The difficulty with dismissal arises when the main employee leaves, and the temporary worker is expecting a baby or has already gone on maternity leave. Most often, you can fire a temporary employee, but there are exceptions. In the 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, in whose place, under a fixed-term contract, a pregnant employee
Situation. During the absence of the main employee, an employee was hired under a fixed-term contract. The main employee goes to work and the temporary worker is pregnant but not on maternity leave. Do we have the right to fire a woman due to the expiration employment contract?
The company is not required to transfer the employee permanently, but if both parties agree, it is possible. Please note that when permanent translation the fixed-term contract becomes indefinite.
Solution. You can fire a pregnant employee when the main employee goes to work. This is legal if a woman was accepted 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 to be transferred ( par. 2 part one of Art. 59, part three Art. 261 of the Labor Code of the Russian Federation).
Before leaving, offer the temporary employee a transfer to vacant positions in writing. This may be a job that matches the qualifications of a woman, or a lower paid position. But at the same time, the work should be such that a 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 areas in the notification if you have provided for this in the employment contract with the employee, the collective agreement, or in regional, industry and other agreements.
If in this moment all jobs are occupied, then issue a notice to the pregnant employee against signature that there are no vacancies in the company (sample below). In this case, and also when the employee refuses to transfer in writing, file a dismissal due to the expiration of the employment contract ( paragraph 2 of the first article. 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 a parental leave. In his place, a worker under a fixed-term employment contract was hired, who is now on maternity leave. Can a temporary worker be fired?
Solution. You can 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 the child, the status of the employee will change. And the guarantees for pregnant women and women with children are not the same. If a woman is still pregnant on the day the main employee leaves, then she can be fired when she refuses to temporarily transfer to another job or if there are no vacancies in the company ( part three Art. 261 of the Labor Code of the Russian Federation, item 27 resolutions of the Plenum Supreme Court RF 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. The company does not have the right to dismiss a woman with a child only at the initiative of the employer ( part four of Art. 261 of the Labor Code of the Russian Federation). The expiration of the term of the employment contract does not apply to these grounds.
It is also not necessary to warn a temporary worker about the end 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 the document to be sent by mail. Maternity leave allowance is not recalculated.
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 leaves without going to work. What about a temporary worker?
Solution. It is impossible to dismiss a temporary worker due to the expiration of the employment contract. The term of the contract is associated with the release of the main employee to work ( part three of Art. 79 Labor Code of the Russian Federation). And since the main employee did not go to work before his dismissal, it means that 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 performance of the duties of the absent employee, is terminated with the entry to work of the main employee ().
To exclude accounting and employee issues, sign an additional agreement with him to the employment contract. In it, fix that the condition on the term of the employment contract is no longer valid and the employment relationship has become indefinite. Based on the agreement, issue an order, but this is not required. By order, the manager will instruct the personnel officer to make changes to the employee's personal card, and the accountant to the personnel accounting program (sample below).
An employee on a fixed-term contract needs to be temporarily transferred
Situation. During the absence of the main employee, the company entered into a fixed-term employment contract with a new employee. Is it possible during the validity period fixed-term contract a woman temporarily transferred to another position?
Solution. The company has the right to temporarily transfer an employee under a fixed-term employment contract, but there will be risks with dismissal. It is possible to make changes to an employment contract, regardless of its type, that is, both in a fixed-term and indefinite contract (Art. 72.2 TC RF, letter of Rostrud dated October 31, 2007 No. 4413-6).
Do not record a temporary transfer in work book and personal card of the employee ( part four of 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 the 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 of Art. 57 of the 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 went 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 has not ended yet. And you can stop it when the deadline set in the transfer agreement comes or the employee who was temporarily replaced comes to work ( Art. 72.2 of the Labor Code of the Russian Federation). Therefore, it is safer on the day the main employee leaves to conclude a written agreement on the end of the temporary transfer and dismiss the employee (sample below).
To avoid disputes with an employee and the difficulties of obtaining a temporary transfer, instead of it, you can offer the employee additional work ( Art. 60.2 of the 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 leaves, the company will fire her.
The main employee goes on a part-time basis and shares the rate 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 take early part-time work. The employer needs the employee to work all day in this position. Can the company refuse such a mode of operation 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 an incomplete work time at the request of an employee during parental leave or if he has a child under 14 years of age ( part two Art. 93, part three Art. 256 TC RF). Labor Code offers to set the mode in accordance with the wishes of the employee, but at the same time take into account the working conditions of the company ( part two of Art. 93 of the Labor Code of the Russian Federation). Therefore, it is impossible to refuse an employee in the desired part-time mode, but you will determine the specific time of work together.
