Everything about the dismissal of an employee in connection with the hiring of a main employee: sample notice and order. How and when to formalize the dismissal of a temporary employee in connection with the return to work of the main employee - procedure What is the dismissal of a temporary employee?

Article 289 of the Labor Code of the Russian Federation defines a temporary worker as one with whom an employment contract is concluded for a period of up to 2 months. But such short-term employment relationships in any case must be officially formalized in strict accordance with current labor legislation. The contract concluded in this case must also guarantee the provision of all rights and guarantees stipulated by law, despite the fact that there is no official list of temporary work in labor legislation.

Temporary labor relations are regulated by Chapter 45 of the Labor Code of the Russian Federation. In some cases, the rules established by Articles 58, 59, 79 and relating to the conclusion of fixed-term employment contracts also apply to them.

Dismissal from temporary work

The validity of such agreements ends simultaneously with the expiration of the terms specified in them, and, according to Art. 79 of the Labor Code of the Russian Federation, the employer is obliged to warn the employee about the upcoming dismissal no later than three calendar days before this date. This rule has the only exception: if the employment contract was concluded during the absence of a permanent employee, the employer may not warn the temporary employee about the upcoming dismissal. If the contract expires on a non-working day, the date of dismissal will be considered the next working day.

An employer can dismiss a temporary employee before the expiration of the fixed-term employment contract. The law provides for several cases for this: bankruptcy and liquidation or reorganization of an enterprise, changes in staffing, layoffs. In this case, the dismissal procedure requires mandatory notification of the employee in writing and against signature no later than 3 calendar days in advance. The period, calculated in calendar days, also takes into account non-working days - weekends and holidays.

The legal norms established in a fixed-term employment contract cannot be changed unilaterally by either the employer or the employee himself - this can only be done by agreement of the parties. But a fixed-term employee has the right to terminate. He is obliged to notify the employer about his initiative in advance - no later than 3 calendar days in advance. He must inform the employer about this desire in writing by writing a statement in the prescribed form, as stipulated in Art. 292 Labor Code of the Russian Federation. Upon dismissal, including at the initiative of a temporary employee, severance pay is not paid to him.

The difficulty with dismissal arises when the main employee leaves, and the temporary worker is expecting a child or has already gone on maternity leave. Most often, it is possible to fire a temporary employee, but there are exceptions. In this article we will analyze five personnel situations when an employee was hired under a fixed-term employment contract during the absence of another.

The main employee left, replaced by a pregnant employee on a fixed-term contract

Situation. During the absence of the main employee, an employee was hired on a fixed-term contract. The main employee returns to work, and the temporary employee is pregnant, but not on maternity leave. Do we have the right to fire a woman due to the expiration of her employment contract?

The company is not required to transfer the employee permanently, but if both parties agree, it can be done. Please note that with a permanent transfer, a fixed-term employment contract will become indefinite.

Solution. You can fire a pregnant employee when the main employee returns to work. This is legal if the woman was hired under a fixed-term contract for the period of absence of the main employee and she cannot be transferred to another job or the woman refused the transfer ( para. 2 Part 1 of Art. 59, part three Art. 261 Labor Code of the Russian Federation).

Before dismissal, offer the temporary employee a transfer to the vacant position in writing. This could be a job that matches the woman's qualifications, or a lower-level, lower-paid position. But at the same time, the work must be such that the woman can perform taking into account her state of health. Offer only those vacancies that the employer has in the locality where the employee works. Include vacancies in other locations in the notice if you have provided for this in the employment contract with the employee, collective agreement or in regional, industry and other agreements.

If all jobs are currently occupied, then issue a notice to the pregnant employee against her signature that there are no vacant positions in the company (sample below). In this case, as well as when the employee refuses the transfer in writing, formalize the dismissal due to the expiration of the employment contract ( Clause 2, Part 1, Art. 77 Labor Code of the Russian Federation).

