Agreement to terminate a fixed-term employment contract. Features and procedure for terminating a fixed-term employment contract

Hello! In this article we will talk about termination of urgent employment contract(hereinafter referred to as 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 with the employee replacing her labor relations stop);
• The season of fulfillment ends certain types work (this condition most often occurs during harvesting or extraction of natural resources, for example, while 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 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 carried out internal audit or a special act on the employee’s disciplinary offense is drawn up. 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 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 only 3 days.

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 prevents the implementation of labor function;
• Loss of the right to work in a particular field of activity;
• Physical or mental loss of ability to perform job duties;
• Offensive emergency, including natural disasters, catastrophes, accidents and others;
• 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 notify about dismissal in 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, 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.

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

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

Regardless of whether the contract was concluded in an honest manner, or the boss decided to cheat, there may come a time when it needs to be terminated early. Sometimes this happens on the initiative of the employer, sometimes on the contrary. The main thing is to make sure that it is legal; unless, of course, either party is against termination. Otherwise, you can try to defend your rights.

Procedure

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

The only one important nuance is that at least 3 days in advance, one of the parties must notify the other in writing that the period is terminated. This means that:

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

If this moment is missed, in fact the contract remains in force, only it becomes indefinite, and automatically.

Early termination

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

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

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

Grounds for termination of cooperation

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

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

This means that the rules for termination are the same as for a regular (fixed-term) contract. Both the employee and the employer can easily take advantage of this if one of them wants to terminate their employment relationship early. If we look at it in detail, the reasons why you can be fired or resign are: are specified in detail in Articles 78, 80 and 81 of the Labor Code of the Russian Federation.

There are also special regulations. For example, if the contract was concluded for a period not exceeding two months, or if he was assigned to seasonal work, then the employee must notify the employer of his resignation at least three days in advance. The manager, regardless of the deadline, must give a month’s notice.

Terminating a contract with a pregnant woman

Termination of a fixed-term employment contract with a pregnant woman, both before and before the expiration of the term is impossible. The validity of the document must be extended until the end of pregnancy. Here it is better for the employer to make concessions, because if there is a complaint against him there will be a lot of problems.

If you do not agree that you are fired early, you will have an advantage in case the employer violates Labor Code legislation - for example, illegally concluding a contract. You can always prove that you are right if you are really right and if you show persistence.

Sometimes an organization hires a temporary employee for certain needs. There are cases when the contract is still valid, but the need for an employee has disappeared, and the question arises whether it is possible to terminate a fixed-term employment contract early.

Grounds for termination of a temporary contract

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 end of the term of a fixed-term contract. In this case, the employer must notify the employee three days before the end of the employment contract. Otherwise, the contract will become unlimited.

But depending on the basis for concluding a temporary contract, the moment of termination of the contract will be different, namely:

• in connection with the departure of a permanent employee;
• acceptance of work for which the employee was hired;
• end of the season;
• return of an employee to the country from abroad;
• performance by the organization of work for the period for which it was created;
• other grounds arising from Article 59 of the Labor Code of the Russian Federation.

But, as with any an 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 specified in Chapter 13 of the Labor Code of the Russian Federation.

Let's remember the grounds for termination of an employment contract:

• by agreement of the parties;
• expiration of a fixed-term employment contract;
• at the request of the employee (personal statement);
• under certain conditions, when the initiator of termination of the contract is the employer;
• other grounds, including those beyond the control of the parties to the employment contract.

Termination of a fixed-term employment contract at the initiative of the employer

As for early termination employment contract at the initiative of the employer, then in accordance with Article 81 of the Labor Code of the Russian Federation there are several options:

• liquidation of the organization;
• reduction in the number of employees or staff reduction;
• failure of the employee to pass certification;
• change of owner of the company;
• violation of labor discipline by the employee, if there have already been penalties;
• a single gross violation by an employee of his duties;
• forgery of documents by a candidate during employment;
• other cases.

But it is worth considering several points that are not typical for a fixed-term employment contract. If everything is clear with the liquidation of a company (in this case, termination of an employment contract with a temporary employee will be carried out according to the general scheme), then early termination of an employment contract when reducing the number of employees has a number of subtleties.

A temporary worker, like permanent employees, must be listed in staffing table, filled out according to form T-3, approved by Resolution of the State Statistics Committee of Russia No. 1 of 01/05/2004. When reducing staff, there are a number of employees who cannot be fired. If a temporary employee replaces a permanent one, who is retained workplace, then early termination of the contract is impossible.

