Is it possible to terminate an employment contract before putting the facility into operation? Fixed-term employment contract: how to extend, renew or terminate a fixed-term employment contract for the construction period
Temporary workers occupy a special position in the workforce. Their peculiarity follows from the temporary nature of the labor relationship. Those with whom it is possible to conclude a fixed-term employment contract are detailed in Art. 59 of the Labor Code of the Russian Federation. More than one article is devoted to the topic of the legal status and the peculiarities of the conclusion and termination of an employment contract with "temporary workers". From the point of view of personnel officers and managers of enterprises with temporary workers in the labor collective, it will be interesting to analyze the practice of litigation with temporary workers. What is the source of disputes? What are the claims in most cases typical of disputes with this category of workers? What are the features of the evidence base of the employer of the “temporary worker” and are there any special differences in comparison with disputes with employees who work on a permanent basis? What solutions are more inherent in the most "popular" disputes with "temporary workers"? Let us consider these and other issues using examples from judicial practice and draw appropriate conclusions based on judicial positions.
Based on the composition of the court decisions, the main composition of the disputing temporary workers is:
- "conscripts": employees with whom an employment contract is concluded for a certain period to perform a certain amount of work or based on the results of a competition;
- "substitute": employees hired for the period of absence of the main employee (for the period of his illness or vacation);
- part-time workers: employees hired part-time on a permanent basis, but who can be dismissed on an additional basis provided for in Art. 288 of the Labor Code of the Russian Federation - in connection with the hiring of an employee for whom this work is the main one. It is because of this feature that in this article we consider part-time workers as "temporary workers";
- seasonal workers: workers employed to perform seasonal work, when, due to natural conditions, work can only be performed during a certain period (season).
With other categories of "temporary workers", the term of labor relations with which is established on the grounds listed in Art. 59 of the Labor Code of the Russian Federation (for example, with persons sent to work abroad; with persons applying to work in organizations created for a predetermined period or to perform a predetermined job, etc.), litigation is very rare or does not occur at all. Practice in relation to them almost did not develop, typical disputes and claims did not form.
1. "Conscripts"
In accordance with paragraph 2 of Part 1 of Art. 77 of the Labor Code of the Russian Federation, the basis for terminating the employment contract is the expiration of the term of the employment contract (Article 79 of the Labor Code of the Russian Federation). The employee must be notified in writing of the termination of an employment contract due to its expiration at least three calendar days prior to dismissal, unless the term of a fixed-term employment contract concluded at the time of the performance of the duties of the absent employee expires. An employment contract concluded for the duration of a certain job terminates upon completion of that job.
Conclusion 1: The dismissal of an employee due to the expiration of the term of the employment contract is also lawful on the last day of his being on vacation (after its termination), while the employment contract is not considered to be extended indefinitely
Example: the head of the department did not agree with the dismissal under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation in connection with the expiration of the employment contract and challenged it in court. The court, having studied the documents submitted by the parties, came to the conclusion about the legality of concluding a fixed-term employment contract (by competition, with a scientific and pedagogical worker, which is allowed by Articles 59, 332 of the Labor Code of the Russian Federation and Article 20 of the Federal Law "On higher and postgraduate professional Education "dated 22.08.1996 № 125-FZ). The court also correctly concluded that the employer complied with the requirements of Part 1 of Art. 79 of the Labor Code of the Russian Federation, according to which the employee must be notified in writing about the termination of an employment contract due to the expiration of its validity period at least three calendar days before dismissal. The plaintiff's assertion that he was dismissed after the expiration of the employment contract, when, in his opinion, the employment relationship actually continued for an indefinite period, the court declared insolvent on the following grounds. So, Art. 127 of the Labor Code of the Russian Federation provides that upon dismissal due to the expiration of the term of the employment contract, leave may be granted with subsequent dismissal even when the vacation time is fully or partially outside the term of this agreement. In this case, the last day of vacation is also considered the day of dismissal. In such a case, there is an extension of the term of the employment contract for the period of the granted leave on the basis of the law. It follows from the case materials that the employment contract expired on June 19. At the request of the plaintiff, he was granted another vacation from June 18 to August 15. Therefore, in this case, August 15 is correctly indicated as the day of dismissal. Since it was not established any violations of the plaintiff's labor rights committed by the employer upon his dismissal, the court correctly refused to satisfy the claim for reinstatement at work.
An important additional conclusion of the court: even in the absence of a notification-warning about the upcoming expiration of the term of the employment contract, there is no basis for recognizing the dismissal as illegal, since the plaintiff, concluding a fixed-term employment contract, knew about the term of its validity and the consequences of the expiration of the term of the employment contract, and the employer, exercising his right, terminates the employment relationship with an employee due to the expiration of the employment contract.
Conclusion 2: An employment contract concluded for the duration of a certain job is terminated upon completion this work, and not just the direct functions of the individual worker.
Example: the employee filed a claim with the employer for reinstatement at work, indicating that the defendant unreasonably dismissed him under paragraph 2 of Part 1 of Art. 77 of the Labor Code of the Russian Federation due to the expiration of the employment contract. From the content of the employment contract and the admission order, the court established that the plaintiff was hired to perform a certain job in the project management group for the conversion of the customer's facility into an ice-resistant stationary platform. The employer dismissed the plaintiff before the launch of the ice-resistant platform, believing that the plaintiff had already fulfilled his functions according to his position.
The court disagreed with this opinion, pointing out that from the content of the employment contract it follows that it was concluded for the development of working and design documentation, the supply of materials and equipment, the construction and commissioning of an ice-resistant stationary platform No. 1 at the field. In addition, the employment contract established a specific deadline for the termination of the employment contract, which had not yet arrived at the time of the actual dismissal. Considering that the dismissal was carried out in violation of the requirements of labor legislation, the court reasonably satisfied the claims stated by the plaintiff, reinstating him at work.
2. Substitutes for the absent
By virtue of paragraph 2 of Part 1 of Art. 77 of the Labor Code of the Russian Federation, the grounds for terminating an employment contract are the expiration of the term of the employment contract (Article 79 of the Labor Code of the Russian Federation), except for cases when the labor relationship actually continues and none of the parties demanded their termination. The exit of the main employee is a sufficient reason to terminate the employment contract under clause 2, h. 1, Art. 77 of the Labor Code of the Russian Federation.
In most cases of disputes with substitute workers, the latter dispute the fact that this right of the employer arises, as well as his failure to comply with the guarantees established by the Labor Code of the Russian Federation upon dismissal.
The legal position on the issue under consideration was expressed by the Constitutional Court of the Russian Federation in its Ruling No. 614-О-О dated October 21, 2008, which indicated that the termination of an employment contract due to its expiration complies with the general legal principle of contract stability. An employee, giving consent to the conclusion of an employment contract in cases stipulated by law for a certain period, knows about its termination after the expiration of a predetermined period. The possibility of termination of a fixed-term employment contract concluded for the duration of the duties of a temporarily absent employee, before the end of the expected period of absence of such an employee, in particular in case of early termination of parental leave on the initiative of the employee (Article 256 of the Labor Code of the Russian Federation), is due to the need to protect the rights and the freedoms of a temporarily absent employee. This rule applies on all faces who have entered into a fixed-term employment contract and cannot be considered as contrary to the principle of equality of human rights and freedoms.
Conclusion 3: The employer has the right to dismiss the temporary worker replacing the main one, even if the latter is also subject to dismissal on one of the grounds provided for by the Labor Code of the Russian Federation.
Example: the employee did not agree with the dismissal under paragraph 2 of Part 1 of Art. 77 of the Labor Code of the Russian Federation and went to court with a claim for restoration. He considered that he was dismissed on the above grounds unlawfully, since the main employee, at the time of replacement of which he was hired, quit, and his employment contract was to take on the character of an indefinite one. During the consideration of the case, the court established that the plaintiff was hired for the period of the incapacity for work of the main employee; at the end of the certificate of incapacity for work, the employer warned the plaintiff about the termination of the fixed-term employment contract, and the plaintiff was dismissed under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation. A settlement was made with the plaintiff, and a work book was issued. On the same day (on the day of leaving the hospital), the main employee was dismissed due to his refusal to transfer to another job under paragraph 8 of Part 1 of Art. 77 of the Labor Code of the Russian Federation. Since the dismissal of the main employee was later than the temporary dismissal, the dismissal of the plaintiff under paragraph 2 of Part 1 of Art. 77 of the Labor Code of the Russian Federation lawfully and reasonably. When making a decision, the plaintiff's arguments that the employer had to conclude an open-ended contract with him, since the main employee quit, the court did not accept, indicating that the employer had the right to hire and he had the right to refuse the plaintiff to conclude a new employment contract for an open-ended basis. The court recognized the dismissal of the plaintiff as legal, and refused to satisfy the claims of the dismissed temporary worker (decision of the Achitskiy District Court of the Sverdlovsk Region of 23.04.2012 in case No. 2-94).
Conclusion 4: The main employee who has gone on maternity leave retains the right to choose the subsequent behavior: go to work or take parental leave. A substitute employee is subject to dismissal upon leaving the main employee, despite the previously reached agreement on the duration of the main employee's leave and, accordingly, the duration of the employment contract.
