Guarantees in hiring and dismissal ban pregnant women and women with c...
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Southern Interregional Department of the Ministry of Justice (Odessa)
Guarantees in hiring and dismissal ban pregnant women and women with children
17.03.2016
Guarantees in hiring and dismissal ban pregnant women and women with children
It is forbidden to deny women in employment and reduce their wages for reasons associated with pregnancy or the presence of children under three, and single mothers - if any child under fourteen years of age or disabled child.
In case of refusal of employment specified categories of women owner or authorized body required to report their reasons for refusal in writing. The refusal to hire may be appealed in court.
Dismissal of pregnant women and women with children up to three years (six years - part six of Article 179), single mothers in the presence of a child under the age of fourteen or a disabled child on the initiative of the owner or authorized body is not allowed except complete liquidation of enterprises, institutions, organizations, when permitted exemption from mandatory employment. Compulsory job these women also carried out in cases of dismissal at the end of temporary employment contract. The period of employment they kept the average salary, but no more than three months after the end of temporary employment contract.
It is forbidden to refuse to hire for reasons related to pregnancy, presence of children under three, and single mothers - if a child under 14 or a disabled child. Note that the last (with a disabled child) also applies only to single mothers.
The concept of a single mother was determined in the decision of the Supreme Court of Ukraine "On the practice of courts of labor disputes." P. 9 of this resolution alone be defined as a woman who is not married and the child's birth certificate which is no record of the child's father or father's record made in due course as directed by the mother. In addition, single mother as defined by the Supreme Court of Ukraine should recognize and widow, another woman who fosters and maintains one child. According to this definition for the recognition of "the other woman" lonely mother of two essential characteristics: it de facto and raising a child alone, and one of its holds.
In addition to the rules of the first century. 22 Labor Code, which prohibits unreasonable refusal to accept a job, the second part of the article requires the owner to inform women mentioned in the first century. 184 of the Labor Code, the reasons for the refusal of employment in writing.
These categories of women have the right to appeal the unreasonable refusal to work. According to Mr. 3 of the second century. 232 of the Labor Code the right to challenge unjustified refusal of employment provided a wider range of women. Article 232 of the Labor Code gives the right to challenge unjustified refusal to hire all women who have a disabled child, not just single mothers who have the child.
Restrictions exemption set out in part three centuries. 184 of the Labor Code, does not apply to women who have a disabled child, but not single mothers. However, the range of women who benefits provided under part three annotated article expands compared to the range of women referred to in the first paragraph of the same article by women who have a child under 6 years of age if the child is under medical report requires home care.
The above categories of women can not be released not only on the grounds under Art. 40 and 41 of the Labor Code, but also for other reasons that qualify as dismissal (termination of employment contract) at the initiative of the owner. However, for other reasons (which do not qualify as termination of the employment contract by the owner) termination of these categories of women possible.
Exemption from the initiative of the owner of women referred to in the third paragraph of Art. 184 of the Labor Code, is allowed only in case of complete liquidation. The concept of the complete elimination of the law does not specify, but with the practice that recognizes the liquidation of a legal entity with the termination of all rights and obligations of the legal entity and liquidation of the succession, the complete elimination should recognize only the first of its kind. Thus, the elimination of succession does not give the holder the right to dismiss an employee on its own initiative. However, with companies being liquidated, still employees (including women belonging to the category in question) should be exempt. Obviously, in this case, the possible exemption under Section. 5, Art. 36 of the Labor Code in order to transfer to the company, which is the legal successor. Recognition of women valid exemption referred to in the third paragraph of Art. 184 of the Labor Code, only in cases of full liquidation leads to the conclusion that the liquidation of the succession of employment at the company, the successor owner is required. And the successor has the duty to take the woman to work. The corresponding requirement could be required not only to him leaving the company liquidated with reference to paragraph. 5, Art. 36 of the Labor Code, but also in any other formulation release. Therefore, in case of liquidation of the succession this obligation can not be considered satisfied if the owner offered a woman covered by part three centuries. 184 of the Labor Code, employment according to the profession in another enterprise. Employment in another enterprise possible if the liquidation of the succession to the successor lacks vacancies for employment of persons against whom there is a ban on the release in the event of liquidation, which can not be considered complete. Pay attention to the fact that with regard to other categories of workers (which is not mentioned in the third paragraph of Art. 184 of the Labor Code) Plenum of the Supreme Court clarifies a liquidation of the company rules n. 1, Art. 40 Labor Code can be applied in cases when after termination of his activities while establishing a new company. In these cases, the employee is not entitled to call for the reopening of his work in the newly created company unless he was transferred back to the established procedure (third paragraph of Art. 19 of the resolution "On the practice of courts of labor disputes").
In the complete elimination of supposed liberation of women referred to in the third paragraph of Art. 184 of the Labor Code, but with mandatory employment. The phrase "release of ... employment" means a break in time between dismissal and employment is not allowed. And if the woman released today, then tomorrow it should already be able to work in another enterprise. If a woman has no such possibility, the exemption should be classified as being performed without legal basis.
However, you can not ignore the fact that the performance of duty now completely eliminated the employment of women referred to in the third paragraph of Art. 184 of the Labor Code, does not have a mechanism to ensure. The obligation of employment of this category of workers in the complete liquidation of the enterprise, institution or organization is on the latter. Attempts to shift these responsibilities to the founder of the company or how often expressed, its owner would be unreasonable: the law does not provide for that reason. Failure to comply with this obligation now entails the following consequences: 1) at the time of the court's decision process of liquidation is not completed, she resumed work, and the company is obliged to pay workers the average wage during his forced absence (including women received severance ) 2) if on the day of the court's decision in the labor dispute on this matter the company has eliminated a woman at work is not renewed, but its benefits are charged average wages during his forced absence in accordance with the rules of art. 2401 Labor Code; 3) recovery of average earnings during his forced absence under Art. 2401 Labor Code is possible with the body authorized to administer the estate of the liquidated company or owner (civil); 4) Place the obligation of payment of average earnings in liquidation committee impossible, but its head (and the appropriate conditions - and members) can be brought to administrative or criminal liability.
Release of women referred to in the third paragraph of Art. 184 of the Labor Code, in connection with the termination of the employment contract has features. This exemption is possible, but the owner is obliged to employ a woman while at the same or another enterprise according to its specialty. The gap in time between dismissal and employment in this case is also not allowed. However, the relationship between the employer (company) and employees from the date of termination of the employment contract with significant specificity. There preserve the woman on the period of employment the average salary, but not more than three months "after the end of temporary employment contract" (and not from the date of dismissal).
Average pay during the period of employment exceeding three months stipulated by law. It can be installed only agreements or collective employment contract. Delayed implementation own judgment, which the owner has the responsibility to hire a woman for some time, also recognized the basis for recovery of the average salary for the delay enforcement of the judgment under Art. 236 of the Labor Code. The Supreme Court considers that the delay by the owner of the court decision on employment average wage for women (which belongs to the category of women referred to in the third century. 184 of the Labor Code), released under paragraph. 2, Art. 36 of the Labor Code, may be charged in accordance with the rules of art. 236 of the Labor Code.
Head of HR
operation and service of the State
territorial justice department
Odessa region
YL Tsapuk
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