Dismissal of a part-time worker.

Termination of an employment contract with a part-time worker in the event of hiring an employee.

The dismissal of a part-time worker in the event of hiring an employee for whom this work will be the main one occurs as follows: the employer warns the dismissed person in writing at least two weeks before the termination of the employment contract.

Let us consider the court decision from a generalization of the practice of considering civil cases arising from labor relations for 2009 of the Kaa-Khemsky District Court of the Republic of Tyva.

K. filed a lawsuit against MDOU “Kindergarten No. 5 “Rodnichok” for reinstatement at work, recovery of wages for the period of forced absence and compensation for moral damage, indicating that since 09/01/2008 she worked as a part-time music director in the kindergarten. By order of September 1, 2009, she was dismissed as a temporary employee; she considers the dismissal illegal.

When considering the case, the court found that the plaintiff, having a permanent job as a teacher at the Children's Art School, was hired part-time at the Rodnichok kindergarten as a music director at 0.5 rates, allocated from the rate of the main employee B., at indefinite term.

Later, B. approached the head of the kindergarten with a request to grant her again 0.5 times the salary of a music director, since she has two minor children and is a widow. In connection with the satisfaction of her request, K. was dismissed as a temporary employee.

In accordance with Art. 288 of the Labor Code of the Russian Federation, in addition to the grounds provided for by the Labor Code of the Russian Federation and other federal laws, 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 in writing form warns the specified person at least two weeks before termination of the employment contract.

Since the main employee was already working, but a part-time worker was hired at his 0.5 rate for an indefinite period, the employer was still obliged to warn him at least two weeks before terminating the employment contract.

The court found that K. was not notified in writing about the upcoming dismissal. Under such circumstances, the dismissal was illegal, since the employer violated the procedure provided for in Art. 288 Labor Code of the Russian Federation. By a court decision, plaintiff K. was reinstated at work, wages for the period of forced absence and compensation for moral damage in the amount of 2,000 rubles were collected from the defendant.

Documentation and procedure

The procedure for terminating an employment contract depends on who initiated the dismissal.

Expert opinion

Lebedev Sergey Fedorovich

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

The basis for issuing this document is a notification application received from the employee, or documents documenting violations on his part. And if a permanent employee has been found, a notification is sent to the employee by the employer himself.

At the same time, making a corresponding entry in the work book has its own characteristic features. The entry is made by a personnel service employee at the place of main work on the basis of a copy of the order or certificate issued at the additional workplace. There is no stamp!

1. The employer asks the offender to write an explanatory note. In case of refusal, an act is drawn up recording the violation.
2. Based on the explanatory note, an internal memorandum is drawn up. At this stage, the employer has the right to limit himself only to disciplinary action. It should be noted that two punishments at once - disciplinary (for example, a reprimand) and dismissal are not applied according to labor legislation.
3. If a decision is nevertheless made to dismiss, a corresponding order is issued, which is signed by the employee (in the T-8 form). If a refusal is received from the employee, it is recorded in an act with two witnesses. The act is then filed in the offender’s personal file.
4. Based on the order, notes are made in the personal file and work book.
5. The payments due to the employee are calculated and the final payment is made.

When hiring a permanent employee

Regulated by Article 288 of the Labor Code of the Russian Federation:

1. Management sends a written notice to the part-time worker, informing him of the date of termination of the contract. The document is sent two weeks before dismissal. At this stage, the employee may quit his permanent job, preferring a part-time position. In this case, the employer can no longer hire a new employee for the same position.
2. An order is issued within two weeks. The employee can sign it or refuse to sign. Refusal requires drawing up an act in front of two witnesses.
3. Then entries are made in the work book and personal file. And on the last working day the final payment is made.

Read more about the procedure for terminating an employment contract with a part-time worker at the initiative of the employer in other cases here.

1. The employee himself sends a notification to management. The document indicates the day of dismissal and the reasons for leaving. For fixed-term contracts, this document is drawn up three days before termination. Open-ended contracts require two weeks' notice.
2. The notification received serves as the basis for issuing an order. The employee is familiarized with the order, and he puts his signature on it.
3. After that, entries are made in the work book and personal file. Compensation payments are accrued in the form of wages and funds for unused vacation days. Payments are made on the last working day.
4. Also, the law allows the signing of a document by agreement of two parties. On its basis, an order is issued and a calculation is made. The employee can independently set the date of termination of the contract and agree on additional compensation payments.

This is important to know: Payments upon dismissal for absenteeism

In case of disability

If the first disability group is assigned, the part-time worker has the right to terminate the employment contract urgently.

To do this, you must contact management with a statement and documentary evidence of a valid reason. In this case, the employee has the right to request immediate dismissal , citing the impossibility of continuing to work.

