Is it possible to terminate a fixed-term employment contract early? Notice of termination of a fixed-term employment contract. Sample

In accordance with Part 1 of Art. 79 of the Labor Code of the Russian Federation, a fixed-term employment contract is terminated upon expiration of its validity period. 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. +

The grounds for termination of an employment contract, as a general rule, are the same for employment contracts concluded for an indefinite period and for fixed-term employment contracts. The latter in this sense differ only in that they can be terminated due to the expiration of their validity period, which is, in principle, impossible for employment contracts concluded for an indefinite period. The expiration of the employment contract (clause 2, part 1, article 77, article 79 of the Labor Code of the Russian Federation) is highlighted by the Labor Code of the Russian Federation as a basis for terminating a fixed-term employment contract. +

This allows the employer to dismiss the employee in compliance with the rules of Art. 79 of the Labor Code of the Russian Federation on the day when the employment contract expires, without additional grounds. An employer who intends to terminate an employment contract on this basis must notify the employee in writing no later than three calendar days before dismissal that the employment contract will be terminated due to its expiration. Then, in the usual manner, an order is issued to terminate the employment contract with the employee, the corresponding entry is made in the work book, and other actions provided for by law are carried out related to the registration of termination of employment relations (Article 84.1 of the Labor Code of the Russian Federation). +

Another option is also possible. If neither the employer nor the employee demanded termination of the fixed-term employment contract due to the expiration of its term, and the employee continues to work after the expiration of the employment contract, then the employment contract is considered concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation). In this case, the labor relations of the parties actually continue and the grounds for termination of the employment contract provided for in the article in question disappear. If the parties subsequently express their intention to terminate the employment relationship, the employment contract may be terminated on the appropriate general basis provided for by the Labor Code of the Russian Federation. +

It should be noted that termination of a fixed-term employment contract due to the expiration of its validity period is not possible automatically, but only in cases where at least one of the parties expresses their will in this regard. In other words, in such cases there must be the initiative of the employee or the employer or the initiative of both parties. However, the expiration of the employment contract is an independent basis for termination of the employment contract. Therefore, the rules for terminating an employment contract at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation) and at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation) do not apply to this case. +

The Resolution of the Plenum of the Supreme Court of the Russian Federation states that if an employee with whom a fixed-term employment contract was concluded was illegally dismissed from work before the expiration of the contract, then the court reinstates the employee to his previous job, and, if at the time the dispute is considered by the court, the term of the employment contract has already expired - recognizes the dismissal as illegal, changes the date of dismissal and the wording of the grounds for dismissal to dismissal upon expiration of the employment contract.

Legal norms established in Part 2 - 4 Art. 79 of the Labor Code of the Russian Federation, clarify the moment of expiration of employment contracts concluded for the duration of a specific job, for the duration of the duties of a temporarily absent employee, as well as for the duration of seasonal work. The types of fixed-term employment contracts indicated here are subject to the general rules on termination of an employment contract due to the expiration of its validity period, established in Part 1 of Art. 79 of the Labor Code of the Russian Federation: +

• An employment contract concluded for the duration of a specific work is terminated upon completion of this work.
• An employment contract concluded for the duration of the duties of an absent employee is terminated when this employee returns to work.
• An employment contract concluded to perform seasonal work during a certain period (season) is terminated at the end of this period (season).

An employment contract is the main document that regulates the relationship between employer and employee. It specifies absolutely all the working conditions of the new employee: time and place of work, responsibilities, duration of work, wages and much more. An employment contract is a mandatory document for official employment according to the Labor Code of the Russian Federation.

Since the employment contract is the main document, most disputes are related to its formulation and implementation. And one of the most important and pressing disputes is the early termination of an employment contract. Sometimes this process goes smoothly, sometimes it develops into a serious conflict that ends up in court. In this article we will tell you everything you need to know about termination of an employment contract either by an employee or at the initiative of the employer. We will also separately consider the termination of a fixed-term employment contract at the initiative of the employer.

The first thing to understand when considering termination of an employment contract is that there is a strictly established procedure for its termination, any violation of which, in fact, is a violation of the Labor Code of the Russian Federation. All legal ways to terminate an employment contract can be divided into 4 categories:

Termination of an employment contract by mutual consent of the parties

Perhaps the easiest, fastest and most comfortable way. Unfortunately, they rarely use it. It implies a simplified procedure for terminating labor simplifications, in which issues of work, payments, compensation and other things are resolved between the employee and the employer on a voluntary basis. Most often, this occurs if an employee retires, is unable to work due to deteriorating health, or is disabled. The process itself is a process of terminating the contract on the initiative of the employee, but devoid of most of its legal features.

Termination of an employment contract at the request of the employee

One of the ways to terminate cooperation is at the request of the employee. It is quite simple, it will not be difficult to arrange. The process of terminating an employment contract is as follows:

1. The employee submits a written statement that he stops working;
2. The employee works for two weeks (this is provided for by the Labor Code of the Russian Federation, but in general)
3. , your documents, compensation and others. This is where his work stops.

Pay attention to the clause on working off - if the employee does not come to work, then the employer has every right to deprive him of wages for this period, as well as some additional bonuses and payments (except for those that were due to him during the time before submitting the application)

Termination of an employment contract at the initiative of the employer

Most often, employees have disputes with their employers precisely when it is the employer who breaks the contract. It should be clearly understood that there is a whole list of conditions that allows the employer to terminate the employment contract on his own initiative. Here is the list:

• or has ceased to operate;
• Happened ;
• The employee was hired for a job that he could not perform due to - ;
• The employee did not fulfill his direct duties without any compelling reason that exempted him from liability;
• The employee grossly violated labor etiquette, working conditions, and safety precautions;
• Theft by an employee of the employer's property;
• An employee revealed corporate secrets;
• An employee made a serious mistake when working with the organization’s finances;
• The employee provided the employer with false documents;
• An employee holding a leadership position committed a gross violation of the Labor Code of the Russian Federation, accepted a violation that resulted in harm to the organization as a whole;

As you can see, the list is quite extensive, but the cases described in it can hardly be called universal. So if you are faced with other reasons for dismissal that are not included in these categories, then know -.

However, let us return to the description of the contract termination process itself. It goes quite simply - the employer is obliged to warn the employee that his contract will be terminated early. In this case, the employer himself will be obliged to explain to the employee the reason for termination of cooperation, otherwise the dismissal will be recognized.

After receiving the notification, the employee is obliged to contact the employer (if he has questions, claims or any complaints), complete the specified period, and receive his documents, wages and due compensation on the last working day.

It is at the last stage that they most often arise - it most often either or withholds compensation. Legally, he can do this only in one case - if he has documentary evidence that at the moment there is simply no money to issue. In this case, you will receive them as soon as possible along with compensation.

