Procedure for terminating a fixed-term contract. Features and procedure for terminating a fixed-term employment contract

All employment contracts can be classified according to the period for which they are concluded. According to employment contracts, they can be concluded for an indefinite period and for a specific period of no more than five years (fixed-term employment contract), unless a different period is established by other federal laws.

Having provided for the possibility of concluding fixed-term employment contracts, the legislator, at the same time, limits their use. As a general rule, such contracts can be concluded only in cases where labor relations, taking into account the nature of the work to be performed or the conditions for its implementation, cannot be established for an indefinite period, as well as in some other cases provided for by other federal laws.

Besides general rules urgent conclusion employment contract and criteria for establishing labor relations for a certain period, provides in Art. 59 and a list of specific cases when it is permissible to conclude a fixed-term employment contract by agreement of the parties.

If the employment contract does not stipulate its validity period, then the contract is considered to be concluded for an indefinite period. An employment contract concluded for a specific period in the absence of sufficient grounds established by the court is considered concluded for an indefinite period.

If it is established during the trial that there have been multiple conclusions of fixed-term employment contracts for a short period of time to perform the same labor function, the court has the right, taking into account the circumstances of the case, to recognize the employment contract as concluded for an indefinite period.

The employer’s order (instruction) to terminate the employee’s employment contract must be familiarized with signature. At the request of the employee, the employer is obliged to provide him with a duly certified copy of the specified order (instruction). In the event that an order (instruction) to terminate an employment contract cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it against signature, a corresponding entry is made on the order (instruction) ().

The basis for issuing an order (instruction) of the employer in the case under consideration will be the expiration of the employment contract concluded with the employee.

In accordance with Part 1, upon dismissal, the employee is paid monetary compensation for all unused vacations. Payment of monetary compensation to the employee for unused vacations is the absolute responsibility of the employer, but by agreement of the parties to the employment contract, it can be replaced by the provision of unused vacations with subsequent dismissal.

This rule is common to all grounds for dismissal and is aimed at exercising the employee’s right to use vacation in exchange for receiving monetary compensation.

Upon dismissal due to the expiration of the employment contract, leave followed by dismissal may be granted even when the vacation period completely or partially extends beyond the term of this contract. In this case, the day of dismissal is also considered the last day of vacation.

Thus, as a general rule, a written statement from the employee is required to confirm his intention to actually use the leave before dismissal, and not to receive monetary compensation for it. The mere provision of leave before dismissal, although in the absence of such a statement, but with proof of the employee’s will to exercise his right to use leave before dismissal and the employer’s consent to this, cannot be considered a violation of the employee’s rights and as a sufficient basis for his reinstatement at work outside the term of the employment contract.

Hello! In this article we will talk about termination of a fixed-term employment contract (hereinafter – STD).

Today you will learn:

1. When the STD is terminated at the request of one of the parties;
2. In what form is notification of the termination of STD carried out;
3. When a contract is terminated early without the will of the parties.

When STD stops automatically

This happens in the following cases:

1. Its validity period is ending. The employer must notify the employee of this fact in advance. There must be no more than 3 days left until the end date.
2. One of the following circumstances occurs:

• The work is being completed, the actual duration of which will ultimately be equal to the duration of the contract (deforestation work is planned, which will end when the planned volume is cut down, in this case it is impossible to foresee a specific period in advance, etc.);
• An employee whose duties were temporarily performed by someone else returns to work (for example, a woman who was in quarantine returns to work). maternity leave, after which the employment relationship with the employee who replaced her is terminated);
• The season for performing certain types of work is ending (this condition most often occurs during harvesting or mining natural resources, for example, as long as the weather remains warm, the season ends up being short or long).

In addition to the above cases, there is a procedure for terminating a fixed-term employment contract when any party takes the initiative.

An STD that does not comply with the law may be subject to legal transformation and become permanent.

The procedure for terminating the STD at the initiative of the employee

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, termination of a fixed-term employment contract at the initiative of the employee is carried out in accordance with the general procedure. 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 documenting the disciplinary offense. Usually an internal audit is carried out or a special report is drawn up regarding the employee’s disciplinary offense. Once a document certifying the fact of a serious violation has been prepared, an order of dismissal can be issued.

As for other circumstances, the occurrence of which is not the employee’s fault, then, as a general rule, the employer notifies the employee 2 months in advance. A special procedure applies to some fixed-term employment contracts. 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 duration of the employment relationship does not exceed 2 months, then notification can be given only 3 days in advance.

Other cases of termination of STD

Termination of STD occurs due to the occurrence of various events, including the following:

• Imposition of criminal punishment, the execution of which interferes with the performance of labor functions;
• Loss of the right to work in a particular field of activity;
• Physical or mental loss ability to perform job duties;
• Offensive emergency, including natural disaster, disasters, accidents and more;
• Death of an employee or employer;
• Administrative disqualification.

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

Notice of termination of a fixed-term employment contract is usually sent only in writing, regardless of whose initiative it occurs. The best way to provide such notification is in writing.

