When terminating an employment relationship with an employee who combines two or more positions, in order to avoid any mistakes and legal disputes, the employer needs to take into account the specifics legal status such enterprise employees. In this article we will try to figure out how to properly fire a part-time employee.
Part-time work is the performance by an employee of another paid activity with the signing of an employment contract in free time from the main job. An important point is that it is allowed to sign employment agreements regarding simultaneous work in two or more places, with an unlimited number of employers. In other words, part-time work is quite known species additional employment.
How to properly fire a part-time worker is described in the Labor Code of the Russian Federation. In Art. 77 of the Labor Code of the Russian Federation sets out general reasons relating to the termination of labor relations, and Art. 288 describes additional reasons for termination labor agreement with part-time workers.
The procedure for dismissing a part-time worker
A part-time employee is definitely exactly the same employee as the main employee, and therefore the procedure for his dismissal should be absolutely the same.
There are three options for terminating an employment relationship with an employee:
- based on your own desire;
- thanks to the agreement of the parties;
- based on the initiative of the employer.
If a person who combines several jobs quits based on his own desire, then the first thing he needs to do is write a letter of resignation. Based on it, the manager prepares an order for the company. At the same time, the resigning employee must work the required two weeks before leaving.
In the second situation, termination of an employment contract by a part-time worker is carried out as follows:
- he writes a letter of resignation from combining several official duties at the same time and, together with the employer, signs an agreement;
- the manager issues an order to the institution to dismiss such an employee;
- If necessary, a note is made in the work book.
How to fire a part-time worker without his consent
Termination of an employment contract with an employee combining different positions without his consent is possible at the initiative of the employer in the following cases:
- upon acceptance to workplace occupied by a part-time worker, the main employee;
- completion of the employment agreement – in case of a fixed-term employment contract;
- upon reduction or liquidation of an organization (enterprise);
Reception of the main employee
Typically, a person who performs several official duties is enlisted due to circumstances forced by the institution. This occurs in cases where the company does not have a full-time employee. However, when the company finds the right employee, it has to dismiss the part-time employee in connection with the hiring of the main employee. In order for this to be organized correctly, two conditions must be adhered to:
Termination of an employment relationship with a person who works in addition to the main service, when another employee is assigned to this position, for whom this work will be the main one, is, in fact, an initiative of the employer and, as mentioned earlier, such dismissal of a part-time worker is described in Art. 288 Labor Code of the Russian Federation.
It should be remembered that the dismissal of an external part-time worker in connection with the hiring of the main employee must necessarily be accompanied by an order from the organization on dismissal (form T8-a).
Completion of an employment agreement with a part-time worker
An employment contract with a person working in several positions is of two types - fixed-term and indefinite. When drawing up a fixed-term employee, the employee is expelled strictly upon expiration of the term (indicated in the contract; liquidation of the enterprise or violation of discipline is not taken into account).
Because if signed open-ended contract, as mentioned earlier, the employer has the right to fire a specialist when the main employee is found to take his place. Just don’t forget that the manager is obliged to send a notice in writing no later than 2 weeks before specific date suspension.
Dismissal under Art. 288 of the Labor Code of the Russian Federation will be correct if an employment contract with an official working in several institutions or several positions was previously concluded for an indefinite, unknown period.
p>However, do not forget about general rules termination of employment relations. An employer must not dismiss an employee who is a part-time worker during the period of vacation or illness.
Dismissal of an external part-time worker during layoffs
The reduction of a part-time employee is similar to the reduction of the main employee, because he has the same rights and social guarantees. The reduction of an external part-time worker occurs in the same way as the reduction of an internal one. Exactly 2 months before the removal, the employer is obliged to notify the part-time worker. An order is then issued regarding changes in the structure of the institution. Before laying off an official who works at an enterprise other than the main one (during these 2 months), the manager must offer him free vacancies, and if the part-time employee refuses, then he is fired due to staff reduction. Also, an employee who works part-time is required to pay severance pay in the amount of average monthly wages(payments are retained for him for a maximum of 2 months if he does not find a job during this time).
Dismissal of a part-time worker at will is cessation labor activity, which is not the main one for the employee. We will talk about the types of part-time work, the procedure for dismissal from additional work and the features of its registration in our article.