Termination of an employment contract due to circumstances

This method of terminating a contract is quite rare. It is used in cases where an employee for some reason can no longer cooperate with the employer. The most striking examples:

• Dismissal due to health reasons and the employee becoming disabled;
• Recognition of the employee as incompetent;
• An employee serving a sentence in a correctional institution for a crime committed;
• Death of an employee;
• Forced relocation of an employee.

As a rule, in most cases, the employee cannot even submit an application himself, so the dismissal procedure is often carried out by the employer. However, even in this case, he will be obliged to return all papers and pay all compensation.

Features of termination

A fixed-term employment contract is a type of employment contract that is concluded either for a strictly defined period or for an unspecified period not exceeding five years. Most often, a fixed-term employment contract is resorted to if it is necessary to carry out some planned work. At the same time, it is possible to conclude a fixed-term contract only if it is impossible to conclude a regular employment contract. At the same time, both conclusions have their own characteristics. Let's consider the grounds for its termination.

What grounds can serve as a reason for termination?

• The permanent temporary employee has officially returned to work;
• The jobs for which the temporary employee was hired were accepted by the employer;
• The season for which the employee was hired under an employment contract has come to an end;
• An employee who came to work from abroad was forced to return home due to circumstances;
• The organization for which the temporary employee performed work has completed any planned work and does not intend to hire an employee for further cooperation;
• For any other reason that a regular employee might resign or be terminated.

As you can see, there are quite a lot of reasons, and not all of them are related to the initiative of the employer or employee. Often, the process of terminating a fixed-term employment contract is “automatic”. However, in some cases it takes place ahead of schedule at the request of one of the parties.

Please note that even if the term of employment comes to an end without any problems, the employer is still required to notify the temporary employee in writing that his time of employment is coming to an end.

Early termination of a fixed-term employment contract

In fact, there is not much difference between the termination of a fixed-term employment contract and a regular one. If an employee wants to be the initiator, then the process is completely similar to the standard scheme - the employee writes an application, the employer accepts it, the employee works for two weeks. Moreover, these:

• The employee does not have the physical ability to work these 14 days;
• The employee has a valid reason for stopping work (for example, for health reasons);
• Both the employee and the employer agreed that work would not be carried out for two weeks.

When terminating an employment contract at the initiative of the employer, there are also no significant changes - the employee will have to receive advance notice that his services are no longer needed. At the same time, the dismissal itself in this way must be carried out completely according to the law - the employer must have a good reason provided for by the Labor Code of the Russian Federation, and the employee himself must receive all the documents, calculations and payments due to him. In the event of a breach, the employee may or - the fact that his contract was only temporary will not matter.

Thus, it is worth understanding the clear line between the termination of the contract and its termination at the initiative of the employer. Upon termination, an employee can only ask for an extension of his contract, nothing more. He will be able to complain about the termination of the contract due to the term only if any accompanying violation has occurred, for example, to him or compensation.

When applying for a job, hired personnel are increasingly offered the possibility of concluding fixed-term employment contracts. Undoubtedly, this is a convenient and profitable form of labor relations for the employer. But what pitfalls are hidden behind this? In this article we will tell you about the termination of a fixed-term employment contract and give examples depending on different situations.

Distinctive features of a fixed-term employment contract

The duration of a fixed-term employment contract cannot exceed 5 years. More often, employers prefer to conclude it for a year. Sometimes staff are hired to perform seasonal work, then the period can be a month, a quarter, or six months. The employer was obliged to explain why a specific period is indicated in the contract, based on real legal norms.

The order must also refer to the reason for drawing up the fixed-term contract. After its expiration, there are few reasons for extension in the legislative framework (pregnant women and employees of the scientific and teaching field have the right to this). Read also the article: → “”. But if the parties continue to cooperate, then the main agreement can be concluded.

The procedure for terminating employment relations at the initiative of the manager

The grounds for such actions are stated in Article 81 of the Labor Code:

1. The company ceases its activities.
2. Staff reductions are underway.
3. The employee cannot fully perform job duties due to low qualifications, which is confirmed by the passed certification.
4. Periodic tardiness and absenteeism.
5. Dissemination of trade secrets.
6. Change of leader.
7. The decisions made by the employee harmed the organization.

The contract may specify additional reasons why it is possible to terminate the employment relationship.

When the employer is the initiator in this matter, it is not enough to simply refer to one of the points; the basis must be documented. For example, when the reason is constant lateness, the form of evidence is a memo or an explanatory note from an employee.

Actions upon expiration of the contract

The procedure for terminating the employment relationship upon expiration is indicated in the table:

The notice must be prepared in two copies, one for each party. It is mandatory to deliver this document in writing at least 3 days before the specified date. If an employee is sick, this cannot be a reason for deferment. It is also necessary to notify him of this 3 days in advance and dismiss him within the period specified in the contract, while making all required sick leave payments.

It is necessary to notify the employee 3 days in advance of the end of the contract.

An example of an excerpt from judicial practice on termination of an employment contract during an employee’s illness

A hearing was held in the Kemerovo court on the complaint received from S.Yu. Lomonosov. a complaint against a government agency where his son was an employee. Son Sergei, who was not yet 18 years old, worked as an instructor under a fixed-term employment contract.

Due to a sprained ligament, he was hospitalized. When he went back to work, Sergei was faced with the fact of his dismissal retroactively, due to the expiration of the period that had occurred while he was in a medical institution. The father of the young instructor presented the following claims to the training application:

1. Since he is the guardian of the minor son, he should have been given a notice of termination of the contract, and Lomonosov S.Yu. didn't receive it.
2. The educational institution kept silent about the additional agreement concluded to extend the son’s working life and concealed its existence.

Based on this, an application was filed in court. Lomonosov S.Yu. demanded that his son be reinstated, that material and moral damages be paid, and that the director be brought to justice. Having considered the complaint, the court did not satisfy it and recognized the director’s actions as legal and justified.

Due to the fact that the term of the employment contract fell precisely during the period the guy was in the hospital, the notification was sent by mail, for which there is relevant evidence, and the additional agreement was only in the draft, but not signed by the parties.

Termination of the agreement when working part-time

When terminating an employment contract with such personnel, the employer must take into account all the nuances so as not to make mistakes and act strictly within the framework of the labor code. An employment contract with a part-time worker can be terminated both for general reasons as regular contracts, and for additional ones:

1. If an employee is hired to replace an employee, for whom this position will become the main place of work, then the director has the right to dismiss the “part-time employee.” For this procedure to be legal, it is necessary to notify him of this two weeks before the planned date of termination of the agreement.
2. When a person is transferred from a part-time position to the main job, the contract ceases to be relevant and ceases to be valid. At the same time, personnel services often make serious mistakes: they do not terminate the old contract, do not draw up a new one, but simply issue a transfer order. But do not forget that the main job and part-time work are regulated by different legislative norms and one cannot be a continuation of the other.

