Dismissal under a fixed-term employment contract stages of the procedure. Dismissal of an employee under a fixed-term employment contract

Regardless of whether an employee has an open-ended or fixed-term employment contract, the dismissal procedure for own 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 warn management of your desire. From this moment, the period of "working off" begins its countdown.

By general rule the minimum time off is two weeks from the date of the warning, but there are a few exceptions:

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

For these employees, there is one more peculiarity upon dismissal: 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 probationary period- three-day working off (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 not more than four months - monthly work (art. 280, art. 348.12 of the Labor Code of the Russian Federation).

There are situations when a temporary employee needs to be fired at the time he asks for. 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 of article 81 of the Labor Code of the Russian Federation) prohibits the dismissal of employees only at the initiative of the organization (clause 4 of part 1 of article 77 of the Labor Code of the Russian Federation).

Resignation letter

The warning is drawn up in an arbitrary form, as a rule, in the form of a statement typed on a computer or handwritten. The organization can independently develop a form for such an application and familiarize employees with it - the laws do not prohibit this.

The main thing is that the employee put his signature on the application, which will allow, in the event of a litigation, 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" (to dismiss from August 15), so that there are no inconsistencies in the definition last day work.

A temporary employee can change his mind and withdraw his application, he cannot be prevented from doing this. In this case, dismissal can occur only when another dismissed employee was not invited in writing to his place in the order 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 on the basis of an application submitted by the employee. It must state that the employment relationship is terminated on the basis of

Russian legislation in the field of labor defines a special procedure for terminating fixed-term employment contracts. Therefore, it will be useful for any personnel specialist, employer or employee to know how a dismissal is formalized under a fixed-term employment contract due to the expiration of the term and for other reasons.

Dismissal under a fixed-term employment contract - article of the Labor Code of the Russian Federation and basic principles

Fixed-term employment contracts, from the point of view of legislation, imply a special procedure for legal relations between the employer and the employee. This applies both to the legal regulation of the basic principles of hiring under a fixed-term contract, and to the issues of dismissal of employees. It should be noted, however, that despite a large number of regulations affecting specifically fixed-term contracts, these documents and the nature of legal relations are applied in the rest general principles labor law in the absence of contradictions.

So, in resolving issues of dismissal on a fixed-term employment contract, the parties to labor relations should first of all pay attention to the provisions of the following articles of the Labor Code of the Russian Federation:

Art.59. Its provisions govern the application of fixed-term employment contracts in general.
Art.70. Normative base This article is devoted to the application of the test in employment, including for a fixed-term employment contract.
Art.71. The provisions of this article consider the issues of termination of labor relations during the probationary period, including for fixed-term employment contracts.
Art.77. This article lists all possible types grounds for termination of the contract, including they can be fully applied to contracts of an urgent nature.
Art.79. The provisions of the said article directly regulate the issues of terminating fixed-term contracts for a specialized reason - it cannot be the basis for application in ordinary labor relations.
Art.84.1. The norms of the aforementioned article establish general order actions used when terminating employment contracts of both unlimited and fixed-term nature.
Article 261. It regulates a special procedure for terminating fixed-term employment contracts with pregnant women.

In general, fixed-term contracts are primarily distinguished from the point of view of termination by the possibility of dismissing an employee due to the expiration of the document. These conditions provide a number of specific guarantees for both employees and employers. In particular, these include the absence of the need to pay severance pay, reduced deadlines for applying for voluntary care, and other nuances.

Types of grounds for dismissal under a fixed-term employment contract and features of the procedure

Main List possible grounds for dismissal, including under a fixed-term employment contract, is contained in the provisions of Article 77 of the Labor Code of the Russian Federation. Its principles apply in general to all employment relationships, however, when working on fixed-term contracts, there is whole line nuances. In particular, the features of the dismissal of an "urgent" employee include the following aspects:

In case of dismissal of one's own free will on a fixed-term contract, the period for notifying the employer may change. In particular, in case of a contract for seasonal work or a temporary employment contract of a short-term nature, the notification obligation is provided for three days before the planned dismissal, and not 14, as in general cases.
Dismissal at the initiative of the employer in relation to fixed-term contracts also has its own separate legal nuances. So, with a short-term contract lasting up to two months, the employer must notify the employee of the reduction or liquidation not 2 months, but 3 days before the planned date. For seasonal work, the notice period is 7 days.
Severance allowances. The amount of severance pay for dismissal at seasonal or short-term jobs, if there is a dismissal due to reduction or liquidation, is reduced. So, with a contract concluded for less than 2 months, the allowance is not paid at all, and for seasonal workers it is issued in the amount of an average two-week earnings.
Vacation compensation. For employees who are employed in seasonal or temporary jobs, vacations are calculated at the rate of two working days for each month of work. At the same time, this special calculation procedure affects the amount of compensation upon dismissal.
A special procedure for dismissal on the grounds of Article 79 of the Labor Code of the Russian Federation. The grounds for terminating the contract under Article 79 of the Labor Code of the Russian Federation suggest that it can be applied exclusively to urgent documents.