The dismissal procedure own will The process of terminating a fixed-term contract, if its term has come to an end, usually does not raise questions. However, what to do if, having a fixed-term contract in hand, the employee decided to quit at will, without waiting for its end? In general, the process is similar to the dismissal of a permanent employee on his initiative. The dismissal procedure is usually divided into 3 stages. First step Applying starts the whole process. It is necessary to inform the employer of your intention in writing, and it does not matter whether the application is prepared manually or by printing. The main points of the content of the statement are as follows:
- Please dismiss on your own initiative.
- date last day work.
- Signature.
The second stage The stage of working off implies advance notice of departure and may include sick days or vacation days.
Voluntary dismissal of an intern
Exceptions to the standard rules for working off before dismissal apply to the following categories of employees:
- seasonal hired employees – contract term up to 2 months
- temporary employees of the enterprise for 1-2 months
- all employees on probation
- athletes and coaches with contracts up to 4 months
More information about the features of working out different categories of employees can be found in the following regulations:
- articles 292 and 296 of the Labor Code of the Russian Federation for seasonal workers and temporary employees
- articles 291 and 295 of the code indicate the period of vacation for temporary workers
- according to part 4 of article 71 of the Labor Code of the Russian Federation 3 days for those who are on probation
- Art. 280 and 348.12 of the code - a month of working out for coaches and athletes
- Part 3 Art.
All about dismissal under a fixed-term employment contract of one's own free will
Dismissal during probationary period The term of working off for different categories of employees The countdown of the working time starts from the date of filing the application for dismissal. It is enough to warn the management of your intention to start counting the days. If the procedure is subject to general rules, then you should work exactly 2 weeks before dismissal.
There are also exceptions to the standard conditions, when an employee may not be worked out at all or quit 3 days after submitting his application in the prescribed manner. Preferential working rules apply, for example, to the dismissal of an intern at his own request.
How to quit a temporary job
In this case, the dismissal procedure provides for mandatory notification of the employee in writing and against signature no later than 3 calendar days. The term, calculated in calendar days, 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.
Attention
But a temporary worker has the right to terminate a fixed-term employment contract. He is obliged to notify the employer of his initiative in advance - no later than 3 calendar days in advance. He must inform the employer of this desire in writing by writing an application in the prescribed form, as stipulated in Art.
292 of the Labor Code of the Russian Federation.
Features of dismissal under a fixed-term employment contract
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, the number of working days more than 15 is accepted for a month, if a smaller number of days is worked out, this month is not taken into account.
REFERENCE: If the contract does not provide for the duration of the vacation, 2 working days for each worked month are taken into account. What documents and certificates are issued to the employee? The issuance of the calculation and documents takes place 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 is not entitled to delay it for more than three days if the employee has not applied for it.
Compare the salaries of employees with the new minimum wage From May 1, 2018, the size of the federal minimum wage will be 11,163 rubles, which is 1,674 rubles more than now. And this means that employers who pay their employees at the minimum wage must raise their salaries from May 1.< … Выдать увольняющемуся работнику копию СЗВ-М нельзя Согласно закону о персучете работодатель при увольнении сотрудника обязан выдать ему копии персонифицированных отчетов (в частности, СЗВ-М и СЗВ-СТАЖ).
However, these reporting forms are list-based, i.e. contains information about all employees. This means that the transfer of a copy of such a report to one employee is the disclosure of personal data of other employees.< …
Dismissing a temporary worker
Important
According to the norms of Article 80 of the Labor Code of the Russian Federation, an enterprise or entrepreneur whose employee performs labor functions, must be dismissed at his request by the date indicated in the application, taking into account a two-week period. This period is established by the legislator in order to enable the employer to find a replacement for a vacant position so that there is no downtime in work, although this period is certainly short to search for a high-class professional. If the employee is not permanent, but performs work under a temporary employment contract, or works in seasonal jobs, then the two-week notice period for dismissal is reduced to three days.
That is, the working time of a seasonal and temporary employee is three days.
Voluntary dismissal of a temporary worker
Here it is allowed to indicate the exact term of dismissal, and only a replacement precedent 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 forth:
- in Part 3 of Article 77 of the Labor Code of the Russian Federation;
- in article 78 of the Labor Code of the Russian Federation;
- in article 80 of the Labor Code of the Russian Federation.
