Is it possible to quit your job in one day?

Temporary workers occupy a special position within the workforce. Their peculiarity follows from the temporary nature of labor relations. Those with whom it is possible to conclude a fixed-term employment contract are detailed in Art. 59 Labor Code of the Russian Federation. More than one article is devoted to the topic of the legal status and features of concluding and terminating an employment contract with “temporary workers”. From the point of view of personnel officers and managers of enterprises that have temporary workers in their workforce, it will also be interesting to analyze the practice of litigation with temporary workers. What are disputes formed from?

What claims are in most cases typical for disputes with this category of workers? What are the features of the evidence base of the employer of a “temporary worker” and are there any special differences compared to disputes with employees working on a permanent basis? What solutions are more appropriate for the most “popular” of disputes with “temporary workers”? Let us consider these and other issues using examples from judicial practice and draw appropriate conclusions based on judicial positions.

Based on the composition of court decisions, the main composition of the disputing temporary workers is:

— “conscripts”: employees with whom an employment contract is concluded for a certain period to perform a certain amount of work or based on the results of a competition; — “replacement”: employees hired during the absence of the main employee (during his illness or vacation); - part-time workers: employees hired part-time on a permanent basis, but who can be dismissed on additional grounds provided for in Art. 288 of the Labor Code of the Russian Federation - in connection with the hiring of an employee for whom this work is the main one. It is because of this feature that in this article we consider part-time workers as “temporary workers”; — seasonal workers: workers hired to perform seasonal work, when, due to natural conditions, work can only be done during a certain period (season).

With other categories of “temporary workers”, the duration of the employment relationship with whom is established on the grounds listed in Art. 59 of the Labor Code of the Russian Federation (for example, with persons sent to work abroad; with persons entering work in organizations created for a predetermined period or to perform a predetermined job, etc.), legal disputes occur very rarely or do not occur at all. There is almost no practice in relation to them; typical disputes and claims have not been formed.

"Conscripts"

In accordance with clause 2, part 1, art.
77 of the Labor Code of the Russian Federation, the basis for termination of an employment contract is the expiration of the term of the employment contract (Article 79 of the Labor Code of the Russian Federation). The employee must be notified in writing of the termination of the employment contract due to its expiration at least three calendar days before dismissal, with the exception of cases where a fixed-term employment contract concluded for the duration of the duties of the absent employee expires. An employment contract concluded for the duration of a specific work is terminated upon completion of this work. Conclusion 1: The dismissal of an employee due to the expiration of the employment contract is also legal on the last day of his vacation (after its end), while the employment contract is not considered to be extended for an indefinite period

Example: the head of the department did not agree with the dismissal under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation in connection with the expiration of the employment contract and challenged it in court. The court, having examined the documents presented by the parties, came to the conclusion about the legality of concluding a fixed-term employment contract (based on a competition, with a scientific and pedagogical worker, which is allowed by Articles 59, 332 of the Labor Code of the Russian Federation and Article 20 of the Federal Law “On Higher and Postgraduate Professional Education" dated August 22, 1996 No. 125-FZ). The court also correctly concluded that the employer complied with the requirements of Part 1 of Art. 79 of the Labor Code of the Russian Federation, according to which the employee must be warned in writing about the termination of an employment contract due to its expiration at least three calendar days before dismissal. The plaintiff's assertion that he was fired after the expiration of the employment contract, when, in his opinion, the employment relationship actually continued for an indefinite period, the court found unfounded on the following grounds. Yes, Art. 127 of the Labor Code of the Russian Federation provides that upon dismissal due to the expiration of the employment contract, leave can be granted with subsequent dismissal 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. In such a case, the term of the employment contract is extended for the period of the granted leave on the basis of the law. From the case materials it follows that the employment contract expired on June 19. According to the plaintiff, he was granted regular leave from June 18 to August 15. Therefore, in this case, the day of dismissal is correctly indicated as August 15th. Since no violations of the plaintiff’s labor rights were established by the employer during his dismissal, the court correctly rejected the claim for reinstatement.

An important additional conclusion of the court: even in the absence of a warning notice about the upcoming expiration of the employment contract, there is no basis for recognizing the dismissal as illegal, since the plaintiff, entering into a fixed-term employment contract, knew about its validity period and the consequences of the expiration of the employment contract, and the employer, realizing his law, terminates the employment relationship with the employee due to the expiration of the employment contract.

