Dismissal under a fixed-term employment contract. Dismissal under a fixed-term employment contract: nuances of the procedure

Russian labor legislation 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 dismissal under a fixed-term employment contract is formalized 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

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

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

• Art.59. Its provisions regulate the application of fixed-term employment contracts in general.
• Art. 70. The regulatory framework of this article is devoted to the use of testing in employment, including for a fixed-term employment contract.
• Article 71. The provisions of this article consider the issues of termination of employment relations during the probationary period, including for fixed-term employment contracts.
• Article 77. This article specifies all possible types of grounds for termination of a contract, including that they can be fully applied to contracts of a fixed-term nature.
• Article 79. The provisions of this article directly regulate the issues of termination of fixed-term contracts for a specialized reason - it cannot be the basis for application in ordinary labor relations.
• Article 84.1. The provisions of this article establish the general procedure used when terminating employment contracts of both an open-ended and fixed-term nature.
• Article 261. It regulates a special procedure for terminating fixed-term employment contracts with pregnant women.

In general, directly 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 filing an application for voluntary leave and other nuances.

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

The main list of 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 under fixed-term contracts there are a number of nuances. In particular, the features of dismissal of a “fixed-term” employee include the following aspects:

• When leaving at your own request on a fixed-term contract, the notice period for the employer may change.
• In particular, in case of an agreement on seasonal work or a temporary employment contract of a short-term nature, the obligation to notify 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. Thus, 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 pay.
• The amount of severance pay for dismissal from seasonal or short-term work, if dismissal occurs due to reduction or liquidation, is reduced. Thus, with a contract concluded for less than 2 months, benefits are not paid at all, but for seasonal workers they are given in the amount of an average two-week salary. The procedure for compensating vacations.
• For employees who are employed in seasonal or temporary work, vacations are calculated at the rate of two working days for each month of work. Moreover, this special calculation procedure affects the amount of compensation upon dismissal. A special procedure for dismissal on the basis of Article 79 of the Labor Code of the Russian Federation.

All regulations that apply to fixed-term employment contracts, but not applicable to open-ended ones, become invalid in subsequent proceedings if the court finds that the contract was not of a fixed-term nature, or simply should have been reclassified as indefinite until the moment of dismissal.

Dismissal upon expiration of the contract - features and tips on how to fire an employee

In general, the procedure for dismissing 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 its termination due to expiration. But before considering the step-by-step instructions directly, the employer should understand that there are different ways to indicate the terms of work in the contract. These include the following options:

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

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

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

Before reaching a certain expiration date of the employment contract, the employer notifies the employee of its 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 notice in advance and with the opportunity to prove the fact of its sending - this can be done by sending a registered letter to the employee with a list of attachments and notification of receipt, or by delivering a notice in writing for drawing up an act for signature of two witnesses.

If the employee refuses to deliver it, it is necessary for witnesses to record this fact and sign a document indicating the refusal. Advance notice is not required if the dismissal occurs due to the replacement employee returning to work.

If you do not notify the employee that the expiration date of the employment contract is approaching in due time, then, provided that he continues to work, his dismissal will be considered illegal, since the contract will no longer be considered fixed-term in accordance with the provisions of the current legislation. This is an extremely important nuance that every employer should keep in mind.

Based on documents confirming the deadline for dismissal, the employer issues an order to dismiss the employee. The employee must also be familiar 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 given a final paycheck, 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, and such reinstatement will allow him to reclassify the contract as unlimited.

In general, the most serious problem for an employer if it is necessary to dismiss an employee on a fixed-term contract is precisely the possibility of reclassifying the contract in court as an open-ended one. Therefore, first of all, the employer must ensure that the duration of the employment relationship does not exceed a five-year period, regardless of the reasons for 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 - mention of such an extension is acceptable, and its presence will avoid coercion 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.

Employees can be hired either permanently or for a limited period. In the latter case, fixed-term employment contracts are concluded between the organization (enterprise) and the staff. Article 59 of the Labor Code of the Russian Federation defines special criteria with which the legislation connects the possibility of signing a fixed-term contract. When hiring personnel under such conditions, it should be taken into account that in the mentioned case the dismissal procedure has its own characteristics.

