Dismissal under a fixed-term employment contract. Stages of the dismissal procedure under a fixed-term employment contract: how to properly terminate an employment contract? Everything about dismissal under a fixed-term employment contract at your own request

Procedure for signing an urgent employment contract, its cancellation and other significant circumstances are regulated in detail by the provisions of the Labor Code of the Russian Federation. According to the requirements of the law, signing a fixed-term employment contract is permitted only in special cases.

That is, the employer should not have an objective opportunity to enter into an open-ended agreement with the employee. In addition to concluding agreements, labor legislation contains a number of rules regarding the dismissal of employees who work under such agreements.

Dismissal under a fixed-term employment contract, Article 77 clause 2 or 79 clause 2

The law provides several reasons for this. The main ones are directly indicated in Article 79 of the Labor Code of the Russian Federation.

The specified reasons for dismissal should be described in more detail:

when an employee returned to work, whose place was occupied by a temporary worker. Similar situations include replacing an employee who is on maternity leave to care for a child or a pregnant woman. Cases of long-term illness of an employee may also determine the hiring in his place temporary employee. If the main person goes to work, then the fixed-term employment contract ends and the person is subject to dismissal;
at the end of the period for which the person was hired. As a rule, in this case we are talking about seasonal periods. When the relevant season ends, the temporary worker is subject to dismissal.

Therefore, Art. Art. 77, 79 of the Labor Code of the Russian Federation provide as grounds for termination labor relations either the occurrence of an event or the end of the agreement period.

Reasons for dismissal under a fixed-term employment contract

The legislation contains several rules that apply when terminating a relationship with a temporary employee. They should be specified in more detail:

the main reasons are reflected above and are expressly stated in the law;
with a temporary agreement, the employee is subject to all rules on work routine, discipline, work safety rules, and so on. In addition, he is obliged to perform his duties efficiently and ensure high performance indicators. This means that if discipline and working conditions are violated, the employee may be dismissed under the relevant article of the Labor Code of the Russian Federation (dismissal is discussed in more detail). For example, in case of absenteeism or systematic failure to fulfill his duties, the employee will be fired;
Termination of legal relations with the employer is permitted by mutual agreement. In this case, the parties should not have claims against each other. Only in the absence of conflicts is it possible to terminate the relationship by consent. In this case, the parties can stipulate mutual conditions and are obliged to comply with them;
possible termination of legal relations fixed-term contract and on the personal initiative of the employee. There could be a variety of reasons for this. But the employee has an unconditional right to this.

Thus, these legal relations are governed by the usual rules of law, which apply to other types of agreements.

Dismissal at your own request with a fixed-term employment contract

This reason is quite possible. But there are also restrictions for employees. They are required to notify their employer of the decision two weeks in advance. If the notification arrives later, the employer has the right not to dismiss the person and move the termination date further back.
Such a guarantee is necessary to find another employee for a vacant position.

Dismissal at the initiative of the employer

With a fixed-term employment contract, dismissal is also possible at the initiative of management. The reason is always a violation of discipline by an employee or poor performance.
He may be systematically late or fail to meet production quotas. In this case, a violation must be recorded every time. And after recording, the person should be subject to disciplinary punishment.

Dismissal due to the end of a fixed-term employment contract

If the agreement sets a deadline for its completion, then it is considered terminated upon the arrival of this period. There is no need for additional notifications or negotiations. Termination of legal relations occurs automatically. This is a direct consequence of the law.
But the agreement can be renegotiated by agreement of the parties.

Notice period for dismissal under a fixed-term employment contract

Not only the employee, but also the employer has obligations. One of his responsibilities is the need to warn the employee about the termination of the relationship.

The law establishes such a mandatory period. It is 3 days. This period is counted until the date of termination of the legal relationship.

Calculation of compensation upon dismissal under a fixed-term employment contract

Compensation for leave under a fixed-term employment contract upon dismissal occurs if the agreement lasts more than six months. In this case, compensation for vacation that will not be provided should be calculated.

The calculation is based on the person's average monthly earnings. The average daily income is calculated and multiplied by 14. This is the number of days of possible vacation.

Sample letter of dismissal under a fixed-term employment contract

The Statistics Committee has developed a special form for such orders. It includes a number of mandatory details and provisions. This is the official form.

Is it possible to fire a pregnant woman under a fixed-term employment contract?

Is it possible. If the grounds on which the person was employed no longer exist, the woman may be dismissed. In addition, if she commits disciplinary offenses, the agreement will also be terminated.

In addition, if the enterprise ceases to exist, then the legal relationship with the woman should be terminated.

Regardless of whether an employee has an open-ended or fixed-term employment contract, the dismissal procedure at will(clause 3, part 1, article 77 of the Labor Code of the Russian Federation) for temporary workers does not differ from 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 at 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 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 the definition last day 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 of clause 3, part 1, art. 77 Labor Code of the Russian Federation. The order is issued no later than the last day of work of the temporary employee.

It is necessary to indicate in the work book that the employee is being dismissed on the basis of clause 3, part 1, art. 77 of the Labor Code of the Russian Federation, and issue a work book to the employee on the last day of work (having received the signature of the person being dismissed in the work book, the work book, and the personal card).

A temporary worker 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 and etc.).

A fixed-term contract is concluded for a certain period of time or until the occurrence of an event, for example, the departure of an absent employee. Whether it is necessary to write a letter of resignation under a fixed-term employment contract depends on the reasons for its termination and from whose side the initiative comes.

