When a manager makes a decision on hiring an employee, it must be remembered that dismissal under a fixed-term employment contract differs from the general rule. And in order to reduce to zero the possible risks of employees contacting the labor inspectorate and the court, you need to know the main features of this procedure.
Definition
A fixed-term employment contract is a type of agreement concluded for a specific period. Article 59 of the Labor Code of the Russian Federation provides that such an agreement may be concluded for a certain time if the employee cannot work on an ongoing basis. A fixed-term employment contract is signed for a maximum of five years. If the terms are not specified in the document, the agreement is considered to be unlimited. A concluded fixed-term contract without good reason may be declared unlimited by the court.
The termination of the employee agreement must be notified accordingly. In the absence of notice, a person has the right to continue to work. A fixed-term employment contract may be prolonged, but only in those cases stipulated by law, or the contract is extended by agreement of the parties.
Legality of the contract
An organization that accepts an employee into its staff can offer him either a permanent job, or for a limited period of time. In the latter case, an urgent labor contract is signed. The Labor Code of the Russian Federation regulates the signing of such an agreement depending on the circumstances: taking into account the work entrusted or by agreement of the parties. When drawing up a contract, its legality must be verified. It is urgent only if there is a point where the term is fixed. Otherwise, the document automatically becomes a perpetual contract, which can be terminated on the grounds referred to in article 59 of the Labor Code of the Russian Federation.
Dismissal warning
To warn about dismissal on time is also an important factor. Indeed, if the employee is not notified in advance, or he himself did not write a letter of resignation at the time when the contract expired, he can simply continue to work. The agreement becomes indefinite, and dismissal under a fixed-term employment contract becomes irrelevant. Subsequent dismissal must comply with the law. Otherwise, it will be illegal.
Notify the employee of the upcoming dismissal is necessary in three days in writing. The following cases are an exception:
- the contract is signed for the time the employee is absent for whom duties are performed (accordingly, the document expires from the moment the employee goes to work);
- the contract is concluded to perform certain work (after the work is completed, the agreement is automatically terminated);
- The contract is concluded for seasonal work.
A notification must be sent by an authorized employee, often a personnel officer. The document is compiled and signed in duplicate. To prevent litigation risks, the recipient must indicate on the copy of the company that he received his copy.
Main reasons
According to the Labor Code, dismissal under a fixed-term employment contract (Article 77-81) occurs for the following reasons:
- The return of a previously working employee, during the absence of which a temporary one was issued.
- The termination of the contract in connection with the fulfillment of those obligations for which the employee was hired.
- Agreement of the parties.
- Employee or employer initiative.
Employee initiative
The employee must inform in advance of his intention to terminate the fixed-term employment contract. Dismissal of their own free will involves a written notice to the employer 14 days in advance. Upon dismissal by agreement of the parties, the contract may be terminated earlier than two weeks later.
Grounds for termination of the contract by the employee:
- disability or illness, which is the reason why it is impossible to carry out their duties further;
- a disease of one of the family members requiring constant care;
- non-fulfillment by the head of duties or conditions prescribed in the contract, as well as violation of legislative norms by him;
- Moving to another city;
- admission to an elected position;
- other reasons.
If the head does not want to sign the dismissal order, arguing that there is no good reason for this, this issue can be resolved through the court or through a commission for the resolution of labor disputes.
Employer initiative
Dismissal under a fixed-term employment contract at the initiative of the employer is provided for a number of reasons:
- organization closure;
- staff reduction ;
- inconsistency of the position occupied by the employee;
- systematic non-fulfillment or neglect in general of obligations stipulated by the contract;
- personnel change (this applies to senior positions);
- violation of discipline in the workplace;
- provision of false data at the conclusion of the agreement;
- committing actions that have done a fair amount of harm to the organization.
Among other things, the head of the organization, deciding to terminate the term contract with the employee, must take into account some nuances:
- Any grounds for termination of an employment contract must be provided for by law.
- Dismissal under a fixed-term employment contract and the circumstances that led to this should be supported by facts. This may be a memo, an explanatory note from the employee, an act, a recovery order.
- A person who has not reached the age of majority may be dismissed before the expiration of the contract, if there is permission from state bodies.
- Mandatory compliance with the deadlines established by law.
- Mandatory payment of all compensation and guarantees.
Expiration date
The Labor Code of the Russian Federation permits breaking off labor relations in accordance with article 77. Given this article, you can fire an employee based on the expiration of the agreement. If at the end of the contract neither the employee nor the employer insists on its termination and the working relationship continues, the document automatically loses its force and becomes unlimited.