First of all, each party to the employment contract must have firm confidence that a fixed-term contract has been concluded with the employee. The requirements of Part 3 of Article 58 of the Labor Code of the Russian Federation stipulate the following: if the text of such a document has not specifically specified the validity period (a specific termination date has not been identified), then the contract is not recognized as fixed-term. That is, it is assumed that it is issued for an indefinite period of time. At the same time, if the contract is recognized as unlimited, then its termination is possible only on the grounds set out in Chapter 13 of the Labor Code of the Russian Federation.

For the purpose of dismissal of personnel with whom fixed-term contracts were issued, a special rule is provided (namely, clause 2, part 1, article 77 of the Labor Code of Russia). However, its presence does not exclude the possibility of termination of obligations under a fixed-term contract by virtue of agreement of the parties or due to such grounds as ordinary personal desire.

Expiration of the employment contract

According to Article 79 of the Labor Code of the Russian Federation, employment contracts of a fixed-term nature are subject to termination due to the expiration of their validity period. Employees must be notified in writing of the impending occurrence of this circumstance no later than 3 days (calendar) before the actual dismissal. At the same time, traditionally, the only exceptions are situations where fixed-term contracts, issued while replacing absent specialists, expire.

Contracts that were signed for the period of performance of certain works are subject to termination upon completion. Contracts concluded for the duration of the duties of absent employees are terminated when such employees return to work. Contracts issued for the purpose of performing seasonal operations terminate at the end of the season.

Termination at the initiative of the employee

The procedure for terminating fixed-term contracts if there is initiative on the part of employees is similar to the rules for terminating contracts that were signed for an indefinite period.

The general requirements for these cases are established in Article 80 of the TKPF, which provides for the right to terminate employment relations with written warning to the employer no later than 2 weeks in advance. The calculation of this period begins from the next day after the confirmed fact of receipt by employers of the resignation letter. Such confirmation can be received either in the form of a mark on the second copy of the application or in the form of a tear-off notification coupon. If the implementation of none of these options is possible, then the applications can be sent by employees as valuable registered items with an inventory of the contents and receipt receipts.

However, the legal norm of Part 3 of Article 80 of the Labor Code of the Russian Federation stipulates that if employees submit applications for dismissal due to the impossibility of work (in particular, in connection with admission to study or retirement), the management of organizations is obliged to ensure the termination of contracts on the day specified by the specialists in the applications.

Termination at the initiative of the employer

The reason for the termination of fixed-term contracts due to their expiration is in no way related to the initiative of employers. But such contracts can be terminated by employers before their expiration date. For this, a wide list of grounds outlined in Article 81 of the Labor Code of the Russian Federation can be used. In particular, the employing organization may dismiss an employee with whom a fixed-term contract was concluded in the following situations:

• liquidation of the enterprise;
• termination of work of individual entrepreneurs;
• inadequacy of specialists for their positions due to their low qualifications;
• staff reductions;
• identifying facts of repeated failure by employees to perform official functions without good reason (if there is a disciplinary sanction);
• a single gross violation of official duties by an employee (in the form of absenteeism, showing up at work drunk, divulging secrets protected by law, deliberate damage to property, theft, safety violations);
• change of owners of the enterprise (in situations related to the dismissal of management and chief accountants);
• commission of actions found guilty by specialists to whom goods and materials were entrusted;
• making unfounded decisions by management and chief accountants that resulted in damage to the property of organizations;
• commission of immoral offenses by specialists implementing educational tasks;
• employees providing false documentation to employers when applying for a job.

Fixed-term contracts with the management of an organization can also be terminated on other grounds, which must be specified in the text of the contracts. In addition, Article 81 of the Labor Code of the Russian Federation stipulates the employer’s right to terminate contracts in other cases, namely:

• in case of unsatisfactory test results during hiring (Article 71 of the Labor Code of the Russian Federation);
• in case of gross violation by teachers of the statutes of educational institutions twice during the year (clause 1 of Article 336 of the Labor Code of the Russian Federation);
• when athletes are disqualified for a period exceeding 6 months (clause 1 of Article 348.11 of the Labor Code of the Russian Federation);
• if athletes fail to comply with the current rules of the anti-doping system (clause 2 of Article 348.11 of the Labor Code of the Russian Federation);
• when authorized entities make decisions aimed at terminating contracts with enterprise managers (Article 278 of the Labor Code of the Russian Federation);
• upon removal from duties of managers of debtor enterprises in the event of bankruptcy proceedings (Article 278 of the Labor Code of the Russian Federation);
• with proven use by teachers of unworthy methods of education (clause 2 of Article 336 of the Labor Code of the Russian Federation).