The above-mentioned additional grounds for termination of the contract apply to those concluded for an indefinite period. If a fixed-term employment agreement is drawn up, then it is governed by basic norms and the termination of relations with such an employee occurs on a general basis (in accordance with Article 77 of the Labor Code), which was described at the beginning of the article. Additional reasons for termination cannot be applied to it.

When moving from a part-time job to your main job, it is not enough to create an order; these are two completely different types of contracts.

Is it possible to quit on weekends?

When concluding a fixed-term employment contract, it is not always possible to predict whether the last day will be a holiday or just a day off for the employee. The Labor Code provides several options for resolving the current situation. After all, the main thing is not to infringe on the rights of the employee.

1. The date can be moved to the first working day following the weekend.
2. Also, the contract can be executed on a date earlier than specified in the contract, but only if both parties agree.
3. The end of the employment relationship may be considered the last day of actual fulfillment of labor obligations.

The dismissal procedure should take place in the following sequence:

• The employer provides notice 3 days before the end of the period;
• Drawing up an order. It must indicate: date, number of the employment contract, documents on the basis of which the agreement is terminated (delivered notice), grounds.
• Entry into the work book and payment of wages is carried out on the last working day.

When the end date of the contract falls on a weekend, it is possible to pay off the employee on the last working day, with the consent of both parties.

Expiration of term during pregnancy of an employee

If before the end of the contract it turns out that the employee is “in a position”, the employer does not have the right to terminate the employment contract with her, even if its term ends. This can be done:

• on the day of the end of pregnancy and childbirth;
• if the employee is not granted leave, then within 7 calendar days after the employer becomes aware of the termination of pregnancy;

In the case where an employee was hired to temporarily perform the job duties of another employee, after the main employee leaves, the manager has the right to fire even a pregnant woman. However, if there is a vacancy in the organization, the manager is obliged to offer it, at least before the onset of childbirth.

The employer is obliged to make payments and extend the contract until the end of maternity leave.

Early termination with certain categories of employees

Concluding a fixed-term employment agreement with foreign citizens is prohibited by law. They can only be issued for an indefinite period, which is determined taking into account the expiration of the visa period. There are other categories of hired persons:

Rating of 5 popular questions about a fixed-term employment contract

Question No. 1. What to do if the contract does not have an end date?

Question No. 2. Does an employer have the right to enter into multiple short-term contracts with one employee?

No. Examples of practice show that in this case the contract can be recognized as the main one.

Question #3 Is an employee working under a fixed-term contract entitled to annual paid leave and compensation upon dismissal?

Yes, the employer is obliged to provide leave and make all payments due.

Question No. 4. If an employee recently got a job, can he be denied sick leave benefits?

Benefits must be paid, only their calculation will be based on the average salary from the date of conclusion of the contract.

Question #5 Is it beneficial for an employee to sign a fixed-term employment contract?

No. When drawing up this document, only the employer benefits.

Typical mistakes when drawing up and terminating a fixed-term contract

1. The contract, which is drawn up for the period of replacement of the main employee, includes an end date. This violates the law, since the end of the employment agreement occurs automatically on the day the employee leaves.
2. Often, employers violate the procedure for terminating a fixed-term contract (they do not notify the employee 3 working days in advance about the expiration of the term, they do not provide an order for review).
3. Dismissal of a pregnant woman. In this case, it is necessary to extend the term of the contract for the entire period of bearing the child.

The Ore Code of the Russian Federation allows the parties to limit the term of the employment contract in certain cases. But its end does not always mean the termination of the employment relationship. Sometimes an employee continues to work after the expiration of the employment contract, without either party demanding its termination. Or the employer extends the project that the subordinate is leading. And these are legal grounds under which a fixed-term employment contract will not be terminated on its expiration date. Let’s figure out what requirements in most cases are typical for disputes with this category of workers. Let's consider how to resolve a conflict if a subordinate disputes the very possibility of concluding a fixed-term employment contract with him.

An employment contract can be concluded by the parties either for an indefinite or a definite period of no more than five years, unless a different period of time is regulated by the Labor Code of the Russian Federation and other federal laws (Clause 1, 2, Part 1, Article 58 of the Labor Code of the Russian Federation). A fixed-term employment contract is concluded when the employment relationship cannot be established for an indefinite period, taking into account the nature of the upcoming work or the conditions for its implementation (Part 2 of Article 58 of the Labor Code of the Russian Federation). Namely:

• for the duration of the performance of the duties of an absent employee, who, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract, retains his place of work;
• for the duration of temporary (up to two months) work;
• to perform seasonal work, when, due to natural conditions, labor functions can only be performed during a certain period (season);
• with persons sent to work abroad;
• to carry out work that goes beyond the normal activities of the organization (reconstruction, installation, commissioning and other work), as well as work related to a deliberately temporary (up to one year) expansion of production or the volume of services provided;
• with persons entering work in organizations created for a predetermined period or to perform a predetermined job;
• with persons hired to perform obviously defined work in cases where its completion cannot be determined by a specific date;
• to perform work directly related to practice, vocational training or additional professional education in the form of an internship;
• in cases of election for a certain period to an elected body or to an elective position for paid work, as well as employment related to the direct support of the activities of members of elected bodies or officials in state authorities and local self-government bodies, in political parties and other public associations;
• with persons sent by employment services to temporary work and public works;
• with citizens sent to perform alternative civil service;
• in other cases provided for by the Labor Code of the Russian Federation or other federal laws (Part 1 of Article 59 of the Labor Code of the Russian Federation).

Also, a fixed-term employment contract can be concluded by agreement of the parties without taking into account the nature of the work ahead and the conditions for its implementation(Part 2 of Article 58 of the Labor Code of the Russian Federation):

• with persons entering work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the field of retail trade and consumer services - 20 people);
• with age pensioners entering work, as well as with persons who, for health reasons, in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, are allowed to work exclusively of a temporary nature;
• with persons entering work in organizations located in the Far North and equivalent areas, if this is associated with moving to the place of work;
• to carry out urgent work to prevent disasters, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;
• with persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms;
• with creative workers of the media, cinematography organizations, theaters, theatrical and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these workers, approved by the Government of the Russian Federation taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations;
• with managers, deputy managers and chief accountants of organizations, regardless of their legal forms and forms of ownership;
• with persons receiving full-time education;
• with crew members of sea vessels, inland navigation vessels and mixed (river-sea) navigation vessels registered in the Russian International Register of Ships;
• with persons applying for part-time work;
• in other cases provided for by the Labor Code of the Russian Federation or other federal laws (Part 2 of Article 59 of the Labor Code of the Russian Federation).

