Dismissal of the sole breadwinner in the family: all cases

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Published: 06/08/2016

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The situation when, at a certain stage of life, the entire family’s income, all its means of subsistence, is provided by only one person, occurs quite often.

In young families, this situation is quite natural - women of childbearing age give birth and raise one or more children while on maternity leave. During this time, fathers are required to work especially hard, earning at least three to four times the living wage. It is not easy to get such a job; often several candidates apply for one job.

In single-parent families, the role of the sole breadwinner is most often performed by the mother (she actually feeds the children even if the father does not pay child support or provide financial assistance). There are families where grandparents and older children are the sole breadwinners. If the sole breadwinner loses his job, the family, including minor children, is left without means of subsistence .

How does the law protect the interests of “sole breadwinners” in the event of dismissal? Is this status legally secured and what rights does it give?

• There are no guarantees, but it's worth the fight
• How to take advantage of these legal provisions?
• Arbitrage practice
• Sole breadwinner status. How to confirm?
• Are you afraid of cuts? Go on maternity leave!

Learn more about sole breadwinner status. Who are these people and how can I confirm my position?

If we are talking about the sole breadwinner , then it would be legally correct to consider him as a person who has a certain position in the sphere of labor relations. However, sanctions for sole breadwinners also work. In more detail, the sole breadwinner may be:

• single parent with two children (or more);
• single fathers and single mothers with a child under 3 years old;
• parents with a disabled child who has not reached the age of majority;
• single mothers with a child under 14 years old;
• as well as those persons who have adopted children or are guardians.

Lawyer's answers to private questions

Where can I get a certificate about the sole breadwinner in the family?

There is no such certificate. You can confirm that the second spouse does not work with a certificate from the Pension Fund about deductions to the personal account, a work record book, or a certificate of family composition. All documents must be issued in his name.

Is it possible to lay off the sole breadwinner in a family if there are no suitable positions?

Yes. Such an employee only enjoys the preferential right to remain. If there are no other positions in accordance with his qualifications or he has submitted a written refusal of the proposed vacancies, he can be fired.

Is it possible to fire the only breadwinner in a family if he works unofficially?

There is no employment contract, therefore, the employer will not comply with the legal dismissal procedure. You can prove the fact of work through the court and demand the conclusion of an employment contract, and only after that the provisions of Art. 261 Labor Code of the Russian Federation.

Can a single mother be fired if her small child is constantly sick and she has to take sick leave?

No. Sick leave in such situations is required by law. The employer does not have the right to terminate the contract for this reason alone.

Is it possible to lay off a minor child?

Yes, but only with the consent of the labor inspectorate and the commission for minors (Article 269 of the Labor Code of the Russian Federation). Such consent is not required if the organization or entrepreneur ceases operations.

When can a sole breadwinner be fired?

This question is of interest to everyone - both employers and workers themselves. Is it even possible to fire an employee with this status? Of course, these persons have certain benefits and guarantees, but this does not give them the right not to perform their labor functions properly. Termination of a contract without the employee’s fault occurs only upon liquidation of the company in which the breadwinner worked. Thus, if guilty actions are committed, the employee may also be fired. What, in this case, will be considered guilty actions:

• negative certification results;
• absenteeism without good reason or compelling reasons;
• showing up to work in a drunken or otherwise inappropriate state;
• committing several violations within the framework of official duties that are specified in the agreement or contract;
• disclosure of information about the employer that is classified as secret;
• as a result of loss of trust from management;
• provision of false documents during employment;
• the fact of violent acts against an adopted child;
• violation of safety regulations at the enterprise.

The above makes it clear that the legislation also protects employers who may suffer from unscrupulous subordinates.

Note! Due to certain circumstances, an individual entrepreneur who has employees on his staff may cease his activities. Then the breadwinner working for an individual entrepreneur can only count on the required payments that are due at the time of termination of the contract. So, despite the guarantees specified by law, it is not possible to protect yourself from unforeseen circumstances, for example, such as the bankruptcy of an employer.

In what cases is it possible to dismiss a breadwinner?

