The pregnant woman missed 6 days from work. What to do in case of dismissal? Necessary documents for consideration of a labor dispute in court

Is it possible to fire a pregnant woman for absenteeism or are other disciplinary measures applied to the violator? Find out why you can be fired and download the necessary documents.

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Is it possible to fire a pregnant woman for absenteeism?

According to the law, you can fire a pregnant employee for 2 reasons:

Terminate labor relations upon liquidation of the company (Part 1 of Article 261 of the Labor Code of the Russian Federation).
If a pregnant employee was hired under a fixed-term employment contract for the period of absence of the main employee. The term of the employment contract has expired, and it is impossible to transfer the pregnant employee to a new position or she herself refuses the transfer.
The law does not prohibit dismissing a pregnant woman for other reasons, if they are not related to the employer’s initiative. For example, a woman has the right to leave on her own, by agreement of the parties, if she refuses to continue working due to changes in working conditions.

Despite the fact that absence from the workplace for more than four hours in a row or during the entire work shift is considered absenteeism, dismissal of a pregnant woman for absenteeism is unacceptable (clause 5, part 1 or subclause “a” of clause 6, part 1 of Article 81 Labor Code of the Russian Federation). The prohibition only applies to the application of disciplinary sanctions in the form of a last resort - dismissal. The answer to the question whether it is possible to fire a pregnant woman for absenteeism is clear - no.

The employer has the right to apply other types of disciplinary sanction to the violator if they do not contradict current legislation, do not violate the rights of a pregnant employee.

Cheat sheet: guarantees for pregnant employees

It is still possible to part with a persistent offender if the dismissal procedure is properly completed. This will help avoid problems in the future. The courts are friendly to pregnant women. And if it turns out that the employee left on her own, but pressure was put on her, the woman can be reinstated to work in accordance with the court decision.

An expert from Sistema Personnel will tell you how to fire for absenteeism. From the article you will learn details about the procedure, the sequence of preparing the necessary documents for terminating a TD on this basis.

Is it possible to fire a pregnant woman for absenteeism if she did not warn the employer?

The concept of “absenteeism” is the same for all categories of employees on the basis of subparagraph “a” of paragraph six of part one of Article 81 of the Labor Code of the Russian Federation. If an employee without good reasons absent from work:

throughout the working day;
more than four hours at a time.

The employer must understand that pregnant women may be absent for various reasons. Standard pregnancy management involves (order of the Russian Ministry of Health No. 572n dated November 1, 2012):

Walkthrough large quantity analyses.
Visiting numerous specialists, including multiple visits to the obstetrician-gynecologist.
Several screening ultrasound examinations.

If a woman, for example, went to the obstetrician-gynecologist, but did not warn the employer in advance, this is not considered absenteeism without good reason.

The law provides for many prohibitions regarding pregnant employees:

involvement in overtime work;
business trips;
work on a rotational basis, etc.

★ Read in the magazine “Personnel Business”:

Expectant mothers should not work in a draft, in rooms without windows, lamps, etc. (clauses 4.1.7 and 4.1.9 SanPiN 2.2.0.555-96, approved by Resolution of the State Committee for Sanitary and Epidemiological Supervision of October 28, 1996 No. 32). A woman can feel unwell at any time and receive sick leave, but she has the right not to show up for work by notifying the employer about the sick leave by telephone. In this case, the employee’s absence from work for more than four hours in a row does not count as absenteeism. You can't fire her anyway.

Often, employers take the employee’s position and, upon her return to work, issue unpaid leave for all days missed. If the employer believes that violation of labor discipline should be punished, he can apply less severe disciplinary measures other than dismissal.

★ Look special selection prepared by Sistema Personnel experts on dismissal for absenteeism. In it you will find answers to complex questions about dismissal for absenteeism. Ideal samples of personnel documents for processing the termination of a TD on this basis. Labor disputes, thematic video lectures.

What disciplinary action can be taken if dismissal is excluded?