Part-time dismissal at one's own request (concept and features)
The law allows a citizen to take up additional permanently paid work in his free time, which remains after he has fulfilled the duties stipulated by the main employment contract. This work is a part-time job and can be carried out both within one organization (internal) and in third party company(external), according to Art. 60.1 Labor Code of the Russian Federation.
Dismissal of a part-time worker at his own request is the termination of an employment contract concluded for the so-called additional work. This procedure is subject to the general norm of labor legislation, according to which an employee has the right to declare a desire to terminate legal relations with the employer at any time, warning of his intention at least 14 calendar days in advance (Part 1 of Article 80 of the Labor Code of the Russian Federation).
Application form
Drawing up a part-time application is the first stage of the dismissal procedure. It can be handwritten or printed using technical means. In this case, the application may contain:
- wording that clearly indicates the employee’s intention to resign;
- indicating a specific date last day work;
- personal signature of the employee indicating the date of the application.
In practice, the question of whether it is possible to accept a statement typed on a computer from an employee is very relevant. There is no direct prohibition in the law, and many organizations specifically approve printed application templates so that the employee can fill it out correctly. The Constitutional Court, in its ruling dated March 22, 2011 No. 394-О-О, also pointed out the absence in Part 1 of Art. 80 of the Labor Code of the Russian Federation, the obligation to use one or another form of application (stencil, form or handwritten version). In this regard, we can talk about the legal equivalence of a handwritten resignation letter and one printed using technical means.
It is worth noting that the employee may not indicate the date of dismissal in the application - in this case, termination of the employment contract will occur on the last working day of the second week of work. The date is important only if it is necessary for the employee to leave on a specific day (i.e. without working) if there are compelling reasons for this (upon retirement, admission to study, etc.).
Dismissal of a part-time worker without work
The employee and the employer have the right to agree on dismissal without established by law working off or reducing its period. However, if the employer is against releasing the employee earlier, the part-time worker will have to fulfill his duties under the contract for another 2 weeks.
An exception to this rule will be those provided for in Part 3 of Art. 80 of the Labor Code of the Russian Federation, reasons, if they arise, the employer is obliged to formalize the dismissal on the date that the part-time worker indicated in his application:
- enrollment of an employee for study;
- retirement of a part-time worker in old age;
- the employer's evasion of compliance with labor laws or their violation;
- other circumstances that make it impossible for a part-time worker to carry out work activities in the future.
Dismissing an external part-time employee at your own request - how to fire correctly?
An external part-time employee is a full-time employee who works most of the time for one employer, and after the end of the work shift performs labor functions for another. At the same time, a citizen has the right to conclude employment contracts with 2 or more employers at his own discretion (Part 2 of Article 282 of the Labor Code of the Russian Federation). In the text of the employment contract, the second (third, etc.) employer must indicate that the employee’s work is part-time (Part 3 of Article 282 of the Labor Code of the Russian Federation).
One of the main requirements of part-time work is compliance with the norm of working hours. By general rule it should not exceed 4 hours a day. Only on those days when an employee is released from duties at his first place of work, he can additionally work a full shift part-time (Part 1 of Article 284 of the Labor Code of the Russian Federation). The work of an external part-time worker is paid in proportion to the time he worked. Wages may also depend on output or be determined by other conditions specified in the employment contract (Part 1 of Article 285 of the Labor Code of the Russian Federation).
Application methods
Having drawn up a letter of resignation, the employee must submit it to the personnel service, accounting department or directly to the head of the organization in which he works part-time. The authorized person is obliged to accept the document and register it in the manner specified internal regulations organizations. In order for the employee to retain proof that the application was submitted on a certain day, it is necessary to keep one copy with a mark of acceptance.
If the employer refuses to accept the application, it should be sent via the postal service by registered mail with return receipt requested. This notice is returned to the employee with the signature of the employer’s representative who received the letter (subparagraph “b”, paragraph 10 of the rules for the provision of services, approved by order of the Ministry of Telecom and Mass Communications of the Russian Federation dated July 31, 2014 No. 234). However this method notifications are longer, since the two-week period of work will begin only from the next day after the employer receives the letter, and not from the moment it is sent.
It is worth noting that a part-time worker can submit an application while on vacation or sick leave. These days will be included in the working period. A direct ban on dismissing an employee during illness or on vacation is established exclusively for the employer, that is, in the case when the initiative to terminate the employment contract comes from him (Part 6 of Article 81 of the Labor Code of the Russian Federation).