1. If an employee quits due to at will, then it will be easiest for him to write an application, on a copy of which the secretary of the organization will put a mark of acceptance, indicating the date of the application. This copy will be proof of compliance with the notification procedure and subsequent termination of the contract.

As alternative option you can give notice of dismissal a separate document- by letter, and closer to the date of departure write a statement. However, in practice it is less convenient.

2. If the dismissal process is organized by the employer, the employee must sign the text of the notice of dismissal within the period established by law. The notice clearly states the legal justification for dismissal and a reference to the article of law. Each party receives a copy of such a document in hand.

Early termination of a fixed-term employment contract

Early termination of a fixed-term employment contract is possible for 2 conditional reasons:

1. The relationship is terminated if one of the parties wishes;
2. Events occur that inevitably affect the ability to fulfill the terms of the contract.

It should be remembered that STD is not terminated by the will of the employer if the employee is a pregnant woman.

Settlement with an employee

Payment must be made on the last day of work.

The employee is paid all due compensation, including wages and compensation for vacation that he did not have time to use.

Currently, issuing cash at cash desks of organizations is almost never practiced. Typically, the accounting department makes the appropriate transfers to the employee’s bank account.

Sometimes settlements are made with a delay of several days, which is due to the peculiarities of the banking system.

Everyone knows that under certain circumstances, an employer can fire an employee on his own initiative. And such cases in practice when an employee receives his work book not by choice, quite a lot. At the same time, the ratio of several items is of great interest to HR specialists Labor Code RF, regulating the procedure for dismissing an employee. We have to pay special attention the terms of the employment contract, as well as the peculiarities of the correlation of these conditions and the reasons for the employee’s dismissal. For example, many questions arise about the termination of a fixed-term employment contract on grounds that are regulated by Art. 81 Labor Code of the Russian Federation.

TERMINATION OF A FIXED-TERM EMPLOYMENT CONTRACT

Article 79 of the Labor Code of the Russian Federation establishes the procedure for terminating a fixed-term employment contract due to the expiration of its term. As is known, a fixed-term employment contract is, as a general rule, terminated upon expiration of its validity period, about which the employer must notify the employee at least three days in advance calendar days before the date of termination of the contract.

In some cases, the duration of the contract is not determined by a specific date:

• an employment contract concluded for the duration of the duties of an absent employee is terminated when this employee returns to work;
• an employment contract concluded for the duration of certain work is terminated upon completion of this work;
• an employment contract concluded to perform seasonal work during a certain period (season) is terminated at the end of this period (season).

TERMINATION OF AN EMPLOYMENT CONTRACT AT THE EMPLOYER’S INITIATIVE

Article 81 of the Labor Code of the Russian Federation regulates the grounds for termination of an employment contract at the initiative of the employer. Such grounds include:

• liquidation of an organization or termination of activities by an individual entrepreneur;
• reduction in the number or staff of employees of an organization or individual entrepreneur;
• the employee’s inadequacy for the position held or the work performed due to insufficient qualifications confirmed by certification results;
• change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);
• repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;
• a single gross violation of labor duties by an employee (absenteeism, appearing at the workplace in a state of intoxication, disclosing legally protected secrets, theft or intentional damage to someone else's property at the place of work, violation of labor protection requirements);
• commission of guilty actions by an employee directly servicing monetary or commodity values if these actions give rise to a loss of confidence in him on the part of the employer;
• committed by an employee performing educational functions, immoral offense, incompatible with the continuation of this work;
• adoption of an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;
• a single gross violation by the head of the organization (branch, representative office) or his deputies of their labor duties;
• the employee submits false documents to the employer when concluding an employment contract.

The employer may terminate the employment contract with the head of the organization and members of the collegial executive body of the organization on other grounds. Such grounds must first be specified when concluding employment contracts with these categories of workers.

Also, Article 81 of the Labor Code of the Russian Federation stipulates that an employment contract can be terminated and in other cases established by the Labor Code of the Russian Federation and other federal laws. In particular, the Labor Code of the Russian Federation refers to such cases:

• unsatisfactory test result when hiring (Article 71 of the Labor Code of the Russian Federation);
• removal from office of the head of the debtor organization in accordance with the legislation on insolvency (bankruptcy) (Article 278 of the Labor Code of the Russian Federation);
• acceptance by the authorized body legal entity, either the owner of the organization’s property, or a person (body) authorized by the owner of the decision to terminate the employment contract with the head of the organization (Article 278 of the Labor Code of the Russian Federation);
• repeated gross violation of the regulations by a teaching staff member within one year educational institution(Clause 1 of Article 336 of the Labor Code of the Russian Federation);
• the teacher’s use of educational methods related to physical and (or) mental violence against the personality of the student (clause 2 of Article 336 of the Labor Code of the Russian Federation);
• sports disqualification of an athlete for a period of six months or more (clause 1 of Article 348.11 of the Labor Code of the Russian Federation);
• violation by an athlete, including a one-time violation, of all-Russian and (or) international anti-doping rules (clause 2 of article 348.11 of the Labor Code of the Russian Federation).