Reasons for dismissal

Among the main reasons for terminating a fixed-term employment agreement are:

fulfillment of the conditions specified in the employment contract under which it is terminated. For example, the departure of a permanent employee, in whose place a new person was temporarily hired;
performing the work for which the person was hired;
mutual agreement between the parties;
initiative of one of the parties.

There is also provision for dismissal upon expiration specified period. In this situation, if the parties do not insist on severing the employment relationship, then the fixed-term contract is transferred to the status of an open-ended one, which eliminates the need for dismissal.

At the initiative of the employee

The initiator of termination of the employment relationship may be the employee himself. Among the most popular reasons are:

impossibility of further performance of duties due to illness or disability;
serious illness, including that of a third party;
violation by the manager of the obligations specified both in the employment contract and in the Labor Code of the Russian Federation;
change of place of residence;
victory in the competition for an elected position.

The employee is obliged to notify the manager in advance of his desire by sending a written notice. By agreement of the parties, the procedure can be carried out earlier than the stipulated period.

If for some reason the manager refuses to terminate a previously concluded contract with an employee, the employee can go to court or the CTS.

It is important to know! Labor legislation prohibits dismissing a person on sick leave. The exception is situations with initiative from this person.

At the initiative of the employer

The employer may terminate the contract for the reasons provided for in Article 81 of the Labor Code of the Russian Federation, including due to:

liquidation of the organization;
staff reductions;
discrepancies between the qualifications and skills of the employee and the position he temporarily occupies;
failure to perform or improper performance of duties assigned to the employee;
change of owner of the enterprise;
violations of labor discipline;
actions on the part of the employee, as a result of which damage was caused to the enterprise;
immoral behavior of the employee;
providing false information when signing a contract;
other reasons provided for by the concluded agreement.

It is important to know! Pregnant women can be dismissed only after leaving maternity leave. The contract may be terminated if a pregnant woman was hired to temporarily replace a key worker who returned early.

Sample application

If termination is carried out due to the expiration of the term, then an application is not required. Its role is a notification and an order issued by the employer. However, it is necessary if the employment relationship is terminated earlier than the period specified in the contract at the initiative of the employee himself. The document must be provided to the manager for review:

3 days before the date of departure, if the contract was concluded for a period of less than 2 months;
2 weeks in other cases.

There is no mandatory form for an application to terminate an employment contract at the legislative level, which allows the employee to draw up a document in any form. If the organization has developed its own application form, then a sample of it must be provided to the employee upon request. The document can be in printed or handwritten form. It must contain information:

about the full name and address of the organization;
the full name of the manager in whose name the application is being submitted;
about the position, full name, address, telephone number of the employee;
about a request to terminate the contract.

At the end there must be the date the document was drawn up and the employee’s signature. Next, the document must be submitted to the HR department.

Early termination is carried out by agreement of the parties or on the initiative of the employee. In such a situation, the employee’s request can be presented in the following form: “I ask you to terminate the Employment Agreement dated _______. (date of conclusion) No. ____ (number of the concluded agreement) by agreement of the parties _____. (date of desired dismissal) on the basis of _____ (article of the Labor Code of the Russian Federation. When executed by agreement - clause 1, part 1, article 77 and article 78, on the initiative of the employee - clause 3, part 1, article 77 and article 80 of the Labor Code RF)".

It is important to know! The employee may at any time before the date of proposed dismissal withdraw the application and continue working until the expiration of the contract. The exception is situations when a replacement has already been found. new employee who has been transferred from another organization or has preferential benefits.

Calculation and entry into labor records

On the last day of work the calculation is made. With a fixed-term employment contract, the employer is obliged to pay funds for the period worked and compensation for vacation that was not used. Benefits or other types of compensation are provided only if they were provided for by a collective agreement or other agreement.

An entry in the work book is made on the basis of a dismissal order. It requires indicating the exact reason for termination of the employment relationship with reference to the relevant article. The work certificate is issued in person against a signature in the accounting journal.

A fixed-term contract is subject to termination upon expiration or performance specified condition. However, the employment relationship can be terminated at the initiative of the employee. To do this, you need to submit a resignation letter drawn up in accordance with generally accepted standards. This document can be presented as evidence in case of legal proceedings.

In this article we will talk about what dismissal under a fixed-term employment contract is, and consider what difficulties the manager and employee may encounter as part of this process. It must be remembered: in order for the dismissal of an employee under a fixed-term employment contract to be recognized as legal and justified, the process must be carried out in accordance with the law.

You will learn:

What you need to remember when leaving under a fixed-term employment contract.
On what grounds can you be fired under a fixed-term employment contract?
How does dismissal occur under a fixed-term employment contract at the initiative of the employer?
When dismissal under a fixed-term employment contract does not depend on the will of the parties.
What is the procedure for dismissal under a fixed-term employment contract?
How is calculation made when dismissal under a fixed-term employment contract?
What are the features of dismissal under a fixed-term employment contract?
What mistakes do employers and employees make when dismissing under a fixed-term employment contract?
How does an appeal in court against dismissal under a fixed-term employment contract take place?

When employing a new employee, the employer must understand that a procedure such as dismissal under a fixed-term employment contract has its own characteristics and differs significantly from the generally accepted one. That is why, in order to avoid possible appeals by employees to the court and the labor inspectorate, it is necessary to know all the nuances of this type of termination of employment relations.

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What you need to know about dismissal under a fixed-term employment contract

Russian legislation has enough a large number of regulations regarding dismissal due to the expiration of an employment contract. We are talking about the Labor Code of the Russian Federation, various federal laws regulating labor activity separate groups employees, for example, employees of the Ministry of Internal Affairs, military, civil servants, etc., as well as specific by-laws (if they regulate working relations). These include:

presidential decrees;
resolutions of the Government of the Russian Federation;
orders of ministries and departments.