Example: an employee hired in the civil service in the place of a woman who had gone on maternity leave was hastily fired, because, in contrast to the generally accepted behavior, after the decree, the employee decided to work and only after a while take parental leave. The substitute employee decided that the employer was obliged to enter into another service contract with him by agreement of the parties or to change the essential terms of the contract. However, the court did not agree with the opinion of the dismissed “temporary worker”, pointing out that the expiration of a fixed-term service contract is an objective event, the occurrence of which does not depend on the will of the employer's representative, and therefore the dismissal of the plaintiff is legal and justified. The notification procedure was followed by the employer; the fact that the main employee had entered work was confirmed by a time sheet. Taking into account the above circumstances, the court concluded that the plaintiff was mistaken about the occurrence of allegedly other essential conditions and circumstances, provided for by Art. 29 of Law 79-FZ of July 27, 2004 "On the State Civil Service of the Russian Federation", related to the fact that after leaving the main employee soon went on another leave (to care for a child). The employer had no grounds for changing the terms of the employment contract with the plaintiff, in contrast to the grounds for terminating it. The court rejected the claims of the "temporary worker" as unfounded (the decision of the Oktyabrsky District Court of the city of Belgorod dated 07.08.2012 in case No. 2- 3280-2012).
Conclusion 5: The multiple conclusion of labor contracts (or transfers within the framework of one labor contract) does not give rise to the indefinite term of the labor contract in cases due to the temporary nature of the labor relationship at the time of replacement of the temporarily absent main employee.
Example: a bank teller who was hired as a temporarily absent employee for the period of maternity leave and subsequent parental leave was transferred eight times to other temporarily vacant similar positions in different branches of the same bank and was dismissed due to the expiration of the employment contract under clause . 2 h. 1 article 77 of the Labor Code of the Russian Federation in connection with the release of the main employee to work. Disagreeing with the dismissal, she filed a lawsuit against the employer, in which she asked to recognize the employment contract as indefinite, and the dismissal - illegal. The court, however, came to the conclusion about the legality of the plaintiff's dismissal, indicating that the multiple conclusion of fixed-term employment contracts with the plaintiff in this case is not a basis for recognizing the employment contract as open-ended, since fixed-term employment contracts with the plaintiff were concluded during the absence of the main employees, including in different structural divisions. The fact that the main employee at the last place of work again took parental leave does not have legal significance for the resolution of this dispute, since the plaintiff, under the terms of the supplementary agreement to the employment contract, was permanently transferred to an additional office before the main employee left for work. In addition, at the time of the decision, the main employee resumed her duties, and therefore the plaintiff could not be reinstated in her previous position. Thus, in this situation, only the fact that the main employee leaves for work is of legal significance, which is already a sufficient reason for terminating labor relations with an employee who was previously hired under a contract concluded for the duration of the performance of the duties of the absent employee (decision of the Nyagan City Court Khanty-Mansiysk Autonomous Okrug - Ugra dated October 29, 2012).
Conclusion 6: The transfer of an employee to a temporary position to replace an absent employee from a permanent job is an abuse of the right on the part of the employer and does not give the employer the right to dismiss her under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation upon leaving the main employee.
Example: dismissed under clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation, the employee filed a lawsuit against the employer for the recognition of the order to terminate the employment contract, reinstatement at work as illegal. The lawsuit was motivated by the fact that she was accepted to the defendant for a permanent job, was once transferred to another position, and subsequently dismissed in connection with the employment of the main employee. She considers her dismissal to be illegal, since she worked on a full-time basis. The court carefully studied the orders for the admission and transfer of the employee, her employment contract with an additional agreement, entries in the work book and came to the conclusion that the established contradictions in these documents do not indicate that the plaintiff's employment contract is urgent - until the leave from vacation on caring for the child of another employee. Taking into account the above, as well as evaluating the copy of the supplementary agreement submitted by the employer with unspecified corrections, the order from which it is seen that the employment contract was concluded with the plaintiff for the period of parental leave M ***, the court concluded that there were labor violations on the part of the employer. legislation and abuse of law. So, from the employment contract it followed that it was concluded for an indefinite period. Thus, the transfer of the plaintiff to the position of M *** could only take place by way of replacement. By virtue of the foregoing, the plaintiff could not be dismissed under paragraph 2 of Part 1 of Art. 77 of the Labor Code of the Russian Federation (due to the expiration of the employment contract). The court declared the dismissal unlawful and reinstated the plaintiff in office (decision of the Zheleznodorozhny District Court of the city of Ulyanovsk dated 25.06.2010; ruling of the Ulyanovsk Regional Court dated 03.08.2010 in case No. 33-2766 / 2010).
Conclusion 7: Artificial creation of grounds for termination of labor relations with an employee replacing the main employee, the court equates to the absence of grounds and dismissal under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation recognizes illegal.
Example: the employee won the dispute about reinstatement, despite the employer providing it with seemingly ironclad arguments. The essence of the case turned out to be as follows: the employee was hired under a fixed-term employment contract during the absence of the main employee, who was on maternity leave and subsequent parental leave until July 2012. However, the temporary worker was dismissed by the employer under paragraph 2 of Part 1 of Art. 77 of the Labor Code of the Russian Federation back in February of the same year with reference to the exit of the maiden. Meanwhile, the main employee was simultaneously (from the same date) written: an application for early release, an application for granting leave without pay. After the dismissal of the temporary employee, the main employee wrote an application for parental leave (again). The main employee did not go to work. Satisfying the plaintiff's demands for reinstatement at work, the court came to a reasonable conclusion that the defendant had no legal grounds for terminating the employment relationship with her. Despite the confusion of the written statements of the main employee, the court made the correct conclusion that, in fact, she did not go to work, continues to be on parental leave, which was reissued by the defendant, and the main employee had no intention of going to work and interrupting the vacation. Thus, the court did not recognize the dismissal of her substitute employee as legal and restored the latter at work (decision of the Dimitrovgrad City Court of the Ulyanovsk Region of 04/28/2010; ruling of the Ulyanovsk Regional Court of 06/08/2010 in case No. 33 - *** / 2010).
Disputes with substitute workers and guarantees of the Labor Code of the Russian Federation
A fairly large segment in the number of labor disputes with substitute “temporary workers” is made up of disputes with women, to whom the Labor Code of the Russian Federation provides a number of additional guarantees related to termination of an employment contract.
Labor legislation provides for the dismissal of an employee at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation), at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation), termination of an employment contract on independent grounds (Articles 79, 83 of the Labor Code of the Russian Federation). According to Part 2 of Art. 77 of the Labor Code of the Russian Federation, a fixed-term employment contract is subject to termination due to circumstances beyond the control of the parties, which are an objective event - the expiration of its validity period, the employer and the employee do not show any initiative here. Accordingly, the guarantees established by Art. 261 of the Labor Code of the Russian Federation, in this case, do not apply.
Temporary worker - a woman with children under the age of three
Article 256 of the Labor Code of the Russian Federation, which provides for the employee to retain his place of work for the period of parental leave, Art. 261 of the Labor Code of the Russian Federation, which provides for the prevention of termination of an employment contract with women with children under the age of 3, Art. 81 of the Labor Code of the Russian Federation, which provides for the prevention of dismissal of an employee during the period of his temporary incapacity for work and during the period of being on vacation, apply only to employment contracts concluded for an indefinite period.
Conclusion 8: Temporary worker, having a child under the age of three, adopted at the time of replacement of an absent employee, with the release of the latter to work, is subject to dismissal under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation due to the urgency of the nature of labor relations
Example: an employee who was on parental leave was dismissed under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The court recognized the dismissal as legal and denied the claim for reinstating the employee who did not agree with the dismissal. During the consideration of the case, it was established that the dismissed was initially accepted under a fixed-term employment contract for the time the main employee was on maternity leave and subsequent parental leave. During work, the temporary employee herself went first on maternity leave, and then on parental leave. With the exit of the main employee, the employment contract with her was terminated on the above grounds. The court, when deciding to dismiss the plaintiff in the claim, indicated that to the fixed-term employment contracts concluded between the employer and the employee during the performance of the duties of the absent employee - a woman on parental leave, the norms of Art. Art. 256, 261 of the Labor Code of the Russian Federation are not applied, including in the case of a newly hired employee leaving for parental leave. The legality of the dismissal of the temporary worker and the correctness of the conclusions of the court of first instance was also confirmed by the higher court, which upheld the decision (the decision of the Kirovo-Chepetskiy District Court of the Kirov Region of September 4, 2008; the determination of the Judicial Collegium for Civil Cases of the Kirov Regional Court of October 9, 2008).
Temporary worker - pregnant woman
In accordance with Part 3 of Art. 261 of the Labor Code of the Russian Federation, the dismissal of a woman is allowed 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 the impossibility, with the woman's written consent, to transfer her to another job available to the employer before the end of pregnancy (as a vacant position or a job that matches the qualifications of a woman, and a vacant lower position or lower-paid job) that a woman can perform based on her health condition. In this case, the employer is obliged to offer her all the vacancies that meet the specified requirements that he has in the area. A vacant position is a position provided for by the organization's staffing table, which is vacant, that is, not replaced (not occupied) by any specific employee. The position of an employee temporarily absent from work, which includes an employee on maternity leave, is not vacant, since the specified employee retains a place of work. The conclusion of a fixed-term employment contract for the time of the absent employee, by virtue of Art. 59 of the Labor Code of the Russian Federation, according to the judicial position, is a right, not an obligation of the employer.
Conclusion 9: A pregnant temporary worker can be dismissed in connection with the exit of the main employee, while the subsequent (after dismissal) release of the same position no longer obliges the employer to offer it as vacant. On the day of dismissal, this position is not yet considered vacant and is not included in the number of vacancies offered to a pregnant worker in accordance with Part 3 of Art. 261 of the Labor Code of the Russian Federation.