Federal laws regulate the issues of termination of an employment contract at the initiative of the employer in the service of internal affairs bodies, security services, emergency rescue services, in state (municipal) institutions, local governments, joint stock companies, in the field of education and foreign intelligence, in case of insolvency (bankruptcy) of the organization, disqualification of an official.

EARLY TERMINATION OF A FIXED-TERM EMPLOYMENT CONTRACT

Termination of an employment contract due to its expiration is not the initiative of the employer. However, the employer can terminate a fixed-term employment contract before the expiration of this period: the grounds specified in Art. 81 Labor Code of the Russian Federation. At the same time, regardless of the term of the employment contract, a number of features must be taken into account.

1. Each of the grounds presupposes the presence of certain circumstances specified in the Labor Code of the Russian Federation.

For example, an employer has the right to dismiss an employee for repeated failure to fulfill work duties without good reason if he already has a disciplinary sanction. Such a disciplinary sanction could be, for example, a reprimand or reprimand (Article 192 of the Labor Code of the Russian Federation). It is necessary to take into account that for each disciplinary offense the employer can apply only one disciplinary sanction (Part 5 of Article 193 of the Labor Code of the Russian Federation). After a year has passed from the date of application of the disciplinary sanction, it is considered that the employee does not have a disciplinary sanction (Part 1 of Article 194 of the Labor Code of the Russian Federation).

2. The existing circumstances of dismissal must be properly documented by the employer. Thus, in the event of dismissal for repeated failure to fulfill job duties without good reason, it is necessary that the fact that the employee committed a disciplinary offense is documented. The Labor Code of the Russian Federation does not regulate this issue, so you can draw up any document in which a disciplinary offense will be recorded, for example, an official memo. Further, it is mandatory to draw up written explanation employee, an act (if the employee did not provide such an explanation), an order (instruction) of the employer to apply a disciplinary sanction, another act if the employee refused to familiarize himself with the order (Article 193 of the Labor Code of the Russian Federation).

3. When terminating an employment contract at the initiative of the employer, it is necessary to take into account preferential categories of employees who do not fall under some of the grounds specified in Art. 81 Labor Code of the Russian Federation.

For example, termination of an employment contract at the initiative of the employer is not allowed with a pregnant woman. The exception is cases of liquidation of an organization or termination of activities by an individual entrepreneur.

It is also prohibited to terminate an employment contract on the grounds specified in paragraphs. 1, 5-8, 10 or 11 hours. 1 tbsp. 81 of the Labor Code of the Russian Federation, with persons with family responsibilities. Such persons include:

• a woman with a child under three years of age;
• a single mother raising a disabled child under the age of 18 or a young child - a child under the age of 14;
• another person raising these children without a mother;
• a parent (other legal representative of the child) who is the sole breadwinner of a disabled child under the age of 18 or the sole breadwinner of a child under the age of three in a family raising three or more young children, if the other parent (other legal representative of the child) is not a member labor relations.

4. It is necessary to take into account additional dismissal rules established for certain categories of employees. So, with employees under 18 years of age It is possible to terminate an employment contract at the initiative of the employer only with the consent of the relevant state inspection labor and the commission on affairs of minors and protection of their rights (Article 269 of the Labor Code of the Russian Federation).

Exception from of this rule are cases of liquidation of an organization or termination of activities by an individual entrepreneur.

Separate dismissal rules are established for employees who are members of the trade union(Article 82 of the Labor Code of the Russian Federation). Such rules apply to dismissals on the grounds provided for in paragraphs. 2, 3 and 5 tbsp. 81 Labor Code of the Russian Federation. In particular, the dismissal of these employees must be carried out taking into account the reasoned opinion of the elected body of the primary trade union organization in the manner prescribed by Art. 373 Labor Code of the Russian Federation. And for workers who have entered into a collective agreement, a different procedure for the participation of the elected body of the primary trade union organization may be established (Part 4 of Article 82 of the Labor Code of the Russian Federation). In addition, due to the fact that there is no deadline for terminating an employment contract with an employee after receiving the consent of the elected trade union body, dismissal can be made no later than one month from the date of receipt of the consent of the higher elected trade union body for dismissal.

A separate procedure for notifying the elected body of the primary trade union organization has been established when reducing the number or staff of the organization's employees(individual entrepreneur). Such notice in writing must be submitted no later than two months before the start of the relevant activities. Moreover, if the decision to reduce the number or staff of employees can lead to mass dismissal of workers, then the notification must be sent no later than three months before the start of the relevant measures (Part 1 of Article 82 of the Labor Code of the Russian Federation).

