Temporary admission for the period of absence of the main employee. Conditions of remuneration of the employee. Fixed-term employment contract for the period of maternity leave

If your employee goes on vacation, and there is no one to replace him, one of the options for solving the problem will be to hire another employee during the vacation of the main employee (Article 59 of the Labor Code of the Russian Federation). Employers usually resort to hiring new persons in cases where the main employee goes on vacation for a sufficiently long period.

Temporary worker registration

The employer must conclude an urgent labor contract... It should indicate the start date of work, the duration of the contract, the reason for the "urgency", as well as the position and name of the vacationer, whose duties will have to be performed again hired employee(Article 57 of the Labor Code of the Russian Federation). For example, the text may indicate: "the contract was concluded for the period of absence of the office worker Kotomina A.N., who is absent due to being on annual paid leave."

The order for hiring - form N T-1 (approved by the Decree of the State Statistics Committee of the Russian Federation of 05.01.2004 N 1) should also indicate that the new employee is hired temporarily instead of the main employee. For this:

• in the header of the order "hired for", you can indicate not a specific number, but according to "date of entry to work ..." and then the full name of the main employee;
• in the line "conditions of employment, nature of work" indicate: "for the period of temporary absence ..." and then the full name of the main employee.

As for the work book of a temporary employee, in accordance with general requirements it is necessary to make a record of employment without a note that he will work instead of a temporarily absent employee.

Features in the work of temporary employees, depending on the term of the contract

If the vacation of the main employee lasts less than 2 months, then with the person who will have to fulfill his duties, you must conclude a fixed-term employment contract for up to 2 months (Article 289 of the Labor Code of the Russian Federation). It will not be possible for him to establish probation... Also, the temporary employee will be entitled to leave. Its duration is determined according to the principle - 2 working days for each month of work (Article 291 of the Labor Code of the Russian Federation). Or, instead of taking a vacation, you can pay him.

If, in connection with a longer vacation of the main employee fixed-term contract will be concluded for a period of 2 to 6 months, then you can establish a test for a new employee, but for a maximum of 2 weeks (Article 70 of the Labor Code of the Russian Federation). In terms of providing vacations or paying compensation for unused vacation, such workers are subject to general rules.

We manage on our own while the employee is on vacation

The duties of an employee who have gone on vacation can be fulfilled not only by the newly hired person, but also by other employees working in your organization. There are 2 possible options.

Substitution involves the temporary transfer of one of your employees to the place of an employee who has gone on vacation (Article 72.2 of the Labor Code of the Russian Federation). During this period, the transferred employee performs only the work of the vacationer (he can forget about his duties in the previous position) and receives a salary in accordance with the work he performs. You can issue a substitution by an ordinary order. For this, it is quite suitable

602 of the Labor Code of the Russian Federation).

If the work is entrusted in another profession (position), then it will be carried out in the order of combining professions (positions). If for the same profession (position) by expanding service areas, increasing the amount of work. In all these cases, the procedure for the personnel officer should be as follows (consider using the example of combining): conclude an additional agreement with the employee to the employment contract with a description of the conditions for combining (in mandatory the period during which the employee will perform additional work, its content and volume, the amount of the surcharge); issue an order to combine (in any form with the obligatory indication of the assigned work, the period during which the employee will perform additional work and the amount of additional payment) (sample on p.

Hiring a temporary employee: what are the design features

When applying for a small business, you can conclude an agreement by agreement of the parties.

Contract with an employee accepted for the period when the main employee is on parental leave

Registration of a fixed-term employment contract

A fixed-term employment contract may contain the following wording:

"This fixed-term employment contract is concluded in accordance with part 1 of article 59 Labor Code RF for the duration of the duties of an absent employee, for whom, in accordance with labor legislation, a place of work is retained, a flower seller of Rozova Raisa Petrovna, who is on parental leave until he reaches the age of three years "

Can this reason be indicated if the position is temporarily vacant? Let's look at an example. The company has a vacant position.

We issue a temporary employee for work: application, order, registration in the shopping mall, samples of documents

The full name of the desired position and the data (surname, name, patronymic) of the newly-made mother (maternity), which is planned to be replaced, are also written. The application must be correctly registered, a personal card is entered for the employee. As for the substitute herself, she may not go to the aforementioned decree.

Fixed-term contract for the duration of the performance of the duties of the absent employee

The condition for the conclusion of a fixed-term employment contract for the duration of the duties is the temporary absence of the main employee, who retains the place of work.In the situation described in the letter, when concluding a fixed-term employment contract, the parties can determine its duration, indicating a specific event, for example, the conclusion of an employment contract for the period of stay such and such an employee on maternity leave. In accordance with Art.

