Dismissal of part-time workers at the initiative of the employer, Art. 288 Labor Code of the Russian Federation

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There are a number of situations when an employee can work in two enterprises at once or hold several positions in one. When dismissing such employees, it is necessary to follow the rules described in detail in the Labor Code. However, if desired and by mutual consent of the parties, dismissal of an employee is possible on the basis of an agreement.

This is one of the simplest options for terminating an employment relationship if a company is making staff reductions or is subject to liquidation. Just as in any other case, upon concluding an agreement, the employee is entitled to all necessary payments and benefits, which he must receive on the day of dismissal. It is necessary to comply with the dismissal rules despite the fact that the person has another place of work. Let's figure out how a part-time worker is dismissed by agreement and are there any special conditions for carrying out this procedure?

Types of part-time workers

A part-time worker is an employee who regularly works during his free time from his main job. These employees work part-time.

There are two types of part-time work:

1. Internal - a specialist is assigned to different positions at one enterprise.
2. External - the employee performs work duties for different employers.

According to the legislation of the Russian Federation, a person can have several additional positions, but only within reason. Each of his work must be official, regardless of which organization provides it.

Internal part-timers

Termination of a contract for this category, concluded for part-time work, does not imply automatic termination of the main employment contract . Such an employee combines his main work activity and additional one. The latter is performed in free time and for this reason its results or conditions do not apply to the main position.

The opposite situation is also possible, when the main contract is terminated, but the part-time contract remains valid.

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Nuances of the procedure

Any employee working part-time has the right to terminate their employment relationship at their own request.
But dismissal is also possible at the initiative of the employer. Such termination of an employment contract is regulated by Article 288 of the Labor Code of the Russian Federation. But it should be noted that if the employee is a person who has benefits in accordance with Article 261 of the Labor Code of the Russian Federation, which, in the event of termination of the employment contract, provides guarantees to pregnant women and persons with family responsibilities, then the employer does not have the right to dismiss them at will. In addition, it is prohibited to interrupt the employment relationship with an employee who is on annual leave or sick leave. It should be noted that if a part-time specialist quits his main job, then the additional work will become his main job. In this regard, it will no longer be possible to terminate the employment contract with a part-time worker due to the hiring of another person for his position.

An employer who decides to terminate an employment relationship with a part-time employee must take into account the legal specifics of the employee’s position. This will allow you to avoid serious mistakes, as well as violations of the law. If the employer does not pay enough attention to this issue, then conflict situations may arise that will have to be resolved in court.

The dismissal of a specialist working part-time is carried out in accordance with Article 288 of the Labor Code of the Russian Federation. If the contract is open-ended, then the employer can terminate it if a person is hired for a part-time position for whom this position will become the main job. The manager must notify the part-time employee of this in writing fourteen days before the date of dismissal.

If a fixed-term contract has been concluded with a specialist, the employer cannot terminate it before the end of the contract term. Exceptions are possible only in connection with violation of labor discipline by an employee, as well as during the liquidation of the organization.

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

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

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

This is important to know: The employer does not accept a letter of resignation

Grounds for termination of the contract

Most grounds for termination of employment are the same for all employees. This means that, according to the law, it is quite possible to fire a part-time employee without his desire. In particular, the legislation provides for the following cases of termination of a contract at the initiative of the employer:

1. Liquidation or termination of the work of an organization or its division, if it and the head office are located in different localities.
2. Reduction of staff.
3. Insufficient qualifications of the employee, revealed after his certification.
4. More than one instance of failure by an employee to perform official duties, provided that there is a valid disciplinary penalty.
5. The co-worker lost trust due to the guilty actions he committed.
6. The employee provided incorrect information about his income, conflict of interest, etc., if this is imposed on him by legislative acts.
7. The specialist has committed an offense that is contrary to moral standards and is therefore incompatible with continuing to work in the organization.

