Termination of a fixed-term employment contract. The procedure for terminating a fixed-term employment contract

How to terminate a fixed-term employment contract, which is coming to an end? Is it possible to say goodbye to an employee early? Answers in step by step instructions. We give ready-made wording for documents and a useful calculator.

In the article:

Download this helpful document:

How to get fired at the end of a fixed-term employment contract

An employment contract with a limited duration gives the right to dismiss an employee as soon as a date or event agreed upon by the parties occurs. We have prepared a step-by-step guide that will guide you through the process.

Step-by-step instructions: dismissal at the end of a fixed-term employment contract

Step 1. Notify the employee of the impending dismissal

This must be done in writing at least 3 calendar days before the scheduled date. If the contract was concluded for the duration of the performance of the duties of the absent employee, the notification may not be sent.

★ For an accurate calculation, use the automatic online calculator in the Kadra System.

Step 2: Make sure the notification is received by the recipient

To avoid claims from supervisory authorities and employee complaints about illegal dismissal, familiarize him with the document under signature.

Step 3. Issue an order to terminate the employment contract

★ In the "Personnel System" you will find standard form T-8

You can also use your own form. In the column “Reason for dismissal”, write “due to the expiration of the employment contract, clause 2, part 1, art. 77 of the Labor Code of the Russian Federation. Details of the contract, the action of which is terminated by the order, indicate below.

Fragment of the order in the form T-8 "Basis for dismissal"

Step 4. Fill out a work book

To record a dismissal, use the same wording as in the order. Refer to paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation. As the basis document, indicate the order to terminate the employment contract, in column 4 reflect its registration number and date of issue.

Step 5. Familiarize the employee with the order for signature and pay

On the last working day, give the employee a completed work book, extracts and other documents related to work, pay the salary with all due bonuses and compensation for unused vacation.

★ An expert of the Personnel System will tell you what to do if the date of dismissal falls on the weekend

Earlydismissal under a fixed-term employment contract

Early termination of a fixed-term employment contract is possible only on general grounds. If the employee himself asked for this, be guided by the norms of Art. 80 of the Labor Code of the Russian Federation. If the decision on early dismissal is made by the employer - Art. 81 of the Labor Code of the Russian Federation. The easiest way is to formalize the termination of a fixed-term employment contract at the initiative of the employee.

If an employee requests early termination of the contract, you must:

1. Accept and register a letter of resignation, with a handwritten signature of the work. An employee cannot be fired based on a verbal request. You can apply at any time, without giving reasons.
2. Determine the date of termination. For employees hired for a short period (less than 2 months), the working period is 3 days, for all others - 2 weeks from the date following the day the application was submitted. However, you can show loyalty and fire an employee without working off or reduce it by mutual agreement.
3. Issue an order forvoluntary dismissal on a fixed-term contract. In the column "Basis for dismissal" we write "at the initiative of the employee, paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation”, below we indicate the details of the application. When filling out a work book, a similar wording is used, but not a statement, but dismissal order.
4. Settle the employee on the last working day. Familiarize him with the order, issue documents, pay wages along with allowances and compensation.

Regardless of the circumstances under which a fixed-term employment contract was concluded, voluntary dismissal rarely gives rise to long-term conflicts. But, if the employer becomes the initiator of the termination of labor relations, everything happens exactly the opposite. Early dismissed employee files complaints and lawsuits. Companies have to prove the legitimacy of the decision.

Advice from the editors of the site site

Circumstances force you to dismiss the "conscript" ahead of time? Try to reach a compromise by entering into an agreement between the parties(Article 78 of the Labor Code of the Russian Federation). If it does not work out, draw up the termination of a fixed-term employment contract at the initiative of the employer.

When dismissing an employee ahead of schedule, the employer applies one of the paragraphs of Art. 81 of the Labor Code of the Russian Federation:

• liquidation of the organization or termination of the IP activity;
• reduction in the number or staff of employees;
• loss of trust;
• repeated non-fulfillment or single gross violation of labor duties by the employee;
• inconsistency with the position held;
• unsatisfactory test result;
• submission of false documents for employment.

Sometimes an employee, trying to avoid being fired "under the article", asks to issue a dismissal of his own free will. A fixed-term employment contract in this case is not a hindrance, you have the right to both satisfy the request and refuse. The main thing is to carefully check all documents to confirm the legality of the procedure during the audit or in court, and make sure that there is no direct prohibition on dismissal.

Whentermination of a fixed-term employment contract at the end of the termimpossible

An employment contract is not automatically terminated at the end of its term. If the date specified in the contract has come, but none of the parties has announced its termination, the employment relationship is considered unlimited. From this moment, stop them on the basis provided for in Art. 79 of the Labor Code of the Russian Federation, it is no longer possible. To avoid such an outcome, record the end dates of the contracts concluded by the company in a separate journal.

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

A strict prohibition on terminating a fixed-term employment contract applies to pregnant women. If the term expires during the pregnancy of an employee, she cannot be fired (Article 261 of the Labor Code of the Russian Federation). An exception is established only in relation to the situation when an employee was hired for the period of absence of the main employee and it is not possible to transfer her to another position.

As a general rule, you will have to renew the contract until the end of the pregnancy, and when the baby is born, until the employee leaves the maternity leave.

It is possible to terminate a fixed-term employment contract both after the expiration of the term (on the basis of part 1 of article 79 of the Labor Code of the Russian Federation), and ahead of schedule, on a general basis. To prevent an employment relationship from becoming indefinite, track the dates of planned layoffs, send notices in advance, and issue orders in a timely manner.

With official employment, the employer and the future employee sign an agreement that regulates the rights and obligations of the parties (as in the conclusion and termination of a contract between the customer and the foreman). The document is the actual proof of employment. After signing, the employment contract has legal force and any violation entails administrative liability.

The main purpose of the agreement is the obligation of the employer to provide comfortable working conditions and pay wages on time. In turn, the employee must independently perform any assigned work in accordance with the job description and the internal code of the enterprise.

An employment contract may be:

• For undefined period;
• for a fixed period of not more than 5 years (fixed-term employment contract).

If the TD does not specify a clear date for the termination of work, such an agreement is considered to be open-ended. In another case, the relationship between the employer and the employee may continue after the expiration of the contract, unless the parties demanded the termination of the contract.

Reasons for terminating a fixed-term employment contract may be:

1. Basic ones such as:

• mutual consent of the parties;
• at the employee's own request;
• refusal of the employee to continue work if the owner of the organization has changed;
• relocation of the enterprise and refusal of the employee to live in another city;
• change in the conditions of the TD, in connection with which the employee refuses to continue working;

2. Independent of the will of the parties:

• transfer to another job due to medical reasons;
• conscription;
• election of an employee to an elective public office;
• retirement;
• assignment of a disability group, in connection with which work becomes impossible;

3. At the initiative of the employer:

• non-fulfillment of the employee's work;
• repeated disciplinary violations;
• absence from work for more than 4 hours for an unexcused reason;
• being at the workplace in a state of toxic, narcotic or alcoholic intoxication;
• expiration of a fixed-term employment contract;
• violation of the terms of the TD.