Dismissing a pregnant woman for absenteeism is unacceptable. For employees in this category, there is a direct ban on terminating their employment relationship at the initiative of the employer. But it is quite possible to apply other disciplinary measures established by labor legislation and local regulations of the organization.

The employer has the right to reduce the amount of the bonus if this condition for violations of labor discipline is provided for in the Regulations on Bonuses. With a time-based wage system, a woman will receive less for absence from work wages. Hours of absence from work are not subject to payment.

Absenteeism is considered a disciplinary offense. A pregnant woman can be reprimanded or reprimanded. The penalty is valid for a year and can be lifted by the employer ahead of schedule.

★ An expert from the magazine “Personnel Business” will tell you. From the article you will find out whether it is possible to fire an employee for absenteeism if he has not taken sick leave. What transport reasons can justify the absence. How to fire a part-time employee for absenteeism.

Dismissing a pregnant woman for absenteeism is unacceptable. Absenteeism is considered a disciplinary offense taking into account the first part of Article 192 of the Labor Code of the Russian Federation, since the obligation to observe labor discipline established by the second part of Article 21 of the Labor Code of the Russian Federation was violated. The employer has the right to apply other types of disciplinary sanctions established federal laws, local regulatory documents

Many organizations “don’t like” pregnant employees. The expectant mother, firstly, is protected by law, and secondly, she goes on maternity leave for a long time and has to temporarily hire another person. Can an employer somehow reason with a pregnant employee if she begins to abuse her privileges? Is it possible to fire a pregnant woman? What other penalties are applicable for such employees?

Absenteeism (or time off) is the actual absence of an employee without any good reason and without warning to management during the entire shift or lasting longer than 4 hours. Such an act falls into the category of gross violations and management has the right to punish an undisciplined employee. The woman will either pay a fine, or receive a reprimand, demotion, loss of bonus, or face dismissal.

Moreover, pregnancy cannot be presented as a reason for leaving the workplace without permission.

To punish a negligent employee, the employer needs to document the fact of absence as absenteeism. Draw up an act in the presence of two or more witnesses, indicating the date and duration of the employee’s absence.

Of course, if the employee returns and provides a medical certificate, then the violation will automatically be recognized as canceled and it will no longer be possible to punish her. After all, in the certificate the doctor will indicate what reason forced the pregnant woman to skip work.

Is it possible to fire a pregnant woman for absenteeism, legislative framework

Of course, the employer has the right to require employees to follow labor discipline. If it is violated, he can punish them, and here pregnancy does not protect the woman. The expectant mother will also be forced to pay a fine or receive a reprimand, even a demotion. However, is it possible to fire a pregnant woman for absenteeism? Here the law provides the expectant mother with enhanced protection.

The state has adopted several special acts designed to protect pregnant women in order to improve the existing demographic situation. After all, women now work equally with men. They build a career, earn money. Often the main breadwinner at home is the mother. Therefore, pregnancy is a serious step for them. It is more difficult for a pregnant woman to change jobs; most employers do not want to hire an employee who will go on maternity leave anyway.

Art. 261 of the Labor Code of the Russian Federation prohibits the forced dismissal of an employee - an expectant mother. The employer cannot terminate her employment contract. It doesn't matter how long she stays away. The law specifies only two cases when expectant mother may lose his job:

if the employer ceases its activities - bankruptcy or closure of the company;
liquidation of the organization.

Also, the woman herself can resign if she expresses such a desire. But you can’t threaten her with dismissal.

However, the employer can punish the expectant mother in other ways. There are many options. But no firing.

Some employers kick out pregnant employees, regardless of the existing law. Here, expectant mothers can contact a constitutional body, write a statement and recover through the courts.

How to register absenteeism of a pregnant employee, required documents

If it is impossible to fire a negligent employee, what should the employer do? In principle, one day can be forgiven, at most a reprimand can be given. Perhaps the expectant mother decided to take a walk due to circumstances.