Example: an employee hired under a fixed-term employment contract for the period of replacement of an absent employee was dismissed, despite the state of pregnancy, in connection with the departure of the main employee to work. Challenging her dismissal in court, the plaintiff indicated that the employer had not offered her a vacancy that was vacated due to the dismissal of the main employee on the same day of release. The court established the following: according to clause 2 of the employment contract with the plaintiff, the day of termination of the contract is the day preceding the day the absent employee left ("A"). 07/30/2012 "A" wrote a statement on the interruption of parental leave and a desire to start work, in connection with which the plaintiff was sent a notice of dismissal due to the expiration of the employment contract. By order of 08/02/2012, the plaintiff was dismissed from her position under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation - due to the expiration of the contract. At the time of her dismissal, the plaintiff was in a state of pregnancy, which was known to the employer. The employer followed the dismissal procedure: the plaintiff was warned in advance about the termination of the contract, she was offered all the vacant positions available to the defendant, which she refused to occupy. Since the vacant position "A" at the time of the dismissal of the plaintiff could not be considered, the dismissal was recognized by the court in accordance with the law, the claim for recognizing the dismissal as illegal was reasonably denied to the employee (decision of the Zasviyazhsky District Court of Ulyanovsk dated 09/11/2012; the appeal ruling of the Ulyanovsk Regional Court from 12/04/2012 in case-33-3824 / 2012).
3. Side-workers
One of the temporary workers can be indirectly considered a part-time worker, that is, an employee hired part-time. The temporary nature of labor relations is due to the presence in the Labor Code of the Russian Federation of an additional basis for terminating an employment contract with persons working part-time, provided for in Art. 288 of the Labor Code of the Russian Federation. So, an employment contract concluded for an indefinite period with a person working part-time may be terminated in the event of hiring an employee for whom this work will be the main one, about which the employer warns the specified person in writing at least two weeks before termination of the employment contract.
However, this category of workers is also characterized by disputes arising from dismissal under Art. 288 of the Labor Code of the Russian Federation, associated with a misunderstanding by the parties to labor relations of both the grounds for dismissal and the specifics of labor relations with part-time workers.
Conclusion 10: The condition of part-time employment does not change when the position held (rotation) changes, unless otherwise provided by the employment contract; while additional grounds for dismissal remain
Practice: the employee did not agree with his dismissal under Art. 288 of the Labor Code of the Russian Federation, considering it illegal for the chosen reason. The court found that when hiring the plaintiff, a fixed-term employment contract was concluded for a certain position part-time, subsequently the employee was transferred to another position, about which the parties entered into an additional agreement to the employment contract. The court did not agree with the opinion of the employee that, when transferred to another position, he ceased to be a part-time worker and, therefore, could no longer be fired under Art. 288 of the Labor Code of the Russian Federation as a part-time worker. The court indicated that the condition of the part-time job was not changed by the parties, which was confirmed by the presented labor contract with the addition, timesheets, orders. Taking into account the foregoing, the court concluded that the dismissal of a part-time employee was lawful under Art. 288 of the Labor Code of the Russian Federation, since another employee was hired for whom this work was the main one. The court dismissed the employee's claim (decision of the Koptevsky District Court of Moscow dated 07.06.2011 in case No. 2-1113 / 11).
4. Seasonals
Seasonal workers, as well as persons who have entered into a fixed-term employment contract for up to two months (hereinafter referred to as “short-term workers”), are also typical “temporary workers”. However, disputes with this category of employees arise on a different matter, not related to the termination of the employment contract. So, the stumbling block becomes:
- severance pay (employees who have entered into an employment contract for up to two months are not paid severance pay upon dismissal (Article 292 of the Labor Code of the Russian Federation), and severance pay is established for employees employed in seasonal work and dismissed in connection with the liquidation of the organization, reduction in the number or staff of the organization's employees. in a reduced amount - in the amount of two-week average earnings (Article 296 of the Labor Code of the Russian Federation);
- payment of compensation for unused leave upon dismissal or granting leave in kind (seasonal workers and workers who have entered into an employment contract for a period of up to two months are entitled to two working days of vacation for each month of work - Articles 295, 291 of the Labor Code of the Russian Federation);
- inclusion of periods of work in seniority (periods of seasonal work or temporary work for up to two months, along with other periods of work, are included in the length of service required for the appointment of a pension - Article 10 of the Federal Law of December 17, 2001 No. 173-FZ "On labor pensions in the Russian Federation").
Conclusion 11: the periods of seasonal work should be included in the length of service for calculating the pension. If these periods are controversial, confirmation of the fact of seasonal work is possible through the court.
Example: G. filed a claim with the Pension Fund (PF) to include the disputable periods in the length of service for calculating the pension. In support of the claims, the plaintiff indicated that the PF refused to include the disputable periods of seasonal work in the length of service due to mistakes made by the personnel department in the plaintiff's work record book. The court found that when filling out the periods of seasonal work, the following errors were made in the work book: one dismissal record did not contain the director's signature, but there was a seal. In others, there were discrepancies in the orders on the basis of which the plaintiff was accepted and fired. These errors contradict the requirements of the rules for filling out work books. With the help of witness testimony, the plaintiff was able to prove the fact of multiple seasonal work on the collective farm. The court ruled that the disputable periods of work should be included in the plaintiff's seniority for calculating the pension (decision of the Sovetskiy District Court of Tomsk on February 27, 2012).
conclusions
- Disputes with temporary workers differ in the subject matter of the claim, the claim and the justification for the claim. Not all requirements are the same for different categories of “temporary workers”.
- The courts clearly follow the position of the legality of the employer's termination of the employment contract with the "temporary worker" upon the expiration date of the employment contract, regardless of the changed specific conditions. If the condition on the urgency of the employment contract has not changed - the application of paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation for its termination is lawful.
- The guarantees established by Art. 261 of the Labor Code of the Russian Federation in relation to pregnant women and persons with family responsibilities related to the prohibition on termination of the employment contract, in case of temporary labor relations, do not apply. At the same time, the obligation to offer vacancies to the dismissed remains for all cases of dismissal of a pregnant woman.
- Artificial creation of conditions for termination of an employment contract under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation is regarded by the courts as abuse by the employer of his right and the dismissal is recognized as illegal.
- If the employer fails to comply with the requirements of Part 1 of Art. 79 of the Labor Code of the Russian Federation on the notification procedure preceding dismissal, the court finds no grounds for recognizing the dismissal as illegal, since the plaintiff, concluding a fixed-term employment contract, knew about its validity period and the consequences of the expiration of the employment contract, and the employer, exercising his right, terminates labor relations with an employee due to the expiration of the employment contract.
- If earlier the employee's main argument in a dispute arising from dismissal was the employer's illegality to conclude a fixed-term employment contract, then modern judicial practice, in connection with the introduction of amendments to Art. 59 of the Labor Code of the Russian Federation already practically does not mention such arguments.
- Part-time workers, who, in fact, are also mostly temporary workers (before hiring an employee for whom this job will be the main one), seasonal workers and short-term workers very rarely dispute their dismissal. These categories of "temporary workers" are characterized by other claims - for wages, other monetary claims or related to them.
Last time we considered issues related to the conclusion of an employment contract for a certain period (see ""). However, as practice shows, problems arise even after the contract is concluded - for example, when it is terminated. Of course, the presence of a condition on the duration of the contract facilitates the procedure for parting with an employee. But, despite this, the employer is required to pay increased attention to such details as the terms of termination fixed in the contract and notification of the upcoming dismissal. You should also take into account the risks that arise when renegotiating and extending a fixed-term employment contract. In this article, we will tell you what issues regarding the relationship with "temporary" workers, the employer should pay special attention to.
Early termination of a fixed-term contract on the initiative of an employee
The organization entered into an employment contract with the employee for a period of one year. A month later, the employee wrote a letter of resignation. Does he have the right to quit before the end of the contract?
Termination of an employment contract before its expiration occurs according to the same rules that apply to termination of perpetual contracts. The fact is that the article of the Labor Code, which contains a list of grounds for terminating an employment contract, does not distinguish between a fixed-term and an open-ended contract. Thus, a temporary employment contract can be terminated before the expiration of the period specified in it, not only at the initiative of the employer, but also at the request of the employee (Article of the Labor Code of the Russian Federation, clause 22 of the resolution of the Plenum of the Supreme Court of the Russian Federation), as well as by agreement of the parties (Art. Of the Labor Code of the Russian Federation, clause 20 of the resolution of the Plenum of the Armed Forces of the Russian Federation) and for circumstances beyond the control of the parties to the agreement (Article of the Labor Code of the Russian Federation).
If the employee intends to resign of his own free will, then he is obliged to notify the employer about this. At the same time, the Labor Code did not establish any specifics in relation to contracts concluded for a period of more than two months. This means that the employee must notify the employer of his desire to terminate such an agreement at least two weeks in advance (Article of the Labor Code of the Russian Federation). If the term of the employment contract is less than two months, then the warning period is reduced to three calendar days (Art. And Labor Code of the Russian Federation).
How to properly fire an employee under a fixed-term contract
O organization iya dismisses an employee due to the expiration of an employment contract concluded for one year in connection with the expansion of production. However, the employee faces a trial for being fired without warning. Is it really necessary to warn the employee about dismissal in this case? If so, how to do it correctly?
