home Analyzes How to avoid mistakes when dismissing under a fixed-term employment contract? Work upon dismissal under a fixed-term employment contract

How to avoid mistakes when dismissing under a fixed-term employment contract? Work upon dismissal under a fixed-term employment contract

I devoted this article to considering the nuances dismissals under a fixed-term employment contract. Identified typical mistakes of employees and employers. He pointed out the nuances of dismissing a pregnant woman.

According to current legislation, the employer has the right to conclude a fixed-term employment contract with you. This type of contract is valid for a specified period and its termination has a number of characteristic features, which we will discuss below.

○ What does the Labor Code of the Russian Federation say about dismissal under a fixed-term contract?

First of all, it is worth mentioning that the duration of a fixed-term contract cannot exceed a five-year period. That is, after five years, this agreement with you must be terminated, since the maximum period for which it can be concluded has expired (Article 79 of the Labor Code of the Russian Federation).

Also, the contract is terminated upon expiration in specific cases:

If the contract concluded with you was temporary in nature and was needed to perform the functions of an absent person. When the main employee returns to the workplace, the contract with you is terminated.
The contract was made with you to perform a specific job. Once the work is completed it is terminated.
A seasonal contract has been concluded with you. It will be terminated at the end of the season.

○ Procedure for dismissal under a fixed-term contract.

Termination of a contract concluded with you for a certain period is regulated by Art. 79 Labor Code of the Russian Federation. The norm states that the contract will be terminated due to the fact that a certain event has occurred - its term has expired.

The first thing the head of an organization must do is warn the employee in writing no later than 3 days before the upcoming dismissal.

The only exception is in cases where such an agreement is concluded temporarily to perform the functions of an employee who is absent.

The notice that the dismissed employee receives from the employer must contain information about to whom this document is sent, the reason for which the contract is terminated, its details, date, signature.

If neither you nor your manager demanded termination of the contract when it expired, then he will be considered concluded indefinitely(Article 58 of the Labor Code of the Russian Federation), and labor relations in this case will continue.

Consequently, if the employer did not want to terminate the contract with you at the end of its term, then in the future he will lose the right to dismiss you on this basis.

The next step in the dismissal procedure is issuing an order to terminate a fixed-term employment contract with this employee. The employee becomes familiar with this document upon signature.

The order itself must indicate the following points:

Number of the employment contract and date of its termination.
The date on which the employee leaves.
Grounds for termination and reference to clause 2, part 1, article 77 of the Labor Code of the Russian Federation.
Link to documents that served as the basis for dismissal. For example, a notification that the employee has been warned of dismissal.

On the day of termination of the employment contract, an entry is made in the employee’s work book. This record contains information about the reason for which the contract was terminated, the number and date of the order, and a link to the norm of the Labor Code of the Russian Federation. After which the book is given to the employee.

○ The nuances of dismissing a pregnant woman under a fixed-term contract.

If you belong to the category of pregnant women who work under a fixed-term contract, don’t worry, the Labor Code of the Russian Federation protects your rights.

So, if the term of the employment contract signed with you ends before the end of pregnancy, then according to Part 2 of Art. 261 of the Labor Code of the Russian Federation, the manager, at your written request, is obliged to extend it.

He also has the right to require you to provide him with a certificate of pregnancy once every three months. This agreement is terminated on the date of termination of maternity leave

If the contract was signed with you for a set period, during which you performed the labor functions of an absent employee, then the employer has the right to fire you if the main employee returns to work.

If the employer has another vacancy where you can be transferred, then he is obliged to provide it until the end of your pregnancy. The employer will also have to pay you maternity benefits.

○ The main mistakes of the employer and employee when dismissing under a fixed-term employment contract.

In itself, this type of contract can be concluded only when there are sufficient grounds for it.

Employers, as a rule, neglect this fact, thereby violating current labor legislation. Next, we'll look at the most common mistakes you and your employers can make.