Dates of dismissal
Duration of termination under a fixed-term employment contract varies depending on what exactly caused the dismissal:
- If the dismissal occurs at the request of the employee before the expiration of the agreement, the management must be notified of this decision three working days.
- If the employer decides to terminate the employment relationship with the employee before the expiration of the contract, the notice must be drawn up and sent in two weeks.
- Dismissal after the expiration of the employment contract can be carried out on the day when the agreement expires.
Order of registration
The procedure for termination under a fixed-term employment contract is the following algorithm of actions:
- Notification of the upcoming dismissal.
- Drafting a dismissal order.
- Familiarization of the employee with the order of dismissal.
- Preparation of the settlement sheet.
- Acquaintance with the settlement sheet.
- Settlement on the day the employee is fired.
- Making a work book, making a record of dismissal and explaining on what basis the termination of work occurred.
Documentation
Dismissal after the expiration of the employment contract involves the preparation and completion of the following documents:
- Employee statement. If the dismissal occurs on their own, the employee writes a statement in two weeks, indicating the reason for his decision. Usually prescribe an article of the Labor Code of the Russian Federation and the paragraph of this article.
- Notification to the employer (if the manager takes the initiative to dismiss). The document must be made in duplicate, registered in the personnel department and contain the reason for dismissal, a request for confirmation of reading this notice must be written down and the signature of the dismissed employee must be signed.
- The order of dismissal. The document must be prepared on the day of dismissal of the employee in several copies, one of which remains with the employer with the signature of the employee on familiarization. If for some reason the employee was not familiarized with the order, an appropriate note should be made about this.
- A completed work book is handed out.
Correct execution of all documents will allow the employer to avoid further possible litigation or litigation with the labor dispute committee.
Employment history
It is necessary to make an entry in the workbook form after the issuance of the order. An employee who has ceased to work must put a signature in the work book. By this he confirms that he received the document and agrees with all the notes. The document is filled in by the head or an authorized person (often it is an employee of the human resources department or an accountant). The filling algorithm is discussed below.
- The first column is a serial number that continues the previous entry.
- In the second - the date of dismissal.
- In the third column, it is necessary to spell out the grounds for terminating the employment contract, write down the details of the person who filled out the labor, and put the seal of the organization. Also, in this column, the dismissed employee puts his signature on familiarization with the reason for dismissal.
- The last column contains information about the document confirming the fact of dismissal.
If the employee has not received his employment form, the employer must indicate this fact and send the employee a notification that he needs to pick up the document. If even after this there is no reaction from the employee, then the labor is sent by mail to the actual address of residence indicated in the documents.
Payouts
In addition to receiving all the necessary documents, the employee on the day of dismissal must receive all the due payments. If the day of dismissal fell on the day off of the employee, then he receives payments immediately as he returns to work. In case of disagreement of the employee with the payments made, funds must be paid that are not disputed. The remaining issues are resolved through the court.
The following employee is entitled to the following monetary compensation:
- salary for all the time that he actually worked in the month of dismissal;
- cash refunds for all non-vacation leave;
- severance pay (if required by law).
There are reasons (for example, liquidation of a company) under which a fixed-term employment contract has been terminated, providing for certain compensation. Compensation for termination of employment under a fixed-term employment contract provides for the following payments:
- reimbursement of wages for several months;
- reimbursement of leave upon dismissal (provided that the employee did not rest the days set for him before dismissal).
Preferential categories
When drawing up and signing a fixed-term contract, it must be remembered that there are some preferential categories of citizens who are not subject to the general conditions of such a contract.
When dismissing women in position or mothers with children working under a fixed-term contract, there are some nuances:
- You can dismiss a woman in a position either with the complete liquidation of the organization, or if the job was to replace a temporarily non-working employee who took up his duties. In other cases, a pregnant woman can be dismissed only after pregnancy and childbirth.
- The organization has the right throughout the pregnancy to require a woman to confirm her position.
- If the term of the employment contract has expired while the woman is in a position, the employer must, at the request of the employee, and also after she has provided a medical document, extend the term of the employment contract until the end of pregnancy or the end of maternity leave.
- If after childbirth a woman continues to work, the employer may, according to Art. 261 of the Labor Code of the Russian Federation, terminate the employment contract with her within a week.
- At the initiative of the employer, an employment contract with a woman who has children under 3 years old, a mother who brings up disabled children under the age of majority, or children under 14 years of age cannot be terminated.
- A fixed-term labor contract of the Labor Code of the Russian Federation does not allow termination by the employer if the employee is the breadwinner or guardian of a child under three years of age or a disabled person under 18 years of age who is in a family with three or more children and the second parent does not work.