As a general rule, if the employment contract does not stipulate its validity period, then it is considered concluded for an indefinite period (Part 3 of Article 58 of the Labor Code of the Russian Federation). If an employee continues to work after the expiration of the employment contract, and neither party has demanded its termination, the condition on the urgent nature of the employment contract loses force, and it is considered concluded for an indefinite period (Part 4 of Article 58 of the Labor Code of the Russian Federation).

It is important to remember that the law prohibits concluding a fixed-term employment contract in order to evade the provision of rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period (Part 6 of Article 58 of the Labor Code of the Russian Federation). If the court finds that an employee has been performing the same job function for a long time, the work was of a permanent nature, but the parties from time to time re-signed employment contracts for a short period, such relationships may be recognized as long-term, and the employment contract concluded for an indefinite period.

Procedure for terminating a fixed-term employment contract enshrined in Art. 79 Labor Code of the Russian Federation:

1. the employment contract is terminated upon expiration of its validity period. The employer must warn the subordinate about the upcoming dismissal in writing at least three calendar days before the termination of the employment relationship. An exception is the situation when a fixed-term employment contract concluded for the duration of the duties of an absent employee expires (Part 1 of Article 79 of the Labor Code of the Russian Federation);
2. an employment contract concluded for the duration of certain work is terminated upon completion of this work (Part 2 of Article 79 of the Labor Code of the Russian Federation);
3. an employment contract concluded for the duration of the duties of an absent employee is terminated when this employee returns to work (Part 3 of Article 79 of the Labor Code of the Russian Federation);
4. an employment contract concluded to perform seasonal work during a certain period (season) is terminated at the end of this period/season (Part 4 of Article 79 of the Labor Code of the Russian Federation).

At first glance, it seems that the arguments for challenging dismissals under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation does not exist, but everything is not so simple. Judicial practice confirms that such grounds as the expiration of an employment contract quite often become the cause of conflicts.

Let's consider the most typical controversial situations and their consequences for the employer.

An attempt to recognize a fixed-term contract as concluded for an indefinite period

The most common arguments of employees when appealing dismissal under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation are attempts to recognize a fixed-term employment contract as concluded for an indefinite period. And often such actions have no basis, but are only a way for the employee to declare a violation of his rights.

Arbitrage practice

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The employee went to court to have his dismissal recognized under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation is illegal. He believed that the employment contract signed with him should be considered concluded for an indefinite period. The court rejected him, since it was reliably established that the employee’s employment relationship with the defendant was of an urgent nature during the performance of the duties of an absent specialist who returned to his permanent workplace (appeal ruling of the Krasnoyarsk Regional Court dated November 16, 2016 in case No. 33-15490/2016) .

The employee was hired for the duration of the project, then fired under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation in connection with the expiration of the employment contract. The court recognized the termination of the employment relationship as legal, since she did not provide adequate and sufficient evidence indicating that the plaintiff was forced to enter into a fixed-term employment contract. The woman signed the contract without any comments or objections, including regarding the term of its conclusion. At the same time, the employer complied with the order and procedure for dismissal (appeal ruling of the Moscow City Court dated October 26, 2016 No. 33-42001/2016). See also the appeal ruling of the Moscow City Court dated 09/02/2016 in case No. 33-28273/2016, the Moscow City Court ruling dated 08/22/2016 No. 4g/8-7164.

There are examples in which employees try to defend their innocence by any means, including referring to pressure, discrimination when concluding a fixed-term employment contract. But in the absence of any evidence, it will not be possible to defend this position. Let's consider this case.

Arbitrage practice

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A fixed-term employment contract was concluded between the employer and the employee, since the woman was an old-age pensioner. Upon expiration of its term, the employment relationship was terminated on the basis of clause 2, part 1, art. 77 Labor Code of the Russian Federation. The plaintiff did not agree with the dismissal and went to court. She indicated that she was forced against her will to sign a fixed-term employment contract. Also, when drawing up an employment contract for a certain period, in violation of the requirements of Art. 3 of the Labor Code of the Russian Federation, the plaintiff was subjected to discrimination by the defendant in the sphere of labor on the basis of age, which resulted in the refusal to conclude an employment contract with her for an indefinite period. The court did not agree with the employee and rejected her. Argumentation - the disputed employment contract indicates the duration of its validity and sets out the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract. The employment contract on the terms and conditions set out in it was signed by the plaintiff; she did not provide evidence of being forced to sign it. In addition, the employee signed that she had read the employment order, which also indicated the urgent nature of the employment relationship (appeal ruling of the Novosibirsk Regional Court dated October 27, 2016 in case No. 33-10559/2016).

Sometimes subordinates try to use mistakes the employer made when preparing any documents to establish an indefinite duration of the employment relationship. But if such shortcomings do not violate the procedure for terminating an employment contract, the court will most likely not cancel the dismissal.

Arbitrage practice

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The plaintiff was hired during the absence of the main employee, who was on sick leave. After the release of the latter, the woman was fired under clause 2 of part 1 of Art. 77 Labor Code of the Russian Federation. The court recognized the order to terminate the employment relationship as legal, since it clearly follows from the employment contract that it was concluded for a certain period. The court rejected the plaintiff’s argument that the hiring order and the dismissal order, as well as the certificates of incapacity for work, indicated different patronymics of the main employee, since a technical typo in the text of the documents does not refute the fact that the specialist, during whose absence the plaintiff, went to work was hired (appeal ruling of the Moscow City Court dated October 24, 2016 in case No. 33-38246/2016).

Taking the side of the companies, the judicial authorities note: the expiration of a fixed-term employment contract is an objective event, the occurrence of which does not depend on the will of the employer, and therefore the dismissal of an employee on this basis is classified as a general basis for termination of an employment contract. An employee, giving consent to conclude an employment contract in cases provided for by law for a certain period, knows about its termination after the expiration of a pre-agreed period or in connection with the occurrence of a specific event with which its termination is associated.

An interesting case is in which an employee applied to the employer for a long leave, and also asked to extend the employment contract for the period of annual paid leave and count the date of her dismissal after returning from leave to work. At the same time, she was entitled to a long vacation by law. However, the employer refused her request and fired her under clause 2, part 1, art. 77 Labor Code of the Russian Federation. Let's see how the court resolved this situation.

Arbitrage practice

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During the consideration of the case, it turned out that the plaintiff did not provide the employer with the necessary documents to grant her leave before the expiration of the employment contract. The court also found that upon dismissal, a final settlement was made to the employee, including payment of compensation for unused vacation; no evidence of violation of the plaintiff’s rights related to the dismissal and payment of compensation for unused vacation was presented. Termination of the employment contract under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation is legal (appeal ruling of the Moscow City Court dated October 10, 2016 in case No. 33-37880/2016).

