How to properly fire a part-time worker: legal grounds and procedure

Registration for work and dismissal of a part-time worker

The employer must not forget that a part-time worker has the same rights as all other employees. In this regard, registration for a job or dismissal should be done on a general basis. The first point is carried out in three stages:

• drawing up and submitting an application containing a request for employment (an external part-time worker must provide a passport and education document to the enterprise’s HR department);
• signing of an employment contract (fixed or unlimited) by the parties;
• issuing an order stating that a person has been hired for internal or external part-time work.

And remember that when applying, you do not need to provide an extract from your work record book or a copy of it. Close attention should be paid to the employment contract; it is its provisions that play a decisive role when the question of dismissing a part-time worker arises. Otherwise, the procedure will be the same as for key employees.

The (employment) contract for part-time workers is the same as for others. It can be indefinite or urgent. This point is of significant importance when dismissing. Being of a fixed-term nature, an employment contract must also have an end date - a calendar date or before the occurrence of a certain event, for example, the end of seasonal work or repairs. In the indefinite version, this should not be the case; it is valid continuously until the moment the part-time worker is dismissed at his own request. Let us dwell on the issues of termination of an (employment) contract in more detail.

Procedure for registering the dismissal of an external part-time worker

External part-time work, of course, has some differences from internal, because in such a situation, the employee is employed at two enterprises at the same time, and not at one, but the procedure for dismissal on the above grounds remains the same.

Thus, both internal and external part-time workers are, in fact, separate full-time employees who can be dismissed either by personal will or by the will of the company’s management.

If there are disciplinary sanctions

In particular, an external part-time worker can be fired under Article 81 of the Labor Code of the Russian Federation for absenteeism, that is, absence from the workplace for at least 4 hours or a full shift, which for this particular category of employees is only half the monthly norm per month.

For a 4-hour absence, worker may well be fired or disciplinary action may be taken against him.

If there are several reprimands , a part-time employee can also be fired, but in this case, all documents confirming the existence of penalties will need to be attached to the dismissal order, starting from a memo about absence from work and ending with an act recording this fact.

For medical reasons

It should be noted that regardless of whether the employee performs his duties as a main employee or as an additional employee, the company’s management is obliged to monitor his health status, in particular, initiate medical examinations, especially if the enterprise has hazardous working conditions.

If a part-time worker, due to his state of health, can no longer perform his job duties, for example, in the event of a sudden illness or injury, he is first suspended from work for 4 months in accordance with the provisions of Art. 73 of the Labor Code of the Russian Federation, of course, if there is no suitable vacant position.

If full recovery within the agreed period is impossible, he is subject to dismissal in accordance with the norms enshrined in Part 8 of Article 77 of the Labor Code of the Russian Federation.

The basis for dismissal will be a medical report, which will stipulate labor standards and permissible loads. The medical report will need to be accompanied by a workplace certification describing the workload, thus proving that further cooperation is impossible.

And only if the specified documents are available, it will be possible to issue a dismissal order.

When the terms of the contract change

Considering that the additional worker is the same full-time employee as all other employees of the company, upon his employment an employment contract is concluded, and without fail.

On the basis of Article 72 of the Labor Code of the Russian Federation, the terms of the contract can be changed only if there is mutual consent of the parties, although in accordance with the norms of Article 74 of the Labor Code of the Russian Federation , it is possible to make changes at the initiative of the enterprise, but only if a certain procedure is followed.

In particular, delivery of notice of changes two months in advance .

However, in such a situation, the company’s management is obliged to offer employees, including part-time workers, other vacant positions, and if they disagree with the innovations, dismiss them on the basis of clause 7 of Article 77 of the Labor Code of the Russian Federation.

In this situation, the procedure for registering dismissal will be as follows:

• order to make changes to working conditions;
• notification to the employee with a note of receipt and decision;
• dismissal order.

When moving to a position

According to the norms set out in Article 288 of the Labor Code of the Russian Federation, a part-time worker is subject to dismissal if a permanent employee is invited to fill his position; however, there are cases when the part-time worker himself applies for his position, but in a different capacity, for example, in the event of dismissal from the main enterprise.