Conclusion 2: An employment contract concluded for the duration of a specific job is terminated upon completion of this work, and not just the direct functions of the individual employee.

Example: an employee filed a claim against the employer for reinstatement, indicating that the defendant unreasonably fired him under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation in connection with the expiration of the employment contract. From the contents of the employment contract and the hiring order, the court found that the plaintiff was hired to perform a clearly defined job in the project management group for the conversion of the customer’s facility into an ice-resistant stationary platform. The employer fired the plaintiff before the ice-resistant platform was put into operation, considering that the plaintiff had already fulfilled his duties in his position.

The court did not agree with this opinion, pointing out that from the content of the employment contract it follows that it was concluded to carry out work on the development of working and design documentation, supply of materials and equipment, construction and commissioning of the ice-resistant stationary platform No. 1 at the field. In addition, the employment contract established a specific expiration date for the employment contract, which had not yet occurred at the time of actual dismissal. Considering that the dismissal was carried out in violation of the requirements of labor legislation, the court reasonably satisfied the claims made by the plaintiff, reinstating him at work.

The procedure for dismissal due to the departure of the main employee

This action begins with the submission of a statement from the absent employee that he wishes to begin performing his main duties. The duration of the agreement is also of particular importance.

After one of the above reasons occurs, the employer must begin to issue an order. The employee must be familiar with it. Signing of such a document is also required.

If a temporary employee for any reason refuses to sign the order, an appropriate note about this is made on it.

The date of termination of the contract will be considered the date specified in the dismissal order. As a rule, it coincides with what is indicated in the application of the temporarily absent employee.

All necessary calculations must be made with the replacement person, wages, vacation pay, sick pay, etc. must be paid. His work book is returned to him personally on the last working day.

If this does not happen, the employee has the right to send a letter to the employer demanding this. After which, the work book must be returned within a period not exceeding five days.

Article

The main legal regulator of this process is Article 79, and in particular, Part 3. It is this norm that requires special attention.

It stipulates that a fixed-term employment contract can be terminated upon expiration of the time allotted for the absence of the main employee filling this position.

The procedure for processing documents may be regulated by various orders issued by the Ministry of Labor or its departments.

Order

Regardless of the grounds for termination of work, termination of the employment agreement is formalized by order of the head of the organization.

The order includes the following elements:

1. The name of the company, its legal address and contact telephone number.
2. The document number and the number indicating its preparation.
3. An indication of the employment agreement, its number and date of adoption.
4. Reasons for termination of legal relations.
5. Date, signature and seal of a commercial or other organization.
6. A place for the employee to sign, confirming his knowledge.

Find out how to expel your ex-husband from the apartment without his consent. Do you need a complete list of documents for divorce through the Magistrates' Court? The answer is in this article.

It must be done in writing; in accordance with the legislation of the Russian Federation, any other form is not allowed. The procedure and rules for issuing this type of document should be described in the local legal acts of a given employer.

In the absence of such an order, any dismissal will be considered illegal. In the event of a controversial situation, you can contact the labor dispute commission operating within the organization, or the court.

As a rule, in these situations, the employee is reinstated at work and appropriate compensation is paid.

That is why it is very important to carry out the order in accordance with all legal rules in order to avoid controversial situations, loss of time and money.

Employee warning

As a general rule, the manager is obliged to warn his employees about the legal intention to terminate his employment relationship with them. A period of three days is allotted for this.

In the event of termination of legal relations in connection with the start of work by the main employee, no time frame for warning is provided. Thus, the rights of employees are not protected in any way.

Many theorists note that it is necessary to amend labor legislation regarding the obligation to issue a warning that the contract is subject to termination and the basis for this action.

Documenting

Within the framework of the above action, several documents occupy a special place:

• fixed-term employment contract;
• statement by an absent citizen of intention to return to work;
• order for the return of the employee and the dismissal of the temporary one.
• registration of an entry in the work book.

An application from a permanent employee that he wishes to start work is made in free form and sent to the employer. The latter, in turn, issues an order that the employee has the right to begin doing his job.

After this, the dismissal order is executed, the procedure for drawing up which was described above.

Calculation

The settlement with the employee is carried out on the basis of the norms and rules provided for by labor legislation.

The complex of sums of money due to the resigning person includes:

• unpaid work fees;
• money for unused vacations;
• an allowance called severance.

