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The legislation of our state protects not only minor children, but also mothers. Especially those women who are forced to independently raise their own children without the help of their own father. Such representatives of the fairer sex receive the status of single mother.

All kinds of state privileges are provided for this category of persons. For example, various benefits in the field of labor, taxation, and housing. In this case, children are entitled to state benefits due to the fact that they are growing up without a father.

Most women decide to get rid of their single mother status in order to find the father of their child to collect alimony from him. So how to sue for child support if paternity has not been established? In this article we will try to figure this out.

How is paternity generally established?

The procedure for registering the origin of a child is comprehensively prescribed in the provisions of Art. 48 of the RF IC, according to which all children who were born to persons who were legally married, as well as those born within no more than 300 days from the date of termination of the marriage for any reason, are subject to registration in the name of their mother’s husband.

Note: The 300-day period applies to both divorce initiated by the spouses and the termination of a marriage due to the untimely death of a spouse. It does not matter whether the children's parents lived together or not.

If paternity registration was made incorrectly, then this fact can only be challenged in court.

The following may request a change in the paternity record for the baby:

The child’s mother – by filing a claim against the child’s legal father to challenge paternity;
The father of the child named in the documents - by submitting a request to challenge paternity to the child’s mother;
In fact, the (biological) father of the child - by filing a claim to contest paternity against the child's legal father or, if he is deceased, against the child's mother.

But what to do if the father did not express his desire to include himself in the birth certificate, and the child was born without marriage? You can try to resolve this issue administratively by reaching an agreement with the father, but most often the mother is forced to go to court.

Is it possible to collect alimony without marriage?

Is it possible to receive financial support from the biological father of a child if an official marriage was not concluded between the parents or the woman refused to register the newborn with her husband?

Current legislation, in particular Art. 80 of the IC of Russia, regulates that every parent is obliged to equally participate in the life of the child, including financially. Article 53 of the Family Code establishes that children born out of wedlock and those born in officially registered relationships between parents have equal rights and responsibilities.

As a rule, the initiators of the collection of funds from the second parent are women who are forced to independently raise a minor child. It is worth noting that the father also has the same right if he has joint children left in his care.

How to prove paternity and apply for child support

What to do if the child’s parents did not have a registered relationship, but the father wants to recognize the born child as his own or, conversely, the biological father refuses to register the child in his name?

The best option is to agree on recognition of paternity if there is 100% confidence in the biological relationship of the man and the child. You can explain to your relationship partner that in any case, the court will establish paternity and it is easier for him to recognize it on his own, and then pay alimony voluntarily. If it is not possible to reach an agreement, the only option left is the court.

Administrative procedure for recognizing paternity

If a child is born without marriage, the prospective father of the child can apply to the registry office with a corresponding application. Based on the application, the institution will decide whether to include it in the baby’s birth record.

Such an application is submitted together with the child’s mother, and if the latter died or went missing, at the request of the father alone.

The refusal of a civil registry office to recognize paternity at the request of a man can be challenged in court by proving paternity in court and presenting the corresponding court decision for execution. Thus, to make a record of a father outside of marriage, the joint desire of the child’s parents is sufficient.

Judicial order

The judicial procedure most often entails the appointment of a DNA examination, which forms the basis of all evidence. Additionally, in court, you can hear witnesses who know for sure that the man recognized his child. And also submit joint photographs and videos.

As for the rest, judicial establishment of paternity is a very nervous and rather complicated procedure, which is best entrusted to a qualified lawyer. our specialists right now and find out if your case needs competent legal assistance.

Refund of paid alimony after challenging paternity

How to avoid paying child support for someone else's child? This type litigation is currently quite relevant in family law. Often the alimony payer turns a blind eye to the fact that he is not biologically the father of the child in whose favor the transfers are made, but continues to pay anyway.
In such a situation, there is a high probability of challenging the fact of paternity in court. Such proceedings allow you not only to refute your paternity, but also to return cash, transferred in favor of someone else's son or daughter.

The legislation protects the rights of the child as much as possible, therefore child support payments will be stopped only from the moment of issuance court decision. Before this, genetic testing will be carried out and other evidence will be considered.

If it turns out in court that previously alimony was not paid intentionally, the court may decide to impose a punishment for non-payment.

It is possible to return in court the funds paid for the maintenance of someone else's child for past periods only if it can be proven that the child's mother deliberately misled the judge considering the case of alimony collection. This can be done within the limitation period.

When starting a legal battle, the plaintiff must understand that the claim for compensation for unlawful benefits will need to be sent to the recipient of alimony, and the court decision to pay this alimony must be canceled in court. The listed methods are the only options for not paying child support for someone else’s child.

Men who begin the procedure are interested in whether alimony can be returned when paternity is contested. The answer is in Article 116 of the Family Code of the Russian Federation - the return of alimony when paternity is contested is not allowed.

This means that amounts already paid cannot be returned.

The court will also oblige the man to repay the debt to the “former” child if at the time of challenging paternity the man had arrears in child support. If the alimony holder deliberately evaded paying child support, the court will impose punishment for this offense.

Is there a refund of paid alimony after the procedure for challenging paternity? It is possible to return excessively withheld funds in the following situations if:

The company's accounting department made a mistake when calculating alimony.
The organization was untimely notified by the recipient of alimony or the executive service about the fact that the child reached the age of majority or about a change in the amount of alimony payments.
Errors were made when calculating accruals.
When officials commit intentional actions.

Excess amounts paid are refunded based on actual circumstances. For example, if an error was made by the accounting department of an enterprise, then the money is returned to the employee by the organization, and the losses that the enterprise incurs are covered by deducting from the salary of the person at fault.

Recovery from the recipient is possible in court only if the defendant gives personal consent to such a procedure.