In such a situation, the additional employee is required to present not only a work book with a record of dismissal, but also provide a copy of the order to terminate the relationship.

Only after this does he have the right to write an application for admission as a main employee .

If such a situation arises, the employee is not obliged to inform the company where he works as a part-time worker about his dismissal. Perhaps he is happy with part-time work.

At the same time, the employer is not obliged to hire the employee as a main employee - perhaps a 4-hour shift suits him too .

In such a situation, the employment contract will have to be redone , because now the workplace will have the status of the main one.

After receiving confirmation of dismissal and the mutual desire of the parties to extend the relationship in a different employment capacity, the additional employee is subject to dismissal if there is an application for termination of cooperation and a repeated application for admission to the same position.

What may be the grounds for dismissal?

The answer to this question is the same - the same as for key employees. Dismissal cannot be carried out during the period of vacation (regular or maternity leave, for example), sick leave. The date when the employment contract is terminated, in this case, cannot be earlier than the end of these events. If an employee was hired for a certain period of time, then he can be fired only after it has expired and nothing else. There are, of course, exceptions, for example, disciplinary sanctions and violation of internal regulations, liquidation of the organization, but that’s another conversation.

Dismissal of a part-time worker can be made in three cases:

• at the initiative of the employer (change or reduction in the organization’s staff);
• at the employee’s own request;
• by mutual agreement of the parties to the employment contract.

Reasons and reasons

An internal part-time worker is considered an employee performing 2 types of work - the main one and part-time. Moreover, in the second position, the employee works no more than 4 hours a day and in his free time from his main job (Article 284 of the Labor Code of the Russian Federation). In addition, both such workplaces are located in the same company (enterprise).

In Art. 77 of the Labor Code of the Russian Federation establishes general grounds for the dismissal of an internal part-time worker. These are the following:

1. On the initiative of the head of the company (enterprise).
2. At the employee's own request.
3. Agreement of the parties.
4. Circumstances beyond the control of the parties. These, in particular, mean:
   conscription into the ranks of the RF Armed Forces;
5. death of an employee;
6. occurrence of emergency circumstances, etc.

In addition, the head of the enterprise (company) can dismiss this employee under a special article. 288 Labor Code of the Russian Federation. In such a situation, the employer fires the part-time worker and hires a new employee in his place, for whom the part-time job will be considered the main form of employment. Such dismissal is permissible only if the employment contract with the part-time worker was concluded for an indefinite period (indefinite).

An internal part-time worker working under a fixed-term agreement (contract) cannot be deprived of work under Art. 288 Labor Code of the Russian Federation.

Information about this prohibition can be found in judicial practice (for example, in the appeal ruling of the Irkutsk Regional Court No. 33-839/14 of February 5, 2014, the Stavropol Regional Court No. 33-1702/14 of April 1, 2014, or in the ruling of the Moscow City Court No. 33-7266 of March 6, 2012, etc.).

Accordingly, the dismissal of such an employee is permissible only on the general grounds specified in Art. 77 Labor Code of the Russian Federation.

Regardless of the type of employment contract, an internal part-time worker is not subject to dismissal in the following situations:

• while on vacation;
• while on sick leave;
• during pregnancy;
• in other cases prescribed in Art. 261 Labor Code of the Russian Federation.

The head of the organization has the right to dismiss the employees specified in Art. 261 of the Labor Code of the Russian Federation, upon liquidation of an organization (Article 81 of the Labor Code of the Russian Federation) or in case of violation of labor discipline.

Dismissal at your own request

This is the right of any employee, and it must be formalized in accordance with the legislation of the Russian Federation. The procedure is as follows: writing and submitting an application, preparing and issuing an order, dismissal.

Very often, the employer raises the issue of two-week work. There is currently no such concept in the current Labor Code. The situation is as follows: the employee is obliged to notify the employer at least two weeks in advance. The period begins to be calculated from the day following the submission of the application. The dismissal of part-time employees and key employees can be made earlier if the parties agree on this. And the second nuance is that a person is not required to be at work during the specified two-week period. He has every right to take sick leave or go on vacation, and the terms of dismissal do not change or be postponed.