Such amounts must be paid on the last business day. If for legal reasons this cannot be done, then the funds must be transferred no later than the day after the corresponding demand is presented.

Money can be transferred either to a bank card or transferred personally. If this does not happen, the manager may be held accountable under the Code of Administrative Offences.

Entry into the work book

A work book is a fundamental document that every working citizen must have. If initial employment occurs, then this employer must draw up the document.

This act must indicate the place of employment, the date and number of the contract.

When terminating an employment relationship, the head of the organization must indicate the reasons for termination of the contract. This is done by making a reference to the corresponding article of the Labor Code of the Russian Federation (in this case, part 3 of article 79).

It is also necessary to indicate the number of the order according to which the employment relationship is terminated.

If at the time of performance of labor duties the employee was awarded bonuses, awards, etc., a note must also be made on the last pages of the work book.

Substituting for an absentee

By virtue of clause 2, part 1, art.
77 of the Labor Code of the Russian Federation, the grounds for termination of an employment contract are the expiration of the term of the employment contract (Article 79 of the Labor Code of the Russian Federation), except for cases where the employment relationship actually continues and neither party has demanded its termination. The departure of the main employee is sufficient grounds for termination of the employment contract under clause 2, part 1, art. 77 Labor Code of the Russian Federation. In most cases of disputes with replacement employees, the latter dispute the existence of this right of the employer, as well as their failure to comply with the guarantees established by the Labor Code of the Russian Federation upon dismissal.

The legal position on the issue under consideration was expressed by the Constitutional Court of the Russian Federation in Ruling No. 614-О-О dated October 21, 2008, which indicated that termination of an employment contract due to the expiration of its validity period corresponds to the general legal principle of contract stability. An employee, giving consent to conclude an employment contract in cases provided for by law for a certain period, is aware of its termination after the expiration of a pre-agreed period. The possibility of terminating a fixed-term employment contract concluded during the performance of the duties of a temporarily absent employee, earlier than the end of the expected period of absence of such an employee, in particular in case of early termination of parental leave at the initiative of the employee (Article 256 of the Labor Code of the Russian Federation), is due to the need to protect the rights and freedoms of a temporarily absent employee. This rule applies to all persons who have entered into a fixed-term employment contract, and cannot be considered as contrary to the principle of equality of human rights and freedoms.

Conclusion 3: The employer has the right to dismiss a temporary employee replacing the main one, even if the latter is also subject to dismissal on one of the grounds provided for by the Labor Code of the Russian Federation.

Example: an employee did not agree with the dismissal under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation and filed a claim for restoration. He believed that he was fired on the above grounds illegally, since the main employee, for the period of whose replacement he was hired, quit, and his employment contract should have become indefinite. During the consideration of the case, the court found that the plaintiff was hired for the period of the main employee’s sick leave; at the end of the certificate of incapacity for work, the employer warned the plaintiff about the termination of the fixed-term employment contract, and the plaintiff was fired under clause 2 of part 1 of art. 77 Labor Code of the Russian Federation. A settlement was made with the plaintiff and a work book was issued. On the same day (the day of leaving sick leave), the main employee was dismissed due to his refusal to be transferred to another job under clause 8 of part 1 of art. 77 Labor Code of the Russian Federation. Since the dismissal of the main employee was later than the dismissal of the temporary one, the dismissal of the plaintiff under clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation is legal and justified. When making a decision, the court did not accept the plaintiff’s arguments that the employer had to conclude an open-ended contract with him, since the main employee quit, pointing out that the right to hire belongs to the employer and he had the right to refuse the plaintiff to conclude a new employment contract for an open-ended period. basis. The court recognized the plaintiff’s dismissal as legal and refused to satisfy the claims of the dismissed temporary worker (decision of the Achitsky District Court of the Sverdlovsk Region dated April 23, 2012 in case No. 2-94).

Conclusion 4: The main employee who has gone on maternity leave retains the right to choose subsequent behavior: go to work or take maternity leave. The replacement employee is subject to dismissal upon the departure of the main employee, despite the previously reached agreement on the duration of the main employee’s vacation and, accordingly, the term of the employment contract.

