Termination of a fixed-term employment contract at the initiative of the employee. Procedure for terminating a fixed-term employment contract
The dismissal of your employee will be legal if, when terminating a fixed-term employment contract with him, you follow three rules:
Step 1. Determine the grounds for dismissal
Many employers believe that the only basis for terminating a fixed-term employment contract is its expiration (). However, the law allows it to be terminated early and for other reasons. It is important on what basis you terminate or terminate a fixed-term employment contract with an employee. The procedure for completing your personnel documents depends on the grounds for dismissal. First of all, let’s look at the difference between the concepts of “termination” and “termination” of an employment contract (see diagram). The Labor Code combines these concepts into one - “termination of an employment contract”. However, there are differences between them: to terminate an employment contract, a volitional sign is important (the initiative of one of the parties, its request, its consent), while termination occurs as a result of negotiations (agreements) or reasons (events) independent of the wishes of the parties.
Step 2. Follow the dismissal procedure
As already said, the procedure for dismissal depends on the grounds. Let's look at the most common grounds for dismissal.
As a general rule, a fixed-term employment contract is terminated due to the expiration of its term ( ). Be sure to notify your employee about this in writing at least three calendar days before the date of termination of the contract ( ). Such notification should not be considered a formality: if neither party requests termination of the employment contract and the employee continues to work, the contract will be considered concluded for an indefinite period ( ). The form for notifying an employee of the termination of a fixed-term employment contract is not established by law, so it can be drawn up, for example, as shown in sample
Notice of termination of a fixed-term employment contract. Sample
An employment contract may be terminated early at the initiative of the employer in the cases specified in Labor Code. You must notify the employee of your decision in writing.
For example, notify each employee personally about the termination of the employment contract due to the liquidation of the organization, against signature, at least two months before dismissal (). At the same time, employees who have entered into an employment contract for a period of up to two months must be notified of the upcoming dismissal at least three calendar days (), and seasonal workers - at least seven calendar days ().
An employee has the right to terminate an employment contract with an employer before its expiration on his own initiative ( ). To do this, he must submit a resignation letter to the employer (see. sample ) in compliance with the deadlines established by law (see. table).
Deadlines for an employee to submit a resignation letter of his own free will
Statement. Sample
According to Labor Code, an employment contract (including a fixed-term one) can be terminated at any time by agreement of the parties (see. diagram ). When terminating a fixed-term employment contract by agreement of the parties, the parties sign a corresponding agreement (see. sample ).
Agreement to terminate a fixed-term employment contract. Sample
Step 3. Issue a dismissal order
Termination of a fixed-term employment contract is formalized by order of the employer (). The employee must be familiarized with the order to terminate the employment contract against signature. It is drawn up in accordance with the unified form No. T-8.
Step 4. Make an entry in the work book
As a rule, upon dismissal, an entry is made in the employee’s work book with reference to the grounds specified in the Labor Code.
It is important to remember that the entry in the labor contract upon termination of a fixed-term employment contract with certain categories of workers may have a reference to other norms of the Labor Code. Thus, the employment contract with a scientific and pedagogical worker is terminated due to the expiration of the period for election by competition under paragraph 4 of part one of Article 336 of the Labor Code (see sample). And if the employee is not elected to the position, the employment contract with him should be terminated in accordance with paragraph 3 of part one of Article 83 of the Labor Code. If it turns out that the employee submitted a false education document during employment, the employment contract with him will be terminated early under paragraph 11 of part one of Article 81 of the Labor Code.
Information about the work. Sample
Related documents
Fixing the error
Error
Many employers agree to pay their employees who worked for them under a fixed-term employment contract and fell ill within 30 days after dismissal, temporary disability benefits only for 75 days of their illness, referring to Article 6 of Law No. 255-FZ. They fear that the Russian Social Insurance Fund will not accept the amounts paid to these workers as offset.
How to do it right
Such employees must be paid for all days of their illness (Part 2 of Article 5 of Law No. 255-FZ). Article 6 of Law No. 255-FZ refers to employees who work under a fixed-term employment contract concluded for a period of up to six months and fell ill during work, and not about all employees under a fixed-term employment contract, and especially not about those who fell ill after dismissal .
What happens if…
As a result of the State Labor Inspectorate check, the employer will be required to provide the employee with benefits for days of illness and pay a fine of up to 50,000 rubles (). If the employer assigns benefits to the resigned employee, and the Federal Social Insurance Fund of Russia does not accept the paid amounts as offset, the employer will be able to successfully claim them through the court. The FSS of Russia did not reimburse such expenses before the adoption of Law No. 255-FZ, and not after (Resolution of the FAS of the North-Western District of November 28, 2005 No. A56-13502/05).
Remember the main thing
Note the experts who took part in the preparation of the material:
Evgenia SIMAKOVA, lawyer, expert at the Personnel Business magazine:
– An employment contract can be terminated both due to the expiration of its validity period and on other grounds provided for by law. The procedure for processing documents when terminating an employment relationship with him depends on the grounds for dismissal of an employee.
Alena LACHUGINA, document specialist at the municipal educational institution of additional education for children “Station of Young Technicians” (Biysk):
– Termination of a fixed-term employment contract by agreement of the parties allows the employee and the employer to agree on its terms: for example, payment of monetary compensation to the employee and the period for termination of the employment relationship.
Yulia SAFINA, lawyer of the Yurkonsul Group of Companies (Moscow):
– The employee must be notified in writing of the termination of the employment contract due to its expiration at least three calendar days in advance. If neither party has requested termination of a fixed-term employment contract due to the expiration of its validity period, it is recognized as indefinite.
Galina MEREZHKINA, payroll accountant, Municipal Unitary Enterprise "Krasnoyarsk Housing and Communal Services" (urban settlement "Krasny Yar", Volgograd region):
): act of refusal of an employee to sign for receipt of notice, bypass sheet, order of dismissal
In the electronic version of the article you will find an additional sample: an order to terminate a fixed-term employment contract due to the expiration of its term
_________________________
Depends on the grounds for dismissal. If the contract is terminated by the employer, notify the employee of the termination of the employment contract. If the contract is terminated by agreement of the parties, sign an agreement with the employee regarding this. If the contract is terminated at the initiative of the employee, obtain a corresponding statement from him.
_________________________When deciding to hire an employee for a certain period of time, you need to take into account that termination of a fixed-term employment contract for such an employee, depending on the circumstances and the grounds for dismissal, may differ from the general rules.
Legality of concluding a fixed-term employment contract
When deciding whether to dismiss a temporary employee, the first thing you need to check is the legality of the term of his employment contract. The term of the contract must be fixed in it, otherwise de jure the contract will be considered unlimited (Part 3 of Article 58 of the Labor Code of the Russian Federation). In this case, it will be possible to terminate it only on the general grounds of the Labor Code of the Russian Federation for fixed-term contracts (Chapter 13 of the Labor Code of the Russian Federation).
