Termination of a fixed-term employment contract at the initiative of the employee. Early termination of an employment contract by an 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 work to be done or the conditions for its implementation (Part 2 of Article 58 of the Labor Code of the Russian Federation). Namely:

• for the duration of the performance of the duties of an absent employee, who, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract, retains his 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 professional education in the form of an internship;
• in cases of election for a certain period to an elected body or to an elective position for paid work, as well as employment related to the direct support of the activities of members of elected bodies or officials in state authorities and local governments, in political parties and other 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 of which 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 workers of the media, cinematography organizations, theaters, theatrical and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these workers, approved by the Government of the Russian Federation taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations;
• with managers, deputy managers and chief accountants of organizations, regardless of their legal forms and forms of ownership;
• with persons receiving full-time education;
• 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 an 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 a short period, such relationships may be recognized as long-term, and the employment contract 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 there are no 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 consider 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 an employee to declare a violation of his rights.

Arbitrage practice

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The employee went to court to have his dismissal recognized 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 employment relationship with the defendant was of an urgent nature during the performance of the duties of an absent specialist who returned to his permanent workplace (appeal ruling of the Krasnoyarsk Regional Court 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.

Arbitrage practice

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A fixed-term employment contract was concluded between the employer and the employee, since the woman was an old-age pensioner. Upon 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.

Arbitrage practice

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The plaintiff was hired during the absence of the main employee, who was on sick leave. After the release of the latter, the woman was fired under clause 2 of part 1 of 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.

Arbitrage practice

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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.

Arbitrage practice

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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 the contract 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 the courts of the Russian Federation of the Labor Code 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.

Arbitrage practice

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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

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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.

Arbitrage practice

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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 ruling of the Supreme Court of the Republic of Karelia dated 01.09.2015 in case No. 33-3390/2015).

Despite the presence of the specified judicial act, employers should comply with the requirements of the law and include all the necessary information in the text of the employment contract, including the circumstances (reasons) that served as the basis for its conclusion for a certain period. 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.

Arbitrage practice

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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 presented to the court does not confirm the employer’s argument that the main employee actually went to work, since this document contradicts the evidence available in the case file and the established circumstances, and 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, declared the dismissal legal, since it was proven that the main employee returned to work, although he would work remotely.

Arbitrage practice

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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 the additional guarantees established by Art. 261 Labor Code of the Russian Federation.

Arbitrage practice

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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 not more than once every three months, to provide a 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.

Arbitrage practice

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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 position to another job available in the company, which she can perform taking into account her health condition.

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.

Arbitrage practice

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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.

Arbitrage practice

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A pregnant employee hired for the period of maternity leave of the main specialist was dismissed due to the expiration of the employment contract. The court declared the termination of the employment relationship illegal, since 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 as illegal the termination of an employment contract under clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation is the employer’s failure to comply with the procedure for notifying an employee of 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.

Arbitrage practice

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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.

Arbitrage practice

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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 its expiration cannot be an independent basis for recognizing the dismissal as unlawful. In addition, the plaintiff, agreeing to conclude an employment contract for a certain period, knew about its termination after the 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

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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 the legal consequences of the fact 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.

Arbitrage practice

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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 the exact date of 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.

Arbitrage practice

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The plaintiff was hired under a fixed-term employment contract for the period of absence of the main specialist. Before dismissal under 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, at the conclusion of this contract, the date of its termination was determined (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 makes a decision 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 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 quickly and effectively restoring the violated rights of an employee, including the right to timely payment, and in 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).

Arbitrage practice

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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 a response to the statement of claim, a petition to apply the consequences of the employee missing the 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 the expectant mother was hired during the absence of the main employee, check whether the woman being dismissed 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 many 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 on changing workplaces due to (for example, the working regime may not be suitable or there are conditions at the workplace that adversely affect the general condition of the body);
• 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 the legal basis for termination of employment at a particular 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 notice 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 the general rules 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 a 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 notice of dismissal during the period of validity of the notice (a period from three days to a month for different categories).

The procedure for completing the necessary documents is as follows:

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 comply with legal requirements, that is, 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 working on the day specified in his notification application, even if the order was not issued!

And if another employee belonging to a preferential category is invited to fill a vacant position, dismissal will be made, even if the employee changes his mind and decides. Such beneficiaries include pregnant women and women supporting children under three years of age, 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 up for military service, or is 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.