All standards applicable to fixed-term employment contracts, but not applicable to indefinite ones, become invalid in subsequent proceedings if the court finds that the contract was not of an urgent nature, or simply had to be reclassified as open-ended before the moment of dismissal.

Dismissal after the expiration of the contract - features and tips on how to dismiss an employee

IN general case the procedure for dismissal of employees on fixed-term employment contracts does not differ from the standard one. A special procedure for dismissal on a fixed-term contract is intended primarily for terminating it due to the expiration of the terms. But before looking directly step by step instructions, the employer should understand that there are various ways specifying the terms of work in the contract. These include the following options:

Until the absent employee returns to work.
Until a certain result is achieved or tasks are completed.
Until a specific date or the end of a specific time period.

Dismissal on a fixed-term contract under Article 79 of the Labor Code of the Russian Federation is permissible only if the contract is precisely urgent and does not contain procedural violations that allow it to be classified as open-ended.

In the general case, the procedure for dismissing an employee is quite complex and requires a careful approach for each side of the relationship.

Before reaching a certain expiration date employment contract the employer notifies the employee of the intention to terminate the relationship. Such notice must be given at least three days in advance. At the same time, in order to protect their rights, employers are recommended to send a notification in advance and with the ability to prove the fact of its sending - for this, mailing to an employee can be used registered letter with a list of investments and a notification of receipt, or - delivery of a notice in writing against the drawing up of an act signed by two witnesses.

If the employee refuses to be handed over, it is necessary that witnesses record this fact and sign an act indicating the refusal. Prior notice is not required in the event that the dismissal occurs due to the departure of the replaced employee to work.

If the employee is not notified of the approaching end of the employment contract within the prescribed time frame, then, provided that he continues to work, his dismissal will be considered illegal, since the contract will no longer be considered urgent in accordance with the provisions of the current legislation. This is extremely important nuance which should be kept in mind by every employer.

Based on the documents confirming the term of dismissal, the employer issues an order to dismiss the employee. The employee must also be familiarized with such an order, and if necessary, he should be given a copy of the order upon request.

On the last day of work, the employee is issued a final settlement, a work book, as well as a certificate of income and a document confirming the transfer of pension contributions. If due to the fault of the employer there is a delay in payment or issuance of documentation, the employee will be able to be reinstated at work, while such a restoration will allow him to re-qualify the contract as an indefinite one.

In general, the most serious problem for an employer, if necessary, to dismiss an employee on a fixed-term contract is precisely the possibility of re-qualifying the contract in court into an indefinite one. Therefore, first of all, the employer must ensure that the terms of the employment relationship do not exceed a five-year period, regardless of the grounds on which the employee works.

It is also necessary that the wording of the employment contract itself initially provides the employer with the opportunity to extend the terms of work - the mention of such an extension is permissible, and its presence will avoid being forced into indefinite employment. It should also be remembered that Article 261 of the Labor Code of the Russian Federation provides for a special procedure for terminating fixed-term contracts with pregnant employees.

When deciding to hire an employee in a company temporarily, you need to take into account that the procedure for dismissal under a fixed-term employment contract will differ from the general rules. In order to minimize the risks of workers turning to the labor inspectorate and the court, it is necessary to adhere to the correct algorithm for dismissing temporary workers.

The first stage is to check the legality of concluding a fixed-term employment contract

The company can hire employees either for a permanent term or for a strictly limited one. In the latter case, a fixed-term employment contract is signed. Depending on the circumstances of a particular hiring and the specifics of the work of the organization, a fixed-term employment contract is signed either taking into account the work assigned (part 1 of article 59 of the Labor Code of the Russian Federation), or by mutual agreement of the manager and employee (part 2 of article 59 of the Labor Code of the Russian Federation).

The first step is to make sure that the contract is legitimately urgent. The term of the contract must be fixed in it, otherwise de jure it will be considered unlimited (part 3 of article 58 of the Labor Code of the Russian Federation). In this case, it will be possible to terminate it only on the general grounds of the Labor Code of the Russian Federation for open-ended contracts (Chapter 13 of the Labor Code of the Russian Federation).

The second stage - the choice of grounds for dismissal

For the dismissal of a temporary worker (in the event that the term of his employment contract expires), a special basis is provided - clause 2, part 1, art. 77 of the Labor Code of the Russian Federation. It also provides for a special procedure for dismissal at the end of a fixed-term employment contract. We will consider it further.