Article 288 of the Labor Code of the Russian Federation

A separate chapter, number 44, is devoted to the regulation of issues related to part-time work in the Labor Code. In particular, it establishes temporary restrictions on the work of part-time workers and a number of labor guarantees.

One of them is to provide vacation at the same time as for the main job. The employer cannot refuse to exercise such a right; it is obliged to comply with the requirements of the law.

At the same time, Chapter 44 of the Labor Code of the Russian Federation establishes an additional basis for terminating the employment contract of an external part-time worker.

In addition to the common grounds set out in Art. 77 of the Labor Code of the Russian Federation, Article 288 mentions one more thing: a bonus for the same position of the main employee. The reasons for such a manager's decision can be very different.

Establishing an additional reason for terminating an employment relationship in this case will not be discrimination, since it applies to absolutely all part-time workers, external and internal.

A prerequisite for the application of such grounds for dismissal is Art. 288 of the Labor Code of the Russian Federation calls for written notification of a part-time employee at least two weeks before hiring the main employee.

Internal part-time worker: subtleties of dismissal

The general order is followed, but with minor nuances. Thus, the dismissal of an internal part-time worker does not mean termination of the contract with him for his main position. Let's take a closer look. Who is an internal part-time worker? An employee of an organization who, in his own organization, during non-working hours, i.e. free, performs some other, additional duties. Dismissal as a part-time employee is made by order with the obligatory indication of reasons and grounds. The main position is not affected; it remains with the employee. The opposite situation is also possible. In any case, an order must be issued for each of these actions.

Features of dismissal

There are two types of part-time workers:

• employees of the same enterprise or internal;
• employees of another company or external.

If an application is accepted from an external employee applying for a part-time job, he is required to present documents confirming his experience and relevant education.

An employment contract is drawn up exactly as for any employee, and can be:

• urgent or having limited validity (for example, until a permanent employee starts working);
• unlimited time frame or indefinite, valid until the employee expresses a desire to terminate the employment relationship.

The dismissal process is largely determined by the duration of the contract or its type (fixed or indefinite).

Part-time job reduction

Guarantees of labor rights are provided to part-time employees on an equal basis with main employees, but so do the responsibilities. The possibility of reduction is not excluded by law. Compliance with the established procedure is mandatory. The dismissal of an external part-time worker and an internal part-time employee due to staff reduction is similar to the procedure in relation to main employees. Namely, the employer is obliged to notify 2 months in advance that changes will be made to the organization’s staffing table (an order is issued about this). During this period, before the day of dismissal, the part-time employee must be offered other vacant positions, if any. Available vacancies may have lower pay and may not be as interesting or prestigious. You can refuse them, and then the dismissal of the part-time employee due to staff reduction is formalized within the prescribed period. Severance pay is calculated in the same way as for main employees: upon calculation (average monthly earnings) and for another two months if the person does not find a job during this period.

It is important to know that when laying off, there is no difference between a main employee or a part-time employee, and discrimination of rights on this basis is illegal. This statement is confirmed by judicial practice. You can always write a statement if you think that your rights have been violated.

Payments to a part-time worker

The final payment to the dismissed person should be made on the last day.

The following are subject to payment:

• salary accrued for the time period worked;
• compensation for those vacation days that the employee did not have time to take;
• severance pay in some cases;
• other types of compensation payments, if they are specified in the company’s internal documentation.

To calculate these amounts, the existing standard form is used - calculation note T-61.

Payment of compensation

The part-time worker has the right to monetary compensation for those days of vacation that he did not have time to take off. It is due to every person resigning, and the reason for dismissal and the initiative party do not matter.