Further paperwork takes place according to the generally accepted procedure. An order is issued, notes are made in the personal file and work book, payments are calculated and calculations are made.

Dismissal of a part-time worker under Art. 288 of the Labor Code of the Russian Federation is dismissal at the initiative of the employer.

The Arkhangelsk Regional Court considered case No. 44-G-385 on Sh.’s complaint against earlier court decisions to reinstate her at work.

Sh. worked as a urologist in a hospital (hereinafter referred to as the MUZ) part-time at 0.5 times the salary. Subsequently, she was fired due to the hiring of another employee, for whom this work was the main one (Article 288 of the Labor Code of the Russian Federation).

Not agreeing with the part-time dismissal, Sh. filed a claim with the Oktyabrsky District Court of Arkhangelsk for reinstatement at work, changing the wording of the legal regime of the work performed, recovery of maternity benefits, and recovery of monetary compensation for moral damages. In support of the claims, she indicated that the defendant incorrectly defined the type of employment contract concluded with her as part-time work, since the work of a urologist was her only and permanent place of work. Moreover, the defendant could not fire her on his own initiative, since on the date of her part-time dismissal she had a disabled child under the age of three and was pregnant. By the decision of the Oktyabrsky District Court, Sh.’s claims were denied. The cassation court left this decision unchanged.

The regional court, having checked the case materials, noted that the courts, making a decision not in favor of the plaintiff, rejected her argument that working for the defendant was the main (only) place of work, and considered Sh.’s work as a urologist to be a part-time job. To substantiate this conclusion, the courts referred to the application and order for part-time employment. However, their opinion is wrong. And that's why.

In themselves, the application and order for part-time employment are not indisputable evidence of the plaintiff’s part-time work. When deciding on the terms of the employment contract, one should proceed from the compliance of the order with the requirements of the current legislation and the actual conditions of the employment contract.

According to Art. 282 of the Labor Code of the Russian Federation, part-time work is the performance by an employee of other regular paid work under the terms of an employment contract in his free time from his main job. From the content of this provision of the law it follows that work under an employment contract is part-time if:

• the employment contract was concluded with an employee who is already in an employment relationship with the same or another employer;
• under this contract, other work is performed in addition to the main one;
• The work performed under another employment contract is regular and paid.

Thus, part-time work requires the employee to have another (main) permanent and paid place of work.

From the case materials it follows that neither on the date of concluding the employment contract with the defendant, nor on the day of dismissal, Sh. had another permanent place of work.

Since the conclusion of an employment contract on a part-time basis reduces the level of rights and guarantees of the employee, in particular, it allows him to be fired in connection with the hiring of another person, the court had to assess the legality of the condition in the employment contract concluded with the plaintiff on part-time work.

The Arkhangelsk Regional Court indicated that the resolution of the dispute regarding the dismissal procedure also depends on the conclusions regarding the legality of Sh.’s work on a part-time basis. Moreover, the regional court declared the previous decisions unlawful in terms of the Ministry of Health's compliance with the dismissal procedure for Sh., since she has a disabled child under the age of three and was pregnant at the date of dismissal.

The courts of the first and second instances came to the conclusion that dismissal under Art. 288 of the Labor Code of the Russian Federation does not constitute dismissal at the initiative of the administration, and therefore the guarantees established by law regarding the prohibition of dismissal at the initiative of the employer of pregnant women and women with children under three years of age do not apply to Sh.

However, the guarantees established by the Labor Code of the Russian Federation for pregnant women and women with children under three years of age apply to any grounds for dismissal if it occurs on the initiative of the administration. When making decisions, the courts should have taken into account that upon dismissal under Art. 288 of the Labor Code of the Russian Federation unilaterally expresses the will of the employer to replace a part-time worker with another employee for whom this place of work will be the main one. The initiative or consent of the part-time employee for dismissal was not required.

The legislator in the Labor Code established certain benefits for women upon dismissal, regardless of whether they work at their main place of work or part-time (Article 261 of the Labor Code of the Russian Federation). Therefore, termination of an employment contract at the initiative of the employer with pregnant women, as well as women with children under three years of age, single mothers raising a disabled child under 18 years of age, is not allowed, except in cases of liquidation of the organization.

Based on the norms of the Labor Code of the Russian Federation, the regional court overturned the previous court decisions and reinstated Sh. at work.