Drawing up a dismissal order
On the last day of work of a part-time worker, the employer is obliged to issue an order to terminate the employment contract with the employee. Until 01/01/2013, for all organizations operating on the territory of the Russian Federation, a single unified form of dismissal order No. T-8 was established (approved by Resolution of the State Statistics Committee of the Russian Federation dated 01/05/2004 No. 1). In connection with the adoption of the Law “On Accounting” dated December 6, 2011 No. 402-FZ, employers were able to apply own form order developed within the organization.
Regardless of which form the employer’s representative fills out (when drawing up an order in free form the best option will be issued on the organization’s letterhead), the order must contain the following:
- employer's name;
- serial number of the document, date of its preparation;
- details of the employment contract with a part-time worker (date of signing and number);
- information about the date on which termination of the contract is formalized (i.e., dismissal);
- Full name and position of the part-time worker being dismissed;
- the grounds justifying the termination of the employment contract (the text of this line should be formulated in strict accordance with clause 3, part 1, article 77 of the Labor Code of the Russian Federation);
- reference to the documentary basis for dismissal (in in this case this is the employee’s statement indicating the date of its preparation);
- signatures of the manager and part-time worker, as well as the date of familiarization with the order, which the employee must sign with his own hand.
The execution of the order by an authorized employee, its signing by the manager and familiarization with the document of the resigning employee of the organization confirms the fact of the final completion of the part-time worker’s employment with the employer.
Dismissal of an internal part-time worker at his own request
An internal part-time worker is an employee working for one employer under 2 or more employment contracts, one of which is the main one. At the same time, it is important not to confuse the concepts of “internal part-time work” and “combining positions”, since combination is additionally paid work within the framework of one employment contract and is formalized by drawing up an additional agreement to the employee’s contract with his written consent (Article 60.2 of the Labor Code of the Russian Federation ).
The procedures for voluntarily dismissal of both types of part-time jobs are identical. An employee working for one employer - both under the main employment contract and under an additional one - has the right, on a general basis, to terminate any of them or resign from the organization completely.
Note: in the event of termination of relations with the employer under all employment contracts, the part-time worker must draw up separate statements (for each position), work out the required periods and sign orders to terminate each contract.
Calculation of a part-time worker upon dismissal and issuance of a work book
Final calculation upon dismissal of internal part-time worker, as well as external, must be carried out according to the rules established by Art. 140 of the Labor Code of the Russian Federation, that is, on the last working day.
In this case, the employer is obliged to pay:
- The salary stipulated by the employment contract, in proportion to the time period worked, as well as other additional payments that may be provided for (Part 1 of Article 285 of the Labor Code of the Russian Federation).
- Compensation for vacation not used by a part-time worker (Part 1 of Article 127 of the Labor Code of the Russian Federation).
If an internal part-time worker along with an additional labor contract terminates the main one, payment must be made in in full for each of the contracts.
Making an entry about part-time work in the work book
Making an entry in the work book about part-time work is not mandatory, but is possible at the request of the employee. To do this, he must contact the personnel department or accounting department at his main place of work with a corresponding application. The basis for making an entry will be employment contract on part-time work (Part 5 of Article 66 of the Labor Code of the Russian Federation).
The work book is a strict reporting form, so it must be kept at the employee’s main place of work (clause 42 of the rules approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225). When a part-time worker is dismissed, he is not given a work permit. The responsible employee of the organization is obliged to return it personally to the employee on the day of termination of his employment under the main contract (clause 35 of the above rules).
Thus, in order to resign on their own initiative, a part-time worker (both internal and external) must be officially employed in the organization. An employment contract must be properly drawn up with him, the duration of his work shift must be determined, and the amount of salary and other payments must be established. During the dismissal process, the employee is required to correctly fill out an application and work for the required period. The employer, in turn, must dismiss the part-time worker on the last day of his work shift, issuing an appropriate order and making a full payment.
It's no secret that the dismissal of an employee is not always a pleasant event. Moreover, in the event of termination, the interests of both the employee and his employer may be affected. In situations where such interests of the parties are supported by rights defined in the law, it is necessary to strictly adhere to the procedures established by the Labor Code. Otherwise, negative consequences are possible for both the employer and the employee.