If the funds were transferred in excess due to the fact that the recipient did not notify about the changed conditions and circumstances, the money can be returned if:

there are no objections from the guilty party. Refunds are made after sending the appropriate request;
the recipient of alimony refuses. Refunds are made through legal process.

If during the trial it is established that there was a mechanical or accounting error that occurs when software malfunctions or typos in documents, it is also possible to return the overcharged funds.

Questions regarding child support after paternity are contested periodically arise, so in disputes about unlawful assignment it is used

Civil Code of the Russian Federation, which allows you to partially return the money.

The legal act indicates that the payer has the right in court to demand the return of alimony payments. To do this, he must provide evidence of an error in calculating the funds collected in favor of the child. The basis for return in this case will be unintentional overpayments of alimony that occurred due to a failure in software or other equipment of the bank or organization responsible for transferring funds. In this case, only the excess will be returned.

List of grounds for partial refund of over-transferred funds:

Accounting errors of the enterprise in which the alimony worker works.
Lack of notification from the recipient of alimony or the executive service about the termination of alimony obligations.
Arithmetic errors in calculations.
System failures in computer programs.
Mistakes by bank or post office employees when transferring alimony.

It must be remembered that an appeal for the return of overpaid funds is sent to the organization that is to blame for the error. This means that if a mistake is made by the chief accountant of the enterprise, the funds will be returned to the alimony holder from wages of this employee, and not from the child’s account.

There are situations when the recipient of alimony forces a man to sign an alimony agreement through deception, violence or threats. The Civil Code of the Russian Federation recognizes these transactions as invalid. If a man signed an agreement as a result of deceiving a woman, if this fact is revealed, the alimony provider has the right to challenge the agreement in court. After this, it is possible to go to court to return the illegally paid funds.

We suggest you familiarize yourself with whether they give maternity capital for twins, how to apply for maternity capital for twins

Establishing paternity through the court: procedure and procedures

To go to court to establish paternity and subsequently collect alimony from the child’s mother, you must:

Conduct negotiations with the child’s father to establish a relationship voluntarily and make sure that there is no consent to this.
Prepare a statement of claim and documents for the court.
Submit a statement of claim in person or send it by mail, registered mail with confirmation of delivery to the court.
Obtain a court ruling on the preparation of the case and comply with all requirements and requests of the court.
Appear in court on the appointed date.
If the defendant refuses to acknowledge the claim, apply for a genetic examination.
Pay for the examination or ask the court to pay for it from the budget with subsequent recovery from the defendant upon consideration of the case.
Provide the child for collection of biological material.
Wait for the expert's opinion, and then the court's decision after the hearings resume.
Obtain a court decision, a writ of execution for alimony.
Submit the decision to the registry office to make a record of paternity, and the writ of execution to the bailiffs to collect alimony.

This is a procedure for successfully resolving cases and situations where the mother is 100% sure who the father of her child is. If there is any doubt, a negative DNA test result is possible with unpleasant consequences for the mother. If additional legal issues ask our lawyers completely free of charge.

Features of the paternity establishment procedure

If the plaintiff mother fails to appear in court twice, the judge will leave the claim without consideration, unless the defendant demands its consideration on the merits;
The examination is paid for by the person whose arguments it refuted. If the expert establishes the relationship between the father and the child, the father will pay for the examination or return the money for it to the mother. If paternity is denied, expenses will be recovered from the mother;
If the child’s father does not arrive to submit the biomaterial or refuses to appear at the expert institution. This will be regarded by the court as agreement with the claim and it will make a decision on recognition of paternity.
When the mother refuses to provide the child for examination and collection of biomaterial (Saliva, hair), the court will reject the claim.

Example. Maria N. filed a lawsuit against Sergei K. to establish paternity and collect alimony. At the court hearing, the defendant did not admit the claim, Maria. N. insisted on conducting a genetic examination. The defendant did not appear at the expert institution and refused to submit biomaterial at the court hearing. The court, based on the available evidence, made a court decision to establish paternity and recovered from the defendant alimony in the amount of ¼ per child.

Statement of claim to establish paternity and collect alimony

A claim to establish paternity and collect alimony is drawn up according to the rules. Prescribed in Art. 131 Code of Civil Procedure of the Russian Federation. It does not contain specific requirements or guidelines for this type of claim. But experienced lawyers have enough general requirements to file a valid claim.

In particular, the document must indicate:

Name of the judicial authority and address of its location;
Full names of the plaintiff and defendant, their current addresses of residence and official registration;
Additionally, it would be a good idea to provide contact phone numbers;
Title of the claim;
The descriptive part, which includes information about the existence of a relationship between the plaintiff and the defendant; their duration; date of birth of the child; the reasons for the defendant's denial of paternity;
Evidence of paternity, links to them;
Link to family and procedural law;
Justification for the amount of alimony, if it is collected in a fixed amount, or simply a reference to the articles of the RF IC regulating the percentage amount;
Request to the court to establish paternity and withhold child support;
Date of leaving the document, personal signature of the plaintiff;
List of applications.

It is best to prepare the claim on a computer, avoiding handwritten text. The judge will return the unreadable document to the applicant, suggesting that it be rewritten initially.

The claim and documents are submitted in person, by mail or through a representative with a power of attorney. The easiest way is to send documents by mail, which will help to avoid red tape and unreasonable nagging at a personal reception from court employees.

A request to order and conduct a DNA examination for paternity can be immediately included in the claim as a separate clause. It can also be stated later in court. Lawyers advise not to rush, because perhaps the potential father of the baby will admit the claims. This often happens after explaining his rights and responsibilities in the event of a lost case.

Sample claim for paternity and child support

It is best to entrust the preparation of the statement of claim to an experienced lawyer who has experience in handling this category of cases. However, you can try to compose the document yourself using the sample below.

