Algorithm for dismissal under a fixed-term employment contract

The main reasons for terminating a fixed-term employment contract

According to the Labor Code, the employment of a new employee by default is carried out on an indefinite basis.
However, there are exceptions: the law lists in detail cases where the nature and conditions of work either prescribe or allow the employer to enter into an agreement indicating the deadline for its completion. Then the contract specifies either a specific date when its validity expires, or indicates a specific event after which the employee’s services will no longer be needed.

In any case, as the agreed end date of a fixed-term contract approaches, the employer begins to think: is it necessary to terminate such a contract and how?

By law, any dismissal must have a reason, which must be indicated in the documents. STD has only one particular reason for dismissal, which is not characteristic of BTC - namely, the expiration of the employment contract. All other grounds are common to both fixed-term and open-ended employment contracts.

Let us consider all these reasons in turn, which we will conditionally divide into five categories:

1. Expiration of the STD;
2. On agreement of the parties;
3. At the initiative of the employee;
4. At the initiative of the employer;
5. Due to independent circumstances.

Expiration of the STD

• Return to work of the main employee. Then the deputy is forced to leave. For example, a young mother returning from maternity leave or the recovery of a key employee;
• The end of work, temporary or seasonal, for which the employee was hired. For example, the end of the harvest or the completion of equipment installation;

On agreement of the parties

Dismissal by agreement of the parties is considered the most “peaceful” reason. In theory, this means that both the employer and the employee have decided not to continue the employment relationship and are terminating it by mutual agreement.

At the initiative of the employee

Dismissal at one's own request may have the following reasons:

• Serious illness of the employee himself or the onset of disability, in which work becomes impossible;
• Serious illness of one of the employee’s family members and, as a result, the need to care for the sick;
• Violation by the employer of the Labor Code, the terms of the contract or his duties. For example, if in the contract the employer agreed to organize hot meals for the harvesters and did not fulfill the obligation;
• Changing the employee’s place of residence or moving with a spouse;
• Transfer of an employee to another employer or assumption of an elective position;
• Refusal of the employee to continue the employment relationship due to the reorganization of the company, change of owner or change in the type of enterprise;
• Refusal of an employee to follow the employer if he moves to another area.

The employee is obliged to notify the administration of his intention two weeks before actually leaving work. During this period, the employee can withdraw his application in writing if he has changed his mind and another person has not yet been hired in his place. After this period, the employee has the right not to go to work.

If a fixed-term contract was concluded for a period of up to two months or for seasonal work, the employer must be notified three days before dismissal. However, by mutual agreement, “working off” may not be required at all or may be reduced.

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Dismissal of a pregnant woman under a fixed-term employment contract: important nuances

In case of unlawful resistance on the part of the employer - failure to admit his guilt or a valid reason - the employee can file a complaint with the court or the Labor Dispute Commission.

At the initiative of the employer

An employer may terminate relations with an employee early on the following grounds:

• liquidation of the organization;
• reduction in the number of employees;
• change of owner (applies to the manager and his deputy, as well as the chief accountant);
• the employee systematically evaded the performance of his official duties or performed them improperly;
• the employee violated labor discipline;
• it turned out that the employee presented false documents during employment or his qualifications did not meet the required level (determined during certification);
• causing significant harm to the organization;
• committing theft or disclosing trade secrets.

If an employee is on sick leave or on vacation, during this period he cannot be dismissed at the initiative of the employer. The exception is the liquidation of an organization.

Dismissal due to independent circumstances

In some cases, dismissal is forced, although neither the employee nor the employer wanted it.

This occurs under the following circumstances:

• conscription of an employee into military or alternative civilian service;
• transfer of a person to a place of imprisonment in connection with a court verdict;
• reinstatement of the employee to his previous position in connection with an official decision of the labor inspectorate or court;
• death of an employee or the occurrence of emergency circumstances (war, earthquake, major accident, epidemic).