Any employee, even the sole breadwinner, can be involved in the dismissal procedure:

1. The company has been liquidated;
2. The IP has ceased to exist.

An employee is subject to dismissal in the following cases:

1. Based on the results of the certification audit, it was revealed that he does not correspond to the position he occupies.

2. Failure to perform work functions without good reason.

3. Walking.

4. Appearing at work in a state of intoxication under the influence of alcohol or drugs.

5. Disclosure of information constituting trade secrets.

6. Failure to comply with labor safety standards.

7. Theft or intentional damage to the organization’s property, supported by evidence.

8. Loss of trust.

9. Committing illegal actions in the performance of official duties in raising children.

10. Forgery or falsification of documentation.

That is, dismissal can be carried out when the reason is provided for by the legislation of the country. And it is documented.

Dismissal of a breadwinner with three children (father of many children)

Back in 2011, the Constitutional Court determined that a father of many children is a parent raising three or more children under 18 years of age. Unfortunately, the breadwinner of a large family may also be at risk of losing his job, however, Art. 179 of the Labor Code of the Russian Federation determines the special status of such persons, due to which such citizens may have advantages in maintaining a job.

So, in the event of a staff reduction in a company, the employer will have to inform the breadwinner about this fact in advance and provide him with alternative vacancy options, where the working conditions should be similar. If the breadwinner is fired due to the cessation of the organization’s activities, then he is entitled to:

• severance pay for 2 months;
• wages, which are calculated from the 1st day of the month until the date the contract is terminated;
• payment for unclaimed leave.

A parent with many children may be dismissed under the article according to the grounds given above. There is no difference between the number of dependents. That is, termination of a contract with a parent with many children can also occur as a result of systematic lateness to work. Exceptions are made for valid reasons. They could be an illness of a family member or an accident in which an employee was involved in a vehicle. Dismissal is applied for causing property damage to the employer and for theft. However, the latter must be proven by authorized bodies.

In order to confirm his status as a parent of many children, the employee should provide the relevant papers to the HR department, which are listed at the beginning of our article.

When can a father not be fired?

The economic crisis and instability in the country, unfortunately, lead to a reduction in the number of jobs. Therefore, the question of retaining one’s position is most pressing today. Fathers, who are the only source of income for their family, find themselves in a particularly serious situation. In such a situation, a completely natural question arises about whether one can hope for any guarantees from the state or not. The legislation provides special protection for men with children who meet one of the following requirements:

• If a man is on maternity leave with a child. In this case, it will not be possible to dismiss him under any of the articles except in exceptional cases such as the liquidation of the enterprise.
• If he is dependent on a disabled child under 18 years of age.
• If a man raises children alone, one of whom is under 14 years old.
• If a family is considered to be large, that is, it has at least 3 children under the age of 18. Moreover, in this case it does not matter whether the man has a wife. They were entitled to privileges even then. True, when both parents work, one of them can be fired. But if the wife does not work, then the man cannot be fired.

Interestingly, from a rights perspective, single men receive the same benefits as single mothers.

What advantages does this provision bring?

The benefits of being a sole breadwinner are significant. We suggest looking at them clearly in the table.

Table No. 1. Advantages and disadvantages of being the sole breadwinner in the family.

What to do if the employer fired the only breadwinner

If an employer fires an employee with the status of the sole breadwinner in the family, there are two options:

1. Complain to the State Labor Safety Inspectorate.
2. Go to court.

Let's look at both methods in more detail.

Complaint to the labor inspectorate

If you simply need to hold the manager accountable for illegal dismissal, a complaint to the inspectorate is sufficient. You can submit it in person on paper or online using the “Online Inspection” service.

Employees will conduct an inspection and issue a decision on prosecution under Art. 5.27 Code of Administrative Offenses of the Russian Federation. If a pregnant woman or a woman with a child under three years of age is illegally dismissed, the case materials will be transferred to the prosecutor’s office, and then to the court for a verdict under Art. 145 of the Criminal Code of the Russian Federation.

Contents and sample of the complaint

The complaint must indicate:

• name, address of the inspection;
• Full name, employer position;
• Full name, address, telephone number of the applicant;
• periods of work in the organization;
• information about dependents;
• date and circumstances of dismissal;
• please check the stated facts;
• date of compilation and signature.