5. When terminating an employment contract, the deadlines established by law must be observed. For example, when registering dismissal for repeated failure by an employee to fulfill his or her job duties without good reason, the following must be taken into account:

• A disciplinary sanction is applied no later than one month from the date of discovery of the offense. In this case, the employee’s time of illness, vacation and the time required to take into account the opinion of the representative body of employees are not taken into account when calculating days;
• the day the misconduct was discovered, from which the month period begins, is considered the day when the employee’s manager became aware of the commission of the misconduct;
• no more than six months must have passed from the day the offense was committed (this period does not include the time of criminal proceedings);
• the employee can write an explanation within two days of the request. The act of refusal to give an explanation is drawn up after two days, that is, on the third day after the request;
• The employee signs the order (instruction) of the employer to apply a disciplinary sanction within three working days from the date of issuance of the order.

6. In some cases, upon termination of an employment contract at the initiative of the employer, the employee must be provided with certain guarantees and compensation(Chapter 27 of the Labor Code of the Russian Federation).

Thus, when reducing the number or staff of employees of an organization (individual entrepreneur), the employer must offer the employee a vacant position (job) corresponding to the employee’s qualifications, or a vacant lower position (lower paid job) in the same area (Articles 81 and 180 of the Labor Code of the Russian Federation). In the absence of such vacancies, the employer is obliged to pay the dismissed employee severance pay in the amount of average monthly earnings, and also maintain the average monthly earnings for the period of employment (up to two months from the date of dismissal with severance pay included in the third month, but provided that within two weeks after dismissal the employee contacted the employment service and was not employed ). This procedure is regulated by Art. 178 Labor Code of the Russian Federation.

The employer may establish other guarantees and compensation related to dismissal in the employment contract with the employee. The main thing is that the established guarantees and compensations do not violate the employee’s rights established by law and are fully implemented upon dismissal.

So, we have examined the main features of termination of an employment contract (including a fixed-term one) at the initiative of the employer on the grounds specified in Art. 81 Labor Code of the Russian Federation. From the above, we can conclude that for each specific situation, careful consideration of the issue is necessary in order to avoid violations of the requirements of labor legislation and at the same time comply with the pre-established rights of the employee and the obligations of the employer.

The Ore Code of the Russian Federation allows the parties to limit the term of the employment contract in certain cases. But its end does not always mean the termination of the employment relationship. Sometimes an employee continues to work after the expiration of the employment contract, without either party demanding 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 its expiration date. Let’s figure out what requirements in most cases are typical for disputes with this category of workers. Let's consider how to resolve a conflict if a subordinate disputes the very possibility of concluding a fixed-term employment contract with him.

An employment contract can be concluded by the parties either for an indefinite or a definite period of no 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 the employment relationship cannot be established for an indefinite period, taking into account the nature of the upcoming work 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 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, the employment contract preserves the place of work;
• for the duration of temporary (up to two months) work;
• 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 related to 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 predetermined period or to perform a predetermined job;
• with persons hired to perform obviously defined work in cases where its completion cannot be determined by a specific date;
• to perform work directly related to practice, vocational training or additional vocational 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 organs state power and local governments, in political parties and others public associations;
• with persons sent by employment services to temporary work and public works;
• with citizens sent to perform alternative civil 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 ahead 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 does not exceed 35 people (in the field of retail trade and consumer services - 20 people);
• with age pensioners entering work, 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 Far North and equivalent areas, if this is associated with moving to the place of work;
• to carry out urgent work to prevent disasters, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;
• with persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms;
• with creative media workers mass 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 on regulation of social and labor relations;
• with managers, deputy managers and chief accountants of organizations, regardless of their legal forms and forms of ownership;
• with persons receiving education in full-time training;
• with crew members of sea vessels, inland navigation vessels and mixed (river-sea) navigation vessels registered in the Russian International Register of Ships;
• with persons applying for part-time work;
• 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 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 an employee continues to work after the expiration of the employment contract, and neither party has demanded its termination, the condition on the urgent nature of the employment contract loses force, 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 evade the provision of 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 finds that the employee has been performing the same job 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 may be considered long-term, and the employment contract may be considered concluded for an indefinite period.

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

1. the employment contract is terminated upon expiration of its validity period. The employer must warn the subordinate about 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 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 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 duties of an absent employee is terminated when this employee returns to work (Part 3 of Article 79 of the Labor Code of the Russian Federation);
4. an employment contract concluded to perform seasonal work during a certain period (season) is terminated 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 clause 2, part 1, art. 77 of the Labor Code of the Russian Federation does not exist, but everything is not so simple. Judicial practice confirms that such grounds as the expiration of an employment contract quite often become the cause of conflicts.

Let's look at the most typical controversial situations and their consequences for the employer.

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

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

Judicial practice

Collapse Show

The employee went to court to recognize the dismissal under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation is illegal. He believed that the employment contract signed with him should be considered concluded for an indefinite period. The court rejected it, since it was reliably established that the employee’s labor relations with the defendant were of an urgent nature during the performance of the duties of the absent specialist, who returned to his permanent position. workplace(appeal 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 clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation in connection with the expiration of the employment contract. The court recognized the termination of the employment relationship as legal, since she did not provide adequate and sufficient evidence indicating that the plaintiff was forced to enter into 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 order and procedure for dismissal (appeal 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 09/02/2016 in case No. 33-28273/2016, the Moscow City Court ruling dated 08/22/2016 No. 4g/8-7164.

