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Termination of a temporary employment contract at the initiative of the employee. Expiration of the employment contract

When applying for a job, hired personnel are increasingly being offered the conclusion of fixed-term employment contracts. Undoubtedly, this is a convenient and profitable form of labor relations for the employer. But what are the pitfalls behind this? We will tell in the article about the termination of urgent employment contract Let's 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 is registered to perform seasonal work, then the period can be a month, a quarter, or six months. The employer obliged to explain why a specific period is indicated in the contract, based on real legislative norms.

The order must also refer to the reason for drawing up a fixed-term contract. After the expiration of its validity, the grounds for renewal in legislative framework little (pregnant women, employees of the scientific and teaching sphere have the right to this). Read also the article: → "". But if the parties continue to cooperate, then the main one can be concluded.

The procedure for termination of employment relations at the initiative of the head

The grounds for such actions are spelled out in article 81 of the labor code:

The company is going out of business.
There is a downsizing.
The employee is unable to fully comply official duties due to low qualifications, which is confirmed by the certification passed.
Periodic tardiness and absenteeism.
Distribution of trade secrets.
Change of leader.
The decisions made by the employee harmed the organization.

The contract may contain additional reasons for which it is possible to terminate labor Relations.

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

Actions upon expiration of the contract

The procedure for terminating an employment relationship at the end of the term is indicated in the table:

Reason for hiring		Termination of contractual relations
The employee was hired for temporary or seasonal work (picking strawberries, planting potatoes).		It is mandatory to give notice at least three days before the deadline.
The employee is temporarily taken to the place of another person (for example, for the period of the decree).		There is an automatic termination of the contract, on the day the employee leaves. You can also give notice on the same day. But in this case it is more a formality than an obligation of the employer.

The notice must be prepared in two copies, one for each party. This document must be delivered to writing at least 3 days prior to the specified date. If an employee is ill, this cannot be a reason for delay. It is also necessary to notify him of this 3 days in advance and dismiss him within the period indicated by the contract, while doing all due payments on sick leave.

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

An example of an excerpt from judicial practice upon termination of an employment contract during an employee's illness

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

Due to a sprain, he was hospitalized. Upon returning to work, Sergei was confronted with the fact of his dismissal retroactively, due to the expiration of the period that came when he was in a medical institution. The father of the young instructor made the following claims to the training application:

Since it is he who is the guardian of the minor son, then he should have been served with a notice of termination of the contract, and such a document Lomonosov S.Yew. did not receive.
The educational institution kept silent about the concluded additional agreement for the extension of the term labor activity son and hid his presence.

Based on this, an application was made to the court. Lomonosov S.Yu. demanded to reinstate his son in his position, to pay material and moral damages, to hold the director accountable. Having considered the complaint, the court did not satisfy it and recognized the actions of the director as lawful 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 for ordinary contracts, and for additional ones:

If an employee is accepted for the place of an employee, for whom this position will become the main place of work, then the director has the right to dismiss the “part-time job”. 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.
When from the position “part-time” they are transferred 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 additional grounds for terminating the contract are those concluded for an indefinite period. If a fixed-term employment agreement is drawn up, then it is governed by the basic rules and the termination of relations with such an employee occurs on a general basis (according to article 77 of the labor code), which were described at the beginning of the article. Additional reasons for termination cannot be applied to it.

When moving from part-time work to the main place, it is not enough to create an order, these are two absolutely different types contracts.

Is it possible to quit on weekends?

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

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

The dismissal procedure should take place in the following sequence:

The employer gives notice 3 days before the deadline;
Drawing up an order. It must necessarily indicate: the date, the number of the employment contract, the documents on the basis of which the agreement is terminated (notice delivered), the grounds.
Recording in 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 calculate the employee on the last working day, with the consent of both parties.

End of term during an employee's pregnancy

If before the expiration of the contract it turned out that the employee is “in position”, the employer does not have the right to terminate the employment contract with her, even if its term ends. Make it possible:

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

In the case when an employee was hired to temporarily perform the labor duties of another employee, after the release of the main employee, the manager has the right to dismiss 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 the maternity leave.

Early termination with certain categories of employees

The conclusion of a fixed-term employment agreement with foreign citizens is prohibited by law. It is possible to issue them only for an indefinite period, which is set taking into account the expiration of the visa validity period. There are other categories of hired persons:

Category of workers	Reasons for early termination
Persons under 18	Relations with such workers can be terminated only by decision of the commission, the labor inspectorate. With the exception of the liquidation of the enterprise.
An employee has been made redundant	The manager must give three months' notice
Single mothers with children under 14, women with children under three years, parents of children with disabilities	With this category of citizens, early termination of employment relations is prohibited.

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

Question #1. What if the contract does not have an expiration date?

Question number 2. Does an employer have the right to repeatedly conclude 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 a fixed-term employee entitled to paid annual leave and severance pay?

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

Question number 4. If an employee is a recent employee, can they be denied sick pay?

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 compiling this document, only the employer wins.

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

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

With official employment, the employer and the future employee sign an agreement that regulates the rights and obligations of the parties (as in the conclusion and termination of a contract between the customer and the foreman). The document is the actual proof of employment. After signing, the employment contract has legal force and any violation entails administrative liability.

The main purpose of the agreement is the obligation of the employer to provide comfortable working conditions and pay wages on time. In turn, the employee must independently perform any assigned work in accordance with job description and the company's internal code.

An employment contract may be:

For undefined period;
for a fixed period of not more than 5 years (fixed-term employment contract).

If the TD does not specify a clear date for the termination of work, such an agreement is considered to be open-ended. In another case, the relationship between the employer and the employee may continue after the expiration of the contract, unless the parties demanded the termination of the contract.

Reasons for terminating a fixed-term employment contract may be:

Basic ones such as:

mutual consent of the parties;
on own will employee;
refusal of the employee to continue work if the owner of the organization has changed;
relocation of the enterprise and refusal of the employee to live in another city;
change in the conditions of the TD, in connection with which the employee refuses to continue working;

2. Independent of the will of the parties:

transfer to another job due to medical reasons;
conscription;
election of an employee to an elective public office;
retirement;
assignment of a disability group, in connection with which work becomes impossible;

3. At the initiative of the employer:

non-fulfillment of the employee's work;
repeated disciplinary violations;
absence from work for more than 4 hours for an unexcused reason;
being at the workplace in a state of toxic, narcotic or alcoholic intoxication;
expiration of a fixed-term employment contract;
violation of the terms of the TD.