If the agreement lasts

An employer has the opportunity to dismiss a temporary employee for other reasons. Let's consider terminating a fixed-term employment contract before its expiration. This happens for the same reasons as for an indefinite term (Article 77 of the Labor Code):

• at the initiative of the employee (at his own request) (Article 80 of the Labor Code, paragraph 22 of the resolution of the plenum of the Supreme Court of March 17, 2004 No. 2);
• at the initiative of the employer;
• by agreement of the parties (clause 1, part 1, article 77 of the Labor Code, article 78 of the Labor Code, clause 20 of the resolution of the plenum of the Supreme Court of March 17, 2004 No. 2);
• due to circumstances beyond the control of the employee and employer, for example, when an employee is called up for military service (Article 83 of the Labor Code).

At the initiative of the employer

The grounds on which a fixed-term employment contract is terminated at the initiative of the employer are usual. They are given in Art. 81 Labor Code and do not differ from the grounds for permanent employees. If an employee violates discipline or does not perform job duties, it is important to correctly record all deviations (Chapter 30 of the Labor Code).

At the initiative of the employee

A person working under a fixed-term contract submits a letter of resignation (clause 3, part 1, article 77 of the Labor Code). There are some peculiarities if termination of a fixed-term employment contract is formalized at the initiative of the employee (Article 80 of the Labor Code). The application is submitted:

• no less than three calendar days before the date of dismissal, if the contract is concluded for a period of up to two months or for seasonal work (Articles 292, 296 of the Labor Code);
• not less than two weeks, if concluded for a period of more than two months (Article 80);
• no later than 1 month - in case of early termination with the head of the organization (Article 280 of the Labor Code);
• within the period specified in the application, if the employee cannot perform work for reasons beyond his control, he is enrolled in training, retires, if the employer violated the law, the terms of the collective or labor agreement (Part 3 of Article 80 of the Labor Code).

By agreement of the parties

By agreement of the parties, it can be terminated at any time. The document is signed according to the following sample.

What this option allows:

• agree on deadlines;
• agree on compensation (if necessary);
• avoid further litigation.

Registration procedure

The procedure for dismissal under a fixed-term employment contract is the following algorithm of actions:

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• Notice of dismissal under a fixed-term employment contract - drawing up a notice
• Drawing up a dismissal order.
• Familiarization of the employee with the dismissal order.
• Preparation of the calculation sheet.
• Familiarization with the calculation sheet.
• Calculation on the day of employee dismissal.
• Drawing up a work book, making a record of dismissal and explaining on what basis the termination of employment occurred.

Documentation

Dismissal at the end of a fixed-term employment contract involves drawing up and filling out the following documents:

• Employee statement. If the dismissal occurs at their own request, the employee writes a statement two weeks in advance, indicating the reason for his decision. Usually, an article of the Labor Code of the Russian Federation and a paragraph of this article are prescribed.
• Notification to the employer (if the manager takes the initiative in dismissal). The document must be drawn up in 2 copies, registered in the personnel department and contain the reason for dismissal, a request for confirmation of reading this notice must be written and the signature of the dismissed employee must be written.
• Order of dismissal. The document must be prepared on the day of dismissal of the employee in several copies, one of which remains with the employer with the employee’s signature confirming its familiarization. If for some reason the employee was not familiar with the order, an appropriate note should be made about this.
• The completed work book is handed over to you.

This is also important to know:
Dismissal at will: article of the Labor Code

Correct execution of all documents will allow the employer to avoid possible future legal disputes or proceedings with the labor dispute commission.

Reasons for dismissal

According to Russian legislation, in order to conclude a fixed-term employment contract, a number of factors must be present. First of all, the employer must provide compelling evidence that it is impossible to do this on a permanent basis.

The expiration of such an agreement is tied either to a specific date or to the occurrence of a certain event.

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

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

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

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

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

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

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

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

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

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

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

The legislative framework

Often a contract with an employee is concluded for a short period of time. It is called a fixed-term contract. Completion of the established period is grounds for dismissal of the employee.

Issues of termination of working relations between the parties are regulated by the Labor Code of the Russian Federation of the Labor Code of the Russian Federation. In particular, article No. 79 of the Labor Code of the Russian Federation considers dismissal due to the expiration of the employment contract.

The relationship between a manager and a subordinate is regulated by other provisions of this legal act. The list of articles of the Labor Code of the Russian Federation that an employer should know in order to carry out the dismissal correctly, and a citizen in order to know his rights and be able to defend them if necessary, is given in the table below.