Termination of a fixed-term employment contract after the expiration of the term is possible on the basis of a special reason recorded in clause 2, part 1, art. 77 Labor Code of the Russian Federation and Art. 79 of the Labor Code of the Russian Federation, according to a special procedure.
However, this does not eliminate the possibility of dismissing a temporary employee for other reasons. Let us first consider the general grounds.
Termination of a fixed-term employment contract at the initiative of the employee
Such a case is possible only if the temporary worker wishes, expressed in a written application addressed to the manager (Article 80 of the Labor Code of the Russian Federation). Dismissal is possible both after the two-week work period established in the Labor Code of the Russian Federation, and by agreement between the employee and the employer on any day. If an employee changes his mind about resigning and withdraws his application, he cannot be fired (only if another employee is not invited to take his place by way of transfer - part 4 of article 80 of the Labor Code of the Russian Federation, part 4 of article 64 of the Labor Code of the Russian Federation).
Termination of a fixed-term employment contract at the initiative of the employer
A temporary employee can be dismissed by decision of the company management according to the same rules and grounds (Article 81 of the Labor Code of the Russian Federation) as an employee with an open-ended contract. This type of dismissal is most often challenged in the courts. In addition, dismissed workers contact the labor inspectorate and the prosecutor's office. The company must be prepared to prove the legality of the dismissal.
So, for example, if an employee does not perform his functions, is late for work or appears at the workplace drunk, it is important to correctly record these violations (see Chapter 30 of the Labor Code of the Russian Federation).
Termination of a fixed-term employment contract by agreement of the parties
By agreement of the parties, the temporary contract can be terminated at any time before the day of dismissal; it is enough to draw up the document in writing.
Termination of a fixed-term employment contract upon expiration of the term
When the expiration date of a temporary contract approaches, it is necessary to prepare a notice of its termination on time and correctly. Otherwise, the company bears the risk of recognizing the contract as concluded for an indefinite period. This will happen if none of the parties to the temporary contract requests its termination when the end of the employment relationship arrives. It is enough for the employee to continue his usual work - the contract will be considered permanent (Part 4 of Article 58 of the Labor Code of the Russian Federation).
Determining the notice period for terminating a fixed-term employment contract is simple. In the vast majority of cases, the employee must be notified 3 days in advance (in writing), with the exception of cases where the contract was concluded for the period of performance of the functions of the absent employee (Part 1 of Article 79 of the Labor Code of the Russian Federation), such a contract is terminated when the permanent employee returns to work (Part 3 of Article 79 of the Labor Code of the Russian Federation).
A temporary contract concluded for the performance of pre-fixed work is terminated if such work is completed (Part 2 of Article 79 of the Labor Code of the Russian Federation), a similar rule applies to seasonal work (Part 4 of Article 79 of the Labor Code of the Russian Federation).
The signatory of the notice of termination of a fixed-term employment contract is either the head of the organization or an employee authorized by him (usually a human resources employee). If the wrong signatory is listed, the court may rule the notice illegal and reinstate the temporary employee.
By analogy with an employment contract, the notice is drawn up and signed in two copies: one for the employer, the other for the employee. To minimize the risks of further legal disputes, we recommend obtaining the employee’s signature on the employer’s copy of the second copy.
The fact of termination of a temporary contract is formalized by an order, which the employee familiarizes himself with under signature.
Features of terminating a fixed-term employment contract with a pregnant woman
Terminating a fixed-term employment contract with a pregnant woman has some nuances. The general rule is this: a temporary employment contract must be extended until the end of the pregnancy, and if the employee takes maternity leave, until its end (Part 2 of Article 261 of the Labor Code of the Russian Federation).
The following conditions apply:
- a woman must confirm her pregnancy with a medical certificate;
- the woman must submit a written application to extend the contract;
- if the contract period was extended until the end of pregnancy, the woman must, at the request of the employer (we recommend making it in writing), reconfirm the fact of pregnancy every three months;
- the employer has only a week from the day he learned (should have known) about the end of the pregnancy to dismiss the employee (if she actually continues to work after the end of the pregnancy);
- If a woman goes on maternity leave after giving birth, dismissal will be possible on the day the leave ends.
If a pregnant woman was hired on maternity leave (the rate of a temporarily absent employee), then she can be fired if the replacement employee returns to work under one condition (Part 3 of Article 261 of the Labor Code of the Russian Federation): the pregnant temporary employee does not agree to move to the offered vacancies. At the same time, the organization is obliged to offer all vacancies that correspond to the qualifications of the employee and her state of health (higher paid or lower paid work).
Calculation upon termination of a fixed-term employment contract
And lastly, a temporary employee on his last working day (Part 1 of Article 140 of the Labor Code of the Russian Federation) must receive all standard payments upon termination of a fixed-term employment contract (salary, compensation for unused vacation, etc.).
Termination of a fixed-term employment contract
The expansion of the scope of application of fixed-term employment contracts is caused by objective reasons for economic development. The rules for regulating the conclusion, amendment and termination of fixed-term employment contracts are contained in a variety of sections and chapters of the current Labor Code. However, in practical application they often fall out of sight of those to whom they are addressed. The author of the article conducted a study of innovations in labor legislation, and also highlighted the gaps and contradictions regarding the regulation of termination of fixed-term employment contracts.
Range of problems considered
Labor legislation has not yet developed a single term to designate the simultaneous conclusion, modification, suspension and termination of an employment contract. Therefore, it was necessary to use the term “action of an employment contract” as a working term, although one cannot but agree that more successful terminology is certainly possible.
The problems of concluding fixed-term employment contracts are raised quite regularly in the legal literature, and changes and suspensions of fixed-term employment contracts in general do not differ from changes and suspensions of contracts with an indefinite period, therefore, it makes sense to focus on the problems associated with the termination of fixed-term employment contracts. It is worth noting that changing such a condition of a fixed-term employment contract as its term also fits within the framework of the stated topic.
A fixed-term employment contract, as a rule, ends due to the expiration of the period agreed upon when it was concluded.
In Part 2 of Art. 79 of the Labor Code of the Russian Federation provides that an employment contract concluded for the duration of certain work is terminated upon completion of this work. Part 3 Art. 79 of the Labor Code of the Russian Federation establishes that an employment contract concluded for the duration of the duties of a temporarily absent employee is terminated when this employee returns to work. In Part 4 of Art. 79 of the Labor Code of the Russian Federation states that an employment contract concluded to perform seasonal work during a certain period (season) is terminated at the end of this period (season).
However, modern labor legislation provides for other options. Early termination and early termination of such a contract is possible. In the first case, this happens regardless of the will of the parties to the employment contract, in the second case, by the will of one of the participants or by their agreement. It is possible to transform (or, if you like, “transform”) fixed-term employment contracts into contracts with an indefinite duration.
