work in another locality together with the enterprise, institution, organization, as well as the refusal to continue working in connection with a change essential conditions labor; 7)
the entry into force of a court sentence by which the employee was sentenced (except for cases of probation and suspension of the execution of the sentence) to imprisonment, corrective labor outside the place of work, or to another punishment that precludes the possibility of continuing this work.
The transfer of an enterprise, institution, organization from the subordination of one body to the subordination of another does not terminate the employment contract (contract). When the owner of the enterprise changes, as well as its reorganization (merger, accession, division, transformation), labor relations, with the consent of the employee, continue; in these cases, the termination of the employment contract (contract) at the initiative of the administration is possible only with a reduction in the number or staff of employees.
Termination of an employment contract with a minor employee is also possible on the following grounds: 1)
liquidation of an enterprise, institution, organization, reduction in the number or staff of employees; 2)
revealed inconsistency of the employee with the position held or the work performed due to insufficient qualifications or health conditions that prevent the continuation of this work; 3)
systematic non-fulfillment by the employee without good reason of the duties assigned to him by the employment contract (contract) or internal labor regulations, if the employee was previously subjected to disciplinary or social penalties; four)
absenteeism (including absence from work for more than three hours during
working day) without good reason; 5)
absence from work for more than four consecutive months due to temporary disability, not counting maternity leave, unless the legislation establishes a longer period for maintaining a job (position) in case of a certain disease. For employees who have lost their ability to work due to an industrial injury or occupational disease, the place of work (position) is retained until the restoration of working capacity or the establishment of disability; 6)
reinstatement of an employee who previously performed this work; 7)
appearing at work in a state of intoxication, in a state of narcotic or toxic intoxication; 8)
embezzlement (including petty) of state or public property at the place of work, established by a court verdict that has entered into legal force or a decision of an authority whose competence includes the imposition of an administrative penalty or the application of measures of public influence.
It is not allowed to dismiss an employee at the initiative of the administration during a period of temporary disability and during the employee's stay in annual leave, except in cases of complete liquidation of the enterprise, institution,
In order to protect underage workers against illegal and unjustified dismissal, Russian labor legislation provides for additional guarantees for underage workers upon termination of an employment contract.
Article 183 of the Labor Code of the Russian Federation establishes that termination of an employment agreement (contract) with employees under 18 years of age at the initiative of the employer, in addition to observing the general procedure for dismissal, is allowed only with the consent of the state labor inspectorate of the constituent entity of the Russian Federation and the district (city) commission on minors. At the same time, the termination of the employment agreement (contract) on the grounds specified in paragraphs 1, 2 and 6 of Article 33 of the Labor Code of the Russian Federation is carried out only in exceptional cases and is not allowed without subsequent employment.
When an employee is dismissed, an entry is made in his work book about the reasons for dismissal. Entries about the reasons for dismissal in the work book must be made in strict accordance with the wording of the current legislation and with reference to the relevant article, paragraph of the law. Upon termination of the employment contract at the initiative of the employee due to illness, disability, retirement due to old age, with enrollment in a higher or secondary specialized educational institution or to graduate school and for other reasons with which the legislation associates the provision of certain benefits and benefits, an entry on dismissal in the work book is made indicating these reasons.
If the issuance of a work book is delayed due to the fault of the administration, the employee is paid the average earnings for the entire time of forced absenteeism.
At the request of the employee, the administration is obliged to issue a work certificate to the employee (Article 40 of the Labor Code of the Russian Federation).
Article 40. Issuance of a certificate of work and wages
The administration is obliged to issue to the employee, at his request, a certificate of work at this enterprise, institution, organization indicating the specialty, qualifications, position, working hours and wages.
Upon dismissal of an employee, payment of all amounts due to him from the enterprise, institution, organization is made on the day of dismissal. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.
In the event of a dispute about the amounts due to the employee upon dismissal, the administration is in any case obliged to pay the amount not disputed by it within the period specified in Article 98 of the Labor Code of the Russian Federation. Scheme No. 1. The procedure for resolving collective labor disputes
The Labor Code of the Russian Federation distinguishes underage workers in a separate category, which is provided with certain guarantees and benefits, including upon dismissal, though not for all reasons. Is it possible to dismiss a minor at his own request? Are additional procedures needed for this, other than those established for general cases?
Dismissal of minors: guarantees of the Labor Code of the Russian Federation
A minor employee can be fired for all the reasons provided for by the Labor Code of the Russian Federation. When using some of them, the employer must request permission from the state labor inspectorate and the committee on minors. For what reasons it should be done, and for what reasons you can do without it, you can see in the table below.
| Grounds for dismissal | Procedure | GIT resolution | Permission from the juvenile commission |
| Agreement of the parties | Plain | Not required | Not required |
| Own wish | Plain | Not required | Not required |
| Downsizing | Plain | Consent is required | Consent is required |
| Company liquidation | Plain | Not required | Not required |
| Dismissal for negative reasons (absenteeism, alcohol intoxication, loss of trust, etc.) | Plain | Consent is required | Consent is required |
| End of the employment contract | Plain | Not required | Not required |
| Submission of false documents | Plain | Consent is required | Consent is required |
| Prohibition to hold this position for medical reasons | Plain | Not required | Not required |
From the table above, it can be seen that the employer is required to obtain permission to terminate the employment contract with an employee under the age of 18, only if he does this on his own initiative (with the exception of the liquidation of the company). Such a requirement is put forward by article 269 of the Labor Code of the Russian Federation.
