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Messenger Peculiarities of being on maternity leave
Article 179 of the Labor Code and Article 18 of the Law “On Leaves” enshrine the provision according to which after the end of maternity leave a woman may take childcare leave. For the entire period of the leave the woman is paid an allowance.
The childcare allowance until the child reaches 3 years of age was provided until 2008 on the basis of Art. 34 of the Law “On Compulsory Social Insurance” of January 18, 2001. But in 2008 amendments were made to this law and some others by means of provisions included in the state budget. Although such changes were intended as a temporary measure only for the budget year, afterwards government bodies and even courts continue to rely on them. At the same time there is a clear clarification by the Constitutional Court of Ukraine (KSU) that such a restriction after the end of 2008 is unlawful. Despite this, the restrictions were not lifted. They are as follows. If before 2008 the allowance was paid in the amount of the subsistence minimum, now it is calculated as the difference between the subsistence minimum and the family’s total income, but not less than 130
The allowance can be obtained by applying to the social protection authority, referring to Art. 14 of the Law “On State Assistance to Families with Children.” In doing so, you must have the following documents with you:
- a completed application from one of the parents/adopters;
- a copy of the Order granting childcare leave;
- a copy of the birth certificate;
- a copy of the employment record book of the person applying for the benefit, or a certificate from the place of study;
- a certificate confirming that the person applying for the benefit does not receive unemployment benefits (if the applicant is registered with the employment center).
The social protection authority has no right to require other documents.
While the employee is on childcare leave, the employer may hire another employee for the maternity leave period under a temporary employment contract.
If an employee on maternity leave decides to return to work regardless of whether the leave has expired, they return to the position held before the maternity leave. The temporary employee is to be dismissed from that moment on the grounds of the expiration of their temporary employment contract. If the temporary employee was not dismissed and their relationship with the employer continues, it is considered that the temporary contract has been extended for an indefinite period. And now the employee can be dismissed only on general grounds.
According to Art. 184 of the Labor Code, an employer is prohibited from dismissing a pregnant woman, a woman with a child under 3 years old, a single mother with a child under 14 years old or with a child with disabilities. An exception can be made only in the event of liquidation of the legal entity, but such women must in that case be provided with employment. If a woman of this category was dismissed due to the expiration of her employment contract, she must also be provided with employment, and until she finds a job her salary is retained for three months.
Many employers ask: what to do if a woman hired to replace a woman on maternity leave herself goes on maternity leave, and a third employee is taken in her place? In that case, when should the third employee be dismissed: when the first or the second woman on leave returns?
In such a situation it is reasonable to assume that the second and third employees replaced the first employee, who worked under an open-ended employment contract, and it is she who has the preferential right to return to her position. But it should be taken into account that after the first employee returns to work the employment contract with the second employee becomes open-ended with all the resulting consequences.
The Supreme Court of Ukraine (VSU) in its Resolution No. 9 of 06.11.1992 explained that the employer’s obligations to provide employment cannot be considered fulfilled if a similar position was not offered to the employee at the same or another enterprise, or if the employee refused the offered work for a valid reason.