The procedure for terminating a fixed-term employment contract at the initiative of the employee

The employee has the right to terminate the fixed-term employment contract at his own request by notifying the employer about it two weeks in advance. The letter of resignation is written in any form. Personal reasons are not allowed. From the next day, after signing the document, the countdown of the 14-day period begins. The employee has the right to withdraw the application at any time, provided that the employer has not yet found a replacement.

On the day of dismissal, the accounting department is obliged to pay all debts to the employee of the enterprise, such as:

• wages for hours actually worked;
• premium;
• overtime for work on weekends or holidays;
• holiday allowance.

The head of the personnel department enters the dismissal data into the work book: “Fired of his own free will”, referring to

Statement

According to the Labor Code of the Russian Federation, an employee of an organization has the right to terminate both a fixed-term employment contract and an agreement concluded for an indefinite period in any period of work. Managers of the enterprise are required to report the dismissal one month in advance. If the TD was concluded for seasonal work or for a period of up to 2 months, the employee must notify the employer 2 days before the dismissal.

Within two weeks, the employee has the right to change his mind and withdraw his application, also notifying the employer about this.

Sample letter of resignation

How to terminate the contract at the request of the employer?

Termination of a work contract at the initiative of the employer implies compliance with the articles of the Labor Code of the Russian Federation. In case of violation, the head of the organization is liable to the court. Reasons for dismissal of an employee must be justified.

Termination of TD occurs on the following grounds:

Company liquidation — may arise due to the bankruptcy of the company, the decision of the owner of the company to terminate employment, or the decision may be announced by the judicial chamber. The employer is required to inform employees about the upcoming dismissal two months in advance. An appropriate order is issued and brought to the attention against signature. In the event that employees leave before the specified period, the organization pays compensation in the amount of a monthly salary.

Reduction of staff or position — in this case, the employer notifies the employee of the dismissal two months in advance, but has the right to terminate the TD earlier, while paying compensation. It is forbidden to lay off such employees as:

• a parent of a large family, where the second spouse is incapacitated;
• disabled people;
• employees who have received an occupational injury in the workplace;
• the only working family members.

Inconsistency of the employee with the position- insufficient qualification is confirmed by the attesting commission. In this case, the employer is obliged to offer another position. If the employee refuses, the work contract is terminated in accordance with article No. 81 of the Labor Code of the Russian Federation.

Failure to do work - the employer has the right to dismiss the employee if he repeatedly violated the working regime and did not perform the assigned work. At the same time, disciplinary sanctions must be applied, which are brought to the attention of the employee by order, against signature. This requires:

• explanatory employee;
• an order to withhold part of the salary (disciplinary action);
• a dismissal order if the procedure is carried out for the third time.

Single gross violation of discipline— the absence of an employee at work for more than 4 hours in a row entails termination of the contract.

Commitment by an employee of guilty actions, as a result of which the employer has lost confidence - this item applies to employees who work with goods or cash flow. Violations mainly include theft and bribery.

Committing an immoral act- if the employee is an educator, teacher or lecturer. At the same time, it does not matter where the offense was committed if it is not compatible with the continuation of labor activity. Dismissal can come even a year after hiding the fact.

Making an unreasonable decision that resulted in losses for the organization(if the employee is the head of the company). In this case, the employer must provide evidence of the violation.

Fake documents when signing an employment contract- presenting an identity card or a diploma of education that is not authentic may be a valid reason for termination fixed-term employment contract unilaterally , as well as to bring the employee to criminal liability.

Download the Labor Code of the Russian Federation from the link.

Notification

The employer is obliged to notify his employee in advance that the fixed-term employment contract is coming to an end. The notice must be submitted in writing within 3 calendar days. The date of termination of the TD is the last working day of the employee.

A notice of termination of a fixed-term employment contract is issued to the employee against signature or by registered mail.

Termination of a fixed-term employment contract by agreement of the parties

If desired, the employer and employee may agree to terminate the business relationship. For this, it is proposed draw up an agreement between the parties on the annulment of the employment contract. The legislation does not provide for a specific form for filling out a document. The initiator of the dismissal, in this case, is both parties, having discussed all the details in advance.

Termination of an employment contract by agreement of the parties is a separate document that is an annex to the main TD. After signing, the employer issues an order. On the day of dismissal of the employee, the final payment is made and a work book is issued in hand.

Agreement

An agreement on the termination of an urgent TD is drawn up in accordance with the clauses of the main employment contract. A copy is given to the employee. The agreement is always in writing. Content includes the following:

• Title of the document;
• date and place of execution of the agreement;
• Full name of the employee, details of the employer;
• grounds for dismissal (by agreement of the parties);
• date of signing the employment contract, serial number;
• the actual date of dismissal of the employee;
• obligations of the parties (for example, return of a working mobile phone);
• payment of monetary compensation (if necessary).

Download the agreement of the parties on the termination of a fixed-term employment contract

If the contract has expired

Fixed-term employment contract is concluded between the employee and the employer in the event that it is impossible to extend employment on a permanent basis. These professions include teachers of schools and universities on a competitive basis, high-altitude workers, nurses, nannies and others.

Urgent TD is concluded for the following types of work:

• specific (temporary) work up to two months;
• seasonal;
• foreign;
• when creating a temporary organization;
• internships;
• with pensioners;
• prevention of catastrophes, accidents or natural disasters;
• temporary replacement of an employee;
• concurrently.

The maximum period of a fixed-term employment contract is 5 years. After this time or another specified in the document, the employee is dismissed, in accordance with article No. 59 of the Labor Code of the Russian Federation. The employer is obliged to notify the employee 3 calendar days in advance of termination of the agreement. If the employee is not warned in time, he has the right to apply to the court with a statement of claim to recover compensation or reinstatement in the workplace.

A fixed-term contract can also be extended by agreement of the parties, if this is provided for by law. For example, during pregnancy. If, after the lapse of time, the employee continues to work, and the employer does not insist on dismissal, the agreement goes on an indefinite basis.

Termination of a fixed-term employment contract also possible by agreement of the parties. If the contract has expired, the employee is required to pay wages and issue a work book in his hands.

Is it possible to terminate a contract with a pregnant woman?

The employer does not have the right to dismiss a pregnant woman, even if an urgent TD was issued during employment. This is a gross violation of the law and the responsible person is subject to administrative penalties. In this case, the fixed-term employment contract must be extended until the end of the maternity leave.

Exceptions may be:

1. Voluntary dismissal- at the same time, the employee has the right not to report the reason for dismissal in advance. Payroll is calculated on the last working day;
2. By agreement of the parties - the employee and the employer can agree on the payment of compensation, while the interests of the parties must be satisfied;
3. If an employee replaced a temporarily absent employee, the employer is obliged to offer the woman a transfer to another job or vacant position, in accordance with the qualifications and state of health. It is possible to dismiss only if the employee refuses to continue working in this organization;
4. Company liquidation- severance pay is paid in the amount of the average monthly salary. If a couple of months remain before going on maternity leave, the employer compensates for this time inclusive.

Upon dismissal, a pregnant employee must be given all the relevant certificates:

• on income for 2 years of work (personal income tax form No. 2);
• an extract on the calculation of the amount of the expected maternity leave, benefits for the BIR and child care up to 1.5 years;
• a copy of the employment contract and the order of dismissal;
• receipt of payroll, vacation pay, bonuses and other appropriate payments.