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

The employee has the right to terminate the fixed-term employment contract at his own request by notifying the employer about it two weeks in advance. The letter of resignation is written in any form. Personal reasons are not allowed. From the next day, after signing the document, the countdown of the 14-day period begins. The employee has the right to withdraw the application at any time, provided that the employer has not yet found a replacement.

On the day of dismissal, the accounting department is obliged to pay all debts to the employee of the enterprise, such as:

wages for hours actually worked;
premium;
overtime for work on weekends or holidays;
holiday allowance.

The head of the personnel department enters the dismissal data into the work book: “Fired of his own free will”, referring to

Statement

According to the Labor Code of the Russian Federation, an employee of an organization has the right to terminate both a fixed-term employment contract and an agreement concluded for an indefinite period in any period of work. Managers of the enterprise are required to report the dismissal one month in advance. If the TD was concluded for seasonal work or for a period of up to 2 months, the employee must notify the employer 2 days before the dismissal.

Within two weeks, the employee has the right to change his mind and withdraw his application, also notifying the employer about this.

Sample letter of resignation

How to terminate the contract at the request of the employer?

Termination of a work contract at the initiative of the employer implies compliance with the articles of the Labor Code of the Russian Federation. In case of violation, the head of the organization is liable to the court. Reasons for dismissal of an employee must be justified.

Termination of TD occurs on the following grounds:

Company liquidation — may arise due to the bankruptcy of the company, the decision of the owner of the company to terminate employment, or the decision may be announced by the judicial chamber. The employer is required to inform employees about the upcoming dismissal two months in advance. An appropriate order is issued and brought to the attention against signature. In the event that employees leave before the specified period, the organization pays compensation in the amount of a monthly salary.

Reduction of staff or position — in this case, the employer notifies the employee of the dismissal two months in advance, but has the right to terminate the TD earlier, while paying compensation. It is forbidden to lay off such employees as:

parent large family where the other spouse is incompetent;
disabled people;
employees who have received an occupational injury in the workplace;
the only working family members.

Inconsistency of the employee with the position- insufficient qualification is confirmed by the attesting commission. In this case, the employer is obliged to offer another position. If the employee refuses, the work contract is terminated in accordance with article No. 81 of the Labor Code of the Russian Federation.

Failure to do work - the employer has the right to dismiss the employee if he repeatedly violated the working regime and did not perform the assigned work. At the same time, it must be applied disciplinary action, which are brought to the attention of the employee by order, against signature. This requires:

explanatory employee;
an order to withhold part of the salary (disciplinary action);
a dismissal order if the procedure is carried out for the third time.

Single gross violation disciplines— the absence of an employee at work for more than 4 hours in a row entails termination of the contract.

Commitment by an employee of guilty actions, as a result of which the employer has lost confidence - this item applies to employees who work with goods or cash flow. Violations mainly include theft and bribery.

Committing an immoral act- if the employee is an educator, teacher or lecturer. At the same time, it does not matter where the offense was committed if it is not compatible with the continuation of labor activity. Dismissal can come even a year after hiding the fact.

Making an unreasonable decision that resulted in losses for the organization(if the employee is the head of the company). In this case, the employer must provide evidence of the violation.

Fake documents when signing an employment contract- presenting an identity card or a diploma of education that is not authentic may be a valid reason for termination fixed-term employment contract unilaterally , as well as to bring the employee to criminal liability.

Download the Labor Code of the Russian Federation from the link.

Notification

The employer is obliged to notify his employee in advance that the fixed-term employment contract is coming to an end. The notice must be submitted in writing within 3 calendar days. The date of termination of the TD is the last working day of the employee.

A notice of termination of a fixed-term employment contract is issued to the employee against signature or by registered mail.

Termination of a fixed-term employment contract by agreement of the parties

If desired, the employer and employee may agree to terminate business relationship. For this, it is proposed draw up an agreement between the parties on the annulment of the employment contract. The legislation does not provide for a specific form for filling out a document. The initiator of the dismissal, in this case, is both parties, having discussed all the details in advance.

Termination of an employment contract by agreement of the parties is a separate document that is an annex to the main TD. After signing, the employer issues an order. On the day of dismissal of the employee, the final payment is made and a work book is issued in hand.

Agreement

An agreement on the termination of an urgent TD is drawn up in accordance with the clauses of the main employment contract. A copy is given to the employee. The agreement is always in writing. Content includes the following:

Title of the document;
date and place of execution of the agreement;
Full name of the employee, details of the employer;
grounds for dismissal (by agreement of the parties);
date of signing the employment contract, serial number;
the actual date of dismissal of the employee;
obligations of the parties (for example, return of a working mobile phone);
payment of monetary compensation (if necessary).

Download the agreement of the parties on the termination of a fixed-term employment contract

If the contract has expired

Fixed-term employment contract is concluded between the employee and the employer in the event that it is impossible to extend employment on a permanent basis. These professions include teachers of schools and universities on a competitive basis, high-altitude workers, nurses, nannies and others.

Urgent TD is concluded for the following types of work:

specific (temporary) work up to two months;
seasonal;
foreign;
when creating a temporary organization;
internships;
with pensioners;
prevention of catastrophes, accidents or natural disasters;
temporary replacement of an employee;
concurrently.

The maximum period of a fixed-term employment contract is 5 years. After this time or another specified in the document, the employee is dismissed, in accordance with article No. 59 of the Labor Code of the Russian Federation. The employer is obliged to notify the employee 3 calendar days in advance of termination of the agreement. If the employee is not warned in time, he has the right to apply to the court with a statement of claim to recover compensation or reinstatement in the workplace.

A fixed-term contract can also be extended by agreement of the parties, if this is provided for by law. For example, during pregnancy. If, after the lapse of time, the employee continues to work, and the employer does not insist on dismissal, the agreement goes on an indefinite basis.

Termination of a fixed-term employment contract also possible by agreement of the parties. If the contract has expired, the employee is required to pay wages and issue a work book in his hands.

Is it possible to terminate a contract with a pregnant woman?

The employer does not have the right to dismiss a pregnant woman, even if an urgent TD was issued during employment. This is a gross violation of the law and responsible person subject to administrative penalties. In this case, the fixed-term employment contract must be extended until the end of the maternity leave.