However, this does not negate the possibility of dismissing a temporary worker at will or, for example, by agreement of the parties.

Particular attention should be paid to the dismissal of a temporary worker who is in maternity leave. If the term of the temporary contract expires during the decree period, then the contract must be extended until the end of the vacation period (Article 261 of the Labor Code of the Russian Federation). There is one exception: if a pregnant woman was hired at a maternity rate (the rate of a temporarily absent employee), then she can be fired if the replaced employee returns to work, (part 3 of article 261 of the Labor Code of the Russian Federation), provided that the pregnant temporary employee does not agree to transfer for the offered vacancies. The organization is obliged to offer all vacancies that correspond to the qualifications of the employee and the state of her health (higher paid or lower paid work).

The third stage is the preparation of a notice of dismissal under a fixed-term employment contract

The next step is to prepare a notice of termination of a fixed-term employment contract. This must be done on time, otherwise the company bears the risk of recognizing the contract as concluded for an indefinite period. This will happen if none of the parties to the temporary contract requires the termination of the contract when the term for the end of the employment relationship comes. It is enough for the employee to continue his usual work - the contract will be considered permanent (part 4 of article 58 of the Labor Code of the Russian Federation).

It is simple to determine the notice period for terminating a fixed-term employment contract: in the vast majority of cases, the employee must be notified 3 days in advance (in writing), except when the contract was concluded for the period of performance of the functions of the absent employee (part 1 of article 79 of the Labor Code of the Russian Federation) . Such an agreement is terminated with the release of a permanent employee to work (part 3 of article 79 of the Labor Code of the Russian Federation).

A temporary contract concluded for the performance of pre-fixed work is terminated if such work is completed (part 2 of article 79 of the Labor Code of the Russian Federation), a similar rule applies to seasonal work (part 4 of article 79 of the Labor Code of the Russian Federation).

The signatory in the notification is either the head of the organization or an employee authorized by him (usually an employee of the personnel service). The notice is drawn up and signed in two copies: one for the employer, the other for the employee. To minimize the risks of further litigation, we recommend getting the employee's signature on the copy of the employer about receiving the second copy in hand.

The fourth stage is the issuance of an order, the calculation and making an entry in the work book

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, etc.).

In addition, the personnel officer must give the employee a completed work book. The employee confirms this fact with his signature in the personal card and the book of accounting for the movement of work books and inserts in them (

The procedure for signing a fixed-term 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 allowed only in special cases.

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

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

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

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

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

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

Reasons for dismissal under a fixed-term employment contract

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

the main reasons are reflected above and are expressly stated in the law;
under a temporary agreement, the employee is subject to all the rules on work schedule, discipline, work safety rules, and so on. In addition, he is obliged to perform his duties with high quality and ensure high performance. This means that in case of violation of discipline and working conditions, the employee may be dismissed under the relevant article of the Labor Code of the Russian Federation (more about dismissal). For example, in case of absence from work, systematic failure to fulfill their duties, the employee will be fired;
termination of legal relations with the employer by mutual agreement is allowed. In this case, the parties should not have claims against each other. Only in the absence of conflicts, it is possible to terminate the relationship by agreement. In this case, the parties may stipulate mutual conditions and are obliged to comply with them;
it is possible to terminate legal relations under a fixed-term contract and on the personal initiative of the employee. There can 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.

Voluntary dismissal with a fixed-term employment contract

This reason is quite possible. But there are also restrictions for employees. They must 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 term for terminating the relationship further away.
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 the management. The reason is always a violation of discipline by an employee or low results of his activities.
He may be systematically late or not fulfill the production rate. In this case, it is necessary to fix the violation every time. And after fixing, the person should be brought to disciplinary punishment.

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

If the agreement specifies a deadline for its completion, then it is considered terminated upon the onset of this period. This does not require 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.

Term of notice of dismissal under a fixed-term employment contract

Obligations have not only the employee, but also the employer. One of his duties 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 legal relations.

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

Compensation for leave under a fixed-term employment contract upon dismissal occurs when the duration of the agreement is more than six months. In this case, you should calculate the compensation for the vacation that will not be granted.

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

Sample letter of resignation under a fixed-term employment contract

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

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

Is it possible. If the grounds by which the person was employed have disappeared, the woman is allowed to be fired. 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.

If an enterprise cannot conclude an indefinite employment contract with an employee, for certain valid reasons, then the law allows the conclusion fixed-term contract. It can be concluded, for example, to perform a temporary or seasonal work, as well as when performing a specific specific task. In both cases, it is important to properly terminate the dismissal at the end of the employment contract. As with the termination of labor relations on a general basis, the termination of temporary employment relations is also regulated by labor legislation, and must be observed by the employer when an employee is dismissed.

When and how does a temporary employment contract terminate?