A pregnant employee is required to notify the employer of her situation in writing. To application for the extension of a fixed-term employment contract a certificate from a medical institution is attached, which indicates the date of exit on maternity leave.

Order

Upon dismissal, the employer must issue an appropriate order and bring it to the attention of the employee, against signature. The document must contain the following information:

• order number and date of issue;
• Name of responsible persons;
• the reason for the dismissal of the employee;
• link to an article of the Labor Code;
• lack of material claims to the employee;
• date, painting, seal of the organization.

Order data is recorded in the work book.

Download a sample order for the dismissal of an employee of his own free will from the link.

The possibility of concluding a fixed-term employment contract is provided by law for special cases, when the situation is such that conducting activities is only possible temporarily.

However, many people also use this document for personal purposes - for example, to have fewer responsibilities to the employee, and also to easily dismiss him at the end of the term if he doesn’t like something. Such actions become something natural due to the rarity of inspections and the lack of awareness of employees about their rights.

Regardless of whether the contract was concluded honestly, or the boss decided to cheat, there may come a time when it needs to be terminated ahead of schedule. Sometimes this happens at the initiative of the employer, sometimes the other way around. The main thing is to make it legal; unless, of course, neither party is opposed to termination. Otherwise, you can try to defend your rights.

Procedure

In normal situations, the procedure for terminating a fixed-term employment contract includes a period of validity until the date that was entered in it as the last day of work.

The only important point is that at least 3 days in advance, one of the parties must notify the other in writing that the time limit is ending. It means that:

• or the boss must sign a document on the dismissal of the employee due to the expiration of the contract;
• or the employee must do the same, only for him it will already be a letter of resignation.

If this moment is missed, in fact the contract remains in force, only flows into an open-ended one, and automatically.

Early dissolution

But there are other situations when the deadline has not yet come, and for some reason it is necessary to terminate the employment relationship. How to issue an early termination of a fixed-term employment contract? Interestingly, the TC does not impose special requirements for such cases.

Dismissal occurs according to the usual scheme - the same as is practiced when terminating fixed-term contracts.

An employee can also quit by notifying his superiors in advance, and he is not required to remain in place until the end of the term. The reasons can be anything. If the boss fires, then at his service is a list of violations, for which the termination of the fixed-term contract is required. By agreement of the parties, it is easiest to formalize the termination of a fixed-term employment contract.

Grounds for termination of cooperation

The grounds for terminating a fixed-term employment contract, if combined, may be as follows:

• at the request of the employee;
• at the initiative of the employer;
• ideally - by agreement of the parties; this is the most harmless situation;

This means that the termination rules are the same as for a regular contract (urgent). Both the employee and the employer can easily use this if one of them wants to terminate the employment relationship ahead of schedule. If you analyze in detail, then the reasons why you can fire or quit, are detailed in articles 78, 80 and 81 of the Labor Code of the Russian Federation.

There are also special instructions. For example, if the contract was concluded for a period not exceeding two months, or if he was assigned to seasonal work, then the employee must notify the employer of leaving at least three days in advance. The head, regardless of the term, must warn a month in advance.

Termination of a contract with a pregnant woman

Termination of a fixed-term employment contract with a pregnant woman, both on and before the expiry date is not possible. The validity of the document must be extended until the end of pregnancy. Here it is better for the employer to make concessions, because in the event of a complaint against him, there will be a lot of problems.

If you do not agree that you are being fired early, you will have an advantage in the event that the employer violates the legislation of the Labor Code - for example, an illegal conclusion of a contract. You can always prove your case if you are really right and if you persevere.

(No ratings yet)

An employment contract is the main document that governs the relationship between an employer and an employee. It prescribes absolutely all the conditions for the work of a new employee: time and place of work, duties, term of work, wages and much more. An employment contract is a mandatory document for official employment under the Labor Code of the Russian Federation.

Since the employment contract is the main document, most of the disputes are related to its formulation and implementation. And one of the most important and acute disputes is the early termination of the employment contract. Sometimes this process goes smoothly, sometimes it develops into a serious conflict, reaching the court. In this article, we will tell you everything you need to know about termination of an employment contract, both by an employee and at the initiative of the employer. We will also separately consider the termination of a fixed-term employment contract at the initiative of the employer.

The first thing to understand when considering the termination of an employment contract is that there is a strictly established procedure for its termination, any violation of which, in fact, is a violation of the Labor Code of the Russian Federation. All legal ways to terminate an employment contract can be divided into 4 categories:

• By mutual agreement of the parties;
• At the request of the employee;
• At the request of the employer;
• Due to circumstances.

Termination of the employment contract by mutual agreement of the parties

Perhaps the easiest, fastest and most comfortable way to terminate an employment contract. Unfortunately, they are rarely used. It implies a simplified procedure for terminating labor simplifications, in which the issues of working off, payments, compensations and other things are resolved between the employee and the employer on a voluntary basis. Most often, it happens if an employee retires, cannot work due to deteriorating health, quits to care for a sick relative or a disabled person. The process itself is a campaign to terminate the contract at the initiative of the employee, but deprived of most of its legal features.

Termination of the employment contract at the request of the employee

One of the ways to terminate cooperation is at the request of the employee. It is quite simple, it will not be difficult to arrange it. The process for terminating an employment contract is as follows:

1. The employee submits an application in writing that he stops work;
2. The employee works for two weeks (this is provided for by the Labor Code of the Russian Federation, but in general it is not necessary if the employee agrees with the employer)
3. On the last working day, the employee receives a calculation, his documents, compensation and others. This is where his work ends.

Pay attention to the clause on working off - if the employee does not come to work, then the employer has every right to deprive him of his salary for this period, as well as some additional bonuses and payments (except those that were due to him in the time before the application was submitted)

Termination of the employment contract at the initiative of the employer

Most often, disputes with the employer among employees arise precisely in the event that the contract is terminated by the employer. It should be clearly understood that there is a whole list of conditions that allows the employer to terminate the employment contract on their own initiative. Here is the list:

• or ceased to operate;
• There was a downsizing;
• The employee was hired for a job that he could not perform due to lack of skills or necessary knowledge;
• The employee did not fulfill his direct duties without any good reason relieving him from liability;
• The employee grossly violated labor etiquette, working conditions, safety precautions;
• Theft by the employee of the property of the employer;
• An employee revealed a corporate secret;
• The employee made a gross mistake while working with the finances of the organization;
• The employee provided the employer with forged documents;
• An employee holding a managerial position has committed a gross violation of the Labor Code of the Russian Federation, accepted a violation that caused harm to the organization as a whole;

As you can see, the list is quite extensive, but the cases described in it can hardly be called universal. So if you are faced with other reasons for dismissal that are not included in these categories, then know -.

However, let us return to the description of the process of terminating the contract itself. It goes very easy - the employer is obliged to warn the employee that his contract will be prematurely terminated. At the same time, the employer himself will be obliged to explain to the employee the reason for the termination of cooperation, otherwise the dismissal will be declared illegal.

After receiving the notification, the employee is obliged to contact the employer (if he has questions, claims or any complaints), finalize the specified period, and receive his documents, wages and due compensation on the last working day.