The document reflects a typical and simplified situation, not complicated by a fixed amount of alimony.

IMPORTANT: You can also clarify controversial issues in advance, the answer to which will be found by a professional in a matter of minutes. Remember that incorrect drafting of the claim will result in its return or abandonment.

Where to submit?

A statement of claim to establish paternity with simultaneous collection of alimony is filed exclusively in district (city) courts.

As a general rule, a claim can be filed at the defendant’s place of residence. But in relation to the plaintiff, the alternative rule of Art. 26 of the Code of Civil Procedure of the Russian Federation, which gives the right to file a claim at one’s place of residence if a minor child lives with the plaintiff.

If the rules of jurisdiction are violated and documents are submitted to the wrong court, the claim will be returned to the applicant without delay.

Required documents

The general list of documents is prescribed in Art. 132 of the Code of Civil Procedure of the Russian Federation, but in relation to the package for a claim to establish paternity and collect alimony, the law does not specify anything. Taking into account the practice of this type of cases, you will have to attach to the claim:

A copy of the application for the defendant;
A copy of your passport;
Child's birth certificate (also a copy);
Correspondence with a potential father, personal photos, videos - as evidence of communication, relationships and possible recognition of the child in everyday life;
Information about the child’s place of residence (certificate, extract);
Information about income;
Justification for the need for alimony in a fixed amount (if requested);
Other evidence in the case.

Only an experienced lawyer will immediately draw up a list of necessary documents for going to court, relevant specifically for your situation. You can consult our lawyers for free right now.

Ask a Question

The original documents, copies of which are submitted to the court, must be taken with you to the hearing. The judge may need them for review.

What you need to know

Deprivation of rights to a child is the final break between him and the father.

Since this measure completely deprives a man of any rights to the baby and makes it completely alien to him.

That is why this procedure is quite complex and multifaceted - so that it is possible to take into account all the nuances and make the right decision.

Indeed, in the case of deprivation of parental rights, the state establishes many rules that must be followed in order to receive the coveted document.

In addition, not all situations require that the parent be deprived of the opportunity to meet with the child and be deprived of the right to lay claim to him and influence his upbringing.

List of prerequisites

All rules for exercising your parental rights are specified in Russian legislation.

At the same time, the parent must remember that in addition to rights, he has responsibilities that he must adhere to. Otherwise, there will be completely legal grounds for depriving him of parental rights.

These are the following provisions for 2020:

failure to pay child support fees - while the father does not have legal grounds to defer or delay payments;
negative impact on the child’s psyche or the use of physical punishment - beating;
sexual assault;
the fact of abuse of the father's rights has been recorded in any form;
documents confirming that the father is registered due to drug or alcohol addiction;
an event was recorded in connection with which the child’s life was threatened;
refusal to fulfill responsibilities for raising and caring for a child.

To deprive the father of parental rights, it will be enough to provide the fact of the presence of at least one of these conditions. At the same time, similar indicators can be used in relation to the mother of the child.

Where to go

Deprivation of parental rights is carried out exclusively through the court.

Therefore, if it is necessary to carry out this procedure, you should know several nuances:

It is worth understanding that most often the mother of the child acts as a plaintiff in the case of deprivation of the father’s rights. A sample statement of claim for deprivation of the father's parental rights is available.

But there are other categories of citizens who can submit appropriate applications to the court:

guardian, adoptive parent, trustee;
employee of the prosecutor's office, guardianship authorities or social institution, which protects the rights of minors in Russia.

It is important to understand that close relatives of the child who replace his parents cannot put forward a demand for deprivation of rights - in accordance with official documents.

But in this case, it is possible to file a petition containing facts of violation of the child’s rights and parental responsibilities. This paper should be submitted to the guardianship authorities. They will already take legal action against the father.

Legal grounds

The basis for regulating relationships in the family is the Family Code Russian Federation. This document contains all the provisions for those situations that may occur in the family area.

Thus, Article 69 talks about what the grounds should be for a positive decision to deprive a parent of his rights to a child.

There are a number of consequences once a parent is deprived of their rights. And all of them are described in the same code, but in Article 71. When filing an application in court, you must follow the rules for drawing up a claim document.

The legislation establishes a sample in accordance with which the paper is filled out - all provisions on this are in Article 131 of the Civil Procedure Code of the Russian Federation.

The Tax Code of the Russian Federation also establishes the procedure for paying state fees in cases that concern a minor.

And in Art. 333.36, paragraph 1, subparagraph 15 states that in such a situation the duty is not paid.

Time frame for establishing paternity

The deadline for consideration of a case in a district court is 2 months. It will take another 1 month for the decision to come into force, but a writ of execution for alimony will be issued immediately.

However, during the period of the paternity examination, the proceedings in the case are suspended along with the passage of a 2-month period.

If the expert institution is overloaded, the examination may take 1-2 months. This will increase the overall processing time for the application. This procedure can be accelerated only by promptly executing all orders and instructions of the court and the expert.

What to do next after submitting your application

If the claim is not rejected/returned, then the demands set out in it will either be satisfied or rejected.

With a court order or decision (writ of execution), the plaintiff, who has achieved success, turns to the bailiffs. If they begin to collect from an officially employed person, then the money will begin to flow after contacting his employer.

The task facing the bailiff becomes more complicated when the debtor does not have regular sources of income. Then you have to look for information about income and/or seize and sell property at auction.

A court decision rejecting a request may be appealed. The corresponding application is sent through the court of first instance, but the addressee of the appeal is the court of second instance, the regional one.

Expenses

The plaintiff in the claim to establish paternity and subsequent collection of alimony is exempt from paying the fee.

The requirement to collect alimony by default is “preferential”, the plaintiffs under it are subject to exemption from paying the fee. And the request to establish paternity is submitted to protect the interests of the minor, which also entails relief from the burden of bearing expenses.