A fixed-term contract does not have an expiration date.
If you are faced with the fact that the contract concluded with you does not have an end date, then it will be considered that you have been accepted for an unspecified period.
The contract that was signed with you during the replacement of the main employee contains the date of its termination.
Please note that your contract must indicate that it terminates when the main employee returns to work (Part 3 of Article 79 of the Labor Code of the Russian Federation). Otherwise, termination of the contract will be illegal.
Failure of the employer to comply with the dismissal procedure.
- The employer notified the employee less than three days before the upcoming dismissal. There is judicial practice according to which if the employee was not promptly notified of dismissal. At the same time, sometimes the court sides with the employee, citing a violation of the dismissal procedure, namely Art. 79 Labor Code of the Russian Federation.
- The employer did not familiarize you with the dismissal order, thereby violating the norm of Art. 84.1 Labor Code of the Russian Federation
Multiple, repeated conclusion of fixed-term employment contracts with you for a short period.
Judicial practice boils down to the fact that in this case the contract can be recognized as concluded for an indefinite period.
Dismissal of a pregnant woman.
An employer does not have the right to fire a pregnant woman. He must extend the contract until the end of the pregnancy.
The employee is inattentive to documents.
Both when concluding a contract and when terminating it, read all the documents that you sign.

Regardless of whether an open-ended or fixed-term employment contract has been concluded with the employee, the procedure for dismissal at will (clause 3, part 1, article 77 of the Labor Code of the Russian Federation) for temporary workers does not differ from the general rules.

Fixed-term employment contract: working off upon dismissal

The first step in dismissing a temporary employee on your own initiative should be to notify management of your desire. From this moment the “working off” period begins to count.

As a general rule, the minimum working time is two weeks from the date of warning, but there are several exceptions:

seasonal workers and temporary workers (contract term - less than two months) - three-day work (Article 292, Article 296 of the Labor Code of the Russian Federation).

For these employees, there is one more feature when dismissing: when making the final calculation, it must be taken into account that such employees are granted leave in the amount of two calendar days for each working month (Articles 291, 295 of the Labor Code of the Russian Federation);

employees on a probationary period - three-day work (part 4 of article 71 of the Labor Code of the Russian Federation);
Head of the organization; athletes and coaches with contracts for a period of no more than four months - monthly work (Article 280, Article 348.12 of the Labor Code of the Russian Federation).

There are situations when a temporary employee needs to be fired within the period for which he requests. We are talking about admission to an educational institution, retirement, violations by the employer and mutual consent of the parties (Part 3 of Article 80 of the Labor Code of the Russian Federation).

Fixed-term employment contract: dismissal on sick leave

The illness of a temporary employee is not an obstacle to his dismissal. Labor legislation (Part 6, Article 81 of the Labor Code of the Russian Federation) prohibits the dismissal of employees only at the initiative of the organization (Clause 4, Part 1, Article 77 of the Labor Code of the Russian Federation).

Letter of resignation

A warning is drawn up in any form, usually in the form of a statement typed on a computer or written by hand. An organization can independently develop a form for such an application and familiarize employees with it - laws do not prohibit this.

The main thing is that the employee signs the application, which will make it possible in the event of a legal dispute to prove the existence of the employee’s will to dismiss.

First of all, you need to make sure that the temporary employee correctly indicated the date of dismissal, ideally without using the preposition “from” (dismiss from August 15), so that there are no discrepancies in determining the last day of work.

A temporary employee may change his mind and withdraw his application; he cannot be prevented from doing so. In this case, dismissal can only occur when another dismissed employee was not invited in writing to take his place by way of transfer from another company (Part 4 of Article 64 of the Labor Code of the Russian Federation).

Issuing an order and making an entry in the work book

The dismissal order is issued based on the application submitted by the employee. It must indicate that the employment relationship is terminated on the basis

There are often situations when an enterprise simultaneously employs workers on a permanent basis and on temporary contracts. HR staff should understand all the differences between these categories. In this article, we will look at how work is carried out upon dismissal under a fixed-term employment contract and what its features are.