It is at the last stage that disputes with the employer most often arise - he most often either does not pay wages or withholds compensation. Legally, he can do this only in one case - if he has documentary evidence that at the moment there is simply no money to issue. In this case, you will receive them as soon as possible along with compensation.

Termination of an employment contract due to circumstances

This method of terminating the contract is quite rare. It is used in cases where the employee for some reason can no longer cooperate with the employer. The most striking examples:

• Dismissal for health reasons and getting an employee with a disability;
• Recognition of an employee as incompetent;
• Serving by an employee of a sentence in a correctional institution for a crime committed;
• Death of an employee;
• Forced relocation of an employee.

As a rule, in most cases, the employee cannot even submit an application himself, therefore, the employer often conducts the dismissal procedure. However, even in this case, he will be obliged to return all papers and pay all compensation.

Termination Features

A fixed-term employment contract is a type of employment contract that is concluded either for a strictly defined period, or for an unspecified period not exceeding five years. Most often, a fixed-term employment contract is resorted to if it is necessary to perform some planned work. At the same time, it is possible to conclude a fixed-term contract only if it is impossible to conclude a regular employment contract. At the same time, as a conclusion, it has its own characteristics. Consider the grounds for its termination.

What are the grounds for termination?

• A permanent employee in a temporary position has officially returned to work;
• The jobs for which the temporary employee was hired were accepted by the employer;
• The season for which an employee was hired under an employment contract has come to an end;
• An employee who came to work from abroad was forced to return to his homeland due to circumstances;
• The organization in which the temporary employee performed work has completed any planned work and is not going to hire an employee for further cooperation;
• For any other reason that an ordinary employee may quit or be fired.

As you can see, there are a lot of reasons, and far from all of them are connected with the initiative of the employer or employee. Often the process of terminating a fixed-term employment contract takes place “automatically”. However, in some cases, it also passes at the request of one of the parties ahead of schedule.

Please note that even if the term of work comes to an end without any problems, the employer is still required to notify the temporary employee in writing that his time is coming to an end.

Early termination of a fixed-term employment contract

In fact, there is not so much between the termination of a fixed-term employment contract and a regular one. If an employee wishes to act as an initiator, then the process is completely similar to the standard scheme - the employee writes a statement, the employer accepts it, the employee works for two weeks. At the same time, these:

• The employee does not have the physical ability to work these 14 days;
• The employee has a good reason for stopping work (for example, for health reasons);
• Both the employee and the employer agreed that there would be no work for two weeks.

When terminating an employment contract at the initiative of the employer, there are also no significant changes - the employee will have to receive advance notice that his services are no longer needed. At the same time, the dismissal itself in this way must take place completely according to the law - the employer must have a good reason provided for by the Labor Code of the Russian Federation, and the employee himself must receive all the documents, calculations and payments due to him. In case of violation, the employee can apply to the labor inspectorate or the court - the fact that his contract was only temporary will not matter.

Thus, it is worth understanding a clear line between the termination of the contract and its termination at the initiative of the employer. An employee at the termination of the deadline can only ask to extend his contract, no more. He will be able to complain about the termination of the contract on time only if there has been any concomitant violation, for example, he was not paid a salary or compensation.

The ore code of the Russian Federation allows the parties to limit the term of the employment contract in certain cases. But not always its end means the termination of labor relations. Sometimes an employee continues to work even after the expiration of the employment contract, while none of the parties requires its termination. Or the employer extends the project that the subordinate is leading. And these are legal grounds under which a fixed-term employment contract will not be terminated on the date of its expiration. Let's figure out what requirements in most cases are characteristic of disputes with this category of workers. Consider how to resolve the conflict if the subordinate disputes the very possibility of concluding a fixed-term employment contract with him.

An employment contract can be concluded by the parties both for an indefinite period and for a fixed period of not more than five years, unless a different period of time is regulated by the Labor Code of the Russian Federation and other federal laws (clauses 1, 2, parts 1, article 58 of the Labor Code of the Russian Federation). A fixed-term employment contract is concluded when labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation (part 2 of article 58 of the Labor Code of the Russian Federation). Namely:

• for the duration of the performance of the duties of an absent employee, for whom, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, the place of work is retained;
• for the duration of temporary (up to two months) works;
• to perform seasonal work, when, due to natural conditions, labor functions can only be performed during a certain period (season);
• with persons sent to work abroad;
• to carry out work that goes beyond the normal activities of the organization (reconstruction, installation, commissioning and other work), as well as work associated with a deliberately temporary (up to one year) expansion of production or the volume of services provided;
• with persons entering work in organizations created for a known period or to perform a known work;
• with persons hired to perform a known work in cases where its completion cannot be determined by a specific date;
• to perform work directly related to practice, vocational training or additional professional education in the form of an internship;
• in cases of election for a certain period to an elected body or to an elective position for paid work, as well as employment related to the direct support of the activities of members of elected bodies or officials in public authorities and local governments, in political parties and other public associations;
• with persons sent by the bodies of the employment service to work of a temporary nature and public works;
• with citizens sent for alternative civilian service;
• in other cases provided for by the Labor Code of the Russian Federation or other federal laws (part 1 of article 59 of the Labor Code of the Russian Federation).

Also, a fixed-term employment contract can be concluded by agreement of the parties. without taking into account the nature of the work to be done and the conditions for its implementation(part 2 of article 58 of the Labor Code of the Russian Federation):

• with persons entering work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the field of retail trade and consumer services - 20 people);
• with pensioners entering work by age, as well as with persons who, for health reasons, in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, are allowed to work exclusively of a temporary nature;
• with persons entering work in organizations located in the regions of the Far North and areas equivalent to them, if this is associated with moving to the place of work;
• to carry out urgent work to prevent catastrophes, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;
• with persons elected by competition to fill the relevant position, held in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms;
• with creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these workers, approved by the Government of the Russian Federation taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations;
• with heads, deputy heads and chief accountants of organizations, regardless of their organizational and legal forms and forms of ownership;
• with persons receiving full-time education;
• with crew members of seagoing vessels, inland navigation vessels and mixed (river-sea) navigation vessels registered in the Russian International Register of Vessels;
• with persons entering a part-time job;
• in other cases provided for by the Labor Code of the Russian Federation or other federal laws (part 2 of article 59 of the Labor Code of the Russian Federation).

As a general rule, if the term of its validity is not specified in the employment contract, then it is considered concluded for an indefinite period (part 3 of article 58 of the Labor Code of the Russian Federation). If the employee continues to work after the expiration of the employment contract, while none of the parties demanded its termination, the condition on the urgent nature of the employment contract becomes invalid, and it is considered concluded for an indefinite period (part 4 of article 58 of the Labor Code of the Russian Federation).

It is important to remember that the law prohibits concluding a fixed-term employment contract in order to avoid granting the rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period (part 6 of article 58 of the Labor Code of the Russian Federation). If the court establishes that the employee has been performing the same labor function for a long time, the work was of a permanent nature, but the parties from time to time re-signed employment contracts for a short period, such relationships may be recognized as long-term, and the employment contract concluded for an indefinite period.