(part-time job)

year ________________________ "___" ________________ year

LLC "________" represented by the General Director __________, acting on the basis of the Charter, hereinafter referred to as the "Employer", on the one hand, and

A citizen of the Russian Federation _____________ passport series ____ No. _____, issued by ______, registered at the address: _______________________________________________________________________, hereinafter referred to as the "Employee", on the other hand, collectively referred to as the "parties", have entered into this agreement (hereinafter referred to as the "Agreement") as follows:

1. THE SUBJECT OF THE AGREEMENT

1.1. The Employer instructs, and the Employee takes over the implementation job responsibilities in the position of ________ with the Employer, for the period of stay of the main employee _____ (hereinafter "the Main employee") on maternity leave.

1.2. This Agreement is concluded in accordance with paragraph 2 of part 1 of Article 59 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), and the Employee assumes the performance of the Main Employee's job duties exclusively for the period when the Main Employee is on maternity leave, for which (the Main Employee) in accordance with labor legislation, the place of work is retained.

1.3. Work under this contract is a part-time job for the Employee.

1.4. Part-time work is performed by the Employee at the place of his main work.

1.5. The performance of the Employee's job duties under this contract is carried out under normal conditions. Labor duties of the Employee are not related to the performance of heavy work, work in areas with special climatic conditions, work with harmful, dangerous and other special working conditions.

1.6. The employee reports directly to CEO The employer.

2. DURATION OF THE CONTRACT

2.1. The employee must start performing his job duties from "___" ________ _________.

2.2. This contract is urgent (paragraph 2 of part 1 of article 59 of the Labor Code of the Russian Federation), and is valid until the day the Main Employee starts work with the Employer, regardless of whether the Main Employee leaves before the end of the maternity leave, or after such a vacation. This agreement terminates from the day the Main Employee goes to work for the Employer.

3. CONDITIONS OF EMPLOYEE PAYMENT

3.1. The Employee is paid in proportion to the hours worked based on the salary established staffing table The employer for the position.

3.2. Overtime is paid for the first two hours of work in one and a half size, for the next hours - doubled. At the request of the Employee, overtime work instead of increased pay may be compensated by the provision of additional rest time, but not less than the time worked overtime.

3.3. Work on weekends and non-working holidays is paid in the amount of one part of the official salary per day or hour of work in excess of the official salary, if work on a weekend or a non-working holiday was performed within the monthly norm of working time, and in the amount of double part of the official salary per day or hour work in excess of the official salary, if the work was performed in excess of the monthly norm of working time. At the request of the Employee who worked on a weekend or a non-working holiday, he may be given another day of rest. In this case, work on a weekend or a non-working holiday is paid in a single amount, and the day of rest is not payable.

3.4. The salary to the Employee is paid by transferring to the Employee's bank account twice a month on the days established by the rules of the internal labor regulations of the Employer.

3.5. From wages An employee may be deducted in cases provided for by law Russian Federation.

4. MODE OF WORKING TIME AND REST TIME

4.1. The employee is assigned a five-day working week with two days off - Saturday and Sunday.

4.2. The start and end time of work is determined by the Employee independently, taking into account the operating mode of the employer's organization, on the basis that the duration of the working time per day should not exceed four hours. On days when the employee is free from work duties at the main place of work, he can work part-time full-time.

4.3. Within one month, the duration of the working time during the part-time work of the Employee must not exceed half of the monthly norm of working time established for the corresponding category of employees.

4.4. The employee is provided with annual paid leave of 28 calendar days.

Annual paid holidays are granted to the Employee simultaneously with the main work leave. If the Employee has not worked for 6 months, then the vacation is provided in advance.

4.5. For family reasons and others valid reasons An employee, on the basis of his written application, may be granted unpaid leave for the duration established by the labor legislation of the Russian Federation and the Employer's internal labor regulations.

5. RIGHTS AND OBLIGATIONS OF THE EMPLOYEE

5.1. In accordance with this Agreement, the Employee is obliged to fulfill in good faith the following job duties:

5.1.1. Organize work on staging and conducting accounting organization in order to obtain complete and reliable information about its financial and economic activities and financial position by interested internal and external users.

5.1.2. To formulate, in accordance with the legislation on accounting, an accounting policy based on the specifics of the economic conditions, structure, size, industry and other features of the organization's activities, allowing timely receipt of information for planning, analysis, control, assessment of the financial position and results of the organization's activities.