The answer to the question whether it is necessary to notify the employee about the termination of a fixed-term employment contract depends on the basis for concluding such an agreement. So, if the contract is concluded for the duration of the duties of the absent employee or for the performance of work, the completion date of which is not determined, then notifying the employee about the upcoming dismissal is not required. But if the contract is drawn up for a certain period (that is, it indicates a specific date for its expiration), then the employee must really be notified of the termination of the contract. This must be done in writing at least three days before the end of the contract (this day will be the last day of the person's work, which means the day of his dismissal; Art. Labor Code of the Russian Federation). The notice must be handed over to the employee against signature. Such rules are established in the article of the Labor Code of the Russian Federation.
The notice is drawn up in any form. It must indicate the name of the employer, the name of the employee, the date and number (if any) of the employment contract. You also need to clearly indicate that this document is a notice of termination of an employment contract due to the expiration of its validity period and is drawn up in accordance with article of the Labor Code of the Russian Federation. Further, the notice indicates the date of termination of the employment contract (it must coincide with the date that is fixed in the contract itself) and the current date is put down. On the part of the employer, the notice is signed by the manager or other authorized person. It is advisable to draw up two copies of the notification, one of which will be handed to the employee, and the second - with the employee's signature of receipt - will remain in the organization. This will help eliminate any controversy about whether the notice was properly drafted.
Please note: illness or absence of an employee with whom a fixed-term contract has been concluded is not a basis for its extension. Therefore, even if a temporary employee is absent from the workplace, he still needs to be notified of the upcoming dismissal.
At the same time, the Labor Code does not spell out any consequences for cases when the notification described above is not served. Therefore, the employer has the right to dismiss the employee in connection with the expiration of the term of the employment contract, even if the notification was not sent. It is clear that this will create certain risks for the organization. In particular, the lack of notification of the upcoming dismissal is a violation of labor laws. And if this fact is timely (that is, within a year; article of the Code of Administrative Offenses of the Russian Federation) revealed by the labor inspectorate, the organization can be brought to administrative responsibility on the basis of article of the Code of Administrative Offenses of the Russian Federation.
Note that an employee who disputes the dismissal must justify the violation of his rights. By default, the courts proceed from the fact that failure to comply with the requirements of the article of the Labor Code of the Russian Federation on notifying an employee of termination of an employment contract due to the expiration of its term is not grounds for recognizing the dismissal as illegal. Indeed, when concluding a temporary employment contract, the employee knows both its urgent nature and the date of its termination. And the Labor Code, as already noted, does not regulate the issue of the consequences of untimely notification of the employee about the upcoming termination of a fixed-term employment contract (see, for example, the appeal ruling of the Moscow City Court dated 02.02.16 No. 33-3252 / 2016).
Renewal of a fixed-term employment contract
The employee is registered under a fixed-term employment contract to perform temporary work. It was planned that it will end within two months, but due to unforeseen circumstances, the deadline was delayed. Is it possible to renew a fixed-term employment contract for another two months?
The Labor Code does not explicitly prohibit the renegotiation of a fixed-term contract. Moreover, in relation to some categories of workers, this is expressly permitted (for example, part 1 of article of the Labor Code of the Russian Federation provides for the employer's right to renegotiate a fixed-term employment contract with an employee who is sent to work at a representative office of the Russian Federation abroad). Therefore, if after the expiration of the contract, it becomes necessary to continue the employment relationship, you can conclude a new fixed-term employment contract, which will enter into force immediately after the expiration of the previous one. But since the Labor Code does not directly indicate such a possibility, it is still better that a new contract, drawn up immediately after the expiration of the previous one, was concluded on a different basis, or for the performance of another labor function or work. In case of repeated renegotiation of a fixed-term employment contract for a short period to perform the same labor function (or work), the court may recognize that the contract has been concluded for an indefinite period (paragraph 4, clause 14 of the resolution of the Plenum of the Supreme Court of the Russian Federation).
In addition, the organization can be fined for violation of labor legislation (Art. Code of Administrative Offenses of the Russian Federation).
At the same time, other grounds can be used to conclude a new fixed-term employment contract. For example, to issue a temporary contract in connection with the performance of work outside the scope of the main activities of the company, or deliberately certain work, the completion time of which cannot be determined by a specific date.
If the contract has expired, but the work has not been completed
The organization entered into fixed-term employment contracts with a construction team to perform temporary work on the construction of the facility. The contracts indicate that they are drawn up to perform temporary (for a period not exceeding two months) construction work. As an event that determines the end of the work, the contract reads: "completion of construction." But due to the slow work of the brigade, the facility was not built in two months. Is it possible in this case to dismiss employees in connection with the expiration of the term of the contracts?
When concluding a fixed-term employment contract, the employer must remember the need to strictly follow the terms of termination of the contract, which are fixed in it. Therefore, if the moment of termination of the contract is determined by the occurrence of an event, in particular, the end of the construction of the facility, then the termination of the contract before the actual completion of construction will be illegal. Indeed, according to the rules of the article 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. This means that in the event of a dispute over the dismissal of an employee, the organization will have to confirm that by the time of his dismissal the work had indeed been completed. That is, she will have to submit the relevant acts (acceptance, commissioning, etc.). It will not work to terminate an employment contract for the performance of temporary work due to the expiration of the two-month period established in the article of the Labor Code of the Russian Federation as the maximum period for which such an agreement can be concluded.
Therefore, in the situation under consideration, the employer will either have to decide on the extension (renegotiation) of labor contracts, or dismiss the workers “under the article”. For example, on the basis of clause 5 of part 1 of article of the Labor Code of the Russian Federation in connection with repeated non-fulfillment of their labor duties without good reason. However, in this case, it is necessary to correctly and in advance take the actions necessary for such a dismissal. In particular, it is necessary that employees be brought to disciplinary responsibility (reprimand or reprimand) during the period of work (i.e. before the expiration of two months).
Prolongation of a fixed-term employment contract
By hiring a "seasonal" employee, the agricultural producer entered into an employment contract with him until August 31st. However, the work on harvesting was delayed. Is it possible to extend the term of the contract?
Formally, the Labor Code does not prohibit the extension of the term of an employment contract, and in some cases even directly prescribes to do so. For example, a temporary contract is extended upon election of a pedagogical worker, who belongs to the teaching staff, through a competition for filling a position previously held by him under a fixed-term employment contract (part 8 of Art. pregnancy of a woman (part 2 of Art. Labor Code of the Russian Federation).
However, the jurisprudence on this issue is contradictory. Thus, some judges believe that the extension of the term of the employment contract does not contradict the norms of the Labor Code and does not entail the retraining of the contract for an indefinite one. In this case, the arbitrators refer to the provisions of Article Art. and Art. Labor Code of the Russian Federation (see the definitions of the Moscow City Court dated 20.01.14 No. 33-1433 / 2014, the Supreme Court of the Chuvash Republic dated 23.12.13 No. 33-4638 / 2013 and the St. Petersburg City Court dated 18.10.10 No. 33-14178 / 2010 ). But at the same time, the courts also take opposite decisions. The judges acknowledge that the extension of a fixed-term employment contract violates the rights of the employee and, in fact, it must be considered that such an agreement is concluded for an indefinite period (see the definitions of the Omsk Regional Court dated 26.08.15 No. 33-6106 / 2015, the Moscow City Court dated 06.02. 12 No. 4g / 3-114 / 12 and the Supreme Court of the Republic of Sakha (Yakutia) dated 02.05.12 No. 33-1380 / 12).
When a fixed-term contract becomes indefinite
What happens if the actual term of the employment contract turns out to be longer than the maximum period allowed by the Labor Code?
As a general rule, a fixed-term employment contract cannot be concluded for a period exceeding five years (clause 2, part 1, article of the Labor Code of the Russian Federation). And for some cases, the article of the Labor Code of the Russian Federation sets shorter periods (2 months for contracts for the performance of temporary work; 1 year for contracts concluded in connection with the temporary expansion of production).
If the term of the employment contract (actual or directly specified in the contract) exceeds these maximum periods, then if a dispute arises, it is likely that the court will re-qualify it into an agreement concluded for an indefinite period. Similar consequences can arise when the facts of multiple renegotiation of the contract are established, including in a situation where the total period of its validity exceeds the limits established by the Labor Code (clause 14 of the resolution of the Plenum of the Supreme Court of the Russian Federation).
An employee with whom a fixed-term employment contract has been concluded performs his duties very well. The employer wants to take him to a permanent job. Is it possible to transfer an employee from a temporary job to a permanent one? Or is it obligatory to fire and accept again?
The Labor Code does not regulate this situation in any way. Formally, nothing prohibits the parties from drawing up an additional agreement to the employment contract, excluding from it the condition on the duration of its validity. In this case, the risk of claims from the regulatory authorities is minimal, since changes in the employment contract do not violate the employee's rights, but, on the contrary, provide him with additional guarantees.
At the same time, there is also a way, directly provided for by the Labor Code, to turn a fixed-term employment contract into an indefinite one. So, by virtue of the article of the Labor Code of the Russian Federation, the condition on the temporary nature of the employment contract automatically loses force if the contract has expired, and none of the parties demanded termination of the contract and the employee continues to work. In this case, the contract is considered concluded for an indefinite period (part 4 of article of the Labor Code of the Russian Federation). In this case, you do not need to draw up any additional personnel documents. However, it is worth noting that Rostrud still recommends concluding an additional agreement on the exclusion of the condition on the term of the contract (letter).