Example: an employee hired into the civil service to replace a woman who had gone on maternity leave was hastily dismissed because, contrary to generally accepted behavior, after maternity leave the employee decided to work and only after some time take maternity leave. The replacement employee decided that the employer was obliged to conclude another service contract with him by agreement of the parties or change the essential terms of the contract. However, the court did not agree with the opinion of the dismissed “temporary worker,” pointing out that the expiration of a fixed-term service contract is an objective event, the occurrence of which does not depend on the will of the employer’s representative, and therefore the plaintiff’s dismissal is legal and justified. The notification procedure was followed by the employer, and the fact that the main employee returned to work was confirmed by a time sheet. Taking into account the above circumstances, the court came to the conclusion that the plaintiff was mistaken about the occurrence of allegedly other essential conditions and circumstances provided for in Art. 29 of Law 79-FZ of July 27, 2004 “On the State Civil Service of the Russian Federation”, related to the fact that after leaving the main employee, she soon went on another leave (to care for a child). The employer had no grounds for changing the terms of the employment contract with the plaintiff, in contrast to the grounds for its termination. The court rejected the demands of the “temporary worker” as unfounded (decision of the Oktyabrsky District Court of Belgorod dated 08/07/2012 in case No. 2-3280-2012).

Conclusion 5: The repeated conclusion of employment contracts (or transfers within the framework of one employment contract) does not give rise to the open-endedness of the employment contract in cases due to the temporary nature of the employment relationship during the replacement of a temporarily absent main employee.

Example: a bank cashier, hired for the position of a temporarily absent employee during maternity and subsequent parental leave, was transferred eight times to other temporarily vacant similar positions in different branches of the same bank and was dismissed due to the expiration of the employment contract under clause 2, part 1, article 77 of the Labor Code of the Russian Federation in connection with the return of the main employee to work. Having disagreed with the dismissal, she filed a lawsuit against the employer, in which she asked to recognize the employment contract as indefinite and the dismissal as illegal. The court came to the conclusion that the dismissal of the plaintiff was legal, pointing out that the repeated conclusion of fixed-term employment contracts with the plaintiff in this case is not a basis for recognizing the employment contract as indefinite, since fixed-term employment contracts with the plaintiff were concluded during the absence of the main employees, including in different structural divisions. The fact that the main employee at her last place of work again took out maternity leave has no legal significance for resolving this dispute, since the plaintiff, under the terms of the additional agreement to the employment contract, was permanently transferred to an additional office before the main employee returned to work. In addition, at the time of the decision, the main employee had resumed her duties, and therefore the plaintiff could not be reinstated in her previous position. Thus, in this situation, only the fact that the main employee returns to work has legal significance, which is already a sufficient basis for terminating the employment relationship with an employee who was previously hired under a contract concluded for the duration of the duties of the absent employee (decision of the Nyagan City Court Khanty-Mansiysk Autonomous Okrug - Ugra dated October 29, 2012).

Conclusion 6: Transferring a female employee to a temporary position to replace an absent employee from a permanent job is an abuse of right on the part of the employer and does not give rise to the employer’s right to dismiss her under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation upon the departure of the main employee.

Example: dismissed under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation, the employee filed a lawsuit against the employer to declare the order to terminate the employment contract and reinstatement illegal. The claim was motivated by the fact that she was hired by the defendant for a permanent job, was once transferred to another position, and was subsequently fired due to the departure of the main employee. He considers the dismissal illegal, since she worked on a permanent basis. The court carefully examined the orders for the hiring and transfer of the employee, her employment contract with an additional agreement, entries in the work book and came to the conclusion that the established contradictions in these documents do not indicate that the plaintiff’s employment contract is of a fixed-term nature - until she returns from vacation. caring for the child of another employee. Taking into account the above, as well as evaluating the copy of the additional agreement with unspecified corrections presented by the employer, the order from which it is clear that the employment contract was concluded with the plaintiff for the period of maternity leave M***, the court came to the conclusion that there were violations of the labor contract on the part of the employer legislation and abuse of law. Thus, it follows from the employment contract that it was concluded for an indefinite period. Thus, the transfer of the plaintiff to the position of M*** could only take place by way of replacement. Due to the above, the plaintiff could not be dismissed under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation (due to the expiration of the employment contract). The court declared the dismissal illegal and reinstated the plaintiff in her position (decision of the Zheleznodorozhny District Court of the city of Ulyanovsk dated June 25, 2010; determination of the Ulyanovsk Regional Court dated August 3, 2010 in case No. 33-2766/2010).

Conclusion 7: The court equates the artificial creation of grounds for termination of employment relations with an employee replacing the main employee to the absence of grounds and dismissal under clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation is considered illegal.