It is also worth noting such grounds as gross violation by an official of his labor duties. Such violations include:

• absenteeism;
• presence at the workplace under the influence of alcohol or drugs;
• disclosure of personal data of enterprise employees or trade secrets that were known in connection with production activities;
• theft committed by a part-time employee at the enterprise;
• violation of safety regulations that could lead or has already led to serious consequences;
• providing documents with false information when applying for a job.

Thus, Russian legislation recognizes the legal termination of employment relations with external and internal part-time workers at the initiative of the employer. But for this, their dismissal must be carried out for one of the reasons specified in the regulations.

Other grounds for dismissal

The legislation applies to part-time workers in the same way as to other workers. Therefore, their dismissal at the initiative of the employer is possible on any of the grounds provided for in Art. 81 of the Labor Code of the Russian Federation (liquidation of an organization, layoffs, inconsistency with the position held, disciplinary offense, etc.).

Process order

Since an employee engaged in labor activity is considered a full-fledged employee, his dismissal is carried out in accordance with the established procedure. Moreover, the basis for this process must be provided for by labor legislation.

In the event of termination of an employment contract due to staff reduction, the employer is obliged to notify the employee who combines various duties two months before the date of termination of the relationship. At the same time, he needs to issue an order that changes will be made to the structure of the organization, expressed in the reduction of some positions.

Then the employer must offer the released specialist other vacancies in the same organization. If a person does not want to take one of the vacant positions, then he is fired with a severance pay equal to average earnings over the next two months.

The employer should keep in mind that the following categories of employees cannot be dismissed due to staff reduction:

• women who are pregnant and have a child under three years of age;
• sole breadwinners in a family with dependents;
• trade union members whose work in the organization is related to trade union activities.

If the termination of the employment relationship with a part-time employee occurs due to the hiring of a main employee, then the dismissal is made either on a general basis or in connection with an additional reason. The second option applies only to those part-time workers with whom an open-ended contract has been concluded.

On the last working day, you should make a full payment with a specialist. In addition, he needs to be given a work book and all the necessary documents.

Step-by-step instructions: how to fire an internal and external part-time employee

If we are talking about disciplinary action, then you must first issue confirmation of the violations committed. These may include:

• memo to the manager from the head of the unit;
• act of registration of truancy or other offense.

You can find out more about dismissal for disciplinary offenses here.

When it comes to reducing staff or numbers, you need to prepare local acts on the reduction procedure. And in case of liquidation or bankruptcy of an enterprise - documentation on the relevant procedure. Based on the reason for dismissal, an official warning is issued to the employee.

Notice is an official document warning that the employer intends to dismiss the person being notified . It is drawn up in free form, at the discretion of the employer. Must contain information:

1. Full name of the part-time worker;
2. combination conditions;
3. position and department;
4. reason for dismissal.

This paper is handed out against signature 3 days before dismissal. An exception is a reduction when the employee is notified 2 months in advance, like other employees.

Attention: Since the combination involves a reduced work schedule, it is necessary to calculate the warning time and it is better to submit the notification earlier.

If the reason for exemption from a combination of jobs is a disciplinary sanction in the form of absenteeism, neglect of duties, theft or violation of labor regulations, the culprit may be dismissed without warning.

Also, a warning is not required when the part-time worker is also a substitute, that is, works under a fixed-term contract during the absence of the main employee (we wrote about dismissal at the initiative of the employer of an employee who was signed under a fixed-term employment contract here). But this only applies to cases where a permanent employee takes up his position.

The order is drawn up in the standard version , in the T-8 form in the form of an order from the manager with the following information included:

• name of the organization;
• the fact of dismissal, indicating the position, last name, first name and patronymic;
• reasons and dates of dismissal.

When exempted from combined employment under Article 288 of the Labor Code of the Russian Federation, it is necessary to draw up an order for the dismissal and hiring of a permanent employee at the same time, without a break, otherwise the grounds of legal norms may be challenged in court.