However, when absenteeism becomes a bad pattern, it should not be encouraged. How to document the number and duration of absenteeism of the expectant mother? This is necessary so that the employer can legally apply other types of punishment to her.

The requirements for registering absenteeism here will be the same as for regular employees. After all, legislation only protects expectant mothers from forced dismissal. Other types of punishment are not specified there. This means there is control.

Registration procedure:

First, the fact of absenteeism is recorded. To do this, the employer himself or the personnel officer draws up a special act, which indicates the date and duration of the employee’s absence. The type of document is different for each company; it is part of internal documentation. The content must include the following: the name of the absent employee, the date and time period of absence. Below, the act is signed by two witnesses present - colleagues. In the future, they can also confirm that the pregnant employee really did not exist if she decides to challenge the drawn up act in court. If the employee appeared at the time of signing or drawing up the paper, the reason she provided for justification will be set out below in the Act. The personnel officer will make the necessary entries in the timesheet, which takes into account working hours all employees.
If the employee has been absent for a long time and there is no information, you need to send a special registered letter. There the employer will set out demands to explain the fact of the woman’s absence. True, if the employee was unable to receive the letter, you still cannot fire her. Also, her absence cannot be considered absenteeism if the absence is due to hospitalization. Then the doctor can provide appropriate explanations.
The last step will be to draw up and sign the appropriate order, in which the employer indicates the type of disciplinary sanction that awaits the truant woman (if she was unable to provide any valid reason).

Types of punishment for absentee employees

As you know, the law does not protect a pregnant woman from other possible types of punishment. After all, absenteeism is a serious violation, which even an expectant mother cannot tolerate unless she has valid reasons.

Therefore, the employer has the right to consider the situation and choose a punishment. Often, offenses and types of punitive measures are explained to newcomers immediately and are spelled out in the employment contracts concluded with them. Sometimes the employer conducts special educational conversations, listing the types of possible punishment and violations.

Types of punishment:

deprivation of bonus;
imposition of a fine (the amount is specified in the order);
assigning time off (the employee will have to work an additional shift);
demotion (temporary or permanent if there is a lot of absenteeism);
temporary suspension (short term);
oral or written reprimand.

Any of the listed measures is considered to bring the employee to reason. If her work is dear to her, then having received punishment, the expectant mother will no longer allow absenteeism.

The punishment is indicated in the order drawn up upon the employee’s time off. It states the amount of the fine, the duration of the suspension period, a reprimand, etc., depending on what the employer decides.

Judicial practice

Most cases of forced dismissal are then considered in court.

Citizen N. was actually absent from work for 3 days. She did not provide any explanations. The employer formalized this as absenteeism and fired the employee, giving her an order and, in accordance with the Labor Code of the Russian Federation, returning the work book to the woman. N. filed an application, considering it arbitrary, presenting the court with two facts - she wrote an application in advance, asking for unpaid leave; in addition, she was pregnant. The employer's representative objected that the company did not know about the fact of pregnancy and no application was accepted. However, N. objected that when she brought the application, the employer was absent. And having received verbal consent from the personnel officers, she left. The court supported the plaintiff, finding the dismissal illegal.

The employer terminates the contract with O. when the expiration date has expired. In response, O. brought a certificate confirming the fact of her pregnancy. The employer extended the contract and reinstated O. After a while, O. lost her child, but skipped work, citing the period of recovery from the misfortune as the reason. The employer, having not received the required sick leave from O., fired her. The court supported the employer, because O. had no valid reason to miss work, moreover, her employment contract was extended.

Is it possible to fire a pregnant employee later, after giving birth? Not until the newborn is a full 3 years old.

As you can see, the employer does not have the right to forcibly deprive the expectant mother of work if the woman proves the fact of her pregnancy at the time of issuing the dismissal order.

