Grounds for dismissal of a part-time worker due to the hiring of a main employee

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Published: 08/10/2016

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A part-time worker is an employee who performs the duties of another employee for several hours a day, in his free time from his main activity.

Internal part-time work involves performing primary and additional work in one organization, while the number of part-time jobs is not limited by law.

• Legislation
• Reasons for dismissing internal part-time workers
• Registration procedure
• Employee payments
• Features of dismissal of protected categories of workers

Features of part-time employment

Labor legislation allows for part-time work both at the company of primary employment and with another employer. The registration conditions do not have any significant differences. Additional part-time employment involves:

• Conclusion of a separate employment contract. Part-time employment with contract registration is carried out for both external and internal employees.
• Rights and responsibilities corresponding to the working conditions of key workers. The exception is the condition of dismissal when hiring a person for whom the contract will become the main one.
• Dismissal procedure carried out in accordance with standard procedures. The legislation describes the main aspects of documentary registration (Article 84.1 of the Labor Code of the Russian Federation).

The grounds for terminating a contract with a part-time worker are the initiative of the employee, the initiative of the employer, agreement of the parties, reduction of staff, and other conditions. For part-time workers, an additional basis for termination of the contract at the initiative of the employer has been legalized ( Article 288 of the Labor Code of the Russian Federation ).

Notice of dismissal of a part-time worker

Application for voluntary resignation

To notify the employer, the part-time worker must write a letter of resignation. The application can be written by hand or printed using technical means. In Part 1 of Art. 80 of the Labor Code of the Russian Federation there are no instructions on using a specific form to write an application. Some organizations specifically approve a template for such an application so that the employee can complete it correctly.

The resignation letter for a part-time employee must include:

• wording about the specialist’s intention to resign from his workplace, where he worked part-time;
• date of termination of the employment contract;
• personal signature of the part-time worker;
• date of application.

If the employee does not indicate the date of the last working day in the application, then the employment contract with him must be terminated on the last working day of the second week of work. If an employee needs to resign on a specific day without working, then he must indicate the date in the application. For example, this is necessary if there are compelling reasons for dismissal (entry to study, retirement, etc.).

The application is drawn up in two copies. Then the employee must submit it to the HR department or directly to the manager. The employer must accept the document and register it in accordance with the internal regulations of the organization. One copy of the application remains with the employer, the second is sent back to the employee with a note of acceptance.

Sometimes the employer may refuse to accept the application, then it can be sent by registered mail with acknowledgment of receipt. The notice will be returned to the employee wishing to resign, signed by the employer representative who received the letter. It should be borne in mind that with this option, the countdown of the working period will begin only from the day the employer receives the letter.

A part-time employee can submit an application for resignation at his own request while on sick leave or on vacation. In this case, sick leave and vacation days will be included in the working period. The Labor Code does not provide for any prohibitions on this topic, in contrast to the dismissal of an employee at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation).

Dismissal of an internal part-time employee at his own request under all employment contracts is carried out with a separate application (for each position).

Dismissal when hiring a key employee

The ability to fire a part-time employee when hiring a main employee is one of the few advantages of an employer, enshrined in the Labor Code of the Russian Federation. To terminate the contract, the following conditions must be met:

1. An agreement with a part-time worker planned for termination must be concluded for an indefinite period.
2. A person for whom work becomes the main one must express his intention to find employment - submit an application for employment addressed to the head of the enterprise. The employer must issue an employment order taking into account the date the position becomes vacant or draw up an employee employment agreement.
3. The part-time employee must be notified of dismissal 2 weeks in advance. The term of service can be reduced by mutual agreement.

According to the judicial authority, for part-time workers hired for a certain period of time, the provisions of Art. 288 of the Labor Code of the Russian Federation do not apply. Persons hired part-time under fixed-term contracts are dismissed on general grounds.

Investigative Committee for Civil Cases of the Stavropol Regional Court, chaired by M.I. Gedygushev (Determination dated 04/01/2014 in case No. 33-1702/14).

Payments to a part-time worker

The final payment to the dismissed person should be made on the last day.

The following are subject to payment:

• salary accrued for the time period worked;
• compensation for those vacation days that the employee did not have time to take;
• severance pay in some cases;
• other types of compensation payments, if they are specified in the company’s internal documentation.

To calculate these amounts, the existing standard form is used - calculation note T-61.