Consultation on document preparation

Documentation

When contacting the inspection you will need:

• passport;
• complaint;
• employment contract;
• employment history;
• a copy of the dismissal order;
• documents for dependents;
• other documents related to the case.

Note: upon termination of an employment contract, a copy of the order is issued upon written application from the employee.

Statement of claim to court

If you need to be reinstated in your position, you should file a claim with the district court at the employer’s location. You can also go to court at your residential address (Article 29 of the Code of Civil Procedure of the Russian Federation). The limitation period for disputes regarding dismissal is one month from the date of receipt of a copy of the order (Article 392 of the Labor Code of the Russian Federation). If it is missed, you will have to restore it.

How it all looks step by step:

1. Documents on the case are collected, a statement of claim is drawn up.
2. One copy of the application is sent by the plaintiff to the defendant.
3. Documents are submitted to the court.
4. The judge accepts the materials for production and schedules a hearing.
5. Based on the results of the proceedings, a decision is made. The judge must consider the case within one month (Article 154 of the Code of Civil Procedure of the Russian Federation).

The plaintiff needs to pick up the writ of execution and a copy of the decision. If the demands are satisfied, the employer is obliged to reinstate him in his previous position, pay all claimed compensation: for forced absence, compensation for moral damage, etc.

In order not to go to court again, you should use the State Automated System “Justice”. Through the service, you can upload the application and other documents online, but the hearings will be held in court.

Elena Plokhuta

Lawyer, website author (Civil law, 7 years of experience)

Contents and sample of the statement of claim

The application is drawn up according to the rules of Art. 131 Code of Civil Procedure of the Russian Federation. It states:

• name and address of the court;
• Full name, address, telephone number of the plaintiff;
• name, address of the defendant organization, full name. manager;
• dates of employment and dismissal, position;
• information about dependents;
• references to laws according to which it is impossible to terminate the contract with the breadwinner;
• circumstances of dismissal;
• order details;
• documents confirming the status of the breadwinner;
• demands: reinstatement, compensation;
• date of compilation, signature;
• a list of submitted documents.

Consultation on document preparation

Documentation

When applying to court, the following must be submitted along with the application:

• passport;
• a copy of the dismissal order;
• children's birth certificates or documents for other dependents;
• certificate of disability, if dependent on a disabled person;
• employment contract.

This is the main list. Other documents related to the case may also be needed.

State duty

According to Art. 333.36 of the Labor Code of the Russian Federation, plaintiffs in labor disputes are exempt from paying state duty.

Cases in which you may be fired

No law can completely protect a person from losing his job. Yes, of course, if a man performs his duties conscientiously, it is almost impossible to fire him. But when the father constantly violates discipline and is negligent in his duties, the employer has every right to fire him for inadequacy for the position. So, fathers who are the sole breadwinners can be fired in the following cases:

1. If the company is liquidated. Moreover, protection of the rights of an employee is not provided either in the case when liquidation occurs due to the bankruptcy of the company, or when such a decision is made by the founders of the organization. Complete liquidation stipulates that all employees without exception are subject to dismissal. Not only single fathers and fathers with many children, but even pregnant women are subject to the reduction procedure. However, all employees are entitled to benefits and severance pay. This is necessary so that they have financial security while looking for a new job.
2. If the company is liquidated through reorganization and moves to another location. However, in this case, the employer is obliged to offer the man a position in a new location in a new organization. And only if he refuses the position can dismissal be carried out.
3. If there are serious violations of labor discipline. Moreover, in this case, a man can be fired even if he has young children and disabled children to support. Such people are not fired due to a one-time minor offense, but systematic violations can lead to termination of the contract. We are talking about serious violations that contradict the employee’s job description. This includes comments and reprimands. A gross violation of labor discipline gives the employer the right to fire a man, regardless of his marital status and the number of children (absenteeism, being intoxicated at the workplace, disclosing classified information, violating safety regulations, etc.).
4. If it turns out that the man provided false information during the hiring process. For example, the employer learned that the educational document was fake. This gives him the right to fire an employee, even if there are children or disabled people in the family.