Exceptions may be:

Voluntary dismissal- at the same time, the employee has the right not to report the reason for dismissal in advance. Payroll is calculated on the last working day;
By agreement of the parties - the employee and the employer can agree on the payment of compensation, while the interests of the parties must be satisfied;
If an employee replaced a temporarily absent employee, the employer is obliged to offer the woman a transfer to another job or vacant position, in accordance with the qualifications and health status. It is possible to dismiss only if the employee refuses to continue working in this organization;
Company liquidation — severance pay paid in the amount of the average monthly salary. If a couple of months remain before going on maternity leave, the employer compensates for this time inclusive.

Upon dismissal, a pregnant employee must be given all the relevant certificates:

on income for 2 years of work (personal income tax form No. 2);
an extract on the calculation of the amount of the expected maternity leave, benefits for the BIR and child care up to 1.5 years;
a copy of the employment contract and the order of dismissal;
receipt of payroll, vacation pay, bonuses and other appropriate payments.

A pregnant employee is required to notify the employer of her situation in writing. TO application for the extension of a fixed-term employment contract attached certificate from medical institution, where the date of exit on maternity leave is indicated.

Order

Upon dismissal, the employer must issue an appropriate order and bring it to the attention of the employee, against signature. The document must contain the following information:

order number and date of issue;
Name of responsible persons;
the reason for the dismissal of the employee;
link to an article of the Labor Code;
lack of material claims to the employee;
date, painting, seal of the organization.

Order data is recorded in the work book.

Download a sample order for the dismissal of an employee of his own free will from the link.

The organization sometimes accepts a temporary employee for certain needs. There are cases when the contract is still valid, and the need for an employee has disappeared, and then the question arises whether it is possible to terminate the fixed-term employment contract ahead of schedule.

Grounds for terminating a temporary contract

The general basis for terminating a temporary employment contract is contained in Article 79 of the Labor Code of the Russian Federation - this is the expiration of a fixed-term contract. In this case, the employer must notify the employee three days before the expiration of the employment contract. Otherwise, the contract will become indefinite.

But depending on the basis of the conclusion temporary agreement the end of the contract will be different, namely:

in connection with the exit of a permanent employee;
acceptance of work for which the employee was hired;
the end of the season;
return of an employee to the country from abroad;
performance by the organization of the work for which it was created;
other grounds arising from Article 59 of the Labor Code of the Russian Federation.

But, as with any open-ended contract, early termination of a fixed-term employment contract is possible. There could be many reasons for this. The grounds for termination of an employment contract are spelled out in chapter 13 of the Labor Code of the Russian Federation.

Let's remember the grounds for terminating an employment contract:

by agreement of the parties;
expiration of a fixed-term employment contract;
at the request of the employee (personal statement);
under certain conditions, when the initiator of termination of the contract is the employer;
other grounds, including those not dependent on the parties to the employment contract.

Termination of a fixed-term employment contract at the initiative of the employer

As for the early termination of the employment contract at the initiative of the employer, in accordance with Article 81 of the Labor Code of the Russian Federation, there are several options:

liquidation of the organization;
reduction in the number of employees or downsizing;
non-passing of certification by the employee;
change of the owner of the company;
violation of labor discipline by the employee, if there have already been penalties;
a single gross violation by an employee of his duties;
forgery of documents by the candidate during employment;
other cases.

But it is worth analyzing a few points that are not typical for a fixed-term employment contract. If everything is clear with the liquidation of the company (in this case, the termination of the employment contract with a temporary employee will be carried out according to general scheme), then early termination of the employment contract with a reduction in staff has a number of subtleties.

Temporary worker, like permanent employees, must be listed in staffing, filled out in the form T-3, approved by the Decree of the Goskomstat of Russia No. 1 dated 01/05/2004. With a reduction in staff, there are a number of employees who cannot be fired. If a temporary employee replaces a permanent employee who retains workplace, early termination of the contract is not possible.

The employer has the right to conduct attestation of employees for compliance with the position held at regular intervals. For this, orders, regulations and other documents are issued. If a temporary employee will work at the time of the certification of employees, he may be exempted from certification due to the urgency of the contract, or may be subject to certification. In case of failure to pass certification by a temporary worker, it is possible to terminate the fixed-term employment contract ahead of schedule in accordance with part three of Article 81 of the Labor Code of the Russian Federation.

But it is worth remembering that the employee can always go to court and challenge the decision of the employer.

Registration of early termination of a fixed-term employment contract

After the appearance of grounds for terminating a fixed-term employment contract ahead of time specified in the contract, the employer is advised to discuss this with the temporary worker. This is done in order to avoid further conflicts and litigation.

Registration of dismissal of any employee takes place in accordance with Art. 84.1 of the Labor Code of the Russian Federation. The head draws up an order, with which the employee is introduced against signature. On the last working day, a full payment is made to the employee for wages and other payments.

Many employers try to do everything in advance so that in case of questions from the employee or disagreements, they can be resolved in advance. Labor legislation does not prohibit such actions of the employer. But, as mentioned above, any agreement with an employee does not exclude the possibility of the latter going to court or controlling government bodies.

Next, the employer makes a record of dismissal in the work book. The entry is made in accordance with the Instructions for filling out work books, approved by the Decree of the Ministry of Labor of the Russian Federation of October 10, 2003 N 69.

If the dismissed person cannot be present at work on the last day, the work book is issued to him in advance or the employer sends the employee a notice of appearance for the work book. There are cases when an employee refuses to pick up a work book or even come to work on the last day due to a conflict, but the manager is not responsible for not receiving a work book if he sent a notification. The notification is always recommended to be sent by Russian Post or other courier service by registered mail with a description of the contents and receipt of proof of delivery of the letter.

Possible compensation upon dismissal

According to Article 178 of the Labor Code of the Russian Federation, upon dismissal due to a reduction in the number of employees or liquidation of the company, the employee is paid two average earnings. If an employee who joined the labor exchange cannot find a job within two months, he is paid another average earnings. At the same time, in the local acts of the employer or the collective agreement in case of dismissal, additional payments.

The employee may have a question whether additional compensation is due for early termination of the contract. Labor legislation does not provide for additional payments, but they can be established by an employment contract. After all, containing a list of mandatory clauses of an employment contract, it says that this list is not exhaustive.

As a result, we can say that the employer must clearly know the grounds and nuances of the dismissal of an employee, even if this employee is hired for a certain period.

Termination of a fixed-term employment contract

1. Both the employer and the employee have the right to declare the termination of an employment contract due to the expiration of its term.

However, in relation to the employer, the law provides for certain requirements aimed at protecting the interests of the employee. In particular, an employer who decides to terminate an employment contract with an employee due to the expiration of its term must notify the employee in writing at least three calendar days in advance. The employee is not entitled to demand the continuation of labor relations if the employer has decided to terminate them due to the expiration of the employment contract.