The employer has the right to periodically conduct certification of employees for suitability for the position held. For this purpose, orders, regulations and other documents are issued. If a temporary employee will be working at the time of employee certification, he may be exempt from certification due to the urgency of the contract, or may be subject to certification. If a temporary worker fails to pass certification, the fixed-term employment contract with him or her can be terminated early under part three of Article 81 of the Labor Code of the Russian Federation.

But it is worth remembering that an employee can always go to court and protest the employer’s decision.

Registration of early termination of a fixed-term employment contract

Once grounds arise for terminating a fixed-term employment contract ahead of the deadline established in the contract, the employer is recommended to discuss this with the temporary employee. This is done in order to avoid further conflicts and litigation.

Registration of dismissal of any employee occurs in accordance with Art. 84.1 Labor Code of the Russian Federation. The manager draws up an order, which the employee is introduced to under signature. On the last working day, a full payment is made to the employee wages and other payments.

Many employers try to do everything in advance so that if an employee has questions or disagreements, they can be resolved in advance. Labor legislation does not prohibit such actions by the employer. But, as mentioned above, any agreement with an employee does not exclude the possibility of the latter going to court or regulatory authorities. government bodies.

Next, the employer makes a notice of dismissal in the work book. The entry is made in accordance with the Instructions for filling out work books, approved by Resolution of the Ministry of Labor of the Russian Federation of October 10, 2003 N 69.

If the person being dismissed 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 to appear for the work book. There are cases when an employee refuses to pick up a work record or even come to work on the last day due to a conflict, but the manager is not responsible for failure to receive a work record if he sent a notice. It is always recommended to send notification by Russian Post or other courier service by registered mail with an inventory of the contents and receipt of proof of delivery of the letter.

Possible compensation upon dismissal

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 a 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 regulations of the employer or in the collective agreement in case of dismissal.

An employee may wonder whether additional compensation is due for early termination of the contract. Labor legislation does not provide for additional payments, but they can be established by an employment contract. After all, containing a list of mandatory clauses of the employment contract, it states that this list is not exhaustive.

As a result, we can say that the employer must clearly know the grounds and nuances of dismissing an employee, even if this employee is hired for a certain period.

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 agreements can be concluded only in cases where the employment relationship, 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.

In addition to the general rules for concluding a fixed-term employment contract and the criteria for establishing labor relations for a certain period, 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 specify the duration of its validity, the contract is considered to be concluded for an indefinite period. An employment contract concluded for a certain period in the absence of sufficient grounds for this, 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 an 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 with subsequent dismissal may be granted 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.

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.

Termination of a fixed-term employment contract

The expansion of the scope of application of fixed-term employment contracts is caused by objective reasons for economic development. The rules for regulating the conclusion, amendment and termination of fixed-term employment contracts are contained in a variety of sections and chapters of the current Labor Code. However, in practical application often fall out of sight of those to whom they are addressed. The author of the article conducted a study of innovations in labor legislation, and also highlighted the gaps and contradictions regarding the regulation of termination of fixed-term employment contracts.

Range of problems considered

Labor legislation has not yet developed a single term to designate the simultaneous conclusion, modification, suspension and termination of an employment contract. Therefore, it was necessary to use the term “action of an employment contract” as a working term, although one cannot but agree that more successful terminology is certainly possible.

The problems of concluding fixed-term employment contracts are raised quite regularly in the legal literature, and changes and suspensions of fixed-term employment contracts in general do not differ from changes and suspensions of contracts with an indefinite period, therefore, it makes sense to focus on the problems associated with the termination of fixed-term employment contracts. It is worth noting that changing such a condition of a fixed-term employment contract as its term also fits within the framework of the stated topic.

A fixed-term employment contract, as a rule, ends due to the expiration of the period agreed upon when it was concluded.

In Part 2 of Art. 79 of the Labor Code of the Russian Federation provides that an employment contract concluded for the duration of certain work is terminated upon completion of this work. Part 3 Art. 79 of the Labor Code of the Russian Federation establishes that an employment contract concluded for the duration of the duties of a temporarily absent employee is terminated when this employee returns to work. In Part 4 of Art. 79 of the Labor Code of the Russian Federation states that an employment contract concluded to perform seasonal work during a certain period (season) is terminated at the end of this period (season).

However, modern labor legislation provides for other options. Early termination and early termination of such a contract is possible. In the first case, this happens regardless of the will of the parties to the employment contract, in the second case, by the will of one of the participants or by their agreement. It is possible to transform (or, if you like, “convert”) fixed-term employment contracts into contracts with an indefinite duration.