We will briefly describe how dismissal is carried out at the end of a fixed-term employment contract. When the employment agreement expires, management terminates the employment relationship with the employee. Dismissal in in this case has nothing to do with the initiative of one side or the other.

It happens that the period of validity of the agreement has expired, the manager does not require termination of the established employment relationship, and the subordinate continues to work in the same place. In such cases, courts of general jurisdiction recognize that the working relationship has become indefinite, since the participants extended the contract for indefinite time. Here lies the main catch for a company that plans to part with an employee at the end of the agreement. It is very important to inform your subordinate in a timely manner about the upcoming dismissal, despite the fact that he is aware of the period of cooperation, since he has previously read the provisions of the contract and signed the document.

In this case, an employee who was not informed about the planned dismissal can simply come to the company at the appointed time and perform labor functions as before, if, of course, he wants to continue working in this place. In this case, a person can be sure that the contract between him and the company’s management has become unlimited. Please note that the law does not provide for a reduction in working hours or other changes in the contract.

If an employee does not return to work at the end of the contract, it means that he agreed with the termination of the employment relationship.

What may be the grounds for dismissal under a fixed-term employment contract?

A fixed-term employment contract is an agreement between an individual being hired and an employer. A fixed-term contract is concluded for a certain period of time.

The law states that a fixed-term employment contract is allowed to be concluded when the establishment of long-term (permanent) employment relationships is not possible.

Article 59 of the Labor Code of the Russian Federation states that the following grounds may be used for concluding a fixed-term employment contract:

The company plans to hire a new employee who will perform the labor functions of temporarily absent specialists.
It is necessary to perform seasonal or temporary (for a period of no more than 2 months) work.
It is necessary to carry out specific types works and services that are not related to the employee’s daily activities.
It is required to perform labor functions that must be completed at a strictly defined time.
The company sends an employee abroad.
The jobs are related to internships and studies.
The company temporarily employs specialists who are undergoing alternative civilian service, or employees whom the employment center has assigned to temporary work.
In a number of other situations permitted by the law of the Russian Federation.

In addition, the conclusion of fixed-term employment contracts is allowed with such categories of specialists as legal assistants, prosecutors and persons in the civil service.

A fixed-term contract can reflect both a specific date and a specific event, after which the temporarily hired employee will cease to perform work duties. If the employer is not interested in further cooperation, then at the end of the contract he will fire the subordinate.

Dismissal under a fixed-term employment contract is usually due to:

the return to work of a permanent employee whose duties were temporarily performed by another specialist;
termination of the contract during work for which the company hired a temporary employee, or the end seasonal work(Article 77 of the Labor Code of the Russian Federation);
agreement of the parties (Article 78 of the Labor Code of the Russian Federation);
initiative temporarily accepted employee(Article 80 of the Labor Code of the Russian Federation) or a company (Article 81 of the Labor Code of the Russian Federation).

As already noted, if the contract has expired, but the parties want to continue cooperation, it is considered that the contract has been extended for an indefinite period, and the grounds on which the dismissal was made no longer have legal force.

Dismissal upon expiration of a fixed-term employment contract is provided for in Art. 77 of the Labor Code of the Russian Federation. Management must notify the subordinate of the termination of the employment relationship 3 days before the termination of the contract. If a temporarily hired specialist is fired because a permanent employee starts working, management may not warn about the termination of the agreement.

Let's consider the reasons why an employee may insist on terminating a fixed-term employment contract:

the presence of an illness or disability due to which he is unable to continue to perform his work duties;
illness of a family member;
failure by the employer to fulfill its obligations, terms of the agreement or violation of the Labor Code of the Russian Federation;
relocation of the employee to another place of residence;
admission to an elected position;
other circumstances.

If an employee wishes to terminate the agreement ahead of schedule, he must notify administration representatives 14 days before the intended dismissal. If the parties come to a common opinion and the employer does not object, termination of a fixed-term employment contract can occur before the expiration of 14 days.

There are often situations when, despite the employee having valid reasons, the company does not want to terminate the employment relationship with him (does not admit that he committed violations on his part, or does not regard the reason for early dismissal as valid). In such cases, a fixed-term employment contract can be terminated through the court or the Commission on labor disputes(KTS).

Example. Marina Petrova was hired on the basis of a fixed-term employment contract for accounting. Petrova was supposed to perform her labor functions during the period while the permanently working accountant was on sick leave. A month after the conclusion of the employment agreement, Marina Petrova expressed a desire to terminate the employment relationship in connection with the transfer of her husband to another city. The company considered that the reason was not valid enough and refused to terminate the contract. Then Petrova went to court and achieved a decision in her favor.

Fixed-term employment contract: dismissal at the initiative of the employer

Dismissal under a fixed-term employment contract due to the employer’s initiative is possible if:

the enterprise is liquidated;
staff reductions;
the temporary employee is not suitable for the position;
a temporary worker systematically fails to perform his or her functions or does not perform them properly;
the owner of the enterprise changes (applies to the head of the company, deputy manager and chief accountant);
a temporary employee violates labor discipline;
a temporary employee provides false or falsified data when concluding an employment agreement;
a temporary worker commits actions that seriously harm the company, etc.