However, in cases where the term of the employment contract has expired, but none of the parties has demanded its termination, and the employee continues to work after the expiration due date, the condition on the urgent nature of the employment contract becomes invalid and the employment contract is considered concluded for an indefinite period. Its subsequent termination is possible only on a general basis (see commentary to Article 58).

It should be noted that the norm of Part 1 of Art. 79, which requires to warn the employee about the termination of the employment contract with him due to the expiration of the term at least three days in advance, in practice is not always understood unambiguously. Thus, it is debatable whether it would be lawful to dismiss an employee due to the expiration of the employment contract if the employer warned the employee about the termination of the employment contract with him less than three calendar days before the expiration of its term (for example, one day) . There are different positions on this issue, in particular, the opinion was expressed that the violation by the employer of the specified period makes it impossible to terminate the employment contract on the basis of the commented article.

For our part, we believe that when answering this question, it is necessary to proceed from the provisions of Part 4 of Art. 58 of the Labor Code, according to which a fixed-term employment contract is considered concluded for an indefinite period if none of the parties demanded the termination of a fixed-term employment contract due to the expiration of its term, and the employee continues to work after the expiration of the employment contract. As follows from the content of the above norm, the employer loses the right to terminate the fixed-term employment contract with the employee on the basis of its expiration only if he did not express his desire to terminate the employment relationship with the employee before the expiration of the employment contract, and the employee continues to work after the expiration term of the contract.

If such a desire in the form of a written warning was expressed by the employer, although less than three calendar days before the expiration of the employment contract, and the dismissal order was issued no later than the last day of work in accordance with the employment contract, the dismissal may be considered lawful. This conclusion is also due to the fact that a fixed-term employment contract is usually concluded in cases where, based on the nature of the work and the conditions for its implementation, it is impossible to conclude an employment contract for an indefinite period (part 2 of article 58 of the Labor Code).

The Plenum of the Supreme Court of the Russian Federation in paragraph 60 of the resolution of March 17, 2004 N 2 specifically drew the attention of the courts to the provisions of Art. 394 of the Labor Code, which provides that if an employee with whom a fixed-term employment contract was illegally dismissed from work before the expiration of the contract, the court reinstates the employee in his previous job, and if the term of the employment contract has already expired at the time the dispute is being considered by the court, it recognizes the dismissal as illegal , changes the date of dismissal and the wording of the grounds for dismissal for dismissal after the expiration of the employment contract. Thus, even in the case illegal dismissal the expiration of the employment contract does not give grounds for the reinstatement of the employee at work.

2. The day of termination (termination) of the employment contract concluded for the period of performance of the duties of the absent employee is the day the absent employee returns to work (see.

Termination of a fixed-term employment contract

The expansion of the scope of fixed-term employment contracts is caused by objective reasons for the development of the economy. The rules for regulating the conclusion, amendment and termination of fixed-term employment contracts are contained in various sections and chapters of the current Labor Code. However, in practical application often fall out of sight of those to whom they are addressed. The author of the article conducted a study of innovations in labor legislation, and also highlighted the gaps and contradictions regarding the regulation of the termination of fixed-term employment contracts.

Range of issues under consideration

Labor legislation has not yet developed a single term for simultaneously concluding, amending, suspending and terminating an employment contract. Therefore, it was necessary to use the term "operation of an employment contract" as a working term, although one cannot but agree that better terminology is certainly possible.

The problems of concluding fixed-term employment contracts in the legal literature are raised quite regularly, and changes and suspensions of fixed-term employment contracts in general do not differ from changes and suspensions of contracts with an indefinite period, therefore, it makes sense to focus on the problems associated with the expiration of fixed-term employment contracts. It is worth noting that changing such a condition of a fixed-term employment contract as its term also fits into the framework of the stated topic.

The validity of a fixed-term employment contract, as a rule, ends due to the expiration of the period specified at its conclusion.

In part 2 of Art. 79 of the Labor Code of the Russian Federation provides that an employment contract concluded for the duration of a certain work is terminated upon completion of this work. Part 3 Art. 79 of the Labor Code of the Russian Federation establishes that an employment contract concluded for the duration of the performance of the duties of a temporarily absent employee terminates when this employee returns to work. In part 4 of Art. 79 of the Labor Code of the Russian Federation states that an employment contract concluded for the performance of seasonal work during a certain period (season) terminates at the end of this period (season).

However, modern labor legislation provides for other options. Early termination and early termination of such an agreement is possible. In the first case, this happens regardless of the will of the parties to the employment contract, in the second case, by the will of one of the participants or by their agreement. Transformations (or, if you like, "transformations") of fixed-term employment contracts into contracts with an indefinite period of validity are possible.

The Labor Code of the Russian Federation unambiguously interprets the concept of extending a fixed-term employment contract precisely as an extension of the term of a valid employment contract (Articles 261, 332 of the Labor Code of the Russian Federation). Finally, part 1 of Art. 338 of the Labor Code of the Russian Federation in relation to employees sent to work in representative offices Russian Federation abroad, it is planned to renegotiate the employment contract for a new term.

Termination of an employment contract due to expiration

The expiration of the term of an employment contract is a special reason for its termination. V scientific literature it was argued that the expiration of the employment contract should be attributed to the grounds for dismissal that do not depend on the will of the parties. Other authors, on the contrary, prove that the agreement of its parties serves as the basis for terminating a fixed-term employment contract. However, the legislator firmly stands on the position of highlighting the expiration of the employment contract as a special reason for its termination. Moreover, in the event of termination of a fixed-term employment contract, the parties are provided with special guarantees for the protection of their rights and legitimate interests. Such special guarantees include special periods:

Written warning about the termination of the employment contract;

Features of the realization of the right to annual paid leave;

The possibility of replacing a fixed-term employment contract with a contract with an indefinite period, etc.

The procedure for terminating an employment contract due to the expiration of its term is provided for in Art. 79 of the Labor Code of the Russian Federation, which has undergone some changes in connection with the adoption of the Federal Law of June 30, 2006 N 90-FZ. Leaving aside the disputes of labor law theorists about whether the legislator acted correctly, changing the title of the article from "termination of a fixed-term employment contract" to "termination of a fixed-term employment contract", let's focus on the most significant innovation for us.

