Some nuances of social vacations in questions and answers 31/07/2018
The existing labour legislation guarantees the right to leave. Leave is an inalienable right of an employee and is enshrined in 45 article of the Constitution of Ukraine, and under certain circumstances the legislation requires granting of additional vacations. Article 4 of the Law of Ukraine "on holidays" sets out the types of leave, one of which is the social leave stipulated by clause 4 of this article-an additional leave for employees with children or an adult child-disabled from the childhood of subgroup a I group (article 19 of the Law). After repeated appeals of personnel services of subjects of management to legally security enterprise "Felix" on questions connected with this kind of additional vacations, for reception of official position of the state bodies, Juridical-security Company "Felix" appealed to the State Labour Service (Gostrada) with the following questions:
- Clarify the procedure for granting additional social leave to employees with children (article 19 of the Law of Ukraine "on holidays"), including the given leave is granted to all mothers with 2 children under 15 years of age or only Lonely mothers?
- Clarify the definition of "single mother", what is the normative legal document defined by the term and what key criteria form the specified concept
- Explain what documents a single mother should provide for additional social leave?
- Explain what kind of documents a female employee must provide for social leave due to the presence of 2 children under 15 years of age?
- Explain how the employer should be informed about the presence of 2 children under the age of 15, according to article 25 of the Ukrainian Labor Code, it is forbidden to demand from the persons entering the work documents, the presentation of which is not Provided by law.
- Explain how to verify the information in paragraph 10 personal card of the employee № P-2 on the availability of children under 15 years? How should this section of the personal card be amended in case of deprivation of parental rights of the mother or death of the child?
- To clarify, monetary compensation should be paid for unused additional social leave to employees with children (article 19 of the Law of Ukraine "on holidays"), if the employee who has the right to social leave, has not applied for a year before What are the applications or requests for the holiday? Is such monetary compensation payable in the event of the dismissal of such an employee for the unused leave?
- To clarify if the employee entitled to social leave has applied for the specified additional vacation in 2015, and in 2016 the application was not applied at the fact that at the end of 2016 on this employee children have not reached the age of 15 years, then Should the employer pay the employee compensation for the unused leave? And in case of dismissal of such employee?
- Clarify whether the employer's violation of the employee's right to the specified social additional leave in the event of dismissal of such employee without payment of monetary compensation for unused leave, if the employee has never addressed and requested the employer to provide the said leave?
The letter from the 14.11.2016 of the year № 11273/1/4.1-DP-16 Gostrada expressed her position on these issues.
- Article 19 of the Law of Ukraine "on holidays" stipulates that a woman who works and has two or more children under 15 years of age or a disabled child, or who has adopted a child, the mother disabled from the childhood of subgroup A and group, single mother, father Child or disabled from the childhood subgroups of the Ai Group, educates them without the mother (including in the case of prolonged stay of the mother in the hospital), as well as the person who has adopted the child in custody or disabled from childhood subgroups A and group, or one of the adoptive Parents are granted annual additional paid leave of 10 calendar days without taking into account holidays and non-working days. Thus, a woman who works is entitled to such leave with two or more children under 15 years of age, regardless of other circumstances.
- A single mother is a woman who is not married and in the birth certificate of a child who has no record of the father of the child or a record of the father is made in the prescribed manner at the direction of the mother (article 18-1 of the Law of Ukraine "on state Assistance to families with children ").
- Article 18-2 of the Law of Ukraine "on State assistance to families with children" defines a list of documents proving that a woman is a mother;
- Extract from the State Register of civil status of citizens on State registration of birth of a child, issued by the Department of State Registration of civil status, indicating the basis for the introduction of information about the father of the child in The birth record of the child in accordance with the first paragraph of article 135 of the Family Code of Ukraine,
- Certificate of birth issued by the Executive Body of rural, township, Urban (except for the cities of regional significance) of the Council, indicating the basis for the introduction of information about the father of the child in the statement of birth of the child in accordance with the paragraph first Part 1 of article 135 of the Family Code of Ukraine,
- A birth document issued by the competent authority of a foreign State in which there is no information about the father-subject to the legalization of this document in accordance with the procedure established by law.
- To confirm the presence of two or more children, a woman must provide birth certificates at the place of work.
- The employer is not entitled to require the employee to be informed of the presence or absence of children. In the case of a woman receiving the said leave, she must confirm her right to such leave by providing the relevant documents.
- Confirmation of the presence of two or more children is a certificate of their birth. According to article 24 of the Law of Ukraine "on holidays" in the case of dismissal of the employee, he is paid monetary compensation for all unused days of annual leave, as well as additional leave for employees with children or an adult child- Disabled has been a subgroup of Ai Group since childhood.
- Article 2 of the Law of Ukraine "on holidays" stipulates that the right to leave is ensured by guaranteed granting of leave of a certain duration with the preservation of the place of work (position), salary (assistance) in cases, Provided by this law and the prohibition of replacement of leave with monetary compensation, except for cases stipulated by article 24 of this Law. Thus, payment of compensation is possible only in case of dismissal of the employee from work.
- Violation of the labour legislation is a failure to provide the employee with leave provided that the employee has confirmed his right to this leave and has applied for the receipt of such leave. The absence of information from the employer on the employee's entitlement to leave is not a reason for refusing to grant such leave or compensation, provided that the employee provides the documents proving his right. Reply Gosstrada Lawyer of the "Felix" Mezhyeritsky A.A.