Reasons for dismissal

According to Russian legislation, in order to conclude a fixed-term employment contract, a number of factors must be present. First of all, the employer must provide compelling evidence that it is impossible to do this on a permanent basis. The expiration of such an agreement is tied either to a specific date or to the occurrence of a certain event.

They sign fixed-term contracts for seasonal work (most often in the agricultural sector). In addition, they are practiced when there is a need to find an employee to replace a temporarily retired employee (for example, during maternity leave). Also, fixed-term contracts are concluded if there is a need to carry out a certain amount of work, and its continuation in the future is impossible or possible only after a certain period of time (for example, if the city administration needs a worker to plant flowers in the flower beds of a populated area in the spring).

The characteristics of hiring also influence the reasons for possible dismissal. For a fixed-term employment contract, they may be as follows:

The work for which the employee was hired has been completed in full.
The contract has expired.
The entry into permanent employment of an employee who needed to be replaced.
On agreement of the parties.
Early at the initiative of the employee.
Early at the initiative of the employer.

The last three reasons from the list are considered standard and are suitable for all types of workers. The most common of them is voluntary dismissal. In the resignation letter, the employee will need to provide a compelling reason for his decision. This could be a change in family circumstances, an employee's illness, or a move. As a rule, such applications are satisfied without delay. The main thing is to submit it two weeks before your expected departure. In rare cases, the employer does not agree with the arguments mentioned in the application and refuses to fire the employee. In such a situation, it is necessary to file a claim in court.

The employer has the right to initiate dismissal of an employee in the following situations:

Upon liquidation of an organization or individual entrepreneur.
When staffing is reduced.
If it is determined that when applying for a job, the employee provided incorrect information about himself (for example, fake educational documents).
If an employee performs his duties in bad faith or if during the course of work it turns out that he clearly does not correspond to his position.
When the employee caused significant material damage to the enterprise.

In this case, it is necessary to take into account the need to carry out preliminary procedures before dismissal. Thus, if an employee is negligent in the performance of his duties, the employer must first impose a disciplinary sanction or reprimand on him, making sure to document these measures. It should be taken into account that a penalty can be imposed no later than six months after the commission of the offense and a month from the moment it was discovered. If the violations do not stop, then only the dismissal procedure can begin.

If we are talking about a minor employee, then dismissing him before the end of the contract is difficult to implement, because This will require obtaining written consent from the supervisory authorities.

According to Art. 77 Labor Code of the Russian Federation a fixed-term contract is considered terminated if the deadline for its completion has approached. However, there is a nuance that needs to be taken into account. Termination of the contract must be done in writing. If this is not done, then it is automatically transferred to the permanent category.

Terms of service

The procedure and terms of service for various categories of employees are discussed in detail in the Labor Code.

If an employee submits a resignation letter, he must do so two weeks before leaving. And fulfill the above-mentioned period.

But this applies only to those contracts that were concluded for more than two months. Otherwise, for warning and, accordingly, work off, a period of only three days is allotted. If there is an agreement, these time frames can be shortened or even canceled, i.e. the employee will be fired and paid off on the day the application is submitted. If we are talking about employees who are on a probationary period, then their working period is also three days.

The indicated time frames also apply to the situation when the initiator of termination is the employer. Those. if there is a contract whose term exceeds two months, the employee must be notified two weeks in advance, in other cases - three days before dismissal. This does not apply to situations where the dismissal occurs due to the return of the main employee to his workplace. There is no need for warning here.

The Labor Code of the Russian Federation provides for the possibility of terminating the contract and resigning on the day of filing the application if the following circumstances arise:

The employee retired.
The employee was officially drafted into the ranks of the Armed Forces of the Russian Federation.
Violations of labor laws by the employer.
Admission to a higher education institution for full-time study.
There is a mutual agreement between employer and employee.

In addition, an employee who is officially on sick leave can also quit without the need to carry out the work required by law. He can send his resignation letter by registered mail with notification by mail or transfer it to the human resources department with the help of a trusted person.