And if an employee provides the employer with all the necessary documents for vacation, should the employer extend the contract? Right, but not obligated. According to Part 3 of Art. 127 of the Labor Code of the Russian Federation, upon dismissal due to the expiration of the employment contract, leave with subsequent dismissal Maybe be provided 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.

Arbitrage practice

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As the Supreme Court of the Russian Federation noted, granting leave followed by dismissal upon a written application from an employee is a right, not an obligation of the employer and, therefore, to receive leave followed by dismissal, the unilateral expression of the will of a subordinate is not enough; the consent of the employer is also required (decision of the Supreme Court of the Russian Federation dated April 22, 2009 No. GKPI09-82).

Thus, if the manager decides to accommodate the employee and grant him a vacation, the term of the employment contract is automatically extended, but only for the duration of the vacation. In this case, the contract does not become concluded for an indefinite period. Also, we must not forget about the requirements of Art. 84.1 and 127 of the Labor Code of the Russian Federation: on the last working day, make a settlement with the subordinate and issue a work book in which the last day of vacation will be indicated as the day of dismissal.

However, employees will not be able to take advantage of the fact that the employment contract was extended during the vacation to recognize it as concluded for an indefinite period. The fact is that the contract is extended on the basis of the law, and not because the employee continues to work after its expiration and neither party requested termination.

There are also situations in which employees rightfully insist on recognition of the termination of employment relations under clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation is illegal. For example, if initially there were no grounds for concluding a fixed-term employment contract.

As previously noted, an employment contract can be fixed-term only under certain circumstances (Part 1 of Article 59 of the Labor Code of the Russian Federation). A fixed-term employment contract can be concluded without taking into account the nature of the work to be performed and the conditions for its implementation. It is necessary to keep in mind that such an agreement can be recognized as legal if there was an agreement between the parties (Part 2 of Article 59 of the Labor Code of the Russian Federation), that is, if it was concluded on the basis of the voluntary consent of the employee and the employer. If the court, when resolving a dispute about the legality of concluding a fixed-term employment contract, establishes that it was signed by the employee involuntarily, the court will apply the rules of the contract concluded for an indefinite period (clause 13 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code Code of the Russian Federation”, hereinafter referred to as Resolution of the Plenum No. 2).

Thus, if at the conclusion of the employment contract there were no grounds for limiting its term, and there was no agreement of both parties, the court will take the employee’s side.

Arbitrage practice

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The plaintiff was dismissed on the basis of clause 2, part 1, art. 77 Labor Code of the Russian Federation. She did not agree with this and went to court, where she stated that the employer had no grounds for concluding a fixed-term employment contract with her, which was valid from November 1, 2013 to December 31, 2014. The defendant in court referred to the fact that his need for personnel is of a pronounced seasonal nature and from mid-November to early May there is a decline in demand for the company’s services. The court declared the dismissal illegal, since the specified period does not correspond to either seasonality or other circumstances that make work possible within a period exceeding 6 months, which indicates that there are no grounds for concluding a fixed-term employment contract due to the seasonality of the work performed. In addition, it does not follow from the text of the employment contract that it indicates the circumstances (reasons) on the basis of which a fixed-term employment contract was concluded with the plaintiff. This is a violation of the employee’s essential rights provided for in Art. 57 of the Labor Code of the Russian Federation (appeal ruling of the Moscow City Court dated February 16, 2016 in case No. 33-239/2016). See also the appeal rulings of the Moscow Regional Court dated August 24, 2016 in case No. 33-21146/2016, and the Krasnoyarsk Regional Court dated July 11, 2016 in case No. 33-9097.

Based on the norms of the current labor legislation (paragraph 4, part 2, article 57 of the Labor Code of the Russian Federation), as well as the examples given from judicial practice, the employer must indicate in the text of the employment contract the justification for the urgent nature of the relationship. Here are some examples of possible wording (Example 1).

Example 1

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Depending on the specific situation, the employer may use the following wording in the text of the employment contract:

• “this employment contract in accordance with Part 1 of Art. 59 of the Labor Code of the Russian Federation was concluded for a certain period - for the duration of the duties of Svetlana Petrovna Ivanova, who is absent due to being on leave to care for a child until he reaches the age of three years”;
• “this employment contract in accordance with Part 1 of Art. 59 of the Labor Code of the Russian Federation was concluded for a certain period - for the period of preparation for the submission of annual reports”;
• “this employment contract in accordance with Part 1 of Art. 59 of the Labor Code of the Russian Federation was concluded for a certain period due to the seasonality of work - forest planting";
• “this employment contract in accordance with Part 2 of Art. 59 of the Labor Code of the Russian Federation, by agreement of the parties, was concluded for a certain period - for the period of liquidation of the consequences of the accident at the power plant.”

At the same time, some court decisions indicate that if the circumstances (reasons) that served as the basis for concluding an employment contract for a certain period actually occurred, but there was no indication of them in the contract, then this cannot be the basis for recognizing fixed-term employment contracts concluded for an indefinite period.

Arbitrage practice

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A fixed-term employment contract was concluded with an old-age pensioner employee, which did not indicate the reasons why it was signed for a certain period. Then the plaintiff was dismissed on the basis of clause 2, part 1, art. 77 Labor Code of the Russian Federation. The court recognized the termination of the employment contract as lawful. Argumentation - since the parties reached an agreement on the urgency of the nature of the relationship when concluding an employment contract, the absence of an indication of the circumstances that led to its conclusion for a certain period is not an unconditional basis for reinstatement at work (appeal ruling of the Supreme Court of the Republic of Karelia dated 01.09.2015 in case No. 33-3390/2015).

Despite the presence of the specified judicial act, employers should comply with the requirements of the law and include all the necessary information in the text of the employment contract, including the circumstances (reasons) that served as the basis for its conclusion for a certain period. After all, for improper execution of an employment contract, the company may be brought to administrative liability (Part 4, Article 5.27 of the Code of Administrative Offenses of the Russian Federation). The absence of conditions that must be included in the employment contract refers precisely to improper execution of the employment contract.

Violation of the dismissal procedure due to the expiration of the employment contract

One typical situation is termination of the employment contract under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation, if the employer did not have grounds for this. This may include dismissing an employee without waiting for the expiration of the employment contract. Or the absent specialist has not yet returned to work, and the employee who replaced him has already been fired. Such actions by the company will lead to the reinstatement of the subordinate in his position. This is due to the fact that any violation of the norms established by law entails the recognition of termination of the employment contract as unlawful.