In the future, the entire fee will be collected from the defendant, namely:

150 rubles for alimony claim;
300 rubles for establishing paternity.

Additional costs for the plaintiff will be:

Payment for DNA examination – from 20 to 40 thousand rubles, depending on the institution and urgency;
Payment for a lawyer’s services for drawing up a claim and representation in court is by agreement.

All these expenses can be fully recovered from the defendant if the trial is won and his paternity is established. Costs incurred for legal services will need to be documented in court.

Methods for paying alimony obligations during judicial collection

According to family law, forms of alimony collection

when involving a judicial authority, there are:

interest;
in a fixed amount of money;
mixed.

The first payment option is awarded if the alimony recipient has a stable official income. Deductions in the form of a fixed amount are used if the payer does not have an official source of income or has unstable wages.

Important! In some cases, it is enough for the mother to file a claim only to establish paternity. After receiving the verdict, parents have the right to independently agree on the size and shape financial assistance. In this case, the list of available options for keeping a child increases significantly.

Arbitrage practice

Judicial practice on establishing paternity and alimony is developing predominantly in favor of the plaintiff.

The main evidence is an expert's opinion on the possibility of paternity of a man and a child. Therefore, if geneticists have established that the DNA of the father and child is similar, the claim will be satisfied 100%.

Difficulties are possible due to the parties’ evasion of appearing for the examination.

In these cases, the courts make the following decisions:

Leave the claim without consideration if the plaintiff does not appear in court twice;
The claim is denied if the plaintiff did not provide the child for biomaterial collection;
The claim is satisfied if the male defendant did not arrive at the expert institution and did not submit samples for analysis.

Example: Case No. 2-482/2014 of the Zamoskvoretsky District Court of the capital. Plaintiff N. filed a lawsuit to establish paternity and collect alimony from defendant Z. Defendant Z. did not recognize the claim and voluntarily agreed to an examination. The expert established the probability of paternity at 0.0% and N.’s claim was denied.

Cancellation of illegal alimony

The collection of alimony stops after the result of a genetic examination and other studies that confirm that the man is not the father of the child. Cancellation of alimony occurs from the moment the relevant court decision is made and the this decision bailiff service.

In some cases, for example, if it is not possible to establish the father of the child, the court may oblige the alimony provider to pay money for the maintenance of this child until paternity is established or the child is adopted.

Claiming back alimony is possible only if it is proven that the recipient provided the court with false information or forged documents. For example, if the child’s mother misled a man regarding his paternity and provided incorrect information to the court.

In summary: is it possible to recover child support payments from the biological father?

If a child is born outside of marriage, then by default only the mother is indicated on the birth certificate. The father has the right to both ask employees to indicate their data in the document, and to refuse this procedure without recognizing his relationship. If there is no paternal information on the birth certificate, in order to obtain maintenance for a minor, the mother must complete two steps: establish paternity through the court and collect obligations from the child support provider. To simplify this procedure, the Code of Civil Procedure of the Russian Federation provides for the possibility of drawing up a single claim that resolves both issues at once.

Legislative framework of the issue

Parents can apply for child support based on Article 87 of the RF IC. It says that children are obliged to support their parents if they do not have enough means to support themselves or are recognized as incapacitated.

Often the reason for collecting alimony is disability or serious illness, the treatment of which requires large financial costs.

Retirement age in itself is not considered a basis for receiving child support, but a disease that requires the purchase of medicines or hiring a nurse, in accordance with Article 88 of the RF IC, is such.

All able-bodied children who have income are required to pay child support. Blood relationship does not play a role in this case. Adopted children, as well as guardians, must pay child support to their parents. As for stepdaughters and stepsons, they are charged with this duty if their stepfather or stepmother raised them for at least 5 years and the stepfather or stepmother does not have their own children who can support them (based on Article 97 of the RF IC).

Differences between recovery of a child in marriage and out of marriage

The most important “catch” of a civil union is that the baby born in it is not protected by the right to paternity. That is, a son or daughter “by default” acquires a father only if he is born in marriage (or within 300 days after a divorce is filed between the parents) according to the law. Therefore, the procedure for collecting alimony from a parent for illegitimate children is somewhat different from the standard.

The collection of funds for an illegitimate child is always preceded by a procedure for recognizing the fact of paternity. It is noteworthy that such an event is carried out only in relation to the pope. At the birth of a baby, the mother must be registered in all documentation (with the exception of abandoned children).

Recognition of paternity is carried out:

spouses;
when applying to the registry office only the mother (according to the three hundred day rule);
at the request of both parents who are not in a legal marriage relationship;
the child's sole father;
through a court (based on a decision).

If a small citizen is born into a complete family, then the spouses are automatically included as parents, despite biological ties. Challenging such a record is possible only through court. The father cannot renounce paternity, but he can contribute to the speedy deprivation of his parental rights, but such actions do not exempt him from alimony.

At the end of the procedure for establishing paternity, a record of the establishment is made in the metric information about the child in the registry office. Parents are issued one or two (each) certificates recognizing the man as the father, as well as a repeated certificate of the birth of a son or daughter.

After this, you can immediately begin the process of processing alimony payments according to the standard algorithm.

The Labor Code of the Russian Federation provides for the mandatory provision of annual pay in the amount of 28 calendar days, unless otherwise provided federal laws. In addition, in the process of labor relations, certain categories of employees have the right to various additional or extended leaves (for irregular working hours, for long service, for harmful conditions labor).

Is maternity leave for a temporary employee entitled to a refund?

As a general rule, correspondent points of other divisions, type of carrier, subject of the Russian Federation. The list of information expands when maternity records are outsourced to another company. Such an application for the revocation of the first may be submitted during illness, and in water-related cases, the loss of a breadwinner, for raising children and in other cases established by law.