Dismissal of a director (manager) by agreement of the parties

As a rule, a “soft” dismissal of an employee who has access to important company information is the most acceptable option for both parties. The initiator of termination of the employment contract can be any of the parties, while this type of dismissal does not require an explanation of the reasons that are the basis for dismissal. Features of dismissal: dismissal of a manager by agreement of the parties occurs in fact according to general rules, with some exceptions:

• an agreement to terminate an employment contract is concluded between the head and the authorized body of a legal entity after an initiating document from either party and a preliminary decision, which is made at a meeting of the founders or shareholders of the organization;
• the manager is obliged to transfer all matters to the employer, as well as powers of attorney and material assets entrusted to him by the authorized body at the conclusion of the contract until the termination of the employment contract;
• In the agreement on termination of the employment contract, the parties specify special conditions, the period and grounds for dismissal, in addition, the amount and timing of compensation payments are indicated. Here it is important to use strict calculation criteria, for example, a certain number of official salaries, excluding the use of evaluative economic criteria.

This is important to know: Calculation upon dismissal after a probationary period at the initiative of the employer

Dismissal of a part-time employee during vacation or illness.

Dismissal of a part-time worker during vacation or a period of temporary disability at the initiative of the employer, including under Art. 288 of the Labor Code of the Russian Federation, illegal.

On 04/08/2010, the Sovetsky District Court of the city of Tomsk considered the case regarding G.’s claim against the LLC for reinstatement at work, recovery of wages, vacation pay, average earnings for the period of forced absence, and compensation for moral damage.

G. filed a lawsuit against the LLC for reinstatement at work and, in support of her claims, indicated that she was hired by the defendant to work part-time for an indefinite period. On 02/08/2010, she received a letter from the defendant at her home address stating that on 02/14/2010 she would be dismissed in connection with the hiring of an employee on a permanent basis for her position. At the time of receiving the letter, she was on vacation (from 02/08/2010 to 02/20/2010) and was undergoing treatment. On February 27, 2010, she received another letter stating that her employment relationship had been terminated.

At the court hearing, the defendant’s representative did not admit the claim and explained that on 02/03/2010 a notice of dismissal from his position was sent to the plaintiff. The dismissal order was issued on February 17, 2010; G. refused to familiarize herself with it.

After listening to the explanations of the parties, examining and evaluating the evidence presented, the court considered that the claim should be partially satisfied on the following grounds.

According to the employment contract, G. was hired by the LLC on a part-time basis for the period from 11/01/2006 to 01/31/2010. From G.’s testimony it is clear that she actually began performing the work, but the employment contract was signed only on 01/01/2007 and for an indefinite period. The defendant's representative admitted this fact.

In this regard, when deciding on the dismissal of the plaintiff, the employer was obliged to take into account the provisions of Art. 288 Labor Code of the Russian Federation.

Paragraph 23 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” establishes that when considering a case on the reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis dismissals and compliance with the dismissal procedure are the responsibility of the employer.

As follows from the order, from 02/01/2010, V. was hired on a permanent basis to work in the LLC for the position held by part-time worker G.. A record of hiring is available in V.’s work book. The fact of his employment was confirmed by witnesses. Taking into account the above, the court considers that V.’s employment with the LLC on a permanent basis from 02/01/2010 was confirmed. This means that the employer had a legal basis for dismissing the plaintiff. At the same time, the procedure for dismissing a part-time worker was not followed, which is confirmed by a number of circumstances.

The employee must be notified in writing of the date of the upcoming dismissal of the part-time employee, which cannot occur earlier than two weeks after the notification. The notice dated 02/03/2010 addressed to G. indicated that the employment contract with her would be terminated on 02/14/2010. When dismissing the plaintiff on 02/17/2010, the employer was obliged to warn him in writing about the upcoming dismissal no later than 02/03/2010. Thus, initially the notification of the upcoming dismissal did not comply with the requirements of the law, and therefore cannot be recognized as proper as containing false information about the date of dismissal of the part-time worker.

In addition, according to the provisions of Art. 81 of the Labor Code of the Russian Federation, it is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) during the period of his temporary disability and while on vacation. Dismissal of a part-time worker under Art. 288 of the Labor Code of the Russian Federation is dismissal at the initiative of the employer. By terminating the employment relationship on the 17th, that is, before the end of the vacation on February 20, the LLC significantly violated the norms of labor legislation and the procedure for dismissal. Under such circumstances, even if there are grounds for dismissing the plaintiff, the court cannot recognize the dismissal as legal. G. was reinstated to her previous job at the LLC as of February 17, 2010.

Legal basis

In accordance with the requirements of legislative acts, a part-time worker may have several additional jobs, but within reasonable limits.

Expert opinion

Lebedev Sergey Fedorovich

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

It must be officially issued regardless of the enterprise that provides it. In addition, the working day of a part-time employee should not exceed 4 hours a day.

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

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

This is important to know: Can they be fired without explanation?

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

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

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

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

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

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

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

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

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

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

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