Termination of an employment contract with a part-time worker has its own legal nuances. This is due to the specific situation of such workers and the presence of special rules governing part-time work. This article will tell you how to properly guide a part-time worker. A sample order to remove part-time employment is also attached to it.
General grounds for dismissal of part-time workers
Like any other employee, a part-time employee must conscientiously perform his or her job duties, comply with internal labor regulations, and perform other duties provided for by the code. As with others hired employees, the employer can take measures against him disciplinary action up to and including dismissal. The latter is possible in the case of repeated failure to fulfill duties, appearing drunk, absenteeism, and so on. At the same time, the employment contract with a part-time worker can be terminated without the presence of guilty actions of this party. For example, upon liquidation of an enterprise or in the event that an entrepreneur, his employer ceases its activities. Almost always, part-time dismissal takes place on general grounds and according to the standard procedure. Some of the nuances of dismissing a part-time employee due to staff reduction will be discussed further in this article.
What the legislation says about part-time work:
Of course, a part-time employee can resign of his own free will. Special deadlines for informing the employer about the upcoming dismissal labor legislation not provided. The part-time employee's application is submitted two weeks before the day of dismissal.
Expert opinion
Maria Bogdanova
The dismissal of a part-time employee can be made earlier if both parties agree on this. There is one nuance here - a person is not required to be at work during the specified two-week period. He has every right to take sick leave or go on vacation, and the terms of dismissal do not change or be postponed.
All general cases of dismissal of employees applicable to employees working part-time are contained in Art. 80, 81 Labor Code RF.
Part-time work is one of the grounds provided for by law for concluding a fixed-term employment contract with an employee. An employment contract can be concluded for any period, but not more than five years. Termination of such an agreement will be grounds for dismissal of the employee.
Please note: Despite the fact that the period for which the employee is hired is specified in the employment contract, and the document itself must be in the hands of the employee, the employer is obliged to warn about the upcoming dismissal three days in advance. Such notification shall be made in writing. If this is not done, the contract becomes indefinite.
Special grounds for dismissal of part-time workers
Employees who work on a part-time basis belong to the category of persons for whom labor legislation provides for special conditions for termination of the contract. In this case, there is only one basis - hiring an employee for whom this work will be the main one. However, here it is necessary to understand that such a basis is not provided for all categories of part-time workers. The law provides that the dismissal of an employee working on a part-time basis can only be possible if the contract with him is concluded for an indefinite period.
Please note: Terminating a fixed-term employment contract with a part-time worker when hiring a “main” employee will be a violation of the law.
This is probably one of the few cases in labor relations where a contract concluded for a term is more protective of the interests of employees than an open-ended one. Typically, the legislator tries to minimize the ability of employers to formalize fixed-term employment relationships, since they are considered not to be in the interests of employees.
Here we must not forget that, since this basis is one of the reasons, then if the dismissed employee is on vacation or “on sick leave,” then you will have to wait until their end in order to terminate the employment contract. Termination of the contract with the employee during these periods is prohibited.
There is one more point that HR employees should pay attention to when filing for dismissal on this basis. The hired employee, for whom this position will be the main one, must perform the same work as the dismissed one. If the functionality that the newly hired employee will perform differs from the job functions of a part-time employee, then the dismissal may be considered illegal. And the employee with whom the contract was terminated was reinstated by the court. In this case, it may be best to dismiss the part-time employee through the layoff procedure. Of course, provided that there are necessary other reasons for this and the order of reduction is strictly observed.
Retrenchment of a part-time employee
When regulating the procedure for retrenchment, the legislator first of all took care of establishing guarantees and compensation for persons who lose their jobs as a result of retrenchment. All employees, regardless of whether they occupy the main workplace or work part-time, are provided with the following guarantees:
- timely warning of impending dismissal,
- the right to transfer to a vacant position,
- severance pay,
- payment of average earnings.
If the employer did not provide any of these guarantees and violated the terms of the redundancy order, then this is definitely a welcome case of reinstatement of the employee in court. Analysis judicial practice, draws attention to the fact that the judicial authorities, in all cases, check the compliance of the applied staff reduction procedure with the real intentions of the employer. That is, if, in fact, the employer wants to fire an undesirable employee, and uses layoffs to do this, then the dismissal on this basis will be considered illegal.