The employer should remember that:

Any basis for termination of employment relations implies the presence of reasons specified in the Labor Code of the Russian Federation. For example, when dismissal for regular failure to fulfill job duties without good reason, you must first impose disciplinary action in the form of a reprimand or otherwise. The recovery period is 1 year. Upon completion of this period, it loses legal force.
All reasons on the basis of which an employment contract is terminated early must be documented (the document can be memo, an explanatory note from the employee, an act if there is no explanation, or an order for recovery).
Early termination of an employment contract with an employee who is under 18 years of age is possible only with the written consent of government agencies - the Commission on Minors' Affairs and the Labor Inspectorate. The only exception is the complete liquidation of the organization.
Legal requirements must be observedterms of dismissal under a fixed-term employment contract. For example, if dismissal under a fixed-term contract is carried out early due to violation of labor discipline, a penalty must be imposed no later than a month from the moment it was discovered, and no later than six months from the moment it was committed.
It is necessary to pay compensation for providing guarantees, including if a fixed-term employment contract is terminated due to the liquidation of the company or other circumstances specified in the Labor Code of the Russian Federation.

women who have children under 3 years of age;
single mothers supporting a disabled minor or a child under 14 years of age;
a parent or other legal guardian of a child supporting a minor child under 3 years of age or a disabled minor, in a family with three or more young children, in which the second parent is unemployed.

A practitioner tells

Dismissal under a fixed-term employment contract by agreement of the parties

Ekaterina Shestakova,

General Director of the company "Actual Management", Moscow; Candidate of Legal Sciences

In accordance with Art. 78 of the Labor Code of the Russian Federation, dismissal of an employee by agreement of the parties is allowed at any time. For the employer, the main advantage here is that the subordinate cannot be reinstated in his position and cancel his decision. The courts in the Russian Federation are of the same opinion. There are many examples of termination of employment agreements in Russia. For example, a former TSUM employee tried to challenge her dismissal. The woman noted that she signed the document under pressure from management. The court studied all the materials of the case and carefully read the arguments of the parties. As a result, it was decided that the dismissal of the employee under a fixed-term employment contract was carried out in accordance with all the rules and no legal norms were violated. The very form of termination of relations can act as confirmation of the agreement of the parties (Resolution of the Moscow City Court of April 24, 2015 in case 33 15083).

In what case is early dismissal possible under a fixed-term employment contract, independent of the will of the parties?

Early dismissal of an employee under a fixed-term employment contract, regardless of the wishes of the parties to the contractual relationship, is possible in a number of situations. For example:

the employee was drafted into the army;
the court or labor inspectorate decided that management is obliged to hire former employee;
elections for office were not held;
the employee decided to move to another job by submitting a corresponding application;
the employee was issued a medical certificate of incapacity for work;
the court convicted the employee, imposed an administrative penalty on him or professionally disqualified him, and therefore the employee can no longer continue to perform labor functions, and therefore it is necessary to terminate the employment contract with him early;
an employee has gone missing or died;
force majeure or an emergency occurred (we are talking about disasters, cataclysms, major accidents, epidemics, military actions, etc.).

Here, early dismissal under a fixed-term employment contract must be carried out in a certain order. First of all, documentary evidence of what happened is required (certificate of illness, death certificate, summons, court order, etc.). Taking into account this evidence, an order is formed, which notes that the employment contract ceases to be valid.

Sometimes agreements are terminated due to the results of an inspection by the labor inspectorate. During inspections, violations by employees are often revealed. In such cases, contracts should be terminated as soon as possible. Below are common examples of violations.

The employer entered into an employment contract with an employee who was prohibited from fulfilling certain labor obligations and holding certain positions (here the employer must first offer the employee a transfer in writing, after which, if the subordinate refuses, terminate the employment contract early).
The employment agreement specifies the duties that the employee must not and cannot perform due to health reasons (as confirmation, the employee must provide relevant medical certificates and a doctor’s report).
The employer entered into an employment contract with an insufficiently qualified or insufficiently educated employee who does not have the appropriate specialized training (here we are talking about positions that, in accordance with regulatory documents, must be occupied by specialists with a certain level of professional training).

If any violation is discovered, the employment contract is terminated early. The employee is entitled to financial compensation upon dismissal under a fixed-term employment contract, the amount of which will be equal to his average monthly earnings. But if it is revealed that the employee has presented falsified documents, dismissal is carried out at the initiative of the employer, and the conditions for dismissal are somewhat different.

The procedure for dismissal under a fixed-term employment contract

The procedure for dismissal under a fixed-term employment contract is quite complicated. In this regard, employers should clearly understand that dismissal at the end of a fixed-term employment contract is carried out in several stages:

first, the employee is notified of the upcoming dismissal;
then they issue the appropriate order;
then make all necessary payments;
fill out the necessary ones in this case personnel documents;
issue the employee with a work book.

Let's look at each of the stages in more detail. For employers, this information is very useful, since they always want to carry out the dismissal procedure with minimal risks and in compliance with all legal regulations. The information will also be useful to specialists working under fixed-term employment contracts. If their rights are violated, they will know what actions to take and how effectively they can defend their interests.

Notice of dismissal under a fixed-term employment contract.

We noted earlier that notice of dismissal is very important stage in termination of employment relations with an employee. The employer is obliged to comply with the notice period for termination of the agreement in any case depending on it.

Based on Art. 79 of the Labor Code of the Russian Federation, a company that is not interested in extending its relationship with an employee is obliged to notify no less than three days in advance (ideally with a margin, that is, even earlier) of the upcoming termination of the contract.

The notice must be in writing. The document must bear the signature of the director (manager) of the organization or an official who is vested with the appropriate powers in accordance with job description or an agreement permitting the signing of such documents. It is very important that the document indicates the reason for termination of the employment relationship, that is, the expiration of the agreement period.

Ideally, the company should have a template on which such notices are drawn up. As an example, you can use the notification form presented in this article.