How to formalize the termination of a fixed-term employment contract that is coming to an end? Is it possible to say goodbye to an employee early? Answers in step-by-step instructions. We provide ready-made wording for documents and a useful calculator.

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How to formalize dismissal at the end of a fixed-term employment contract

An employment contract with a limited duration gives the right to dismiss the employee as soon as the date or event agreed upon by the parties occurs. We have prepared step-by-step instructions that will help you complete the procedure correctly.

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

Step 1. Notify the employee of the upcoming dismissal

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

★ For an accurate calculation, use the automatic online calculator in the “Personnel System”.

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

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

Step 3. Issue an order to terminate the employment contract

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

You can also use your own form. In the “Grounds for dismissal” column, write “due to the expiration of the employment contract, clause 2, part 1, art. 77 Labor Code of the Russian Federation." Please provide the details of the contract whose validity is terminated by the order below.

Fragment of an order in form T-8 “Grounds for dismissal”

Step 4. Fill out the work book

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

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

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

★ An HR System expert will tell you what to do if your dismissal date falls on a weekend

Earlydismissal under a fixed-term employment contract

A fixed-term employment contract can only be terminated early on a general basis. If the employee himself asked for this, follow the provisions of Art. 80 Labor Code of the Russian Federation. If the decision on early dismissal is made by the employer - Art. 81 Labor Code of the Russian Federation. The easiest way is to formalize the termination of a fixed-term employment contract at the initiative of the employee.

If an employee asks to terminate the contract early, you must:

1. Accept and register the letter of resignation, with the employee’s handwritten signature. You cannot dismiss an employee based on an oral request. You can submit an application at any time, without giving reasons.
2. Determine the date of dismissal. For workers hired for a short period (less than 2 months), the working period is 3 days, for all others - 2 weeks from the date following the day of filing the application. However, you can show loyalty and dismiss the employee without working or reduce it by mutual agreement.
3. Issue an order forvoluntary dismissal under a fixed-term contract. In the column “Grounds for dismissal” we write “at the initiative of the employee, clause 3, part 1, art. 77 of the Labor Code of the Russian Federation”, below we indicate the details of the application. When filling out a work book, similar wording is used, but the basis document is not a statement, but dismissal order.
4. Pay the employee on the last working day. Familiarize him with the order, issue documents, pay wages along with allowances and compensation.

Regardless of the circumstances under which a fixed-term employment contract was concluded, voluntary dismissal rarely gives rise to long-term conflicts. But, if the employer becomes the initiator of the termination of the employment relationship, everything happens exactly the opposite. An employee dismissed early files complaints and lawsuits. The company has to prove the legality of the decision made.

Advice from the editors of the site site

Do circumstances force you to dismiss a conscript ahead of time? Try to reach a compromise by concluding an agreement between the parties(Article 78 of the Labor Code of the Russian Federation). If this does not work out, formalize the termination of the fixed-term employment contract at the initiative of the employer.

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

• liquidation of an organization or termination of the activities of an individual entrepreneur;
• reduction in number or staff;
• loss of trust;
• repeated failure to fulfill or one-time gross violation of labor duties by an employee;
• inadequacy for the position held;
• unsatisfactory test result;
• submission of false documents during employment.

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

Whentermination of a fixed-term employment contract upon expiration of the termimpossible

An employment contract is not automatically terminated upon expiration. If the date specified in the contract has arrived, but neither party has declared its termination, the employment relationship is considered unlimited. From this moment, stop them on the basis provided for in Art. 79 of the Labor Code of the Russian Federation is no longer possible. To avoid this outcome, record the expiration dates of contracts concluded by the company in a separate journal.

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

A strict ban on terminating a fixed-term employment contract applies to pregnant women. If the period expires during the employee’s pregnancy, she cannot be fired (Article 261 of the Labor Code of the Russian Federation). An exception is established only in relation to the situation when an employee was hired during the absence of the main employee and there is no possibility of transferring her to another position.

As a general rule, the contract will have to be extended until the pregnancy is completed, and when the child is born - until the employee returns from maternity leave.

A fixed-term employment contract can be terminated either upon expiration of the term (based on Part 1 of Article 79 of the Labor Code of the Russian Federation) or ahead of schedule, on a general basis. To prevent employment relationships from becoming open-ended, track the dates of planned layoffs, send notices in advance and issue orders in a timely manner.