The Labor Code of the Russian Federation clearly interprets the concept of extending a fixed-term employment contract precisely as an extension of the term of the existing employment contract (Articles 261, 332 of the Labor Code of the Russian Federation). Finally, part 1 of Art. 338 of the Labor Code of the Russian Federation in relation to employees sent to work in representative offices Russian Federation abroad, it is envisaged to renew the employment contract for a new term.

Termination of an employment contract due to expiration

The expiration of the employment contract is a special reason for its termination. In the scientific literature, considerations have been expressed that the expiration of the employment contract should be considered as grounds for dismissal that do not depend on the will of the parties. Other authors, on the contrary, argue that the basis for termination of a fixed-term employment contract is the agreement of its parties. However, the legislator is firmly in the position of highlighting the expiration of the employment contract as special reason its termination. Moreover, in the event of termination of a fixed-term employment contract, the parties are provided with special guarantees for the protection of their rights and legitimate interests. Such special guarantees include special terms:

Written warning about termination of the employment contract;

Features of exercising the right to annual paid leave;

Possibility of replacing a fixed-term employment contract with an indefinite-term contract, etc.

The procedure for terminating an employment contract due to the expiration of its term is provided for in Art. 79 of the Labor Code of the Russian Federation, which has undergone some changes in connection with the adoption of Federal Law No. 90-FZ of June 30, 2006. Leaving aside the disputes of labor law theorists about whether the legislator did the right thing by changing the title of the article from “termination of a fixed-term employment contract” to “termination of a fixed-term employment contract,” let us dwell on the most significant innovation for us.

From judicial practice. By the ruling of the judicial panel, the decision of the Kholm City Court in the case of R.’s claim against LLC “A” was overturned. In denying R.'s claim, the court referred to the fact that the employment relationship with her could not be established for an indefinite period, taking into account the nature of the work ahead and the conditions for its implementation, since the LLC and its branch operated on the basis of a small canning shop rented under a contract dated November 1, 1997, which has expired. After the expiration of the contract, R., accepted as a fish processor, was fired. However, the court made this conclusion without properly checking the factual circumstances of the case. The court did not take into account the fact that neither when concluding the contract nor in the order to hire R. the term of her work was connected with the rental period of the canning shop. There is no data in the case confirming the expiration of this contract on the day of the plaintiff’s dismissal.

Time limits for warning an employee about upcoming dismissal

Now, the employer’s obligation to notify the employee about the termination of a fixed-term employment contract (in writing at least three calendar days before dismissal) is adjusted as follows: “except for cases where a fixed-term employment contract concluded for the duration of the duties of the absent employee expires.” In these cases, the employer is relieved of the obligation to provide a written warning. Logically, this is how it should be, but the absence of this exception in the previous edition gave rise to different interpretations of this norm and could lead to labor disputes. To avoid conflict situations HR services It is advisable to strictly comply with the requirements of Part 1 of Art. 79 Labor Code of the Russian Federation.

K. filed a lawsuit against the company for reinstatement at work, citing the fact that he was fired illegally at the end of the contract. The Oktyabrsky District Court, resolving the dispute, came to the conclusion that the employer had no legal grounds for terminating the employment contract with the plaintiff, for the following reasons.

K. was hired for a certain period due to the fact that the work performed by the organization required an annual license, and employees involved in the security of facilities were hired for the period of validity of the license. These actions of the employer complied with the requirements of the law. At the same time, during the period of validity of the fixed-term employment contract, the plaintiff was, with his consent, transferred to another position without limiting the period of transfer, and the court regarded this transfer as the basis for classifying the fixed-term employment contract concluded with K. as contracts continued for an indefinite period.

It seems that this position of the court is erroneous and is not based on the evidence presented and the requirements of the substantive law, because regardless of the position held, the employment contract was of a fixed-term nature, and the parties did not make any changes to the employment contract regarding the term.

In addition, in similar situations, it should be taken into account that the employment contract is concluded precisely when the employee is hired and it is at this stage of the legal relations of the parties that its terms are negotiated. Subsequently, according to Art. 9 of the Labor Code of the Russian Federation, the regulation of labor relations can be carried out by the parties by changes and additions in writing to the employment contract they have already concluded.