In addition, special legislative norms provide regulation of issues of termination of contracts at the initiative of employers in the Ministry of Emergency Situations, internal affairs bodies, government agencies, etc.

Registration of termination

Competent execution of termination of fixed-term contracts involves the implementation of a number of procedures. Thus, the most important point is the notice of termination of the contract, which the employer must give to the dismissed employee on time. In the absence of notification, the organization faces the risk of recognizing the contract as signed for an indefinite period (Part 4, Article 58 of the Labor Code of the Russian Federation). Therefore, the notification procedure must be implemented in writing no later than 3 days before the end of the contract. The notification is drawn up in two copies and signed by the manager or a special authorized person. The dismissed employee leaves his signature on the copy that remains in the organization.

The most important stage of registration is the issuance of an order to terminate the contract. The basis on which an employee is dismissed must be stated in such an order strictly as in the Labor Code of the Russian Federation, without changes: clause 2, part 1, article 77 of the Labor Code of the Russian Federation - expiration of the employment contract. The document must be certified by the signature of the manager, HR specialist and the company seal. The dismissed employee must be familiarized with this order against his signature. Such an order is issued no later than the last day of work of the employee with whom the fixed-term contract is terminated.

Application for termination at will

If an employee wishes to terminate a fixed-term contract, he must fill out a statement (warning) about this. This document is drawn up in any form. The will to dismiss must be confirmed by the employee’s signature. In such a statement, it is necessary to clearly and unambiguously indicate the date of dismissal (preferably without using the preposition “from” to eliminate discrepancies in determining the last working day).

Recording in labor

Based on the order to terminate the contract, employers must make an entry in a document such as the work book of the dismissed employee. It must reflect the basis, identical to the order, in accordance with which the dismissal is carried out: clause 2, part 1, article 77 of the Labor Code of the Russian Federation - expiration of the employment contract.

Entries made in work books, by virtue of clause 41 of the Decree of the Government of the Russian Federation No. 225 of April 16, 2003, must be certified by the signatures of personnel specialists and the seals of enterprises. According to clause 35 of the mentioned Resolution, as well as by virtue of Article 84.1 of the Labor Code of the Russian Federation, the provision of work books to dismissed employees by employers is ensured on the day that is the moment of termination of the contract.

The fact that dismissed specialists have received these documents in their hands confirms with their signatures in personal cards and special books for recording the movement of work records.

Calculation and payments upon termination

By virtue of Article 140 of the Labor Code of the Russian Federation, upon termination of employment contracts (including fixed-term ones), the transfer of all amounts due to dismissed employees from employers is carried out strictly on the day of dismissal. If the specialists did not work on this day, then all necessary payments must be made no later than the day following the date the dismissed specialists presented the corresponding demands for final payments.

If there is a dispute about the amount of payments, then in accordance with Article 140 of the Labor Code of the Russian Federation, employers have an obligation to pay the undisputed amount of funds within the mentioned period, including in terms of wages and compensation for unused vacation.

Payment of compensation to pregnant women

When terminating fixed-term contracts with pregnant female employees, a number of features must be taken into account. By virtue of Part 2 of Article 261 of the Labor Code of the Russian Federation, an immutable principle applies in this situation: the contract must be extended until the end of pregnancy. According to the clarifications of the Supreme Court of the Russian Federation, contracts of an urgent nature are extended until the completion of the employee’s pregnancy, regardless of the reason for such completion (including abortions for medical reasons, miscarriages, birth of children).

If the expectant mother is on maternity leave, the contract is extended until the end of the maternity leave. In this case, the following conditions must be met:

• the pregnancy status must be confirmed by a medical document, which must be updated every 3 months;
• a pregnant employee must confirm in a written statement her desire to extend the term of her employment contract.

It should be borne in mind that employers have only a week to dismiss, starting from the moment when they should have learned about the end of pregnancy of an employee hired under a fixed-term contract (if she continues to work after the end of the waiting period for the baby). If such an employee takes maternity leave, then she can be fired no earlier than the end of this leave.

If a pregnant employee takes a “maternity” position, replacing a temporarily absent specialist, then, by virtue of Part 3 of Article 261 of the Labor Code of the Russian Federation, she can be fired in the only case: when she refuses to move to other vacancies offered to her by the employer company. At the same time, such an employee must be provided with information about all vacancies available at the enterprise that correspond to her state of health and level of qualifications.