When calculating this type of compensation payment, you need to multiply the average daily earnings for the last year by the number of unused days of annual leave. The last indicator is calculated taking into account the following formulas:

Severance pay

Compensation in the form of severance pay is issued to a dismissed part-time worker in the following cases:

• Reduction in the number of personnel - the amount of average earnings per month (if there is further unemployment for three months, another 2 monthly earnings are paid);
• Liquidation of the employer - the amount of payment is determined similarly to the previous paragraph;
• Subject to the conditions of Art. 178. Labor Code of the Russian Federation - the amount of average 2-week earnings;
• Other cases specified in the employer’s local internal documentation.

Dismissal of part-time workers at the initiative of the employer

In this option, the employment relationship can be terminated on a general basis. Firstly, for repeated and gross violation of the internal labor regulations of the institution. Modern labor legislation provides for three types of disciplinary sanctions: dismissal, reprimand, reprimand. All of them can be applied, the main thing is to follow the order and deadlines (recording the violation by drawing up an act, demanding explanations, punishment).

Secondly, the dismissal of an external part-time worker, even under an open-ended employment contract, is possible when another employee has been found in his place, for whom this particular work will be the main one. It is important to know that the employer must follow a certain procedure. He is obliged to notify at least 14 days before the day of dismissal of the part-time worker in writing (according to Article 288 of the Labor Code of the Russian Federation).

Thirdly, in connection with the end of a fixed-term employment contract if the employer does not want to extend it.

Legal basis

In accordance with the requirements of legislative acts, a part-time worker may have several additional jobs, but within reasonable limits.
It must be officially issued regardless of the enterprise that provides it. In addition, the working day of a part-time employee should not exceed 4 hours a day.

Article 288 of the Labor Code provides for the dismissal of an employee only at the initiative of the employer.

The restrictions provided for in Articles 81 and 261 of the Code do not apply to him, which include the dismissal of an external part-time worker while he is on sick leave or on labor leave.

If a part-time worker is among the persons having a preferential right in accordance with Article 261, then the employer is deprived of the right to dismiss him on his own initiative.

If the employer has decided to dismiss a part-time worker, then he must take into account the specifics of the employee’s legal status in industrial relations in order to avoid mistakes and prevent violations of labor legislation.

Otherwise, conflict situations may arise that must be resolved in court. As a rule, an employment contract concluded with a part-time worker is divided into a fixed-term and unlimited-term contract, in accordance with the instructions of Article 59 of the Labor Code.

The procedure for dismissing a part-time worker is carried out depending on its type in accordance with the instructions of Article 288 of the Labor Code of the Russian Federation.

If the employment contract is open-ended, then the employer has the right to terminate it upon hiring an employee for whom the work will become the main one.

In this situation, the employer must notify the part-time worker in writing about hiring the main employee two weeks in advance in accordance with Article 288 of the Labor Code.

The employer is deprived of the opportunity to dismiss an employee with whom he has entered into a fixed-term employment contract in accordance with the above article.

He can be dismissed exclusively on a general basis, that is, at the end of the agreed period, if the employee has not violated labor discipline. But the employer has the right to dismiss him subject to the liquidation of the enterprise.

An employer is deprived of the opportunity to fire a part-time worker if he is on leave, on sick leave due to temporary disability, on maternity leave related to pregnancy and childbirth, or caring for a young child.

He is obliged to respect the rights of the part-time worker without limiting them, therefore, when carrying out the dismissal procedure, he must follow the requirements of legal acts on labor.

If an employee quits his main job, then the part-time job is transferred to the main category, as a result of which he is not subject to dismissal from work at the initiative of the employer due to the hiring of another person.

Calculation of severance

Regardless of the reasons for dismissal, the employee must be paid on the day of his dismissal. Payments include wages, compensation provided for in the collective and labor agreements for unused vacation. On the same day, the employee is given a duly completed work book. We recommend that you always read the entries made in it; errors are common and it is better to correct them on the spot right away. Thus, monetary compensation upon dismissal of a part-time worker is similar to that given to main employees. True, there are small nuances regarding the annual main leave. Let's look at this issue separately.