Payment of compensation

The part-time worker has the right to monetary compensation for those days of vacation that he did not have time to take off. It is due to every person resigning, and the reason for dismissal and the initiative party do not matter.

When calculating this type of compensation payment, you need to multiply the average daily earnings for the last year by the number of unused days of annual leave. The last indicator is calculated taking into account the following formulas:

Severance pay

Compensation in the form of severance pay is issued to a dismissed part-time worker in the following cases:

• Reduction in the number of personnel - the amount of average earnings per month (if there is further unemployment for three months, another 2 monthly earnings are paid);
• Liquidation of the employer - the amount of payment is determined similarly to the previous paragraph;
• Subject to the conditions of Art. 178. Labor Code of the Russian Federation - the amount of average 2-week earnings;
• Other cases specified in the employer’s local internal documentation.

Mandatory stages of dismissal of a part-time worker

The dismissal of a part-time worker when the main employee is employed is carried out at the initiative of the employer.

Part-time employees have rights similar to other employees. Persons receive all required payments and compensation upon dismissal.

Possible grounds that do not require his consent

The general grounds for termination of an employment contract at the initiative of the head of the organization are provided for in Art. 81 Labor Code of the Russian Federation. Along with the general ones, the legislation also provides for a special basis, relevant only for this category of workers - dismissal in connection with the hiring of a main employee (Article 288 of the Labor Code of the Russian Federation).

Reception of the main employee

The grounds for termination of the employment contract specified in Art. 288 of the Labor Code of the Russian Federation , applies to part-time workers whose employment contract was concluded for an indefinite period.

Important! For fixed-term contracts, this ground (dismissal in connection with the hiring of the main employee) does not apply, and its termination is carried out only within the period specified in it.

The dismissal of a part-time worker in connection with the hiring of a main employee is carried out in several stages.

1. Notify the part-time employee about the hiring of the main employee.

The notice is drawn up in writing in duplicate and sent no less than 2 weeks before the date of termination of the contract (and hiring of the main employee). The employee must read it and sign.

The document contains:

• date of dismissal;
• link to article 288 Labor Code of the Russian Federation .

1. Offer another job.

It is important to note that the head of an organization has the right to offer a vacant position for combination purposes, but the law does not oblige him to this action. If an offer was made and the part-time partner refused, he must put his refusal in writing.

In addition, the employee can be offered to transfer to this position as the main employee, but then he will have to resolve the issue with his main place of work (quit or register there as a part-time worker).

1. Issuance of an Order of Dismissal (form T-8 or other form individually established by the organization).

The part-time worker must also familiarize himself with a copy of the Order containing the date of dismissal under his signature.

1. Preparation of documents.

Registration of a work book is carried out at the request of an external part-time worker. The HR department of an organization can part-time:

• request a work book and arrange it at your place;
• send a request to formalize the dismissal of a part-time worker at the main place of work, providing all the data.

The employee is given the following:

• a certificate containing data on the hiring of a part-time worker and dismissal, with links to the relevant acts of the organization;
• a copy of the Employment Order;
• a copy of the Order of dismissal under Art. 288 Labor Code of the Russian Federation .

1. Making calculations.

No later than on the part-time worker’s last working day, the employer must make a full settlement with him, which includes:

• wages, bonuses and allowances;
• compensation for unused vacation.

Additional payments upon termination of the contract based on the hiring of the main employee are not provided.

Reduction

The law does not provide for a special procedure for laying off part-time employees, therefore, dismissal from a part-time job on the specified basis is carried out in the general manner , that is:

• the head of the organization must offer other available positions (if available);
• if the employee refuses in writing to move to another position, terminate the employment contract in accordance with the general procedure;
• make a full calculation taking into account all compensation established during the reduction (salary, unused vacation, severance pay and average monthly earnings), while the type of part-time job is not taken into account.

Many practitioners argue over whether receiving benefits while having a main job will constitute illegal enrichment on the part of a part-time worker. The point in this issue was put by the Appeal ruling of the Khabarovsk Regional Court dated February 20, 2015 in case No. 33-1086/2015, which determined that:

• a laid-off employee has the right to receive all required compensation, in view of the content of Art. 287 Labor Code of the Russian Federation;
• has the right to contact the employment authorities and register, having received benefits for the third month.