How to properly fire an employee if the company goes bankrupt:
As noted above, part-time workers will retain all the same guarantees and compensations as employees laid off at their main place of work. However, not all experts agree that all part-time workers are entitled to retain their average earnings after dismissal. If there are no problems with the issue of severance pay, then opinions differ here.
The essence of the issue is that the abbreviable . And, according to most experts, he is employed, and accordingly does not need further material support (after receiving severance pay). The purpose of the provided guarantees for maintaining average earnings is financial support citizen while looking for a job.
Let us remind you that a laid-off employee retains his average earnings for a period of two months, and in some cases up to three months, for the entire period of employment. But since the employee was and remains employed at his main place of work, then, according to experts, he has no need to look for work. This position is based on the approach to as a secondary method of employment. Additional, but not necessary. In some cases we cannot agree with this. This approach is also common when there is a reduction in internal part-time job and when externally.
What to do in cases where an employee previously hired for a part-time position has lost his main job? Is he paid an average salary? Here, experts in the field of labor relations are unanimous in their opinion. The average salary should be preserved, since the employee really needs employment, without focusing on whether it is at the main place or part-time.
As noted earlier, the dismissal of an employee working part-time (sometimes the concept of “removal of part-time work” is used) is carried out on a general basis and on the additional basis provided for these categories of employees. However, an additional basis cannot be applied in the case of concluding a fixed-term employment contract. Due to this, practical significance, when dismissing a part-time worker, the issue of dismissal is considered when hiring a “main” employee. Let's consider the appropriate dismissal procedure.
List of articles for which you can dismiss an employee:
If the employer plans to replace a part-time employee with an employee who will work in this position as at the main place of work, and the candidacy of this employee is known, or will be known by a certain date, then the law requires notifying the dismissed employee in advance.
The period of such notification is established by the Labor Code and cannot be less than two weeks. Like all similar events, the employee is notified by delivering a written document to him. In it, the HR employee indicates the details of the employment contract with the employee and the day of its termination (or an indication that it will be terminated two weeks after receiving the warning). Such written warning shall be drawn up in free form. It must contain all the details necessary for the document and signature individual entrepreneur or the head of the enterprise (or persons authorized by him).
The dismissal order specifies the details of the warning and the details of the contract for hiring the employee for whom it will be the main one. The dismissed part-time worker must be familiarized with the order to terminate the contract.
Expert opinion
Maria Bogdanova
More than 6 years of experience. Specialization: contract law, labor law, social security law, law intellectual property, civil procedure, protection of the rights of minors, legal psychology
Regardless of the reason for dismissal, the employee must be paid on the day of his dismissal. Payments include wages, compensation provided for in the collective and labor agreements for unused vacation. On the same day, the employee is given a duly completed work book. It is recommended to immediately read the entries made in it; errors are common and it is better to correct them on the spot right away. Thus, monetary compensation upon dismissal of a part-time worker is similar to that given to main employees.
If the dismissal of an external part-time worker is formalized, then he needs to be ready to provide data from another employer. Namely: an employment contract and a copy of the order on its conclusion or an extract from it. In addition, you must request a certificate from the HR department confirming part-time employment. It must be signed by the manager.
If a part-time internal employee is dismissed, an entry about this should also be made in the work book; the seal and signature of the responsible person shall not be affixed. This does not apply to the employee’s main position.
When dismissing part-time workers, employers need to take into account the specifics of their legal status in labor relations in order to avoid mistakes, violations of labor legislation and the emergence of legal disputes with dismissed employees. In this article we will try to understand the peculiarities of dismissing part-time workers.
Part-time job- this 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. Moreover, as a general rule, concluding employment contracts for part-time work is allowed with an unlimited number of employers.
In other words, part-time work is a very common type of additional work, when an employee, in his free time, works under a second (third, etc.) employment contract concluded with the same or another employer, and receives a second (third, etc.) . d.) wages.
SHOULD I FIRED A PART-TIME WORKER WHO BECOME THE MAIN EMPLOYEE?
Often an external part-time worker who quit his main job wants to continue labor Relations with the employer for whom he worked part-time, already as the main employee.
In such a situation, employers have several natural questions:
1. Does an external part-time worker who quits his previous job become the main employee for his second employer?
2. If this is so, is it possible not to terminate the previously concluded employment contract for part-time work, but to make changes to it related to the recognition of the work as the main one?
