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Publication date: 06.05.2024
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Seasonal workers: features of dismissal
The article pays attention to the specifics of termination of labor relations with seasonal workers.
When a fixed-term contract changes status
According to Article 23 of the Labor Code of Ukraine (hereinafter referred to as the Labor Code), an employment contract can be:
• open-ended, which is concluded for an indefinite period;
• for a specified period, established by agreement of the parties;
• such that they agree on the time of performance of a certain work.
A fixed-term employment contract is concluded in cases where the employment relationship cannot be established for an indefinite period of time due to the nature of the future work or the conditions of its performance or the interests of the employee, as well as in other cases provided for by legislative acts.
With seasonal and temporary workers, a fixed-term employment contract is concluded. However, note that under certain circumstances, a fixed-term contract acquires the character of a contract concluded for an indefinite period. In particular, this can happen in the following situations:
Situation 1
The person goes to work the next day after the end of the fixed-term employment contract, and he is allowed to work (Part 1 of Article 39-1 of the Labor Code). In order to avoid the negative consequences of the transformation of a fixed-term contract into an open-ended one, the employer needs:
1) issue an order to dismiss the employee on the last day of the fixed-term employment contract. The order can be drawn up both in an arbitrary form and according to the standard form No. P-4, approved by the Order of the State Statistics Committee of Ukraine dated December 5, 2008 No. 489 "On approval of standard forms of primary accounting documentation on labor statistics."Pay attention! The expiration of the term is a reason for terminating the employment contract (Clause 2, Part 1, Article 36 of the Labor Code), therefore, the employee may be dismissed by order of the employer, so in this case, the employee does not need to submit an application. It is not necessary to warn the employee about the future dismissal in accordance with paragraph 2 of the first part of Article 36 of the Labor Code.
2) on the day of dismissal, fulfill the requirements of the first part of Article 47 and Article 116 of the Labor Code, namely:
• issue a copy of the dismissal order (order) to the employee;
• at the request of the employee, make appropriate records of dismissal in the work book kept by the employee, in particular, note: "The employment contract is terminated due to the expiration of its validity period, clause 2, part 1 of Article 36 of the Criminal Code";
• familiarize the employee with this entry for signature in the personal card in the form No. P-2, approved by the order of the State Statistics Committee of Ukraine and the Ministry of Defense of Ukraine dated December 25, 2009 No. 495/656 "On approval of the standard form of primary accounting No. P-2 "Personal employee card";3) make a final settlement with the employee regarding wages, in particular regarding compensation for unused vacation. At the same time, before its payment, the employer is obliged to inform the employee in writing about the amounts due to him (Article 116 of the Labor Code). After all, if due to the fault of the owner, the employee is not settled on this day, the employee can demand to pay him the average salary for the entire time of delay until the day of the actual settlement (Article 117 of the Labor Code).
If the employee refuses to take countermeasures (receive a salary calculation), legal experts recommend drawing up an act.
Situation 2
After dismissal, a temporary employee is re-hired at the same company after a break that does not exceed one week, if at the same time the period of his work before and after the break together exceeds two (four) months, respectively (paragraph "b" of Article 11 of the Decree of the Presidium of the Supreme Soviet of the USSR dated February 24, 1974 No. 311-09 "On working conditions of temporary workers and employees"; hereinafter - Decree No. 311).
Therefore, if the employer does not want to "turn" the contract into an open-ended one, such situations should be avoided.How to formalize the dismissal of a seasonal (temporary) employee
Dismissal of a seasonal (temporary) employee after the expiration of the stipulated term of the employment contract is carried out without his application, only by order of the employer with the following wording: "Dismissed in connection with the expiration of the term of the employment contract, Clause 2 Part 1 of Art. 36 of the Criminal Code of Ukraine".
The employee must be familiarized with the order for signature. At the same time, the employer is not obliged to warn the seasonal (temporary) employee about the future dismissal, because we are talking about the expiration of the fixed-term employment contract.
An order on the dismissal of a seasonal (temporary) employee is issued no later than on the last day of validity of the fixed-term employment contract, indicating the day of dismissal, which is the last day of the person's work. For example, if the last day of work under the temporary contract is August 31, 2023, then the dismissal order must be issued no later than this date, and the date of dismissal is also August 31, 2023.
If the employee is hired for the period of performance of a certain job, he must be released on the last day of its performance.
If an employee was hired to replace a temporarily absent employee, provided that the period of the latter's absence unknown, he is subject to dismissal on the last day before the permanent employee goes to work.
