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 term? employment contract?
The company is not required to transfer the employee permanently, but if both parties agree, it can be done. Please note that when permanent translation 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 in this moment all jobs are 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 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. 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 during the validity period fixed-term contract should the woman be 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. 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 work book and employee 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 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 Labor Code of the Russian Federation). Labor Code proposes to set the 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.
Dismissal procedure at will The process of terminating a fixed-term contract if its term has come to an end usually does not raise any questions. However, what to do if, having a fixed-term contract in hand, the employee decided to resign of his own free 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. The first stage Submitting an application starts the entire process. You must inform the employer of your intention in writing, and it does not matter whether the statement is prepared manually or by printing. The main points of the statement are:
- Please resign on your own initiative.
- date last day work.
- Signature.
The second stage The work-out stage implies advance warning of departure and may include days of sick leave or vacation.
Dismissal of an intern at his own request
Exceptions to the standard rules for working before dismissal apply to the following categories of employees:
- seasonal employees – contract period up to 2 months
- temporary company employees for 1-2 months
- all employees are on probation
- athletes and coaches with contracts up to 4 months
You can read more about the specifics of working for different categories of hired employees 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 vacation period 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 work for coaches and athletes
- Part 3 Art.
Everything about dismissal under a fixed-term employment contract at your own request
Dismissal during probationary period Working period for different categories of employees The working period begins from the date of submission of the application for dismissal. It is enough to warn management about your intention to start counting down 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 work at all or may quit 3 days after submitting his application in the prescribed manner. Preferential terms of service 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 days in advance. calendar days. 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.
Attention
But a temporary worker has the right to terminate a fixed-term employment contract. 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.
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, 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.
Check employee salaries with the new minimum wage. From 05/01/2018, the federal minimum wage will be 11,163 rubles, which is 1,674 rubles more than now. This means that employers who pay their employees at the minimum wage must raise their wages 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. contain information about all employees. This means transferring a copy of such a report to one employee means disclosing the personal data of other employees.< …
Dismissal of a temporary worker
Important
According to the provisions of Article 80 of the Labor Code of the Russian Federation, an enterprise or entrepreneur for whom an employee performs labor functions, must be dismissed at his request on the date indicated in the application, taking into account the two-week period. This period was 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 for searching for a highly qualified professional. If the employee is not permanent, but performs work under a temporary employment contract, or works on seasonal work, 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.
Dismissal of a temporary worker at his own request
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:
- 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 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.
Dismissal of a temporary employee at his own request
According to 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 this in several cases: bankruptcy and liquidation or reorganization of an enterprise, change staffing table, reduction.
Info
Firstly, because it confirms the existence of the employee’s will to resign 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 pick up his documents and payment. If an employee is unable to work for another fourteen days, after submitting a resignation letter, due to valid reasons, 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 resignation letter of his own free will, the employee must attach necessary documents, which will confirm his inability to work out the allotted time.
In order for the dismissal of an employee due to the main employee returning from maternity leave to be successful, you need to know about all the intricacies of this procedure. After all, termination labor relations with any employee must be carried out according to the law.
general information
Labor legislation allows temporary employees to be hired for periods 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 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 return to work. After all, a woman can extend her maternity leave. Therefore, it is better to indicate that the contract will be terminated after the main employee returns from maternity leave.
Based on Article 79 of the Labor Code of the Russian Federation, the basis for termination of a fixed-term contract is the return to work of the main subordinate. You should know that the employee is not obliged to warn her employer in advance about leaving maternity leave. For his part, the boss is also not obliged to notify the temporary subordinate of his dismissal in advance. This does not violate the person's rights, since he is aware of the temporary nature of his work.
Dismissal procedure
The dismissal of a temporary employee occurs 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 return, since certain deadlines No.
- The employer is obliged to issue an order for the employee to leave.
- The temporary subordinate is informed of the dismissal.
- The procedure for terminating the contract is being completed.
- The fired 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 needs to return from vacation earlier, then a statement is written. According to the rules, it must contain:
- a request to terminate the maternity leave;
- desire to begin performing professional duties;
- date of return to your position.