The notice of dismissal under a fixed-term contract must include the following information:

Full name and position of the employee;
postal address (if notification is sent by mail);
Business name;
date of conclusion of the agreement;
date of planned termination of the contract.

The notice is sent to the employee in any convenient way. The employer must ensure that the employee receives the document, otherwise the dismissal will be considered invalid.

Sample notice of dismissal for a fixed-term employment contract

If an employee has read the notice but refused to sign it, it may be necessary to draw up an appropriate act stating the employee’s refusal to sign. Three signatures are placed on the act.

In order for dismissal under a fixed-term employment contract due to the expiration of its term to take place, the act states that the employee actually read the notice, but refused to sign it, and not that he refused to read the document. If a labor dispute arises, the court will consider that the employee was improperly familiarized with information about the upcoming termination of the employment relationship, since if he refuses to familiarize himself with the document, the manager may send a notice to his place of residence. Here it should be said about the second method of notification of termination of employment relations - by post. Each employer knows at what address this or that employee lives, since this information was indicated when concluding the contract.

Recommendation: Send notice by mail only when it is impossible to deliver it in person. When sending by mail, it is better to give preference to a registered letter with a list of attachments, as you may need this if the employee wants to appeal the dismissal. There are often situations when employers do not comply with all the necessary formalities, and as a result, the courts recognize terminated agreements with an expired term as valid and reinstate dismissed employees. To avoid this situation, it is, of course, better to hand the notice in person and ask the employee to sign the second copy.

Order.

So, the employee was notified of the upcoming termination of the contract. Next, you need to draw up and sign a dismissal order (instruction). The document is signed by a person with appropriate authority. This is usually the head of the organization.

The employee must put his signature on a copy of the employer's order. If it is impossible to transmit the order to him for review, the employer records this fact in writing.

Order of dismissal under a fixed-term employment contract - sample:

The employee must familiarize himself with the order drawn up in the approved form on the day of his dismissal, that is, on the last working day.

Employment history.

The basis for entry in the work book is an order. Every organization has a work log book. It is there that the employee must sign, confirming that he has read the entry made and collected his document.

The employer must issue a work book to a subordinate on the day of dismissal under a fixed-term employment contract. In addition, the document states the reason for dismissal. In this case, this is the expiration of the employment agreement.

If on the day of dismissal an employee is absent from the workplace (for example, on sick leave), the employer’s representative is obliged to send him a notice of the need to pick up the document and offer to send it by mail.

After receiving the notification, the former employee can come himself to pick up the work book, or agree to receive it by mail.

If the employee agrees to receive the document by mail, the organization must send the work book within three days to his home address former employee. To send of this document better use ordered letter with a mandatory description of the attachment. The importance cannot be underestimated work book, since this document plays a key role in the issue of confirming work experience. Accordingly, in the event of proceedings, the company will be required to prove that it sent the document to the employee (for example, if the work book is lost).

If dismissal is carried out under a fixed-term contract, the entry in the employment record should be something like this:

How is calculation made when dismissal under a fixed-term employment contract?

The calculation is made as follows:

the number of months worked is multiplied by a factor of 2;
the result obtained is multiplied by average earnings per day.

It is the amount that will be received as a result that the employer must pay to the dismissed employee as compensation for unused vacation days.

If dismissal is made under a fixed-term employment contract, the validity period of which is 2-11 months, the amount of compensation is calculated according to the same scheme. If 11 months have passed since the employee was hired, a coefficient of 2.33 is used. The number of months is multiplied by a coefficient and the days of vacation and parental leave used are subtracted from the result obtained.

In accordance with Art. 291 of the Labor Code of the Russian Federation, for each month worked, a specialist is entitled to two days of rest. Therefore, if a subordinate worked for 2 months, upon dismissal the company pays him compensation for 4 vacation days if they were not used during work. That is, if a fixed-term contract was concluded with an employee for 1 month, compensation is calculated taking into account the average wages in 2 days.

When calculating compensation for leave upon dismissal under a fixed-term employment contract that the employee did not take advantage of, there is one more feature. If a person has worked for more than 15 days, that is, more than half a month (in February it is 14 days), the company pays compensation for 2 days. If an employee has worked less than half, at least for 1 day, he is not due compensation upon dismissal under a fixed-term employment contract.

When concluding a fixed-term employment contract, employees often do not know whether they are entitled to annual leave. But after a certain period this question still arises.

In Art. 114 of the Labor Code of the Russian Federation states that all employees with whom employers enter into labor relations can count on additional rest, vacation, which does not include weekends. That is, when concluding a fixed-term employment contract, the employee is clearly entitled to compensation for vacation days if he did not take vacation during work or in the process of dismissal.

When terminating an employment relationship under a fixed-term contract, compensation for vacation days has some features. It all depends on the period for which the employment agreement was concluded. For those who have concluded employment contracts for a period of up to 2 months, as well as for people hired to perform seasonal work, the duration of vacation is calculated at the rate of 2 days per month worked (the employee must work more than half the month).

As for contracts concluded for a longer period, the duration of the vacation is calculated in accordance with in general granting vacations. That is, the calculations are similar to those carried out for regular employment agreements (not fixed-term ones).

Accordingly, compensation for unused vacation days is calculated based on the number of allotted vacation days.

Example No. 1. A seasonal employment agreement was concluded with citizen Ivanov A.A. for the heating season from October 15, 2013 to April 15, 2014. Ivanov was hired as a boiler room operator, but on March 1, 2014, the citizen expressed a desire to terminate the agreement early.