The design of the forms has an idea.

COMPENSATIONS for unused VACATION

Each employee has the right to an annual period of 28 calendar days with retention of position and average earnings. According to Article 126 Labor Code the employee may request the replacement of a portion of such leave exceeding 28 calendar days. for monetary compensation upon written application. The application must be signed by the employee, and all employer visas must be indicated.

Compensation for unused vacation: calculation features

Part of the annual paid leave exceeding 28 calendar days, upon written application of the employee, can be replaced by monetary compensation. An employee can contact the employer with such a statement at any time. The need to pay compensation for unused work may also arise when an employee is dismissed. The specifics of paying compensation in both cases are explained by Boris Chizhov, deputy head of the department of the Administration of Rostrud.

We are in the media

I was hired on a fixed-term employment contract. I worked like this for a year. They said that the vacation was not yet due. Then they transferred me to the staff and said that I would only be able to get my first leave in six months. Is all this legal?

— First of all, I would like to note that the right to leave in no way depends on the type of contract - fixed-term (concluded for several months, six months or a year) or indefinite.

Do I need compensation for vacation under a fixed-term contract?

If an employee is hired temporarily, for the duration of the main employee, and he works for only one month, upon dismissal he is entitled to accrue compensation for 2.33 days, or in this case no compensation is accrued. Thank you

Article 115 of the Labor Code of the Russian Federation establishes that the duration of the annual basic paid leave is 28 calendar days. In this case, no exceptions are made for those working under a fixed-term employment contract, except for cases when it is concluded for a period of up to 2 months or for seasonal work.

Is a temporary worker entitled to leave?

According to Art. 291 of the Labor Code of the Russian Federation paid holidays or the corresponding financial compensation are provided to temporary workers at the rate of two working days for each month of work.

For payment of vacations granted in working days, as well as for payment in such cases of compensation for unused vacations, the average daily earnings is calculated by dividing the amount of actually accrued wages by the number of working days according to the calendar of a six-day working week.

Is an employee entitled to leave under a fixed-term contract? Is an employee entitled to leave under a fixed-term contract?

I agree with Alexandra. An employee who has entered into a fixed-term contract employment contract, V general procedure. Is an employee who works under a contract entitled to urgent expert consultation? An expert will answer your accounting or accounting question.

An exception is the possibility of terminating the employment contract at the initiative of the employer upon liquidation of the organization or termination of work by the employer - an individual (whether the employee is entitled to leave for fixed-term contract... The time from the date of dismissal until the child reaches 3 years of age will be included in the permanent work skill.

Are workers in the Far North who are hired temporarily during the maternity leave of the main employee entitled to travel payments?

Good afternoon Our organization is located in the Far North, and employees are entitled to pay for travel to and from their vacation destination every two years. Are employees hired temporarily for a period of time entitled to travel expenses? maternity leave main employee (for 1.5 years)?

The right to free travel and baggage transportation to and from a vacation spot for an employee working in the Far North or equivalent areas does not depend on the term of the employment contract.

Citizens performing their professional duties at any enterprise have the right to receive annual paid leave under employment and fixed-term employment contracts. Failure to fulfill the employer's obligations to provide employees with leave under a fixed-term employment contract violates the current provisions of Art. 291 Labor Code of the Russian Federation.

Often, fixed-term employment contracts are concluded in the following cases:

replacing a temporarily absent employee, for example, during maternity leave or long-term sick leave;
the need to perform seasonal work, in particular, when improving the territory of the municipality, repairing roads, etc.;
liquidation of emergency situations or accidents in which the involvement of full-time employees is an insufficient measure;
need to introduce any elective position And so on.

A fixed-term employment contract can be replaced with an open-ended one if the employee and employer are interested in further cooperation.

An employment contract with an employee of an organization is recognized as fixed-term under the following circumstances:

The duration of the agreement between the employee and the employer is more than five years.
For some reason, the contract does not specify the duration of the employee’s work.
The contract was extended, i.e. extended.
The agreement was concluded without taking into account the provisions of Art. 59 Labor Code of the Russian Federation.

The procedure for calculating vacation pay when concluding a fixed-term employment contract differs slightly from the standard formula used by employers with permanent employees, but in any case, a citizen has the right to rest.

Vacation according to TC

The duration of leave when concluding a fixed-term employment contract is determined by Art. Art. 291.293, 295 of the Labor Code of the Russian Federation, as well as Letter of the Ministry of Labor dated January 1, 2002 No. 625-ВВ.

Vacation according to the Labor Code of the Russian Federation is calculated as follows:

In the case of concluding a temporary employment contract for a period of up to six months to perform seasonal work, vacation pay is calculated according to the principle of 2 working days of vacation for 1 month of work. When calculating in this way, weekends and holidays are not taken or paid on vacation days.
For execution labor activity for a period of more than two months, not related to the time of year, the calculation is based on the principle of 2.33 days of rest for each month of work, i.e. By established by law The minimum rest time for a year of work is 28 calendar days.

Every working citizen has the right to rest, however, in the case of a temporary contract, the employer can provide leave with subsequent dismissal upon expiration of the agreement. Most often, this method of dismissal is practiced after an employee has been hired for seasonal work. If the employee has been hired for more than several years, then he can apply for leave after six months of work.

Is vacation allowed on a fixed-term contract?

A fixed-term, like an open-ended employment contract, must establish the employee’s right to rest, since other provisions are established in violation of current legislation. The right to leave does not depend on the duration of the agreement between the employee and the employer, therefore both rest time and funds for it are supposed to be provided.

Types of vacations

When concluding a fixed-term employment contract, a future employee of the organization must independently familiarize himself with all the provisions. Particular attention should be paid to the rules for granting leave and the amount of compensation for it. Depending on the type of leave, the rules for its provision and payment may vary significantly.