Arbitrage practice

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The plaintiff appealed to the court with a demand to declare her dismissal illegal under clause 2 of part 1 of Art. 77 Labor Code of the Russian Federation. The employment contract with her was concluded before the main employee, who was on maternity leave, returned to work. The court sided with the plaintiff, since it found that the absent employee did not request to be considered as having started work, in fact did not go to work and did not begin to perform her job duties. An order for the absent employee to return from maternity leave was not issued. Under such circumstances, the defendant did not have the right to terminate the employment relationship with the plaintiff under paragraph 2 of part 1 of Art. 77 Labor Code of the Russian Federation. The time sheet presented to the court does not confirm the employer’s argument that the main employee actually went to work, since the specified document contradicts the evidence available in the case file and the established circumstances, and was drawn up formally to create the appearance of legality of the plaintiff’s dismissal (appellate ruling of the Novosibirsk Regional Court dated August 25, 2016 in case No. 33-8531/2016).

And in another case with a similar subject of dispute, the court, on the contrary, recognized the dismissal as legal, since it was proven that the main employee returned to work, although he would work remotely.

Arbitrage practice

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The plaintiff was fired under clause 2, part 1, art. 77 Labor Code of the Russian Federation. He went to court to be reinstated, arguing that at the time of termination of the employment contract, the main employee, during whose absence the plaintiff worked for the employer, did not actually go to work. However, the defendant presented evidence that the employee wrote a letter of resignation from maternity leave, and an additional agreement was concluded with her, which established remote work for the woman. The departure of the main employee is confirmed by a timesheet and pay slip. The court indicated that the fixed-term employment contract concluded with the plaintiff was terminated if there were legal grounds, namely, in connection with the absent employee returning to work (appeal ruling of the Volgograd Regional Court dated August 25, 2016 in case No. 33-11582/16).

Thus, the resolution of the dispute will depend on the specific circumstances of the case. The employer should not forget to comply with the dismissal procedure and check whether there are grounds for terminating the employment relationship.

But will it be legal? dismissal of an employee under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation during the period of her being on maternity leave? In this case, the employer has the right to terminate the fixed-term employment contract without waiting for the woman to return from maternity leave. This is explained by the fact that the guarantees established by Art. 261 of the Labor Code of the Russian Federation for this category of workers, apply to cases of dismissal at the initiative of the employer. The expiration of the employment contract is an independent basis for termination of the employment relationship. Provisions of Part 1 of Art. 79 of the Labor Code of the Russian Federation regulates relations arising upon the occurrence of a certain event - the expiration of the established period of validity of the employment contract. This circumstance is not related to the initiative of the employer and occurs regardless of his will. In this regard, the organization is not obliged to take into account the additional guarantees established by Art. 261 Labor Code of the Russian Federation.

Arbitrage practice

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The court recognized the dismissal of the plaintiff under clause 2, part 1 of Art. 77 of the Labor Code of the Russian Federation, despite the fact that she was on maternity leave. He noted that the Labor Code of the Russian Federation does not provide for an employer’s obligation to renew a fixed-term employment contract with persons who have children under three years of age until the child reaches the specified age (appeal ruling of the Supreme Court of the Republic of Bashkortostan dated July 27, 2016 in case No. 33-14381/2016) . See also the appeal rulings of the Moscow City Court dated 08/08/2016 in case No. 33-26390/2016, the Moscow Regional Court dated 05/13/2015 in case No. 33-10869/2015.

Regarding the dismissal of a pregnant employee on the basis of clause 2, part 1, art. 77 of the Labor Code of the Russian Federation, this will be considered a direct violation of the rights of the employee and the procedure for terminating the employment contract. If a fixed-term employment contract expires during a woman’s pregnancy, the employer is obliged, upon her written application and upon presentation of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract until the end of the pregnancy. Moreover, the employment contract must be extended regardless of the reason for the end of pregnancy - the birth of a child, spontaneous miscarriage, abortion for medical reasons, etc. (paragraph 3 of paragraph 27 of the resolution of the Plenum of the Armed Forces of the Russian Federation of January 28, 2014 No. 1 “On the application of legislation regulating the work of women , persons with family responsibilities and minors”, hereinafter referred to as Plenum Resolution No. 1).

The expectant mother, whose employment contract was extended until the end of pregnancy, is obliged, at the request of the employer, but not more than once every three months, to provide a medical certificate confirming the state of pregnancy. In the event of the birth of a child, the dismissal of a woman due to the end of a fixed-term employment contract is carried out on the day the maternity leave ends. In other cases, a woman can be fired within a week from the day the employer learned or should have learned about the end of pregnancy (paragraph 4, paragraph 27 of the Resolution of the Plenum No. 1, part 2 of Article 261 of the Labor Code of the Russian Federation).

Thus, pregnant employees are protected by law, including from dismissal upon expiration of the employment contract.

Arbitrage practice

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The court declared illegal the termination of the employment contract with the plaintiff under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation, since, among other things, she was pregnant at the time of dismissal (appeal ruling of the Saratov Regional Court dated November 10, 2016 in case No. 33-8569). See also the appeal ruling of the Moscow City Court dated March 24, 2016 in case No. 33-8742.

Dismissal of a pregnant woman under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation will be legal if two conditions are met simultaneously:

1. a fixed-term employment contract was concluded with her for the duration of the duties of the absent employee;
2. It is impossible to transfer an employee before the end of her interesting position to another job available in the company, which she can perform taking into account her health condition.

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. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract (Part 3 of Article 261 of the Labor Code of the Russian Federation). Organizations are recommended to record in writing the direction of the proposal for vacant positions (either hand it to the employee against her signature, or send a letter by mail with a list of attachments). If she refuses a job offer, she must do so in writing. Consent to the transfer also needs to be recorded. Then, if a legal dispute arises, the employer will have evidence of the fulfillment of the duties assigned to him.

Let us give an example when an organization managed to defend its case in court.

Arbitrage practice

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The plaintiff was notified by the employer of her upcoming dismissal due to the expiration of the employment contract and the absence of vacant positions. The employee was pregnant. The court recognized the legal termination of the employment contract with her under clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation, since the basis for the dismissal of the expectant mother was the expiration of a fixed-term employment contract in connection with the return to work of the main employee. Taking into account the absence of other vacant positions at the employer, which the plaintiff can fill due to her state of health and education, the defendant had legal grounds for making a decision on dismissal (appeal ruling of the Volgograd Regional Court dated September 23, 2016 in case No. 33-12302/2016) . See also the appeal rulings of the Sverdlovsk Regional Court dated 09/01/2016 in case No. 33-14589/2016, the Supreme Court of the Republic of Dagestan dated 08/03/2016 in case No. 33-3120/2016.

At the same time, the employer’s violation of the rules of Part 3 of Art. 261 of the Labor Code of the Russian Federation on offering available vacancies to an employee, which she can perform taking into account her state of health, will lead to the reinstatement of the expectant mother in her position.

Arbitrage practice

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A pregnant employee hired for the period of maternity leave of the main specialist was dismissed due to the expiration of the employment contract. The court declared the termination of the employment relationship illegal, since it found that at the time of the plaintiff’s dismissal, the employer had vacant positions that she could fill. However, the defendant did not offer these vacancies to the pregnant woman (appeal ruling of the Pskov Regional Court dated June 14, 2016 No. 33-965/2016).