During the maternity leave of a temporary employee, the main employee left

Situation. The main employee returned to work after maternity leave. He was replaced by an employee under a fixed-term employment contract, who is currently on maternity leave. Is it possible to fire a temporary worker?

Solution. It is possible to fire a temporary worker. But the procedure for dismissal will depend on whether the employee has already given birth to a child or not.

After the birth of a child, the employee’s status will change. But the guarantees for pregnant women and women with children are not the same. If on the day the main employee leaves the woman is still pregnant, then she can be fired when she refuses a temporary transfer to another job or if there are no vacant positions in the company ( part three Art. 261 Labor Code of the Russian Federation, paragraph 27 Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1). If the child has already been born, fire the temporary employee on the day the main employee leaves. There is no ban on this, despite maternity leave. A company does not have the right to dismiss a woman with a child only at the initiative of the employer ( part four art. 261 Labor Code of the Russian Federation). The expiration of the employment contract does not apply to these grounds.

There is also no need to warn a temporary employee about the expiration of the employment contract ( part one art. 79 Labor Code of the Russian Federation). It is enough to notify the employee in writing on the day the dismissal order is issued and send her a notice of the need to appear for a work book or allow her to send the document by mail. Do not recalculate maternity leave benefits.

Temporary employee in place of the main one, who quits without going to work

Situation. During the absence of the main employee, an employee was hired under a fixed-term employment contract. The main employee quits without returning to work. What to do with a temporary worker?

Solution. It is impossible to dismiss a temporary employee due to the expiration of the employment contract. The duration of the contract is related to the return of the main employee to work ( part three art. 79 Labor Code of the Russian Federation). And since the main employee did not return to work before his dismissal, then there is no reason for dismissal. This position is also supported by the courts. The contract, which was drawn up for the duration of the duties of the absent employee, is terminated when the main employee returns to work ().

To eliminate accounting and employee issues, sign an additional agreement to the employment contract with him. In it, record that the term of the employment contract is no longer valid and the employment relationship has become unlimited. Issue an order based on the agreement, but this is not mandatory. By order, the manager will instruct the personnel officer to make changes to the employee’s personal card, and the accountant to make changes to the personnel accounting program (sample below).

An employee on a fixed-term contract must be temporarily transferred

Situation. During the absence of the main employee, the company entered into a fixed-term employment contract with the new employee. Is it possible to temporarily transfer a woman to another position during the term of a fixed-term contract?

Solution. The company has the right to temporarily transfer an employee under a fixed-term employment contract, but there will be risks with dismissal. Changes can be made to an employment contract regardless of its type, that is, both a fixed-term and an open-ended contract (Art. 72.2 Labor Code of the Russian Federation, letter of Rostrud dated October 31, 2007 No. 4413-6).

Do not record a temporary transfer in the employee’s work book or personal card ( part four art. 66 Labor Code of the Russian Federation). If you entered this information by mistake, do not correct it. In fact, the record is redundant, but it does not distort information about the employee’s work.

The term of the employment contract and the labor function are independent mandatory conditions of the employment contract ( part two art. 57 Labor Code of the Russian Federation). Therefore, a temporary transfer does not automatically change the term of the employment contract (). On the one hand, there are no obstacles to dismissal if the main employee returns to work during the period of temporary transfer. After all, a temporary transfer is possible only within the framework of a fixed-term employment contract. On the other hand, the temporary transfer is not over yet. And it can be terminated when the deadline established in the transfer agreement arrives or the employee who was temporarily replaced returns to work ( Art. 72.2 Labor Code of the Russian Federation). Therefore, it is safer to conclude a written agreement on the end of the temporary transfer and dismiss the employee on the day the main employee leaves (sample below).

To avoid disputes with an employee and the difficulties of processing a temporary transfer, you can offer the employee additional work instead ( Art. 60.2 Labor Code of the Russian Federation). In this case, the woman will continue to perform work under a fixed-term employment contract. And on the day the main employee quits, the company will fire her.