Example: an employee won a dispute about reinstatement, despite the employer providing seemingly iron-clad arguments. The essence of the case turned out to be this: the employee was hired under a fixed-term employment contract during the absence of the main employee, who was on maternity leave and subsequent child care leave until July 2012. However, the temporary worker was dismissed by the employer under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation back in February of the same year with reference to the maternity leave. Meanwhile, the main employee simultaneously (from the same date) wrote: an application for early dismissal, an application for leave without pay. After the dismissal of a temporary employee, the main employee wrote an application for parental leave (again). The main employee did not go to work. Satisfying the plaintiff's demands for reinstatement at work, the court came to the reasonable conclusion that the defendant had no legal grounds for terminating the employment relationship with her. Despite the complexity of the written statements of the main employee, the court correctly concluded that she did not actually go to work, continues to be on maternity leave, which was again issued to her by the defendant, and the main employee had no intentions of going to work and interrupting her vacation. Thus, the court did not recognize the dismissal of her replacement employee as legal and reinstated the latter at work (decision of the Dimitrovgrad City Court of the Ulyanovsk Region dated 04/28/2010; determination of the Ulyanovsk Regional Court dated 06/08/2010 in case No. 33-***/2010).

Notifying an employee about leaving the main employee on maternity leave

An employee can return to work after maternity leave before its official end. In any case, a woman should proceed from her own interests. In this situation, the law is completely on her side.

• official notification of the employer about returning to work is not required by law, but may be stipulated in the company’s collective agreement;
• starting work ahead of schedule presupposes the dismissal of the employee replacing the woman during the vacation period;
• the reason for early exit can be either the desire of the woman herself or the request of the employer;
• the employee can work full or short-time (negotiated with the employer);
• payments from the Social Insurance Fund for unused leave under the BiR, made at a time, must be returned to the fund (and child benefits up to 1.5 are terminated);
• time for feeding the child is added to the lunch break;
• If appropriate circumstances arise, the woman has the right at any time (until the child’s third birthday) to continue the early interrupted leave.

We recommend reading: List of Documents for Income Tax Refund for the Purchase of an Apartment

Disputes with substitute workers and guarantees of the Labor Code of the Russian Federation

A fairly large segment of the number of labor disputes with replacement “temporary workers” consists of disputes with women, to whom the Labor Code of the Russian Federation provides a number of additional guarantees related to the termination of the employment contract.
Labor legislation provides for the dismissal of an employee at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation), at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation), and termination of an employment contract on independent grounds (Articles 79, 83 of the Labor Code of the Russian Federation). According to Part 2 of Art. 77 of the Labor Code of the Russian Federation, a fixed-term employment contract is subject to termination due to circumstances beyond the control of the parties, which is an objective event - the expiration of its validity period; the employer and employee do not show any initiative here. Accordingly, the guarantees established by Art. 261 of the Labor Code of the Russian Federation, in this case, do not apply.

Temporary worker - a woman with children under three years of age

Article 256 of the Labor Code of the Russian Federation, which provides for the retention of the employee’s place of work during the period of parental leave, Art.
261 of the Labor Code of the Russian Federation, which provides for the prevention of termination of employment contracts with women with children under the age of 3 years, Art. 81 of the Labor Code of the Russian Federation, which provides for the prevention of dismissal of an employee during the period of his temporary disability and while on vacation, applies only to employment contracts concluded for an indefinite period. Conclusion 8: A temporary worker with a child under three years of age, hired to replace an absent employee, is subject to dismissal upon the latter’s return to work under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation due to the urgency of the nature of labor relations

Example: an employee who was on maternity leave was dismissed under clause 2, part 1, art. 77 Labor Code of the Russian Federation. The court recognized the dismissal as legal and rejected the claim for reinstatement of the employee who did not agree with the dismissal. During the consideration of the case, it was established that the dismissed woman was initially hired under a fixed-term employment contract while the main employee was on maternity leave and subsequent parental leave. While working, the temporary employee herself went first on maternity leave and then on maternity leave. With the departure of the main employee, the employment contract with her was terminated on the above grounds. The court, deciding to reject the plaintiff’s claim, indicated that for fixed-term employment contracts concluded between an employer and an employee for the duration of the duties of an absent employee - a woman on maternity leave, the provisions of Art. Art. 256, 261 of the Labor Code of the Russian Federation do not apply, including in the case of a newly hired employee going on parental leave. The legality of the dismissal of the temporary worker and the correctness of the conclusions of the court of first instance was confirmed by the higher court, which upheld the decision (decision of the Kirovo-Chepetsky District Court of the Kirov Region dated 09/04/2008; determination of the judicial panel for civil cases of the Kirov Regional Court dated 10/09/2008).