Ivanov’s average daily earnings for the period of work amounted to 650 rubles (including required bonuses and other monetary rewards for the time worked). In fact, Ivanov performed labor functions at the enterprise:

17 days in October (more than half the month);
November, December, January, February – completely;
March - one day (since the day of dismissal under a fixed-term employment contract is recognized as the last working day).

In total it turns out to be 4 full months and 1 month - more than half. That is, when calculating, we take into account that the employee worked at the company for 5 months.

Since he worked 1 day in March 2014, no vacation is provided for this month.

5 (months) x 2 (days allocated for one month worked) = 10 days

This is exactly the kind of leave that boiler room operator A. A. Ivanov is entitled to for the period of his labor activity.

By multiplying the number of days by the average daily earnings, we obtain the amount that the company must pay Ivanov upon dismissal as compensation for unused vacation days.

650 rubles x 10 days = 6500 rubles.

Example No. 2. The company hired a specialist for servicing office equipment from 01/05/2016 to 01/05/2017, A. B. Petrova, concluding an employment contract with him for a period of one year. Due to family circumstances, Petrov needed to move to another city for permanent residence and, accordingly, leave his job on September 1, 2016. The employee’s daily earnings averaged 738 rubles. In fact, Petrov performed his labor functions in the organization for 8 months. When multiplying the number of days by 2.33, which are used when calculating vacation when concluding an employment contract for more than 2 months (if the work is seasonal), the following results are obtained:

8 (months) x 2.33 (days due vacation) = 18, 64 days are rounded up to 19 days in favor of the employee.
19 (days of earned vacation) x 738 rubles = 14,038 rubles. This is compensation upon dismissal under a fixed-term employment contract for unused vacation days, due to Petrov A.B. upon dismissal.

The employer must pay the employee off on the day of dismissal. Delaying payments is illegal if both an open-ended and a fixed-term employment contract have been concluded. Dismissal on a day off or absence of an employee at the time of dismissal for other similar circumstances is carried out according to special rules. In such cases, the company counts the employee within 24 hours after he appears at work. If the dismissed person does not agree with the presented calculation and amount due payments, the company pays him those funds that are not disputed.

Features of dismissalunder a fixed-term employment contract

Is work required upon dismissal under a fixed-term employment contract?

The Labor Code of the Russian Federation does not say anything about whether work is required if an employee is dismissed under a fixed-term employment contract. But this clause could well be included in the agreement. Thus, the employer has the right to establish a three-day work period upon expiration of the employment contract. Overtime work is not allowed.

It is also worth remembering the nuances of dismissal on a day off. If the last working day, in accordance with the contract, falls on a weekend, then the employee is fired on the next working day. Registration of dismissal is allowed on the last working day if the parties agree on this.

Often, according to the terms of the contract, employees undertake to work on a reduced schedule 2 weeks before the termination of their employment relationship. Employers may stipulate other conditions in agreements. When signing the contract, the employee agrees to these terms. At the same time, the parties will certainly agree on the amount of salary.

Is it possible to fire someone at will?

Both open-ended and fixed-term employment contracts allow dismissal at the employee’s own request. The procedure for dismissal does not depend on working conditions and timing of work. It is important here that the employer does not put pressure on the employee.

If the term of the employment agreement is less than 2 months, you must inform the employer about this 3 days before the proposed dismissal. If the parties agree, dismissal can be processed before the expiration of this period.

During sick leave.

A fixed-term employment contract has distinguishing feature: it is issued for a certain time, after which the manager receives the right to terminate business relationship with a subordinate. In this case, the state in which the employee is is not taken into account.

If the sick leave was issued several days before the end of the agreement, dismissal is carried out on the established date. A company can pay sick leave only to an employee who is on the payroll during his or her incapacity for work. The only exceptions are work injuries received during the performance of labor functions. In such situations, the manager pays compensation to the employee, and if the case is very serious, he does not fire him. But in real life, this happens extremely rarely and only after a trial.

Dismissal of a pregnant woman under a fixed-term employment contract.

The Labor Code of the Russian Federation states what rights pregnant women have. Expectant mothers are protected by law and therefore cannot be fired under any circumstances. But what about a fixed-term employment contract?

There are a number of features:

Dismissal of a pregnant woman under a fixed-term employment contract is prohibited even after the agreement has expired. If management does not want to continue the employment relationship with the employee, she can apply to terminate the contract before the end of the pregnancy;
The application must be accompanied by a medical certificate confirming pregnancy and due date. In this case, the employee will be fired only after 70 days (postpartum period). Before its expiration, she has the right to either continue working or, by agreement, go on unpaid leave.
after the term of the agreement is extended, the employee is obliged to present management with a certificate of pregnancy from a medical institution once every 3 months;
in accordance with the request of a pregnant employee, management is obliged to create optimal working conditions for her (translate to more light work or, for example, reduce working hours). Management's refusal in this case is an illegal action.

A fixed-term employment agreement loses legal force after 70 days from the birth of the child, that is, after the postpartum period.

Payment of child benefits and other compensation is not the responsibility of the employer. The time during which the employee was unable to work on the basis of sick leave for pregnancy and childbirth is paid for by the Social Insurance Fund or the employer.

In the event of a termination of pregnancy, the manager has the right to dismiss the employee under a fixed-term employment contract immediately after learning about it.

However, a pregnant employee still does not have unlimited rights. For example, if she was hired to perform labor functions while replacing another employee, management is not obligated to employ the expectant mother after the expiration of the agreement. If there are current vacancies in the organization, including lower-level positions with lower salaries, management is obliged to transfer the woman. She has the right to take an open position and remain in the company. If the employee refuses the transfer, she is fired.

During maternity leave.