The Labor Code of the Russian Federation clearly interprets the concept of extending a fixed-term employment contract precisely as an extension of the term of the existing employment contract (Articles 261, 332 of the Labor Code of the Russian Federation). Finally, part 1 of Art. 338 of the Labor Code of the Russian Federation, in relation to employees sent to work in representative offices of the Russian Federation abroad, provides for the re-conclusion of an employment contract for a new term.
Termination of an employment contract due to expiration
The expiration of the employment contract is a special reason for its termination. In the scientific literature, considerations have been expressed that the expiration of the employment contract should be considered as grounds for dismissal that do not depend on the will of the parties. Other authors, on the contrary, argue that the basis for termination of a fixed-term employment contract is the agreement of its parties. However, the legislator is firmly in the position of highlighting the expiration of the employment contract as a special basis for its termination. Moreover, in the event of termination of a fixed-term employment contract, the parties are provided with special guarantees for the protection of their rights and legitimate interests. Such special guarantees include special terms:
Written warning about termination of the employment contract;
Features of exercising the right to annual paid leave;
Possibility of replacing a fixed-term employment contract with an indefinite-term contract, etc.
The procedure for terminating an employment contract due to the expiration of its term is provided for in Art. 79 of the Labor Code of the Russian Federation, which has undergone some changes in connection with the adoption of Federal Law No. 90-FZ of June 30, 2006. Leaving aside the disputes of labor law theorists about whether the legislator did the right thing by changing the title of the article from “termination of a fixed-term employment contract” to “termination of a fixed-term employment contract,” let us dwell on the most significant innovation for us.
From judicial practice. By the ruling of the judicial panel, the decision of the Kholm City Court in the case of R.’s claim against LLC “A” was overturned. In denying R.'s claim, the court referred to the fact that the employment relationship with her could not be established for an indefinite period, taking into account the nature of the work ahead and the conditions for its implementation, since the LLC and its branch operated on the basis of a small canning shop rented under a contract dated November 1, 1997, which has expired. After the expiration of the contract, R., accepted as a fish processor, was fired. However, the court made this conclusion without properly checking the factual circumstances of the case. The court did not take into account the fact that neither when concluding the contract nor in the order to hire R. the term of her work was connected with the rental period of the canning shop. There is no data in the case confirming the expiration of this contract on the day of the plaintiff’s dismissal.
Time limits for warning an employee about upcoming dismissal
Now, the employer’s obligation to notify the employee about the termination of a fixed-term employment contract (in writing at least three calendar days before dismissal) is adjusted as follows: “except for cases where a fixed-term employment contract concluded for the duration of the duties of the absent employee expires.” In these cases, the employer is relieved of the obligation to provide a written warning. Logically, this is how it should be, but the absence of this exception in the previous version gave rise to different interpretations of this norm and could lead to labor disputes. To avoid conflict situations, it is advisable for personnel services to strictly comply with the requirements of Part 1 of Art. 79 Labor Code of the Russian Federation.
K. filed a lawsuit against the company for reinstatement at work, citing the fact that he was fired illegally at the end of the contract. The Oktyabrsky District Court, resolving the dispute, came to the conclusion that the employer had no legal grounds for terminating the employment contract with the plaintiff, for the following reasons.
K. was hired for a certain period due to the fact that the work performed by the organization required an annual license, and employees involved in the security of facilities were hired for the period of validity of the license. These actions of the employer complied with the requirements of the law. At the same time, during the period of validity of the fixed-term employment contract, the plaintiff was, with his consent, transferred to another position without limiting the period of transfer, and the court regarded this transfer as the basis for classifying the fixed-term employment contract concluded with K. as contracts continued for an indefinite period.
It seems that this position of the court is erroneous and is not based on the evidence presented and the requirements of the substantive law, because regardless of the position held, the employment contract was of a fixed-term nature, and the parties did not make changes to the employment contract regarding the term.
In addition, in similar situations, it should be taken into account that the employment contract is concluded precisely when the employee is hired, and it is at this stage of the legal relations of the parties that its terms are negotiated. Subsequently, according to Art. 9 of the Labor Code of the Russian Federation, the regulation of labor relations can be carried out by the parties by changes and additions in writing to the employment contract they have already concluded.
It should be noted that before the adoption of the Labor Code of the Russian Federation in 2001, a mechanism for terminating a fixed-term employment contract, including the rule on written warning of dismissal, was not provided for in Russian labor legislation. This explains some of the imperfection of legal formulations. Without a clear definition of the legal consequences of non-compliance with this norm, this norm loses all meaning. This has been rightly pointed out by many experts in the field of labor law. The authors of the collective monograph “Course of Russian Labor Law. Vol. 3. Labor Contract” adhere to the most radical point of view on this issue. Their position is formulated as follows: “Obviously, in cases where notice of dismissal is given less than three days or is not given at all, the employee has the right to challenge the order of dismissal, and the court, if there are no grounds for reinstating the employee at work, should accordingly change the date of dismissal, and the period for which the employment contract is extended due to the postponement of the dismissal date is subject to payment in the amount of average earnings." It seems that this is exactly how the text of Art. 79 Labor Code of the Russian Federation.
So, Art. 79 of the Labor Code of the Russian Federation contains a general rule on the notice period for dismissal upon expiration of the employment contract. This period must be at least three calendar days. Therefore, any reasonable notice period exceeding three calendar days is determined by the employer himself. A warning about the dismissal of an employee hired to perform the duties of an absent employee (for example, on parental leave until the child reaches the age of three) is not provided for by law. However, how to warn an employee hired for the duration of a clearly defined job, when its completion cannot be determined by a specific date, is not specifically discussed. Apparently, according to the legislator, in this case the general rule should apply in writing to the employee at least three calendar days before dismissal. It is unlikely that such a norm seems fair to the employer, although from the employee’s point of view it is the general norm that should apply.
Some doubts arise regarding the interpretation of Part 2 of Art. 307 of the Labor Code of the Russian Federation, which regulates the procedure for terminating an employment contract with an employee working for an employer - an individual. Part 2 of this article establishes: “The notice period for dismissal, as well as the cases and amounts of severance pay and other compensation payments paid upon termination of an employment contract, are determined by the employment contract.”
It would seem that it follows from this that the employment contract may provide for other notice periods regarding the dismissal of the employee upon expiration of the employment contract. However, two circumstances are confusing.
Firstly, part 1 of Art. 307 of the Labor Code of the Russian Federation states that “in addition to the grounds provided for by this Code, an employment contract with an employee working for an employer - an individual, may be terminated on the grounds provided for in the employment contract. Hence the conclusion is drawn that the notice period for dismissal, cases and the amounts of severance pay and other compensation payments established by agreement of the parties (employment contract) relate only to the grounds for dismissal provided for by the employment contract."