Annual

Annual paid leave is provided to all employees of the organization with whom an employment contract has been concluded on a fixed-term or indefinite basis. The only exception to the rules for providing rest is the conclusion of a civil contract, in which the guarantees of the Labor Code of the Russian Federation do not apply to the employee. As a general rule, every working citizen must have 28 days of rest annually, which are certainly paid.

For employees on a fixed-term basis, whose duties do not exceed two months, leave is calculated on the basis of 2 working days for each month worked. The same principle applies to calculations in case of employment for any season.

Annual leave for conscripts, if their work time is more than two months and is not seasonal, is calculated according to the general rule for compiling leave.

Additional

The labor legislation of the Russian Federation does not regulate the provision of additional leave to temporary workers, which means that this type of leave is provided for common basis based on the actual time of work.

The general grounds for providing time for rest are regulated by Ch. 19 of the Labor Code of the Russian Federation, the rules and features of the provision of additional leaves are regulated by articles 116-119 of the Labor Code of the Russian Federation, while their duration is calculated in calendar days and is not limited to any established limit. The legislation establishes the minimum amount of additional rest for an employee, depending on the rights to provide it.

In the case of additional leave, employees working in the Far North are given 24 days of rest for the previous year of work. This means that when performing duties under a fixed-term employment contract, such employees will be provided with additional leave at the rate of 2 calendar days per month of work. The calculation occurs in a similar way under other circumstances, i.e. the total additional vacation time is divided by the number of months in a year and multiplied by the number of months that the employee worked in the organization.

Maternity leave

Providing maternity leave to employees with whom fixed-term employment contracts have been concluded is regulated by Art. 261 Labor Code of the Russian Federation.

Providing maternity leave to employees working on a fixed-term basis follows the general rule, with the exception of the following features:

If the contract expires during the employee’s pregnancy, the employer, if there are grounds confirming the pregnancy, is obliged to extend the contract until the birth or until the expiration of maternity leave.
When extending the agreement before childbirth, the woman is obliged to provide the employer with a certificate of pregnancy, but not more often than once every three months.
In the case of carrying out labor activities under a fixed-term contract after childbirth, the employer may terminate the employment contract based on the expiration of its validity.

Termination of labor relations with a pregnant woman is not allowed, even if a fixed-term employment contract is concluded for a certain period, with the exception of cases of liquidation of the organization.

Training

Art. 59 of the Labor Code of the Russian Federation establishes the possibility of implementing labor responsibilities full-time and part-time students of secondary specialized and higher educational institutions. The legislator specifies that students can be hired for a seasonal period or at any other time and for any period.

The rights of student workers are regulated by Art. 59 of the Labor Code of the Russian Federation, however, if the training period is completed, the rights of these employees are regulated by the general rules and guarantees established by labor legislation. Student employment is carried out on a temporary basis, usually until he graduates. educational institution, due to the need to comply with labor laws.

At the same time, the right to rest for such workers is regulated by the general rules for granting leave to conscripts, while the possibility of taking out study leave during the period of validity of a fixed-term employment contract completely depends on the employer or the collective agreement, if there is one at the enterprise.

The obligation to provide study leave to an employee working on a fixed-term basis is not legally established, therefore such provisions must be prescribed individually or discussed with the employer during employment.

Vacation under a certain type of contract

Vacation is a mandatory attribute of labor relations; it is regulated by labor legislation and is provided to each employee of the organization with whom it is concluded.

Within the framework of the Labor Code of the Russian Federation, vacation is a continuous rest for an employee from performing his duties. professional responsibilities for a certain time established by labor legislation or an agreement between an employee of the enterprise and the employer.

Vacation can be divided into several types, each of which is regulated independently and is provided depending on the current situation:

annual basic, provided once a year to an employee of an enterprise for a period of at least 28 days;
additional, which is provided depending on working conditions and is also paid by the employer;
unpaid leave provided at the request of the employee in connection with any circumstances, in particular, the occurrence of any family difficulties, etc.;
targeted leave provided by the employer at the request of the employee for a certain period due to certain purposes, for example, educational or maternity leave.

Any employed citizen has the right to leave, regardless of the duration of the employment contract. Cancellation of leave, as well as calling an employee out of it or replacing it with a compensation payment, is possible only if the employee of the organization himself expresses such a desire. At the same time, rest less established by law an employee of an organization cannot meet the minimum.

In accordance with Art. 122 of the Labor Code of the Russian Federation, the right to grant leave to an employee arises after the expiration of a six-month period of work at a specific enterprise, however, taking into account a fixed-term employment contract, the right to rest may arise as follows: general rules, and upon expiration of the agreement.

Vacation pay

In accordance with Art. 123 of the Labor Code of the Russian Federation, employees of the organization authorized by the employer draw up a vacation schedule, which must be approved no less than two weeks before the start of the new year.

The trade union body, if it is approved at the enterprise, or the employer personally, in the absence of authorized units in the organization, participates in the formation of the schedule. This document reflects all necessary information about the duration and features of vacations, which must be familiarized to each employee of the enterprise.

When establishing labor relations under a fixed-term agreement for a short period of time, the employer usually provides rest at the end of its validity, paying the employee the required payments. Vacation pay must be paid at least three days before the start of the vacation, and if these three days fall on a weekend, then before the start of the weekend.

Calculation examples

The calculation of rest time and vacation pay may differ depending on the duration of the employment contract, so to better understand the intricacies of their purpose, you need to familiarize yourself with various situations.

Situation 1

Ivanova I.I. got a job in an organization for the improvement of urban areas during the spring-summer period for a period of 4 months, according to a schedule of 6 days of work and 1 day of rest. In May she worked 28 days, in June - 27 days, in July - 26 days, in August - 28 days. Her salary was 28,345 rubles per month, taking into account the deduction of income tax.