Terminating a temporary contract is a simple procedure. The main thing in it is compliance with the deadlines for filing an application and mutual notification of the parties participating in the work process.

An employment contract (EA) is the main document concluded between an employer and an employee. A fixed-term employment contract (FTA) is signed when it is impossible to establish an indefinite period. The maximum term of the STD is five years. If the contract specifies a longer period, the employee is considered to be hired for permanent employment.

Termination of a fixed-term employment contract

A fixed-term employment contract is terminated upon expiration of its validity period. Including:

concluded for the duration of certain work - upon its completion;
prisoner for the duration of the duties of an absent employee - upon his return;
contracted to perform seasonal work during a certain period (season) - at the end of this period (season).

Dismissal upon expiration of the employment contract

The employee must be notified in writing of the termination of the labor contract due to its expiration at least three calendar days before dismissal, except in cases where the period of validity of the labor contract concluded during the performance of the duties of the absent employee expires.

The original notification is given to the employee personally, and on the copy of the notification he must put a personal signature with a transcript, as well as indicate the date of receipt of the notification. A copy of the document is filed in the employee’s personal file.

If you refuse to familiarize yourself with the notification, a corresponding act is drawn up.

Sample notice of termination of a fixed-term employment contract

Expiration of a fixed-term employment contract to perform work

The dismissal procedure after the expiration of the employment contract concluded for the duration of the specific work begins with the preparation of an act of acceptance of work performed according to the STD. This is the basis for termination.

To do this, you can use the act of the unified form No. T-73, approved by the Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1 “On approval of unified forms of primary accounting documentation for the accounting of labor and its payment.” However, the use of this form is not mandatory. The parties can draw up an act in free form.

The act is drawn up in two identical copies. The employer's copy is filed in the employee's personal file. The expiration date of the STD will be the day following the date of issue of the act.

Sample act of acceptance of work performed under a fixed-term employment contract

Order of dismissal at the end of a fixed-term employment contract

If the STD is terminated after the expiration of the validity period, the employee is dismissed under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation - due to the expiration of the TD period. In this case, an order is issued to terminate (terminate) the trade agreement with the employee (dismissal). The unified form of such an order No. T-8 was approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1. The employee must be familiar with the order (instruction) on dismissal. A copy is filed in the employee’s personal file.

Entry into the work book

The employer is obliged to issue it on the day of dismissal. The procedure for making an entry in it upon termination of a TD is prescribed in Section. 5 of the Instruction approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 N 69.

If the fixed-term employment contract has not expired

The STD may be terminated before the expiration of its term on the grounds set out in Article 77 of the Labor Code of the Russian Federation. The procedure is the same as for terminating a TD concluded for an indefinite period of time.

Extension of a fixed-term employment contract

If neither party requested termination of the STD due to the expiration of its validity period, and the employee continues to work after the expiration of the STD period, it is considered to be concluded for an indefinite period. In this case, changes are made to the TD by concluding an additional agreement. On the contrary, no additional entries are made in the workbook. This position is set out in the Letter of Rostrud dated November 20, 2006 No. 1904-6-1.

The employer must keep in mind that he does not have the right to demand fulfillment of duties after the expiration of the TD period. If he wants to extend the TD, then it is necessary to offer to conclude an additional agreement to the contract. Otherwise, the employee, having worked his last working day, may not go to work, and this will not be considered absenteeism.

Vacation and compensation upon dismissal

The conclusion of an urgent TD does not change the employer’s obligation to provide annual basic paid leave of 28 calendar days while preserving the place of work and average earnings. In accordance with Article 127 of the Labor Code of the Russian Federation, upon dismissal, monetary compensation is paid for all unused vacations. Wherein:

Those employed in seasonal work are provided with paid leave at the rate of two working days for each month worked (Article 295 of the Labor Code of the Russian Federation).
Those who have entered into a labor contract for a period of up to two months are provided with paid leave at the rate of two working days per month worked (Article 291 of the Labor Code of the Russian Federation).