The main employee goes on a part-time basis and shares wages with a temporary employee

Situation. For the period of parental leave, the main employee entered into an employment contract with a temporary employee. The employee plans to start working part-time early. The employer requires the employee to work full-time for this position. Can a company refuse this type of work or not fire a temporary employee?

Solution. It is impossible to refuse part-time work and not terminate a fixed-term employment contract. The employer is obliged to establish part-time working hours at the request of the employee during the period of parental leave or if he has a child under 14 years of age ( part two Art. 93, part three Art. 256 Labor Code of the Russian Federation). The Labor Code proposes to establish a regime in accordance with the wishes of the employee, but at the same time take into account the working conditions of the company ( part two art. 93 Labor Code of the Russian Federation). Therefore, you cannot refuse an employee the desired part-time work schedule, but you will determine the specific working hours together.

Responsibilities of the employer when dismissing an employee at his own request The law establishes the obligation to dismiss a specialist working at the enterprise at his own discretion on the day indicated in the application, taking into account a two-week period. This is the period that the company has the right to require the employee to complete in order to transfer all his affairs, formalize the termination of the employment relationship, so that the company has time to calculate the amount of payments due to the employee upon dismissal, and also to find a replacement for him. Of course, when someone valuable to an organization leaves, it can be a major loss. Because the employee leaves and the place remains empty, which leads to delays in work that are negative for the company. But, nevertheless, the employer has no right not to fire him.

Dismissal of an intern at his own request

Termination of an employment contract by agreement of the parties An employment contract may be terminated at any time by agreement of the parties to the employment contract. Calculation of severance pay On the last working day, the calculation of severance pay must be calculated.

It includes:
the balance of wages not received by the employee;

bonuses and other payments - at the discretion of the employer;

compensation for vacation days.

These employees are entitled to vacation if the contract was concluded for more than 2 months. Leave is provided in the amount provided for in the employment contract, in proportion to that specified in local acts and regulations.

Attention

That is, it cannot be less than for other employees working in a similar position. The number of days is counted from the last day the employee was on vacation.

Everything about dismissal under a fixed-term employment contract at your own request

work for old-age pensioners;
full-time education by the candidate;
work to prevent or eliminate the consequences of emergency situations/circumstances (for example, accidents);
a position for persons when only temporary work is permissible for them, which is confirmed by a medical report;
part-time work;
work received after being elected through a competition;
acceptance to an administrative and managerial position, namely the position of a manager, his deputy or chief accountant;
creative professions according to the lists of such positions, professions and works (for example, in concert organizations);
other legally stipulated cases.

The agreement of the parties does not mean a forced nature, but provides for agreement to such specificity of labor relations.

How to quit a temporary job

The third column gives the wording of the dismissal. Here it is no longer necessary to indicate the fact of substitution or the urgent nature of the work, as this follows from the previous appointment record. The wording should be simple: “Dismiss at your own request on the basis of paragraph 3 of part 1 of Article 77 of the Labor Code of the Russian Federation.”

Also in the third column the wording “at the initiative of the employee” is allowed with reference to Article 80 of the Labor Code.
The name of the document (order) on dismissal and its details are entered in the fourth column.
Below is the position, surname and initials of the person who made the entry.
The entry is certified by the employer's seal.

Labor Code of the Russian Federation, Article 78.

Features of dismissal under a fixed-term employment contract

Important

And the employee has the right to write a complaint to the labor inspectorate and the court if he is not given documents, or they refuse to fire him, citing the fact that he did not complete the allotted time, or that he did not do the work assigned to him. And the formulations “no one to work” or “no replacement” are not appropriate here.

The same requirement applies to a situation where an employee, having gone on his annual paid leave, wishes to resign. About which I sent a registered letter to the employer. It is necessary to pay attention to an essential feature of calculating deadlines.