5.1.3. Lead the work: on the preparation and approval of the working chart of accounts of accounting, containing synthetic and analytical accounts, forms of primary accounting documents used to formalize business transactions, forms of internal financial reporting; to ensure the procedure for the inventory and assessment of property and liabilities, documentary evidence of their presence, condition and assessment.

5.1.4. Perform other job duties provided for the position "__________" by the Qualification Handbook of the positions of managers, specialists and other employees, approved by the Resolution of the Ministry of Labor of the Russian Federation of 08.21.1998 No. 37.

5.2. The employee is obliged:

5.2.1. Comply with the Internal Labor Regulations of the Employer and other local regulations The employer.

5.2.2. Observe labor discipline.

5.2.3. Comply with labor protection and labor safety requirements.

5.2.4. Take good care of the property of the Employer and other employees.

5.2.5. 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.

5.2.6. Do not give interviews, do not hold meetings and negotiations regarding the activities of the Employer, without the prior permission of the management.

5.2.7. Do not disclose information constituting trade secret The employer.

5.3. The employee has the right to:

5.3.1. Providing him with work stipulated by this Agreement.

5.3.2. Timely and in full payment of wages in accordance with their qualifications, complexity of work, quantity and quality of work performed.

5.3.3. Rest, including paid annual vacation, weekly weekends, non-working holidays.

5.3.4. Compulsory social insurance in cases stipulated by federal laws.

5.3.5. Other rights established by the current legislation of the Russian Federation.

6. RIGHTS AND OBLIGATIONS OF THE EMPLOYER

6.1. The employer is obliged:

6.1.1. Comply with laws and other regulatory legal acts, local regulations, the terms of this Agreement.

6.1.2. Provide the Employee with work stipulated by this contract.

6.1.3. Provide the Employee with equipment, technical documentation and other means necessary for the performance of his job duties.

6.1.4. Pay in full size the salary due to the Employee within the terms established by the Internal Labor Regulations.

6.1.5. To provide for the everyday needs of the Employee related to the performance of his labor duties.

6.1.6. Carry out compulsory social insurance of the Employee in the manner prescribed by federal laws.

6.1.7. Perform other duties established by the current legislation of the Russian Federation.

6.2. The employer has the right:

6.2.1. To reward the Employee for conscientious and effective work.

6.2.2. Require the Employee to fulfill the labor duties specified in this contract, to respect the property of the Employer and other employees, to comply with the Internal Labor Regulations.

6.2.3. Involve the Employee in disciplinary and material responsibility in the manner prescribed by the current legislation of the Russian Federation.

6.2.4. Adopt local regulations.

6.2.5. Exercise other rights provided for by the current legislation of the Russian Federation, local regulations.

7. EMPLOYEE SOCIAL INSURANCE

7.1. The employee is subject social insurance in the manner and on the terms established by the current legislation of the Russian Federation.

8. WARRANTIES AND COMPENSATIONS

8.1. For the period of validity of this Agreement, the Employee is subject to all guarantees and compensations provided for by the labor legislation of the Russian Federation, local acts of the Employer and this Agreement.

9. LIABILITY OF THE PARTIES

9.1. In case of non-fulfillment or improper fulfillment by the Employee of his duties specified in this contract, violation labor legislation, The Internal Labor Regulations of the Employer, other local regulations of the Employer, 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.

9.2. The Employer bears material and other liability to the Employee in accordance with the current legislation of the Russian Federation.

9.3. In the cases provided for in the law, the Employer is obliged to compensate the Employee for moral damage caused illegal actions and / or failure to act by the Employer.

10. TERMINATION OF THE CONTRACT

10.1. This Agreement shall terminate from the day the Main Employee starts work with the Employer, regardless of whether the Main Employee leaves the maternity leave before the end of the maternity leave, or after the end of such leave.

10.2. This Agreement may also be terminated on other grounds provided for by the current labor legislation of the Russian Federation, prior to its expiration.

11. FINAL PROVISIONS

11.1. The terms of this Agreement are confidential and not subject to disclosure.

11.2. The terms of this Agreement are binding on the parties from the moment it is signed by both parties. All changes and additions to this Agreement are formalized by a bilateral written agreement.

11.3. Disputes between the parties arising from the performance of an employment contract are considered in the manner prescribed by the current legislation of the Russian Federation.

11.4. In all other respects that are not provided for in this employment contract, the parties are guided by the legislation of the Russian Federation governing labor relations.

11.5. The Agreement is drawn up in two copies with equal legal force, one of which is kept by the Employer, and the other - by the Employee.