It should be noted that before the adoption of the Labor Code of the Russian Federation in 2001, the mechanism for terminating a fixed-term employment contract, including the rule on written warning of dismissal, in Russian labor legislation were not provided. This explains some of the imperfection of legal formulations. No clear definition legal consequences failure to comply with this norm, this norm loses all meaning. This has been rightly pointed out by many experts in the field of labor law. The authors of the collective monograph “Course of Russian Labor Law. Vol. 3. Labor Contract” adhere to the most radical point of view on this issue. Their position is formulated as follows: “Obviously, in cases where notice of dismissal is given less than three days or is not given at all, the employee has the right to challenge the order of dismissal, and the court, if there are no grounds for reinstating the employee at work, should accordingly change the date of dismissal, and the period for which the employment contract is extended due to the postponement of the dismissal date is subject to payment in the amount of average earnings." It seems that this is exactly how the text of Art. 79 Labor Code of the Russian Federation.

So, Art. 79 of the Labor Code of the Russian Federation contains a general rule on the notice period for dismissal upon expiration of the employment contract. This period must be at least three calendar days. Therefore, any reasonable notice period exceeding three calendar days is determined by the employer himself. A warning about the dismissal of an employee hired to perform the duties of an absent employee (for example, on parental leave until the child reaches the age of three) is not provided for by law. However, how to warn an employee hired for the duration of a clearly defined job, when its completion cannot be determined by a specific date, is not specifically discussed. Apparently, according to the legislator, in this case the general rule should apply in writing to the employee at least three calendar days before dismissal. It is unlikely that such a norm seems fair to the employer, although from the employee’s point of view it is the general norm that should apply.

Some doubts arise regarding the interpretation of Part 2 of Art. 307 of the Labor Code of the Russian Federation, which regulates the procedure for terminating an employment contract with an employee working for an employer - an individual. Part 2 of this article establishes: “The notice period for dismissal, as well as the cases and amounts of severance pay and other compensation payments paid upon termination of an employment contract, are determined by the employment contract.”

It would seem that it follows from this that the employment contract may provide for other notice periods regarding the dismissal of the employee upon expiration of the employment contract. However, two circumstances are confusing.

Firstly, part 1 of Art. 307 of the Labor Code of the Russian Federation states that “in addition to the grounds provided for by this Code, an employment contract with an employee working for an employer - an individual, may be terminated on the grounds provided for in the employment contract. Hence the conclusion is drawn that the notice period for dismissal, cases and the amounts of severance pay and other compensation payments established by agreement of the parties (employment contract) relate only to the grounds for dismissal provided for by the employment contract.”

Secondly, Art. 347 of the Labor Code of the Russian Federation, which regulates the termination of an employment contract with an employee of a religious organization, contains similar rules, but the wording of this article clearly excludes double interpretation. Part 1 art. 347 of the Labor Code of the Russian Federation establishes that “in addition to the grounds provided for by this Code, an employment contract with an employee of a religious organization may be terminated on the grounds provided for in the employment contract.” But here is Part 2 of Art. 347 contains the following wording: “the period of warning to an employee of a religious organization about dismissal on the grounds provided for in the employment contract, as well as the procedure and conditions for providing said employees with guarantees and compensation associated with such dismissal, are determined by the employment contract.”

Apparently, the will of the legislator in both cases - and in relation to workers employed in employers' organizations - individuals, and towards employees religious organizations- was aimed at achieving the same goal, that is, expanding the boundaries of contractual regulation upon termination of an employment contract, taking into account the specifics of these categories of employers. If this is so, then the wording of Art. 307 of the Labor Code of the Russian Federation should be brought into line with the wording of Art. 347 of the said Code. If the legislator was nevertheless guided by different approaches, then in relation to Art. 307 of the Labor Code of the Russian Federation, clearer wording should be used.

Warning form

As already noted, the employee is warned in writing. This is the requirement of Part 1 of Art. 79 of the Labor Code of the Russian Federation, however, the form of such a document is not established by law. From time to time, a discussion arises among labor lawyers: which in this case is preferable - a written notice of impending dismissal indicating the deadline or an order from the manager to terminate the employment contract indicating a specific date. I believe that both are acceptable. It all depends on the characteristics of the employee, employer or other factors influencing differentiation legal regulation their labor. For example, when a university teacher’s employment contract expires, he is usually offered to take part in a competition to fill the same position that he occupies in accordance with the expiring employment contract. We will consider the question of the legality of such an action further; in this case, something else is important: such a proposal is hardly appropriate in the text of the dismissal order. It is clear that in such a situation the employee will usually receive notice of termination. But if, for example, an employee’s fixed-term employment contract, sent by the employment service authorities to public works, issuing a dismissal order is sufficient. So, the choice of one or another written form of notice of dismissal due to the expiration of a fixed-term employment contract should be determined by the employer himself.