The procedure for terminating a fixed-term employment contract enshrined in Art. 79 of the Labor Code of the Russian Federation:

1. the employment contract is terminated with the expiration of its validity. The employer must notify the subordinate of the upcoming dismissal in writing at least three calendar days before the termination of the employment relationship. An exception is the situation when a fixed-term employment contract concluded for the duration of the performance of the duties of an absent employee expires (part 1 of article 79 of the Labor Code of the Russian Federation);
2. an employment contract concluded for the duration of a certain work is terminated upon completion of this work (part 2 of article 79 of the Labor Code of the Russian Federation);
3. an employment contract concluded for the duration of the performance of the duties of an absent employee terminates with the release of this employee to work (part 3 of article 79 of the Labor Code of the Russian Federation);
4. an employment contract concluded for the performance of seasonal work during a certain period (season) terminates at the end of this period / season (part 4 of article 79 of the Labor Code of the Russian Federation).

At first glance, it seems that the arguments for challenging dismissals under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation does not exist, but everything is not so simple. Judicial practice confirms that such a basis as the expiration of an employment contract quite often causes conflicts.

Consider the most typical disputes and their consequences for the employer.

An attempt to recognize a fixed-term contract concluded for an indefinite period

The most common arguments of employees when appealing against dismissal under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation are attempts to recognize a fixed-term employment contract concluded for an indefinite period. And often such actions have no basis, but are only a way for an employee to declare a violation of their rights.

Arbitrage practice

Collapse Show

The employee went to court to recognize the dismissal under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation illegal. He believed that the employment contract signed with him should be considered concluded for an indefinite period. The court refused him, since it was reliably established that the employee’s employment relationship with the defendant was of an urgent nature during the performance of the duties of an absent specialist who returned to his permanent workplace (appeal ruling of the Krasnoyarsk Regional Court of November 16, 2016 in case No. 33-15490 / 2016) .

The employee was hired for the duration of the project, then fired under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation due to the expiration of the employment contract. The court recognized the termination of the employment relationship as lawful, since she did not provide proper and sufficient evidence testifying to the plaintiff's coercion to conclude a fixed-term employment contract. The woman signed the contract without any comments or objections, including regarding the term of its conclusion. At the same time, the employer complied with the procedure and procedure for dismissal (appellate ruling of the Moscow City Court dated October 26, 2016 No. 33-42001 / 2016). See also the appeal ruling of the Moscow City Court dated September 2, 2016 in case No. 33-28273/2016, the ruling of the Moscow City Court dated August 22, 2016 No. 4g/8-7164.

There are examples in which employees try to defend their innocence by any means, including referring to pressure, discrimination at the conclusion of a fixed-term employment contract. But in the absence of any evidence to defend this position will not work. Let's consider such a case.

Arbitrage practice

Collapse Show

A fixed-term employment contract was concluded between the employer and the employee, since the woman was an old-age pensioner. Upon the expiration of his term, the employment relationship was terminated on the basis of paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The plaintiff did not agree with the dismissal and went to court. She indicated that she was forced against her will to sign a fixed-term employment contract. Also, when drawing up an employment contract for a certain period, in violation of the requirements of Art. 3 of the Labor Code of the Russian Federation, the plaintiff was subjected to discrimination by the defendant in the sphere of labor on the basis of age, which led to the refusal to conclude an employment contract with her for an indefinite period. The court did not agree with the worker and refused her. Argumentation - the contested employment contract specifies the term of its validity and sets out the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract. The employment contract on the conditions set out in it on the term was signed by the plaintiff, she did not provide evidence of the compulsion to sign it. In addition, the employee signed an acknowledgment of the order for employment, which also indicates the urgent nature of the employment relationship (appeal ruling of the Novosibirsk Regional Court dated October 27, 2016 in case No. 33-10559 / 2016).

Sometimes subordinates try to use employer's mistakes made by him in the preparation of any documents to establish an indefinite term employment relationship. But if such shortcomings do not violate the procedure for terminating the employment contract, the court, most likely, will not cancel the dismissal.

Arbitrage practice

Collapse Show

The plaintiff was hired for the period of absence of the main employee, who was on sick leave. After the release of the latter, the woman was fired under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The court recognized the order to terminate the employment relationship as legal, since it clearly follows from the employment contract that it was concluded for a certain period. The court rejected the plaintiff's argument that the order for employment and the order for dismissal, as well as the certificates of incapacity for work, indicated various patronymics of the main employee, since a technical typo in the text of the documents does not refute the fact that a specialist went to work, during the absence of which the plaintiff was hired (appellate ruling of the Moscow City Court dated October 24, 2016 in case No. 33-38246/2016).

Taking the side of the companies, the judicial authorities note: the expiration of a fixed-term employment contract is an objective event, the occurrence of which does not depend on the will of the employer, and therefore the dismissal of an employee on this basis is attributed to the general grounds for termination of an employment contract. The employee, giving consent to the conclusion of an employment contract in the cases provided for by law for a certain period, knows about its termination after the expiration of a predetermined period or in connection with the onset of a specific event, with which its termination is associated.

An interesting case is in which an employee applied to the employer for a long vacation, and also asked to extend the employment contract for the period of annual paid leave and count the date of her dismissal after leaving the vacation to work. At the same time, she was entitled to a long vacation by law. However, the employer refused her request and fired her under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation. Let's see how the court resolved this situation.

Arbitrage practice

Collapse Show

During the consideration of the case, it turned out that the plaintiff did not provide the employer with the necessary documents for granting her leave before the expiration of the employment contract. The court also found that upon dismissal, the employee was finally paid, including compensation for unused vacation, no evidence of a violation of the plaintiff's rights related to dismissal and payment of compensation for unused vacation was presented. Termination of the employment contract under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation is legal (appellate ruling of the Moscow City Court of October 10, 2016 in case No. 33-37880/2016).

And if the employee submits to the employer all the necessary documents for the vacation, should he renew the contract? Right, but not required. According to part 3 of Art. 127 of the Labor Code of the Russian Federation upon dismissal due to the expiration of the employment contract, leave with subsequent dismissal maybe be provided even when the vacation time is wholly or partially outside the term of this contract. In this case, the day of dismissal is also considered the last day of vacation.

Arbitrage practice

Collapse Show

As noted by the Supreme Court of the Russian Federation, the provision of leave with subsequent dismissal upon a written application of an employee is a right, not an obligation of the employer and, therefore, in order to receive leave with subsequent dismissal, the unilateral expression of the will of the subordinate is not enough, the consent of the employer is also required (decision of the Supreme Court of the Russian Federation of 04.22. GKPI09-82).

Thus, if the manager decides to meet the employee halfway and grant him a vacation, the term of the employment contract is automatically extended, but only for the duration of the vacation. In this case, the contract does not become concluded for an indefinite period. Also, one should not forget about the requirements of Art. 84.1 and 127 of the Labor Code of the Russian Federation: on the last working day, make a settlement with the subordinate and issue a work book in which the last day of vacation will be indicated as the day of dismissal.

However, employees will not be able to take advantage of the fact that the employment contract was extended for the duration of the vacation in order to recognize it as concluded for an indefinite period. The fact is that the contract is extended on the basis of the law, and not because the employee continues to work after the expiration of his term and none of the parties demanded termination.

There are also situations in which employees rightfully insist on the recognition of the termination of employment under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation illegal. For example, if initially there were no grounds for concluding a fixed-term employment contract.