These legislative acts do not contain restrictions or other prohibitions on termination labor activity temporarily employed persons. According to the regulations of the legislation, this category of workers has the right to take the initiative, stopping work at the required time.
In such situations, the employer has no right to establish prohibitive measures and prevent the dismissal procedure.
Voluntary dismissal of a temporary worker
Labor Code of the Russian Federation, the employer is obliged to notify the employee of the impending 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 business day after it. The employer can dismiss a temporary worker even 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, change staffing, reduction.
Info
Firstly, because it confirms the presence of the will of the employee to quit precisely at his own request, and not according to any other wording. And secondly, the second copy remains with the employee as proof of the fact of acceptance, and, after a two-week period, he has the right to collect his documents and calculation. If the employee is unable to work for another fourteen days, after submitting an application for resignation, for good reason, he must provide the employer, along with the application, with supporting documents that indicate the need for urgent dismissal of the specialist.
When filing a letter of resignation of his own free will, the employee must attach required documents, which will confirm his inability to work out the due date.
In order for the dismissal of an employee in connection with the exit of the main employee from the decree to be successful, you need to know about all the intricacies of this procedure. After all, the termination labor relations with any employee must be carried out according to the law.
general information
Labor legislation allows the employment of temporary employees for the period when the main employee is absent. Most often, this method is used when a subordinate cannot perform his duties for a long time, for example, while on maternity leave.
Then the management finds a suitable candidate and concludes a fixed-term contract with him. This can be either a person already doing work in the company, or an outside employee. Experts advise not to indicate in the document a specific date when the main employee will go to work. After all, a woman can extend maternity leave. Therefore, it is better to indicate that the termination of the contract will be carried out after the return of the main employee from maternity leave.
Based on Article 79 of the Labor Code of the Russian Federation, the basis for terminating a fixed-term contract is the entry to work of the main subordinate. You should be aware that an employee is not required to warn her employer in advance about leaving the decree. For his part, the boss is also not required to notify the temporary subordinate in advance of the dismissal. This does not violate human rights, as he is aware of the temporary nature of his work.
Dismissal procedure
The dismissal of a temporary worker is as follows:
- An employee returning from maternity leave writes a statement and indicates her desire to interrupt her leave. The document can be submitted even on the eve of the return, as certain deadlines No.
- The employer is obliged to issue an order for the employee to leave.
- The dismissal is reported to the temporary subordinate.
- There is a procedure for terminating the contract.
- The dismissed person receives documents and money.
If a woman goes to work on time, then she does not need to draw up any documents. But if she has a need to return from vacation earlier, then an application is written. According to the rules, it must contain:
- a request to terminate the decree;
- desire to start performing professional duties;
- date of return to office.
The form of the application is not established by law, therefore it is drawn up in a simple written form. The main thing is to adhere to the basic rules for compiling such documents. Many women who interrupt their vacation hope to work part-time. In this case, the director has no right to refuse such a request.
But the parties are required to draw up an additional document, an agreement that will be attached to the main employment contract. The document must contain:
- duration of work per week;
- the number of hours that a woman will work daily;
- the amount of income for the shortened day.
For a woman who came to work ahead of schedule, other working conditions apply. For example, it cannot be sent to business trips, forced to work overtime, etc. And so that the employer could not violate the requirements of the law, the employee must know her rights.
Reference: if a woman has a reason to return to maternity leave (if the child is under 3 years old), then she can do this on a general basis.
The head, upon dismissal of a person replacing her, must issue all orders. First, an order is drawn up for the early return of the employee. The document contains:
- information about the exit of the employee;
- return date;
- additional information about the mode of operation;
- separate accounting instructions.
An order to dismiss an employee is drawn up in the T-8 form established by law, if the company does not have its own special form. After that personnel worker enters data into personal card person and his work book. Most often indicate that the dismissal was carried out due to the termination of the labor agreement.
Calculation
Dismissal in connection with the release of the work of the "maternity leave" is carried out quite simply. The last step is to issue the necessary Money and documents. Therefore, before the departure of a person, all calculations must be made. The employee is entitled to:
- wages;
- vacation pay;
- sick leave payment;
- all necessary awards and rewards.
If you fire a temporary employee, you cannot force him to work for two weeks. There is no information about such processing in labor law. Moreover, if this still happens, the employee has the right to complain about the boss to the labor inspectorate or the prosecutor's office.