Failure to comply with the procedure for notifying an employee of the termination of a fixed-term employment contract

One of the grounds for recognizing as illegal the termination of an employment contract under clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation is the employer’s failure to comply with the procedure for notifying an employee of the upcoming dismissal. The subordinate must be notified in writing of the termination of the employment contract due to its expiration at least three calendar days before the date of termination of the relationship. An exception is the case when the employment contract concluded for the duration of the duties of an absent specialist expires (Part 1 of Article 79 of the Labor Code of the Russian Federation). If the company violates these legal requirements, the employee may be reinstated.

Arbitrage practice

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The plaintiff was dismissed under clause 2, part 1, art. 77 Labor Code of the Russian Federation. The court declared the termination of employment relations illegal. In the case there were many deviations from the law on the part of the defendant. One of which was that the employer violated the procedure for terminating employment relations because he did not notify the employee of the upcoming dismissal due to the expiration of the employment contract three calendar days before the date of its termination (appeal ruling of the Saratov Regional Court dated November 10, 2016 in case No. 33-8569).

However, there is an opposite position of the courts, according to which the employer’s failure to comply with the requirements of Art. 79 of the Labor Code of the Russian Federation on the need to notify the employee in writing at least three calendar days in advance of the termination of the employment contract due to its expiration cannot be an independent basis for declaring the dismissal illegal.

Arbitrage practice

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The plaintiff was dismissed on the basis of clause 2, part 1, art. 77 Labor Code of the Russian Federation. At the same time, the employer, in violation of Part 1 of Art. 79 of the Labor Code of the Russian Federation, warned the employee about the upcoming termination of a fixed-term employment contract on the day it expired. The court recognized the legal termination of the employment relationship, since the defendant’s failure to comply with the requirements of Art. 79 of the Labor Code of the Russian Federation on the need to notify the employee in writing at least three calendar days in advance of the termination of the employment contract due to its expiration cannot be an independent basis for recognizing the dismissal as unlawful. In addition, the plaintiff, agreeing to conclude an employment contract for a certain period, knew about its termination after the agreed period (appeal ruling of the Moscow City Court dated 02.02.2016 in case No. 33-3252/2016).

Considering the contradiction in judicial practice, we recommend that employers comply with the requirements of the law and promptly notify subordinates of the upcoming dismissal due to the expiration of the employment contract. In this case, the employee will not be able to accuse the company of failing to comply with the notification procedure and the employer will have a better chance of winning the dispute. The form of the notification is not provided for by law, so the company can draw it up in any form (Example 2).

Example 2

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Another typical situation is when the employer sent notice in a timely manner, but the employee did not receive it before the date of dismissal. In this case, the court will most likely take the side of the organization, since the Labor Code of the Russian Federation does not establish the legal consequences of the fact that the employee did not receive notice of termination of the employment contract in a timely manner. The method by which an employer must notify a subordinate of dismissal is also not regulated.

Arbitrage practice

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The plaintiff was dismissed on the basis of clause 2, part 1, art. 77 Labor Code of the Russian Federation. At the same time, the employer sent the employee a telegram in advance notifying him of the upcoming termination of the fixed-term employment contract. The plaintiff received notice several days after the termination of the employment relationship. The court found the dismissal to be lawful, since the expiration of the employment contract entails its termination. This is not related to the initiative of the employer and does not depend on his will. The Labor Code of the Russian Federation does not regulate the issue of the consequences of untimely notification of the upcoming termination of a fixed-term employment contract, but only indicates that the subordinate must be warned at least three calendar days in advance (Part 1 of Article 79 of the Labor Code of the Russian Federation, appeal ruling of the Khabarovsk Regional Court dated September 18. 2015 in case No. 33-6154/2015).

Let us remind you that the condition of notifying the employee at least three calendar days before his dismissal under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation does not apply in the case when the employment contract concluded for the duration of the duties of an absent employee expires (Part 1 of Article 79 of the Labor Code of the Russian Federation). If a subordinate claims a violation of his rights to advance notice of the expiration of the employment contract in such a situation, the court will side with the organization. The conclusion is based on the fact that an absent employee has the right to return to work at any time, therefore the exact date of termination of a fixed-term employment contract with a replacement specialist cannot be determined in advance. In addition, this fact is not a basis for recognizing the contract as concluded for an indefinite period.

Arbitrage practice

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The plaintiff was hired under a fixed-term employment contract for the period of absence of the main specialist. Before dismissal under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation, she was not notified of the termination of the employment contract. The court found the dismissal to be lawful, since the employment contract concluded for the duration of the duties of the absent specialist terminates when he returns to work (Part 3 of Article 79 of the Labor Code of the Russian Federation). The employer is obliged to notify the subordinate of the termination of a fixed-term employment contract at least three calendar days in advance only in cases where, at the conclusion of this contract, the date of its termination was determined (appeal ruling of the Chelyabinsk Regional Court dated July 17, 2014 in case No. 11-6967/2014).

Additional grounds for judicial refusal to an employee of his demands

Often, subordinates are sent to court without taking into account the deadline for applying for protection of their rights. An employee has the right to go to court to resolve an individual labor dispute within three months from the day he learned or should have learned about a violation of his rights, and in disputes about dismissal - within one month from the date he was given a copy of the order to terminate the employment relationship or from the date of issue of the work book (Part 1 of Article 392 of the Labor Code of the Russian Federation). If the specified deadlines are missed for good reasons, they can be restored by the court (Part 4 of Article 392 of the Labor Code of the Russian Federation). Circumstances that prevented the employee from timely filing a claim in court for resolution of an individual labor dispute may be regarded as valid reasons. For example, the illness of the plaintiff, his being on a business trip, the impossibility of going to court due to force majeure, the need to care for seriously ill family members (paragraph 5, paragraph 5 of Plenum Resolution No. 2). In this case, each case is considered by the court individually.

Having established that the deadline for filing a lawsuit has been missed without good reason, the judge makes a decision to reject the claim precisely on this basis without examining other factual circumstances in the case (paragraph 2, part 6, article 152 of the Code of Civil Procedure of the Russian Federation, paragraph 3, paragraph 5 of the Resolution Plenum No. 2).

Provided by Art. 392 of the Labor Code of the Russian Federation, the period for going to court to resolve an individual labor dispute is shorter than the general limitation period established by civil law. However, such a period, as the Constitutional Court of the Russian Federation has repeatedly noted, acting as one of the necessary legal conditions for achieving optimal coordination of the interests of the parties to labor relations, cannot be considered unreasonable and disproportionate.

