How to fire a part-time worker without his consent: step-by-step instructions

Legal grounds for dismissing a part-time worker

The grounds for dismissing a part-time worker can be divided into two categories:

general - any provided for by the Labor Code (for example, if an employee wants to quit or the employer fires him for absenteeism);
additional - hiring a main employee to a part-time position (Article 288 of the Labor Code of the Russian Federation).

An employer cannot dismiss an employee employed part-time in an organization on his own initiative if the employee:

is on vacation or sick leave;
expecting a child;
belongs to any of the categories listed in Part 4 of Art. 261 of the Labor Code of the Russian Federation (for example, an employee has a child under three years of age).

The listed restrictions do not apply if the basis for dismissal is the liquidation of the organization (see paragraph 28 of the resolution of the Plenum of the Armed Forces of the Russian Federation “On the application of legislation...” dated January 28, 2014 No. 1).

Key worker exit

The departure of the main employee is a legal basis for the dismissal of a part-time worker at the initiative of the employer in the general case (i.e., if there are none of the limiting factors listed above).

The fact of the upcoming dismissal of a part-time worker must be notified at least 2 weeks before the termination of the employment relationship (Article 288 of the Labor Code of the Russian Federation). To do this, you must draw up a written notice and hand it to the employee against signature.

The form and content of such a notice are not established by the legislator, so the employer can prepare it independently. In this case, it is worth indicating:

date of preparation of the document and its number;
information about the dismissed employee - full name. and position;
warning that the employment contract will be terminated on the basis of Art. 288 Labor Code of the Russian Federation;
expected date of termination of the employment contract.

Is it possible to dismiss a person who works part-time from his position?

Labor legislation allows termination of a contract with a part-time worker:

on the general conditions outlined in Article 77 of the Labor Code of the Russian Federation - by decision of the employer, employee, consent of the parties, and so on;
on an additional basis, according to Article 288 of the Labor Code of the Russian Federation - if an employee for whom this work will be the main one is hired for a part-time position.

At his own request, the part-time worker can terminate the contract at any time, having previously notified the management of the enterprise. The employer does not have the right to dismiss, at his own discretion, a part-time worker:

On vacation or sick leave.
Belonging to the category of persons designated in Art. 261 Labor Code of the Russian Federation:

pregnant employees, women with children under 3 years of age;
single mothers raising a child under 14 years of age or a disabled person under 18 years of age;
the sole breadwinner of a child under 3 years old in a large family, if the other parent does not work.

The exception is the liquidation of an organization - in this case, the dismissal of citizens belonging to any category is permissible.

Without the employee's consent

Termination of a contract with a part-time partner is possible without his consent. An employer has the right to dismiss an employee if:

the period of the fixed-term contract has expired;
the organization is being liquidated;
staff is being reduced;
the citizen has committed a disciplinary offense (missed work, arrived at work in a state of intoxication, was involved in theft of property, etc.) or does not fulfill official duties;
the citizen’s qualifications do not correspond to the required ones;
A person for whom it will become the main place of work is hired for a part-time position.

The last paragraph is valid only with an open-ended contract with a part-time worker. That is, the employer has the right to replace him with the main employee. In this case, the employer is obliged to notify the current employee of his decision in advance (14 days in advance).

A part-time worker can avoid dismissal in this situation if he manages to quit his main job. Then the additional activity is automatically recognized as the main one, even with a part-time working day - now the employer will not have the right to make a replacement and hire a new employee.

The dismissal of an internal part-time worker does not mean termination of the contract for the main position . It is not affected; the employee retains all his powers. The dismissal procedures for internal and external part-time workers are identical. But the second option is characterized by the peculiarities of making an entry in the work book.

In case of external part-time work, the document remains at the main place of work, therefore the organization at the place of additional activity cannot mark the termination of the contract.

It is permissible to record the dismissal to the main employer if the employee provides a written request and a copy of a certified order to terminate the employment relationship with another enterprise. In this case, the notice of dismissal can be entered simultaneously with the employment record.

At the employee's initiative

Termination of the contract by decision of the part-time worker is carried out according to the standard algorithm; the procedure starts after informing the employer in the form of an application. According to Article 80 of the Labor Code of the Russian Federation, a part-time worker is obliged to notify management before leaving work within the period specified by law.

This working period is also valid for part-time workers; its duration may include:

2 weeks - standard period (Article 80 of the Labor Code of the Russian Federation).
3 days - during the trial period (Article 71 of the Labor Code).
3 days - for seasonal employment (Article 296 of the Labor Code).
3 days - for a fixed-term contract up to 2 months (Article 292 of the Labor Code).
1 month - for the head of the organization (Article 280 of the Labor Code).
1 month — for coaches and athletes with a contract valid for more than 4 months. In this case, it is possible to increase the period (Article 348.12 of the Labor Code).

It is permissible to resign without service by agreement with the employer or for good reasons specified in Art. 80 Labor Code of the Russian Federation:

upon admission to an educational institution;
upon retirement;
when the management of the organization violates legal norms.

The legislation also provides for other situations in which leaving without work is permitted - if work becomes impossible.

Such cases include:

moving;
conscription into the army;
receiving disability;
development of occupational pathologies, etc.

A citizen who is on vacation or on sick leave has the right to quit without working or reduce it . This period counts towards the designated notice period. The countdown of work starts from the next day after the date of submission of the application to the employer.

By agreement of the parties

Dismissal by agreement of the parties is regulated by Art. 78 of the Labor Code of the Russian Federation and is similar to the procedure for terminating employment relationships at the initiative of the employee. The employee and the management of the enterprise preliminarily agree on the terms of termination of the contract and enter into an agreement based on mutual expression of will.