As previously noted, an employment contract can be fixed-term only under certain circumstances (part 1 of article 59 of the Labor Code of the Russian Federation). A fixed-term employment contract may be concluded without taking into account the nature of the work to be done and the conditions for its implementation. At the same time, it must be borne in mind that such an agreement can be recognized as lawful if there was an agreement between the parties (part 2 of article 59 of the Labor Code of the Russian Federation), that is, if it was concluded on the basis of the voluntary consent of the employee and the employer. If the court, when resolving a dispute on the legality of concluding a fixed-term employment contract, establishes that it was signed by the employee involuntarily, the court will apply the rules of the contract concluded for an indefinite period (paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, hereinafter referred to as Resolution of the Plenum No. 2).

Thus, if at the conclusion of the employment contract there were no grounds for limiting its term, as there was no agreement of both parties, the court will take the side of the employee.

Arbitrage practice

Collapse Show

The plaintiff was dismissed on the basis of paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation. She did not agree with this and went to court, where she stated that the employer had no reason to conclude a fixed-term employment contract with her, which was valid from 11/01/2013 to 12/31/2014. The defendant in court referred to the fact that his need for personnel is of a pronounced seasonal nature and from mid-November to early May there is a decline in demand for the company's services. The court declared the dismissal illegal, since the specified period does not correspond to either seasonality or other circumstances under which work is possible for a period exceeding 6 months, which indicates that there are no grounds for concluding a fixed-term employment contract due to the seasonal nature of the work performed. In addition, it does not follow from the text of the employment contract that it indicates the circumstances (reasons) on the basis of which a fixed-term employment contract was concluded with the plaintiff. This is a violation of the employee's essential rights under Art. 57 of the Labor Code of the Russian Federation (appellate ruling of the Moscow City Court dated February 16, 2016 in case No. 33-239/2016). See also the appeal rulings of the Moscow Regional Court of August 24, 2016 in case No. 33-21146/2016, the Krasnoyarsk Regional Court of July 11, 2016 in case No. 33-9097.

Based on the norms of the current labor legislation (paragraph 4, part 2, article 57 of the Labor Code of the Russian Federation), as well as the examples given from judicial practice, the employer needs to indicate the justification for the urgent nature of the relationship in the text of the employment contract. Here are some examples of possible formulations (Example 1).

Example 1

Collapse Show

Depending on the specific situation, the employer may use the following wording in the text of the employment contract:

• “this employment contract in accordance with Part 1 of Art. 59 of the Labor Code of the Russian Federation was concluded for a certain period - for the duration of the performance of the duties of Ivanova Svetlana Petrovna, who is absent due to being on leave to care for a child until he reaches the age of three years”;
• “this employment contract in accordance with Part 1 of Art. 59 of the Labor Code of the Russian Federation is concluded for a certain period - for the period of preparation for the submission of annual reports”;
• “this employment contract in accordance with Part 1 of Art. 59 of the Labor Code of the Russian Federation was concluded for a certain period due to the seasonal nature of the work - planting a forest”;
• “this employment contract in accordance with Part 2 of Art. 59 of the Labor Code of the Russian Federation, by agreement of the parties, was concluded for a certain period - for the period of liquidation of the consequences of an accident at a power plant.

At the same time, some court decisions indicate that if the circumstances (reasons) that served as the basis for concluding an employment contract for a certain period actually took place, but there was no indication of them in the contract, then this cannot be the basis for recognizing a fixed-term labor contract. contracts concluded for an indefinite period.

Arbitrage practice

Collapse Show

A fixed-term employment contract was concluded with an employee - an old-age pensioner, in which the reasons for which it was signed for a certain period were not indicated. Then the plaintiff was dismissed on the basis of paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The court ruled that the termination of the employment contract was lawful. Argumentation - since the parties reached an agreement on the urgency of the nature of relations when concluding an employment contract, the absence of an indication of the circumstances that caused its conclusion for a certain period is not an unconditional basis for reinstatement at work (appeal ruling of the Supreme Court of the Republic of Karelia dated 09/01/2015 in case No. 33-3390/2015).

Despite the presence of the specified judicial act, employers should comply with the requirements of the law and prescribe all the necessary information in the text of the employment contract, including the circumstances (reasons) that served as the basis for its conclusion for a certain period. Indeed, for improper execution of an employment contract, a company can be held administratively liable (part 4 of article 5.27 of the Code of Administrative Offenses of the Russian Federation). The absence of conditions that are mandatory for inclusion in an employment contract refers to the improper execution of an employment contract.

Violation of the procedure for dismissal due to the expiration of the employment contract

One typical situation is termination of the employment contract under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation, if the employer had no grounds for this. This may include the dismissal of an employee without waiting for the end of the employment contract. Or the absent specialist has not yet returned to work, and the employee who replaced him has already been fired. Such actions of the company will lead to the reinstatement of the subordinate in the position. This is due to the fact that any violation of the norms established by law entails the recognition of the termination of the employment contract as unlawful.

Arbitrage practice

Collapse Show

The plaintiff applied to the court demanding that her dismissal be declared illegal under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The employment contract with her was concluded before the start of work of the main employee, who is on parental leave. The court took the side of the plaintiff, since it established that the absent employee did not request to be considered as having started work, in fact, she did not go to work and did not start her job duties. No order was issued for the absent employee to leave parental leave. Under such circumstances, the defendant did not have the right to terminate the employment relationship with the plaintiff under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The time sheet submitted to the court does not confirm the employer’s argument that the main employee actually went to work, since this document contradicts the evidence in the case file and the established circumstances, it was drawn up formally to create the appearance of the legality of the dismissal of the plaintiff (appeal ruling of the Novosibirsk Regional Court dated August 25, 2016 in case No. 33-8531/2016).

And in another case with a similar subject of dispute, the court, on the contrary, recognized the dismissal as legal, since it was proved that the main employee went to work, although he would work remotely.

Arbitrage practice

Collapse Show

The plaintiff was dismissed under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation. He applied to the court for the purpose of reinstatement at work, arguing that at the time of termination of the employment contract, the main employee, during whose absence the plaintiff worked for the employer, actually did not go to work. However, the defendant provided evidence that the employee wrote an application for withdrawal from parental leave, and an additional agreement was concluded with her, which established remote work for the woman. The exit of the main employee is confirmed by the time sheet and pay slip. The court indicated that the fixed-term employment contract concluded with the plaintiff was terminated if there were legal grounds, namely, in connection with the absence of the employee from work (the appeal ruling of the Volgograd Regional Court dated August 25, 2016 in case No. 33-11582/16).

Thus, the resolution of the dispute will depend on the specific circumstances of the case. The employer should not forget to follow the procedure for dismissal and check whether there are grounds for terminating the employment relationship.

But would it be legal dismissal of an employee under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation during her stay on parental leave? In this case, the employer has the right to terminate the fixed-term employment contract without waiting for the woman to leave the decree. This is explained by the fact that the guarantees established by Art. 261 of the Labor Code of the Russian Federation for this category of workers, apply to cases of dismissal at the initiative of the employer. The expiration of the term of an employment contract is an independent basis for terminating an employment relationship. The provisions of Part 1 of Art. 79 of the Labor Code of the Russian Federation regulate relations that arise upon the occurrence of a certain event - the expiration of the established term of the employment contract. This circumstance is not connected with the initiative of the employer and occurs regardless of his will. In this regard, the organization is not obliged to take into account the additional guarantees established by Art. 261 of the Labor Code of the Russian Federation.