If the part-time job is carried out within the same organization (the manager for both positions is also the same person), the employee may not be offered a vacant position, because he stays at work.

If the employee has a main place of work, and it is located with another employer, then the organization in which the part-time work is performed, when laying off the employee, must request a work book in advance to formalize the dismissal.

If an employee’s reduction occurs at his main place of work, then the dismissal procedure and payments are also made in the general manner , regardless of whether there is another job or not.

Liquidation of an organization or bankruptcy leading to liquidation

Dismissal is carried out in the same way as with other employees: the part-time employee must be warned in writing and signed by him no less than 2 months before the organization or individual entrepreneur ceases its activities.

Reference. In accordance with Art. 287 of the Labor Code of the Russian Federation, guarantees are provided to part-time workers in full (exception: compensation related to obtaining education or performing work in the Far North, which are paid only to main employees).

At the output he gets:

• wage balances and calculation of unused vacation;
• severance pay;
• allowance in the amount of average earnings.

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.

Documents issued to a part-time employee upon dismissal

At the time of termination of the contract, the employer is obliged to issue the following documents to the dismissed part-time worker:

• a copy of the dismissal order;
• salary certificates prepared in the appropriate form;
• extracts from SZV-M and SZV-STAZH;
• work book if an internal part-time worker quits both the main and additional work;
• STD-R, if the resigning part-time worker refused a paper work book and chose an electronic format;
• other documents, if the employee needs them and directly relates to his work activity in this organization.

Documents confirming the employment of a permanent employee

Using the opportunity to terminate a contract with a temporary employee when hiring a permanent employee is possible only with proof of employment. The following documents are used to confirm employment:

1. An order to hire a person, taking into account the two-week delay required to notify the part-time worker. If a part-time worker falls ill during the working period, the order is canceled and a new order is issued.
2. Employment agreements. It is possible to indicate any effective date or from the moment the employee immediately begins to perform his duties. An agreement of intent is not used in labor law.
3. An order to dismiss an employee due to transfer to a company where a part-time worker works. Additionally, a notice of the employer’s consent to hire the employee for the position held by a part-time employee must be drawn up.

The documents are not provided to the part-time worker upon termination of the contract, but can be used when challenging in court the competence of the part-time worker’s dismissal.

Calculation of a part-time worker upon dismissal

Upon dismissal of a part-time employee, the following mandatory payments are due:

• salary for hours worked;
• compensation for unused vacation;
• other payments provided for in the employment contract, collective agreement or local regulations of the organization.

If an internal part-time worker terminates two employment agreements - the main one and a part-time one, then payments must be made in full for each. All payments must be made on the day the employee leaves.

In what amount and when is severance pay paid, as well as how to calculate compensation for unused vacation - read the article “How to fire a part-time employee? Dismissal procedure."

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.

Working off upon dismissal of one's own free will: is it necessary or not?

When dismissing a part-time employee at his own request, two weeks of work is not always required. By agreement with the employer, the period of service may be reduced. And in some cases, an employee may quit without working off as required by law.

Part-time worker in accordance with Part 3 of Art. 80 of the Labor Code of the Russian Federation can quit without working in the following cases:

• by agreement with the employer;
• in case of enrollment;
• upon retirement in old age;
• if there is a violation by the employer of the norms of current labor legislation;
• other circumstances due to which the part-time worker can no longer carry out labor activities.

Part-time job reduction

Guarantees of labor rights are provided to part-time employees on an equal basis with main employees, but so do the responsibilities. The possibility of reduction is not excluded by law. Compliance with the established procedure is mandatory. The dismissal of an external part-time worker and an internal part-time employee due to staff reduction is similar to the procedure in relation to main employees. Namely, the employer is obliged to notify 2 months in advance that changes will be made to the organization’s staffing table (an order is issued about this). During this period, before the day of dismissal, the part-time employee must be offered other vacant positions, if any. Available vacancies may have lower pay and may not be as interesting or prestigious. You can refuse them, and then the dismissal of the part-time employee due to staff reduction is formalized within the prescribed period. Severance pay is calculated in the same way as for main employees: upon calculation (average monthly earnings) and for another two months if the person does not find a job during this period.

It is important to know that when laying off, there is no difference between a main employee or a part-time employee, and discrimination of rights on this basis is illegal. This statement is confirmed by judicial practice. You can always write a statement if you think that your rights have been violated.