Otherwise, the employer must only adhere to the procedure established by Article 84.1 Labor Code and governing general order termination of employment relationship.
General procedure for the dismissal of a minor employee at his own request
As mentioned above, when a minor employee is dismissed at his request, the usual procedure is applied, which does not require any additional actions.
Employer warning
Upon dismissal of his own free will, the employee must notify the administration of the enterprise of his desire within the following terms:
- 14 days before the planned date of dismissal.
- For fewer days, but only if agreed with the employer.
- Resign on the day of application, if there are good reasons, for example, enrollment in an educational institution.
The terms for warning the employer are regulated by Article 80 of the Labor Code of the Russian Federation.
At the same time, the employer may make the following common mistake: if the employee has filed an application with a request to dismiss him earlier than in 14 days, and the employer does not agree with this, he will put a working resolution on the document. It is not right, since in the Labor Code of the Russian Federation there is no such thing as the detention of an employee for work. And the following situation may occur:
- On March 1, an employee brings an application to the employer with a request to dismiss him on March 5.
- The employer writes a resolution on the application: “dismiss with working off on March 15” and sends it to the personnel department.
- After an employee is fired, he goes and complains that he was illegally fired. And he will be right, because in the statement he clearly asked to be fired on March 5, not March 15.
What should be the employer's response to this case to avoid getting into the above situation? He must put a resolution on the application: “warn at least 14 days in advance, in accordance with the law” and return it to the employee, who will have to rewrite the application.
Writing an application
The application for dismissal is written in free form. It must contain the following data:
- Name and position of the head of the company.
- Name and position of the employee submitting the application.
- Request for dismissal at the request of the employee.
- Desired date of termination.
- Date of writing and signature of the employee.
If the employee asks to be dismissed on the day of filing the application, then he must indicate the reason and attach a document confirming his words.
The application can be written by hand or typed on a computer, but the signature on it must be affixed by the worker's hand.
The application can be taken to the head personally or sent by mail.
If the employee is not sure of the integrity of the employer, he needs to draw up an application in two copies, one of which should be kept for himself and put on it the date the second copy was received by the manager.
Making an order
The order is usually issued on the day of dismissal, since the employee has the opportunity to withdraw his application.
For a dismissal order, everyone most often uses unified form T-8 or T-8a (if several employees are fired at once). Its use is not necessary, the employer can develop its own form, but the T-8 is very convenient to use, since it provides columns for all the necessary information that should be reflected in the order upon dismissal:
- Full name, position and department in which the dismissed employee worked.
- Date of dismissal, and details of the employment contract, which is terminated by this order.
- The basis for issuing the order, in this case, is the statement of the dismissed person.
- The basis for the termination of labor relations, that is, the article of the Labor Code of the Russian Federation, according to which the employee is fired.
- A place to familiarize the employee with the order of dismissal.
Form T-61 is attached to the order, which indicates how many unused rest days the employee has left, or vice versa - used in advance.
Registration of a work book
Based on the completed and signed order, an entry is made about the dismissal in the work book of the employee.
The procedure for filling out a work book:
- Putting down the serial number of the entry, the date of dismissal, the grounds for dismissal (article of the Labor Code of the Russian Federation) and the details of the order.
- Data affixing official who filled out the labor and his signature.
- Certification of records with a seal. This property is currently not required if entity works without printing.
Everyone already knows that article 77 of the Labor Code of the Russian Federation, and not 80, which discusses in detail the dismissal procedure at the request of the employee, is included in the work book as a basis. But many simply put the paragraph and number of the article (paragraph 3 of article 77 of the Labor Code of the Russian Federation), while the above code of laws requires that part of the article be included in the labor. Accordingly, the entry should look like this: "dismissed under clause 3 of part 1 of article 77." (magazine "Kadrovik. labor law for a personnel officer, No. 4, 2007, L. Frantsuzova, lawyer).
Payments to a minor employee upon dismissal of their own free will
Upon dismissal, a minor employee is entitled to the following payments:
| Payment type | Payout amount | Payment term |
| Salary for work performed | According to the employment contract and the amount of time worked in the month of dismissal | On the day of dismissal |
| Compensation for unused vacation | Based on the number of unused paid vacation days | On the day of dismissal |
| Other payments provided for by the Labor Code of the Russian Federation and local regulations of the employer (reduction allowance, material assistance, etc.) | In the amount of the average monthly salary or in the amount established by the employer | within the time limits prescribed by law. |
Also, certain amounts of money may be withheld from the employee:
- Cash for vacation taken in advance ().
- Retention of the value of the values \u200b\u200band entrusted to him ().
However, it must be remembered that there are also restrictions on withholding money from an employee's salary, which are regulated by article 138 of the Labor Code of the Russian Federation.
The dismissal of a person under the age of 18, when he writes an application of his own free will, is carried out in the usual manner. Coordination with the labor inspectorate and the committee on juvenile affairs in this case is not required. The employee simply submits an application within the period established by law and the employment contract with him is terminated by issuing an order. Then he is given a work book and all the due payments.