Temporary worker - pregnant woman

In accordance with Part 3 of Art.
261 of the Labor Code of the Russian Federation, it is permitted to dismiss a woman due to the expiration of an employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of an absent employee and it is impossible, with the written consent of the woman, to transfer her to another job available to the employer before the end of pregnancy (as a vacant position either a job that corresponds to the woman’s qualifications, or a vacant lower position or lower paid job) that a woman can perform taking into account her state of health. In this case, the employer is obliged to offer her all the vacancies that he has in the given area that meet the specified requirements. A vacant position is a position provided for in the organization’s staffing table that is vacant, that is, not filled (not occupied) by any specific employee. The position of an employee temporarily absent from work, which includes an employee on maternity leave, is not vacant, since the specified employee retains his place of work. The conclusion of a fixed-term employment contract for the duration of the absent employee, by virtue of Art. 59 of the Labor Code of the Russian Federation, according to the judicial position, is a right and not an obligation of the employer. Conclusion 9: A pregnant temporary worker can be dismissed due to the resignation of the main employee, while the subsequent (after dismissal) vacancy of the same position no longer obliges the employer to offer it as a vacancy. On the day of dismissal, this position is not yet considered vacant and is not included in the number of vacancies offered to a pregnant employee in accordance with Part 3 of Art. 261 Labor Code of the Russian Federation.

Example: an employee hired under a fixed-term employment contract to replace an absent employee was dismissed, despite her state of pregnancy, due to the return to work of the main employee. Challenging her dismissal in court, the plaintiff indicated that the employer did not offer her the vacancy that had become vacant due to the dismissal of the main employee on the same day of dismissal. The court found the following: according to clause 2 of the employment contract with the plaintiff, the end date of the contract is the day preceding the day the absent employee (“A”) leaves. On 07/30/2012 “A” wrote a statement about the interruption of maternity leave and the desire to start work, in connection with which the plaintiff was sent notice of dismissal due to the expiration of the employment contract. By order dated August 2, 2012, the plaintiff was dismissed from her position under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation - due to the expiration of the contract. At the time of dismissal, the plaintiff was pregnant, which was known to the employer. The employer followed the dismissal procedure: the plaintiff was warned in advance about the termination of the contract, she was offered all the vacant positions available to the defendant, which she refused to occupy. Since position “A” could not be considered vacant at the time of the plaintiff’s dismissal, the dismissal was recognized by the court as being in accordance with the law, and the employee’s claim to declare the dismissal illegal was rightfully denied (decision of the Zasviyazhsky District Court of Ulyanovsk dated September 11, 2012; appeal ruling of the Ulyanovsk Regional Court dated 04.12.2012 in case-33-3824/2012).

Special grounds

These include:

• return of a key worker;
• expiration of the contract.

We will discuss below whether an employee can be fired due to the departure of the main employee, so we will focus on the expiration of the contract.

Three days before the date specified in the contract as the last working day, the head of the organization is obliged to send a notice to the employee.

It is drawn up in two copies, one must be handed over to the dismissed person against his signature.

The notice contains:

• the wording of dismissal (“due to the expiration of a fixed-term employment contract”);
• link to Part 1 of Art. 79 Labor Code of the Russian Federation;
• signature of the head of the organization or an authorized person (head of the human resources department).

As a basis for dismissal, which must be specified in the Order, reference is made to the clause of the fixed-term employment contract, which specifies the end date.

Due to the departure of a key employee

The dismissal of a temporary employee can also occur in connection with the resignation of the main employee. This situation has many features:

1. Notice period.

In accordance with Art. 79 of the Labor Code of the Russian Federation, the three-day period does not apply to this situation. In accordance with Letter of Rostrud dated October 31, 2007 No. 4413-6, a temporary employee must be dismissed 1 day before the departure of the main one, and in fact, the employer can present him with a fait accompli by issuing a notice and on the same day drawing up an Order of dismissal from with reference to Part 2 of Art. 77 Labor Code of the Russian Federation.