From judicial practice. The decision of the Judicial Board canceled the decision of the Kholmsky City Court in the case of R.'s claim against LLC "A". Denying R.'s claim, the court referred to the fact that labor relations with her could not be established for an indefinite period, taking into account the nature of the work to be done and the conditions for its implementation, since the LLC and its branch carried out their activities on the basis of a small canning shop leased under an agreement dated November 1, 1997, which expired. Upon the expiration of the contract, R., accepted by the fish processor, was fired. However, the court made such a conclusion without proper verification of the factual circumstances of the case. The court did not take into account the fact that neither at the conclusion of the contract, nor in the order to hire R., the term of her work was associated with the term of rent of the cannery. There is no data in the case confirming the expiration of this contract on the day of dismissal of the plaintiff.

Terms of warning the employee about the upcoming dismissal

Now the obligation of the employer to notify the employee of the termination of a fixed-term employment contract (in writing at least three calendar days before dismissal) has been adjusted as follows: "except for cases when the term of a fixed-term employment contract concluded for the period of performance of duties of an absent employee expires." In these cases, the obligation of a written warning to the employer is removed. According to the logic of things, it should be so, but the absence of this exception in the previous edition gave rise to different interpretations specified norm and could lead to labor disputes. To avoid conflict situations personnel services it is advisable to clearly comply with the requirements of Part 1 of Art. 79 of the Labor Code of the Russian Federation.

K. filed a lawsuit against the company for reinstatement, referring to the fact that he was dismissed at the end of the contract term illegally. The Oktyabrsky District Court, resolving the dispute, came to the conclusion that the employer had no legal grounds for terminating the employment contract with the plaintiff, for the following reasons.

K. was hired for a fixed period due to the fact that the work performed by the organization required an annual license, and employees involved in the protection of objects were hired for the period of the license. These actions of the employer complied with the requirements of the law. At the same time, during the term of the fixed-term employment contract, the plaintiff was, with his consent, transferred to another position without limiting the term of the transfer, and the court regarded this transfer as the basis for classifying the fixed-term employment contract concluded with K. as contracts extended for an indefinite period.

It seems that this position of the court is erroneous and is not based on the evidence presented and the requirements of the substantive law, because, regardless of the position held, the employment contract was of an urgent nature, but the parties did not make changes to the employment contract regarding the term.

In addition, in similar situations, one should also take into account the fact that an employment contract is concluded precisely when an employee is hired, and it is at this stage of the legal relationship between the parties that its conditions are negotiated. Subsequently, according to Art. 9 of the Labor Code of the Russian Federation, the regulation of labor relations can be carried out by the parties through changes and additions in writing to an employment contract already concluded by them.

It should be noted that before the adoption of the Labor Code of the Russian Federation in 2001, the mechanism for terminating a fixed-term employment contract, including the rule on a written notice of dismissal, was not provided for in Russian labor legislation. This explains some imperfection of legal formulations. Without a clear definition of the legal consequences of non-compliance with this rule, this rule loses all meaning. This has been rightly pointed out by many experts in the field of labor law. The authors of the collective monograph "Course of Russian Labor Law. Vol. 3. Employment Contract" adhere to the most radical point of view on this issue. Their position is formulated as follows: “Obviously, in cases where the notice of dismissal is made in less than three days or not at all, the employee has the right to challenge the dismissal order, and the court, if there are no grounds for reinstating the employee at work, must accordingly change the date of dismissal, and the period for which the employment contract is extended due to the postponement of the date of dismissal is payable in the amount of average earnings. It seems that this is how the text of Art. 79 of the Labor Code of the Russian Federation.

So Art. 79 of the Labor Code of the Russian Federation contains a general rule on the period of notice of dismissal upon expiration of the employment contract. This period must be at least three calendar days. Therefore, any reasonable warning period over three calendar days is determined by the employer. A warning about the dismissal of an employee hired for the duration of the duties of an absent employee (for example, who is on parental leave until he reaches the age of three) is not provided for by law. However, it is not specifically stipulated how to warn an employee hired for the duration of a known work, when its completion cannot be determined by a specific date. Apparently, according to the legislator, in this case, the general rule on a written warning of the employee at least three calendar days before the dismissal should apply. It is unlikely that such a norm seems fair to the employer, although from the point of view of the employee, it is the general norm that should apply.

Some doubts arise regarding the interpretation of Part 2 of Art. 307 of the Labor Code of the Russian Federation, which regulates the procedure for terminating an employment contract with an employee working for an employer - an individual. Part 2 of this article establishes: "The terms of the notice of dismissal, as well as the cases and amounts of severance pay and other payable upon termination of the employment contract compensation payments determined by the employment contract.

It would seem that it follows from this that the employment contract may provide for other terms for warning about the dismissal of the employee upon expiration of the employment contract. However, two things are troubling.

First, part 1 of Art. 307 of the Labor Code of the Russian Federation says that "in addition to the grounds provided for by this Code, an employment contract with an employee working for an employer - an individual may be terminated on the grounds provided for by the employment contract. From this it is concluded that the terms of the notice of dismissal, cases and the amount of severance pay and other compensation payments established by agreement of the parties (employment contract) relate only to the grounds for dismissal provided for by the employment contract.

Secondly, Art. 347 of the Labor Code of the Russian Federation, which regulates the termination of an employment contract with an employee of a religious organization, contains similar rules, but the wording of this article clearly excludes double interpretation. Part 1 Art. 347 of the Labor Code of the Russian Federation establishes that "in addition to the grounds provided for by this Code, an employment contract with an employee of a religious organization may be terminated on the grounds provided for by the employment contract." But here is part 2 of Art. 347 contains the following wording: "the terms for warning an employee of a religious organization about dismissal on the grounds provided for by the employment contract, as well as the procedure and conditions for providing specified employees guarantees and compensations associated with such dismissal are determined by the employment contract.

Apparently, the will of the legislator in both cases - and in relation to employees employed in employers' organizations - individuals, and in relation to employees religious organizations- was aimed at achieving the same goal, that is, expanding the boundaries of contractual regulation upon termination of an employment contract, taking into account the specifics of these categories of employers. If so, then the wording of Art. 307 of the Labor Code of the Russian Federation should be brought into line with the wording of Art. 347 of the said Code. If the legislator was nevertheless guided by different approaches, then in relation to Art. 307 of the Labor Code of the Russian Federation, more precise wording should be used.