Employers should also remember about the registration features of a woman who is already pregnant and after giving birth plans to go on maternity leave before the end of the contract.

The dismissal of such an employee is permitted within a specified period. It is not necessary to wait until maternity leave ends - the main thing is to comply with the established deadlines (pregnancy period and 70 days after childbirth).

In this case, after dismissal, the woman is entitled to child care benefits. To receive such a benefit, she just needs to contact the Social Insurance Fund, providing a package of documents for the child and a certificate of income. The woman's child benefit will be paid in full, taking into account her average salary for the time worked in the organization.

Pensioners.

The same scheme applies to the dismissal of retired citizens under a fixed-term employment contract. When employing pensioners, enterprise management has the right to dismiss them after the agreement expires.

Dismissal of an employee hired during the absence of the main employee.

The basis for the dismissal of an employee hired during the absence of the main employee is the departure of a permanently working specialist. An employee with whom a fixed-term employment contract was concluded does not have to submit a resignation letter. At the same time, the employer does not have to worry about whether it is necessary to send a notice to the subordinate in connection with the expiration of the agreement period. An employee hired for a certain period of time is fired according to the scheme already outlined above.

In this case, the nuance is that the company may not know exactly when the main employee will return to work, since he has the right to begin his duties on any day convenient for himself, having previously informed the employer about his plans.

As a result, a company that dismisses a temporary employee cannot always inform him of the termination of the employment contract within the period specified by law. However, employers have nothing to fear. Failure to notify an employee of an upcoming dismissal in a timely manner is not regarded by the courts as a significant violation, and the dismissed employee has no right to claim reinstatement on this basis.

Dismissal of a foreign employee.

The dismissal of foreign workers at the end of a fixed-term employment contract is carried out on the same basis as their hiring. The period for concluding fixed-term employment contracts with foreign citizens in Russia corresponds to the period of the work permit issued to them. Consequently, when the permit expires, the period of the employment agreement with the foreigner or stateless person also ends.

Company that is hiring foreign citizen, should not infringe on his rights and interests. A fixed-term employment contract with foreigners is concluded on the grounds specified in Art. 59 of the Labor Code of the Russian Federation, as with citizens of Russia.

Other nuances.

Dismissal under a fixed-term employment contract has other features that employers should take into account:

Dismissal of an employee under a fixed-term employment contract at the initiative of management is prohibited. An employee can be dismissed only if he has seriously violated labor discipline or his job responsibilities. However, practice shows that such circumstances are often challenged in court, which forces management to reinstate dismissed employees;
Employment under a fixed-term agreement does not provide benefits for pension and tax contributions. Salaries are paid in accordance with the established rate minus tax. The employee uses everything provided for by law guarantees and privileges, he has the right to take sick leave, vacation, etc.;
The employer always has more rights when concluding a fixed-term employment contract. Judicial experience shows that most cases are won by managers, not employees;
a strictly defined period for the performance of labor functions does not allow employees to miss work days and not perform their duties without good reason. The manager has the right to fine an employee who violates work schedule, and the type of agreement in this case does not play any role.

In any controversial situation the best option- seek advice from a qualified lawyer and carefully read the articles of the Labor Code of the Russian Federation.

The grounds for dismissal under fixed-term employment agreements are general. There is only a small list of important details that both company management and employees should remember.

It should be noted that Russian legislation does not approve of hiring citizens under fixed-term agreements. However, it is necessary to strictly observe the norms of the Labor Code of the Russian Federation and follow the established rules in order to avoid troubles in the future.

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

A fixed-term employment contract is concluded only if there are compelling reasons. But enterprise management usually does not focus on this, violating the norms of the Labor Code of the Russian Federation.

Below we will look at the main mistakes that employees and managers make when concluding fixed-term employment agreements.

1. The contract does not indicate an end date. If the employment agreement that was concluded with you does not indicate the end date, consider that you have been entered into an agreement for an indefinite period.

2. The agreement signed with you for the period of replacement of the main employee indicates the day of its termination. the document must state that it ceases to be valid when the main employee returns to work (Part 3 of Article 79 of the Labor Code of the Russian Federation). In other situations, termination of employment relations is unlawful.

3. The employer does not comply with the dismissal procedure established by law:

The manager notified the employee of the termination of the employment relationship less than 3 days before the dismissal. When considering disputes, courts most often take the side of an employee who was not notified of dismissal in a timely manner. In this case, they are guided by the norms of Art. 79 of the Labor Code of the Russian Federation.
The manager did not provide you with an order (instruction) on dismissal for review, thereby violating the provisions of Art. 84.1 Labor Code of the Russian Federation

4. The manager repeatedly, repeatedly enters into employment agreements for short periods.

5. An employer fires a pregnant woman.

6. The employee inattentively reads the documents without delving into their essence. Both when concluding and terminating contracts, employees are required to read them carefully before signing.

Appealing dismissal under a fixed-term employment contract in court

If an employee considers his dismissal to be illegal, he has the right to file a complaint with the prosecutor’s office, the labor inspectorate, or file a lawsuit for reinstatement. It must be borne in mind that reinstatement, of course, can only be carried out if there are legal grounds.

If an employee was fired due to the expiration of a fixed-term employment contract, the basis for reinstatement may be a violation by the employer of the dismissal procedure. For example, if the employee was not properly notified of the termination of the employment relationship or was informed about it within a period shorter than that provided by law, this becomes grounds for reinstatement. IN similar situations the courts will certainly reinstate the employee in his position - this is evidenced by quite extensive judicial practice.

You should also be aware of the statute of limitations for fired employees' claims for reinstatement. According to the Labor Code of the Russian Federation, this period is equal to 1 month from the day the work book is issued to the employee.

