What legal norms govern
A fixed-term employment contract is one that is concluded for a period of 5 years. In particular, the signing of such agreements is practiced:
- with persons holding elected positions;
- when temporarily replacing a non-working employee (when the latter retains his job, for example, for women on maternity leave);
- when an employee is sent outside the Russian Federation to perform his work functions;
- if the employing organization was created for a time;
- if necessary, employ persons for several months or weeks (for seasonal or commissioning work), etc.
Before proceeding with the termination of a fixed-term employment contract, you must first check the legality of its conclusion. After all, by default it is necessary to conclude an open-ended contract with an employee, and a fixed-term contract is signed in exceptional circumstances.
The contract must necessarily indicate the duration of its validity , otherwise it is equated to an unlimited term (according to Part 3 of Article 58 of the Labor Code) and then it can be terminated on general grounds (Chapter 13 of the Labor Code).
In addition to the obligation to indicate the term, a fixed-term employment contract must specify the grounds for its conclusion . They must comply with the list under Art. 59 of the Labor Code, otherwise it is also recognized as indefinite according to Part 5 of Art. 58 TK.
A fixed-term employment contract can be terminated on a special basis, which is stated in clause 2, part 1, art. 77 of the Labor Code and Art. 79 of the Labor Code during the simplified procedure for terminating a contract upon expiration.
But it is also possible to dismiss an employee employed under an employment contract for other reasons.
Who is the initiator?
Labor legislation provides that dismissal can be initiated by both the employee and the employer. In order to begin the process of terminating a fixed-term employment contract, one of the parties should make a proposal to terminate the employment relationship.
Such an offer may be made either in writing or orally. That is, one of the parties can simply come to the other party in order to inform about the termination of the fixed-term employment contract.
However, the oral form of the proposal assumes that the parties will not have confirmation of the voluntariness of initiating dismissal.
Therefore, it is recommended to draw up a written document - a proposal (application) to terminate a fixed-term employment contract. Such a document is either given to one of the parties to the labor relationship, or sent through convenient communication channels (mail, e-mail, etc.).
The form of the offer is not enshrined in labor legislation, so the main thing is that it contains the intention to terminate a fixed-term employment contract (see Examples).
Sample proposal to terminate a fixed-term employment contract by agreement of the parties (initiator - employee):
Proposal to terminate a fixed-term employment contract by agreement of the parties (initiator - employee)
If the initiator is an employer:
Proposal to terminate a fixed-term employment contract by agreement of the parties (initiator - employer)
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Important!
The proposal may or may not specify the exact date of termination of the employment relationship. Since the employee is the weak party in labor relations, it is important for him to understand that if he writes down the date of dismissal in the offer and does not indicate any further conditions, and the employer agrees to this, then he will not be able to refuse further dismissal (clause 20 of the PPVS No. 2 dated March 17, 2004: cancellation of the agreement is possible only by agreement of the parties).
Therefore, when drawing up an application, it is recommended that the employee either indicate all the conditions of dismissal (compensation payments, date of dismissal, etc.), or indicate only his intention to terminate the fixed-term employment contract.
In judicial practice, the following position has been developed: in the absence of a separate document in the form of an agreement, dismissal by agreement of the parties is recognized as legal if the employee’s application indicates a specific date for termination of the contract, and there is also an order for dismissal (see Determination of the Moscow City Court dated August 24, 2010 in the case N 33-26190).
Having received an offer to terminate the employment relationship, the employer or employee can either agree to the further procedure for terminating the contract (by signing a document) or refuse. By signing the application, the other party can offer their terms of the agreement, that is, agree to terminate the fixed-term employment contract subject to conditions.
Example.
Let’s imagine that Ivan works at Rosa LLC under a fixed-term employment contract. The employer sees that Ivan is not particularly interested in the work process, so he sends him a proposal to terminate the contract.
After thinking for several days, Ivan comes to the conclusion that he does not want to quit. In this situation, the employer will not be able to force Ivan to resign. If Ivan agrees and signs the proposal, then the parties move on to the next stage.
Recommended reading:
The procedure for dismissing an employee upon expiration of the employment contract
Procedure for terminating a fixed-term employment contract at the initiative of the employee
Termination of a fixed-term employment contract at the initiative of the employer
Termination of a fixed-term employment contract at the initiative of the employee
Termination of the contract at the initiative of the employee is permitted if he expresses his desire in writing and submits it to the manager. Dismissal in this case will be subject to the general rules that are prescribed in Art. 80 of the Labor Code.
Dismissal is allowed both after two weeks of service established in the Labor Code, and on any other day by agreement of the parties. If an employee refuses to be fired and withdraws his application, then the employer does not have the right to dismiss him at his own request. The exception is cases when another employee has already been invited to take his place (in accordance with Part 4 of Article 80 and Part 4 of Article 64 of the Labor Code).
As a general rule, an employee is required to notify the employer 2 weeks before dismissal. But if a fixed-term employment contract is concluded for a period of up to 2 months, then the specified period is reduced to 3 days.
Early termination of an employment contract of a fixed-term nature - exceptions
As mentioned above, in case of early termination of an employment contract of a fixed-term nature, general legal norms apply. However, there are some exceptions. So, for example, a subject who has entered into an employment contract for a period not exceeding two months must notify his immediate employer of his decision to terminate the employment contract he has concluded no less than three days in advance. Similarly, employees hired to perform any seasonal work must notify the employer of their intention to quit at least three days in advance.
In accordance with the provisions of modern labor legislation, the head of an organization whose intention is to terminate a fixed-term employment contract early is obliged to notify his immediate employer (the owner of the property of a particular organization) about this in writing, within a period not exceeding one month.