Warning Form

As already noted, the warning of the employee is carried out in writing. This is the requirement of Part 1 of Art. 79 of the Labor Code of the Russian Federation, however, the form of such a document is not established by law. From time to time, a discussion arises among labor lawyers: what is preferable in this case - a written notice of the upcoming dismissal indicating the term or an order from the head to terminate the employment contract indicating a specific date. I think both are acceptable. It all depends on the characteristics of the employee, employer or other factors affecting differentiation. legal regulation their labour. For example, when the term of the employment contract of a university teacher expires, he is usually offered to take part in a competition for filling the same position that he occupies in accordance with the expiring employment contract. We will consider the question of the legality of such an action further, in this case something else is important: in the text of the dismissal order, such a proposal is hardly appropriate. It is clear that in such a situation, the employee usually receives a notice of dismissal. But if, for example, the validity of a fixed-term employment contract of an employee sent by the public employment service to public works ends, it is enough to issue a dismissal order. So, the choice of one or another written form of a notice of dismissal due to the expiration of a fixed-term employment contract should be determined by the employer himself.

Offering an employee another job

The employer is obliged to make such an offer only in relation to one category of employees - pregnant women, whose employment contract was concluded for the duration of the performance of the duties of the absent employee and expires during their pregnancy. This obligation of the employer and the procedure for its implementation are provided for in Part 3 of Art. 261 of the Labor Code of the Russian Federation. According to the requirements of the law, "a woman may be fired due to the expiration of the employment contract during her pregnancy, if the employment contract was concluded for the duration of the performance of the duties of the absent employee, and it is impossible with written consent women to transfer her before the end of pregnancy to another job available to the employer (both a vacant position or a job corresponding to the qualifications of a woman, or a vacant lower position or a lower-paid job), which a woman can perform taking into account her state of health. At the same time, the employer is obliged to offer her all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

Obviously, if the woman agrees to the transfer, a new employment contract is not concluded, but by concluding additional agreement in the old fixed-term employment contract, some of its conditions are changed (on the labor function, place of work, term of the employment contract).

The right to leave upon dismissal due to the expiration of the employment contract

As practice shows, usually both employees and employers do not take into account that the right to annual paid leave or compensation for it is also for employees whose employment contract is less than six months. In accordance with Art. 291 of the Labor Code of the Russian Federation, employees who have concluded an employment contract for a period of up to two months are provided with paid holidays or are paid compensation upon dismissal at the rate of two working days per month of work. According to Art. 295 of the Labor Code of the Russian Federation, employees engaged in seasonal work are provided with paid holidays at the rate of two working days for each month of work.

It is not clear how to provide paid leave or compensation for it if the term of the employment contract is more than two and less than six months, but the work is not seasonal. If the term of the employment contract is six months or more, then the length of service to provide annual paid leave is sufficient. If the term of the employment contract is less than two months, the norm of Art. 291 of the Labor Code of the Russian Federation. Rule Art. 295 of the Labor Code of the Russian Federation applies only to seasonal work. Seasonal work in accordance with Part 1 of Art. 293 of the Labor Code of the Russian Federation "works are recognized that, due to climatic and other natural conditions, are performed within a certain period (season), not exceeding, as a rule, six months." Apparently, the legislator will have to eliminate the existing gap in the law. Until that time, this problem can be solved by introducing appropriate provisions into collective agreements and agreements, local regulations or employment contracts.

The procedure for exercising the right to paid leave upon dismissal of an employee is provided for by Art. 127 of the Labor Code of the Russian Federation. According to this article, upon dismissal, the employee is paid monetary compensation for all unused vacations. At the written request of the employee, unused vacations may be granted to him with subsequent dismissal(except in cases of dismissal for guilty actions). In this case, the day of dismissal is considered the last day of vacation. In the event of dismissal due to the expiration of the term of the employment contract, leave with subsequent dismissal may also be granted when the time of leave completely or partially goes beyond the term of this contract. In this case, the day of dismissal is also considered the last day of vacation.

Extension of a fixed-term employment contract

The obligation of the employer to extend the validity of a fixed-term employment contract is provided for by law only in certain cases.

In the first case, we are talking about the expiration of the term of the employment contract during the pregnancy of a woman, unless her employment contract was concluded for the duration of the performance of the duties of a temporarily absent employee. In accordance with Part 2 of Art. 261 of the Labor Code of the Russian Federation "in the event of the expiration of a fixed-term employment contract during the pregnancy of a woman, the employer is obliged, upon her written application and upon presentation of a medical certificate confirming the state of pregnancy, to extend the validity of the employment contract until the end of pregnancy. A woman whose employment contract has been 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.If the woman actually continues to work after the end of pregnancy, the employer has the right to terminate the employment contract with her due to the expiration its validity period within a week from the day when the employer knew or should have known about the fact of the end of the pregnancy.

So, the extension of a fixed-term employment contract for a pregnant woman is possible only if the following conditions are met:

A fixed-term employment contract was not concluded for the duration of the performance of the duties of the absent employee;

A written application from a woman is required with a request to extend the term of the employment contract;

A medical certificate confirming the state of pregnancy must be provided.

"Extension of a fixed-term employment contract" means that a new fixed-term employment contract is not concluded, and in the original text of a fixed-term employment contract, the term of its validity is changed by concluding an additional agreement. In this case, Art. 72 of the Labor Code of the Russian Federation: "Changing the terms of an employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract, with the exception of cases provided for by this Code. An agreement to change the terms of an employment contract determined by the parties is concluded in writing."

The second case is provided for by Part 8 of Art. 332 of the Labor Code of the Russian Federation, which regulates the specifics of the conclusion and termination of an employment contract with employees of higher educational institutions. When an employee is elected on a competitive basis to fill the position of scientific and pedagogical worker previously occupied by him under a fixed-term employment contract, a new employment contract may not be concluded. In this case, the validity of a fixed-term employment contract with the employee is extended by agreement of the parties, concluded in writing, for a fixed period of not more than five years or for an indefinite period.

With regard to rectors, vice-rectors and heads of branches (institutes) of higher educational institutions, the same Art. 332 of the Labor Code of the Russian Federation for some reason contains a different structure - "extension of the term of office." Part 13 Art. 332 of the Labor Code of the Russian Federation states: "On the proposal of the academic council of the state or municipal higher educational institution the founder has the right to extend the term of the rector in his position until he reaches the age of seventy years. " In part 15 of article 332 of the Labor Code of the Russian Federation it is said that "on the proposal of the academic council of a state or municipal higher educational institution, the rector has the right to extend the term of tenure of the vice-rector , head of a branch (institute) until they reach the age of seventy years".

