Termination of a fixed-term employment contract. The procedure for terminating a fixed-term employment contract

In accordance with Part 1 of Art. 79 of the Labor Code of the Russian Federation, a fixed-term employment contract terminates with the expiration of its validity. The employee must be notified in writing about the termination of the employment contract due to its expiration at least three calendar days before the dismissal, except for cases when the term of the fixed-term employment contract concluded for the period of performance of the duties of the absent employee expires. +

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

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

Another option is also possible. If neither the employer nor the employee demanded 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, then the employment contract is considered concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation). In this case, the labor relations of the parties actually continue and the grounds for termination of the employment contract provided for by the article in question are no longer valid. If the parties subsequently express their intention to terminate the employment relationship, then the employment contract may be terminated on the appropriate general basis provided for by the Labor Code of the Russian Federation. +

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

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

The legal norms established in Part 2 - 4 of Art. 79 of the Labor Code of the Russian Federation, specify the moment of expiration of employment contracts concluded for the period of performing certain work, for the period of performing the duties of a temporarily absent employee, as well as for the period of performing seasonal work. To the varieties of fixed-term employment contracts indicated here, the general rules on termination of an employment contract due to the expiration of its validity, established in Part 1 of Art. 79 of the Labor Code of the Russian Federation: +

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

The possibility of concluding a fixed-term employment contract is provided for by law for special cases when the situation is such that conducting activities is only possible temporarily.

However, many people also use this document for personal purposes - for example, to have fewer responsibilities to the employee, and also to easily dismiss him at the end of the term if he doesn’t like something. Such actions become something natural due to the rarity of inspections and the lack of awareness of employees about their rights.

Regardless of whether the contract was concluded honestly, or the boss decided to cheat, there may come a time when it needs to be terminated ahead of schedule. Sometimes this happens at the initiative of the employer, sometimes the other way around. The main thing is to make it legal; unless, of course, neither party is opposed to termination. Otherwise, you can try to defend your rights.

Procedure

In normal situations, the procedure for terminating a fixed-term employment contract includes a period of validity until the date that was entered in it as the last day of work.

The only important point is that at least 3 days in advance, one of the parties must notify the other in writing that the time limit is ending. It means that:

or the boss must sign a document on the dismissal of the employee due to the expiration of the contract;
or the employee must do the same, only for him it will already be a letter of resignation.

If this moment is missed, in fact the contract remains in force, only flows into an open-ended one, and automatically.

Early dissolution

But there are other situations when the deadline has not yet come, and for some reason it is necessary to terminate the employment relationship. How to issue an early termination of a fixed-term employment contract? Interestingly, the TC does not impose special requirements for such cases.

Dismissal occurs according to the usual scheme - the same as is practiced when terminating fixed-term contracts.

An employee can also quit by notifying his superiors in advance, and he is not required to remain in place until the end of the term. The reasons can be anything. If the boss fires, then at his service is a list of violations, for which the termination of the fixed-term contract is required. By agreement of the parties, it is easiest to formalize the termination of a fixed-term employment contract.

Grounds for termination of cooperation

The grounds for terminating a fixed-term employment contract, if combined, may be as follows:

at the request of the employee;
at the initiative of the employer;
ideally - by agreement of the parties; this is the most harmless situation;

This means that the termination rules are the same as for a regular contract (urgent). Both the employee and the employer can easily use this if one of them wants to terminate the employment relationship ahead of schedule. If you analyze in detail, then the reasons why you can fire or quit, are detailed in articles 78, 80 and 81 of the Labor Code of the Russian Federation.

There are also special instructions. For example, if the contract was concluded for a period not exceeding two months, or if he was assigned to seasonal work, then the employee must notify the employer of leaving at least three days in advance. The head, regardless of the term, must warn a month in advance.

Termination of a contract with a pregnant woman

Termination of a fixed-term employment contract with a pregnant woman, both on and before the expiry date is not possible. The validity of the document must be extended until the end of pregnancy. Here it is better for the employer to make concessions, because in the event of a complaint against him, there will be a lot of problems.

If you do not agree that you are being fired early, you will have an advantage in the event that the employer violates the legislation of the Labor Code - for example, an illegal conclusion of a contract. You can always prove your case if you are really right and if you persevere.

The reason for termination of employment relations can be both the desire of the employee and the initiative of the employer. A fixed-term employment agreement, as a rule, expires upon its expiration. However, in some cases, a fixed-term employment contract can be terminated ahead of schedule.