According to the norms of Article 77 Labor Code, paragraph 2 determines that the legal basis for the termination of the employment relationship between the employer and the employee is the expiration of the employment contract. That is, this wording is related to the general reasons for which an employee can be dismissed without initiating such dismissal by the employer. In addition, the refusal to continue the employment relationship also cannot be attributed to the employer's initiative to terminate the employment contract. Thus, the expiration of the contract, in its essence, does not apply to the reasons for dismissal at the request of the employee, or at the request of the employer.

Only an important condition for the legitimacy of dismissal of an employee due to the expiration of the employment contract is the legality of concluding a temporary employment contract with this employee. If at the time of the conclusion of the employment contract, there were no legal grounds provided for in Article 58.59 of the Labor Code, the court regards the dismissal at the end of the contract as illegal and unlawful. In this case, the court may recognize the specified employment contract as such that it is concluded indefinitely. And, accordingly, it is impossible to dismiss such an employee due to the expiration of the employment contract.

Another important detail: if the fixed-term employment contract is not terminated on time, and the dismissal is delayed, the fixed-term employment contract is transformed into an indefinite one, this is the requirement of Article 58 of the Labor Code. This will lead to the fact that it will no longer be possible to dismiss an employee according to such a wording, and the issuance of a dismissal order will be unlawful. To prevent this from happening, you need to warn the employee in time that the employment contract with him will not continue.

Warning about dismissal at the expiration of a fixed-term employment contract

There are situations when an employee must be notified of an impending dismissal. Termination of an employment contract due to the end of its validity, just refers to such a case. Therefore, before issuing a dismissal order, you need to go through the procedure for notifying the employee about the termination of employment and the date of dismissal. In this case, the two-week rule does not apply. The employee must be notified three calendar days before the expiration of the employment contract. The form of notification must, of course, be in writing. Moreover, the employer must have confirmation (in writing) that the employee did receive this notice and is familiar with the situation.
This requirement of Article 79 of the Labor Code does not apply to those employees who work temporarily instead of an absent employee. When such an employee goes to work, the temporary employment contract with the temporary employee terminates. On the day of his dismissal, the employee must be given all settlements, as well as a work book.

Do not forget about the peculiarities of the dismissal of pregnant women at the end of the contract. While such an employee is in a state of pregnancy, the employer must extend the employment relationship with her until the moment of delivery. After that, he can terminate the employment relationship with her by issuing an order for her dismissal. If a pregnant employee performs the functions of a temporarily absent employee, upon his departure, the pregnant employee must be offered all the vacancies operating at the enterprise that suit her according to her position, level of education and qualifications.

Compensation upon dismissal due to the expiration of the employment contract

Since employees who have entered into a temporary employment contract with the enterprise are entitled to paid holidays, then, accordingly, compensation for unused vacations. Even if an employee is entitled to only two days of vacation, and he did not use them, he is still entitled to compensation for these two days. When calculating this amount, one should be guided by the norms of the Labor Code, since it establishes the number of vacation days for temporary employees. At the rate of two days for each month worked, an employee is paid compensation if:

an employment contract has been concluded with the employee for up to two months;
the employment contract was concluded for a certain season or period.

If, however, an employment contract with an employee is concluded for a period of one year or more, after six months of his work, such an employee already acquires the right to leave. In the event that he did not use this right, upon dismissal, compensation for the prescribed vacation time should be calculated for him, based on the days established by the contract and the law.

Compensation in the form of severance pay is not established by law for employees whose employment contract is terminated due to the termination of the employment contract. However, the employer is not deprived of the right to independently establish in the labor and / or in the collective labor agreement, additional material compensation for dismissed employees. So, for example, an employee may receive certain bonuses, allowances during his work, or may receive them during the termination of the employment contract, after a certain amount of work, if this condition is specified in the employment contract with the employee.

If an employment contract is concluded with the head of the enterprise (and temporary fixed-term employment contracts are always concluded with the management), as a rule, upon termination of employment relations with him, the enterprise pays "compensation" or severance pay in connection with the dismissal.

Registration of dismissal upon termination of the employment contract

When the term of the employment contract has come to an end, three days before the expected date, as mentioned above, the employee must receive a notice of the upcoming dismissal. After the employee is properly notified, the employer can issue an order to dismiss him three days later, that is, on the day it ends, or the next day, depending on the terms of the contract. The form of the order for dismissal, in connection with the termination of a fixed-term employment contract, is approved in the T-8 form. The order must be registered in a special manner at the enterprise, after which the employee, under his signature, must be familiarized with it.

All payouts and issuance work book must be made on the day preceding the dismissal, that is, on the last day of work at this enterprise. In case of termination of the employment contract on a holiday or day off, then the day before, the day before.