Upon release of the order, a personal card is filled out, where information about the dismissal is entered. It is placed in the personal file along with the notice and a copy of the order. Since filling out a work book for part-time workers is not provided, the main personnel actions of the authorized person are completed here. But sometimes, at the request of a part-time worker, a record of additional work activity is made in the work book.

If a record of admission to a position has been made, a record of dismissal from the position must be made.

If the work record is filled out, then the entry is made with the next serial number, indicating:

1. dates of termination of combination;
2. records of the fact of dismissal at the initiative of the employer with reference to the article of the Labor Code F;
3. details of the relevant order.

After entering the required information, the signature of the responsible person and the manager is affixed.

The following photo shows a sample entry in the work book when a part-time worker is dismissed:

On the last working day, which is considered the date of dismissal, a:

• work book (if filled out);
• income certificate (if the part-time worker worked for two years or more);
• certificate of income for 3 months (on request);
• copies of documents submitted during employment (upon request).

Along with documentation, the dismissed part-time employee is given severance pay on the last working day.

You will find a detailed procedure for dismissing an employee at the initiative of the employer in a separate material.

Employee Notification

If the employer intends to terminate the employment relationship with a part-time employee for any valid reason, then, in accordance with the procedure established by legal acts, he is obliged to notify the employee in writing fourteen days in advance.
According to the accepted rules, he must give the specialist a notice indicating the reason and date of the upcoming dismissal. Such a document is issued against signature. If an employee refuses to receive a notification, then a statement of refusal must be drawn up and registered in the appropriate journal. Practice shows that disputes between an employer and an employee often arise due to the content of the document notifying the termination of the employment contract. For example, it does not indicate the date of dismissal or its reason.

If a part-time worker who has received such a notice applies to the court to protect his rights, the decision will be made in his favor. This is due to the fact that he will be able to confirm his claims with reliable facts by providing an incorrectly executed document. The employer also needs to be confident in the legality of his actions, that is, in the decision made and the sufficiency of the grounds for terminating the employment relationship if the initiative to dismiss the employee comes from him.

Dismissal of a part-time worker due to the hiring of a new employee

As the title of the article suggests. 288 of the Labor Code of the Russian Federation, it can be applied exclusively to a part-time worker, and there are no restrictions regarding whether he is internal or external. We are talking about dismissal in connection with the employment of another employee who will occupy this position as the main one. For this reason, only a part-time worker who has entered into an open-ended employment contract with the employer is dismissed; this basis does not apply to employees under fixed-term contracts.

To comply with the dismissal procedure, you must inform the part-time employee at least 2 weeks in advance about the upcoming termination of the employment contract. He must work this time unless otherwise agreed between him and the employer. The law does not provide a strict form of notification, but in any case it must contain a reference to Art. 288 of the Labor Code of the Russian Federation, a clear expression of the intention to dismiss the employee and an indication of the date of termination of the employment relationship. To avoid challenging the fact of notification in court, it is worth drawing up a notice in 2 copies, one of which is given to the employee, and the second (with the signature of the dismissed person on familiarization) is kept by the employer.

After this, a dismissal order is drawn up. For convenience, the T-8 form can be used with the obligatory indication of Art. 288 of the Labor Code of the Russian Federation, numbers and dates of notification of the upcoming severance of labor relations.

Note: although dismissal under this article is not considered by the Labor Code as a basis for payment of severance pay, this form of support for a dismissed employee may be provided for in an employment or collective agreement or other local regulation.

Drawing up an order

Termination of an employment contract with a part-time employee should be formalized accordingly, that is, in accordance with regulatory legal acts. To do this, the organization needs to issue an order to dismiss the specialist.

The document must indicate the following information:

• surname, name, patronymic of the employee;
• the position he holds;
• the date of his dismissal;
• grounds for termination of the contract;
• due payments.