Secondly, Art. 347 of the Labor Code of the Russian Federation, which regulates the termination of an employment contract with an employee of a religious organization, contains similar rules, but the wording of this article clearly excludes double interpretation. Part 1 art. 347 of the Labor Code of the Russian Federation establishes that “in addition to the grounds provided for by this Code, an employment contract with an employee of a religious organization may be terminated on the grounds provided for in the employment contract.” But here is Part 2 of Art. 347 contains the following wording: “the period of warning to an employee of a religious organization about dismissal on the grounds provided for in the employment contract, as well as the procedure and conditions for providing said employees with guarantees and compensation associated with such dismissal, are determined by the employment contract.”
Apparently, the will of the legislator in both cases - both in relation to employees employed in employer organizations - individuals, and in relation to employees of religious organizations - was aimed at achieving the same goal, that is, expanding the boundaries of contractual regulation upon termination of an employment contract taking into account the specifics of these categories of employers. If this is so, then the wording of Art. 307 of the Labor Code of the Russian Federation should be brought into line with the wording of Art. 347 of the said Code. If the legislator was nevertheless guided by different approaches, then in relation to Art. 307 of the Labor Code of the Russian Federation, clearer wording must be used.
Warning form
As already noted, the employee is warned in writing. This is the requirement of Part 1 of Art. 79 of the Labor Code of the Russian Federation, however, the form of such a document is not established by law. From time to time, a discussion arises among labor lawyers: which in this case is preferable - a written notice of impending dismissal indicating the deadline or an order from the manager to terminate the employment contract indicating a specific date. I believe that both are acceptable. It all depends on the characteristics of the employee, employer or other factors influencing the differentiation of the legal regulation of their labor. For example, when a university teacher’s employment contract expires, he is usually offered to take part in a competition to fill the same position that he occupies in accordance with the expiring employment contract. We will consider the question of the legality of such an action further; in this case, something else is important: such a proposal is hardly appropriate in the text of the dismissal order. It is clear that in such a situation the employee will usually receive notice of termination. But if, for example, the fixed-term employment contract of an employee sent by the employment service to public works expires, issuing a dismissal order is sufficient. So, the choice of one or another written form of notice of dismissal due to the expiration of a fixed-term employment contract should be determined by the employer himself.
Offering an employee another job
The employer is obliged to make such an offer only in relation to one category of employees - pregnant women, whose employment contract was concluded for the duration of the duties of the absent employee and expires during their pregnancy. This obligation of the employer and the procedure for its implementation are provided for in Part 3 of Art. 261 Labor Code of the Russian Federation. According to the requirements of the law, “a woman may be dismissed due to the expiration of her employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of the absent employee, and it is impossible, with the written consent of the woman, to transfer her to another job available to the employer before the end of her pregnancy (as a vacant position or work that meets the qualifications of a woman, as well as a vacant lower position or lower paid work) that a woman can perform taking into account her state of health. In this case, the employer is obliged to offer her all vacancies that meet the specified requirements that he has in the given locality. Offer vacancies in other localities, the employer is obliged if this is provided for by the collective agreement, agreements, or employment contract."
Obviously, if the woman agrees to the transfer, a new employment contract is not concluded, but by concluding an additional agreement in the old fixed-term employment contract, some of its conditions are changed (about the labor function, place of work, term of the employment contract).
The right to leave upon dismissal due to the expiration of the employment contract
As practice shows, usually both employees and employers do not take into account that employees whose employment contract period is less than six months also have the right to annual paid leave or compensation for it. In accordance with Art. 291 of the Labor Code of the Russian Federation, employees who have entered into an employment contract for a period of up to two months are provided with paid leave or compensation upon dismissal at the rate of two working days per month of work. According to Art. 295 of the Labor Code of the Russian Federation, employees engaged in seasonal work are provided with paid leave at the rate of two working days for each month of work.
It is not clear how to provide paid leave or compensation for it if the term of the employment contract is more than two and less than six months, but the work is not seasonal. If the term of the employment contract is six months or more, then the length of service is sufficient to provide annual paid leave. If the term of the employment contract is less than two months, the norm of Art. 291 Labor Code of the Russian Federation. Rule Art. 295 of the Labor Code of the Russian Federation applies only to seasonal work. Seasonal work in accordance with Part 1 of Art. 293 of the Labor Code of the Russian Federation “recognizes work that, due to climatic and other natural conditions, is carried out during a certain period (season), not exceeding, as a rule, six months.” Apparently, the legislator will have to eliminate the existing gap in the law. Until this time, this problem can be solved by introducing appropriate provisions into collective bargaining agreements, local regulations or employment contracts.
The procedure for exercising the right to paid leave upon dismissal of an employee is provided for in Art. 127 Labor Code of the Russian Federation. According to this article, upon dismissal, the employee is paid monetary compensation for all unused vacations. Upon written request from the employee, unused vacations may be granted to him with subsequent dismissal (except for cases of dismissal for guilty actions). In this case, the day of dismissal is considered the last day of vacation. Upon dismissal due to the expiration of the employment contract, leave with subsequent dismissal may be granted even when the vacation time completely or partially extends beyond the term of this contract. In this case, the day of dismissal is also considered the last day of vacation.
Extension of a fixed-term employment contract
The employer's obligation to renew a fixed-term employment contract is provided for by law only in certain cases.
In the first case, we are talking about the expiration of the employment contract during the woman’s pregnancy, unless her employment contract was concluded for the duration of the duties of a temporarily absent employee. In accordance with Part 2 of Art. 261 of the Labor Code of the Russian Federation, “in the event of expiration of a fixed-term employment contract during a woman’s pregnancy, the employer is obliged, upon her written application and upon provision of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract until the end of pregnancy. The woman whose employment contract was extended until the end of pregnancy, is obliged, at the request of the employer, but no more than once every three months, to provide a medical certificate confirming the state of pregnancy.If the woman actually continues to work after the end of pregnancy, then the employer has the right to terminate the employment contract with her due to the expiration its validity period within a week from the day the employer learned or should have learned about the end of the pregnancy.”
So, extension of a fixed-term employment contract for a pregnant woman is possible only if the following conditions are met:
The fixed-term employment contract was not concluded for the duration of the duties of the absent employee;
A written application from the woman with a request to extend the term of the employment contract is required;
A medical certificate confirming the pregnancy status must be provided.
“Extension of a fixed-term employment contract” means that a new fixed-term employment contract is not concluded, and in the original text of the fixed-term employment contract, the condition on its validity period is changed by concluding an additional agreement. In this case, the norm of Art. 72 of the Labor Code of the Russian Federation: “A change in the terms of an employment contract determined by the parties, including transfer to another job, is permitted only by agreement of the parties to the employment contract, except for cases provided for by this Code. An agreement to change the terms of an employment contract determined by the parties is concluded in writing.”
The second case is provided for in Part 8 of Art. 332 of the Labor Code of the Russian Federation, which regulates the specifics of concluding and terminating an employment contract with employees of higher educational institutions. When an employee is elected through a competition to fill the position of a scientific and pedagogical worker previously occupied by him under a fixed-term employment contract, a new employment contract may not be concluded. In this case, the validity of the fixed-term employment contract with the employee is extended by agreement of the parties, concluded in writing, for a certain period of not more than five years or for an indefinite period.