Pregnant workers who have entered into fixed-term employment contracts must be granted maternity leave upon their request, based on medical documents. In this case the following are subject to payment:

• before birth - 70 (for multiple pregnancy - 84) days (calendar);
• after childbirth - 70 (for health complications - 86, for multiple pregnancy - 110) days (calendar).

There are often cases when the duration of maternity leave increases significantly due to employees receiving sick leave for additional time. Employers, having received an application for extension of maternity leave confirmed by medical documents, have the opportunity to terminate a fixed-term contract no earlier than the next day after the end of the maternity leave. Moreover, according to the general rule, employers are obliged, no later than 3 calendar days before the end of the vacation, to warn such employees about the impending termination of the contract.

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 a fairly large number of regulations relating to dismissal due to the expiration of an employment contract. We are talking about the Labor Code of the Russian Federation, various federal laws regulating the labor activities of certain groups of workers, for example, employees of the Ministry of Internal Affairs, military personnel, civil servants, etc., as well as specifying by-laws (if they regulate working relationships). 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 this case has nothing to do with the initiative of one party 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 an indefinite period. 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.

At the same time, 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:

1. The company plans to hire a new employee who will perform the labor functions of temporarily absent specialists.
2. It is necessary to perform seasonal or temporary (for a period of no more than 2 months) work.
3. It is necessary to carry out specific types of work and services that are not related to the daily activities of the employee.
4. It is required to perform labor functions that must be completed at a strictly defined time.
5. The company sends an employee abroad.
6. The jobs are related to internships and studies.
7. The company temporarily employs specialists who are undergoing alternative civilian service, or employees whom the employment center has assigned to temporary work.
8. 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 of 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 of a temporarily hired 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 Labor Dispute Commission (LCC).

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, a disciplinary sanction in the form of a reprimand or other form must first be imposed. 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 a memo explanatory 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 due to 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.

The 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 the 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 operations, 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.

1. 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).
2. 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).
3. 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 personnel documents in this case;
• 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, as 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 a very important stage in terminating the employment relationship 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 at least three days in advance (ideally with a reserve, 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 the job description or agreement allowing 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 getting into 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 record book within three days to the home address of the former employee. To send this document, it is better to use a registered letter with a mandatory list of attachments. The importance of the work book cannot be underestimated, since this document plays a key role in 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 the 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 salary for 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 the general procedure for 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 working activity.

By multiplying the number of days by the amount of average earnings per day, 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 leave 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 of entitlement leave) = 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 due to 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 calculation presented and the amount of the 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 dismissal procedure 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 a distinctive feature: it is drawn up for a certain time, upon completion of which the manager receives the right to terminate the business relationship with the 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 industrial injuries sustained during the performance of work 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 (transfer her to easier work or, for example, shorten her working day). 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 the specifics of registration for 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.

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.

A company that employs a foreign citizen must 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 duties. 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 enjoys all the guarantees and privileges provided by law, 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 labor regulations, and the type of agreement in this case does not play any role.

In any controversial situation, the best option is to 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 of the 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 such situations, the courts will certainly reinstate the employee to 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.

When deciding to hire an employee to 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 checking the legality of concluding a fixed-term employment contract

A company can hire employees either for a permanent period or for a strictly limited period. In the latter case, a fixed-term employment contract is signed. Depending on the circumstances of a particular hire and the specifics of the organization’s work, a fixed-term employment contract is signed either taking into account the assigned work (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).

At the first stage, you need 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 - choosing the basis for dismissal

For the dismissal of a temporary employee (if the term of his employment contract expires), a special reason is provided - clause 2, part 1, art. 77 Labor Code of the Russian Federation. It also provides for a special dismissal procedure at the end of a fixed-term employment contract. We'll look at it next.

However, this does not negate the possibility of dismissing a temporary employee at his own request or, for example, by agreement of the parties.

Particular attention should be paid to the dismissal of a temporary employee who is on maternity leave. If the term of a temporary contract expires during maternity leave, 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 on maternity leave (the rate of a temporarily absent employee), then she can be fired if the replacement 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 proposed vacancies. The organization is obliged to offer all vacancies that correspond to the employee’s qualifications and state of health (higher paid or lower paid work).

The third stage - preparing 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 requests termination of the contract when the end of the employment relationship arrives. It is enough for the employee to continue his usual work - the contract will be considered permanent (Part 4 of Article 58 of the Labor Code of the Russian Federation).