In the same way, a subject who is an athlete or coach, whose intention is the early termination of a fixed-term employment contract, is obliged to notify of his dismissal within a period not exceeding one month. An exception may be cases when the employment contract with the designated entities was concluded for a period not exceeding four months.
It should also be noted that, in accordance with the provisions of modern labor legislation, subjects carrying out labor activities on the basis of a fixed-term employment contract, as well as subjects working under an employment contract of an open-ended type, have the right to withdraw the resignation letter they have written according to their own expressed desire, at any time during the period of notice provided for by law.
Termination of a fixed-term employment contract at the initiative of the employer
The dismissal of an employee employed under a fixed-term contract at the initiative of the employer is carried out under Art. 81 of the Labor Code.
In particular, the employer can initiate the dismissal procedure if the employee grossly violated his work duties, skipped work, committed theft, a staff reduction procedure was initiated, the owner of the company changed, the person responsible for material assets lost the trust of the employer, etc.
In order for the dismissal not to be considered illegal, the employer must strictly comply with the deadlines for warning employees about dismissal. For short-term contracts for a period of up to 2 months, the notice period is 3 days, for seasonal contracts - 7 days.
Such a variation as the employer’s initiative to dismiss is often challenged in court, as well as through appealing the company’s actions to the labor inspectorate or the prosecutor’s office. Therefore, the employer should approach the procedure for terminating a fixed-term employment contract with extreme care. In particular, record the facts of violations committed by the employee: being late, showing up at work drunk, etc.
Also, the parties to a fixed-term employment contract can terminate it by agreement at any time.
Termination procedure
In order to terminate a fixed-term employment contract at the end of its validity period, the employee should prepare a notice of termination of this document. If this is not done, then the employer faces the risk of recognizing the contract as indefinite.
According to Part 4 of Art. 58 of the Labor Code, if none of the parties to a fixed-term employment contract demands termination of its validity, then the contract will automatically become permanent. The exception is cases where a temporary employee was hired to replace the functions of another absent employee (under Part 1 of Article 79 of the Labor Code). Such an agreement is terminated when the permanent employee returns to work (Part 3 of Article 79 of the Labor Code).
An agreement that was signed to perform previously fixed work is terminated upon its completion (under Part 2 of Article 79 of the Labor Code) or upon completion of seasonal work (under Part 4 of Article 79 of the Labor Code).
In order to warn an employee about the upcoming termination of an employment contract, it is necessary to send him at least three days notice . The notification is sent in writing signed by the second employee.
The notification is signed by the head of the organization or an authorized employee (usually a human resources specialist). If the signatory was not given the appropriate authority, then the dismissal may be considered illegal.
The notice is drawn up and signed in two copies: one for the employer, the second for the employee. In order to minimize risks in the event of further disputes, the employer should keep one copy of the notice signed by the employee.
The fact of termination of a fixed-term employment contract is confirmed by an order, which the employee is also familiarized with by signature.
A note on the termination of a fixed-term employment contract is entered in the work book.
Tips for those who accept the option of early dismissal
Labor dispute specialists recommend that before concluding a fixed-term contract, you carefully study the entire text of the contract and substantively discuss each clause that affects the mutual obligations of the future employee and his employer. This precaution will help to identify points that may subsequently be interpreted as violations of the terms of the fixed-term contract being signed.
This clause primarily applies to professional athletes. According to Article 348.12 of the Labor Code of the Russian Federation, breaking a fixed-term contract for them may be fraught with the payment of a serious penalty to the employer if there is no compelling reason to terminate the contract.
Article 348.12. Features of termination of an employment contract with an athlete or coach
All other participants in labor relations do not face such costs in a similar situation, however, they should also think through all actions in advance - and only then voice a decision on early termination of the contract with the wording “on their own.” Ideally, the possibility of terminating a fixed-term employment contract should be provided for even before it is signed by the employee and the employer.
Video - Grounds for termination of an employment contract
Features for certain categories of workers
Termination of a fixed-term employment contract with certain categories of employees has certain nuances. In particular, the legislation specifically protects the right to work of pregnant women. For this category of employees, the employment contract is extended until the end of pregnancy or until the end of maternity leave (in accordance with Part 2 of Article 261 of the Labor Code).
At the same time, in order for the employment contract with a pregnant woman to be extended, she should:
- Confirm your pregnancy with documentation (in particular, a medical certificate).
- Submit an application to the employer to extend the term of the contract.
When extending the contract until the end of pregnancy, a woman should undergo a procedure to confirm the fact of pregnancy every three months (that is, constantly take a new certificate from the antenatal clinic).
The employer will have a week to dismiss from the day he learned about the end of the employee’s pregnancy. When a woman goes on maternity leave, she can be fired on the day it ends.
If a fixed-term employment contract with a pregnant woman is concluded for the purpose of replacing an employee, then when the latter returns to work, the woman “in a position” may be fired only if the vacancies offered to her for transfer did not suit her (according to Part 3 of Article 261 of the Labor Code).
Moreover, all vacancies offered by the employer must correspond to the woman’s health condition and can be either highly paid or low-paid.
For employees working remotely, employed by an individual, or working from home, the grounds for dismissal may be provided for in the employment contract itself.
The employment contract of foreign employees expires upon termination of their stay in the Russian Federation or the validity of their work patent, or upon cancellation of their work permit.
Teachers are dismissed on general grounds, but there are also specific grounds: in case of repeated violation of the charter, in case of violence (both physical and mental) against students; when they reach the age of 65 years (for rectors, vice-rectors - 70 years).
Athletes can be fired if they are disqualified for more than six months or for doping.