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

Judicial 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 expiration of its term, the employment relationship was terminated on the basis of clause 2, part 1, art. 77 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 resulted in the refusal to conclude an employment contract with her for an indefinite period. The court did not agree with the employee and rejected her. Argumentation – the disputed employment contract indicates its validity period and sets out the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract. The employment contract on the terms and conditions set out in it was signed by the plaintiff; she did not provide evidence of being forced to sign it. In addition, the employee signed that she had read the employment order, which also indicated 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 mistakes the employer made when preparing any documents to establish an indefinite duration of the employment relationship. But if such shortcomings do not violate the procedure for terminating an employment contract, the court will most likely not cancel the dismissal.

Judicial practice

Collapse Show

The plaintiff was hired during the absence of the main employee, who was on sick leave. After release last woman fired under clause 2, part 1, art. 77 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 hiring order and the dismissal order, as well as the certificates of incapacity for work, indicated different patronymics of the main employee, since a technical typo in the text of the documents does not refute the fact that the specialist, during whose absence the plaintiff, went to work was hired (appeal ruling of the Moscow City Court dated October 24, 2016 in case No. 33-38246/2016).

Taking the side of 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 classified as a general basis for termination of an employment contract. An employee, giving consent to the conclusion of an employment contract in cases provided for by law for a certain period, knows about its termination after the expiration of a pre-agreed period or in connection with the occurrence 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 leave, and also asked to extend the employment contract for the period of annual paid leave and count the date of her dismissal after returning from leave 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 clause 2, part 1, art. 77 Labor Code of the Russian Federation. Let's see how the court resolved this situation.

Judicial practice

Collapse Show

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

And if an employee provides the employer with all the necessary documents for vacation, should the employer extend the contract? Right, but not obligated. 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 completely or partially extends beyond the term of this contract. In this case, the day of dismissal is also considered the last day of vacation.

Judicial practice

Collapse Show

As the Supreme Court of the Russian Federation noted, granting leave followed by dismissal upon a written application from an employee is a right, not an obligation of the employer and, therefore, to receive leave followed by dismissal, the unilateral expression of the will of a subordinate is not enough; the consent of the employer is also required (decision of the Supreme Court of the Russian Federation dated April 22, 2009 No. GKPI09-82).

Thus, if the manager decides to accommodate the employee 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, we must 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 during the vacation 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 its expiration and neither party requested termination.

There are also situations in which employees rightfully insist on recognition of the termination of employment relations under clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation is 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 can be concluded without taking into account the nature of the work to be performed and the conditions for its implementation. It is necessary to keep in mind that such an agreement can be recognized as legal 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 about the legality of concluding a fixed-term employment contract, finds that it was signed by the employee involuntarily, the court will apply the rules of an agreement concluded for an indefinite period (clause 13 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by courts Russian Federation 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, and there was no agreement of both parties, the court will take the employee’s side.

Judicial practice

Collapse Show

The plaintiff was dismissed on the basis of clause 2, part 1, art. 77 Labor Code of the Russian Federation. She did not agree with this and went to court, where she stated that the employer had no grounds for concluding a fixed-term employment contract with her, which was valid from November 1, 2013 to December 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 that make work possible within a period exceeding 6 months, which indicates that there are no grounds for concluding a fixed-term employment contract due to the seasonality 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 provided for in Art. 57 of the Labor Code of the Russian Federation (appeal 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 dated August 24, 2016 in case No. 33-21146/2016, and the Krasnoyarsk Regional Court dated 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 given examples from judicial practice, the employer must indicate in the text of the employment contract the justification for the urgent nature of the relationship. Here are some examples of possible wording (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 duties of Svetlana Petrovna Ivanova, 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 was 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 seasonality of work - forest planting";
• “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 the accident at the 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 occurred, but there was no indication of them in the contract, then this cannot be the basis for recognizing fixed-term employment contracts concluded for an indefinite period.

Judicial practice

Collapse Show

A fixed-term employment contract was concluded with an old-age pensioner employee, which did not indicate the reasons why it was signed for a certain period. Then the plaintiff was dismissed on the basis of clause 2, part 1, art. 77 Labor Code of the Russian Federation. The court recognized the termination of the employment contract as 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 led to its conclusion for a certain period is not an unconditional basis for reinstatement at work (appeal determination Supreme Court Republic of Karelia dated September 1, 2015 in case No. 33-3390/2015).

Despite the presence of this judicial act, employers should comply with the requirements of the law and register all 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. After all, for improper execution of an employment contract, the company may be brought to administrative liability (Part 4, Article 5.27 of the Code of Administrative Offenses of the Russian Federation). The absence of conditions that must be included in the employment contract refers precisely to improper execution of the employment contract.

