The ore code of the Russian Federation allows the parties to limit the term 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 may be concluded by the parties both for an indefinite 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(clause 1, 2, part 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:
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):
By general rule, if the employment contract does not stipulate its validity period, 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 short term, such relationships can 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:
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.
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
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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 for the duration of the duties of the absent specialist, who returned to his permanent position. workplace(appellate ruling of the Krasnoyarsk Regional Court dated 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
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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
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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
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During the consideration of the case, it turned out that the plaintiff did not transfer to the employer Required documents to grant her leave until the expiration of the employment contract. The court also established that, upon dismissal, the employee was paid the final settlement, including compensation for unused vacation, evidence of a violation of the plaintiff's rights related to dismissal and payment of compensation for unused vacation is not 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
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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 (clause 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 Russian Federation Labor Code 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
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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
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Depending on the specific situation, the employer may use the following wording in the text of the employment contract:
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
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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 the relationship 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 Supreme Court Republic of Karelia dated September 1, 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.
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
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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
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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 for the woman remote work. 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 in the presence of legal grounds, namely, in connection with the exit of the absent employee to work (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? V 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
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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 medical indications and others (paragraph 3, clause 27 of the Decree of the Plenum of the Supreme Court of the Russian Federation of January 28, 2014 No. 1 “On the Application of Legislation Regulating the Labor of Women, Persons with Family Responsibilities and Minors”, hereinafter referred to as Decree 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
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The court declared illegal the termination of 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:
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
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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
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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 unlawful, since it established that at the time of the plaintiff's dismissal, the employer had vacant positions that she could take. 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).
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 employee 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 the 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
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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
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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 fixed 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
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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
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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 go to work at any time, therefore exact date 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
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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).
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 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). As good reasons Circumstances that prevented this employee from timely filing a lawsuit with a court for resolving an individual labor dispute may be considered. For example, the plaintiff's illness, 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
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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 month term to apply for resolution of the dispute (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:
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.
The Labor Code (LC) provides for two types labor contracts: urgent and indefinite. The duration of the first is limited by the terms of the agreement, for the second - the terms are not defined.
Essence fixed-term contract led to the appearance of an exceptional reason for its termination: the expiration of the term. Working relations, based on the terms of a fixed-term contract, can be terminated:
To terminate the relationship with the employee after the expiration of the validity period, the employee’s desire, the decision of the employer or the mutual consent of the parties to the end of the fixed-term employment contract are required.
To break off relations, an employee can simply stop performing labor functions, that is, not go to work. The actions of the employer upon termination of the contract are strictly regulated by law.
The admissibility of transforming a fixed-term contract into an open-ended one if the dismissal rules are not followed dictates special requirements to the implementation of all procedures for the termination of the employment contract upon expiration. It is recommended that personnel officers or other persons performing their duties keep separate records of fixed-term agreements.
Article 79 of the Labor Code obliges the employer to notify the employee in writing three days before the expiration of the employment contract (except in cases of replacing an employee). The dismissal process itself does not differ much from the usual practice and includes:
You can notify an employee in a free form. The main thing is that it should include an expressed desire to terminate the agreement and the date of dismissal. The employer's accounting department can develop standard form or a sample employee notice of dismissal upon expiration of the employment contract.
The form of the dismissal order is unified and does not require a special sample for the expiration of the employment contract. On the basis of the dismissal order, an entry is made in the work book: the expiration of the employment contract.
It is possible to dismiss the head (director) of the enterprise after the expiration of the employment contract instead of an order according to the protocol or decision of the founders.
All paperwork is drawn up in accordance with the rules adopted by the enterprise. Documents are recorded in registration journals. The employee signs for the receipt of documents on copies of the employer and in the document registers. Refusal to sign is recorded on the documents by a corresponding entry.
It is important to comply with the deadlines of the procedures. A notice of the expiration of a fixed-term employment contract must be delivered three days or earlier before the date of dismissal. Salary, compensation for vacation and other payments established by law or contract, as well as a work book, issue on the day of dismissal.
If the employer has not expressed a desire to end the relationship, and the employee continues to perform his duties, the contract is transformed into an open-ended one. In this case, the contract can be terminated in the future only on the grounds provided for agreements without a specific period.
A logical question arises: “Is it possible to extend a fixed-term contract?” Legislation does not provide a clear answer. The TC does not provide for the extension of fixed-term relationships. In the event of a conflict, the employer will have to prove in court the impossibility of concluding an open-ended agreement. The repeated conclusion of fixed-term contracts is considered as an evasion by the employer of the obligations and guarantees established by law for employees.