Established Art. 392 of the Labor Code of the Russian Federation, the reduced period for going to court and the rules for calculating it are aimed at quickly and effectively restoring the violated rights of an employee, including the right to timely payment, and in its duration this period is sufficient for going to court (definitions of the Constitutional Court of the Russian Federation dated May 21, 1999 No. 73-O, dated July 12, 2005 No. 312-O, dated November 15, 2007 No. 728-O-O, dated February 21, 2008 No. 73-O-O).

Arbitrage practice

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The court rejected the plaintiff’s demands for reinstatement at work after dismissal under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation, including on the grounds of omission established by Art. 392 of the Labor Code of the Russian Federation, a one-month period for applying for a dispute resolution (decision of the Moscow City Court dated November 30, 2016 No. 4g/1-13757). See also the rulings of the Moscow City Court dated 06.10.2016 No. 4g/3-11640/2016, dated 14.06.2016 No. 4g/3-4407/16, appeal rulings of the Supreme Court of the Republic of Bashkortostan dated 05.10.2016 in case No. 33-19651/ 2016, dated 07/04/2016 in case No. 33-12684/2016, Moscow City Court dated 05/30/2016 in case No. 33-20967/16, dated 04/04/2016 in case No. 33-11558/2016, Moscow Regional Court dated 06/01. 2016 in case No. 33-11514/2016.

Thus, if the employer understands that the employee missed the deadline to go to court, it is necessary to declare this at the meeting. It is advisable to record your position in writing in a response to the statement of claim, a petition to apply the consequences of the employee missing the deadline to apply for protection of his rights, or another document.

To summarize the above, before terminating a fixed-term employment contract, we recommend that the employer:

• check whether there were legal grounds for concluding a fixed-term employment contract, and whether the employee has evidence to the contrary;
• find out whether there was an agreement between both parties to conclude an employment contract for a certain period, if the subordinate does not belong to any of the categories specified in Part 1 of Art. 59 Labor Code of the Russian Federation;
• find out if the dismissed employee is pregnant;
• if the expectant mother was hired during the absence of the main employee, check whether the woman being dismissed was offered available and suitable vacant positions;
• clarify whether there are grounds for terminating the employment relationship (for example, if the contract was concluded during the absence of the main specialist, it is necessary to first formalize his return to work, and only then fire the replacement employee);
• find out whether the employee continued to work after the expiration of the employment contract, and neither party demanded its termination due to expiration, which resulted in the loss of urgency of the employment contract;
• check whether the employee is notified of the upcoming dismissal three days in advance (notification is not required if the employment contract concluded during the performance of the duties of the absent employee expires).

The employer is also obliged to remember the general procedure for formalizing the termination of an employment contract, established by Art. 84.1 of the Labor Code of the Russian Federation: issue a dismissal order in advance and familiarize the employee with it under a personal signature; on the day of termination of the employment contract, issue the employee a work book and make payments to him in accordance with Art. 140 Labor Code of the Russian Federation; at the written request of the subordinate, issue him with duly certified copies of documents related to the work.

The reason for terminating the employment relationship can be either the desire of the employee or the initiative of the employer. A fixed-term employment agreement usually expires upon expiration of its validity period. However, in some cases a fixed-term employment contract can be terminated early.

From this article you will learn:

• is it possible to terminate a fixed-term employment relationship at the employee’s initiative;
• procedure for terminating a fixed-term employment agreement at the request of the employee;
• termination of a fixed-term employment contract at the initiative of the employee: what is important to consider.

Is it possible to terminate a fixed-term contract at the initiative of the employee?

A fixed-term employment contract is an employment agreement concluded for a certain period of time or to perform a specific job, in cases where an open-ended employment contract cannot be used. Such employment contracts can be concluded for a very short period, for example, a couple of months or several weeks. An example would be seasonal work, temporary replacement for an absent employee, work in an elected position, etc. As a rule, a fixed-term contract loses force due to the expiration of its validity period or upon completion of the work for which it was concluded.

About a fixed-term employment contract: read a sample

However, in many cases, one of the parties to the employment agreement may wish to terminate the employment contract early. Russian labor legislation does not prevent early termination of a fixed-term contract, either at the initiative of the employer or at the initiative of the employee.

Thus, the Labor Code of the Russian Federation, when considering issues of early termination of contracts, practically does not distinguish fixed-term employment contracts and employment contracts concluded for an indefinite period. The main prerequisites for termination of any employment contract are listed in Articles 78, 80, 81 of the Labor Code of the Russian Federation. At the same time, the Labor Code of the Russian Federation contains special rules governing special cases of early termination of a fixed-term employment contract. We will talk about them below.

The procedure for terminating a fixed-term employment contract at the initiative of the employee

Early termination of any employment agreement (including a fixed-term one) at the request of the employee occurs on the basis of his written application, which in general must be submitted to the employer at least two weeks before the day of dismissal (Article 80 of the Labor Code of the Russian Federation). In the case of fixed-term employment contracts concluded for a period of less than 2 months, the employee can notify the employer of his desire to quit in just 3 days (Article 292 of the Labor Code of the Russian Federation).

Also, three days before the date of the desired dismissal, the employee notifies the employer in the case of seasonal work (Article 296 of the Labor Code of the Russian Federation). And if the head of an organization resigns, then he is obliged to submit an application for early dismissal at least one month in advance (Article 280 of the Labor Code of the Russian Federation).

It should be noted that with the consent of the employer, the period from filing an application to immediate dismissal can be reduced. Therefore, if an agreement is reached, you can resign even on the day you submit your application. Moreover, in some cases, dismissal must occur exactly on the day that the employee indicates in his application (for example, upon retirement).

Based on the employee’s application, the head of the organization issues a dismissal order and familiarizes the employee with this order against signature. If it is impossible to familiarize yourself with the order, a corresponding note is placed on the order.

In the work book, in accordance with the rules for filling it out, an entry is made about the employee’s dismissal at his own request under Article 77, Part 1, Clause 3 of the Labor Code of the Russian Federation with the date of termination of the contract. However, when using the norms of articles 71, 80, 282, 296, 348 of the Labor Code of the Russian Federation, some experts advise indicating links to these articles.

Termination of a fixed-term employment contract at the initiative of the employee: what is important to consider?

After submitting a letter of resignation, the employee has every right to withdraw his letter of resignation at any time during the entire notice period. Then the employee is not dismissed, but only if another employee has not been invited in writing to take his place, who, according to the law, cannot be refused to conclude an employment contract.

Once the notice period has expired, the employee has the right not to go to work. On the last day of his work, the employer must issue the employee a work book and make final payments to him.

But in the case when, after the expiration of the notice period, the contract was not actually terminated, and the employee no longer insists on dismissal, then the employment contract continues.

If a resigning employee has unused vacation, he can write to the employer an application for the provision of the unused part of the vacation with subsequent dismissal. In this case, the day of dismissal of the employee is considered to be the day the vacation ends.