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

One typical situation is termination of the employment contract under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation, if the employer did not have grounds for this. This may include dismissing 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 by the company will lead to the reinstatement of the subordinate in his position. This is due to the fact that any violation of the norms established by law entails the recognition of termination of the employment contract as unlawful.

Judicial practice

Collapse Show

The plaintiff appealed to the court with a demand to declare her dismissal illegal under clause 2 of part 1 of Art. 77 Labor Code of the Russian Federation. The employment contract with her was concluded before the main employee, who was on maternity leave, returned to work. The court sided with the plaintiff, since it found that the absent employee did not request to be considered as having started work, in fact did not go to work and did not begin to perform her job duties. An order for the absent employee to return from maternity leave was not issued. 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 Labor Code of the Russian Federation. The time sheet submitted to the court does not support the employer’s argument that the main employee actually went to work, since specified document contradicts the evidence available in the case file and established circumstances, was drawn up formally to create the appearance of legality of the plaintiff’s dismissal (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 proven that the main employee returned to work, although he would work remotely.

Judicial practice

Collapse Show

The plaintiff was fired under clause 2, part 1, art. 77 Labor Code of the Russian Federation. He went to court to be reinstated, arguing that at the time of termination of the employment contract, the main employee, during whose absence the plaintiff worked for the employer, did not actually go to work. However, the defendant presented evidence that the employee wrote a letter of resignation from maternity leave, and an additional agreement was concluded with her, which established remote work for the woman. The departure of the main employee is confirmed by a timesheet 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 absent employee returning 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 comply with the dismissal procedure and check whether there are grounds for terminating the employment relationship.

But will it be legal? dismissal of an employee under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation during the period of her being on maternity leave? In this case, the employer has the right to terminate the fixed-term employment contract without waiting for the woman to return from maternity leave. 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 employment contract is an independent basis for termination of the employment relationship. Provisions of Part 1 of Art. 79 of the Labor Code of the Russian Federation regulates relations arising upon the occurrence of a certain event - the expiration of the established period of validity of the employment contract. This circumstance is not related to the initiative of the employer and occurs regardless of his will. In this regard, the organization is not obliged to take into account additional guarantees, established by Art. 261 Labor Code of the Russian Federation.

Judicial practice

Collapse Show

The court recognized the dismissal of the plaintiff under clause 2, part 1 of Art. 77 of the Labor Code of the Russian Federation, despite the fact that she was on maternity leave. He noted that the Labor Code of the Russian Federation does not provide for an employer’s obligation to renew a fixed-term employment contract with persons who have children under three years of age 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 dated 08/08/2016 in case No. 33-26390/2016, the Moscow Regional Court dated 05/13/2015 in case No. 33-10869/2015.

Regarding the dismissal of a pregnant employee on the basis of clause 2, part 1, art. 77 of the Labor Code of the Russian Federation, this will be considered a direct violation of the rights of the employee and the procedure for terminating the employment contract. If a fixed-term employment contract expires during a 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 term of the employment contract until the end of the pregnancy. Moreover, the employment contract must be extended regardless of the reason for the end of pregnancy - the birth of a child, spontaneous miscarriage, abortion for medical reasons, etc. (paragraph 3 of paragraph 27 of the resolution of the Plenum of the Armed Forces of the Russian Federation of January 28, 2014 No. 1 “On the application of legislation regulating the work of women , persons with family responsibilities and minors”, hereinafter referred to as Plenum Resolution No. 1).

The expectant mother, whose employment contract was extended until the end of pregnancy, is obliged, at the request of the employer, but no more than once every three months, to submit medical certificate, confirming the state of pregnancy. In the event of the birth of a child, the dismissal of a woman due to the end 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 the employer learned or should have learned about the end of pregnancy (paragraph 4, paragraph 27 of the Resolution of the Plenum No. 1, part 2 of 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.

Judicial practice

Collapse Show

The court declared the termination of the employment contract with the plaintiff under clause 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 clause 2, part 1, 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 duties of the absent employee;
2. it is impossible to transfer an employee before the end of her interesting situation to another job available in the company, which she can perform taking into account her state of health.

In this case, the employer is obliged to offer her all the vacancies that he has in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract (Part 3 of Article 261 of the Labor Code of the Russian Federation). Organizations are recommended to record in writing the direction of the proposal for vacant positions (either hand it to the employee against her signature, or send a letter by mail with a list of attachments). If she refuses a job offer, she must do so in writing. Consent to the transfer also needs to be recorded. Then, if a legal dispute arises, 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.

Judicial practice

Collapse Show

The plaintiff was notified by the employer of her upcoming dismissal due to the expiration of the employment contract and the absence of vacant positions. The employee was pregnant. The court recognized the legal termination of the employment contract with her under clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation, since the basis for the dismissal of the expectant mother was the expiration of a fixed-term employment contract in connection with the return to work of the main employee. Taking into account the absence of other vacant positions at the employer, which the plaintiff can fill due to her state of health and education, the defendant had legal grounds for making a decision on dismissal (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 dated 09/01/2016 in case No. 33-14589/2016, the Supreme Court of the Republic of Dagestan dated 08/03/2016 in case No. 33-3120/2016.