Similar questions were repeatedly raised before officials from Rostrud. Answering the first of them, they at one time came to the following conclusion:
In order for a part-time job to become the main one for an employee, it is necessary that the employment contract at the main place of work is terminated, with a corresponding entry being made in the work book. In this case, part-time work becomes the main one for the employee, but this does not happen “automatically”. It is necessary to make changes to the employment contract concluded for part-time work (for example, stating that the work is the main one, as well as if the employee’s work schedule and other conditions change). […]
In addition, only with the consent of the employee is it possible to terminate an employment contract for part-time work (for example, by agreement of the parties, at one’s own request), and then conclude an employment contract with other conditions. At the same time, appropriate entries are made in the employee’s work book. Thus, Rostrud lawyers rightly give a positive answer to the first question, but emphasize that any legal action, including changing the terms of an employment contract, requires documentation.
The officials answered the second question in two ways. As we see, it is permissible to change a previously concluded employment contract for part-time work, and its termination with the subsequent hiring of the former part-time worker to the main place of work under a new employment contract.
However, in Lately Rostrud specialists are increasingly supporting last option. Thus, Deputy Head of the Department for Supervision and Control of Compliance with Labor Legislation Federal service on Labor and Employment of the Russian Federation T. M. Zhigastova noted in her interview that in a situation where a part-time worker quits his main place of work and wants part-time work to become his main job, and his employer does not object to this, in order to exclude violations related to registration of a work book, you still need to first dismiss this part-time employee, and then rehire him, but as a main employee in compliance with the procedure established by labor legislation. This approach can be fully supported, since only it allows employers to avoid problems with registering the work book of a part-time worker who has changed his status.
In fact, the transition of an employee from a part-time job to his main place of work cannot be considered a transfer to another job, since neither labor function the employee, nor the structural unit in which he works does not change. Only the nature and conditions of work are transformed, but these changes themselves are not recorded in work book employee, which prevents their correct reflection in personnel documents. Nevertheless, Rostrud gives recommendations on what entries are possible in the work book in the event of reassignment of a part-time worker to the main job without dismissal, through an additional agreement to the employment contract.
Extract from Rostrud letter dated October 22, 2007 No. 4299-6-1
If the employee’s work book did not contain a record of part-time work, then in the employee’s work book, after the record of dismissal from the main place of work, the full name of the organization, as well as the abbreviated name of the organization (if any), is indicated in the form of a heading. Then a record is made of the employee’s hiring from the date of commencement of work for a specific employer with reference to the relevant order (instruction) and indicating the period of work as a part-time worker.
If the employee’s work book contains a record of part-time work, made at one time at the main place of work, then after the record of dismissal from the main place of work and the record of the full, as well as the abbreviated (if any) name of the organization in In the work book, an entry should be made stating that from such and such a date, work in such and such a position became the main one for this employee. Column 4 makes reference to the relevant order (instruction).
DISMISSAL OF A PART-TIME WORKER DURING STAFF REDUCTION
The legislator does not exclude the possibility of dismissing part-time workers to reduce the number or staff of an organization (individual entrepreneur). It is known that one of the guarantees provided to employees dismissed on this basis is payment of severance pay in the amount of their average monthly earnings. Besides, average earnings remain the same for such employees and for the period of their employment, but not more than two months from the date of dismissal (including severance pay), and in exceptional cases - during the third month after the day of dismissal (by decision of the employment service body, adopted provided that within two weeks after dismissal, the employee contacted this body and was not employed by it).
Guarantees and compensations provided for by labor legislation and other regulatory legal acts on labor, collective agreements, agreements, and local regulations are provided to part-time workers in full. The exception is guarantees and compensation for persons combining work with study, as well as for persons working in the Far North and equivalent areas, which are provided only at their main place of work.
As we can see, formally the law does not include the guarantees to which an employee is entitled when staff are reduced among those provided only at the main place of work. Therefore, some experts come to the conclusion that part-time workers being laid off are not only paid severance pay, but also retain their average earnings for the period of their employment.