Determining the notice period for termination of a fixed-term employment contract is simple: in the vast majority of cases, the employee must be notified 3 days in advance (in writing), except in cases where the contract was concluded for the period of performance of the functions of the absent employee (Part 1 of Article 79 of the Labor Code of the Russian Federation) . Such an agreement is terminated when the permanent employee returns to work (Part 3 of Article 79 of the Labor Code of the Russian Federation).

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

The signatory to the notification is either the head of the organization or an employee authorized by him (usually a human resources employee). The notice is drawn up and signed in two copies: one for the employer, the other for the employee. To minimize the risks of further legal disputes, we recommend obtaining the employee’s signature on the employer’s copy of the second copy.

The fourth stage - issuing an order, making calculations and making an entry in the work book

On his last working day (Part 1 of Article 140 of the Labor Code of the Russian Federation) a temporary employee 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 provide the employee with a completed work book. The employee confirms this fact with his signature on his personal card and the book recording the movement of work books and inserts in them (

A fixed-term employment contract implies temporary employment for a certain period of time.

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Many employees expect that the employer will keep them on staff after the agreement expires. Others are not aware of their rights, which are often violated by unscrupulous managers.

Order

an employee signed up under a fixed-term employment contract is possible in two cases:

• upon expiration of the contract;
• upon completion of work that is a condition for obtaining a position;
• at the end of the season for which the employee is registered.

In the first case, the contract is concluded for a certain period of time. This could be an employee’s maternity leave, long-term sick leave, vacation, etc. Personnel for seasonal work are also registered under these conditions.

The contract must stipulate this point and indicate the period during which the employee undertakes obligations to perform certain work. At the end of the term, the employer has the right to dismiss the employee.

In the second case, the basis for dismissal is the completion of the work that needed to be completed when applying for the position.

The employer must notify the employee in writing at least three days before dismissal. By signing the paper, he gives his consent to be removed from office under the terms of the contract. On the day of dismissal, the employee receives a paycheck and a work book.

It is necessary to dismiss an employee on the day the contract expires. If this does not happen, then the contract automatically becomes indefinite, and the employee will have to be removed on a general basis.

How to make an entry in the employment record when leaving under a fixed-term contract

When applying for a job under a fixed-term employment contract, a standard entry is made in the work book indicating the name of the organization and the date of acceptance for the position.

It is not necessary to indicate that the employee fulfills obligations only for a certain time period.

But when an employee is dismissed, a record must be made of the reason for the removal from the position. For example: “Dismissal due to expiration of the employment contract.”

Notification

A notice of dismissal under a fixed-term contract must contain the following information:

• Full name of the employee, position;
• postal address if notification is sent by mail;
• Name of the organization;
• date of conclusion of the contract;
• date of planned termination of the contract.

The document must contain the signature of the head and the seal of the organization. The notification is sent to the employee in any convenient way. The employer needs to make sure that the document reaches the addressee, otherwise the dismissal may not take place.

Judicial practice shows that many employees, claiming lack of notice, demand reinstatement. To avoid litigation and easily carry out dismissal, it is recommended to hand over the notice in person, asking for a signature on the second copy.

Calculation

An employee signed under a fixed-term employment contract for a period of up to two months has the right to receive compensation for unused vacation. He can exercise this right provided that he has worked for more than 15 days.

The calculation is made as follows:

• the number of months worked is multiplied by a factor of 2;
• the resulting figure is multiplied by the average daily earnings.

The amount received is to be paid as compensation for unused vacations. There is one caveat: if less than 15 days were worked in one month, then this period is not taken into account.

If more than 15 days, then the period is calculated as a full month. The resulting amount is rounded up.

When dismissal under a contract concluded for a period of 2 to 11 months, the amount of compensation is calculated in a similar way.

If the employee was registered more than 11 months ago, then a coefficient of 2.33 is taken. After multiplying the number of months by the coefficient, days of vacation and parental leave used are subtracted.

Payment is made on the day of dismissal. The employer has no right to delay payments.

Is work needed?

The requirements for working out when applying for a fixed-term employment contract are not specified. However, this point may be specified in the terms of the contract.

In particular, the employer has the right to establish a three-day work period, which falls during the period before the end of the contract.

You are not allowed to work beyond the allotted time! If the employee is not fired on the day the contract expires, then it automatically becomes indefinite.

Another important point is dismissal under a fixed-term employment contract on a day off. If the employee’s last working day falls on his day off, then the termination of the contract is transferred to the next working day. By agreement of the parties, dismissal may take place on the last working day.