There are special grounds for dismissing men in certain industries. For example, if a man is a teacher, then he can be deprived of his job for immoral behavior and corresponding actions, violence towards children.

Loss of trust from senior management may also be grounds for dismissal of single fathers.

In general, a tendency can be identified that the state is ready and willing to help those only breadwinners who do their work conscientiously. Avoidance of official duties will in any case lead to dismissal. If management makes such a decision.

But in the event of a layoff, a single man receives a priority right to retain his position if he has more than 2 children or is the only breadwinner in the family. However, privileges are granted only if candidates for reduction have an equal level of productivity and qualifications.

Who is the sole breadwinner in the family

“Firstly, you must definitely look at the Labor Code.

I recommend looking at this document, because there is a special article numbered 179 - “Preemptive right to remain at work.”

First of all, they pay attention to high qualifications and labor productivity.

Persons who have higher qualifications or higher labor productivity should leave them.

If they are compared with other employees occupying a similar position, then if they are more highly qualified for a given position, then they have the right to preferential retention at work. This must be verified in court, because if the employer violated this condition of the Labor Code and did not comply with the provisions of Part 1 of Article 179, then the employee will be reinstated at work, regardless of whether his position is reduced and whether the employer intends to dismiss him in the future or not. dismissal is another matter; he may again be subject to dismissal due to staff reduction, but in a different manner, in compliance with the full procedure established by law.

But there is also part 2 in this article, which says that preference when remaining at work, with equal labor productivity and qualifications, is given to employees who have dependents who are the only breadwinner in the family, who have suffered work-related injuries and occupational diseases, or are trained by the employer in special education institutions on the job, or disabled people, participants of the Second World War.

Definition of the status of “sole breadwinner in the family” from the point of view of the law

The sole breadwinner can be any adult family member - mother, father, grandmother or grandfather, including cases where the family is recognized as incomplete.

We recommend reading: Standards for issuing personal protective equipment for canteen cooks

If such a family member loses their only income-generating job, the rest may lose their means of subsistence. It is important to know what rights and privileges a citizen with such a status definition has, in what cases his dismissal is allowed, and in what cases it will be considered unlawful. Contents

The Labor Code regulates the relationship between the employer and the employee who is the only able-bodied member of the family. Current legislation does not contain a precise definition of the status in question.

If we turn to labor legislation, then in Article 179 we can highlight the basis for this concept. The article contains information about dependents, which are non-working family members living at the expense of a working person. We can conclude that a status person will be a subject who supports or helps his relatives, recognized dependents. In order to have the right to the privileges provided by law, a citizen must confirm his status.

What papers may be required: a certificate from the employment center indicating that the spouse is registered

Who can be recognized as the sole breadwinner of the family?

Answer to the question: Unfortunately, the current legislation does not provide a definition for the sole breadwinner of a family.

In practice, the sole breadwinner is understood as a person whose income is the only source of income for the family. For example, the sole breadwinner is an employee whose spouse is not in an employment relationship and is busy caring for children.

At the same time, if another family member is on parental leave, that is, in an employment relationship, then the employee can no longer be recognized as the sole breadwinner (see.

appendix to the answer below). It should be noted that the employee must document his status as the sole breadwinner. Such documents may be a copy of the work record book of adult family members of the employee, certificates from social security authorities, etc. Details in the materials of the Personnel System: Appeal ruling of the Moscow City Court dated February 26, 2014 in case No. 33-5569/2014 Judicial practice: Resolution of the Constitutional Court of the Russian Federation dated December 15, 2011

No. 28-P. In the case of checking the constitutionality of part four of Article 261 of the Labor Code of the Russian Federation in connection with the complaint of citizen A.E. Ostaev, the Constitutional Court of the Russian Federation composed of Chairman V.D. Zorkin, judges K.V. Aranovsky, A.I. Boytsov, N S. Bondar, G. A. Gadzhiev, Yu. M. Danilova, L. M. Zharkova, G. A. Zhilina, M. I. Cleandrova, S. D. Knyazeva, A. N. Kokotova, L. O .Krasavchikova, S.P.Mavrin, Yu.D.Rudkin, O.S.Khokhryakova, V.G.Yaroslavtsev, with the participation of a citizen