Who can protect a woman

Often, pregnant women themselves are the injured party. Employers fire them, expressing the most various reasons for this, trying to circumvent the law in this way:

did not know about the fact of pregnancy;
dismissed according to at will;
did not meet the existing requirements as a professional;
did not complete the internship;
committed several gross violations;
skipped for no reason.

Moreover, “at one’s own request” in reality turns out to be gross blackmail when the employee is literally forced to write a corresponding statement.

For example: employee N. has just been accepted into the team and works as a salesman. Suddenly, an item of goods disappears in the hall or colleagues report the loss of a valuable item. Of course, most suspect the new guy N., because the trouble happened soon after his appearance. The boss calls N. and demands that he write a statement, saying that he leaves voluntarily. Otherwise, you will be accused of theft.

What to do if the expectant mother suddenly loses her job? Go to court. Pregnant women have 2 labor guarantees, according to which the employer:

they cannot be given any probationary period;
the opportunity to find a job cannot be denied if the only reason is the applicant’s pregnancy.

The judiciary is ready to protect the rights of the expectant mother. To do this, she needs to visit the district courthouse. Consulting a specialist will help you find out the list of necessary documents and the procedure for the future trial.

Required documents:

a statement in which the plaintiff explains the situation;
a copy of the order issued by the employer at the time of her dismissal;
certificate confirming the fact of pregnancy.

Experts review the situation and listen to the parties. And if the expectant mother was pregnant at the time of dismissal, then she should be given her job back.

Subtleties and nuances

If a woman becomes pregnant, she must notify her employer about this. The expectant mother receives a number of privileges:

she cannot be fired;
the employer must reconsider the expectant mother's schedule;
The amount of working time cannot be increased; on the contrary, a pregnant woman may ask for a lighter workload;
she cannot be appointed as a rotational employee;
She should not be forced to work on weekends or holidays.

The employee can count on a full 28-day paid vacation. It doesn't matter how long she worked. Moreover, maternity leave will be included in the general period so that HR officers calculate the duration of the main leave.

Are there exceptions possible?

If the expectant mother worked, having concluded fixed-term contract, then the situation here may turn out differently. There are two options:

She can't just be fired. After all, the law protects pregnant women. However, she will have to make a separate application to renew her contract. The employee will attach a certificate proving her pregnancy to the application. Then the employer is forced to renew the agreement. If an employee misses the moment, then in principle she could be fired. In addition, the expectant mother should be mentally prepared for the possibility of dismissal later, when the child is already born. The terms are determined by the validity of her employment contract.
When a woman got a job as a temporary employee and replaced another person, then dismissal is also acceptable. For example, a departed employee is registered as a mother on maternity leave. Then the woman who replaced her will be fired and pregnancy will not become a significant reason for keeping her job. After all, the law stipulates that a temporary employee can work until the one he actually replaces returns to work. Here the employer awaits other subtleties. If he initially hired an employee as a replacement, and she later became pregnant, then he will then have to find her alternative options. You can't get fired. It happens when temporary employees leave on their own. But if the expectant mother decides to stay, the employer will have to register her as a permanent employee, in another free position.

By the way, a pregnant employee cannot be fired, even when she:

plays truant without going to work;
is drunk;
doesn't cope;
damages or misappropriates company property;
discloses work information to others.

Of course, these are rare cases. However, the employer can apply other types of punishment, besides dismissal, if the pregnant employee indulges in too much.

Sometimes employers are faced with such a situation as dismissal for absenteeism. The problem is this: in order to fire a person for absenteeism, you must have fairly compelling reasons, supported by documents. In addition, negligent employees often go to court, and the employer has to prove his case in court. Cases of dismissal for absenteeism vary, but pregnant employees are included in a special category of people.

What constitutes truancy? Absenteeism is the absence of an employee from the workplace without good reason for more than four hours in a row during the day (shift) or throughout the entire day (shift). You can be fired for absenteeism on the basis of clause. “a” clause 6 of the first article. 81 of the Labor Code of the Russian Federation, which indicates the reason for repeated gross violation of one’s labor duties.