Upon expiration of the agreement, she should receive:

2 days of rest ×4 months of work = 8 working days of rest

Due to the peculiarity of assigning leave for seasonal work, such employees are given rest time in working days, and not in calendar days.

To calculate the amount of vacation pay, you must take into account the following data:

Total period of working days for the entire duration of the agreement:

28+27+26+28=109 working days for the entire period

Total salary received:

28,345 ×4 months=113,380

Average daily earnings:

(Total salary)/(Total number of working days)=(113,380)/109≈1040 rubles per day

To calculate vacation pay, the following formula is used:

Average daily earnings ×number of rest days=1040 ×8=8 320

After the expiration of the fixed-term employment contract, Ivanova I.I. will receive 8 working days of rest and 8,320 rubles as vacation pay.

Situation 2

With Lapshina M.A. A fixed-term employment contract was concluded for a period of two years. Her salary is 53,210 rubles per month. She takes regular annual leave, which according to the law is 28 calendar days.

To calculate vacation pay, you will need the following information:

The employee's annual earnings were:

53,210 rubles × 12 months = 638,520 rubles

Average daily earnings:

(638,520 rub.)/(12 months) ÷29.3≈1816 rubles per day

29.3 is the average number of days in a month, which is established by labor legislation.

The amount of vacation pay in this case will be:

Average daily earnings ×number of rest days=1816×28=50,848 rub.

Lapshina M.A. will receive 50,848 rubles as vacation pay and 28 calendar days of rest from performing work duties.

Situation 3

Between Berdnikov A.V. and the Tsvet organization concluded a fixed-term employment contract to perform welding work in Norilsk. The contract period was 8 months from February 1, 2016. The employee's salary was 121,254 rubles per month.

Since the duration of the employment contract is more than two months, and they are not related to seasonal work, the calculation of the amount of vacation and vacation pay will occur according to standard formulas.

To determine vacation pay, you will need the following data:

Total salary for the billing period:

121,254 rubles per month × 8 months of validity of the agreement = 970,032 rubles.

Duration of labor relations in days, where 29.3 is the average monthly number of days:

29.3 ×number of months of work = 29.3 × 8 months = 234.4 days

Average daily earnings:

(Total salary)/(Average contract duration in days) = 970,032/234.4 = 4,138.4 rubles per day

Since Berdnikov worked for less than a year, the duration of his vacation will be:

(28 cal days)/(12 months)×8 months of work=18.7

Additional paid leave provided to workers in the Far North under Art. 321 of the Labor Code of the Russian Federation, is 24 calendar days.

Based on this, the following calculation can be made:

(24 cal days)/(12 months)×8 months of work=16 days of additional rest

Berdnikov will receive vacation pay for his annual main vacation:

19 (rounded) days ×4,138.4=78,629.6 rubles

Vacation pay for additional leave will be:

16 days of additional rest ×4,138.4=66,214.4 rubles

The total amount of vacation pay will be:

78,629.6+66,214.4=144,844 rub.

Labor legislation does not prohibit combining several vacations into one period or dividing them into several parts, however, in the case of a temporary employment contract, it is recommended to either go on vacation immediately before its end or receive compensation. In any case, vacation pay will be paid.

Compensation for days off work upon dismissal

Compensation payments upon dismissal can be received by all employees of the organization, regardless of the duration of the contract, therefore such provisions also apply to conscripts. Calculation procedure compensation payments is identical to the calculation of the amount of vacation pay and amounts to a similar amount.

The conclusion of a fixed-term employment contract obliges the employer to comply with the established rules for providing leave for employees of the organization. The employer's unwillingness to comply with regulations labor law- a good reason to contact Labor inspection to verify the legality of his actions.

Labor Code of Ukraine

What reasons are considered weighty for termination of an employment contract at the initiative of the owner in the event of absenteeism of an employee without good reasons?

Does the legislation provide for paid vacation for part-time workers?

Are employees entitled to additional payment for hazardous working conditions?

Is it a violation of the employee’s rights if the administration agrees to divide annual leave only if it includes weekends?

Are there currently any restrictions regarding the provision of annual leave?

Dear Olga Anatolyevna! In accordance with Article 105 of the Labor Code of the Republic of Kazakhstan ( further - Code) paid annually labor leave employee for the first and subsequent years of work by agreement of the parties provided at any time of the working year .

The working year is twelve months, calculated from the first day of work of the employee.

Moreover, according to paragraph 3 of this article, by agreement between the employee and the employer, paid annual leave may be divided into parts.

Thus, for employees, the order of provision of labor is it allowed temporary worker vacation who are not determined by the vacation schedule, annual paid leave may be granted by agreement of the parties at any time of the working year in full or for the time actually worked.

The length of service that gives the right to paid annual leave includes:

1) actual time worked;

2) the time when the employee did not actually work, but he retained his place of work (position) and salary in whole or in part;

time of forced absence due to illegal dismissal or suspension from work and subsequent reinstatement to the previous job;

the period of suspension from work of an employee who has not completed the mandatory medical checkup(examination) through no fault of one’s own;

the time of unpaid leave provided at the request of the employee, not exceeding 14 calendar days during the working year.

The length of service that gives the right to annual basic paid leave does not include:

the time the employee is absent from work without good reason, including due to his removal from work in the cases provided for in Article 76 of this Code;

time of parental leave until the child reaches the legal age;

The length of service that gives the right to annual additional paid leave for work with harmful and (or) dangerous working conditions includes only the time actually worked in the relevant conditions.

Article 122. Procedure for granting annual paid leave

Paid leave must be provided to the employee annually.

The right to use vacation for the first year of work arises for the employee after six months of his continuous operation at this employer. By agreement of the parties, paid leave may be granted to the employee before the expiration of six months.