Forcibly dismissing a part-time employee without his approval in this case is unacceptable. Termination of the contract by agreement of the parties gives the employee the opportunity to:

quit without working;
choose a departure date;
receive compensation in the amount established by the agreement;
indicate other conditions of dismissal.

Employers choose this method of terminating the contract instead of laying off a part-time worker or upon liquidation of the organization. Dismissal by agreement of the parties is characterized by:

simplified registration procedure;
allows you to pay severance pay in a minimum amount;
completely refuse to accrue benefits.

In this way, it is possible to terminate a contract with preferential categories of persons (pregnant women, mothers with young children, and so on). Therefore, when the management of the organization proposes to resign by agreement of the parties, it is recommended that the part-time worker carefully read the indicated conditions, as well as think over and put forward his own.

Upon expiration of the contract

An employment contract for part-time workers is drawn up in a standard manner, and it can be fixed-term or indefinite. In the first option, the document indicates the time of termination of its validity - a calendar date, the end of work (seasonal, repair).

An open-ended contract is valid continuously until one of the parties decides to terminate it . If an agreement is concluded with a part-time worker for a certain period, the document expires with the expiration of the period indicated in it (Article 79 of the Labor Code of the Russian Federation).

The management of the enterprise warns the employee about dismissal at least 3 calendar days in advance. Before the expiration of the term, an employee can be dismissed only for good reasons (for a disciplinary offense, during the liquidation of the enterprise).

If one of the parties does not demand termination of the contract, the employment relationship continues, the contract with the part-time worker is considered valid.

The procedure for dismissing an internal part-time worker

The procedure for dismissing an internal part-time worker is generally similar to the procedure for dismissing an ordinary employee for whom the workplace in the organization is the main one.

The process looks like this:

In the event that the reason for dismissal was a reduction in staff or the hiring of a main employee, a corresponding notification is sent to the part-time employee. If the dismissal of a part-time employee is formalized at his own request, we skip this stage - the basis for termination of the employment relationship will be a resignation letter written by the employee.
A dismissal order is issued.
A record of dismissal is made in the employee’s personal card.
A work book is drawn up.

The legislator does not oblige the employer to make entries about part-time work in the employee’s work book (clause 20 of the Rules..., approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225). Therefore, information about hiring as a part-time employee, as well as about dismissal, should only be included if the employee himself requests it. When making an entry, it is indicated that the employee is leaving his part-time job.

Samples of documents, as well as entries in them upon dismissal of a part-time worker, are available in the ConsultantPlus system. If you don't have access to K+, get a free trial and move on to samples. And all the features of dismissing an internal part-time worker are in the Ready-made solution from K+.

Grounds: in what cases can the contract be terminated?

Termination of a contract with an employee working part-time is carried out on the same grounds as for standard employment:

by decision of the organization’s management;
at the request of the employee;
by agreement of the parties.

That is, dismissal of a part-time worker is possible in the following cases:

voluntary expression of the employee’s will;
completion of the contract period;
liquidation of the organization;
staff reductions;
lack of qualifications of the employee;
failure to fulfill labor duties;
violations of discipline;
committing immoral acts.

The grounds for dismissal are identical for internal and external part-time work. There is only one additional reason compared to the traditional list - hiring a main employee to replace a part-time worker.

The procedure for dismissing an external part-time worker

The procedure for dismissing an external part-time worker is identical to the procedure for terminating an employment relationship with an internal part-time worker. The only difference is the procedure for making an entry about dismissal in the work book. This document must be kept by the employer at the main place of work of the part-time worker, therefore the organization in which he works on an external part-time basis cannot record the dismissal.

But this can be done by the main employer of the part-time worker who resigned - you need to contact him with a corresponding request (preferably in writing) and provide a certified copy of the dismissal order. A record of the employee’s employment as an external part-time worker can be made in the document simultaneously with the record of dismissal (see letter of the Ministry of Labor of the Russian Federation dated November 15, 2018 No. 14-2/B-913).

The peculiarities of dismissal of an external part-time worker were given by ConsultantPlus experts. Get trial access to the system for free and proceed to dismissal recommendations.

Types of part-time work - external and internal

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Part-time work, as a phenomenon in labor relations, has two forms: external and internal, Art. 282 Labor Code of the Russian Federation. The main features of this form of employment can be considered:

the employee has a main place of work;
conclusion of a separate contract for the performance of part-time functions (fixed-term or indefinite, for the performance of a certain amount of work);
specialties and job responsibilities for the main and additional work should be different if we are talking about part-time work within the same company;
part-time work cannot exceed 4 hours a day or half the standard working time per month;
The fulfillment of the duties of a part-time worker must take place during free time from the first job, Art. 60.1 Labor Code of the Russian Federation.

If an employee is offered to combine several professional functions during the working day for an agreed-upon additional payment to his basic salary, then we are talking about combining positions or expanding the scope of services, Art. 60.2 Labor Code of the Russian Federation.

Part-time job reduction

Reduction of a part-time worker not related to the hiring of a main employee to the position he holds is carried out in accordance with the general rules established by the current labor legislation. A prerequisite for the legal dismissal of an employee is his timely notification of the upcoming termination of the employment contract. The part-time worker must be informed of no less than:

for 2 months - in the general case (Part 2 of Article 180 of the Labor Code of the Russian Federation);
7 calendar days - for workers engaged in seasonal work (Part 2 of Article 296 of the Labor Code of the Russian Federation);
3 calendar days - for employees hired under a fixed-term employment contract lasting no more than 2 months (Part 2 of Article 292 of the Labor Code of the Russian Federation).

Results

So, in order to dismiss a part-time worker, it is necessary to issue an order for his dismissal and make a corresponding entry in his personal card.
There is no need to draw up a work book unless the employee requests it - the legislator does not oblige employers to enter into it information about part-time employment of employees (both external and internal). You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.