Offering an employee another job

The employer is obliged to make such an offer only in relation to one category of employees - pregnant women, whose employment contract was concluded for the duration of the duties of the absent employee and expires during their pregnancy. This obligation of the employer and the procedure for its implementation are provided for in Part 3 of Art. 261 Labor Code of the Russian Federation. According to the requirements of the law, “a woman may be dismissed due to the expiration of her employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of the absent employee, and it is impossible, with the written consent of the woman, to transfer her to another job available to the employer before the end of her pregnancy (as vacant position or a job corresponding to the woman’s qualifications, or a vacant lower position or lower paid job), which a woman 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."

Obviously, if the woman agrees to the transfer, a new employment contract is not concluded, but by concluding additional agreement in an old fixed-term employment contract, some of its conditions change (about the job function, place of work, term of the employment contract).

The right to leave upon dismissal due to the expiration of the employment contract

As practice shows, usually both employees and employers do not take into account that employees whose employment contract period is less than six months also have the right to annual paid leave or compensation for it. In accordance with Art. 291 of the Labor Code of the Russian Federation, employees who have entered into an employment contract for a period of up to two months are provided with paid leave or compensation upon dismissal at the rate of two working days per month of work. According to Art. 295 of the Labor Code of the Russian Federation for workers employed in seasonal work, paid leave is provided at the rate of two working days for each month of work.

It is not clear how to provide paid leave or compensation for it if the term of the employment contract is more than two and less than six months, but the work is not seasonal. If the term of the employment contract is six months or more, then the length of service is sufficient to provide annual paid leave. If the term of the employment contract is less than two months, the norm of Art. 291 Labor Code of the Russian Federation. Rule Art. 295 of the Labor Code of the Russian Federation applies only to seasonal work. Seasonal work in accordance with Part 1 of Art. 293 of the Labor Code of the Russian Federation “recognizes work that, due to climatic and other natural conditions, is carried out during a certain period (season), not exceeding, as a rule, six months.” Apparently, the legislator will have to eliminate the existing gap in the law. Until this time, this problem can be solved by introducing appropriate provisions into collective agreements and agreements, local regulations or employment contracts.

The procedure for exercising the right to paid leave upon dismissal of an employee is provided for in Art. 127 Labor Code of the Russian Federation. According to this article, upon dismissal, the employee is paid monetary compensation for all unused vacations. Upon written request from the employee, unused vacations may be granted to him with subsequent dismissal (except for cases of dismissal for guilty actions). In this case, the day of dismissal is considered the last day of vacation. 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.

Extension of a fixed-term employment contract

The employer's obligation to renew a fixed-term employment contract is provided for by law only in certain cases.

In the first case, we are talking about the expiration of the employment contract during the woman’s pregnancy, unless her employment contract was concluded for the duration of the duties of a temporarily absent employee. In accordance with Part 2 of Art. 261 of the Labor Code of the Russian Federation, “in the event of expiration of a fixed-term employment contract during a woman’s pregnancy, the employer is obliged, upon her written application and upon provision of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract until the end of pregnancy. A woman 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 provide a medical certificate confirming the state of pregnancy. If the woman actually continues to work after the end of pregnancy, the employer has the right to terminate the employment contract with her due to its expiration. its validity period within a week from the day the employer learned or should have learned about the end of the pregnancy.”

So, extension of a fixed-term employment contract for a pregnant woman is possible only if the following conditions are met:

The fixed-term employment contract was not concluded for the duration of the duties of the absent employee;

A written application from the woman with a request to extend the term of the employment contract is required;

A medical certificate confirming the pregnancy status must be provided.

“Extension of a fixed-term employment contract” means that a new fixed-term employment contract is not concluded, and in the original text of the fixed-term employment contract, the condition on its validity period is changed by concluding an additional agreement. In this case, the norm of Art. 72 of the Labor Code of the Russian Federation: “A change in the terms of an employment contract determined by the parties, including transfer to another job, is permitted only by agreement of the parties to the employment contract, except for cases provided for by this Code. An agreement to change the terms of an employment contract determined by the parties is concluded in writing.”

The second case is provided for in Part 8 of Art. 332 of the Labor Code of the Russian Federation, which regulates the specifics of concluding and terminating an employment contract with employees of higher educational institutions. When an employee is elected through a competition to fill the position of a scientific and pedagogical worker previously occupied by him under a fixed-term employment contract, a new employment contract may not be concluded. In this case, the validity of the fixed-term employment contract with the employee is extended by agreement of the parties, concluded in writing, for a certain period of not more than five years or for an indefinite period.