The document must be signed by the manager and the dismissed employee, who must put a mark confirming familiarization with the order. This procedure is the same when terminating an employment contract for both internal and external part-time workers.

Labor Code of the Russian Federation on the dismissal of a part-time employee by decision of the employer

The Labor Code of the Russian Federation contains a number of rules devoted to part-time work and termination of employment contracts with such employees. Analyzing them, you can see that for the most part the process of dismissing a part-time worker does not differ from the dismissal of other categories of workers, although there are still some peculiarities.

Moreover, the differences largely depend on the type of part-time job, i.e., on whether it is internal or external. Part-time work in itself is the performance of work duties by an employee in another position during time free from the main job. If the employee performs them within the same organization, then such part-time work will be considered internal, but if we are talking about different employers - external.

Separately (in Article 60.2) the Labor Code of the Russian Federation distinguishes combination. It should not be confused with part-time work, since work responsibilities in this case are performed within working hours in the same organization.

Difference in registration of dismissal

Despite the fact that the process of ending an employment relationship is basically the same, there are some differences in the systems for dismissing different types of part-time workers.
In particular, they relate to the reflection of the fact of cooperation in a person’s work record. Thus, in the document of an employee who has a main job at another enterprise, there is no need to enter information about dismissal, because his work book remains with the main employer. If the employee needs confirmation of these relationships, then he can ask to provide all the necessary copies and extracts.

If an internal part-time worker is fired, the employer is obliged to make an entry in the work book, since it is kept by him and, accordingly, it is the employer who is responsible for filling it out. The same applies to situations when a part-time worker quits his main job.

The procedure for dismissing a part-time employee

Art. 60.2 of the Labor Code of the Russian Federation provides for the possibility of assigning additional responsibilities to an employee in another profession or position. Such duties are performed by the employee during the same working hours as the main ones at the same enterprise. Such activities are called combining and, unlike part-time work, do not require a separate employment contract - the written consent of the employee and the issuance of a corresponding order by the employer are sufficient.

Both the employer and the employee have the right to terminate the combination by warning the other party in writing at least 3 days in advance. At the same time, the Labor Code does not oblige the parties to give reasons for such a decision.

Since a separate employment contract is not concluded with an employee when combining employment, an order for dismissal in case of refusal of it is not required (usually an order to cancel the combination is drawn up). If the employee quits his main place of work, the combination ends automatically.

In conclusion, it remains to be said that, although the termination of an employment contract with an internal part-time worker due to staff reduction or certification results has some features, and entries in the work book are made solely at his request, otherwise the dismissal of part-time workers occurs in the same way as in the case of ordinary employees (i.e. those occupying one position).

Allowed compensation

An employee working part-time is entitled to annual leave, despite the fact that he performs his duties only at half the rate.
This is indicated in the Labor Code. In this regard, upon dismissal of such an employee, compensation should be calculated for those days off that he did not use for some reason. If he rested more days than he was entitled to at the end of the cooperation, the amount of vacation pay paid earlier is withheld from the specialist.

According to the law, a part-time worker must receive leave from work at an additional job at the same time as he receives days off from his main job. But you need to keep in mind that an employee can, at his discretion, take a vacation earlier than set in the schedule.

In addition, the employer must pay the dismissed part-time worker severance pay , if this is stated in the organization’s labor or collective agreement. Compensations are issued on the employee’s last working day.

The employer needs to understand that a part-time employee has all the rights and obligations established by the Labor Code. This means that it is possible to fire a part-time employee, both external and internal, without the consent, but all the nuances of the procedure must be observed. If the employer, terminating the employment relationship, commits violations, then the dismissal will be considered illegal. In this case, the dismissed person can turn to the courts to protect their rights.

Legal basis

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

Expert opinion

Lebedev Sergey Fedorovich

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

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

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

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

This is important to know: What is the employer obliged to give the employee on the day of dismissal?