Dismissal of an employee for absenteeism - disciplinary action(Article 192 of the Labor Code of the Russian Federation). To use it, you must be guided by Article 193 of the Labor Code of the Russian Federation.

What does an employer need to prove when dismissing someone for absenteeism?

1. The employer explains that the employee was required to provide a written explanation for his absence, which he had to provide within two working days. In the absence of an explanation, it was necessary to draw up an act.

2. The deadlines for disciplinary action have been met (no more than one month from the date of discovery of the offense and six months from the date of its commission);

3. Only one disciplinary measure was applied to the employee;

4. When applying a disciplinary sanction to an employee, an order was issued, with which the employee was familiarized with signature within three working days from the date of issue of the order, not counting the time of illness of the employee, his stay on vacation, as well as the period necessary to take into account the opinion of the employee representative. If the employee refuses to sign, then a report is drawn up.

5. According to internal regulations, during absenteeism the employee was required to be present at the workplace, which was determined by his work schedule.

How does an employee prove that he is right?

1. The employee explains to the court that his duties do not include working at a specific workplace, citing the fact that the employment contract does not clearly stipulate the structural unit in which he is obliged to work.

2. The employee explains that the day of absence is a day off. This happens, for example, if there is no clear work schedule and there is no reference to this in the company’s personnel documents. In addition, the reason may be that the documents stipulate a five-day working week with two days off, but there is no clear indication that Saturday and Sunday are days off.

3. The employee proves that he was absent for a good reason. To confirm his words, he can bring a certificate from a doctor stating, for example, that he underwent an examination.

4. The employee explains that he did not go to work on the days of rest specified in the collective agreement. In addition, some companies may allow employees not to go to work one day every six months without good reason.

Necessary documents for consideration of a labor dispute in court.

What documents may the court require to make a decision?

1. An employment contract is required;
2. Internal labor regulations;
3. Request for written explanations;
4. Explanations from the employee in writing about the reasons for absence from the workplace;
5. Other documents confirming the fact that the employee is absent from the workplace (memos, time sheets, etc.)

What arguments are acceptable to the court?

If personnel documents define workplace employee and his work schedule, and the employer proves that the employee was absent without a good reason, then the company has a greater chance of winning the case than the employee.

What awaits the company if the court proves that the employer unlawfully fired an employee? Then the court usually requires the employee to be reinstated in his previous position from the moment the court decision is made and to pay the employee for forced absence. The court also orders the employer to pay compensation for moral damage if the employee declared this in court and the moral damage was proven.

Is it possible to fire a pregnant woman for absenteeism and how to do it correctly?

Dismissal for absenteeism of a pregnant employee.

If a woman is pregnant and does not go to work without good reason, her dismissal for absenteeism is impossible. It is prohibited to fire a pregnant woman at the initiative of the employer. You cannot fire a pregnant woman even in cases of obvious violations of discipline: absenteeism, disclosure of classified information, violation of labor safety standards. The maximum that can be applied to an employee is a disciplinary sanction in the form of a reprimand or reprimand. In addition, the manager may not pay for the days the employee missed without good reason.

If the contract with the employee was terminated before everyone knew about her pregnancy, such an agreement may be declared invalid. This issue was examined in the Supreme Court, and the court concluded that it was impossible to dismiss the employee, even if an agreement was concluded (Supreme Court ruling No. 37-KG14-4 dated 09/05/14).

If a contract was concluded with a pregnant employee new agreement before the end of pregnancy, it can be stopped after the expiration of the term. This must be done within a week from the moment the manager learned or should have learned about the end of the pregnancy (Article 261 of the Labor Code of the Russian Federation). In this case, the manager needs to record the date when he learned about the end of the pregnancy, so as not to miss the one-week period during which the contract can be terminated.