A fixed-term employment contract is concluded when the working relationship cannot be carried out on a permanent basis. All initial provisions for concluding this type of contract are presented in Article 59 of the Labor Code of the Russian Federation.

Employment history

It is necessary to make an entry in the work book form after the order is issued. An employee who has stopped working must sign the work record book. By this he confirms that he has received the document and agrees with all the entries. The document is filled out by the manager or an authorized person (often this is a personnel department employee or an accountant). The filling algorithm is discussed below.

• The first column contains a serial number that continues the previous entry.
• The second is the date of dismissal.
• In the third column, it is necessary to write down the grounds for terminating the employment contract, write down the details of the person who filled out the employment form, and affix the organization’s seal. Also in this column, the dismissed employee signs that he is familiar with the reason for his dismissal.
• The last column contains information about the document confirming the fact of dismissal.

If an employee has not received his work form, the employer must indicate this fact and send the employee a notification that he needs to pick up the document. If after this there is no reaction from the employee, then the work report is sent by mail to the actual residential address indicated in the documents.

Calculation of payments due to an employee

An employee who has entered into a fixed-term contract with an enterprise is entitled to compensation for unused paid vacations. The calculation of the amount of payments is made in accordance with the norms of the Labor Code.

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Dismissal with 2 weeks of work: how to count days

Depending on the terms specified in the contract, the amount of payments varies:

1. An employee registered for a period of up to 2 months has the opportunity to receive monetary compensation for unused vacation pay. But such a privilege is available only to those employees who have worked at the enterprise for more than 15 days. In this case, the sum of the months worked is multiplied by 2, and the resulting figure is multiplied by the average daily earnings.

If in one of the working months the employee worked for less than 2 weeks, then this time is not taken into account in the calculation, but if on the contrary, then the period worked is counted as a whole month.

An employee registered for a period of up to 2 months has the opportunity to receive monetary compensation for unused vacation pay.2. For an employee who has registered with an enterprise for a period of 2 to 11 months, the amount of due payments is calculated in the same way as in the previous paragraph. However, the amount of compensation will vary.

3. For an employee employed for a period of more than 11 months, compensation is calculated with a coefficient of 2.33. When calculating, you need to subtract the vacation days used.

The entrepreneur is obliged to pay monetary compensation on the day the employee is dismissed, because It is illegal to detain her.

After terminating a contract with an employee, you are not required to immediately notify the Pension Fund about the transaction, since you report on personnel every reporting period. But if you wish, you can send a notice of termination of the contract with an employee in free form. Temporary employment relationships are regulated by law. When concluding a fixed-term employment contract with an employee, an entrepreneur must know in advance all the legal aspects of his dismissal at the end of the contract.

Is it permissible to terminate a fixed-term contract at the initiative of the employee?

Fixed-term types of labor relations include those issued 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 date of dismissal, or only the precedent of replacement can be indicated, for example, “for the period of 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:

These 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.

This is important to know: Payment for work performed under a contract

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

How much notice must be given to a conscript about dismissal?

The notice period depends on the conditions for termination of the contract, as well as on its duration.

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Should sick leave be paid after dismissal?

If the termination of a fixed-term contract occurs during an employee’s illness, then a notice of expiration is still sent to him, and dismissal under a fixed-term contract is formalized on the specified day. A fixed-term contract is not terminated only in one case, if the fixed-term contract is pregnant.

Women in this position cannot be fired until the end of pregnancy or until the end of maternity leave, if provided, and the employer is obliged to provide such leave to a pregnant conscript. If, for health reasons, a woman cannot continue to cope with the work that she performed under a fixed-term contract, then she needs to be offered other jobs where she will be healthy enough to perform her job duties.

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A fixed-term contract with a pregnant woman is terminated only if the woman herself wants it, or she is not suitable for the position she occupies, and there are no other positions in the company for her (or the woman is not satisfied with them).

Dismissal procedure

The process is usually carried out in connection with the end of the agreement. To implement it, successive stages are carried out:

• a notification is prepared three days before the specified day;
• the notification is transmitted to the employee against signature;
• an order is issued on the basis of which cooperation is terminated;
• the necessary calculations are made, after which the citizen is paid the required funds;
• compensation is transferred if a citizen resigns during the liquidation of a company or on the basis of an agreement of the parties;
• the necessary information is entered into the work book;
• documents are handed over to the employee.