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

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

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

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

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

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

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

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

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

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

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

Entries in the work book about the dismissal of a part-time worker

The work book is kept at the main place of work of the part-time worker. When filling out the document, the following features are taken into account:

• The part-time worker must express a desire to make a record of additional employment and provide supporting documents.
• Internal part-time workers submit an application in writing without providing additional documents.
• External part-time workers are given an extract from the hiring and dismissal order to make an entry at the place of primary employment and storage of the work book.
• Entries regarding the hiring of a part-time worker may be made without regard to chronological order.

The organization's seal is not used when making a record of the employment of a part-time worker. The procedure for sealing the signatures of officials is used only upon dismissal from the main workplace.

Part-time workers: how to terminate an employment contract?

The employee must give notice 3 days in advance of the upcoming dismissal. If the dismissal occurs on your initiative, then a warning to the employee is given in writing 2 weeks in advance. If a person does not go to work without good reason, he is sent a warning by registered mail.

With regard to the most vulnerable categories of citizens (future mothers, minors, maternity workers and mothers of children under fourteen years old), the same rules apply; the employer cannot simply take them and fire them simply because he is tired of putting up with them in these positions or he has saved these places for someone else.

A combined position can be internal or external. An internal employee takes a part-time position in the same company where he is employed. The external one works in a primary position in another company, and works part-time in yours. The work record of someone holding a dual position within the same company is stored in the archives of the personnel department.

Termination of an employment relationship cannot be formalized on a holiday or day off, since the HR department will not be able to issue an order, and the accounting department will not be able to make payments.

To begin the process of terminating the contractual relationship, the worker needs to write a statement reflecting his desire to leave. The submitted application is recorded by the HR specialist in the accounting journal. Nowadays, part-time work is practiced quite often among employers. This is a form of labor relations when an employee does not work in a position permanently, but only performs some specific duties and tasks. The part-time job is provided for its external and internal design.

These benefits include higher monthly income and grounds to claim an increased pension.

The dismissal of an external part-time worker is carried out in almost the same way as an internal one, but has some differences.

These differences arise due to the fact that a part-time worker simultaneously holds two jobs, but the procedure remains the same.

In addition, for part-time workers hired on conditions of indefinite employment, there is a danger of dismissal due to the fact that a main specialist has been found in their place, art. 288 TK.

An employer cannot fire a part-time worker without his consent while the employee is on vacation. The company management has the right to terminate the employment contract after these events.

If a part-time worker, who urgently needs to be fired without his desire, has been assigned to take the place of a maternity leaver during her absence, then you can use a trick. Contact the young mother with a proposal to write an application for early return to work.

There is a point of view that this single employment contract automatically becomes the main one. Termination based on hiring an employee on a permanent basis becomes impossible.

It seems to us that there is no point in driving ourselves into such strict limits. Moreover, the Labor Code of the Russian Federation makes it possible to terminate an employment contract with a part-time worker, even if he does not really want this.

Secondly, the dismissal of an external part-time worker, even under an open-ended employment contract, is possible when another employee has been found in his place, for whom this particular work will be the main one. But it is clear from the situation that establishing the term of the employment contract in your case is difficult. And is it necessary to complicate your life?

Changing the status of a part-time worker

If a part-time worker has terminated the relationship under the main contract, the same dismissal procedure continues to apply to him. The condition of part-time work is essential and is included in the contract without fail (Article 282 of the Labor Code of the Russian Federation). The status of a part-time worker does not change until changes are made to the agreement with the mutual consent of the parties.

Example of termination of a contract

Employee R., employed in the organization Saturn LLC, registered a part-time job at Neptune LLC. Having terminated the main contract, R. did not apply to the head of Neptune LLC with a request to change the essential condition of the part-time contract. The employer, guided by the Labor Code of the Republic of Kazakhstan, hired the main employee, notifying the part-time worker. The contract was terminated on the basis of Art. 288 Labor Code of the Russian Federation.