This also applies to the situation when the employee is on "hospital leave". Then, on the last day of his work, an order is drawn up, an entry is made in the labor book and the employee is notified of the dismissal by registered letter. The ban on terminating the employment contract at the initiative of the owner during the period of temporary incapacity of the employee in accordance with the third part of Article 40 of the Labor Code does not apply to this case, since the dismissal based on paragraph 2 of Article 36 of the Labor Code does not belong to the dismissal at the initiative of the employer. This was previously confirmed by the Ministry of Social Policy of Ukraine in a letter dated January 31, 2012 No. 30/13/133-12.
If the seasonal (temporary) employee was on vacation at the time of the expiration of the term, the term of the contract is extended until the end of the vacation (Article 3 of the Law of Ukraine dated November 15, 1996 No. 504/96-VR "On Vacations"). In this case, the dismissal order must be issued no later than the last day of the person's stay on vacation.
Additional grounds for dismissal at the initiative of the employer
The employer has additional grounds for terminating the contract on his own initiative.In particular, with regard to seasonal workers, in accordance with Article 7 of the Decree of the Presidium of the Supreme Soviet of the USSR
dated September 24, 1974 No. 310-09 "On the working conditions of workers and employees engaged in seasonal work" (hereinafter - Decree No. 310), the reason for terminating the contract may be:
1) suspension of work at the enterprise for a period of more than 2 weeks for reasons of a production nature or reduction of work;
2) non-appearance of an employee to work continuously for more than one month due to temporary incapacity. However, in case of loss of working capacity due to work-related disability or occupational disease, as well as if the legislation establishes a longer period of preservation of the workplace (position) in case of a certain disease, seasonal / temporary employees are kept the workplace (position) until restoration of working capacity or establishment of disability, but no more than until the end of the term of work under the contract.
For temporary workers, according to the provisions of Article 6 of Decree No. 311, additional grounds for terminating the contract at the initiative of the employer are the following:
1) termination of work at the enterprise for a period of more than one week for reasons of a production nature, as well as reduction of the work of a legal entity;
2) not showing up for work for more than two weeks in a row due to temporary incapacity;
3) non-fulfilment by the employee of the duties assigned to him by the employment contract or the rules of the internal labor procedure without valid reasons.
In addition, the employer has the right to terminate the employment contract on his own initiative on the grounds provided for in Articles 40 and 41 of the Labor Code. In such a situation in the order and the work book, the reference must also be made to Article 7 of the Labor Code.
Peculiarities of dismissal of an employee at his own will
In case of dismissal of seasonal (temporary) employees at their own will, special rules apply. In particular, Article 39 of the Labor Code states that a fixed-term employment contract may be terminated early at the employee's request in the event of:
• illness or disability of the employee, which prevents the performance of work under the contract;
• violation by the employer of labor legislation, a collective or labor agreement;
• in the cases provided for by the first part of Article 38 of the Labor Code, in the presence of conditions that make further work for the employer impossible:
— moving to a new place of residence;
— transfer of husband or wife to work in another area;
— admission to an educational institution;
— impossibility of living in this area, confirmed by a medical opinion;
— pregnancy;
— caring for a child until he reaches the age of fourteen or a child with a disability;
— care for a sick family member according to a medical opinion or a person with a disability of group I;
- retirement;
— hiring by competition, as well as for other valid reasons.
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In fact, only in the presence of such valid reasons can a seasonal (temporary) employee be the initiator of his dismissal, and the employer, accordingly, must dismiss him within the period specified in the application.In the application, the employee must indicate a valid reason for the dismissal and provide supporting documents (for example, a certificate on the transfer of the wife (husband) to work in another area; a certificate on admission to an educational institution; a medical report, etc.).
Formally, seasonal (temporary) employees have the right to terminate it at their own will, notifying the owner in writing 3 days in advance (Article 6 of Decree No. 310, Article 5 of Decree No. 311). However, in accordance with the resolution of the Verkhovna Rada of Ukraine of September 12, 1991 No. 1545-XII "On the procedure for the temporary effect on the territory of Ukraine of certain acts of the legislation of the Union of the SSR", acts of the legislation of the USSR on matters not regulated by the legislation of Ukraine can be applied on the condition that if they do not contradict the Constitution of Ukraine and the laws of Ukraine.
It is quite obvious that Article 6 of Decree No. 310 and Article 5 of Decree No. 311 contradict Article 39 of the Labor Code, which establishes that a fixed-term employment contract can be terminated at the initiative of the employee if there are good reasons prescribed in Article 39 and the first part of Article 38 of the Labor Code. Therefore, the dismissal of a seasonal (temporary) employee is possible only if there are relevant valid reasons.