At the end of the contract, dismissal is considered a simple process compared to compulsory termination of the contract.

It is important to know! Notification is not required if the temporary employee replaced the main specialist.

Deadlines for sending notifications

The employee must be warned about the termination of cooperation. For this purpose, a corresponding document is generated. The notice is given to the temporary specialist three days before the end of the agreement. Two copies are made at once, which are signed by the citizen.

Issuance of an order

The order is formed in form T-8 if only one specialist is dismissed. If agreements with several citizens are terminated, then order T-8a is used.

The document indicates the reason for termination of cooperation, and also leaves a link to the fixed-term agreement. The date from which the person is considered dismissed is given.

It is important to know ! The dismissal of minors under a fixed-term contract is carried out in the same way as adult employees.

Calculation

Done on the specialist’s last day of work. The citizen is given a payslip containing information about all payments. Salaries, bonuses and other monetary transfers due to the employee are taken into account. If a person does not agree with the amount, then he can contact the labor inspectorate or court to get help in asserting his rights.

Automatic transformation of STD to BTC

The most important rule for an employer to remember when working with temporary employees is:

If the expiration date of a fixed-term employment contract has arrived, but neither of the parties, neither the employee nor the employer, has expressed a desire to terminate the employment relationship, the fixed-term contract by law becomes indefinite.

For example, if an employer accidentally forgot that his contract with Mr. Petrov expires on February 1, and the latter continues to do his job, then he automatically becomes a permanent employee. Then the employer will be able to dismiss him subsequently only on a general basis, having lost the opportunity to use the reason “expiration of the TD”.

If the nature of the employee’s work allows him to legally conclude an open-ended contract and both parties want to continue to cooperate, then it is enough for them not to do anything until the expiration of the contract. Then the parties enter into an addendum. agreement to the employment contract, and this will be the end of the documentation.

This is also important to know:
Dismissal at will: article of the Labor Code

If the employer is legally unable or unwilling to continue his employment relationship with the employee for various reasons, then he needs to take specific actions in relation to the latter. Which? Let's look at it in the next paragraph.

Terms of service

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

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

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

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

A separate category includes athletes and coaches whose contracts are concluded for a period exceeding 4 months. After submitting the application, they will have to work the longest – 1 month.

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

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

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

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

Preferential categories

When drawing up and signing a fixed-term agreement, you need to remember that there are some preferential categories of citizens who are not subject to the general conditions of such an agreement.

When dismissing pregnant women or mothers with children working under a fixed-term contract, there are some nuances:

• A woman in a position can be fired either if the organization is completely liquidated, or if the work involved replacing a temporarily unemployed employee who has assumed his duties. In other cases, a pregnant woman can be fired only after pregnancy and childbirth.
• The organization has the right to require confirmation of her status from the woman throughout her pregnancy.
• If the term of the employment contract has expired while the woman is pregnant, the employer must, at the request of the employee, as well as after she provides a medical document, extend the term of the employment contract until the end of pregnancy or the end of maternity leave.
• If after giving birth a woman continues to work, the employer can, according to Art. 261 of the Labor Code of the Russian Federation, terminate the employment contract with her within a week.
• At the initiative of the employer, an employment contract cannot be terminated with a woman who has children under 3 years of age, a mother who is raising disabled children who have not reached the age of majority, or children under 14 years of age.
• A fixed-term employment contract of the Labor Code of the Russian Federation does not allow termination by the employer if the employee is the breadwinner or guardian of a child under three years of age or a disabled person under 18 years of age in a family with three or more children and the second parent does not work.

How long is a notification stored?

The completed notification form should be recorded in a journal, which will confirm the fact that this information paper has been prepared for the employee. The notification itself with the employee’s introductory signature should be filed in a folder specially designed for this purpose.

It is necessary to ensure the safety of the document in proper form so that if questions arise regarding the legality of the dismissal procedure and the employer’s compliance with the rules established by the Labor Code of the Russian Federation, the notice can be presented as a supporting document.

The notice must be stored for 75 years, which is required by Article 654 of the List of Standard Archival Documents.