IN modern Russia A fixed-term contract in labor law means a special type of agreement concluded between a company or an employer and his future employee. The duration of such an agreement cannot exceed five years, and the date of completion of the employment relationship or the expected final result is clearly stated in the text of the document. Termination of a fixed-term employment contract at the initiative of the employee takes place in accordance with the current version of the Labor Code.

However, in this situation there are some non-obvious points and pitfalls, knowledge of which is very useful for those who are going to write a statement “of their own free will”, working on the basis of a fixed-term employment contract. This material examines the intricacies of the procedure for terminating a fixed-term employment contract initiated by the employee.

As mentioned above, Russian labor law does not recognize fixed-term contracts between an employee and an employer if they specify a period exceeding five years. Accordingly, any contract that specifies an incorrect expiration date is open-ended.

For example, the parties sign the agreement in March 2018, and plan to end their employment agreements in December 2024. From the point of view of the legislator, such an agreement should be considered unlimited - with all the ensuing consequences.

Typical examples of work in which a fixed-term contract is concluded

A fixed-term employment contract is concluded for a temporary period of up to five years. According to established practice, among the most common reasons for signing this type of contract are the following:

• all kinds of seasonal work (agricultural, fishing, etc.);
• preparatory stages for the launch of production (start-up, commissioning and other operations);
• the entry of a new specialist to replace a permanent employee who has left for a certain period of time, but whose job must be retained (for example, in the case of maternity leave);
• entry into an elective position with a prescribed period for exercising the assigned powers.

As a general rule, fixed-term contracts terminate upon the arrival of the date specified in them or the achievement of the result specified in the text of the document. However, due to various reasons, the parties may terminate the employment relationship without waiting for “day X”.

In what situations can an agreement be terminated prematurely?

Based on the provisions enshrined in the articles of the Labor Code of the Russian Federation, it is possible that the employment relationship may be terminated before the expiration of the initially agreed terms for a number of reasons:

• by agreement of both participants;
• at the initiative of superiors;
• at the personal request of the employee.

The subtleties and details of the first two points are given in Articles 77, 78 and 81 of the Labor Code. At the same time, the nuances of terminating a fixed-term contract are included in a separate article - it is assigned number 79.

We have described the subtleties of terminating a fixed-term employment contract after the expiration of the term. The procedure for dismissing an employee, grounds for termination of a contract and analysis of judicial practice. Excerpts from labor legislation and sample documents are attached.

Why can an employee terminate a fixed-term contract?

The main difference between a fixed-term employment contract and an open-ended one is the presence in the text of the first end date of the period for which a person becomes an employee of the current employer. Otherwise, these two forms of employment contracts differ little from each other in any significant way.

Accordingly, the legislator considers the termination of a fixed-term contract as a separate, but practically similar to general practice procedure. The difference here lies only in some details, the most important of which we will discuss in more detail below.

As for the reasons based on which an employee can initiate the dismissal procedure at his own request, they can be very different: from respectful and force majeure to a spontaneous decision. In any case, these actions will fall under the provisions of Article 80 of the Labor Code of the Russian Federation, which talks about the termination of the contract between the employer and the employee at the initiative of the latter.

Thus, the legislator recognizes the right of a person working under fixed-term employment to terminate his employment relationship with his current employer. Strictly speaking, a person who wants to terminate a fixed-term contract is not obliged to give any explanation for his decision. He is only required to fulfill a number of conditions prescribed by the provisions of labor legislation.

The procedure for dismissing an employee on a fixed-term contract at his own request

The only obligation imposed on a person who decides to terminate a fixed-term agreement without waiting for the date agreed upon when signing it is to provide advance notice of such intention.

In situations where the agreement is concluded for a period of two months or a longer period of time, the employee is obliged to notify management of the desire to stop working two weeks before the planned date of termination of the contract. If we are talking about a contract initially designed for less than two months, it is enough to notify three days in advance.

At the same time, the employer’s representatives do not have the legal right to prevent the early termination of the existing contract. The employee who announced his dismissal and supported this with an appropriate statement continues to work out the days required by law and receives a full payment on the last day. Moreover, in practice there are often situations when the employer does not insist on this “working off” and is ready to part with the employee in a shorter period of time than specified in the law.

Reasons why an employee may resign early

The Labor Code cites several points as reasons that may serve as grounds for termination of a fixed-term contract at the request of an employee. It should be emphasized that the law lists the main, but not all, options. That is, this list is not exhaustive and closed.