12. DETAILS AND SIGNATURES OF THE PARTIES

Employer:

LTD "__________",

Worker:

Citizen of the Russian Federation ______________,

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. Topic legal status and the peculiarities of the conclusion and termination of an employment contract with "temporary workers" is devoted to more than one article. 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 hired to perform seasonal work when due to natural conditions work can only be done 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 work, 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 for indefinite term

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 Federal law"About higher and postgraduate vocational education"Dated 22.08.1996 No. 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 provided with another vacation from June 18 to August 15. Therefore, in this case, August 15 is correctly indicated as the day of dismissal. Since no violations have been found labor rights the plaintiff, admitted 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: Transfer of the worker to temporary position to replace an absent employee with a permanent job is an abuse of the right on the part of the employer and does not give the employer the right to fire 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 claim was motivated by the fact that it was accepted against the defendant for permanent job, was once transferred to another position, and later fired in connection with the release 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 labor 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 of an urgent nature - until another employee leaves parental leave. Considering 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 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 claims for reinstatement at work, the court came to a reasonable conclusion that legal grounds the defendant did not have to terminate 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-Chepetsky district court of the Kirov region of 04.09. civil affairs Kirov Regional Court dated 09.10.2008).

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 for specified employee the place of work is saved. 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. Insofar as vacant post"A" at the time of the plaintiff's dismissal could not be considered, the dismissal was recognized by the court as complying 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 11.09.2012; appeal ruling of the Ulyanovsk Regional Court dated 04.12.2012 years 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; wherein additional grounds remain for dismissal

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. Court in satisfaction statement of claim the employee refused (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 disputed 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 mistakes 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. The indicated errors contradict the requirements of the filling rules 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

1. 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”.
2. 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.
3. 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.
4. 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.
5. 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.
6. If earlier the main argument of an employee in a dispute arising from dismissal was the employer's illegitimacy to conclude a fixed-term employment contract, then modern arbitrage practice, in connection with the introduction in 2006 of amendments to Art. 59 of the Labor Code of the Russian Federation already practically does not mention such arguments.
7. 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.

Vacation for employees is a common thing and, as a rule, it does not cause any problems for the employer. But there are times when people go to rest for a sufficiently long period - from a month or more. This may be due to study, serious illness, and so on. And in this case, the boss will have to look for a long-term replacement. One way to solve this problem is. This practice is fairly common. Usually it is quite easy to find applicants for a part-time job (unless, of course, we are talking about a specific position).

Substitution acceptance rules

A so-called fixed-term employment contract is concluded with a temporary worker. The procedure for its registration is described in detail in article 57 of the Labor Code of the Russian Federation. The document must contain the following data:

• start date of the temporary employee;
• the period for which the contract was concluded with him;
• the reason for the "urgency" of the contract;
• position and full name a person who goes on a long vacation.

Documented hiring an employee during the vacation of the main employee can be written, for example, as follows:

And already in the order for hiring, which is drawn up in accordance with the decree of the State Statistics Committee in the form T-1, indicate such information (see table)

Features of acceptance

Formally, all temporary employees can be divided into two categories:

• those who apply for work for up to two months;
• those who apply for work for a period of two to six months.

In the first case hiring an employee during the vacation of the main employee implies that the temporary technician has certain additional guarantees. First, the employer cannot assign him a probationary period. From the first day he is accepted into service on a general basis, which, of course, provides for the payment of a full salary, which is assigned to a specific position. This is spelled out in article 289 of the Labor Code.

If a temporary employee is hired for longer term, then other rules apply to it. So, the employer may well appoint him a probationary period. As a rule, with a lower salary. But this verification period, according to article 70 of the Labor Code, cannot be more than two weeks.

The general rules apply to such temporary employees with regard to vacations or reimbursement of vacations. That is, if it is issued for 6 months, then at the end of the month, a person may well count on 2 weeks of well-deserved rest.

Specialist for replacement from "friends"

There is another option to replace the employee who is going on a long vacation. His responsibilities can be transferred to some other person who is already working in the organization. Therefore, it is possible to do without hiring an employee during the vacation of the main employee... And here, again, two options are possible:

1. replacement of an employee;
2. combining responsibilities.

The first option involves the temporary transfer of an employee to another position. At the same time, he will perform only new duties for himself, and can forget about his main ones for a while. Such a transfer is drawn up by a standard order of the T-5 form, approved by the decree of the State Statistics Committee.

The second option is the combination of both positions by one employee. Naturally, he will receive two salaries at once. But employers use this approach extremely rarely, since, after all, human forces are not unlimited. And working for two is always difficult, which will invariably affect the quality of the work performed. Typically, these forms of overlapping are applicable only to leadership positions.