Before the expiration of six months of continuous work, paid leave at the request of the employee must be granted:

for women - before maternity leave or immediately after it;

employees under eighteen years of age;

employees who adopted a child (children) under the age of three months;

in other cases provided for by federal laws.

Leave for the second and subsequent years of work can be granted at any time of the working year in accordance with the order of provision of annual paid leave established by a given employer.

In accordance with current legislation, a worker who has worked at an enterprise for less than 6 months has the right, on an equal basis with other employees, to receive all due payments upon dismissal. This also applies to compensation for unused vacation days. To determine the amount of payments due, the HR department needs to prepare the following information:

The total length of service of the dismissed employee at this enterprise.
The presence or absence in the current time period of time that is subject to exclusion from the work experience, which does not give the right to annual vacation days. It is determined in calendar days.
Determination of days excluded from the total length of service, but giving the right to days of annual leave.
Calculation of the total number of days of rest that the employee is entitled to in the current reporting period and has not been used by him at the moment. If employees have used vacation days in excess of those actually earned, their payment will be deducted from the calculated funds.

In Part 1 and Part 2 of Art. 121 of the Labor Code of the Russian Federation establishes the procedure and rules for calculating the length of service of a person giving the right to annual leave. According to this norm, not only the time actually worked is taken into account, but also periods when the employee was absent from the enterprise, but his position was retained. This applies to vacation days, holidays and weekends, time of forced downtime and absenteeism, as well as the time when he was on vacation. at will without repayment. In the latter case, the current legislation sets a limit on the duration of such rest - no more than 14 days during one working year.

The total amount of vacation compensation for temporary employees upon dismissal will be determined based on the number of unused rest days. According to the established procedure, for each month worked, the employee is accrued 2.33 days of vacation. In this case, the “working year” is not determined by a calendar date. According to Article 14 of the Labor Code of the Russian Federation, the countdown begins from the day of employment at the enterprise.

In addition, it must be taken into account that, unlike the calendar year, the end date of the working year may vary. This depends on the presence or absence in the current reporting period of time not included in the vacation period. According to Part 2 of Article 121 of the Labor Code of the Russian Federation, the working year is extended by the number of such days.

The procedure for calculating compensation for vacation pay upon termination of employment relations with an employee is enshrined in Rules No. 169 of April 30, 1930. About regular and additional vacations. In paragraphs 28, 29, 35 of this document it is noted that an employee working at an enterprise for 11 months has the right to receive compensation for vacation in the full annual amount. In this case, the amount cash payments will be equal to the corresponding payment for days of rest of a given duration.

In other cases, compensation is calculated in the general manner, when for each working month the employee receives 2.33 days of vacation. In this case, the period not fully worked is rounded up if the worker worked more than half of the required time.

The exception in this case are temporary workers who have entered into labor Relations for a period of less than 2 months. A different coefficient is set for them. According to Art. 291 of the Labor Code of the Russian Federation - for each month of work, such employees have 2 days of vacation. This period also applies to seasonal workers whose contract period does not exceed 6 months.

General procedure for calculating compensation

In the process of terminating an employment relationship, special attention is paid to the correctness of the final settlement. The procedure for carrying out this procedure is fixed in labor legislation and is used in all cases, regardless of the specifics of the situation. The total payment amount includes:

Wages for the last reporting period;
Compensation for unused vacation pay (collection of overpaid funds for days not worked recreation);
Additional payments.
If there are unpaid certificates of incapacity for work, the due amounts are transferred no later than 10 days after termination of the employment relationship.

Calculation of compensation for leave of a temporary employee upon dismissal is carried out in the same way as for permanent employees. Each day of vacation is paid based on the employee’s average earnings. Its size depends on the salary or tariff rate established for this position. In addition, during vacation, the employee retains all additional payments due to him. The total amount is calculated based on the average earnings of the worker for the last reporting period.

The procedure for calculating compensation is enshrined in Article 139 of the Labor Code of the Russian Federation and Regulation No. 213 of April 11, 2003. According to them, when determining the average daily earnings, the last 3 months of the employee’s work are taken into account. In accordance with the Regulations, payment for vacations and compensation for them is determined by the formula: amount of earnings for the reporting quarter/3/average monthly number of calendar days equal to 29.6 days.

Applicable to temporary workers who have entered into an employment relationship for a period of 2 months or less, the number of days of compensation is not calculated based on the standards established by the enterprise, but is always equal to 2 days of rest per month worked.

After completing the necessary calculations, it is determined total amount final settlement. It is handed to the dismissed employee after an order has been issued for the enterprise and the employee has become familiar with it. Also on the last working day he is given all Required documents, including a properly executed work book.

Features of calculating compensation in practice

In practice, the process of calculating compensation for vacation days often does not cause any particular difficulties. Let's look at the example of temporary workers who entered into an employment contract for 2 months. As noted above, such employees are accrued 2 vacation days, regardless of those accepted at the enterprise.

In accordance with current legislation, when calculating the amount of payment for annual vacation time, a 6-day period is taken into account work week. Thus, if an employee worked all the allotted time, then according to the calendar there are 42 working days for 2 months. Based on this, the amount of compensation for this period will be: salary/42 days x 4 vacation pay.

If the calculation is made in the general manner, then the duration of vacation established for a given position for a fully worked working year is taken into account. In general, it is 28 days. Therefore, when dismissing an employee who does not belong to special categories, the calculation will be made in the general manner.

It is also necessary to pay attention to the rules for rounding work hours. If an employee worked less than 14 days in the current working month, then it is rounded down, if 15 or more, then it is rounded up. Thus, it turns out that if an employee quits after 7 months and 8 days, then when calculating vacation pay, the number of rest days will be calculated for 7 full months. If this period is 7 months and 16 days, then the calculation is made for 8 working months.

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