If the application is sent by mail, then the two-week countdown begins from the next day on which the application was received by the enterprise. Vacation or other lawful absence from the workplace does not interrupt or stop the calculation of work periods.

After his recovery, the employee has the right to come to the enterprise for documents and payment.
An employee may have several reasons for resigning voluntarily: he has found a new job or is going to look for one, he has not gotten along well with his management or co-workers, he is planning to move. Often, a conflict with superiors initiates an employee leaving his position, formally, of his own free will.

In any case, regardless of the reason and reason, there is a legally established procedure for an employee to act upon dismissal of his own free will. Let us consider this procedure in more detail, since the registration procedure for dismissal must be fully observed, regardless of its wording.

How to properly resign of your own free will The first and most important requirement is compliance with the two-week work rule. That is, the employer must be warned about the employee’s departure two weeks before the expected date.

Dismissal of a temporary worker

Labor Code of the Russian Federation. Organizations often need to hire an employee on a temporary basis under a fixed-term employment contract. It arises, as a rule, due to the main employee going on parental leave before he reaches the age of three.
Article 58 of the Labor Code of the Russian Federation provides for the possibility of concluding an employment contract for a period of no more than 5 years (fixed-term employment contract) unless the Labor Code and other federal laws provide for a different period. Article 59 of the Labor Code of the Russian Federation lists the conditions under which such an employment contract can be concluded with an employee; the main condition most often encountered in practice is the conclusion of a fixed-term employment contract for the duration of the duties of an absent employee, who, in accordance with labor legislation, retains his place of work .

Dismissal of a temporary worker at his own request

Labor legislation (Part 6, Article 81 of the Labor Code of the Russian Federation) prohibits dismissing employees only at the initiative of the organization (Clause 4, Part 1, Article 77 of the Labor Code of the Russian Federation). Letter of resignation A warning is drawn up in any form, usually in the form of a statement typed on a computer or written by hand.

An organization can independently develop a form for such an application and familiarize employees with it - the laws do not prohibit this. The main thing is that the employee signs the application, which will make it possible in the event of a legal dispute to prove the existence of the employee’s will to dismiss.

Fixed-term types of labor relations include those issued for a period of two months or more, in accordance with Article 289 of the Labor Code of the Russian Federation.

Labor Code of the Russian Federation, Article 289. Conclusion of an employment contract for a period of up to two months

When hiring for a period of up to two months, no testing is imposed on employees.

Here it is allowed to indicate the exact date of dismissal, or only the precedent of replacement can be indicated, for example, “for the period of maternity leave.”

The general regulations for leaving a position at the request of an employee are based on the norms of the sources of legislation set out:

These legislative acts do not contain restrictions or other prohibitions on the termination of work activities of temporarily employed persons. According to legal regulations, this category of workers has the right to take initiative by stopping work within the time frame they require.

In such situations, the employer does not have the right to establish prohibitive measures and interfere with the dismissal procedure.

ATTENTION: The ban on dismissal of a temporary worker is one of the gross violations of labor legislation, according to which administrative liability is imposed.

Various nuances

Notice period and working time for a temporary worker

The main nuance when dismissing this category of employees is the reduction of the working period. In this case When a position is vacated, the employee must work for 2 weeks, which corresponds to general standards only if the contract is concluded for more than 2 months (Article 80 of the Labor Code of the Russian Federation).

When signing a contract for a shorter period, notice is required at least 3 days in advance.

This rule reflects similar advantages of the employer, who warns about the expiration of the employment contract or about the departure of the main employee in the same way, 3 days in advance.

Application for voluntary resignation

To terminate the employment relationship of the parties at the initiative and desire of the employee, an official application must be received on his part in accordance with the norms of Article 292 of the Labor Code of the Russian Federation, submitted to the name of an authorized official (the head of the organization) or an individual entrepreneur (IP).