In relation to rectors, vice-rectors and heads of branches (institutes) of higher educational institutions, the same art. 332 of the Labor Code of the Russian Federation for some reason contains a different construction - “extension of tenure”. Part 13 Art. 332 of the Labor Code of the Russian Federation states: “Upon the recommendation of the academic council of a state or municipal higher educational institution, the founder has the right to extend the term of the rector in his position until he reaches the age of seventy years.” In Part 15 of Art. 332 of the Labor Code of the Russian Federation states that “upon the recommendation of the academic council of a state or municipal higher educational institution, the rector has the right to extend the term of office of vice-rector, head of a branch (institute) until they reach the age of seventy years.”
Apparently, extending the term of an employment contract and extending the tenure of a position are not the same thing. “Extension of tenure” can act both as an extension of the term of a previously concluded employment contract, and as its re-conclusion.
Note. From the review of the Arkhangelsk Regional Court
K. was dismissed from the position of boiler room operator under Art. 79 of the Labor Code of the Russian Federation at the end of the heating season. The Mezensky District Court, correctly reinstating the plaintiff at work, indicated the following. The plaintiff was hired for the heating season. According to Part 1 of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract can be concluded for the duration of seasonal work, however, according to Art. 293 of the Labor Code of the Russian Federation, seasonal work is recognized as work that, due to climatic and other natural conditions, is carried out during a certain period (season) not exceeding 6 months. The heating season in the Far North, as can be seen from the evidence presented to the court, lasts 9 months. a year or more. Under such circumstances, the employer did not have sufficient grounds to conclude a fixed-term employment contract with the plaintiff and, as a result, there were no legal grounds for terminating it under Art. 79 Labor Code of the Russian Federation.
As emphasized in the review of judicial practice, the circumstances to be proven on this basis for dismissal include not only those circumstances that are associated with the expiration of the employment contract, but also those that confirm the legality and validity of concluding a fixed-term employment contract, since according to Art. Art. 58, 59 of the Labor Code of the Russian Federation, an employment contract for a certain period can be concluded only if there are sufficient grounds for this, and if the employment contract itself does not stipulate the duration of its validity, it is considered concluded for an indefinite period.
Renewal of a fixed-term employment contract
In this case, we are talking about concluding a new fixed-term employment contract after the expiration of the previous one.
Before the adoption of Federal Law No. 90-FZ of June 30, 2006, the Labor Code of the Russian Federation did not really provide for such a structure. Paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” contained the following provision: “When it is established during the trial that the fact of multiple conclusions of fixed-term employment contracts for a short period to perform the same labor function, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period.”
In the new edition of the said Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2, this provision is reproduced without changes. However, it is worth keeping in mind that the Plenum of the Supreme Court of the Russian Federation refers only to cases of concluding fixed-term employment contracts for a short period to perform the same labor function, and a fixed-term employment contract can be recognized as concluded for an indefinite period only by a court.
As already mentioned above, the possibility of re-concluding a fixed-term employment contract is provided for in Part 1 of Art. 338 of the Labor Code of the Russian Federation: “An employment contract for a period of up to 3 years is concluded with an employee sent to work at a representative office of the Russian Federation abroad. At the end of the specified period, the employment contract can be renewed for a new term.”
Transformation of a fixed-term employment contract into a contract with an indefinite duration
Part 4 art. 58 of the Labor Code of the Russian Federation provides that “in the case when neither party requested termination of a fixed-term employment contract due to its expiration and the employee continues to work after the expiration of the employment contract, the condition on the fixed-term nature of the employment contract loses its force, and The employment contract is considered concluded for an indefinite period." In Russian labor law, this rule has existed for a long time, but is practically not in effect. Even if the employer makes a mistake and the employee wants to take advantage of it, most likely the employee will have to defend his right in court.
In fact, such transformations of fixed-term employment contracts into contracts with an indefinite period under Russian labor legislation are possible not only upon termination of a fixed-term employment contract, but also during the period of its validity. Part 5 Art. 58 of the Labor Code of the Russian Federation establishes that “an employment contract concluded for a certain period in the absence of sufficient grounds established by the court is considered concluded for an indefinite period.” “Sufficient” grounds for concluding a fixed-term employment contract, as is known, are listed in Art. 59 Labor Code of the Russian Federation.
That is, on the specified grounds, the parties can enter into both a fixed-term contract and an agreement with an indefinite period.
The principles that guided the legislator when distinguishing these two groups of grounds are set out in Part 2 of Art. 58 Labor Code of the Russian Federation. A fixed-term employment contract is concluded in the case where the employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation, or more precisely in the cases provided for in Part 1 of Art. 59 Labor Code of the Russian Federation. In cases provided for in Part 2 of Art. 59 of the Labor Code of the Russian Federation, it is possible for the parties to agree when drawing up a fixed-term employment contract without taking into account the nature of the work to be done and the conditions for its implementation.
The position of the Supreme Court of the Russian Federation on this issue is expressed very clearly in paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2: “When deciding the validity of concluding a fixed-term employment contract with an employee, it should be taken into account that such an agreement is concluded when labor relations cannot be established for an indefinite period, taking into account the nature of the work to be performed or the conditions for its implementation, in particular, in the cases provided for in Part 1 of Article 59 of the Labor Code of the Russian Federation, as well as in other cases established by the Code or other federal laws.
In accordance with Part 2 of Art. 58 of the Labor Code of the Russian Federation in cases provided for in Part 2 of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract can be concluded without taking into account the nature of the work to be performed and the conditions for its implementation. It must be borne in mind that such an agreement can be recognized as legal if there was an agreement between the parties, that is, if it was concluded on the basis of the voluntary consent of the employee and the employer.
If the court, when resolving a dispute about the legality of concluding a fixed-term employment contract, establishes that it was concluded by the employee involuntarily, the court will apply the rules of a contract concluded for an indefinite period.”
Since the law does not establish any restrictions, an employee can apparently go to court with a claim to recognize a fixed-term employment contract as concluded without sufficient grounds, both during the validity of the fixed-term employment contract and after dismissal due to the expiration of the employment contract. In the second case, most likely, a request for reinstatement will be filed.
Early termination of an employment contract
In the science of Russian labor law, the term “termination of an employment contract” includes both the termination of an employment contract without the participation of the will of its parties (that is, the employee and the employer), and the termination of an employment contract due to the will of the parties (jointly or separately).
Early termination of a fixed-term employment contract is currently possible, perhaps, on all the general grounds for termination of an employment contract provided for in Art. 77 Labor Code of the Russian Federation.