At the same time, the employer’s violation of the rules of Part 3 of Art. 261 of the Labor Code of the Russian Federation on offering available vacancies to an employee, which she can perform taking into account her state of health, will lead to the reinstatement of the expectant mother in her position.

Judicial 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 because it found that at the time of the plaintiff’s dismissal, the employer had vacant positions that she could fill. However, the defendant did not offer these vacancies to the pregnant woman (appeal 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 recognizing the termination of an employment contract as illegal under clause 2, part 1, 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 the upcoming dismissal. The subordinate must be notified in writing of 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 employment contract concluded for the duration 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 legal requirements, the employee may be reinstated.

Judicial practice

Collapse Show

The plaintiff was dismissed under clause 2, part 1, art. 77 Labor Code of the Russian Federation. The court declared the termination of employment relations illegal. In the case there were many deviations from 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 an opposite position of the courts, according to which the employer’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 declaring the dismissal illegal.

Judicial practice

Collapse Show

The plaintiff was dismissed on the basis of clause 2, part 1, art. 77 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 it expired. The court recognized the legal termination of the employment relationship, 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 the expiration of its validity period 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 agreed period (appeal ruling of the Moscow City Court dated 02.02.2016 in case No. 33-3252/2016).

Considering the contradiction in judicial practice, we recommend that employers comply with the requirements of the law and promptly notify 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 failing to comply with the notification procedure and the employer will have a better chance of winning the dispute. The form of the notification is not provided for 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 the 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 legal consequences that the employee did not receive notice of termination of the employment contract in a timely manner. The method by which an employer must notify a subordinate of dismissal is also not regulated.

Judicial practice

Collapse Show

The plaintiff was dismissed on the basis of clause 2, part 1, art. 77 Labor Code of the Russian Federation. At the same time, the employer sent the employee a telegram in advance notifying him of the upcoming termination of the fixed-term employment contract. The plaintiff received notice several days after the termination of the employment relationship. The court found the dismissal to be lawful, since the expiration of the employment contract entails its termination. This is not related to 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 September 18. 2015 in case No. 33-6154/2015).

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

Judicial 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 clause 2, part 1, art. 77 of the Labor Code of the Russian Federation, she was not notified of the termination of the employment contract. The court found the dismissal to be lawful, since the employment contract concluded for the duration of the duties of the absent specialist terminates when he returns 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 to an employee of his demands

Often, subordinates are sent to court without taking into account the deadline for applying for protection of their rights. An employee has the right to go to court to resolve an individual labor dispute within three months from the day he learned or should have learned about a violation of his rights, and in disputes about dismissal - within one month from the date he was given 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 specified 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 the employee from timely filing a claim in court for resolution of an individual labor dispute may be regarded as valid 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, paragraph 5 of Plenum Resolution No. 2). In this case, each case is considered by the court individually.

Having established that the deadline for filing a lawsuit has been missed without good reason, the judge decides to reject 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 going to court to resolve an individual labor dispute is shorter than the general period 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.

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 the violated rights of an employee, including the right to timely payment, and in terms of its duration this period is sufficient for going to court (definitions of the Constitutional Court of the Russian Federation dated May 21, 1999 No. 73-O, dated July 12, 2005 No. 312-O, dated November 15, 2007 No. 728-O-O, dated February 21, 2008 No. 73-O-O).

Judicial practice

Collapse Show

The court rejected the plaintiff’s demands for reinstatement at work after dismissal under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation, including on the grounds of omission established by Art. 392 of the Labor Code of the Russian Federation, a one-month period for applying for a dispute resolution (decision of the Moscow City Court dated November 30, 2016 No. 4g/1-13757). See also the rulings of the Moscow City Court dated 06.10.2016 No. 4g/3-11640/2016, dated 14.06.2016 No. 4g/3-4407/16, appeal rulings of the Supreme Court of the Republic of Bashkortostan dated 05.10.2016 in case No. 33-19651/ 2016, dated 07/04/2016 in case No. 33-12684/2016, Moscow City Court dated 05/30/2016 in case No. 33-20967/16, dated 04/04/2016 in case No. 33-11558/2016, Moscow Regional Court dated 06/01. 2016 in case No. 33-11514/2016.

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

To summarize 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 between 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 Labor Code of the Russian Federation;
• find out if the dismissed employee is pregnant;
• If expectant mother was hired during the absence of the main employee, check whether the dismissed woman was offered available and suitable vacant positions;
• clarify whether there are grounds for terminating the employment relationship (for example, if the contract was concluded during the absence of the main specialist, it is necessary to first formalize his return to work, and only then fire the replacement employee);
• find out whether the employee continued to work after the expiration of the employment contract, and neither party demanded its termination due to expiration, which resulted in the loss of urgency of the employment contract;
• check whether the employee is notified of the upcoming dismissal three days in advance (notification is not required if the employment contract concluded during the performance of the duties of the absent employee expires).