However, according to this issue there is one more position. In particular, Deputy Director of the Department of Wages, Labor Safety and social partnership The Ministry of Health and Social Development of Russia N.Z. Kovyazina notes the following: “In case of dismissal due to reduction in headcount (staff), part-time workers are paid only severance pay. Average earnings for the period of employment for the second and third months after their dismissal not saved, since they have a main place of work and are employed.” This position is supported by many other experts.
Analysis of the norms of Art. 178 of the Labor Code of the Russian Federation leads us to the conclusion that the goal of preserving the average earnings of a laid-off employee for the second and third months after dismissal is his material support for the period of job search. And if a laid-off employee finds a job, for example, before the end of the second month after dismissal, then his average earnings will be retained and paid only until he starts a new job.
A shortened part-time worker at the time of dismissal, as a rule, has a main place of work, that is, in fact he is employed. Therefore, he does not need financial support during the search period. new job. Consequently, he usually does not have the right to receive the payment we are considering, which is of a purely targeted nature. But if by the time of dismissal due to reduction a part-time worker I've already lost my main job due to dismissal for any reason, then the average salary for the period of employment must be retained by the employer for whom he worked part-time.
This means the termination of a fixed-term employment contract with a part-time worker on the basis provided for in Art. 288 of the Labor Code of the Russian Federation will be illegal.
When applying this ground for dismissal, it is important to take into account that the legislator is talking about the employer’s right to hire the main employee, that is, about the initial conclusion of an employment contract with him, and not about the internal transfer of another employee to a position previously occupied by a part-time worker. At the same time, a new employee can be hired for the main job both on a full-time basis and on other conditions (for example, part-time or part-time).
Unfortunately, employers do not always correctly understand the conditions under which it is possible to apply the grounds for dismissal we are considering, which inevitably leads to labor disputes with part-time workers. Let us give an example from judicial practice showing that a newly hired employee instead of a part-time worker must do exactly the work that the dismissed part-time worker had previously done.
ARBITRAGE PRACTICE
Resolution of the Presidium of the Moscow City Court dated October 10, 2008 in case No. 44g-391
Citizen F., who worked part-time as an electromechanic for elevators in RU-7, was fired due to the hiring of an employee in his place, for whom this work became the main one. Citizen F. challenged his dismissal, believing that it was illegal. The Izmailovsky District Court of Moscow refused to satisfy F.’s claim, the judicial panel for civil cases of the Moscow City Court left the court’s decision unchanged. But the Presidium of the Moscow City Court overturned these court decisions, indicating the following: “Refusing the claim for reinstatement, the court proceeded from the fact that the defendant presented evidence that F. worked ... part-time, while S. was hired main place of work. However, the court did not take into account that the circumstance that is important for the correct resolution of claims for reinstatement of persons whose employment contract was terminated under Art. 288 of the Labor Code of the Russian Federation, in addition to establishing the fact whether the employee was hired by the employer for the main place of work, there will also be a circumstance whether the hired employee performs the same work as the part-time employee. F. was hired by the defendant for the position of electrician for elevators of the 6th category part-time... S. was hired for the position of electrician for elevators of the 3rd category, permanently, according to the staffing table, without the right independent work...Since the court did not check whether the hired employee S. performs the same work as part-time employee F., that is, the court did not fully examine and establish all the circumstances relevant to the case, this resulted in the issuance of an illegal and an unreasonable decision."
A part-time employee is a part-time employee who regularly performs additional duties in his free time from his main job. Part-time work can be internal (both the main and additional jobs are in the same enterprise) or external (the main job is in one enterprise, and the additional one is in another). According to the law, citizens can have as much additional work as they want (with a reasonable time limit, of course). And most importantly, part-time work must be just as formalized as the main job. This article will talk about how to fire a part-time employee, how to do it correctly and what nuances need to be taken into account.
Hiring and dismissing a part-time worker
The most important thing that an employer needs to remember is that a part-time worker is the same employee as everyone else, so his hiring and dismissal occur on a general basis. Registration of a part-time worker for a workplace is carried out in several stages:
- a corresponding statement is written;
- the parties sign an employment contract;
- on the basis of an employment contract, an order or instruction is issued for the enterprise on hiring part-time work.
The external part-time worker must also provide the HR department (or the head of the enterprise, if we are talking about a small organization) with a passport and, if necessary, educational documents. At an internal part-time worker required package is already at the enterprise. No extracts or copies from the work book are required when applying for a job.