In the Labor Code of the Russian Federation, the legislator uses the single concept of “employment contract”, without distinguishing particularly fixed-term employment contracts and employment contracts concluded for an indefinite period. In this case we are talking about the following articles:
Art. 78 of the Labor Code of the Russian Federation “Termination of an employment contract by agreement of the parties”;
Art. 80 of the Labor Code of the Russian Federation “Termination of an employment contract at the initiative of the employee (at his own request)”;
Art. 81 of the Labor Code of the Russian Federation “Termination of an employment contract at the initiative of the employer.”
This means that the provisions of these articles are equally applicable to contracts concluded for an indefinite period and to fixed-term employment contracts.
Clause 20 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2 (as amended on December 28, 2006 N 63) states that “when considering disputes related to the termination of an employment contract by agreement of the parties (clause 1, part 1, article 77 , Article 78 of the Labor Code of the Russian Federation), courts should take into account that in accordance with Article 78 of the Labor Code of the Russian Federation, upon reaching an agreement between the employee and the employer, an employment contract concluded for an indefinite period, or a fixed-term employment contract can be terminated at any time within the period specified parties."
And yet, it seems more correct right in the text of Art. Art. 78, 80 and 81 of the Labor Code of the Russian Federation, refer to the fact that these grounds for termination of an employment contract, notice periods for dismissal, guarantees and compensation also apply to fixed-term employment contracts.
As a rule, in the case of termination of a fixed-term employment contract, the general rules apply, that is, the same as for the termination of an employment contract concluded for an indefinite period. At the same time, the Labor Code of the Russian Federation also contains special rules governing some cases of early termination of a fixed-term employment contract for certain categories of workers. The introduction of such special rules is associated with the special nature of the work of some workers and the need to protect the interests of the parties to the employment contract.
Early termination of the contract at the initiative of the employee
Usually, when early termination of a fixed-term employment contract is initiated by the employee (at his own request), the general rule of Art. 80 of the Labor Code of the Russian Federation about the need to notify the employer in writing no later than two weeks. However, the Labor Code of the Russian Federation provides for other deadlines for certain categories of workers.
Article 280 of the Labor Code of the Russian Federation establishes that the head of an organization has the right to terminate an employment contract early by notifying the employer (the owner of the organization’s property, his representative) in writing no later than one month in advance.
Part 1 art. 292 of the Labor Code of the Russian Federation obliges an employee who has entered into an employment contract for a period of up to two months to notify the employer in writing three calendar days in advance of the early termination of the employment contract.
Part 1 art. 296 of the Labor Code of the Russian Federation provides that an employee engaged in seasonal work must notify the employer of the early termination of the employment contract three calendar days in advance.
In accordance with Art. 348.12 of the Labor Code of the Russian Federation, an athlete and coach have the right to terminate an employment contract on their own initiative (at their own request), having notified the employer in writing no later than one month in advance, except for cases where the employment contract was concluded for a period of less than four months. Obviously, if the term of an athlete’s or coach’s employment contract is from two to four months, the general rule of not less than two weeks’ notice should apply, because there is no reason to consider such an agreement a contract for seasonal work.
The question arises whether these employees have the right to withdraw their resignation before the expiration of the notice period? Since the Labor Code of the Russian Federation is silent on this issue, it can be assumed that the right to withdraw an application from these workers should be preserved.
The wording of the order for the dismissal of such employees and entries in the work book must contain references to the above articles of the Labor Code of the Russian Federation, and not to clause 3 of part 1 of art. 77. E.A. expressed her opinion about this. Ershov, that it is necessary to change the current wording of clause 3, part 1, art. 77 of the Labor Code of the Russian Federation to the following: “Termination of an employment contract at the initiative of the employee (Articles 80, 71, 280, 292, 296...)”.
It is also interesting to note that as a result of the adoption of Federal Law No. 13-FZ of February 28, 2008 “On Amendments to the Labor Code of the Russian Federation”, for the first time in our labor legislation a rule appeared on monetary payment in favor of the employer in the event of termination of an employment contract at the initiative of the employee ( voluntarily) without good reason. This provision is provided for in Art. 348.12 of the Labor Code of the Russian Federation and applies to those athletes whose employment contract provides for a similar condition. However, such a condition may not be included in the athlete’s employment contract. Since in accordance with Art. 348.2 of the Labor Code of the Russian Federation, athletes can enter into both contracts for an indefinite period and a fixed-term employment contract; the norm also applies to the early termination of an athlete’s fixed-term employment contract.
Early termination of a contract at the initiative of the employer
For employees who have entered into a fixed-term employment contract, the general rules for terminating an employment contract at the initiative of the employer usually apply. Exceptions are provided for employees who have entered into an employment contract for a period of up to two months, and employees engaged in seasonal work. For them, special notice periods for dismissal are provided in connection with the liquidation of the organization, reduction in the number or staff of employees, as well as a different procedure for the payment of severance pay.
Note. For employees who have entered into an employment contract for a period of up to two months, and those employed in seasonal work, there are some features related to the timing of notice of dismissal and the procedure for paying severance pay.
Part 2 Art. 292 of the Labor Code of the Russian Federation obliges the employer to warn an employee who has entered into an employment contract for a period of up to two months about the upcoming dismissal due to the liquidation of the organization, reduction in the number or staff of employees in writing against signature at least three calendar days in advance.
Part 3 Art. 292 of the Labor Code of the Russian Federation establishes that an employee who has entered into an employment contract for a period of up to two months is not paid severance pay upon dismissal, unless otherwise established by federal laws, a collective agreement or an employment contract. Obviously, we are talking about all cases where, in accordance with Art. 178 of the Labor Code of the Russian Federation, upon dismissal, an employee is entitled to severance pay and other compensation payments.
As for workers engaged in seasonal work, in accordance with Part 2 of Art. 296 of the Labor Code of the Russian Federation, the employer is obliged to warn such an employee about the upcoming dismissal in connection with the liquidation of the organization, reduction in the number or staff of the organization’s employees in writing against signature at least seven calendar days in advance. According to Part 3 of Art. 296 of the Labor Code of the Russian Federation “upon termination of an employment contract with an employee engaged in seasonal work due to the liquidation of the organization, reduction in the number or staff of the organization’s employees, severance pay is paid in the amount of two weeks’ average earnings.”
Thus, by establishing special rules for early termination of an employment contract, the legislator tried to maintain a balance of interests of both the employee and the employer.
To summarize, the following should be noted. The entry into market relations objectively caused an expansion of the scope of application of fixed-term employment contracts. The legislator could not help but respond to the demands of the labor market, therefore, the issues of regulating the conclusion, amendment and termination of fixed-term employment contracts in the Labor Code of the Russian Federation, in comparison with the previously existing Labor Code (LLC), are considered much broader and deeper.
Literature
1. Course of Russian labor law. T. 3. Employment contract / Scientific. ed. Tom D. Yu. Sc., Professor E.B. Khokhlov. - St. Petersburg: Publishing house of R. Aslanov "Legal Center Press", 2007, p. 532.