How to prove the timing of the end of pregnancy? This could be a certificate confirming the end of pregnancy, a child’s birth certificate, information from a pregnancy certificate (where the gestational age was indicated), data from a sick leave certificate on the right to maternity leave, information provided by the employee herself. To be convincing, it is best to collect several pieces of evidence, since each piece of evidence can be questioned separately.

What to do if an employee does not bring documents for pregnancy, although the pregnancy is already obvious? In this case, the employer does not give any guarantees and will be right. An employee can receive benefits only if she takes care of herself and collects all the necessary documents.

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Is it possible to fire a pregnant woman for absenteeism? The exact answer is contained in the norms of the Labor Code of the Russian Federation.

It should be noted that future mothers are, perhaps, the most protected category of workers.

The thing is that they enjoy the largest amount of compensation and benefits. Such workers can independently determine the period of temporary termination professional activities for, at a time convenient for them. These female employees can resign from the company at any time; they cannot be recalled from vacation or sent on a business trip, nor can they be called upon to perform duties in their position beyond the established length of working time.

In turn, the manager cannot terminate cooperation with such an employee at his own discretion. The only exceptions are cases.

Even for dishonest fulfillment of assumed work obligations, all disciplinary measures provided for by the norms of the Labor Code of the Russian Federation cannot be applied to a worker. This also applies to cases of absence from one’s place without good reason. Dismissal in this case is not allowed.

Sometimes unforeseen circumstances arise due to which a person will be absent from his place of work. Such situations can be either respectful or unreasonable.

The following reasons may confirm the validity of absence:

requiring treatment at home or in hospital;
passing away of loved ones and relatives;
participation in court proceedings;
liquidation of consequences of accidents and disasters at the place of actual residence;
accidents on transport routes.

Such circumstances must be documented. These reasons can be justified:

medical report;
judicial summons;
data from housing services, law enforcement agencies or emergency authorities.

A justified absence may be recognized as situations where an employee cannot perform his or her duties. job responsibilities due to the manager’s dishonesty, for example, when. A prerequisite in such situations is preliminary written notification of your intention not to go to work.

If documentary information and exculpatory data were not provided, then the absence may be considered absenteeism.

This offense has a number of features:

the worker must be absent from his place during the entire working day or more than four hours continuously;
the reason is not valid, for example, fatigue;
The worker did not substantiate his position with documents.

Legislative regulation of the issue

To understand whether a pregnant employee can be fired for temporary unjustified absence from her place, you should carefully study the requirements of the current regulations.

Gives a clear definition of an offense of this nature. Article 192 of the Labor Code of the Russian Federation specifies a list of measures of influence that can be applied to the perpetrator. These include reprimand, reprimand, dismissal.

In Article 193 of the Labor Code of the Russian Federation, in general outline, the actions that need to be performed in this case are indicated.

Article 194 of the Labor Code of the Russian Federation establishes the procedure for canceling punishment, and Article 195 - the specifics of punishment for workers who belong to the command staff.

However, any individual situation has its own characteristics. Therefore, most companies additionally develop internal regulations that contain an algorithm of actions in the event of an offense.

In such a document you must indicate:

conditions under which absence will be considered;
the procedure for performing the necessary actions;
the competence of officials who are responsible for their implementation;
measures that can be applied to the perpetrator;
a category of workers with whom cooperation cannot be interrupted.

All specialists who will take part in the proceedings must be familiar with this document.

It is possible to create a special inspection commission, which includes the most competent specialists of the company. In most cases, these are personnel officers and lawyers.

If a pregnant employee is absent from work

If a crime has been committed, a number of specific actions must be performed.

First of all, it is necessary to document the fact of absenteeism.

It is necessary to draw up a document of an appropriate nature that will reflect the essence of the violation. You should also collect additional information that is relevant to the current situation.

Then all materials must be submitted to the manager for review. The latter, after a detailed study, is obliged to make a decision and determine the measure of impact. As stated, not allowed.

How to record absenteeism?