However, for some categories of workers, legislators have provided for the need to extend the relationship. These are pregnant women, temporarily transferred athletes, employees of universities elected by competition. It is possible to dismiss a pregnant woman after the expiration of the employment contract at the end of the pregnancy.
The most common reason for going to court is recognition illegal dismissal worker. The employer should remember: any discrepancy between a fixed-term contract and the law leads to its recognition as open-ended.
In this case, the employee must be reinstated at work, the dismissal is recognized as illegal. For forced absenteeism, the employer pays the average wage and compensation for non-pecuniary damage.
Mistakes most often made by employers:
On the part of employees, the loss in courts is due to the unlawful demand for guarantees when terminating fixed-term contracts. Often, when entering into a temporary agreement, hired employees hope for a change in the situation and permanent job. Therefore, they consider the termination of a fixed-term employment contract after the expiration of the term as an initiative of the employer.
However, the courts take a firm line that the characteristics of a fixed-term contract from the moment of conclusion imply a limitation on the time of its validity. Therefore, all the guarantees laid down by law upon dismissal at the initiative of the employer, in the event of termination of the contract at the end of the term, do not apply.
It is lawful to terminate employment contracts after the expiration of the period of incapacity for work, during the holidays of employees. The presence of small children is also not a reason to continue working.
The dismissal of your employee will be legal if, when terminating a fixed-term employment contract with him, you follow three rules:
Step 1. Determine the basis for dismissal
Many employers believe that the only reason for terminating a fixed-term employment contract is its expiration (). However, the law allows you to terminate it ahead of schedule and for other reasons. At the same time, it is important on what basis you terminate or terminate a fixed-term employment contract with an employee. The procedure for registration by you depends on the grounds for dismissal personnel documents. First of all, let's consider what is the difference between the concepts of "termination" and "termination" of an employment contract (see diagram). The Labor Code combines these concepts into one - "termination of an employment contract." However, there are differences between them: for the termination of an employment contract, a volitional sign is important (the initiative of one of the parties, its request, its consent), while the termination occurs as a result of negotiations (agreement) or reasons (events) independent of the desire of the parties.
Step 2. We follow the procedure for dismissal
As already mentioned, the procedure for dismissal depends on the grounds. Consider the most common grounds for dismissal.
As a general rule, a fixed-term employment contract is terminated due to the expiration of its term ( ). Be sure to notify your employee of this in writing at least three calendar days before the date of termination of the contract ( ). Such a notification should not be considered a formality: if neither party requires termination of the employment contract and the employee continues to work, the contract will be considered concluded for an indefinite period ( ). The form of notification of an employee about the termination of a fixed-term employment contract is not established by law, so it can be issued, for example, as shown in sample .
An employment contract may be terminated ahead of schedule at the initiative of the employer in the cases specified in Labor Code. You must notify the employee in writing of your decision.
For example, about termination of an employment contract in connection with the liquidation of an organization, warn each employee personally against signature at least two months before dismissal (). At the same time, employees who have concluded an employment contract for a period of up to two months must be notified of the upcoming dismissal at least three calendar days in advance (), and seasonal workers - at least seven calendar days in advance ().
The employee has the right to terminate the employment contract with the employer before its expiration on his own initiative ( ). To do this, he must submit a letter of resignation to the employer (see. sample ) in compliance with the deadlines established by law (cf. table).
According to of the Labor Code, an employment contract (including a fixed-term one) can be terminated at any time by agreement of the parties (see scheme ). Upon termination of a fixed-term employment contract by agreement of the parties, the parties sign an appropriate agreement (see sample ).
Step 3. We issue a dismissal order
Termination of a fixed-term employment contract is executed by order of the employer (). The employee must be familiarized with the order to terminate the employment contract against signature. It is compiled in accordance with the unified form No. T-8.
Step 4. We make an entry in the work book
As a rule, an entry is made in the employee's work book upon dismissal with reference to the basis specified in the Labor Code.
It is important to remember that the entry in the labor at the termination of a fixed-term employment contract with separate categories employees may have a link to other norms of the Labor Code. Thus, an employment contract with a scientific and pedagogical worker is terminated due to the expiration of the term for election by competition under paragraph 4 of the first part of Article 336 of the Labor Code (see sample). And if the employee is not elected to the position, the employment contract with him should be terminated in accordance with paragraph 3 of the first part of Article 83 of the Labor Code. If it turns out that the employee submitted a false document of education during employment, the employment contract with him will be terminated ahead of schedule in accordance with paragraph 11 of the first part of Article 81 of the Labor Code.