The form of the application is not established by law, so it must be submitted in simple written form. The main thing is to adhere to the basic rules for drawing up 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, which will be attached to the main employment contract. The document must contain:
- duration of work per week;
- the number of hours the woman will work daily;
- the amount of income for a shortened day.
For a woman who returned to work ahead of schedule, different working conditions apply. For example, it cannot be sent to business trips, forcing people to work overtime, etc. And so that the employer cannot violate the requirements of the law, the employee must know her rights.
Help: 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.
When dismissing a person replacing her, the manager must formalize all orders. First, an order is drawn up for the early return of the employee. The document contains:
- information about the employee’s resignation;
- return date;
- additional information about the operating mode;
- separate instructions from the accounting department.
An order to dismiss an employee is drawn up in the T-8 form established by law, if the enterprise does not have its own special form. After that personnel worker enters data into personal card person and his work record. Most often they indicate that the dismissal was carried out due to the termination of the term of employment. labor agreement.
Calculation
Dismissal in connection with the return to work of a “maternity leaver” is carried out quite simply. The last step is issuing the necessary Money and documents. Therefore, all calculations must be made before a person leaves. The employee has the right to receive:
- wages;
- vacation compensation;
- payment of sick leave;
- all necessary bonuses 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 legislation. Moreover, if this does happen, the employee has the right to complain about the boss to the labor inspectorate or the prosecutor's office.
Refusal to return to work
Several years is a long enough period for serious changes to occur at an enterprise. Therefore, women are often faced with the fact that when they return from maternity leave, they are denied a continuation of their employment relationship. And all employers know that this is a gross violation of the law, however, they demand that young mothers vacate their positions.
What can be done in this case? If necessary, you can compete for your place. To do this, you need to write a corresponding complaint to the labor inspectorate or other regulatory authorities. Some female employees prefer to quit because their boss will still not allow them to carry out their official duties. Experts recommend leaving not of your own free will, but to enter into an agreement. Then there is an opportunity to receive a good severance pay.
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:
- 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.
- 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.
- 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.
- 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.
Regardless of the essential characteristics of the contract (fixed-term or indefinite), the basic dismissal procedures remain the same. The main question that worries temporary employees is: is it possible to quit without any work or do you still need to go to work for the required 2 weeks?
It is necessary to comply with the general rules of dismissal:
- submit your resignation letter in a timely manner
- indicate the reason for dismissal - your own desire
- do not go to work as soon as your work period expires
IMPORTANT: if an employee returns to work after the expiration of the service period, it is automatically considered that he has changed his mind about quitting.
Working period for different categories of employees
The countdown of working hours begins from the date of submission of the application for dismissal. It is enough to warn management about your intention to start counting down 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 work at all or may quit 3 days after submitting his application in the prescribed manner. Preferential terms of service apply, for example, to the dismissal of an intern at his own request.
Exceptions to the standard rules for working before dismissal apply to the following categories of employees:
- seasonal employees – contract period up to 2 months
- temporary company employees for 1-2 months
- all employees are on probation
- athletes and coaches with contracts up to 4 months
You can read more about the specifics of working for different categories of hired employees 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 vacation period 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 work for coaches and athletes
- Part 3 Art. 80 allows you to quit immediately for good reason
Specific terms of service for different categories of employees
Dismissing a temporary worker does not cause difficulties, since everything is prescribed in labor legislation. If temporary workers and/or seasonal workers were employed by the company for a period of less than 2 months, their work upon dismissal is 3 days. Vacation compensation must be included in the calculation before dismissal for these categories of employees. The vacation due is equal to 2 calendar days for each full working month.
For all employees who are still subject to probationary period procedures, the working rule is valid - 3 days after the date of application for voluntary resignation. If, for example, we're talking about 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 resign of their own free will.
There are situations when an employee can leave immediately the next day after submitting an application or even write it retroactively. This applies to the following events:
- dismissal due to retirement
- termination of contract due to military conscription
- filing an application in connection with a disciplinary offense
- admission to university with dismissal
- violations by the employer
- mutual agreement to dismissal without work
Rules for dismissal without working on sick leave
Special rules govern the dismissal of a temporary worker at his own request 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 resign during a period of illness, but the employer at this time cannot fire him on his own initiative.
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