Apparently, the extension of the term of the employment contract and the extension of the term of tenure are not the same thing. "Extension of tenure" can act both as an extension of the term of a previously concluded employment contract, and as its renewal.

Note. From the review of the Arkhangelsk Regional Court

K. was dismissed from the position of the boiler house driver under Art. 79 of the Labor Code of the Russian Federation at the end of the heating season. The Mezensky District Court, correctly reinstating the plaintiff at work, indicated the following. The plaintiff was hired for the heating season. According to Part 1 of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract may be concluded for the duration of seasonal work, however, according to Art. 293 of the Labor Code of the Russian Federation, seasonal work is recognized as work that, due to climatic and other natural conditions, is performed during a certain period (season) not exceeding 6 months. The heating season in the conditions of the Far North, as can be seen from the evidence presented to the court, lasts 9 months. in a year or more. Under such circumstances, the employer did not have sufficient grounds to conclude a fixed-term employment contract with the plaintiff and, as a result, legal grounds to terminate it under Art. 79 of the Labor Code of the Russian Federation.

As emphasized in the review of jurisprudence, the circumstances to be proved on this basis of dismissal are proved not only by those circumstances that are associated with the expiration of the employment contract, but also those that confirm the legality and validity of concluding a fixed-term employment contract, since according to Art. Art. 58, 59 of the Labor Code of the Russian Federation, an employment contract for a fixed period can be concluded only if there are sufficient grounds for this, and if the labor contract itself does not specify its validity period, it is considered concluded for an indefinite period.

Renewal of a fixed-term employment contract

In this case, we are talking about the conclusion of a new fixed-term employment contract after the expiration of the previous one.

Before the adoption of the Federal Law of 06/30/2006 N 90-FZ, the Labor Code of the Russian Federation did not really provide for such a design. Paragraph 14 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" contained the following provision: "When establishing during the trial the fact of the repeated conclusion of fixed-term employment contracts for a short period for the performance of the same The court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period.

V new edition of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2, this provision is reproduced without changes. However, it should be borne in mind that the Plenum of the Supreme Court of the Russian Federation has in mind only cases of concluding fixed-term employment contracts for a short period to perform the same labor function, and a fixed-term employment contract can only be recognized as concluded for an indefinite period by a court.

As mentioned above, the possibility of renewing a fixed-term employment contract is provided for by Part 1 of Art. 338 of the Labor Code of the Russian Federation: "An employment contract is concluded with an employee sent to work in a representative office of the Russian Federation abroad for a period of up to 3 years. At the end of the specified period, the employment contract may be renegotiated for a new term."

Transformation of a fixed-term employment contract into a contract with an indefinite period

Part 4 Art. 58 of the Labor Code of the Russian Federation provides that "in the event that none of the parties demanded the termination of a fixed-term employment contract due to its expiration and the employee continues to work after the expiration of the employment contract, the condition on the urgent nature of the employment contract loses its force, and The employment contract is considered concluded for an indefinite period. In Russian labor law, this rule has existed for a long time, but practically does not work. Even if the employer makes a mistake, and the employee wants to take advantage of it, the employee will most likely have to defend his right in court.

In fact, such transformations of fixed-term employment contracts into contracts with an indefinite period under Russian labor legislation are possible not only upon termination of a fixed-term employment contract, but also during its validity period. Part 5 Art. 58 of the Labor Code of the Russian Federation establishes that "an employment contract concluded for a fixed period in the absence of sufficient grounds established by the court is considered concluded for an indefinite period." "Sufficient" grounds for concluding a fixed-term employment contract, as you know, are listed in Art. 59 of the Labor Code of the Russian Federation.

That is, for these reasons, the parties may conclude as fixed-term contract as well as a contract with an indefinite period.

The principles that guided the legislator when distinguishing these two groups of grounds are set out in Part 2 of Art. 58 of the Labor Code of the Russian Federation. A fixed-term employment contract is concluded in the event that labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation, or rather, in the cases provided for in Part 1 of Art. 59 of the Labor Code of the Russian Federation. In the cases provided for by Part 2 of Art. 59 of the Labor Code of the Russian Federation, an agreement of the parties is possible when drawing up a fixed-term employment contract without taking into account the nature of the work to be done and the conditions for its implementation.

The position of the Supreme Court of the Russian Federation on this issue is expressed very clearly in paragraph 13 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2: be established for an indefinite period, taking into account the nature of the forthcoming work or the conditions for its implementation, in particular, in the cases provided for by part 1 of article 59 of the Labor Code of the Russian Federation, as well as in other cases established by the Code or other federal laws.

In accordance with Part 2 of Art. 58 of the Labor Code of the Russian Federation in cases provided for by Part 2 of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract may be concluded without taking into account the nature of the work to be done and the conditions for its implementation. At the same time, it must be borne in mind that such an agreement can be recognized as lawful if there was an agreement between the parties, 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 on the legitimacy of concluding a fixed-term employment contract, establishes that it was concluded by the employee involuntarily, the court applies the rules of the contract concluded for an indefinite period.

Since the law does not establish any restrictions, the employee, apparently, can apply to the court to recognize the fixed-term employment contract as concluded without sufficient grounds both during the term of the fixed-term employment contract and after dismissal due to the expiration of the employment contract. In the second case, most likely, a request for reinstatement will be made.

Early termination of the employment contract

In the science of Russian labor law, the term "termination of an employment contract" includes both the termination of an employment contract without the participation of the will of its parties (that is, the employee and the employer), and the termination of an employment contract due to the will of the parties (jointly or separately).

Early termination of a fixed-term employment contract is currently possible, perhaps, on all the general grounds for terminating an employment contract, provided for in Art. 77 of the Labor Code of the Russian Federation.

In the Labor Code of the Russian Federation, the legislator uses a single concept of "employment contract", without highlighting particularly fixed-term employment contracts and employment contracts concluded for an indefinite period. In this case, we are talking about the following articles:

Art. 78 of the Labor Code of the Russian Federation "Termination of an employment contract by agreement of the parties";

Art. 80 of the Labor Code of the Russian Federation "Termination of an employment contract at the initiative of the employee (at his own request)";

Art. 81 of the Labor Code of the Russian Federation "Termination of an employment contract at the initiative of the employer."

This means that the provisions of these articles are equally applicable to contracts concluded for an indefinite period and to fixed-term employment contracts.