Refusal to return to work
A few years is a long enough period for the enterprise to undergo serious changes. Therefore, women often face the fact that when they leave the decree, they are denied the continuation of labor relations. And all employers know that this is a gross violation of the law, however, they demand that young mothers vacate their position.
What can be done in this case? If necessary, you can compete for your place. To do this, it is necessary to write an appropriate complaint to the labor inspectorate or other regulatory authorities. Some workers prefer to quit, as the boss will not let them perform their official duties anyway. Experts recommend leaving not at will, but to conclude an agreement. Then there is an opportunity to get a good severance pay.
Important nuances
Despite the fact that the procedure for dismissing such an employee is very simple, sometimes difficulties can arise. There are several categories of employees, the employment contract with which is very problematic to terminate. Therefore, it is important to know about all the nuances:
- The person works as a partner. He can work in several positions in one company or several. It doesn't matter. In order to avoid problems with the dismissal of such an employee, it is imperative to conclude an urgent agreement with him.
- The temporary worker also went on maternity leave. The employer pays her all the necessary benefits, but if the previous employee came to work, the temporary employee will be fired. This is one of the few cases in which such an employee can legally be fired.
- Temporary employee is pregnant. It would seem that the employer cannot deprive her of a working meta. But, according to the law, the termination of the employment agreement is a completely legal basis for this. Another thing is that the director is obliged before dismissal to offer suitable vacancies to the pregnant employee and dismiss her only in case of refusal.
- The employee is on vacation. The termination of the employment contract is still carried out. The stay of a person on vacation is not a basis for its extension.
Regardless of the essential characteristics of the contract (fixed-term or open-ended), the basic dismissal procedures remain unchanged. The main question at the same time, which worries temporary employees: is it possible to quit without any working off or do you still need to go to work for the prescribed 2 weeks?
It is necessary to comply with the general rules of dismissal:
- timely apply for resignation
- indicate the reason for dismissal - your own desire
- do not go to work as soon as the expiration date
IMPORTANT: if an employee entered the service after the expiration of the working period, then it is automatically considered that he changed his mind about leaving.
Working time for different categories of employees
The countdown of the working time begins from the date of filing the application for dismissal. It is enough to warn the management of your intention to start counting the days. If the general rules apply to the procedure, then you should work exactly 2 weeks before dismissal.
There are also exceptions to the standard conditions, when an employee may not be worked out at all or quit 3 days after submitting his application in the prescribed manner. Preferential working rules apply, for example, to the dismissal of an intern at his own request.
Exceptions to the standard rules for working off before dismissal apply to the following categories of employees:
- seasonal hired employees – contract term up to 2 months
- temporary employees of the enterprise for 1-2 months
- all employees on probation
- athletes and coaches with contracts up to 4 months
More information about the features of working out different categories of employees can be found in the following regulations:
- articles 292 and 296 of the Labor Code of the Russian Federation for seasonal workers and temporary employees
- articles 291 and 295 of the code indicate the period of vacation for temporary workers
- according to part 4 of article 71 of the Labor Code of the Russian Federation 3 days for those who are on probation
- Art. 280 and 348.12 of the code - a month of working out for coaches and athletes
- Part 3 Art. 80 allows you to quit immediately for a good reason
Specific terms of working out for different categories of employees
The dismissal of a temporary worker does not cause difficulties, since everything is spelled out in labor legislation. If temporary workers and / or seasonal workers were employed in the company for a period of less than 2 months, their working off upon dismissal is 3 days. Vacation compensation should be included in the calculation before dismissal for such categories of employees. Vacation due is equal to 2 calendar days for each full month of work.
For all employees who are still subject to probationary procedures, the working rule is relevant - 3 days after the date of the application for dismissal of their own free will. If, for example, we are talking about coaches and athletes whose contract is temporary and does not exceed 4 months, then they are required to work for 1 month if they want to quit of their own free will.
There are situations when an employee can leave immediately the day after the application is submitted or even write it backdated. This applies to the following events:
- dismissal due to retirement
- termination of the contract due to conscription
- filing a disciplinary complaint
- admission to university with dismissal
- violations by the employer
- mutual consent to dismissal
Rules for dismissal without working out on sick leave
Special rules govern the dismissal of a temporary worker of their own free will when health problems are added to the desire to quit. Of course, in such conditions, no one can force a person to work, even if he is subject to the rules of two weeks of work after submitting an application.
IMPORTANT: an employee can quit during the period of his illness, but the employer at this time cannot dismiss him on his own initiative.
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