Error
Many employers agree to pay their employees who worked for them under a fixed-term employment contract and fall ill within 30 days after dismissal, temporary disability benefits only for 75 days of their illness, referring to Article 6 of Law No. 255-FZ. They fear that the FSS of Russia will not take credit for the amounts paid to these workers.
How to
Such employees must be paid for all the days of their illness (part 2 of article 5 of Law No. 255-FZ). Article 6 of Law No. 255-FZ refers to employees who work under a fixed-term employment contract concluded for a period of up to six months and become ill during work, and not about all employees under a fixed-term employment contract, and even more so - not about those who fell ill after dismissal .
What if…
As a result of the GIT check, the employer will be obliged to assign an allowance to the employee for the days of his illness and pay a fine of up to 50,000 rubles (). If the employer assigns an allowance to the retired employee, and the FSS of Russia does not accept the amounts paid for offset, the employer will be able to successfully claim them through the court. The FSS of Russia did not reimburse such expenses before the adoption of Law No. 255-FZ, and not after (Decree of the Federal Antimonopoly Service of the North-Western District of November 28, 2005 No. A56-13502 / 05).
The experts who took part in the preparation of the material note:
Evgenia SIMAKOVA, lawyer, expert of the Kadrovoe Delo magazine:
– The employment contract can be terminated both in connection with the expiration of its validity period, and for other reasons, prescribed by law. The procedure for processing documents upon termination of employment with him depends on the basis for the dismissal of an employee.
Alena LACHUGINA, document manager of the municipal educational institution additional education children "Station young technicians» (Biysk):
– Termination of a fixed-term employment contract by agreement of the parties allows the employee and the employer to agree on its conditions themselves: for example, on payment to the employee monetary compensation and term of termination of the employment relationship.
Yulia SAFINA, lawyer of the Yurkonsul Group of Companies (Moscow):
- The employee must be warned of the termination of the employment contract due to the expiration of its term in writing at least three calendar days in advance. If none of the parties demanded the termination of a fixed-term employment contract due to its expiration, it is recognized as open-ended.
Galina MEREZHKINA, Payroll Accountant, Municipal Unitary Enterprise Krasnoyarsk Housing and Public Utilities (Krasny Yar, Volgograd Region):
): an act on the employee's refusal to sign for a notification, a bypass sheet, an order to dismiss
In the electronic version of the article you will find an additional sample: an order to terminate a fixed-term employment contract due to the expiration of its term
_________________________
Depends on the reason for the dismissal. When terminating the contract at the initiative of the employer, notify the employee of the termination of the employment contract. When terminating the contract by agreement of the parties, sign an agreement on this with the employee. Upon termination of the contract at the initiative of the employee, receive a corresponding statement from him.
_________________________The organization sometimes accepts a temporary employee for certain needs. There are cases when the contract is still valid, and the need for the employee has disappeared, and then the question arises whether it is possible to terminate the fixed-term employment contract ahead of schedule.
The general basis for terminating a temporary employment contract is contained in Article 79 of the Labor Code of the Russian Federation - this is the expiration of a fixed-term contract. In this case, the employer must notify the employee three days before the expiration of the employment contract. Otherwise, the contract will become indefinite.
But depending on the basis for concluding a temporary contract, the moment of termination of the contract will be different, namely:
But, as with any open-ended contract, early termination of a fixed-term employment contract is possible. There could be many reasons for this. The grounds for termination of an employment contract are spelled out in chapter 13 of the Labor Code of the Russian Federation.
Let's remember the grounds for terminating an employment contract:
As for the early termination of the employment contract at the initiative of the employer, in accordance with Article 81 of the Labor Code of the Russian Federation, there are several options:
But it is worth analyzing a few points that are not typical for a fixed-term employment contract. If everything is clear with the liquidation of the company (in this case, the termination of the employment contract with a temporary employee will be carried out according to general scheme), then early termination of the employment contract with a reduction in staff has a number of subtleties.
Temporary worker, like permanent employees, must be listed in staffing, filled out in the form T-3, approved by the Decree of the Goskomstat of Russia No. 1 dated 01/05/2004. With a reduction in staff, there are a number of employees who cannot be fired. If a temporary employee replaces a permanent employee who retains a job, then early termination of the contract is impossible.
The employer has the right to conduct attestation of employees for compliance with the position held at regular intervals. For this, orders, regulations and other documents are issued. If a temporary employee will work at the time of the certification of employees, he may be exempted from certification due to the urgency of the contract, or may be subject to certification. In case of failure to pass the certification temporary worker with him, you can prematurely terminate a fixed-term employment contract in accordance with the third part of Article 81 of the Labor Code of the Russian Federation.
But it is worth remembering that the employee can always go to court and challenge the decision of the employer.