If a pregnant employee is absent from work, several mandatory steps must be taken.

The first place to start is to make sure that the person is actually not at work. To do this, you need to inspect not only the immediate place of work, but also other rooms where the worker may be, for example, a room for changing clothes or eating.

After this you need to compose. Such a document must be executed in the presence of at least two people. The manager must receive a report on the employee’s immediate supervisor, to which the specified act will be attached.

You can contact the absent employee by phone and first find out the reasons for absence. When the worker appears, a written explanation of the fact of absence is taken from the latter. If a woman refuses to give an explanation, a report is drawn up.

Sometimes a person may claim that the reason for failure to appear was valid, but he did not have time to receive a supporting document. In this case, the employee must be given time to collect such information or make a request to the authorized authority. For example, if you become ill, you can check with a medical organization whether the employee sought help.

After collecting all the specified materials, the manager must make a decision. He must do this within a month from the moment the offense was committed. The manager’s decision is formalized by an order, which the employee must be familiarized with within a month from the date of signing the order.

How can you punish for absenteeism?

If a expectant mother is absent, she cannot be fired. However, in such a situation, the manager can apply other disciplinary measures - issue a reprimand or reprimand. In most companies, internal regulations provide for other measures that can be applied to the violator, regardless of the main penalties.

The most common option is to reduce or. In case of violation work discipline- this is quite acceptable, even in relation to a future woman in labor.

The thing is that in order to receive a bonus, everyone must comply with a number of conditions. Compliance with labor standards is not an exhaustive reason for encouragement. It is also necessary to comply with internal working rules, which include compliance with working time regulations.

Is it possible to fire a pregnant woman for absenteeism?

Is it possible to fire a pregnant woman for absenteeism? The norms of the Labor Code of the Russian Federation answer this question unequivocally - no. If dismissal is applied to an employee as a disciplinary measure, the initiative to terminate cooperation comes from the manager.

According to the requirements of Article 261 of the Labor Code of the Russian Federation, a pregnant employee cannot be dismissed at the intention of the manager, except in cases of complete cessation of the organization’s activities.

This rule is one of the guarantees provided by the general rules for this category. Violation of them will entail not only the reinstatement of the worker in her position, compensation for financial and moral damage, but also the application of administrative measures to the company itself in the form of a fine, the amount of which can be up to fifty thousand rubles.

Judicial practice

In one of the courts of the Russian Federation, a former employee’s appeal to the company was considered with a request to cancel the dismissal order, change the wording of the reason in her personal work book, as well as compensation for moral damage caused.

When studying the content of the appeal, the following was established.

The initiator was labor relations with the organization on the basis of a signed agreement. The person was periodically not allowed to perform his duties, citing a lack of funds. In this regard, the employee went to court to protect her rights. During the investigation, the organization did not present any documents confirming the fact of recording absenteeism. When management changed, all employees were informed that the composition of the staff would change. When returning to work, the initiator is presented with all reports of absenteeism and a dismissal order for this reason. The proponent does not agree with this result for the following reasons. The court refused to satisfy the previous request, but its decision did not come into force at the time of dismissal. The shift schedule was not communicated to her. At the time the relationship ended, the employee was pregnant. In connection with the above, the employee asked to cancel the decision, change the contents of the entry in the work book, and compensate her for financial and moral damage due to an unforeseen interruption in activity.

The representative of the initiator explained that the woman wrote under duress from her manager. However, I was not familiar with the relevant order. When she returned from vacation, she was not allowed to work. The employee could not explain who exactly carried out this action.

A company representative said that absenteeism occurred. However, the worker refused to give explanations and familiarize herself with the act, explaining this with her intention to go to court. She was offered, as an option to solve the problem, to resign of her own free will, both during the conversation and by sending mail notifications. However, the woman refused the proposed exit.

After studying the presented materials, it was established that the employee was familiar with the leave order, which was personally signed on the document. The company presented acts that confirm the fact of absenteeism, as well as notifications that were sent to the worker. The facts of dismissal from work were not confirmed.