In relation to rectors, vice-rectors and heads of branches (institutes) of higher educational institutions, the same art. 332 of the Labor Code of the Russian Federation for some reason contains a different construction - “extension of tenure”. Part 13 Art. 332 of the Labor Code of the Russian Federation states: “Upon the recommendation of the academic council of the state or municipal higher educational institution the founder has the right to extend the rector's term of office until he reaches the age of seventy." Part 15 of Article 332 of the Labor Code of the Russian Federation states that "upon the recommendation of the academic council of a state or municipal higher educational institution, the rector has the right to extend the term of office of vice-rector , the head of the branch (institute) until they reach the age of seventy years."

Apparently, extending the term of an employment contract and extending the tenure of a position are not the same thing. “Extension of tenure” can act both as an extension of the term of a previously concluded employment contract, and as its re-conclusion.

Note. From the review of the Arkhangelsk Regional Court

K. was dismissed from the position of boiler room operator under Art. 79 of the Labor Code of the Russian Federation at the end of the heating season. The Mezensky District Court, correctly reinstating the plaintiff at work, indicated the following. The plaintiff was hired for the heating season. According to Part 1 of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract can be concluded for the duration of seasonal work, however, according to Art. 293 of the Labor Code of the Russian Federation, seasonal work is recognized as work that, due to climatic and other natural conditions, is carried out during a certain period (season) not exceeding 6 months. The heating season in the Far North, as can be seen from the evidence presented to the court, lasts 9 months. a year or more. Under such circumstances, the employer did not have sufficient grounds to conclude a fixed-term employment contract with the plaintiff and, as a result, there were no legal grounds for terminating it under Art. 79 Labor Code of the Russian Federation.

As emphasized in the review of judicial practice, the circumstances to be proven on this basis for dismissal include not only those circumstances that are associated with the end of the employment contract, but also those that confirm the legality and validity of concluding a fixed-term employment contract, since according to Art. Art. 58, 59 of the Labor Code of the Russian Federation, an employment contract for a certain period can be concluded only if there are sufficient grounds for this, and if the employment contract itself does not stipulate the duration of its validity, it is considered concluded for an indefinite period.

Renewal of a fixed-term employment contract

In this case, we are talking about concluding a new fixed-term employment contract after the expiration of the previous one.

Before the adoption of Federal Law No. 90-FZ of June 30, 2006, the Labor Code of the Russian Federation did not really provide for such a structure. Paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” contained the following provision: “When it is established during the trial that the fact of multiple conclusions of fixed-term employment contracts for a short period to perform the same labor function, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period.”

IN new edition of the specified Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2, this provision is reproduced without changes. However, it is worth keeping in mind that the Plenum of the Supreme Court of the Russian Federation refers only to cases of concluding fixed-term employment contracts for a short period to perform the same labor function, and a fixed-term employment contract can be recognized as concluded for an indefinite period only by a court.

As already mentioned above, the possibility of re-concluding a fixed-term employment contract is provided for in Part 1 of Art. 338 of the Labor Code of the Russian Federation: “An employment contract for a period of up to 3 years is concluded with an employee sent to work at a representative office of the Russian Federation abroad. At the end of the specified period, the employment contract can be renewed for a new term.”

Transformation of a fixed-term employment contract into a contract with an indefinite duration

Part 4 art. 58 of the Labor Code of the Russian Federation provides that “in the case when neither party requested termination of a fixed-term employment contract due to its expiration and the employee continues to work after the expiration of the employment contract, the condition on the fixed-term nature of the employment contract loses its force, and The employment contract is considered concluded for an indefinite period." In Russian labor law, this rule has existed for a long time, but is practically not in effect. Even if the employer makes a mistake and the employee wants to take advantage of it, most likely the employee will have to defend his right in court.

In fact, such transformations of fixed-term employment contracts into contracts with an indefinite period under Russian labor legislation are possible not only upon termination of a fixed-term employment contract, but also during the period of its validity. Part 5 Art. 58 of the Labor Code of the Russian Federation establishes that “an employment contract concluded for a certain period in the absence of sufficient grounds established by the court is considered concluded for an indefinite period.” “Sufficient” grounds for concluding a fixed-term employment contract, as is known, are listed in Art. 59 Labor Code of the Russian Federation.

That is, for these reasons, the parties can conclude as fixed-term contract, and a contract with an indefinite period.