From this article you will learn:

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

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

A fixed-term employment contract is an employment agreement concluded for a specific period of time or for the performance of a specific job, in the case when it is impossible to use an open-ended employment contract. Such employment contracts can be concluded for a very short period, for example, for a couple of months or a few weeks. Examples include seasonal work, temporary replacement of an absent employee, work in an elective position, etc. As a rule, a fixed-term contract expires due to the expiration of its validity period or upon completion of the work for which it was concluded.

About a fixed-term employment contract: read the sample

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

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

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

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

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

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

On the basis of the employee's application, the head of the organization issues a dismissal order and familiarizes the employee with this order against signature. In case of impossibility of familiarization, an appropriate note is placed on the order.

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

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

After submitting an application for dismissal, the employee has every right to withdraw his application at any time during the entire notice period. Then the dismissal of the employee is not carried out, but only if another employee was not invited to his place in writing, who, according to the norms of the law, cannot be refused to conclude an employment contract.

As soon as the warning period has expired, the employee has the right not to go to work. On the last day of his work, the employer must issue the work book to the employee and make the final settlement with him.

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

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

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 they 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 of the Russian Federation abroad, it is envisaged to renegotiate an 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. In the scientific literature, there have been arguments that the expiration of the term of an 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 did the right thing by 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 when the term of a fixed-term employment contract concluded for the duration of the performance of duties of an absent employee expires." In these cases, the obligation of a written warning to the employer is removed. Logically, this should be the case, but the absence of this exception in the previous version gave rise to different interpretations of this norm and could lead to labor disputes. In order to avoid conflict situations, it is advisable for personnel services 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 period of validity 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 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 years) 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 compensation payments paid upon termination of the employment contract, are 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 notifying 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 these employees with guarantees and compensation related to such dismissal, are determined by the employment contract."

Apparently, the will of the legislator in both cases - both in relation to employees employed in organizations of employers - individuals, and in relation to employees of 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 that affect the differentiation of the legal regulation of their work. 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 duties of the absent employee, and it is impossible, with the written consent of the woman, to transfer her before the end of pregnancy to another job available to the employer (as a vacant position or job corresponding to the qualifications of a woman, and a vacant lower position or lower-paid job) that a woman can perform taking into account her state of health.In this case, the employer is obliged to offer her all the vacancies that meet the specified requirements, available to him in the given area. in other localities, the employer is obliged, 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 an additional agreement in the old fixed-term employment contract, some of its conditions (on the labor function, place of work, term of the employment contract) are changed.

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, seasonal workers 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 (with the exception of 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 woman's pregnancy, the employer is obliged, upon her written application and upon presentation of a medical certificate confirming the state of pregnancy, to extend the validity of the employment contract until the end of pregnancy. A woman whose employment contract has been extended until end of pregnancy, is obliged, at the request of the employer, but not more often 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 a 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 Art. 332 of the Labor Code of the Russian Federation states 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 office of 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 term of office" 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 for concluding a fixed-term employment contract with the plaintiff and, as a result, legal grounds for terminating it under Art. 79 of the Labor Code of the Russian Federation.

As emphasized in the review of jurisprudence, the circumstances to be proven on this basis of dismissal are proved not only 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.

In the new version of the said 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 can conclude both a fixed-term agreement and an agreement 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 an employment relationship 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: “When deciding on the validity of concluding a fixed-term employment contract with an employee, it should be borne in mind that such an agreement is concluded when 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 the 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 dated March 17, 2004 N 2 (as amended on December 28, 2006 N 63) states that "when considering disputes related to the termination of an employment contract by agreement of the parties (paragraph 1 of part 1 of 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 property of the organization, 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 at least two weeks’ notice should apply, because there are no grounds to consider such an agreement 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 employees should be retained.

The wording of the order to dismiss such workers and the entries in the 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, a provision appeared in our labor legislation 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 reason. 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

For employees who have entered into a fixed-term employment contract, the general rules for terminating an employment contract at the initiative of the employer usually apply. 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 in connection with the liquidation of the organization, the 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 employed 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 fail to respond to the demands of the labor market, therefore, the issues of regulating the conclusion, amendment and termination of fixed-term employment contracts in the Labor Code of the Russian Federation, in comparison with the previous Labor Code (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.