Civil
The essence of the dispute: 2.029 - Disputes arising from labor relations -> Cases of reinstatement at work, state ... -> in connection with dismissal at the initiative of the employer (Articles 71, 81 of the Labor Code of the Russian Federation)
Case No. 2-1056 / 2017
SOLUTION
In the name of the Russian Federation
Inta City Court of the Komi Republic
as part of the presiding judge Rumyantseva I.M.,
under the secretary of N.A. Kaminskaya,
with the participation of the prosecutor A.A. Eikhman,
plaintiff Pishkova K.I., her representative Adeeva N.N.,
considered in open court in the city of Inta of the Komi Republic on April 20, 2017, the case on the claim of K. I. Pishkova against the Limited Liability Company "Neftegazkomplektmontazh" on the recognition of the order as illegal, reinstatement at work, collection of payment for forced absenteeism, compensation for moral damage,
INSTALLED:
The plaintiff went to court with a claim against the defendant to recognize the order from __.__.__ No.__ on dismissal due to the expiration of the employment contract dated __.__.__ No.__ illegal, reinstatement<....>from __.__.__, collection of payment for forced absenteeism from __.__.__ to the day of the court decision, collection of expenses for payment of legal services in the amount of<....>rub. In support of her claims, she indicated that __.__.__ was hired by OOO Neftegazkomplektmontazh (hereinafter referred to as OOO NGKM) for the position<....>on the basis of an order from __.__.__ No.__ an employment contract was concluded with her from __.__.__ No.__ by position<....>... The employment contract was concluded for a period from __.__.__ until the end of the construction of the facility, at __.__.__ the contract expired, but she continued to work. __.__.__ the contract was changed, she was transferred to the administrative department for the position<....>... She did not receive the calculation and notification at the end of construction in __.__.__, which means the contract is considered indefinite. In the following translations, the urgency of the contract was not indicated anywhere. __.__.__ the contract was changed, she was transferred to the general department for the position<....>... __.__.__ the contract was changed and she was transferred to the production and technical department for the position<....>, after that there was a translation into<....>... __.__.__ she received notification No.__ of termination of a fixed-term employment contract from __.__.__ due to the expiration of the contract. __.__.__ she was dismissed under clause 2 of part 1 of Art. Labor Code of the Russian Federation. __.__.__ she turned to the employer to transfer her to another facility that exists and operates, and also recruits workers to other parts of the company. She disagrees with the dismissal order. Position<....>is the main one, and LLC "NGKM" has not been liquidated; it has a number of plots both in the Komi Republic and in the regions of the Russian Federation.
Subsequently, the plaintiff supplemented the claim and asked to recover compensation for non-pecuniary damage in the amount of<....>rub. (l.d. 53).
The plaintiff and her representative - Adeev N.N., at the hearing supported the claims in full on the arguments of the statement of claim.
The defendant's representative, OOO NGKM, did not appear at the hearing, and was duly notified of the day of the hearing. In objections to the claim, he indicated that he did not recognize the requirements in full. Between the employer and K.I. Pishkova. a fixed-term employment contract was concluded from __.__.__ No.__, in accordance with which Pishkova K.I. was hired at the OP "NGKM-Inta" for the position<....>, the term of the contract is determined by the end of the construction of the facility. __.__.__ By order No. __, a separate subdivision "NGKM-Inta" was created. In accordance with the order dated __.__.__ No.__ "On the reorganization of the Separate subdivision" NGKM-Inta ", in accordance with which two construction and assembly sections were formed as part of the construction site of CS-6" Intinskaya ":" CC-1 " and "KTs-2", that is, two construction and assembly sites within one construction object. By order of __.__.__ No.__, the work on the construction and assembly site "KC-1" was performed (completed), in connection with which fixed-term employment contracts with workers, concluded for the period of construction of the site "KC-1", were terminated. By the time this order was issued, the construction site of KS-6 "Intinskaya" had not been completed, one of the sites was built. In accordance with the order of __. __.__ No.__ work on the construction and installation site "KC-2" was completed, the construction site of KS-6 "Intinskaya" was completed, in connection with which the labor contracts concluded with employees for the period of completion of the construction of the facility, as well as until the end of construction object KS-6 "Intinskaya" "KTs-2" were traded. By letter from __.__.__ No.__ the plaintiff was notified of the termination of the employment contract in accordance with Art. Of the Labor Code of the Russian Federation, the notification was sent in advance and on time. In addition, in itself, not notifying the employee about the upcoming dismissal due to the expiration of the employment contract is not a violation of the dismissal procedure, which entails the illegality of dismissal and the need to restore the dismissed employee to his position. The representative of the defendant A.P. Goncharov, acting on the basis of a power of attorney, gave similar explanations at the hearing __.__.__ using videoconferencing established with the Solnechnogorsk Court of the Moscow Region. The court considers it possible to consider the case in the absence of the defendant's representative.
Having heard the plaintiff and her representative, having examined the materials of the case, having heard the conclusion of the prosecutor, the court comes to the following.
The court found that __.__.__ LLC "NGKM" concluded with Pishkova K.AND. employment contract №__, according to which Pishkova K.AND. was hired by the Separate Subdivision "NGKM-Inta" (hereinafter - OP "NGKM-Inta") for the position<....>for a period - until the end of the construction of the facility.
According to the personal statement of Pishkov K.I. asked to hire her<....>under an employment contract in OP NGKM-Inta for the facility CS-6 Intinskaya from __.__.__ for the period of construction of CS-6 Intinskaya.
The plaintiff was hired by LLC "NGKM" in the OP "NGKM-Inta" SMU-4 Tractor column with __.__.__ for the position<....>on the basis of the order from __.__.__ No.__ __.__.__ transferred to the administrative department for the position<....>on the basis of order from __.__.__ No.__ and amendments No.__ to the employment contract No.__ dated __.__.__. __.__.__ transferred to the general department for the position<....>on the basis of order from __.__.__ No.__ and amendments No.__ to the employment contract No.__ dated __.__.__. __.__.__ transferred to the production and technical department for the position<....>on the basis of changes No.__ to the employment contract dated __.__.__ No.__. __.__.__ transferred to the Separate Subdivision "NGKM-Inta" SMU-4 to the construction and installation site "KTs-2" to the production and technical department for the position<....>on the basis of order from __.__.__ No.__ and additional agreement No.__ to the employment contract dated __.__.__ No.__.
According to the Charter of LLC "NGKM", approved by the minutes of the Extraordinary General Meeting of Participants of LLC "NGKM" dated __.__.__ No.__, the Company is a non-public corporate legal entity (corporation), the main purpose of the Company's activities is to make a profit, including by performing construction work. The company may have subsidiaries with the rights of a legal entity. The Company can create branches and open representative offices that are not legal entities and act on the basis of the provisions approved by the Company by the meeting of the Company's participants. The responsibility for the activities of the branch and the representative office is borne by the Company that created them.
By order of LLC "NGKM" dated __.__.__ No.__ in connection with the conclusion of a subcontract agreement dated __.__.__ No.__ for the construction of the facility: "KS-6" Intinskaya ", KC-1" as part of the construction site "System of main gas pipelines Bovanenkovo-Ukhta "a separate subdivision" NGKM-Inta "(hereinafter referred to as OP" NGKM-Inta ") was created with the location at the address: ____.
According to the Regulations on OP "NGKM-Inta", approved by the General Director of LLC "NGKM" __.__.__, OP "NGKM-Inta" is not a legal entity, the purpose of the activity is to make a profit from doing business and distribute the profit among the members of the Company in proportion to their contributions to the authorized capital of the Company, in order to achieve these goals, carries out all types and areas of the Company's activities provided for by its charter, including the construction, repair and operation of gas and oil pipelines, and the performance of related work.
In accordance with the subcontract agreement dated __.__.__ No.__ for the construction of the facility: "KS-6" Intinskaya ", KC-1" as part of the construction site "System of main gas pipelines Bovanenkovo-Ukhta", concluded by LLC Stroygazmontazh and LLC Neftegazkomplektmontazh ", the start and end date of work and its stages is determined by the schedule of work on the objects. The date of completion of construction is the date of signing the act of the working commission on the readiness of the completed construction of the object for presentation to the acceptance commission.
According to the work schedule, the preparation of the construction site began in September 2010, from December 2010 - the main construction facilities, from October 2010 - transport and communications facilities, from January 2011 - external networks and water supply facilities, sewerage, from July 2011 - improvement and gardening of the territory, completion of work - September 2012.
In accordance with subcontract agreement No.__ construction of the facility - "KS-6" Intinskaya ", KC-2" as part of the construction site "System of main gas pipelines Bovanenkovo-Ukhta", concluded by __.__.__ LLC "Stroygazmontazh" and LLC "Neftegazkomplektmontazh", the start and end dates of work and its stages are determined by the schedule of work on the objects. The date of completion of construction is the date of approval of the act of acceptance of the completed construction of the facility by the acceptance committee.
According to the work schedule, the work began in December 2013, the end of the work - August 2015.
By order of OOO Neftegazkomplektmontazh dated __.__.__ No. __ in connection with the conclusion of a subcontract agreement for the construction of the facility "CS-6" Intinskaya ", CC-2", as well as with the second stage of construction of the facility "CS-6" Intinskaya " , KTs-1 "as part of the Separate subdivision" NGKM-Inta "(SMU-4), two construction and assembly sites were formed:" KTs-1 "," KTs-2 ".