Procedure for terminating an employment contract

The procedure for dismissing a part-time worker differs little from the traditional one. It depends on who exactly initiates the termination of cooperation: the part-time worker himself or the employer. In the first case, you will need to write a letter of resignation, but in the second it is no longer necessary.

The procedure for dismissing an external part-time worker (at the company’s initiative):

1. 
   Issuing an order to dismiss an employee.

2. Notification of the part-time worker about termination of the employment contract 2 weeks before the expected date of departure (under the signature of the external part-time worker).
3. Work for 2 weeks or 3 days (if required).
4. Preparing a settlement note for the payment of money.
5. Calculation of the part-time worker and issuance of the necessary documents (certificates, etc.).

On the last day, the external part-time worker is paid everything due and a copy of the dismissal order so that an entry can be made in the work book. This is the main difference between the dismissal of a part-time employee and the resignation of any other employee to whom the employer is obliged to issue a completed work report.

Administrative liability is provided for the delay in issuing a work book.

Vacation compensation

The legislator has established that the vacation of an employee working part-time must coincide with that provided at the main place. Therefore, it is often provided in advance. This fact must be taken into account when calculating vacation compensation for a part-time employee upon dismissal. If there was an advance payment, then you will need to make a deduction for the overused days of the required annual rest. You don’t have to take leave at an additional place of work, but only take monetary compensation - this is the employee’s right.

Time frame

When terminating your employment relationship with a part-time worker, you must notify him of this in due time.

1. Upon termination of the contract on the basis of Art. 288 of the Labor Code, the part-time employee must be notified about this 14 days in advance.
2. If you are fired due to incompetence, it is permissible to give 3 days notice.
3. In case of reduction of a part-time position – 2 months in advance. The same applies to making adjustments to the employment agreement.

You can prevent any bureaucratic delays if you strictly comply with all requirements when employing a part-time employee. Often, all manipulations are identical to those carried out when hiring workers to their main place of work. The main thing is to pay attention to some differences.

Sample notice of dismissal

NOTIFICATION

on termination of the employment contract

Dear Felix Petrovich!

We hereby notify you that, in accordance with Article 288 of the Labor Code of the Russian Federation, the employment contract dated December 31, 2013 No. 41, concluded between you and Vasilek OJSC, will be terminated on January 17, 2016 in connection with the hiring of the employee for whom this work will be the main one.

CEO

JSC "Vasilek" /Signature/ V.V. Vasiliev

Dismissal procedure

New amendments to the Labor Code of the Russian Federation regulating the procedure for terminating an employment contract with a part-time worker have not been adopted. Termination of labor relations is carried out according to the previous legal norms. It can be initiated by the employee, the employer and due to circumstances beyond the control of the parties. Termination of an employment contract is possible if the company is on the verge of bankruptcy - due to a reduction in staff.

If the dismissal is made at the initiative of the employee, then the basis (legal fact) is the employee’s statement. It is issued in the name of the general director, another official of a commercial organization vested with executive and administrative functions.

This is important to know: Retrenchment of a single mother during staff reduction

The application shall indicate:

• name of the employer's enterprise;
• information about the organization - its legal and actual address;
• data on branches and (or) representative offices in which the part-time worker performs work duties;
• information about the position is indicated;
• the nature of the employee’s employment;
• specialty code;
• information about the date of employment is indicated, individualizing the data of the employment contract - number, date of agreement.

The employee formulates a request to terminate the employment contract at his own request. He has the right to indicate the date of termination of the employment contract. The obligation to work a two-week period is taken into account. By agreement with the employer, the requirement to work off may not be observed. In exceptional cases - joining the army, long-term illness and disability, election of an employee to an elective position, employment in the civil service through competition, enrollment in full-time education, etc., work is not required for two weeks or any other period.

Termination of an employment contract at the request of the employer

Part-time dismissal is also carried out in cases established in the Labor Code of the Russian Federation - Art. 81. An employee may commit a serious disciplinary offense or systematically fail to show up for work. Termination of an employment contract is also possible when a specialist appears at the workplace in a state of drug or alcohol intoxication. Dismissal is also allowed if an employee has stolen material assets from the employer’s enterprise, or facts of loss of trust have been identified, including when a trade secret is disclosed.