After the appearance of grounds for terminating a fixed-term employment contract ahead of time specified in the contract, the employer is advised to discuss this with the temporary worker. This is done in order to avoid further conflicts and litigation.
Registration of dismissal of any employee takes place in accordance with Art. 84.1 of the Labor Code of the Russian Federation. The head draws up an order, with which the employee is introduced against signature. On the last working day, a full settlement of wages and other payments is made with the employee.
Many employers try to do everything in advance so that in case of questions from the employee or disagreements, they can be resolved in advance. Labor legislation does not prohibit such actions of the employer. But, as mentioned above, any agreement with an employee does not exclude the possibility of the latter going to court or controlling government bodies.
Next, the employer makes a record of dismissal in the work book. The entry is made in accordance with the Instructions for filling out work books, approved by the Decree of the Ministry of Labor of the Russian Federation of October 10, 2003 N 69.
If the dismissed person cannot be present at work on the last day, the work book is issued to him in advance or the employer sends the employee a notice of appearance for the work book. There are cases when an employee refuses to pick up a work book or even come to work on the last day due to a conflict, but the manager is not responsible for not receiving a work book if he sent a notification. The notification is always recommended to be sent by Russian Post or other courier service by registered mail with a description of the contents and receipt of proof of delivery of the letter.
According to Article 178 of the Labor Code of the Russian Federation, upon dismissal due to a reduction in the number of employees or liquidation of the company, the employee is paid two average earnings. If an employee who joined the labor exchange cannot find a job within two months, he is paid another average earnings. At the same time, additional payments may be established in the local acts of the employer or the collective agreement in case of dismissal.
An employee may wonder if additional compensation for early termination of the contract. labor law additional payments are not provided, but they can be established by an employment contract. After all, containing a list of mandatory clauses of an employment contract, it says that this list is not exhaustive.
As a result, we can say that the employer must clearly know the grounds and nuances of the dismissal of an employee, even if this employee is hired for a certain period.
Hello! In this article we will talk about the termination of a fixed-term employment contract (hereinafter - STD).
Today you will learn:
This happens in the following cases:
In addition to the above cases, there is a procedure for terminating a fixed-term employment contract if any party has an initiative.
A STD that does not comply with the law may be subject to legal transformation and become indefinite.
Termination of a fixed-term employment contract planned by the employee must be accompanied by a warning to the employer 2 weeks before the date of departure.
Otherwise, the termination of a fixed-term employment contract at the initiative of the employee is carried out in the general manner. However, there is an exception that applies if the total duration of the relationship does not exceed 2 months.
If there is a reason from the first group, it is necessary to prepare a package of mandatory documents that record a disciplinary offense. Usually carried out service check or a special act is drawn up on a disciplinary offense of an employee. After the document certifying the fact of a serious violation has been prepared, a dismissal order can be issued.
As for other circumstances, the occurrence of which is not the fault of the employee, then, as a general rule, the employer notifies the employee 2 months in advance. Some fixed-term employment contracts are subject to a special procedure. When working in a certain season, such notification is carried out 7 days before the date of termination of the contract, and if the planned term of the employment relationship does not exceed 2 months, then notification can be made in just 3 days.
The termination of STD occurs due to the occurrence of various events, among them such as:
Any dismissal due to the above circumstances must be documented. In all cases, an order is issued indicating the relevant legal grounds.
Notice of termination of a fixed-term employment contract is usually sent only in writing, regardless of on whose initiative this occurs. It is most reliable to carry out such notification in writing.
1. If an employee leaves due to own will, then it will be easiest for him to write a statement, on the copy of which the secretary of the organization will put a mark of acceptance, indicating the date of the statement. This copy will be evidence of compliance with the notification procedure and the subsequent termination of the contract.
As alternative you can notify the dismissal by a separate document - a letter, and write a statement closer to the date of departure. However, in practice it is less convenient.
2. If the dismissal process is organized by the employer, then the employee must sign the text of the notice of dismissal on time, statutory. The notice clearly states the legal justification for the dismissal and a reference to an article of the law. Each party shall receive a copy of such document in their hands.
Early termination of a fixed-term employment contract is possible for 2 conditional types of reasons:
It should be remembered that the STD is not terminated by the will of the employer if the employee is a pregnant woman.
Payment must be made on the last day of work.
The employee shall be paid all compensation due, including wage, compensation for vacation, which he did not have time to use.
Currently, the issuance of cash at the cash desks of organizations is almost not practiced. Usually, the accounting department makes the appropriate transfers to the employee's bank account.
Sometimes the calculation is made with a delay of several days, which is due to the peculiarities of the banking system.