According to the passport of the object - "KS-6" Intinskaya "KC-2" as part of the construction site of the SMG "Bovanenkovo-Ukhta" LLC "Neftegazkomplektmontazh" acts as a contractor, the responsible manufacturer of work on the project is OP "NGKM-Inta", the start date of work is 1 -th quarter of 2014, completion date - 4th quarter of 2014.
On the basis of the order of LLC "NGKM" dated __.__.__ No.__ in connection with the end of the deadlines for the construction of the object "KS-6" Intinskaya ", KC-1", established by the subcontract agreement No.__ dated __.__.__, it was necessary to notify employees working on fixed-term employment contracts in the OP "NGKM-Inta" about their dismissal due to the completion of work at the facility "KS-6" Intinskaya ", KTs-1"; terminate fixed-term employment contracts with notification of employees of OP "NGKM-Inta" on the basis of clause 2, part 1 of Art. Labor Code of the Russian Federation; make a settlement with the released personnel.
Thus, the plaintiff's argument that the construction of the facility "KS-6" Intinskaya ", KC-1" was completed in 2012, and she should have been dismissed in 2012, is refuted by the case materials.
The certificate of acceptance of the completed construction of the facility dated __.__.__ No.__ ZAO Yamalgazinvest accepted the construction facility - CS-6 Intinskaya, CC-2, construction and installation works were completed on time, work commenced in January 2015, completed works - November 2016.
By order of LLC "NGKM" dated __.__.__ No.__ in connection with the signing of an opinion on the compliance of the constructed capital construction facility with the requirements of technical regulations, other regulatory legal acts and project documentation, including the requirements for energy efficiency and the requirements for equipping the capital construction facility with metering devices used energy resources from __.__.__ No.__, construction of the facility "KS-6" Intinskaya ", KC-2" has been completed; the head of the personnel department was ordered to notify employees with whom fixed-term employment contracts were concluded before the end of the construction of the facility, before the completion of the construction of the facility "KS-6" Intinskaya ", KTs-2" about the termination of employment contracts in accordance with Art. Labor Code of the Russian Federation; heads of structural divisions serving the construction of the facility "KS-6" Intinskaya ", KTs-2" were ordered to organize the transfer of employees of the divisions with which permanent employment contracts were concluded to other facilities.
The administration of Inta ICDO issued a permit to commission the facility - "KS-6" Intinskaya ", KC-2".
OOO "Neftegazkomplektmontazh" sent K.I. Pishkova by mail a notification from __.__.__ on termination of the __.__.__ employment contract dated __.__.__ No.__ due to the expiration of the term.
The employment contract with the plaintiff was terminated due to the expiration of its term under paragraph 2 of part 1 of Art. Of the Labor Code of the Russian Federation on the basis of an order dated __.__.__ No.__ with payment of compensation for unused vacation.
DECIDED:
Refuse K. I. Pishkova to satisfy the claims against the Limited Liability Company "Neftegazkomplektmontazh" to recognize the order of __.__.__ No.__ on dismissal as illegal, reinstatement in office<....>from __.__.__, collection of payment for forced absenteeism for the period from __.__.__ to the day of the court decision, compensation for moral damage in the amount of<....>rub., legal costs in the form of expenses for payment of services of a representative in the amount of<....>rub.
An appeal may be filed against the decision, submission to the Supreme Court of the Komi Republic through the Inta City Court within a month from the date of the decision in the final form.
The motivated decision was made on 04/27/2017 at 17:00.
[F. Name / Full name of the employer] represented by [position name, full name], acting on the basis of the [Charter, regulations, power of attorney], hereinafter referred to as the "Employer", on the one hand and a citizen (s) of the Russian Federation
[F. Name of the employee], hereinafter referred to as the "Employee", on the other hand, together referred to as the "Parties", have entered into this agreement as follows:
1. The Subject of the Agreement
1.1. Under this employment contract, the Employee undertakes to fulfill the duties of the profession / position [indicate work according to the position in accordance with the staffing table, profession, specialty, indicating qualifications; the specific type of work entrusted to the employee] in [place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of an organization located in another locality - the place of work with an indication of the separate structural unit and its location], and The Employer undertakes to provide the Employee with the necessary working conditions provided for by labor legislation, as well as timely and full payment of wages.
1.2. Work under this contract is the main place of work for the Employee.
1.3. The working conditions at the workplace according to the degree of hazard and (or) hazard are [optimal (class 1) / acceptable (class 2) / harmful (indicate the hazard class and subclass) / hazardous (class 4)].
1.4. The term of the trial for hiring is [specify the term] ./ The employee is hired without trial.
1.5. An employment contract is concluded for the performance of a deliberately defined job, the completion of which cannot be determined by a specific date.
1.6. The employee is obliged to start work on [date, month, year].
1.7. The employment contract terminates upon completion of the work entrusted to the Employee.
1.8. The employee is obliged to complete the work entrusted to him no later than [date, month, year].
2. The rights and obligations of the employee
2.1. The employee has the right to:
Conclusion, amendment and termination of an employment contract in the manner and on the terms established by the Labor Code of the Russian Federation, other federal laws;
Providing him with work, stipulated by the employment contract;
A workplace that meets the state regulatory requirements for labor protection and the conditions provided for by the collective agreement [if any];
Timely and in full payment of wages in accordance with their qualifications, labor complexity, quantity and quality of work performed;
Rest, provided by the establishment of normal working hours, reduced working hours for certain professions and categories of workers, the provision of weekly days off, non-working holidays, paid annual leave;
Complete reliable information on working conditions and labor protection requirements at the workplace;
Training and additional professional education in the manner prescribed by the Labor Code of the Russian Federation, other federal laws;
Association, including the right to form and join trade unions to protect their labor rights, freedoms and legitimate interests;
Participation in the management of the organization in the forms provided for by the Labor Code of the Russian Federation, other federal laws, if any - and the collective agreement;
Conducting collective bargaining and the conclusion of collective agreements and contracts through their representatives, as well as information on the implementation of the collective agreement, agreements;
Protection of their labor rights, freedoms and legal interests by all means not prohibited by law;
Resolution of individual and collective labor disputes, including the right to strike, in accordance with the procedure established by the Labor Code of the Russian Federation, other federal laws;
Compensation for harm caused to him in connection with the performance of labor duties, and compensation for moral harm in the manner established by the Labor Code of the Russian Federation, other federal laws;
Compulsory social insurance in cases stipulated by federal laws;
Labor legislation
2.2. The employee is obliged:
Conscientiously fulfill his labor duties assigned to him by the employment contract;
Comply with the internal labor regulations;
Observe labor discipline;
Comply with the established labor standards;
Comply with labor protection and labor safety requirements;
Take care of the property of the Employer (including the property of third parties held by the Employer, if the Employer is responsible for the safety of this property) and other employees;
Immediately inform the Employer or direct supervisor about a situation that poses a threat to the life and health of people, the safety of the Employer's property (including the property of third parties held by the Employer, if the Employer is responsible for the safety of this property);
Labor legislation and other regulatory legal acts containing labor law, collective agreement, local regulations].
3. Rights and obligations of the employer
3.1. The employer has the right:
Conclude, modify and terminate an employment contract with an Employee in the manner and on the terms established by the Labor Code of the Russian Federation, other federal laws;
Conduct collective bargaining and bargaining;
Encourage the Employee for conscientious and effective work;
Require the Employee to fulfill his job duties and respect the property of the Employer (including the property of third parties held by the Employer, if the Employer is responsible for the safety of this property) and other employees, to comply with the internal labor regulations;
Bring the Employee to disciplinary and material liability in the manner prescribed by the Labor Code of the Russian Federation, other federal laws;
Adopt local regulations;
Create associations of employers in order to represent and protect their interests and join them;
Create a works council;
- [other rights provided for by the current Labor legislation and other regulatory legal acts containing labor law, collective agreement, local regulations].
3.2. The employer is obliged:
Comply with labor laws and other regulatory legal acts containing labor law norms, local regulations, terms of an employment contract, agreements, collective agreement [if any];
Provide the Employee with work stipulated by the employment contract;
Ensure safety and working conditions that meet state regulatory requirements for labor protection;
Provide the Employee with equipment, tools, technical documentation and other means necessary for the performance of his job duties;
Provide the Employee with equal pay for work of equal value;
To pay in full the salary due to the Employee within the terms established in accordance with the Labor Code of the Russian Federation, the collective agreement [if any], the rules of the internal labor schedule, the labor contract;
Conduct collective bargaining, as well as conclude a collective agreement in accordance with the procedure established by the Labor Code of the Russian Federation;
Provide employee representatives with complete and reliable information necessary for concluding a collective agreement, agreement and monitoring their implementation;
Introduce the Employee against signature with the adopted local regulations directly related to his labor activity;
Timely fulfill the instructions of the federal executive body authorized to exercise federal state supervision over the observance of labor legislation and other regulatory legal acts containing labor law norms, other federal executive bodies exercising state control (supervision) in the established area of activity, pay fines imposed for violations of labor laws and other regulatory legal acts containing labor law;
Consider the submissions of the relevant trade union bodies, other representatives elected by the employees on the violations of labor legislation and other acts containing labor law norms, take measures to eliminate the violations identified and report on the measures taken to the indicated bodies and representatives;
Create conditions that ensure the participation of the Employee in the management of the organization in the forms provided for by the Labor Code of the Russian Federation, other federal laws and the collective agreement [if any];
Provide the everyday needs of the Employee related to the performance of his labor duties;
Carry out compulsory social insurance of the Employee in the manner prescribed by federal laws;
Compensate for harm caused to the Employee in connection with the performance of his labor duties, as well as compensate for moral harm in the manner and on the conditions established by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation;
- [other obligations stipulated by the current Labor legislation and other regulatory legal acts containing labor law, collective agreement, local regulations].