Arbitrage practice

Collapse Show

The court recognized as lawful the dismissal of the plaintiff under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation, despite the fact that she was on parental leave. He noted that the Labor Code of the Russian Federation does not provide for the obligation of the employer to extend a fixed-term employment contract with persons with children under the age of three until the child reaches the specified age (appeal ruling of the Supreme Court of the Republic of Bashkortostan dated July 27, 2016 in case No. 33-14381 / 2016) . See also the appeal rulings of the Moscow City Court of August 8, 2016 in case No. 33-26390/2016, of the Moscow Regional Court of May 13, 2015 in case No. 33-10869/2015.

As for the dismissal of a pregnant employee on the basis of paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation, then this will be considered a direct violation of the rights of the employee and the procedure for terminating the employment contract. In the event of the expiration of a fixed-term employment contract during the woman's pregnancy, the employer is obliged, upon her written application and upon presentation of a medical certificate confirming the state of pregnancy, to extend the validity of the employment contract until the end of pregnancy. Moreover, the employment contract must be extended regardless of the reason for the end of the pregnancy - the birth of a child, spontaneous miscarriage, abortion for medical reasons, etc. , persons with family responsibilities and minors”, hereinafter referred to as Resolution of the Plenum No. 1).

The expectant mother, whose employment contract has been extended until the end of pregnancy, is obliged, at the request of the employer, but not more than once every three months, to submit a medical certificate confirming the state of pregnancy. In the event of the birth of a child, the dismissal of a woman in connection with the termination of a fixed-term employment contract is carried out on the day the maternity leave ends. In other cases, a woman can be fired within a week from the day when the employer found out or should have found out about the fact of the end of the pregnancy (paragraph 4, clause 27 of Resolution of the Plenum No. 1, part 2, article 261 of the Labor Code of the Russian Federation).

Thus, pregnant employees are protected by law, including from dismissal upon expiration of the employment contract.

Arbitrage practice

Collapse Show

The court found it illegal to terminate the employment contract with the plaintiff under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation, since, among other things, at the time of dismissal she was pregnant (appeal ruling of the Saratov Regional Court dated November 10, 2016 in case No. 33-8569). See also the appeal ruling of the Moscow City Court dated March 24, 2016 in case No. 33-8742.

Dismissal of a pregnant woman under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation will be legal if two conditions are met simultaneously:

1. a fixed-term employment contract was concluded with her for the duration of the performance of the duties of an absent employee;
2. it is impossible to transfer an employee before the end of her interesting position to another job available in the company, which she can perform taking into account the state of health.

At the same time, the employer is obliged to offer her all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other areas, if this is provided for by the collective agreement, agreements, labor contract (part 3 of article 261 of the Labor Code of the Russian Federation). Organizations are encouraged to record in writing the direction of the offer of vacant positions (either hand it to the employee against signature, or send a letter by mail with a list of attachments). If she refuses the offered vacancies, it is necessary that she do this in writing. Consent to the transfer must also be recorded. Then, in the event of a litigation, the employer will have evidence of the fulfillment of the duties assigned to him.

Let us give an example when an organization managed to defend its case in court.

Arbitrage practice

Collapse Show

The plaintiff was notified by the employer of the upcoming dismissal due to the expiration of the employment contract and the absence of vacancies. The employee was pregnant. The court recognized as legal the termination of the employment contract with her under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation, since the expiration of a fixed-term employment contract in connection with the entry into work of the main employee served as the basis for the dismissal of the expectant mother. Taking into account the employer’s lack of other vacant positions that the plaintiff can fill due to her state of health and education, the defendant had legal grounds for making a decision to dismiss (appeal ruling of the Volgograd Regional Court dated September 23, 2016 in case No. 33-12302 / 2016) . See also the appeal rulings of the Sverdlovsk Regional Court of 09/01/2016 in case No. 33-14589/2016, the Supreme Court of the Republic of Dagestan of 08/03/2016 in case No. 33-3120/2016.

At the same time, the violation by the employer of the rules of Part 3 of Art. 261 of the Labor Code of the Russian Federation on the offer to an employee of existing vacancies that she can fulfill, taking into account her state of health, will lead to the restoration of the expectant mother in her position.

Arbitrage practice

Collapse Show

A pregnant employee, hired for the period of maternity leave of the main specialist, was dismissed due to the expiration of the employment contract. The court declared the termination of the employment relationship illegal, since it found that at the time of the plaintiff's dismissal, the employer had vacant positions that she could fill. However, the respondent did not offer these vacancies to the pregnant woman (appellate ruling of the Pskov Regional Court dated June 14, 2016 No. 33-965/2016).

Failure to comply with the procedure for notifying an employee of the termination of a fixed-term employment contract

One of the grounds for declaring illegal the termination of an employment contract under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation is the employer's failure to comply with the procedure for notifying an employee of an upcoming dismissal. The subordinate must be warned in writing about the termination of the employment contract due to its expiration at least three calendar days before the date of termination of the relationship. An exception is the case when the term of the employment contract concluded for the duration of the performance of the duties of an absent specialist expires (part 1 of article 79 of the Labor Code of the Russian Federation). If the company violates these requirements of the law, the employee may be reinstated.

Arbitrage practice

Collapse Show

The plaintiff was dismissed under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The court declared the termination of employment relations illegal. In the case, there were many deviations from the norms of the law on the part of the defendant. One of which was that the employer violated the procedure for terminating employment relations, because he did not notify the employee of the upcoming dismissal due to the expiration of the employment contract three calendar days before the date of its termination (appeal ruling of the Saratov Regional Court dated November 10, 2016 in case No. 33-8569).

However, there is also an opposite position of the courts, according to which non-compliance by the employer with the requirements of Art. 79 of the Labor Code of the Russian Federation on the need to notify the employee in writing at least three calendar days in advance of the termination of the employment contract due to its expiration cannot be an independent basis for recognizing the dismissal as illegal.

Arbitrage practice

Collapse Show

The plaintiff was dismissed on the basis of paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation. At the same time, the employer, in violation of Part 1 of Art. 79 of the Labor Code of the Russian Federation, warned the employee about the upcoming termination of a fixed-term employment contract on the day the term expires. The court recognized the termination of labor relations as lawful, since the defendant's failure to comply with the requirements of Art. 79 of the Labor Code of the Russian Federation on the need to notify the employee in writing at least three calendar days in advance of the termination of the employment contract due to its expiration cannot be an independent basis for recognizing the dismissal as unlawful. In addition, the plaintiff, agreeing to conclude an employment contract for a certain period, knew about its termination after the expiration of the specified period (appellate ruling of the Moscow City Court dated February 2, 2016 in case No. 33-3252/2016).

Given the contradiction in judicial practice, we recommend that employers comply with the requirements of the law and promptly notify their subordinates of the upcoming dismissal due to the expiration of the employment contract. In this case, the employee will not be able to accuse the company of non-compliance with the notification procedure and the employer will have a better chance of winning the dispute. The notification form is not provided by law, so the company can draw it up in any form (Example 2).

