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In what cases one can fire an employee on maternity leave

28/12/2016

A woman took a maternity leave before expiration of a fixed-term labour contract concluded with an employer. Subsequently, she took a leave to attend to a child up to the age of two (a child care leave). However, the labour contract expired during the above-mentioned leave. Is it considered to be legitimate to terminate a labour contract with the mentioned “woman on leave” in view of expiration of the period of time for which it was concluded, that is before the leave comes to the end?

CEO of a LLC

 

Termination of a labour contract upon its expiration

Yes, a labour contract with an employee being on a child care leave may be terminated due to expiration of the term for which it was concluded (article 105 of the Labor Code of the RUz (hereinafter referred to as the LC)). At the same time, it is worth pointing out that expiration of a labour contract is an independent ground, not related to the employer’s decision for termination of the contract. Notwithstanding the provisions contained in the concerned article, “women on a child care leave” enjoy special privileges in the scope of a labor law. So, after termination of a fixed-term labour contract, the employer is under obligation to place the mentioned employee in a job (part 2, art. 237 of the LC).

A written offer of available suitable vacancies, duly registered in the correspondence book as well as written waivers of the proposed vacancies by an employee, etc., may be regarded as evidence that the employer has taken steps to provide the employee with a job placement. It should also be kept in mind that legislation provides women with guarantees of safe work. According to article 225 of the LC, it is strictly forbidden to employ women in jobs with unfavorable working conditions including underground works, with the exception of some of the latter (non-physical work or sanitary and household services). This category also includes lifting and handling of weight exceeding the maximum permissible limits for women.

The legislation does not mention within which period of time a “woman on leave” must be employed after termination of a contract; however, in the light of the meaning of para. 4 part 1 art. 270 of the LC, according to which an employee is entitled to apply to the labor commission or the court within three months from the date of getting to know about violation of the rights, it can be concluded that a “woman on leave” has a right to apply to the former employer with the requirement of job placement already on the next day after termination of her labour contract, and, in case of refusal, – to appeal within a three-month period. If, for valid reasons, she fails to apply to the employer within the mentioned timeframe, the latter may be extended. An employer’s failure to take measures on job placement may be considered as violation of the labor legislation, thus, resulting in an imposition of a fine in the amount of 2 to 5 times the minimum monthly wage (art. 49 of the Administrative Code).

Meanwhile, an employee retains salary during the job placement period, but no more than for three months from the date of termination of a fixed-term labour contract (part 2 art. 237 of the LC). Certainly, if the employer is interested in getting service from that employee, then nothing prevents him from continuation of the employment relationship after expiration of a labour contract (art. 105 of the LC). Otherwise, the employer must abide by the rules of the law. After all, if, within seven days from the date of expiration of a fixed-term contract, neither party states his/her willingness to terminate the employment relationship, the fixed-term labour contract shall be considered to be prolonged for an indefinite period of time (part 2 art. 105 of the LC). Therefore, in this situation the employer is recommended to display vigilance.

The employer, who has decided to terminate a labour contract due to expiry of its term, is not required to pre-notify an employee (para. 6 of the Resolution of the Supreme Court Plenum of the Republic of Uzbekistan “On application of the law, regulating termination of a labour agreement (contract), by the courts,” № 12 dated April 17, 1998).

However, in order to avoid a whole number of violations of the labor legislation requirements, in particular as provided for in art. 108 of the LC, an employer can take certain measures to notify an employee of the expiration of a contract. The situation becomes more complicated when an employee’s location is unknown. As a general rule, an employer has information about employees’ home addresses, e-mails, home telephone and mobile phone numbers. In most cases, an employer comes in contact with employees using those channels of communication. However, “women on leave” sometimes deliberately shy away from any contacts with the management in order to avoid termination of labour contracts. Therefore, it is advisable to record in writing the impossibility of establishment of employee’s whereabouts, for instance, by drawing up a report stating that the employee does not answer phone calls, e-mails, is absent at the registration address or previously specified address of actual residence. An employer may also send an employee a copy of the order on termination of a labour contract[1] with a cover letter containing a job offer. Such documents may be sent by post or express mail as a registered letter with the delivery notification.

And even if the taken measures lead to nothing and an employee’s location is still not ascertained, the employer’s attempts to make a contact in order to fulfill his obligations related to job placement (handing over the employment record book and so on) are likely to be interpreted as bona fide discharge of obligations in case of a litigation.

What to do with an employment record book that belongs to the employee who does not get in touch?

According to art. 108 of the LC, an employer must give an employee the employment record book together with a copy of the order on termination of a labour contract on the day of termination of the latter. If there is no one to hand over those documents, an employment record book must be stored in HR department of the company within two years, as envisaged by para. 5.2 of the Instruction “On keeping the employment record books” (registered by the Ministry of Justice of the Republic of Uzbekistan under № 402 as of 29.01.1998). After a two-year period the unclaimed employment record books should be deposited for storage in the archives of the company, where they are to be kept for 50 years.

What to do with a child care allowance that was being paid to the mentioned “woman on leave”? Stop paying?

Women, who are on maternity leave and on leave to attend to a child up to the age of two, are eligible to receive an allowance (part 1 art. 234 of the LC).

In this situation the employee is already on leave, and, given the fact that upon a child birth an allowance has already been paid once, then, it is likely that while being on a child care leave, the employee has already received the lump sum of a maternity allowance, and the employer is no longer obliged to pay it.

As for the monthly child care allowance until the age of two, since during the specified leave the fixed-term labour contract has already expired, the payment of an allowance ceases after termination of the employment relationship, with the exception of the cases when the employee took the employer’s job offer (part 2 art. 237 of the LC). In this case, the child care allowance ceases upon expiration of the payment period established by the legislation – when the child reaches the age of two or when the mother, receiving a child care allowance, returns to work (para. 38 of the Resolution of the Cabinet of Ministers of the Republic of Uzbekistan “On approval of Regulations on allocation and payment of social security benefits and financial aid to the low-income families” № 44 dated February 15, 2013).

 

 

Mariya Koluseva,

Lawyer of AO LLC

«BAKER TILLY TASHKENT»

 

 



[1] Order on termination of a labour contract must contain the grounds for termination of the contract in strict compliance with phrasing of articles 97 and 105 LC.


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