The principles that guided the legislator when distinguishing these two groups of grounds are set out in Part 2 of Art. 58 Labor Code of the Russian Federation. A fixed-term employment contract is concluded in the case where the employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation, or more precisely in the cases provided for in Part 1 of Art. 59 Labor Code of the Russian Federation. In cases provided for in Part 2 of Art. 59 of the Labor Code of the Russian Federation, it is possible for the parties to agree when drawing up a fixed-term employment contract without taking into account the nature of the work to be done and the conditions for its implementation.

The position of the Supreme Court of the Russian Federation on this issue is expressed very clearly in paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2: “When deciding the validity of concluding a fixed-term employment contract with an employee, it should be taken into account that such an agreement is concluded when labor relations cannot be established for an indefinite period, taking into account the nature of the work to be performed or the conditions for its implementation, in particular, in the cases provided for in Part 1 of Article 59 of the Labor Code of the Russian Federation, as well as in other cases established by the Code or other federal laws.

In accordance with Part 2 of Art. 58 of the Labor Code of the Russian Federation in cases provided for in Part 2 of Art. 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 must be borne in mind that such an agreement can be recognized as legal if there was an agreement between the parties, 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, establishes that it was concluded by the employee involuntarily, the court will apply the rules of a contract concluded for an indefinite period.”

Since the law does not establish any restrictions, an employee can apparently go to court with a claim to recognize a fixed-term employment contract as concluded without sufficient grounds, both during the validity of the fixed-term employment contract and after dismissal due to the expiration of the employment contract. In the second case, most likely, a request for reinstatement will be filed.

Early termination of an employment contract

In the science of Russian labor law, the term “termination of an employment contract” includes both the termination of an employment contract without the participation of the will of its parties (that is, the employee and the employer), and the termination of an employment contract due to the will of the parties (jointly or separately).

Early termination of a fixed-term employment contract is currently possible, perhaps, on all the general grounds for termination of an employment contract provided for in Art. 77 Labor Code of the Russian Federation.

In the Labor Code of the Russian Federation, the legislator uses the single concept of “employment contract”, without distinguishing particularly fixed-term employment contracts and employment contracts concluded for an indefinite period. In this case we are talking about the following articles:

Art. 78 of the Labor Code of the Russian Federation “Termination of an employment contract by agreement of the parties”;

Art. 80 of the Labor Code of the Russian Federation “Termination of an employment contract at the initiative of the employee (at his own request)”;

Art. 81 of the Labor Code of the Russian Federation “Termination of an employment contract at the initiative of the employer.”

This means that the provisions of these articles are equally applicable to contracts concluded for an indefinite period and to fixed-term employment contracts.

Clause 20 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2 (as amended on December 28, 2006 N 63) states that “when considering disputes related to the termination of an employment contract by agreement of the parties (clause 1, part 1, article 77 , Article 78 of the Labor Code of the Russian Federation), courts should take into account that in accordance with Article 78 of the Labor Code of the Russian Federation, when an agreement is reached between the employee and the employer, an employment contract concluded for an indefinite period, or a fixed-term employment contract, can be terminated at any time within a specified period. parties."

And yet, it seems more correct right in the text of Art. Art. 78, 80 and 81 of the Labor Code of the Russian Federation, refer to the fact that these grounds for termination of an employment contract, notice periods for dismissal, guarantees and compensation also apply to fixed-term employment contracts.

As a rule, in the case of termination of a fixed-term employment contract, the general rules apply, that is, the same as for the termination of an employment contract concluded for an indefinite period. At the same time, the Labor Code of the Russian Federation also contains special rules governing some cases of early termination of a fixed-term employment contract for certain categories of workers. The introduction of such special rules is associated with the special nature of the work of some workers and the need to protect the interests of the parties to the employment contract.

Early termination of the contract at the initiative of the employee

Usually, when early termination of a fixed-term employment contract is initiated by the employee (at his own request), the general rule of Art. 80 of the Labor Code of the Russian Federation about the need to warn the employer in in writing no later than two weeks. However, the Labor Code of the Russian Federation provides for other deadlines for certain categories of workers.

Article 280 of the Labor Code of the Russian Federation establishes that the head of an organization has the right to terminate an employment contract early by notifying the employer (the owner of the organization’s property, his representative) in writing no later than one month in advance.

Part 1 art. 292 of the Labor Code of the Russian Federation obliges an employee who has entered into an employment contract for a period of up to two months to notify the employer in writing three calendar days in advance of the early termination of the employment contract.

Part 1 art. 296 of the Labor Code of the Russian Federation provides that an employee engaged in seasonal work must notify the employer of the early termination of the employment contract three calendar days in advance.