2. Ibid., p. 531.
3. Vanyukhin V. Conditions for concluding a fixed-term employment contract. - "EZH-LAWYER", 2005, N 14.
4. Ershova E.A. Labor law in Russia / Ross. acad. justice. - M.: Statute, 2007, p. 361.
In modern Russia, a fixed-term contract in labor law means a special type of agreement concluded between a company or an employer and his future employee. The validity period of such an agreement cannot exceed five years, and the date of completion of the employment relationship or the expected final result is clearly stated in the text of the document. Termination of a fixed-term employment contract at the initiative of the employee takes place in accordance with the current version of the Labor Code.
However, in this situation there are some non-obvious points and pitfalls, knowledge of which is very useful for those who are going to write a statement “of their own free will”, working on the basis of a fixed-term employment contract. This material examines the intricacies of the procedure for terminating a fixed-term employment contract initiated by the employee.
As mentioned above, Russian labor law does not recognize fixed-term contracts between an employee and an employer if they specify a period exceeding five years. Accordingly, any contract that specifies an incorrect expiration date is open-ended.
For example, the parties sign the agreement in March 2018, and plan to end their employment agreements in December 2024. From the point of view of the legislator, such an agreement should be considered unlimited - with all the ensuing consequences.
Typical examples of work in which a fixed-term contract is concluded
A fixed-term employment contract is concluded for a temporary period of up to five years. According to established practice, the most common reasons for signing this type of contract include the following:
- all kinds of seasonal work (agricultural, fishing, etc.);
- preparatory stages for the launch of production (start-up, commissioning and other operations);
- the entry of a new specialist to replace a permanent employee who has left for a certain period of time, but whose job must be retained (for example, in the case of maternity leave);
- entry into an elective position with a prescribed period for exercising the assigned powers.
As a general rule, fixed-term contracts terminate upon the arrival of the date specified in them or the achievement of the result specified in the text of the document. However, due to various reasons, the parties may terminate the employment relationship without waiting for “day X”.
In what situations can an agreement be terminated prematurely?
Based on the provisions enshrined in the articles of the Labor Code of the Russian Federation, it is possible that the employment relationship may be terminated before the expiration of the initially agreed terms for a number of reasons:
- by agreement of both participants;
- on the initiative of superiors;
- at the personal request of the employee.
The subtleties and details of the first two points are given in Articles 77, 78 and 81 of the Labor Code. At the same time, the nuances of terminating a fixed-term contract are included in a separate article - it is assigned number 79.
We have described the subtleties of terminating a fixed-term employment contract after the expiration of the term. The procedure for dismissing an employee, grounds for termination of a contract and analysis of judicial practice. Excerpts from labor legislation and sample documents are attached.
Why can an employee terminate a fixed-term contract?
The main difference between a fixed-term employment contract and an open-ended one is the presence in the text of the first end date of the period for which a person becomes an employee of the current employer. Otherwise, these two forms of employment contracts differ little from each other in any significant way.
Accordingly, the legislator considers the termination of a fixed-term contract as a separate, but practically similar to general practice procedure. The difference here lies only in some details, the most important of which we will discuss in more detail below.
As for the reasons based on which an employee can initiate the dismissal procedure at his own request, they can be very different: from respectful and force majeure to a spontaneous decision. In any case, these actions will fall under the provisions of Article 80 of the Labor Code of the Russian Federation, which talks about the termination of the contract between the employer and the employee at the initiative of the latter.
Thus, the legislator recognizes the right of a person working under fixed-term employment to terminate his employment relationship with his current employer. Strictly speaking, a person who wants to terminate a fixed-term contract is not obliged to give any explanation for his decision. He is only required to fulfill a number of conditions prescribed by the provisions of labor legislation.
The procedure for dismissing an employee on a fixed-term contract at his own request
The only obligation imposed on a person who decides to terminate a fixed-term agreement without waiting for the date agreed upon when signing it is to provide advance notice of such intention.
In situations where the agreement is concluded for a period of two months or a longer period of time, the employee is obliged to notify management of the desire to stop working two weeks before the planned date of termination of the contract. If we are talking about a contract initially designed for a period of less than two months, it is enough to notify three days in advance.
At the same time, the employer’s representatives do not have the legal right to prevent the early termination of the existing contract. The employee who announced his dismissal and supported this with an appropriate statement continues to work out the days required by law and receives a full payment on the last day. Moreover, in practice there are often situations when the employer does not insist on this “working off” and is ready to part with the employee in a shorter period of time than specified in the law.
Reasons why an employee may resign early
The Labor Code cites several points as reasons that may serve as grounds for termination of a fixed-term contract at the request of an employee. It should be emphasized that the law lists the main, but not all, options. That is, this list is not exhaustive and closed.
Table 1. Situations that may become a reason for voluntary dismissal
| Article TC | Cause |
|---|---|
| 79 | The period for which the current employment agreement was intended has expired |
| 72.1 | The employee does not agree to follow the employer to another location |
| 75 | The company has changed management or undergone reorganization |
| 72.2 | Refusal of an employee to move to a new position offered to him |
| 72 | Making changes to the terms of an employment contract that do not suit the employee |
| 77 | Other arguments that are significant for a person working as a fixed-term employee |
The employee may not give any reasons at all for his decision “on his own” in the application. However, if he wants to quit without the work required by law, and his boss is not inclined to allow him to do so, the reason will still have to be documented. Upon provision of the necessary papers and certificates, the agreement is considered terminated by agreement of both parties.
How to correctly write a statement of your own free will?
An application on behalf of an employee bound by a fixed-term contract and wishing to terminate it is typical for generally accepted document flow. It must include an indication of the full names of the parties between whom this agreement was concluded, the text itself with a request for early termination of the employment relationship, as well as the date and personal signature of the person submitting the application.
The question of whether to indicate or omit the reasons that prompted a person to terminate the contract early is left to the discretion of the author of the application. Let us remind you that the number of days that he will have to work after submitting an application to the employer may directly depend on what arguments the employee resorts to.
Upon receipt of this application, the employer’s representative responsible for personnel records management is obliged to issue an order to dismiss the employee in accordance with the provisions of Article 80 of the Labor Code. The applicant confirms the fact of familiarization with the order with a personal signature.
Important point! An employee who has declared his desire to terminate a fixed-term contract, by law, has the right to withdraw the application paper on any of the days of compulsory service. If the boss did not have time to hire a new employee to replace the resigning employee at that time, the applicant retains his position and continues to work. Roughly speaking, it is believed that he never filed an application to terminate the contract. Refusal to cancel the dismissal paper can only be given upon signing a full-fledged employment contract with the new employee.
What are the consequences of terminating a contract at the initiative of an employee?
As already emphasized above, during all working days, the status of the employee who wrote the application is no different from that of an ordinary employee. He continues to fulfill all the labor duties assigned to him by the employer, since each day of this work will be paid to him in full upon receipt of the payment.