4. Working hours and rest times
4.1. The employee is set [five-day work week with two days off / six-day work week with one day off / work week with flexible days off / part-time work week].
4.2. The duration of daily work / part-time work is [value] hours.
4.3. The start and end times of work, the time for granting a break and its duration [in the case of granting days off on a sliding schedule - alternation of working and non-working days] are established by the internal labor regulations.
4.4. The employee is granted basic annual paid leave of [value] calendar days.
4.5. The employee is provided with an additional annual paid leave of [value] calendar days [indicate the basis for granting additional leave].
4.6. For family reasons and other valid reasons, the Employee, upon his written application, may be granted unpaid leave, the duration of which is determined by agreement between the Employee and the Employer.
5. Terms of remuneration
5.1. An employee is paid a salary in the amount of [amount in figures and words] rubles.
5.2. Additional payments and allowances of a compensatory nature, including for work in conditions deviating from normal, the system of additional payments and allowances of a stimulating nature and the bonus system, are established by the collective agreement, agreements, local regulations and other regulatory legal acts containing labor law norms.
5.3. Wages are paid to the Employee [specify the specific dates of the calendar month] ./ The wages are paid to the Employee at least every half month on the day established by the internal labor regulations.
5.4. When performing work outside the normal working hours, at night, on weekends and non-working holidays, when combining professions (positions), while performing the duties of a temporarily absent employee, the Employee is paid appropriate additional payments in the manner and amount established by the collective agreement and local regulations.
5.5. For the period of validity of this employment contract, the Employee is subject to all guarantees and compensations provided for by the current labor legislation of the Russian Federation.
6. Responsibilities of the parties
6.1. In case of non-fulfillment or improper fulfillment by the Employee of his duties specified in this employment contract and job description, violation of the labor legislation of the Russian Federation, as well as causing material damage to the Employer, he bears disciplinary, material and other liability in accordance with the current legislation of the Russian Federation.
6.2. The Employer bears material and other liability to the Employee in accordance with the current legislation of the Russian Federation.
7. Final provisions
7.1. Disputes between the Parties arising from the performance of this employment contract are considered in the manner prescribed by the Labor Code of the Russian Federation and other federal laws.
7.2. In all other respects that are not provided for by this employment contract, the Parties are guided by the legislation of the Russian Federation governing labor relations.
7.3. The employment contract is concluded in writing, drawn up in two copies, each of which has the same legal force.
7.4. All changes and additions to this employment contract are formalized by a bilateral written agreement.
7.5. This employment contract may be terminated on the grounds provided for by the current labor legislation.
8. Details and signatures of the parties
I received a copy of the employment contract [date, month, year] [signature, surname, initials of the employee]
Recall that the concept of "seasonal work" is disclosed in part 1 of article 293 of the Labor Code. Due to climatic or other natural conditions, they are performed only for a certain period of time. Its duration is usually no more than six months. At the end of the season, the employee can be fired.An employee can, on his own initiative, terminate the contract ahead of schedule. Let's consider these and other situations in detail.
Dismissal of a seasonal worker - termination of a fixed-term employment contract
Since seasonal work implies the establishment of labor relations only for a certain period of time, a fixed-term employment contract is concluded with the employees hired to perform them. This is stated in part 1 of article 59 of the Labor Code.
Date or condition of termination of the employment contract
As a rule, in a fixed-term employment contract with a seasonal worker, the day of its termination is indicated. However, it happens that at the time of its preparation it is impossible to indicate a specific date. This is due to the specifics of seasonal work. For example, it is impossible to predict exactly when the harvest season will end. In this case, the fixed-term contract terminates on the day of the end of the seasonal work period (part 4 of article 79 of the Labor Code of the Russian Federation). In this case, instead of the exact date, a certain condition (event, fact) is indicated, upon the occurrence of which the employment contract ends. For example, you can record that the contract expires at the end of the field work. The duration of specific seasonal work is determined by industry agreements.
The procedure for terminating an employment contract with a seasonal worker
The procedure for terminating an employment contract with a seasonal worker is regulated by Articles 79 and 296 of the Labor Code of the Russian Federation.
Dutiesemployer. Part 4 of Article 79 of the Labor Code of the Russian Federation states that a fixed-term employment contract with a seasonal worker is terminated due to the end of the season. An employee must be notified in writing about the termination of a fixed-term employment contract at least three calendar days before dismissal (part 1 of article 79 of the Labor Code of the Russian Federation).
Dutiesemployee. In turn, an employee who decides to quit before the end of the season must notify the employer in writing three calendar days in advance (part 1 of article 296 of the Labor Code of the Russian Federation).
Vacationfollowed bydismissal. A seasonal worker, like any other employee, is entitled to annual paid leave. However, it is not always possible to realize it during the working season. Therefore, the practice of granting leave with subsequent dismissal.
In this case, the vacation time, in whole or in part, goes beyond the term of the employment contract. When granting leave with subsequent dismissal, the last day of the leave is considered the day of dismissal. This is stated in part 3 of article 127 of the Labor Code. This situation was discussed in the article "Vacation of a Seasonal Worker" ("Salary", 2010, No. 5).
We issue a dismissal due to the end of the season
How to warn an employee
The employer chooses how to inform the employee about the expiration of the fixed-term employment contract. You can send him a notice drawn up in any form, or you can immediately issue an order to terminate the employment contract due to the expiration of its term, which the employee must familiarize himself with against signature.
However, experienced HR professionals usually choose the former. The fact is that due to some circumstances, a fixed-term employment contract can be extended, for example, in the event of an employee's pregnancy. Therefore, it is better for the employee to first notify the expiration of the term of the employment contract, and if there are no reasons for its extension, issue an order.
The notification might look like the one below.
Employee pregnancy is an obstacle to dismissal
Sometimes the period of validity of a fixed-term employment contract coincides with the period of pregnancy of the employee. In this case, the employer is obliged to extend the term of the employment contract until the end of pregnancy (part 2 of article 261 of the Labor Code of the Russian Federation).
For this, the employee must submit a written application and bring a medical certificate confirming the state of pregnancy. The application is made in any form (see below).
After the employee writes the application, the manager issues an order in any form to extend the fixed-term employment contract. Your document might look like the one shown below.
A woman whose employment contract has been extended until the end of pregnancy is obliged, at the request of the employer, but no more than once every three months, to submit a medical certificate confirming the state of pregnancy (part 2 of article 261 of the Labor Code of the Russian Federation).
Dismissal order
Formorder. After the employee is notified of the end of the employment contract and there are no obstacles to its termination, the manager issues an order to dismiss the employee. For this, there are two unified forms - No. T-8 and T-8a (in case of dismissal of several employees), which are approved by the Resolution of the State Statistics Committee of Russia dated 05.01.2004 No. 1 "On approval of unified forms of primary accounting documentation for labor accounting and remuneration" ( see below).
Pensionexperienceseasonals. Note that it is important for seasonal workers that, when preparing various documents, reference is made to the seasonal nature of the work they perform. This is due to the calculation of retirement experience. When calculating the insurance period for pension, the periods of work during the full navigation period on water transport and during the whole season in organizations of seasonal industries determined by the Government of the Russian Federation are taken into account as a full year. This is stated in paragraph 2 of Article 12 of the Federal Law of December 17, 2001 No. 173-FZ "On Labor Pensions in the Russian Federation". The list of seasonal industries, where work during a full season is counted for a year of work, was approved by the RF Government Decree of 04.07.2002 No. 498.
In this regard, in the order for dismissal, the following wording must be given: "The expiration of the term of the employment contract in connection with the end of the work season, paragraph 2 of part 1 of article 77 of the Labor Code of the Russian Federation."
Record in the work book of a seasonal worker
On the day of termination of the employment contract, the employee must be handed a work book in accordance with part 4 of article 84.1 of the Labor Code.
Based on clause 5.2 of the Instructions for filling out work books, approved by the decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69, upon termination of an employment contract on the grounds provided for in Article 77 of the Labor Code of the Russian Federation, a record of dismissal is made in the work book with reference to the relevant paragraph of this article.
When making a record of termination of a fixed-term employment contract with a seasonal worker, you must refer to paragraph 2 of part 1 of article 77 of the Labor Code of the Russian Federation. The wording will look like this: "Fired due to the expiration of the employment contract (end of seasonal work), paragraph 2 of part 1 of article 77 of the Labor Code of the Russian Federation."
After making a record of dismissal, the employee must familiarize himself with it and sign in the work book. He can sign below the signature of the personnel officer, or make a handwritten entry "Acquainted" and sign.
After receiving the work book, the employee must sign in the book of work books and inserts to them in the form approved in Appendix 3 to the decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69, and on the last page of the personal card, the unified form of which (No. T-2) approved by the decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1.
The seasonal boy fell ill on the eve of the termination of the employment contract
If the seasonal worker is on sick leave at the moment when the employment contract expires, the contract is not renewed. A seasonal worker can be fired during a period of temporary disability, but sick leave must be paid. This is stated in article 183 of the Labor Code.
The employee leaves before the expiry date of the employment contract
One of the possible situations is the dismissal of an employee before the expiration of the term of the employment contract. In this case, the contract is terminated according to the general rules.