Paragraph 20 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 (as amended of December 28, 2006 N 63) states that "when considering disputes related to the termination of an employment contract by agreement of the parties (clause 1, part 1, article 77 , article 78 of the Labor Code of the Russian Federation), the courts should take into account that, in accordance with article 78 of the Labor Code of the Russian Federation, when an agreement is reached between the employee and the employer, an employment contract concluded for an indefinite period or a fixed-term employment contract can be terminated at any time within a period specified parties."

And yet, it seems more correct right in the text of Art. Art. 78, 80 and 81 of the Labor Code of the Russian Federation to refer to the fact that these grounds for terminating an employment contract, the terms of a notice of dismissal, guarantees and compensation also apply to fixed-term employment contracts.

As a rule, in the event of terminating a fixed-term employment contract, general rules apply, that is, the same as for terminating an employment contract concluded for an indefinite period. At the same time, the Labor Code of the Russian Federation also contains special rules governing some cases of early termination of a fixed-term employment contract for certain categories of workers. The introduction of such special norms is associated with the special nature of the work of some employees and the need to protect the interests of the parties to the employment contract.

Early termination of the contract at the initiative of the employee

Usually, in case of early termination of a fixed-term employment contract at the initiative of the employee (at his own request), the general rule of Art. 80 of the Labor Code of the Russian Federation of the need to notify the employer in writing no later than two weeks in advance. However, the Labor Code of the Russian Federation provides for other terms for certain categories of workers.

Article 280 of the Labor Code of the Russian Federation establishes that the head of the organization has the right to terminate the employment contract ahead of schedule by notifying the employer (the owner of the organization's property, his representative) in writing no later than one month.

Part 1 Art. 292 of the Labor Code of the Russian Federation obliges an employee who has concluded an employment contract for a period of up to two months to notify the employer in writing three calendar days in advance of the early termination of the employment contract.

Part 1 Art. 296 of the Labor Code of the Russian Federation provides that an employee employed in seasonal work must notify the employer of the early termination of the employment contract three calendar days in advance.

In accordance with Art. 348.12 of the Labor Code of the Russian Federation, an athlete, a coach have the right to terminate the employment contract on their own initiative (at their own request), notifying the employer in writing no later than one month, except when the employment contract is concluded for a period of less than four months. Obviously, if the term of an athlete’s or coach’s employment contract is from two to four months, the general rule of a warning of at least two weeks should apply, because there are no grounds to consider such a contract as a contract for seasonal work.

The question arises, do these employees have the right to withdraw their letter of resignation in the period before the expiration of the notice period? Since the Labor Code of the Russian Federation is silent on this issue, it can be assumed that the right to withdraw the application from these workers should be retained.

The wording of the order to dismiss such employees and entries in work book should contain references to the above articles of the Labor Code of the Russian Federation, and not to paragraph 3 of part 1 of Art. 77. E.A. expressed her opinion on this. Ershov that it is necessary to change the current wording of paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation to the following: "Termination of the employment contract at the initiative of the employee (Articles 80, 71, 280, 292, 296 ...)".

It is also interesting to note that as a result of the adoption of the Federal Law of February 28, 2008 N 13-FZ "On Amendments to the Labor Code of the Russian Federation", for the first time in our labor legislation, a rule appeared on monetary payment in favor of the employer in the event of termination of the employment contract at the initiative of the employee ( voluntarily) without good reasons. This rule is provided for in Art. 348.12 of the Labor Code of the Russian Federation and applies to those athletes who have a similar condition in their employment contract. However, such a condition may not be included in the athlete's employment contract. Since, in accordance with Art. 348.2 of the Labor Code of the Russian Federation, athletes can conclude both contracts for an indefinite period and a fixed-term employment contract, the norm also applies to the early termination of an athlete’s fixed-term employment contract.

Early termination of the contract at the initiative of the employer

In relation to employees who have concluded a fixed-term employment contract, there are usually general rules termination of the employment contract at the initiative of the employer. Exceptions are provided for employees who have concluded an employment contract for up to two months, and employees engaged in seasonal work. For them, special terms are provided for warning of dismissal in connection with the liquidation of the organization, reduction in the number or staff of employees, as well as a different procedure for paying severance pay.

Note. For employees who have concluded an employment contract for up to two months, and those who are employed in seasonal work, there are some features related to the terms of the notice of dismissal and the procedure for paying severance pay.

Part 2 Art. 292 of the Labor Code of the Russian Federation obliges the employer to notify the employee who has concluded an employment contract for a period of up to two months about the upcoming dismissal due to the liquidation of the organization, reduction in the number or staff of employees in writing against signature at least three calendar days in advance.

Part 3 Art. 292 of the Labor Code of the Russian Federation establishes that an employee who has concluded an employment contract for a period of up to two months is not paid severance pay upon dismissal, unless otherwise provided by federal laws, a collective agreement or an employment contract. Obviously, we are talking about all cases where, in accordance with Art. 178 of the Labor Code of the Russian Federation, upon dismissal, an employee is entitled to severance pay and other compensation payments.

As for workers employed in seasonal work, in accordance with Part 2 of Art. 296 of the Labor Code of the Russian Federation, the employer is obliged to warn such an employee of the upcoming dismissal in connection with the liquidation of the organization, the reduction in the number or staff of the organization's employees in writing against signature at least seven calendar days in advance. According to part 3 of Art. 296 of the Labor Code of the Russian Federation "upon termination of an employment contract with an employee engaged in seasonal work in connection with the liquidation of the organization, a reduction in the number or staff of the organization's employees, severance pay is paid in the amount of two weeks of average earnings."

Thus, by establishing special rules for early termination of an employment contract, the legislator tried to balance the interests of both the employee and the employer.

Summing up, the following should be noted. The entry into market relations objectively caused the expansion of the scope of fixed-term employment contracts. The legislator could not but respond to the demands of the labor market, therefore, the issues of regulating the conclusion, amendment and termination of fixed-term employment contracts in Labor Code The Russian Federation, in comparison with the previously existing Code of Labor Laws (Labor Code), are considered much broader and deeper.

Literature

1. The course of Russian labor law. T. 3. Labor contract / Nauch. ed. volumes d. y. n., Professor E.B. Khokhlov. - St. Petersburg: R. Aslanov Publishing House "Legal Center Press", 2007, p. 532.

2. Ibid., p. 531.

3. Vanyukhin V. Conditions for concluding a fixed-term employment contract. - "Ezh-YURIST", 2005, N 14.

4. Ershova E.A. labor law in Russia / Ros. acad. justice. - M.: Statute, 2007, p. 361.