TO urgent types labor relations include those formalized for a period of two months or more, in accordance with Article 289 of the Labor Code of the Russian Federation.

Labor Code of the Russian Federation, Article 289. Conclusion of an employment contract for a period of up to two months

When hiring for a period of up to two months, no testing is imposed on employees.

Here it is allowed to indicate the exact period of dismissal, or only a replacement precedent can be indicated, for example, “for the period maternity leave».

The general regulations for leaving a position at the request of an employee are based on the norms of the sources of legislation set out:

Data legislative acts do not contain restrictions or other prohibitions on the termination of work activities of temporarily employed persons. According to legal regulations, this category of workers has the right to take initiative by stopping work within the time frame they require.

In such situations, the employer does not have the right to establish prohibitive measures and interfere with the dismissal procedure.

ATTENTION: The ban on dismissal of a temporary worker is one of the gross violations labor legislation, according to which administrative liability is imposed.

Various nuances

Notice period and working time for a temporary worker

The main nuance when dismissing this category of employees is the reduction of the working period. In this case When a position is vacated, the employee must work for 2 weeks, which corresponds to general standards, only if the contract is concluded for more than 2 months (Article 80 of the Labor Code of the Russian Federation).

When signing a contract for a shorter period, notice is required at least 3 days in advance.

This rule reflects similar advantages of the employer, who warns about the expiration of the employment contract or about the departure of the main employee in the same way, 3 days in advance.

Application for voluntary resignation

To terminate the employment relationship of the parties at the initiative and desire of the employee, an official application must be received on his part in accordance with the norms of Article 292 of the Labor Code of the Russian Federation, submitted to the authorized official (head of the organization) or individual entrepreneur(IP).

Labor Code of the Russian Federation, Article 292. Termination of an employment contract

An employee who has entered into an employment contract for a period of up to two months is obliged to notify the employer in writing three months in advance. calendar days O early termination employment contract.

The employer is obliged 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.

An employee who has entered into an employment contract for a period of up to two months, severance pay upon dismissal is not paid, unless otherwise stated federal laws, collective agreement or employment contract.

The application indicates the basis for concluding the employment contract, its urgent nature - indicating the reason for the intended further dismissal and the request for termination.

For example: “I ask you to terminate the employment contract concluded for the period of maternity leave of T.P. Konopelnaya, dismissing the cashier-seller from her position at her own request.”.

Order to terminate the employment contract

The employer is obliged to endorse the application and draw up an order based on it.

The order requires you to indicate details in the form of a serial number and date of release, which will subsequently be entered into the work book. The document form is standard, corresponding to the norms of personnel records management.

The name of the order is “Dismissal Order”.

The wording could be as follows: “To dismiss, at his own request, the salesperson-cashier N.N. Mironova, hired for the duration of maternity leave by T.P. Konopelnaya.”

Making an entry in the work book

The order is always issued before the work book is filled out, which is based on it as the basis for termination of the contract, as evidenced by the corresponding entry. It is done as follows:

The name of the organization does not need to be entered, since it was already entered when concluding the agreement.
The first column (column) contains the serial number of the entry.
The second column indicates the date of termination of the contract, which is the last day of work.
This date necessarily corresponds to the day of dismissal specified in the order and in the application, but may differ from the date the order was issued and other documentation was completed.
The third column gives the wording of the dismissal. Here it is no longer necessary to indicate the fact of substitution or the urgent nature of the work, as this follows from the previous appointment record.
The wording should be simple: “Dismiss at your own request on the basis of paragraph 3 of part 1 of Article 77 Labor Code RF".
Also in the third column the wording “at the initiative of the employee” is allowed with reference to Article 80 of the Labor Code.
The name of the document (order) on dismissal and its details are entered in the fourth column.
Below is the position, surname and initials of the person who made the entry.
The entry is certified by the employer's seal.

IMPORTANT: The parties can draw up an agreement regulating the terms of service and the amount of severance pay; in this case, dismissal is carried out “by agreement”, with reference to the norms of Article 78 of the Labor Code of the Russian Federation.

Labor Code of the Russian Federation, Article 78. Termination of an employment contract by agreement of the parties

An employment contract can be terminated at any time by agreement of the parties to the employment contract.

Calculation of severance pay

On the last working day, severance pay must be calculated. It includes:

the balance of wages not received by the employee;
bonuses and other payments - at the discretion of the employer;
compensation for vacation days.

These employees are entitled to vacation if the contract was concluded for more than 2 months.

Leave is provided in the amount provided for in the employment contract, in proportion to that specified in local acts and standards. That is, it cannot be less than for other employees working in a similar position.

The number of days is counted from the last day the employee was on vacation. The calculation is made by dividing the duration of the vacation by 12 and multiplying the resulting number by the number of months worked after the vacation.

If an employee has worked for less than a year, compensation is provided for the months worked. In this case, a month is considered to be more than 15 working days; if fewer days are worked, this month is not taken into account.

REFERENCE: If the contract does not provide for the duration of the vacation, 2 working days are taken into account for each month worked.

What documents and certificates are issued to the employee?

Payments and documents are issued on the last working day, which is considered the day of dismissal.

The main document that must be issued is a work book. The employer does not have the right to delay it for more than three days if the employee has not applied for it.

Upon written request, he may be given:

copies of diplomas and other educational documents;
certificates and certificates of advanced training;
certificates of assignment of rank;
documentation of internship, etc.

They are extracted from the employee’s personal file, or issued in the form of extracts or copies. Documents confirming his acceptance into the position remain with the employer and are stored in archival data.