Labor Code of the Russian Federation, Article 292. Termination of an employment contract

An employee who has entered into an employment contract for a period of up to two months is obliged to notify the employer in writing three calendar days in advance of the early termination of the employment contract.

The employer is obliged 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.

An employee who has entered into an employment contract for a period of up to two months is not paid severance pay upon dismissal, unless otherwise established by federal laws, a collective agreement or an employment contract.

The application indicates the basis for concluding the employment contract, its urgent nature - indicating the reason for the intended further dismissal and the request for termination.

For example: “I ask you to terminate the employment contract concluded for the period of maternity leave of T.P. Konopelnaya, dismissing the cashier-seller from her position at her own request.”.

Order to terminate the employment contract

The employer is obliged to endorse the application and draw up an order based on it.

The order requires you to indicate details in the form of a serial number and date of release, which will subsequently be entered into the work book. The document form is standard, corresponding to the norms of personnel records management.

The name of the order is “Dismissal Order”.

The wording could be as follows: “To dismiss, at his own request, the salesperson-cashier N.N. Mironova, hired for the duration of maternity leave by T.P. Konopelnaya.”

Making an entry in the work book

The order is always issued before the work book is filled out, which is based on it as the basis for termination of the contract, as evidenced by the corresponding entry. It is done as follows:

The name of the organization does not need to be entered, since it was already entered when concluding the agreement.
The first column (column) contains the serial number of the entry.
The second column indicates the date of termination of the contract, which is the last day of work.
This date necessarily corresponds to the day of dismissal specified in the order and in the application, but may differ from the date the order was issued and other documentation was completed.
The third column gives the wording of the dismissal. Here it is no longer necessary to indicate the fact of substitution or the urgent nature of the work, as this follows from the previous appointment record.
The wording should be simple: “Dismiss at your own request on the basis of clause 3 of part 1 of article 77 of the Labor Code of the Russian Federation.”
Also in the third column the wording “at the initiative of the employee” is allowed with reference to Article 80 of the Labor Code.
The name of the document (order) on dismissal and its details are entered in the fourth column.
Below is the position, surname and initials of the person who made the entry.
The entry is certified by the employer's seal.

IMPORTANT: The parties can draw up an agreement regulating the terms of service and the amount of severance pay; in this case, dismissal is carried out “by agreement”, with reference to the norms of Article 78 of the Labor Code of the Russian Federation.

Labor Code of the Russian Federation, Article 78. Termination of an employment contract by agreement of the parties

An employment contract can be terminated at any time by agreement of the parties to the employment contract.

Calculation of severance pay

On the last working day, severance pay must be calculated. It includes:

the balance of wages not received by the employee;
bonuses and other payments - at the discretion of the employer;
compensation for vacation days.

These employees are entitled to vacation if the contract was concluded for more than 2 months.

Leave is provided in the amount provided for in the employment contract, in proportion to that specified in local acts and regulations. That is, it cannot be less than for other employees working in a similar position.

The number of days is counted from the last day the employee was on vacation. The calculation is made by dividing the duration of the vacation by 12 and multiplying the resulting number by the number of months worked after the vacation.

If an employee has worked for less than a year, compensation is provided for the months worked. In this case, a month is considered to be more than 15 working days; if fewer days are worked, this month is not taken into account.

REFERENCE: If the contract does not provide for the duration of the vacation, 2 working days are taken into account for each month worked.

What documents and certificates are issued to the employee?

Payments and documents are issued on the last working day, which is considered the day of dismissal.

The main document that must be issued is a work book. The employer does not have the right to delay it for more than three days if the employee has not applied for it.

Upon written request, he may be given:

copies of diplomas and other educational documents;
certificates and certificates of advanced training;
certificates of assignment of rank;
documentation of internship, etc.

They are extracted from the employee’s personal file, or issued in the form of extracts or copies. Documents confirming his acceptance into the position remain with the employer and are stored in archival data.