Table 1. Situations that may become a reason for voluntary dismissal

The employee may not give any reasons at all for his decision “on his own” in the application. However, if he wants to quit without the work required by law, and his boss is not inclined to allow him to do so, the reason will still have to be documented. Upon provision of the necessary papers and certificates, the agreement is considered terminated by agreement of both parties.

How to correctly write a statement of your own free will?

An application on behalf of an employee bound by a fixed-term contract and wishing to terminate it is typical for generally accepted document flow. It must include an indication of the full names of the parties between whom this agreement was concluded, the text itself with a request for early termination of the employment relationship, as well as the date and personal signature of the person submitting the application.

The question of whether to indicate or omit the reasons that prompted a person to terminate the contract early is left to the discretion of the author of the application. Let us remind you that the number of days that he will have to work after submitting an application to the employer may directly depend on what arguments the employee resorts to.

Upon receipt of this application, the employer’s representative responsible for personnel records management is obliged to issue an order to dismiss the employee in accordance with the provisions of Article 80 of the Labor Code. The applicant confirms the fact of familiarization with the order with a personal signature.

Important point! An employee who has declared his desire to terminate a fixed-term contract, by law, has the right to withdraw the application paper on any of the days of compulsory service. If the boss did not have time to hire a new employee to replace the resigning employee at that time, the applicant retains his position and continues to work. Roughly speaking, it is believed that he never filed an application to terminate the contract. Refusal to cancel the dismissal paper can only be given upon signing a full-fledged employment contract with the new employee.

What are the consequences of terminating a contract at the initiative of an employee?

As already emphasized above, during all working days, the status of the employee who wrote the application is no different from that of an ordinary employee. He continues to fulfill all the labor duties assigned to him by the employer, since each day of this work will be paid to him in full upon receipt of the payment.

The counting of days of compulsory service begins on the day following the date of submission of the application. The date of early termination of a fixed-term contract is not the day when the employee signed the order for his own dismissal, but the day of his last return to work. It is then that the person is given a work book, where the corresponding entry is first made. At the same time, the former employee receives a full payment from the ex-employer’s accounting department.

In the event that on the final day of work all the above-described procedures were not completed, and the employee does not stop performing his job duties, this situation is fully considered as a refusal to dismiss. This, in turn, may lead to the recognition of an application submitted earlier as annulled.

Obviously, an immutable condition of a fixed-term employment contract is a time frame. The logical conclusion from this thesis is the following: the party taking the initiative to terminate an agreement of this type early is considered responsible for potential failures to meet the deadlines specified in it. However, any claim of this nature can be ignored if the employer agrees to this.

If the employer has claims against the employee, they must be resolved with the participation of the labor commission. After this stage is completed, the case may proceed in court if the parties do not reach a compromise.

Tips for those who accept the option of early dismissal

Labor dispute specialists recommend that before concluding a fixed-term contract, you study the entire text of the contract with special care and substantively discuss each clause that affects the mutual obligations of the future employee and his employer. This precaution will help identify points that may subsequently be interpreted as violations of the terms of the fixed-term contract being signed.

This clause primarily applies to professional athletes. According to Article 348.12 of the Labor Code of the Russian Federation, breaking a fixed-term contract for them may be fraught with the payment of a serious penalty to the employer if there is no compelling reason to terminate the contract.

All other participants in labor relations do not face such costs in a similar situation, however, they should also think through all actions in advance - and only then voice a decision on early termination of the contract with the wording “on their own.” Ideally, the possibility of terminating a fixed-term employment contract should be provided for even before it is signed by the employee and the employer.

Video - Grounds for termination of an employment contract

In custody

The current legislation of our country is aimed at protecting the interests of both employees and the other party to the employment contract. Therefore, in situations with early termination of labor relations, wide space for maneuver is given to both parties, who at one time sealed this document with their own signatures.

According to generally accepted practice, it is believed that if a person decides to resign of his own free will, no one will prevent this. An employer may try to retain a valuable employee by increasing his earnings or promising other improvements, but the choice will ultimately remain with the author of the application. As a kind of pause before making a final decision, the legislator provided for mandatory work. However, it can also be neglected if the employer does not intend to keep the resigning employee longer than necessary.

When deciding to hire an employee for a certain period of time, you need to take into account that termination of a fixed-term employment contract for such an employee, depending on the circumstances and the grounds for dismissal, may differ from the general rules.

