See more
Publication date: 19.05.2024
active and purposeful military lawyer with more than 4 years of experience
The procedure for dismissing an employee if the termination date of the employment contract falls on a holiday
SITUATION
The heating period ends on Saturday. How to release the heater correctly? What is the date to make the order?
You may be interested in reading articles on such topics as: collection of debt from wages recovery of wages through court recovery of wage arrears recovery of wages recovery of wages in court
DECISION
Current legislation does not prohibit firing an employee on a day off. Therefore, if you draw up an order (ordinance) in which the date of dismissal will fall on a day off, it will not be a violation.
Let's consider the peculiarities and nuances of the described situation. From the condition of the question, we understand that the employee is a heater by profession. And when hiring a heater and taking into account the nature of his work and the conditions of its performance, it is advisable to conclude a fixed-term employment contract with such an employee for the period of the heating season.
The term of such an agreement must be established by agreement of the parties (Clause 2 of the first part of Article 23 of the Labor Code of Ukraine; hereinafter - Labor Code).
We remind you that the work of a heater does not belong to seasonal work, since the work performed by the employee is not specified in the List of seasonal work and seasonal industries, approved by the Resolution of the Central Military Commission of March 28, 1997 No. 278. The duration of the heating season can be longer than 6 months.
Grounds for dismissal of employees. Special issue of "KADROVYK.UA" Part 1. Part 2
As a general rule, a fixed-term employment contract is terminated on the last day of its validity and on this day the employee is subject to dismissal on the basis of paragraph 2 of Article 36 of the Labor Code.
In addition, Clause 2 of Article 36 of the Labor Code states that if after the end of the term of the employment contract (Clause 2 and Clause 3 of Art.23 of the Labor Code) labor relations actually continue and none of the parties demands their termination, the validity of this contract is considered to be extended for an indefinite period.
Therefore, if a fixed-term employment contract is not terminated on the last day of its validity, it will be considered extended for an indefinite period.
In our case, we are talking about a fixed-term employment contract, the end of which is the end of the heating season. As stated in the question, the end of the heating season falls on Saturday (a holiday) - accordingly, this will be the last day of the fixed-term employment contract.
SAMPLE STATEMENT OF DISMISSAL
Sample documents • Order the development of personnel documents
As we understand, the personnel department and the accounting department do not work on Saturdays, and the employer does not have the right to call them to work in order to give the employee a copy of the order (order) on dismissal, a written notification of the amounts accrued and paid to him upon dismissal (Article 116 of the Labor Code) and to make a settlement with him within the terms specified in Article 116 of the Labor Code, as well as at the request of the employee to make appropriate records of dismissal in the labor book kept by the employee, since this does not belong to exceptional cases when it is allowed to involve individual employees to work on weekends ( Article 71 of the Criminal Code).
Accordingly, in order for a fixed-term employment contract not to be considered extended for an indefinite period, all necessary calculations and registration must be done on Friday, the day before the day of dismissal, since it falls on a Saturday (a holiday).Please note that in the dismissal order, the date of dismissal is indicated as the last day of the fixed-term employment contract. This opinion was also expressed in the letter of the Ministry of Social Policy dated January 5, 2018 No. 9/0/22-18/134, which states: if the last day of the fixed-term contract falls on a holiday, the employer must fulfill the obligation provided for in Article 47 of the Labor Code, on the last working day, i.e.:
• to issue an order for dismissal under Clause 2 of Article 36 of the Labor Code, indicating the date of dismissal specified in the fixed-term employment contract, and to familiarize the employee with it;
• issue the employee with a duly completed work book and conduct the relevant calculations with him.
At the same time, the day of dismissal, in accordance with the second part of Article 241-1 of the Labor Code, will be the last day determined by the fixed-term employment contract.
As an alternative, you can also offer an option when the fixed-term employment contract will be terminated by agreement of the parties, that is, when the employee writes a statement of dismissal by agreement of the parties on Friday.