Far-fetched pretexts for dismissing an employee are not permitted. All supporting facts must be carefully documented. Dismissal can be made on the basis of the materials of a criminal case - for example, when an employee stole property and money of the employer. An employee may be dismissed if it turns out that he does not correspond to the position held, which is revealed during certification and other activities designed to identify the employee’s competence.

An employee can challenge the dismissal and demand reinstatement if he believes that his rights have been violated. He has a month to do this from the date of termination of the employment contract. In other cases, the employee must receive:

• calculation;
• work book;
• statement of the amount of accrued salary.

Termination of an employment contract on the grounds provided for in the Labor Code of the Russian Federation - Art. 288 is carried out after the employer notifies the employee. Notification is made in writing. It indicates the grounds for dismissal, the expected date when the employee for whom the part-time job will be the main position will begin his duties.

The procedure for dismissing a part-time employee involves the following sequence of actions:

1. Submitting an application to the employer or receiving notice of dismissal from the head of the enterprise.
2. Working the required two-week period or without it by agreement with the employer or under forced circumstances.
3. Receive payment, work book and other required documents.

If part-time dismissal occurs, the employee must be paid in full. He is also entitled to all compensation payments - including vacation pay and sick leave. The employee receives compensation from the employer for unused vacation and other amounts provided for by the remuneration system.

Possible difficulties

Expert opinion

Lebedev Sergey Fedorovich

Practitioner lawyer with 7 years of experience. Specialization: civil law. Extensive experience in defense in court.

Taking into account the current judicial practice, most of the difficulties are associated with the employer’s refusal to pay the employee a timely settlement or payment of the settlement in an incomplete amount.

Cases related to labor disputes are not subject to state duty. The employer can also recover amounts spent on legal representation. Despite the subordinate nature of the relationship between employer and employee, violation of labor rights is unacceptable. In controversial situations, it is advisable to seek support from a qualified lawyer.

How to write an order to dismiss a part-time worker?

This document is filled out in accordance with the established form, which every personnel officer should have. Below is a sample of the dismissal of a part-time worker in terms of some wording. The reason line indicates the reason in accordance with the article of the Labor Code of the Russian Federation. For example, Art. 288 (on hiring an employee for whom this work will be the main one). Below, in the line “Base (document)”, the notice that was sent to the part-time worker and the employment contract (date and number) are indicated. It is important to familiarize the former employee with the order within the established time frame - 3 days from the date of its publication.

Required documents

When dismissing at your own request, a statement is always written, which indicates the date, surname, first name, patronymic of the employee, reason for dismissal, date. The application is signed personally. The “header” indicates the name of the organization and personal information of the manager to whom the applicant is applying.

When the contract is terminated, an order is issued at the initiative of the company. This document always indicates the number and date, as well as the reason for dismissal. The order is signed personally by the director of the company. A copy is given to the part-time worker and posted on a stand in the corridor.

Required documents upon dismissal are also:

1. notice of dismissal;
2. note-calculation (filled out by an accountant).

A notice of dismissal is usually issued in the event of liquidation of a company, reduction of staff, or for other reasons. It is a notice of the reason for the dismissal of an employee with reference to an order or decision of the general meeting of participants or shareholders of the company.

Important! The notice clearly states the date of termination. The employee must sign this document and make an inscription indicating that he has read it.

The calculation note is drawn up in form T-61 and contains information about the organization, the employee and the employment contract, as well as the calculation of vacation pay and other payments made by the chief accountant. The note will reflect the calculation of the accrued salary, the amount of vacation pay, severance pay, the final payment, the percentage of tax withholdings, and the company's debt to the employee (if any).

Based on the note, a full settlement is made with the part-time worker. The work book is filled out for him at his main job based on a copy of the employer’s decision on dismissal. There is nothing unusual about the filling. The reason for leaving, the article of the Labor Code of the Russian Federation and the order number must be indicated.