According to an extract from the special register, the organization was not in the process of liquidation. According to the rules of the Labor Code of the Russian Federation, when deciding on dismissal, notification of the manager about pregnancy does not affect established guarantee. That is, there was no reason for it.

Based on the data studied, the court made its conclusion. The order to dismiss the employee was annulled. Sign up for work book has been changed. A new wording was indicated that the person resigned at his own request. Were paid cash for financial and moral damage. The company was charged funds for considering the appeal.

Sample documents

Rights of pregnant women

The working conditions of employees expecting a baby must comply with a special regime!

To this end, legislators have developed a number of guarantees for employees with special status, listed in Chapter 41 of the Labor Code. For example:

reduction of the working day to 6 hours (at the request of the woman);
reduction of computer work to 3 hours;
exception of severe and harmful work;
exclusion of business trips and .

Moreover, Article 261 Labor Code prohibits the dismissal of pregnant employees unless the dismissal is caused by:

or individual entrepreneur;
An employee who was temporarily replaced by a pregnant woman returned to work.

How to punish a pregnant woman for absenteeism?

While the employee is pregnant, it's not allowed. But it is necessary to register a violation of discipline. Registration of absenteeism takes place according to general rules:

in the presence of two witnesses, a report is drawn up stating that the employee was absent from the workplace for more than 4 hours in a row;
Against her signature, she is given an order to give an explanation (if she refuses to sign or she does not get in touch, a report on this is drawn up).

Based on the act, you can apply a penalty in the form or, which is recorded in the discipline order. You also need to take into account that absenteeism must be noted on the report card.

What are the consequences of a penalty? The PVTR, the collective agreement or the Payment Regulations may contain conditions that violation of discipline may become a reason for.

At the same time, absenteeism is not paid, and therefore will not be included in the calculation period maternity leave.

All this will affect the amount of vacation pay (maternity and ESD).

Dismissal upon return from maternity leave

You cannot fire the mother of a child under three years old.. This is directly stated in the 4th part of Article 261 of the Labor Code. And by the time the child turns 3 years old, the deadline for prosecution will expire (six months).

That is, it will not be possible to fire an employee for absenteeism during her pregnancy and for 3 years after the birth of the baby.

The only condition for applying dismissal for absenteeism may be the fact of abandonment of the child or his death. But no more than six months should have passed from the moment of absenteeism, and there should not have been a reprimand or reprimand (for one offense one type of penalty is imposed).

Judicial practice

Case No. 33-32308A (Moscow City Court): the employee was dismissed as having failed the test. However, she did not provide any documents about pregnancy. The only notice regarding her condition was an explanation of disagreement with the dismissal citing the presence of pregnancy.

At the hearing, the plaintiff brought a certificate stating that at the time of her dismissal she was pregnant (8 weeks). As a result, the court ordered her to be reinstated at work, and the company recovered forced absenteeism and legal costs (in total more than a hundred thousand rubles) from the company in her favor.

Case No. 33-33784D (Moscow City Court): circumstances were clarified at the meeting:

the employment contract was not signed, but an entry was made in the work book;
the employee did not show up for work for several days without good reason;
one day she told the personnel officer over the phone that she was pregnant;
a week later, the personnel officer came to her home, informing her of her dismissal;
the entry in the work book was cancelled.

The judge did not take into account the facts about the plaintiff’s numerous absenteeism and failure to provide a certificate from antenatal clinic. As a result, the employee was reinstated and received compensation for forced absences.

As follows from the analysis court decisions, the judge will always side with the plaintiff, who was pregnant at the time of dismissal. Proven facts will not affect the decision:

outright abuse of right (there are cases that pregnant employees do not go to work without good reason, knowing about their status and the prohibition of dismissal);
concealment of information about pregnancy.

It is impossible to punish such an employee with absenteeism, but violation of discipline will significantly affect.