The employer is also obliged to remember the general procedure for formalizing 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 the employee a work book and make payments to him in accordance with Art. 140 Labor Code of the Russian Federation; at the written request of the subordinate, issue him with duly certified copies of documents related to the work.

Termination of a fixed-term employment contract occurs on a general basis in accordance with Article 77 of the Labor Code.

In fact, it does not matter what kind of agreement (contract) was signed by the employer and his employee - a fixed-term one, with a limited period of work, or an open-ended one, with an indefinite period of validity. In both cases, the employee has the legal right to terminate the contract.

The procedure for terminating fixed-term contracts, initiated by the employee himself, is clearly stated in another article of the Labor Code under number 80.

It does not matter whether the employee has any valid reasons for this action.

There are a lot of reasons for terminating the contract, because everything here is decided by the desire of the employee himself. The most common of them are:

• change of location of an organization or enterprise and the resulting transport difficulties for the employee;
• recommendations from the attending physician regarding a change of workplace due to (for example, the working regime may not be suitable or there are conditions at the workplace that adversely affect general condition organism);
• adjustment of the employment contract with the introduction of technical or organizational amendments that do not suit the employee;
• reorganization of the enterprise, change of its management or owner;

In fact, the reasons can be different, even the most exotic, and the employee is not obliged to report in detail to the employer why exactly he wants to terminate the employment contract.

It is enough to indicate some neutral reason in a written notice issued to the employer. This document will be legal basis to terminate employment at a specific enterprise.

Termination procedure

When dismissal of this type, the general norms established by law for the termination of any employment contracts are observed.

The employee's main responsibility is to promptly written notification to the employer about your desire to leave your place of work. Moreover, this time is strictly regulated by the provisions of the Labor Code, and the period for filing a notification is somewhat different for different categories (and is regulated by different articles).

According to general standards, reflected in Article 80 of the Labor Code, the employer must be warned in writing fourteen days before dismissal. This procedure works in most cases.

However, there are exceptions to this rule. If a contract was concluded with an employee for a short period of up to two months, he is obliged to send a notice at least three days before his departure (Article 292 of the Labor Code). If we are talking about seasonal work, the notification is also sent within three days (Article 296 of the Labor Code).

For heads of organizations, enterprises or their representative offices, it is recommended to send a notice one month before dismissal (Article 280 of the Labor Code). In this case, the owners will have time to find a worthy replacement for the previous manager within a month.

Also, a one-month period for sending notification is provided for athletes and coaches, provided that their contract is concluded for a period of at least four months(Article number 348.12 of the Labor Code).

Another inalienable right of an employee given to him by the legislation of the Russian Federation provides for the withdrawal of a letter of resignation during the period of validity of the notice (period from three days up to a month for different categories).

Procedure and registration necessary documents looks like this:

1. The employee writes by hand or types, which is also a notice, and submits it to the employer. Such a warning is given not only during work, but also while on sick leave or paid leave. The document contains a request for dismissal and indicates the date of dismissal. A signature is placed at the bottom and the date of filing the document is recorded (it must correspond to legislative norms, that is, to be indicated 14 days, 3 days, or one month in advance).
2. The employer issues a corresponding T-8 form, which indicates the basis (employee’s application, its registration number and date of submission). The date of dismissal is also stated.
3. The order is signed by the employee who submitted the application.
4. After which the corresponding entry is made in the work book (77th article of the Labor Code). The basis is the order (its number and date of issue are indicated).
5. Accounting staff accrues funds due to the employee. carried out on the day of dismissal. Also on this day, a work book and other documents that were required when drawing up an employment contract are issued against signature.

It should be noted that the employee has the right to stop labor activity on the day specified in his notification application, even if the order was not issued!

And in the event of an invitation to a vacant position of another employee belonging to preferential category, dismissal will be carried out even if the employee changes his mind and decides. Such beneficiaries include pregnant women and women supporting children under the age of three years, as well as caring for children with disabilities. Also, preferential employment is provided for persons who resigned a month ago from the same enterprise in connection with a written invitation to another job (who left as a transfer).

What compensation is due?

Compensation payments are provided for by law in accordance with Article 127 of the Labor Code. The regulatory provisions of this law apply primarily (if it has not been used in the current year), as well as for additional leave spent by women with their children (care leave), if any.

Payments are made in accordance with Articles 278 and 279 of the Labor Code. The employee receives total compensation, including unpaid wages and compensation payments for vacation that they have not yet used in the current year.

And severance pay (an average wage for two weeks) is paid by law only to certain categories of workers (unless otherwise provided for in an individual or collective employment contract). For example, if an employee does not agree with changes to the provisions of the employment contract, does not want to move to work in another area, is called upon to conscript service, forced to stop working due to complete disability.

It should be noted that if the application was withdrawn by the employee, he cannot apply for payments.

The right to revoke this document is present all the time until the expiration of the warning period recorded in the application.