Special cases

A special case is the dismissal of a pregnant woman after the expiration of the TD period. With the exception of the case that will be discussed below, dismissal of a pregnant woman after the expiration of the TD period is impossible. The employer is obliged to extend the employee's TD if she submits an appropriate application and a medical certificate confirming pregnancy. The validity period of the TD should be extended until the end of pregnancy, regardless of the reason for its end.

The date of dismissal in this case will be:

if the employee has been granted maternity leave, the day on which this leave ends;
if such leave is not granted - within a week from the day the employer learned of the end of the pregnancy.

Maternity benefits, when registering in the early stages of pregnancy and at the birth of a child, are calculated and paid in the usual manner. Parental leave is not provided.

An employer has the right to dismiss a pregnant woman after the expiration of an urgent work permit, subject to the following conditions (Part 3 of Article 261 of the Labor Code of the Russian Federation):

an urgent TD was concluded for the duration of the duties of an absent employee;
transfer of an employee with her consent to another job available to the employer and not contraindicated for her health reasons is impossible.

In this case, the employer is obliged to offer the pregnant employee all the vacant positions or work that he has in the given area that correspond to her qualifications, as well as vacant lower positions or lower-paid work that the woman can perform taking into account her state of health.

differs from termination of employment with other full-time employees. If the period specified in the documents has expired, then dismissal under a fixed-term employment contract should occur according to general rules.

What is a fixed-term employment contract?

The hiring of new employees is confirmed by the execution of employment contracts, which reflect the procedure and conditions of work, the rights and obligations of existing parties, as well as the duration of the employment relationship.

In this case, it is possible to conclude both open-ended employment contracts and contracts with a limited period of validity. The duration of the latter cannot exceed 5 years (Article 58 of the Labor Code of the Russian Federation). If a longer period is prescribed, then such an agreement becomes indefinite.

In accordance with the provisions of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract is drawn up on the basis of the following conditions:

If you plan to hire a new employee whose responsibilities include performing the functions of temporarily absent employees.
If it is necessary to perform seasonal or temporary (no more than 2 months) work.
To perform specific types of work and services not related to the daily activities of an economic entity.
To perform labor functions, the end date of which is determined by a specific date.
When sending an employee abroad.
If the nature of the work is related to studies, internships.
For temporary employment of persons undergoing alternative civil service, or citizens sent to temporary work by employment centers.
In other situations permitted by law.

In addition, fixed-term employment contracts can be concluded with paralegals and prosecutorial employees, as well as with persons in the civil service.

Employers also have the right to conclude employment contracts with a limited period of validity with the agreement of the interested parties (Article 59 of the Labor Code of the Russian Federation). These include small enterprises whose number of employees does not exceed 35 people. Also, contracts of this kind can be drawn up with:

citizens who have reached retirement age, as well as those who, for medical reasons, are allowed only temporary employment;
persons working in the Far North;
employees whose activities are related to the prevention of natural disasters and other emergency situations;
workers of culture and art;
representatives of the management apparatus - managers, chief accountants;
ship crew members;
employees performing their duties part-time;
full-time students.

Illegal establishment of the validity period of an employment contract, confirmed by the judicial authorities, transfers it to the category of indefinite (Article 58 of the Labor Code of the Russian Federation). The conclusion of fixed-term employment contracts that limit the rights of employees may be considered illegal. Thus, if dismissal is due to the liquidation of an enterprise or staff reduction, severance pay in the amount of 2 average monthly salaries is not due to employees who have entered into fixed-term employment contracts lasting up to 2 months.

For other information about severance pay and its taxation, see the material “On personal income tax exemption of the amount of severance pay upon dismissal.”

Conditions for applying a fixed-term employment contract

Employment contracts with a limited duration are mainly concluded in cases where the type of work performed is temporary. In other situations, agreement of both parties is necessary.

If fixed-term contracts are periodically concluded with the same employee, the employer must be ready to provide reasoned explanations for the need to determine the terms. Otherwise, when considering conflict situations, such agreements may be recognized as unlimited by the judicial authorities.