1. Drawing up a notice.

As with other grounds for warning a temporary employee about dismissal, the head of the organization uses a free form of notification. It states:

• reason (exit of the main employee with reference to the Order, if the employee was on vacation);
• link to Part 3 of Art. 79 Labor Code of the Russian Federation;
• reference to the clause of the fixed-term employment contract;
• date of the last working day;
• manager's signature.

The person being dismissed must read the document and sign it.

1. Registration of Orders.

The employer must not only issue an Order on dismissal, but also on the return of the main employee, for example, if he leaves parental leave early.

1. Employment history.

In the work book and personal card, reference is made to Part 2 of Art. 77 Labor Code of the Russian Federation.

1. Settlement with an employee.

The accounting department pays only general payments: wage balances and vacation compensation for the period worked.

Part-timers

A part-time worker, that is, an employee hired on a part-time basis, can indirectly be considered one of the temporary workers.
The temporary nature of labor relations is due to the presence in the Labor Code of the Russian Federation of an additional basis for terminating an employment contract with persons working part-time, provided for in Art. 288 Labor Code of the Russian Federation. Thus, an employment contract concluded for an indefinite period with a person working part-time may be terminated if an employee is hired for whom this work will be the main one, about which the employer warns the specified person in writing at least two weeks before termination of the employment contract. However, this category of workers is also prone to disputes arising from dismissal under Art. 288 of the Labor Code of the Russian Federation, associated with the parties’ misunderstanding of labor relations, both the grounds for dismissal and the peculiarities of labor relations with part-time workers.

Conclusion 10: The condition of part-time work does not change when the position held is changed (rotation), unless otherwise established by the employment contract; however, additional grounds for dismissal remain

Practice: the employee did not agree with his dismissal under Art. 288 of the Labor Code of the Russian Federation, considering it illegal on the chosen basis. The court found that upon hiring the plaintiff, a fixed-term employment contract was concluded for a certain part-time position; subsequently, the employee was transferred to another position, about which the parties entered into an additional agreement to the employment contract. The court did not agree with the employee’s opinion that when transferred to another position, he ceased to be a part-time worker and, therefore, could no longer be dismissed under Art. 288 of the Labor Code of the Russian Federation as a part-time worker. The court indicated that the parties did not change the part-time condition, which was confirmed by the submitted employment contract with an addition, time sheets, and orders. Taking into account the above, the court came to the conclusion that the dismissal of a part-time employee under Art. 288 of the Labor Code of the Russian Federation, since another employee was hired for whom this work was the main one. The court rejected the employee’s claim (decision of the Koptevsky District Court of Moscow dated June 7, 2011 in case No. 2-1113/11).

Legal Aid Center We provide free legal assistance to the population

Notifying an employee about the departure of the main employee from maternity leave is a procedure that takes into account the labor legislation of the Russian Federation. If an employee wants to return from maternity leave to work, then the functioning of a fixed-term employment contract for a temporary worker is terminated, based on the provisions of paragraph 2 of Article 77 of the Labor Code of the Russian Federation . According to the law, notification of the dismissal of an employee who replaces the main specialist at the workplace can be carried out before the woman returns to work. Based on the notification, the employer issues an order. The legal order includes:

• Information about the cessation of child care;
• Information about the exact return from maternity leave;
• Information regarding the form of work schedule: full-time or part-time;
• Data related to payroll.

We recommend reading: Permission to Put into Operation an Apartment Building Where to Get it

Seasonal

Seasonal workers, as well as persons who have entered into a fixed-term employment contract for a period of up to two months (hereinafter referred to as “short-term workers”), are also typical “temporary workers”.
However, disputes with this category of employees arise on other grounds not related to the termination of the employment contract. Thus, the stumbling block is: - severance pay (employees who have entered into an employment contract for a period of up to two months are not paid severance pay upon dismissal (Article 292 of the Labor Code of the Russian Federation), and employees employed in seasonal work and dismissed due to the liquidation of the organization, by reducing the number or staff of an organization’s employees, severance pay is set at a reduced amount - in the amount of two weeks’ average earnings (Article 296 of the Labor Code of the Russian Federation);

— payment of compensation for unused vacation upon dismissal or provision of vacation in kind (seasonal workers and workers who have entered into an employment contract for a period of up to two months are entitled to two working days of vacation for each month of work - Articles 295, 291 of the Labor Code of the Russian Federation);

- inclusion of periods of work in the length of service (periods of seasonal work or temporary work for up to two months, along with other periods of work activity, are included in the length of service required to assign a pension - Article 10 of the Federal Law of December 17, 2001 No. 173-FZ “On Labor Pensions in Russian Federation").