In accordance with Art. 348.12 of the Labor Code of the Russian Federation, an athlete and coach have the right to terminate an employment contract on their own initiative (at their own request), having notified the employer in writing no later than one month in advance, except for cases where the employment contract was concluded for a period of less than four months. Obviously, if the term of an athlete’s or coach’s employment contract is from two to four months, the general rule of not less than two weeks’ notice should apply, because there is no reason to consider such an agreement a contract for seasonal work.

The question arises whether these employees have the right to withdraw their resignation before the expiration of the notice period? Since the Labor Code of the Russian Federation is silent on this issue, it can be assumed that the right to withdraw an application from these workers should be preserved.

The wording of the order for the dismissal of such employees and entries in work book must contain references to the above articles of the Labor Code of the Russian Federation, and not to clause 3, part 1, art. 77. E.A. expressed her opinion about this. Ershova, what needs to be changed current edition clause 3, part 1, art. 77 of the Labor Code of the Russian Federation to the following: “Termination of an employment contract at the initiative of the employee (Articles 80, 71, 280, 292, 296...)”.

It is also interesting to note that as a result of the adoption of Federal Law No. 13-FZ of February 28, 2008 “On Amendments to the Labor Code of the Russian Federation”, for the first time in our labor legislation a rule appeared on monetary payment in favor of the employer in the event of termination of an employment contract at the initiative of the employee ( at will) without good reasons. This provision is provided for in Art. 348.12 of the Labor Code of the Russian Federation and applies to those athletes whose employment contract provides for a similar condition. However, such a condition may not be included in the athlete’s employment contract. Since in accordance with Art. 348.2 of the Labor Code of the Russian Federation, athletes can enter into both contracts for an indefinite period and a fixed-term employment contract; the norm also applies to the early termination of an athlete’s fixed-term employment contract.

Early termination of a contract at the initiative of the employer

Employees who have entered into a fixed-term employment contract are usually subject to general rules termination of an employment contract at the initiative of the employer. Exceptions are provided for employees who have entered into an employment contract for a period of up to two months, and employees engaged in seasonal work. For them, special notice periods for dismissal are provided in connection with the liquidation of the organization, reduction in the number or staff of employees, as well as a different procedure for the payment of severance pay.

Note. For employees who have entered into an employment contract for a period of up to two months, and those employed in seasonal work, there are some features related to the timing of notice of dismissal and the procedure for paying severance pay.

Part 2 Art. 292 of the Labor Code of the Russian Federation obliges the employer to warn an employee who has entered into an employment contract for a period of up to two months about the upcoming dismissal due to the liquidation of the organization, reduction in the number or staff of employees in writing against signature at least three calendar days in advance.

Part 3 Art. 292 of the Labor Code of the Russian Federation establishes that an employee who has entered into an employment contract for a period of up to two months severance pay upon dismissal, it is not paid, unless otherwise provided by federal laws, a collective agreement or an employment contract. Obviously, we are talking about all cases where, in accordance with Art. 178 of the Labor Code of the Russian Federation, upon dismissal, an employee is entitled to severance pay and other compensation payments.

As for workers employed in seasonal work, in accordance with Part 2 of Art. 296 of the Labor Code of the Russian Federation, the employer is obliged to warn such an employee about the upcoming dismissal in connection with the liquidation of the organization, reduction in the number or staff of the organization’s employees in writing against signature at least seven calendar days in advance. According to Part 3 of Art. 296 of the Labor Code of the Russian Federation “upon termination of an employment contract with an employee engaged in seasonal work due to the liquidation of the organization, reduction in the number or staff of the organization’s employees, severance pay is paid in the amount of two weeks’ average earnings.”

Thus, by establishing special rules for early termination of an employment contract, the legislator tried to maintain a balance of interests of both the employee and the employer.

To summarize, the following should be noted. Entry into market relations objectively caused an expansion of the scope of application of fixed-term employment contracts. The legislator could not help but respond to the demands of the labor market, so the issues of regulating the conclusion, amendment and termination of fixed-term employment contracts in Labor Code of the Russian Federation, in comparison with the previously existing Labor Code (LC) are considered much broader and deeper.

Literature

1. Course of Russian labor law. T. 3. Employment contract / Scientific. ed. Tom D. Yu. Sc., Professor E.B. Khokhlov. - St. Petersburg: R. Aslanov Publishing House " Legal center Press", 2007, p. 532.

2. Ibid., p. 531.

3. Vanyukhin V. Conditions for concluding a fixed-term employment contract. - "EZH-LAWYER", 2005, N 14.

4. Ershova E.A. Labor law in Russia / Ross. acad. justice. - M.: Statute, 2007, p. 361.