Legality of concluding a fixed-term employment contract

When deciding whether to dismiss a temporary employee, the first thing to check is the legality of the term of his employment contract. The term of the contract must be fixed in it, otherwise de jure the contract will be considered unlimited (Part 3 of Article 58 of the Labor Code of the Russian Federation). In this case, it will be possible to terminate it only on the general grounds of the Labor Code of the Russian Federation for fixed-term contracts (Chapter 13 of the Labor Code of the Russian Federation).

Termination of a fixed-term employment contract after the expiration of the term is possible on the basis of a special reason recorded in clause 2, part 1, art. 77 Labor Code of the Russian Federation and Art. 79 of the Labor Code of the Russian Federation, according to a special procedure.

However, this does not eliminate the possibility of dismissing a temporary employee for other reasons. Let us first consider the general grounds.

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

Such a case is possible only if the temporary worker wishes, expressed in a written application addressed to the manager (Article 80 of the Labor Code of the Russian Federation). Dismissal is possible both after the two-week work period established in the Labor Code of the Russian Federation, and by agreement between the employee and the employer on any day. If an employee changes his mind about resigning and withdraws his application, he cannot be fired (only if another employee is not invited to take his place by way of transfer - part 4 of article 80 of the Labor Code of the Russian Federation, part 4 of article 64 of the Labor Code of the Russian Federation).

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

A temporary employee can be dismissed by decision of the company management according to the same rules and grounds (Article 81 of the Labor Code of the Russian Federation) as an employee with an open-ended contract. This type of dismissal is most often challenged in the courts. In addition, dismissed workers contact the labor inspectorate and the prosecutor's office. The company must be prepared to prove the legality of the dismissal.

So, for example, if an employee does not perform his functions, is late for work or appears at the workplace drunk, it is important to correctly record these violations (see Chapter 30 of the Labor Code of the Russian Federation).

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

By agreement of the parties, the temporary contract can be terminated at any time before the day of dismissal; it is enough to draw up the document in writing.

Termination of a fixed-term employment contract upon expiration of the term

When the expiration date of a temporary contract approaches, it is necessary to prepare a notice of its termination on time and correctly. Otherwise, the company bears the risk of recognizing the contract as concluded for an indefinite period. This will happen if none of the parties to the temporary contract requests its termination when the end of the employment relationship arrives. It is enough for the employee to continue his usual work - the contract will be considered permanent (Part 4 of Article 58 of the Labor Code of the Russian Federation).

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

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

The signatory of the notice of termination of a fixed-term employment contract is either the head of the organization or an employee authorized by him (usually a human resources employee). If the wrong signatory is listed, the court may rule the notice illegal and reinstate the temporary employee.

By analogy with an employment contract, the notice is drawn up and signed in two copies: one for the employer, the other for the employee. To minimize the risks of further legal disputes, we recommend obtaining the employee’s signature on the employer’s copy of the receipt of the second copy.

The fact of termination of a temporary contract is formalized by an order, which the employee familiarizes himself with under signature.

Features of terminating a fixed-term employment contract with a pregnant woman

Terminating a fixed-term employment contract with a pregnant woman has some nuances. The general rule is this: a temporary employment contract must be extended until the end of the pregnancy, and if the employee takes maternity leave, until its end (Part 2 of Article 261 of the Labor Code of the Russian Federation).

The following conditions apply:

• a woman must confirm her pregnancy with a medical certificate;
• the woman must submit a written application to extend the contract;
• if the contract period was extended until the end of pregnancy, the woman must, at the request of the employer (we recommend making it in writing), reconfirm the fact of pregnancy every three months;
• the employer has only a week from the day he learned (should have known) about the end of the pregnancy to dismiss the employee (if she actually continues to work after the end of the pregnancy);
• If a woman goes on maternity leave after giving birth, dismissal will be possible on the day the leave ends.

If a pregnant woman was hired on maternity leave (the rate of a temporarily absent employee), then she can be fired if the replacement employee returns to work under one condition (Part 3 of Article 261 of the Labor Code of the Russian Federation): the pregnant temporary employee does not agree to move to the offered vacancies. At the same time, the organization is obliged to offer all vacancies that correspond to the qualifications of the employee and her state of health (higher paid or lower paid work).

Calculation upon termination of a fixed-term employment contract

And lastly, a temporary employee on his last working day (Part 1 of Article 140 of the Labor Code of the Russian Federation) must receive all standard payments upon termination of a fixed-term employment contract (salary, compensation for unused vacation, etc.).