If, after the expiration of the concluded employment contract, neither party has expressed a desire to terminate the employment relationship, the contract is recognized as unlimited. In this case, there is no need to make additional entries in the work book. However, the changes will need to be recorded in an additional agreement (letter of Rostrud “On the term of the employment contract” dated November 20, 2006 No. 1904-6-1). The extension of the term of the employment contract is also confirmed by the order.

For other information about the responsibilities of HR employees, see the material “Procedure for maintaining personnel records at an enterprise.”

Considering the fact that the expiration date of employment contracts does not imply their completion, employers are recommended to keep records of these documents themselves. Otherwise, employees will have to be dismissed on a general basis at the end of the completion period.

For additional information on the procedure for dismissal in certain situations, see the material “Procedure for dismissal due to liquidation of an organization.”

Dismissal under a fixed-term employment contract

The process of terminating the employment relationship with employees who work on fixed-term contracts is slightly different from the standard dismissal procedure.

The reason for dismissal under a fixed-term employment contract may be the end of its validity period. But in this case, it is important not to miss the deadlines. The basis is clause 2 of Art. 77 of the Labor Code of the Russian Federation, which applies in cases where the parties have decided to terminate further labor relations.

Dismissal must be preceded by a written warning from management issued to the employee at least 3 days in advance. The fact that the dismissed person is familiar with the notice sent to him must be recorded. The only exception is the termination of the contract on previously accepted conditions, under which the duties of an employee absent for any reason were temporarily performed (Article 79 of the Labor Code of the Russian Federation).

The absence of notice of dismissal does not allow dismissing an employee due to the expiration of the employment contract. In such cases, the employment relationship can be terminated only on other conditions provided for by law.

Drawing up a notice of termination of an employment contract is allowed in any form. It should reflect the date and reason for dismissal. If the employee refuses to familiarize himself with the notice, a corresponding act is issued.

Termination of employment under a fixed-term employment contract is permitted in the following cases:

If the contract is drawn up for the purpose of performing certain types of work, termination occurs upon completion. In this case, an act of acceptance and transfer or performance of work is drawn up. The end of the contract term is the next day after the act is drawn up.
If the contract implied the fulfillment of the duties of a temporarily absent employee, then it terminates when the employee returns to the workplace.
A fixed-term contract can also be concluded for a period of seasonal work. It ends after the end of the designated period. Lists of seasonal work and their terms are established by the Government of the Russian Federation.

After the termination of the employment relationship, the employee receives a work book, payroll and related documents.

For more detailed information about the documents issued upon dismissal, see the material “Certificate of wages - sample and form in 2015”.

If an employee decides to leave the workplace after the end of the contract, the employer does not have the right to retain him.

Upon dismissal, the employee is guaranteed all due monetary payments: payment for the period of work, compensation for unused vacation. If a fixed-term contract was drawn up for a period of up to 2 months, then compensation for vacation is calculated at the rate of 2 days for 1 month worked (Article 291 of the Labor Code of the Russian Federation). The grounds for termination of the employment relationship do not affect the amount of compensation paid. The terms of the contract may provide for other payments, such as severance pay, the amounts of which are reflected in local documents.

Under some circumstances, the termination of fixed-term contracts occurs earlier than the established period, including on the basis of the provisions of Art. 77 of the Labor Code of the Russian Federation, by mutual agreement of the parties, at the initiative of the employer and other circumstances beyond the will of the parties.

Dismissal under a fixed-term employment contract caused by the initiative of the employee must be accompanied by a written notification from management 3 calendar days before the expected date of termination of the employment relationship.

Results

Termination of a fixed-term employment contract must be carried out in accordance with all the rules enshrined in the Labor Code of the Russian Federation, in compliance with the established deadlines. Otherwise, if conflict situations arise between the parties, termination of the contract will have to be carried out on a general basis, involving longer service or, possibly, a higher level of payments upon dismissal.