Conclusion 11: periods of seasonal work must be included in the length of service for calculating a pension. If these periods are controversial, confirmation of the fact of seasonal work is possible through the court.

Example: G. filed a claim with the Pension Fund (PF) to include controversial periods in the length of service for calculating the pension. In support of the claims, the plaintiff indicated that the PF refused to include the controversial periods of seasonal work in the length of service due to errors made by the personnel service in the plaintiff’s work book. The court found that when filling out periods of seasonal work in the work book, the following errors were made: in one dismissal record there was no signature of the director, but there was a seal. In others there were discrepancies in the orders on the basis of which the plaintiff was hired and dismissed. These errors contradict the requirements of the rules for filling out work books. With the help of witness testimony, the plaintiff was able to prove the fact of repeated seasonal work on the collective farm. The court decided to include the controversial periods of work in the plaintiff’s length of service for calculating the pension (decision of the Sovetsky District Court of Tomsk on February 27, 2012).

conclusions

1. Disputes with temporary workers vary in terms of the subject of the claim, claims and justifications for the claims. Not all requirements are the same for different categories of temporary workers.
2. The courts clearly follow the position of the legality of termination by an employer of an employment contract with a “temporary worker” upon the expiration date of the employment contract, regardless of the changed specific conditions. If the term of the employment contract has not changed, the application of clause 2, part 1, art. 77 of the Labor Code of the Russian Federation for its termination is lawful.
3. Guarantees established by Art. 261 of the Labor Code of the Russian Federation in relation to pregnant women and persons with family responsibilities, related to the ban on termination of an employment contract, do not apply in case of temporary employment relations. At the same time, the obligation to offer vacancies to the dismissed woman remains for all cases of dismissal of a pregnant woman.
4. Artificially creating conditions for termination of an employment contract under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation is regarded by the courts as the employer’s abuse of his right and the dismissal is recognized as illegal.
5. If the employer fails to comply with the requirements of Part 1 of Art. 79 of the Labor Code of the Russian Federation on the notification procedure prior to dismissal, the court finds no grounds for recognizing the dismissal as illegal, since the plaintiff, concluding a fixed-term employment contract, knew about the duration of its validity and the consequences of the expiration of the employment contract, and the employer, exercising his right, terminates the employment relationship with employee due to the expiration of the employment contract.
6. If previously the main argument of an employee in a dispute arising from dismissal was the employer’s illegality in concluding a fixed-term employment contract, then modern judicial practice, in connection with the amendments to Art. 59 of the Labor Code of the Russian Federation practically does not note such arguments.
7. Part-time workers, who, in fact, are also mostly temporary workers (before hiring an employee for whom this work will be the main one), seasonal workers and “short-term workers” very rarely challenge their dismissal. These categories of “temporary workers” are characterized by other claims - for wages, other monetary claims or related to them.

Important nuances

Despite the fact that the procedure for dismissing such an employee is very simple, sometimes difficulties may arise. There are several categories of employees with whom it is very difficult to terminate an employment contract. Therefore, it is important to know about all the nuances:

1. A person works part-time. He can work in several positions in one company or several. It doesn't matter. To avoid problems with the dismissal of such an employee, it is necessary to conclude a fixed-term agreement with him.
2. The temporary worker also went on maternity leave. The employer pays her all the necessary benefits, but if the previous employee returns to work, the temporary employee will be fired. This is one of the few cases where such an employee can be legally fired.
3. The temporary employee is pregnant. It would seem that the employer cannot deprive her of working meth. But, according to the law, termination of the employment agreement is a completely legal basis for this. Another thing is that the director is obliged to offer a pregnant employee suitable vacancies before dismissal and fire her only in case of refusal.
4. The employee is on vacation. Termination of the employment contract is still carried out. A person's stay on vacation is not a basis for its extension.
5. He's sick. Then the dismissal occurs on the last day of his illness. The date must be indicated on the medical certificate.

The director carries out the dismissal of a temporary employee in connection with the main employee's return from maternity leave on the basis of labor legislation. However, legislative acts do not contain special norms that would protect his rights. A person replacing another employee can easily be fired without even having time to find a new position.