The employee writes a statement in which he asks to fire him of his own free will, the head of the organization issues an order in the form No. T-8 (T-8a).
Recall that on the day of termination of the employment contract, the employee must be handed a work book (part 4 of article 84.1 of the Labor Code of the Russian Federation). In accordance with the instructions of clause 5.2 of the Instructions for filling out work books, approved by the decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69, an entry is made in the employee's work book: "Fired at his own request, clause 3 of part 1 of article 77 of the Labor Code of the Russian Federation."
There is another option for filling out a work book. If you rely on the requirements of article 84.1 of the Labor Code, the entry will look like this: "The employment contract was terminated on the initiative of the employee, paragraph 3 of part 1 of article 77 of the Labor Code of the Russian Federation."
Dismissal of a seasonal worker due to liquidation of a company or layoff
If an employee engaged in seasonal work is dismissed in connection with the liquidation of the organization, the employer must notify him of the upcoming dismissal in writing against signature at least seven calendar days in advance. These are the requirements of Part 2 of Article 296 of the Labor Code. The notification form is arbitrary (see below).
Similar requirements apply to cases of reduction in the number or staff of the organization's employees.
In all of the above situations, upon termination of an employment contract with an employee engaged in seasonal work, severance pay is paid in the amount of two-week average earnings (part 3 of article 296 of the Labor Code of the Russian Federation).
Payments to the dismissed seasonal worker. Taxes and fees
Regardless of whether an employee resigned at the end of the seasonal work period or earlier, he is entitled to certain payments. Labor legislation instructs the employer on the last working day of the employee to pay him wages for hours worked (part 1 of article 140 of the Labor Code of the Russian Federation) and compensation for unused vacation (part 1 of article 127 of the Labor Code of the Russian Federation). Other payments may be established by the norms of a collective or labor agreement.
In particular, part 4 of Article 178 of the Labor Code states that an employment or collective agreement may provide for the payment of severance pay not provided for in parts 1-3 of Article 178 of the Labor Code of the Russian Federation, as well as establish increased severance pay.
Salary for hours worked
Personal income tax. Personal income tax is withheld from all employee income received by him both in cash and in kind (clause 1 of article 210 of the Tax Code of the Russian Federation).
Insurancecontributions. The object of taxation with insurance premiums is recognized as payments and other remuneration accrued by payers of insurance premiums in favor of individuals under employment contracts. This is stated in paragraph 1 of Article 7 of the Federal Law of July 24, 2009 No. 212-FZ "On Insurance Contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and Territorial Compulsory Medical Insurance Funds" (hereinafter - the Law No. 212-FZ). Therefore, the salary of the dismissed seasonal worker is subject to insurance premiums.
According to article 57 of Law No. 212-FZ, insurance premium rates in 2010 are:
- in the FIU - 20%;
- FSS of Russia - 2.9%;
- FFOMS - 1.1%;
- TFOMS - 2%.
Taxon theprofit. The taxpayer's expenses for wages include any accruals to employees in cash and (or) in kind (clause 1 of article 255 of the Tax Code of the Russian Federation).
Personal income tax. According to clause 3 of part 1 of article 217 of the Tax Code, all types of compensation payments established by the current legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of the representative bodies of local self-government (within the limits established in accordance with the legislation of the Russian Federation) related to the dismissal of an employee are not subject to taxation. Personal income tax. An exception is the payment of compensation for unused vacation. Personal income tax is withheld from the amount of compensation.
Insurancecontributions. Compensation payments related to the dismissal of employees are not subject to taxation (subparagraph "d", clause 2, part 1 of article 9 of Law No. 212-FZ), except for compensation for unused vacation.
Contributionson thehappeninginjury. Compensation is not subject to injury contributions. This is indicated by paragraph 1 of the List of payments for which insurance premiums are not charged to the FSS of the Russian Federation, approved by the decree of the Government of the Russian Federation of 07.07.99 No. 765. PayAttention: in the case of going on vacation with subsequent dismissal, the employee is charged regular vacation pay. Injury premiums apply to regular vacation pay.
Taxon theprofit. Compensation for unused vacation is included in labor costs when calculating income tax (clause 8 of article 255 of the Tax Code of the Russian Federation).
Severance pay
A severance pay is paid to a seasoned worker if his dismissal is caused by the liquidation of the company, downsizing, or other reasons that, according to labor law, are accompanied by this payment. It is also paid in other cases stipulated by the local regulations of the employer.
To determine the amount of severance pay, it is necessary to calculate the average earnings of an employee according to the rules established in part 3 of article 139 of the Labor Code, taking into account the Regulations on the specifics of the procedure for calculating the average wages, approved by Decree of the Government of the Russian Federation of 12.24.2007 No. 922.
The average earnings of an employee for calculating the severance pay is determined by multiplying the average daily earnings by the number of working days in the period payable (clause 9 of the Regulation on the specifics of calculating the average wage, approved by Decree of the Government of the Russian Federation of 12.24.2007 No. 922).
Personal income tax. Severance pay within the normal range (the basis and amount of payment correspond to labor legislation) refers to legally guaranteed payments (Article 164 of the Labor Code of the Russian Federation), which are associated with the dismissal of employees. These payments are not subject to personal income tax (clause 3 of article 217 of the Tax Code of the Russian Federation).
Insurancecontributions. Compensation payments related to the dismissal of employees are not subject to taxation (subparagraph "d", clause 2, part 1, article 9 of Law No. 212-FZ).
Contributionson thehappeninginjury. This payment is not subject to Injury Contributions. This is stated in paragraph 1 of the List of payments for which insurance premiums are not charged in the FSS of the Russian Federation, approved by the decree of the Government of the Russian Federation of 07.07.99 No. 765.
Taxon theprofit. For tax accounting purposes, the amount of severance pay reduces the taxable base for income tax as part of labor costs (clause 9 of article 255 of the Tax Code of the Russian Federation).
The order of taxation of the final payments to the seasonal worker and the collection of insurance premiums from them is presented in the table on p. 116.
Accounting for payments
In accounting, wages, severance pay and compensation for unused vacation refer to expenses for ordinary activities (clause 5 of PBU 10/99).
Their accrual and payment to the employee is reflected in the following entries:
DEBIT 20 (23, 25, 26, 29, 44) CREDIT 70
DEBIT 70 CREDIT 50 (51).
Table. Taxes and premiums on final payments to the seasonal worker
Taxes and fees | Final payments to the seasonal worker |
||
Wage | Compensation for unused vacation | Severance pay |
|
| Personal income tax | Levied | Levied | Not taxed if paid within the limits of labor legislation |
| Income tax | Decreases the taxable base | Decreases the taxable base | Reduces the taxable base if paid within the established norms |
| Insurance premiums | Levied | Levied | Is not a subject to a tax |
| Injury Contributions | Levied | Is not a subject to a tax | Does not tax |
Example
Plant grower E.M. Yagodkina received a notification from the employer (LLC "Strawberry Glades") about the liquidation of the organization and the termination of the employment contract with her ahead of schedule. She was informed that she would be fired from July 27, 2010. Since E.M. Yagodkina is a seasonal worker and is entitled to a severance pay of two weeks' average earnings. In addition, she needs to pay wages for hours worked and compensation for unused vacation. The employee's salary is 15,000 rubles. per month. She is not entitled to tax deductions. The organization's contribution rate in case of injury is 0.2%. What amount will E.M. Yagodkina on dismissal? What taxes and fees will be charged?Solution
First, let's calculate the amount wagesfees for the time worked. According to the production calendar for 2010, the working time rate for a 40-hour work week in July is 22 working days. Accordingly, E.M. Yagodkina will receive a salary for July in the amount of 12,272.73 rubles. (15,000 rubles ÷ 22 working days × 18 working days).Now let's determine the size compensationperunusedvacation.
According to article 295 of the Labor Code of the Russian Federation, a seasonal worker is entitled to 2 working days of vacation for each month of work. EAT. Yagodkina worked for 4 months (from April 1 to July 26, 2010). She is entitled to leave for 8 working days (4 months × 2 working days).
In this case, the average daily earnings are determined by dividing the amount of accrued wages by the number of working days in the calendar of a six-day working week.
According to the schedule of a six-day working week in April 2010, 26 working days, May - 24, June - 25.
The average daily earnings of a worker will be 600 rubles. [(15,000 rubles × 3 months) ÷ (26 working days + 24 working days + 25 working days)]. The amount of compensation will be equal to 4800 rubles. (600 rubles × 8 working days).
Now let's calculate the amount weekendbenefits.
According to the production calendar of a five-day working week in the billing period from April 1 to June 30, 62 working days.
Average daily earnings are 725.81 rubles. (15,000 rubles × 3 months ÷ 62 working days).
The first day after the dismissal is July 27. From this date, within two weeks according to the production calendar of the five-day period, there are 10 working days.
Thus, the employee received severance pay in the amount of 7258.1 rubles. (725.81 rubles × 10 working days).
Now let's look at the taxation of payments.
Wages and compensation for unused vacation are subject to:
- personal income tax in the amount of 2219 rubles. [(12,272.73 rubles + 4800 rubles) × 13%];
- insurance premiums in the amount of 4438.91 rubles. [(12,272.73 rubles + 4800 rubles) × 26%].
The employee will receive 22,111.83 rubles in her hands. [(12 272.73 rubles + 4800 rubles + 7258.10 rubles) - 2219 rubles].