From all of the above Special attention attention should be paid to the employment contract, since it is this that influences dismissal from part-time work. Otherwise, the procedure for dismissing a part-time worker (internal or external) and main employees is the same.
Employment contract
A part-time employment contract is drawn up in exactly the same way as a regular one. He can be:
- urgent - that is, to act until a specific date or until the end/beginning of certain events (for example, until an employee returns to work or repair work is completed in full);
- unlimited – that is, without specifying deadlines (valid continuously until the employee decides to terminate the employment relationship with the employer).
It is the term of the employment contract that affects the dismissal of a part-time worker. Let's look at these questions in more detail.
Grounds for dismissal
The dismissal of a part-time worker (internal or external), as well as of main employees, occurs on a general basis. According to the law, employees who are on sick leave, vacation, maternity leave, or child care cannot be fired. The date on which an employee is dismissed cannot be earlier than the date of his return from vacation or the end of his sick leave.
Fixed-term contract
If a fixed-term employment contract has been signed, the employee can be fired only upon expiration of its term and not earlier (we are not currently considering cases where a violation occurs labor discipline or complete liquidation enterprises).
Permanent contract
If an open-ended employment contract is signed, the employer has the right to dismiss a part-time worker if a main employee is found in his place. In this case, notice of dismissal is sent in writing no later than two weeks before the expected date. In this case, the employee may have time to resign from his main place of employment, then the part-time activity will be considered the main one - even with part-time work - and the dismissal of the part-time worker at the initiative of the employer in connection with the hiring of the main employee can no longer be carried out.
Dismissal procedure
Since a part-time worker is a full-fledged employee like everyone else, he can be fired:
- at your own request;
- by agreement of the parties;
- at the initiative of the employer (to reduce or change staff).
In the first two cases, everything is quite simple: an application for part-time dismissal is written, an order or order for the enterprise is drawn up, and, if necessary, a corresponding entry is made in the work book - in the event that there was a note about being hired for a part-time job. Such records are kept at the main place of work on the basis of relevant documents.
At your own request
Dismissal of a part-time employee at his own request occurs in the same way as the main employee: a statement is written, an order for the enterprise is prepared, the employee works the required two weeks. Working off a part-time job is mandatory, unless, of course, the employee has agreed with the employer to shorten the working period or cancel it altogether.
The date of dismissal cannot fall on a holiday or day off, even if the person worked on that day - after all, the employer must make the final payment and formalize Required documents, and the accounting and HR departments are unlikely to work on days off.
Retrenchment of a part-time employee
Reduction of a part-time worker (external or internal) also occurs on a general basis. Two months before the expected layoff, the employee is notified about this, an order is issued to make changes to the structure of the enterprise and staffing table(about staff reductions). During this time, the employer is obliged to offer other vacancies. At the same time, these job options may pay less well, be less interesting and require lower qualifications - often employers specifically take such measures if for some reason they need a reduction.
If an employee refuses the offered vacancies, he is dismissed due to staff reduction. In this case, severance pay must be paid in the amount of the average monthly salary, and these payments are retained by the employee for a maximum of two months, if during this period he is unable to find a job.
When dismissing a part-time worker, you must also take into account that it is impossible to lay off pregnant women, family workers who are the only breadwinners, trade union workers (if the part-time job is related to trade union activities), as well as other categories of workers listed in the legislation.
Order to dismiss a part-time worker
When a part-time worker is dismissed, an order is issued for the enterprise. An order for part-time dismissal is drawn up in form T8-a. This document must contain:
- last name, first name and patronymic of the employee;
- job title;
- Personnel Number;
- date of dismissal;
- grounds for dismissal and the corresponding article of the Labor Code;
- information about payment of compensation or deductions;
- signature of the head of the enterprise;
- signature of the part-time worker indicating that he has read the order.
An order for the dismissal of an internal part-time worker is no different from an order for the dismissal of an external one - these features are not recorded in the document.
Vacation compensation
Before dismissing an internal part-time worker, it is necessary to calculate compensation for unused vacation days or deductions for overused vacation days. Since the part-time worker’s vacation must coincide with his vacation at his main place of work, he could well take vacation days from his part-time job in advance, so when he is fired, the appropriate amount must be withheld. An employee may not take leave from a part-time job during his main leave - in this case, unused days are compensated.