The counting of days of compulsory service begins on the day following the date of submission of the application. The date of early termination of a fixed-term contract is not the day when the employee signed the order for his own dismissal, but the day of his last return to work. It is then that the person is given a work book, where the corresponding entry is first made. At the same time, the former employee receives a full payment from the ex-employer’s accounting department.
In the event that on the final day of work all the above-described procedures were not completed, and the employee does not stop performing his job duties, this situation is fully considered as a refusal to dismiss. This, in turn, may lead to the recognition of an application submitted earlier as annulled.
Obviously, an immutable condition of a fixed-term employment contract is a time frame. The logical conclusion from this thesis is the following: the party taking the initiative to terminate an agreement of this type early is considered responsible for potential failures to meet the deadlines specified in it. However, any claim of this nature can be ignored if the employer agrees to this.
If the employer has claims against the employee, they must be resolved with the participation of the labor commission. After this stage is completed, the case may proceed in court if the parties do not reach a compromise.
Tips for those who accept the option of early dismissal
Labor dispute specialists recommend that before concluding a fixed-term contract, you carefully study the entire text of the contract and substantively discuss each clause that affects the mutual obligations of the future employee and his employer. This precaution will help to identify points that may subsequently be interpreted as violations of the terms of the fixed-term contract being signed.
This clause primarily applies to professional athletes. According to Article 348.12 of the Labor Code of the Russian Federation, breaking a fixed-term contract for them may be fraught with the payment of a serious penalty to the employer if there is no compelling reason to terminate the contract.
All other participants in labor relations do not face such costs in a similar situation, however, they should also think through all actions in advance - and only then voice a decision on early termination of the contract with the wording “on their own.” Ideally, the possibility of terminating a fixed-term employment contract should be provided for even before it is signed by the employee and the employer.
Video - Grounds for termination of an employment contract
In custody
The current legislation of our country is aimed at protecting the interests of both employees and the other party to the employment contract. Therefore, in situations with early termination of labor relations, wide space for maneuver is given to both parties, who at one time sealed this document with their own signatures.
According to generally accepted practice, it is believed that if a person decides to resign of his own free will, no one will prevent this. An employer may try to retain a valuable employee by increasing his earnings or promising other improvements, but the choice will ultimately remain with the author of the application. As a kind of pause before making a final decision, the legislator provided for mandatory work. However, it can also be neglected if the employer does not intend to keep the resigning employee longer than necessary.
A regular permanent employment agreement can be terminated by agreement of the parties, at will, or by clause. But how to formalize the termination of a fixed-term employment contract? It's not that simple, because the conditions for terminating such an agreement are contained in several articles of the Labor Code. And we will now try to extract all these norms from various chapters of the Labor Code in order to systematize and visually simplify the entire procedure for dismissing a conscript.
Fixed-term employment contract. Grounds of the gap
In Article 79 of the Labor Code, legislators named a list of reasons why a fixed-term contract can be terminated. Dismissal due to expiration of the employment contract may be based on the following factors:
- when the work for which the contract was concluded is completed;
- if the person who was temporarily replaced by the employee returned to work;
- when the season ended, if the work is tied to the time of year.
Article 77 Labor Code
At the same time Article 77 indicates that the contract can be terminated on other grounds, there after all not directly stated that the provision of the article is valid only in relation to a permanent agreement I, and therefore applicable to the urgent.
That is a conscript has skipped work, draw up reports of absenteeism and fire him for absenteeism. A conscript can also leave on his own accord after working the required two weeks.
It makes no sense to describe the dismissal procedures under Article 77 here; they are all described in other articles and are formalized by analogy with the dismissal of a permanent employee. Here we will consider exactly the grounds of Article 79 of the Labor Code.
Termination of a fixed-term employment contract at the initiative of the employee
As already stated, a conscript can resign at will by notifying his superiors 2 weeks in advance.
He may not work if the director agrees to it. They are also required to release without punishment:
- pensioners (if they reach retirement age);
- students (upon presentation of a certificate of commencement of studies).
The process of dismissal is simple:
- the application is registered;
- Order T-8 is being prepared.
Attention!
And don't forget that the dismissed person must be familiar with all orders, including with an entry in the labor record, and therefore We require autographs on every document!
Termination of a fixed-term employment contract at the initiative of the employer
Article 81 of the Labor Code applies here.. A fixed-term contract, like a permanent one, can be terminated if:
- the company is liquidated;
- the staff or number is reduced;
- the employee has not passed the certification;
- the owner of the company has changed;
- the conscript has repeatedly violated his duties or the LNA;
- absenteeism recorded;
- showed up to work drunk;
- spilled a company or state secret;
- stole something or took something from work (must be confirmed by a verdict);
- trust in him has been lost (if there is a connection with material values);
- The teacher committed an immoral act.
You can find detailed information about dismissal for the listed reasons in our other articles.
Dismissal upon expiration of the employment contract
Nuance: if it has already been decided that the employee will not continue to work, 3 days before the end of the contract you need to notify him. The notification must be received by the employee personally - You can either deliver it in person, or send it by mail – registered with notification. You can do without warning if a temporarily absent employee is being replaced.
If the contract contains a condition on the performance of some specific work, then upon its completion the contract ends. How to do it:
- We close the completed work with an act or statement;
- we warn the employee that the contract has ended;
- We are preparing order T-8.
If the work was seasonal, for example, collecting cedar cones, and the season is over, we do the same:
- we inform the employee that the season is over and the director no longer needs his services;
- we issue an order.
Attention!
If the main employee, whom the conscript was temporarily replacing, returned to work, no notification is required. Just an order T-8 is being prepared.
When dismissal is formalized due to the expiration of the employment contract, the entry in the labor report must strictly repeat the text of paragraph 2 of paragraph 1 of part 77 of article, but not 79! There is no need to even make a link to Article 79. In all three cases described in Article 79, the entry will be as follows.
Should I offer another job?
The boss is not obliged to offer another job if the fixed-term contract has ended. An exception is the pregnancy of an employee who was hired to replace a temporarily absent employee. This norm guaranteed to pregnant conscripts by Article 261 of the Labor Code
.
But this is the case if there are free vacancies, one of which the employee will agree to. If there are no vacancies or the employee refuses another job, you can fire her. But in this case, do not forget that the transfer proposal must be in writing, with a receipt stamp!
Attention!
Nuance: If the employee agrees to another job, she should not terminate the fixed-term contract, but draw up an additional agreement to it on changing the conditions - type of work and term.
If the employee was hired for seasonal work or for the duration of a specific job, you can’t fire her if she’s pregnant, you have to wait until she gives birth.
Important!
And finally advice: termination of a fixed-term employment contract will be invalid if notice of the end of the term, although given, the employee is still working.
If the employee is allowed to work, this means that the contract has been transformed into a permanent one.. If you don’t want to keep him like that, after signing the order you just don’t need to let him go to work, for example, remove him by deed.