Example 2

Collapse Show

Another typical situation is when the employer sent a notice in a timely manner, but the employee did not receive it before the date of dismissal. In this case, the court will most likely take the side of the organization, since the Labor Code of the Russian Federation does not establish the legal consequences of the fact that the employee did not receive a notice of termination of the employment contract in a timely manner. The way in which the employer must notify the employee of the dismissal is not regulated either.

Arbitrage practice

Collapse Show

The plaintiff was dismissed on the basis of paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation. At the same time, the employer sent a telegram to the employee in advance with a notification of the upcoming termination of the fixed-term employment contract. The plaintiff received the notice a few days after the termination of the employment relationship. The court recognized the dismissal as lawful, since the expiration of the employment contract entails its termination. This is not connected with the initiative of the employer and does not depend on his will. The Labor Code of the Russian Federation does not regulate the issue of the consequences of untimely notification of the upcoming termination of a fixed-term employment contract, but only indicates that the subordinate must be warned at least three calendar days in advance (part 1 of article 79 of the Labor Code of the Russian Federation, appeal ruling of the Khabarovsk Regional Court dated 18.09. 2015 in case No. 33-6154/2015).

Recall that the condition of notifying an employee at least three calendar days before his dismissal under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation does not apply in the case when the term of the employment contract concluded for the duration of the performance of the duties of the absent employee expires (part 1 of article 79 of the Labor Code of the Russian Federation). If the subordinate alleges a violation of his rights to advance notice of the expiration of the employment contract in such a situation, the court will take the side of the organization. The conclusion is based on the fact that an absent employee has the right to return to work at any time, therefore the exact date of termination of a fixed-term employment contract with a specialist replacing him cannot be determined in advance. In addition, this fact is not grounds for recognizing the contract as concluded for an indefinite period.

Arbitrage practice

Collapse Show

The plaintiff was hired under a fixed-term employment contract for the period of absence of the main specialist. Before dismissal under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation, she was not notified of the termination of the employment contract. The court recognized the dismissal as lawful, since the employment contract concluded for the duration of the performance of the duties of an absent specialist terminates with his return to work (part 3 of article 79 of the Labor Code of the Russian Federation). The employer is obliged to notify the subordinate of the termination of a fixed-term employment contract at least three calendar days in advance only in cases where the date of its termination was determined at the conclusion of this contract (appeal ruling of the Chelyabinsk Regional Court dated July 17, 2014 in case No. 11-6967 / 2014).

Additional grounds for judicial refusal of an employee in his requirements

Often, subordinates go to court without taking into account the deadline for applying for the protection of their rights. The employee has the right to apply to the court for resolution of an individual labor dispute within three months from the day when he learned or should have learned about the violation of his right, and for disputes about dismissal - within one month from the date of delivery of a copy of the order to terminate the employment relationship or from the date of issue of the work book (part 1 of article 392 of the Labor Code of the Russian Federation). If the indicated deadlines are missed for good reasons, they can be restored by the court (part 4 of article 392 of the Labor Code of the Russian Federation). Circumstances that prevented this employee from timely filing a lawsuit with a court for resolving an individual labor dispute can be regarded as good reasons. For example, the illness of the plaintiff, his being on a business trip, the impossibility of going to court due to force majeure, the need to care for seriously ill family members (paragraph 5, clause 5 of Resolution of the Plenum No. 2). In addition, each case is considered by the court individually.

Having established that the term for going to court was missed without good reason, the judge decides to dismiss the claim precisely on this basis without examining other factual circumstances in the case (paragraph 2, part 6, article 152 of the Code of Civil Procedure of the Russian Federation, paragraph 3, paragraph 5 of the Resolution Plenum No. 2).

provided by Art. 392 of the Labor Code of the Russian Federation, the period for applying to the court for resolving an individual labor dispute is shorter than the general limitation period established by civil law. However, such a period, as the Constitutional Court of the Russian Federation has repeatedly noted, acting as one of the necessary legal conditions for achieving optimal coordination of the interests of the parties to labor relations, cannot be considered unreasonable and disproportionate.

The established Art. 392 of the Labor Code of the Russian Federation, the reduced period for going to court and the rules for calculating it are aimed at the quick and effective restoration of violated employee rights, including the right to timely remuneration, and in terms of its duration this period is sufficient for going to court (determinations of the Constitutional Court of the Russian Federation of 05/21/1999 No. 73-O, No. 312-O dated July 12, 2005, No. 728-O-O dated November 15, 2007, No. 73-O-O dated February 21, 2008).

Arbitrage practice

Collapse Show

The court denied the plaintiff her demands for reinstatement after dismissal under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation, including on the grounds of missing the established Art. 392 of the Labor Code of the Russian Federation of a month period for applying for a dispute resolution (determination of the Moscow City Court dated November 30, 2016 No. 4g / 1-13757). See also rulings of the Moscow City Court No. 4g/3-11640/2016 dated October 6, 2016, No. 4g/3-4407/16 dated June 14, 2016, appeal rulings of the Supreme Court of the Republic of Bashkortostan dated October 5, 2016 in case No. 33-19651/ 2016, dated 04.07.2016 in case No. 33-12684/2016, of the Moscow City Court dated 05.30.2016 in case No. 33-20967/16, dated 04.04.2016 in case No. 33-11558/2016, of the Moscow Regional Court dated 01.06. 2016 in case No. 33-11514/2016.

Thus, if the employer understands that the employee has missed the deadline for going to court, it is necessary to declare this at the meeting. It is advisable to fix your position in writing in a response to a statement of claim, a petition for the application of the consequences of missing the deadline for an employee to apply for the protection of their rights, or another document.

Summarizing the above, before terminating a fixed-term employment contract, we recommend that the employer:

• check whether there were legal grounds for concluding a fixed-term employment contract, and whether the employee has evidence to the contrary;
• find out whether there was an agreement of both parties to conclude an employment contract for a certain period, if the subordinate does not belong to any of the categories specified in Part 1 of Art. 59 of the Labor Code of the Russian Federation;
• find out if the dismissed employee is pregnant;
• if the expectant mother was hired during the absence of the main employee, check whether the dismissed woman was offered the available and suitable vacancies for her;
• clarify whether there are grounds for terminating the employment relationship (for example, if the contract was concluded during the absence of the main specialist, you must first formalize his return to work, and only then dismiss the replacement employee);
• find out if the employee continued to work after the expiration of the employment contract, and at the same time, none of the parties demanded its termination due to the expiration of the term, which led to the loss of the urgency of the employment contract;
• check whether the employee has been notified of the upcoming dismissal three days in advance (notification is not required if the employment contract concluded for the duration of the duties of the absent employee expires).

The employer is also obliged to remember the general procedure for processing the termination of an employment contract, established by Art. 84.1 of the Labor Code of the Russian Federation: issue a dismissal order in advance and familiarize the employee with it under a personal signature; on the day of termination of the employment contract, issue a work book to the employee and make settlements with him in accordance with Art. 140 of the Labor Code of the Russian Federation; at the written request of the subordinate, issue him duly certified copies of documents related to work.