In some cases, employers establish favorable employment conditions for them. For example, two weeks before dismissal, the employee undertakes to work a reduced work schedule.

By signing the agreement, the employee agrees to these terms. In this case, the amount of wages must be specified.

Is it possible to fire at will?

According to the Labor Code, dismissal of an employee at his own request is possible both with an open-ended and a fixed-term contract. This rule is not affected by work conditions and deadlines.

The employee, two weeks before the planned dismissal, must notify the employer of his desire.

In this case, the fact that there is no pressure from the manager is taken into account. If the contract is concluded for a period of up to two months, then the employer is required to notify the employer three days in advance. It is also possible to dismiss before the expiration of this time by agreement of the parties.

During sick leave

A fixed-term employment contract has one feature - it is drawn up only for a certain time period, after which the employer has the right to dismiss the employee. In this case, the employee’s health status does not matter.

If the sick leave was issued several days before the end of the contract, then dismissal is issued on the specified day.

As for sick leave payment, it is possible only for the period of incapacity for work of an employee on the organization’s payroll.

An exception is an industrial injury sustained while performing job duties.

In this case, the employer undertakes to pay compensation, and in especially serious cases, refuse to dismiss the employee. However, in practice this is only possible after a trial.

During pregnancy

The Labor Code clearly defines the rights of pregnant women. The law reliably protects expectant mothers by prohibiting their dismissal for any reason. But what to do in the case of a fixed-term contract?

There are several nuances here:

• It is impossible to fire a pregnant woman even after the expiration of the employment contract. If the employer is not interested in an employment relationship with the employee, then she needs to write an application to extend the contract until the end of the pregnancy;

A medical certificate confirming the existence of an “interesting” position and term must be attached. The woman will be fired, but only after the end of the postpartum period. During this time, she can continue to work, or, by agreement of the parties, go on unpaid leave.

• after the extension of the contract, the employee is required to submit a certificate from a medical institution every three months indicating that she is pregnant;
• at the request of the employee, the manager undertakes to create optimal working conditions (transfer to light work, reduction of working hours). He has no right to refuse a woman this.

A fixed-term contract loses its validity after the end of the postpartum period, that is, 70 days after the birth of the child.

The employer is not obliged to pay child benefits and other compensation. As for sick leave for pregnancy and childbirth, the woman will be paid for the period of incapacity for work by the employer or the Social Insurance Fund.

If the pregnancy is terminated, the employer has the right to issue a dismissal immediately after receiving information about this fact.

But the rights of a pregnant employee still have restrictions. So, if it was issued during the absence of another employee, the employer is not obliged to provide the expectant mother with employment.

If there are vacancies in the company, even in a position that is lower than the current one or with a lower salary, then the manager must offer the woman a transfer. She has the right to remain in the organization by taking a vacant position. If she refuses, she will have to resign.

During maternity leave

Another, no less important point is the registration of an already pregnant woman who plans to go on maternity leave before the end of the contract.

You can dismiss such an employee within a specified period, without waiting for the end of the maternity leave. The main thing is to stay within the prescribed period (pregnancy and 70 days after birth).

The woman will receive child care benefits despite her dismissal. To do this, she will need to contact the FSS.

Payment of child benefits will be made in full, based on average earnings for the period worked. To register, you will need to provide documents for the child and a certificate of income.

Pensioners

The dismissal of pensioners under a fixed-term contract is carried out in a similar way. When employing employees of retirement age, the employer reserves the right to formalize dismissal immediately after the expiration of the contract.

Nuances

When leaving under a fixed-term employment contract, you may encounter the following nuances:

• It is impossible to dismiss an employee working under a fixed-term contract at the initiative of the employer. Gross violations of official obligations may serve as grounds for dismissal from office. In many cases, even this factor can be challenged in court, forcing the employer to reinstate the employee;
• registration under a fixed-term contract does not provide privileges when making contributions to the tax and pension fund. Salaries are paid at the established rate minus tax deductions. At the same time, the employee has all the labor guarantees required by law. He can go on sick leave or take another vacation;
• When applying for a fixed-term contract, the employer has more rights. Judicial practice shows that the vast majority of claims are won by managers, not employees;
• limited employment time does not give employees the right to skip a shift or shirk their obligations. The employer may impose a fine, regardless of the type of contract.

In case of any controversial issues, you should consult with a lawyer or carefully read the articles of the Labor Code.