- Jon Hellevig
- November 28, 2014
Awara Russian Labor Law Guide: Termination of Labor Contracts. Working time (Chapters 9-10)
Updated August 30th, 2016
This article is an excerpt from Awara Russian Labor Law Guide written by our leading labor law lawyers. It gives a description and analysis of major legal issues that may affect those who want to conduct a business in Russia. This Guide will certainly serve as a reliable aid in going through this maze of regulative acts and decisions and help the reader to avoid gross mistakes that might result in significant but quite unnecessary losses.
Grounds for Termination
Termination of a labor contract can be carried out only under the circumstances set forth in the law.
Termination of a labor contract may not take place during the employee’s sick leave or vacation, except under liquidation or closure of activities by an individual entrepreneur.
The termination grounds may be divided into the following groups:
- Termination upon mutual agreement of employer and employee;
- Completion of a fixed term contract;
- Termination due to grounds relating to employer;
- Termination due to grounds relating to employee;
- Termination due to grounds independent of the will of the parties.
1. Termination upon mutual agreement by employer and employee (Art 78 Labor Code)
The employer and the employee are always free to mutually agree upon termination of a labor contract.
- Completion of a fixed term contract (Art 79 Labor Code)
A fixed term contract terminates when the agreed term runs out.
The employee must be given a dismissal notice not later than three calendar days prior to the dismissal date set forth in the corresponding labor contract.
However, if the agreement regarding a fixed term has been made against the provisions of the law, then such agreement is considered invalid. Invalidity of the provision of the fixed term would mean that the agreement would be considered under the general rules for permanent contracts.
See also sections Fixed Term and Casual and Seasonal Jobs.
- Termination due to grounds relating to the employer (Art 81 Labor Code)
Liquidation of company.
Closure of business activities of an individual entrepreneur.
See also section on Combining Jobs and Professions (Offices).
Termination of activities of a branch or other subdivision which forms a separate subdivision according to Russian law is considered liquidation for the purposes of this provision.
In case of terminating the labor contract due to downsizing, the employer has the obligation to offer the employee an alternative job.
4. Termination due to grounds relating to the employee
- Employee-initiated termination (Art 77 (1(3)) Labor Code).
- Refusal by employee to agree to changes under certain conditions (Art 77 (1(7)) Labor Code).
- For health reasons after refusal by employee to accept proposed alternative job or the lack of such a job (Art 77 (1(8)) Labor Code).
- Refusal by employee to move together with the employer to a new location (Art 77(1(9)), Art 72.1 (2) Labor Code).
- When employee’s professional skills do not correspond to the position as determined by a job evaluation (here the employer has an obligation to offer another position (Art 81 (1(3)) Labor Code).
- Repeated non-performance of job duties (Art 81 (1(5)) Labor Code)
- Requires that disciplinary sanctions have been recorded earlier (see Disciplinary Issues).
- Single serious violation of job duties (Art 81 (1(6)) Labor Code).
- For example, the commission of embezzlement at the workplace.
- Loss of trust as a consequence of a proven violation (Art 81 (1(7)) Labor Code) in relation to cashiers and other employees managing cash or bank issues (other valuables).
- Loss of trust due to special restrictions established by laws (Art 81 (1(7.1)) Labor Code, in effect since January 1, 2013). For example, the failure to prevent a conflict of interest to which he is a party.
- Committing an immoral offence by an employee performing educational functions (Art 81(1(8)) Labor Code).
- Employee’s refusal to continue to work with a change of ownership of the property of the employer (Art 81(1(4)) Labor Code).
- Miscalculation leading to losses (making an unsubstantiated decision) (Art 81(1(9)) Labor Code).
- Single serious violation of responsibilities by a top manager (Art 81(1(10)) Labor Code).
- Deliberate submission of false documents in connection with conclusion of labor contract (Art 81(1(11)) Labor Code).
- If employee does not take up employment on the commencement date (Art 61 Labor Code).
- Other grounds set out in special legislation.
A serious violation of job duties comprises the following (Art 81(1(6)) Labor Code):
- Absence from the workplace without justifiable reason for more than 4 hours or during the whole workday (if the latter is less than 4 hours). The “workplace”, as a general rule, means the immediate desk or place of performance of job duties. Therefore, presence in the building is not a justifiable reason if the employee is absent from his workplace. Such an interpretation follows from Item 35(a) of the Decree of March 17, 2004 (Item 10);
- Presence at work in a state of alcoholic or narcotic intoxication;
- Disclosure of confidential information (state, official, trade or other secret protected by the law);
- Theft, embezzlement, intentional destruction or damaging of property at work (upon corresponding legal verdict);
- Violation of safety rules (with serious or potentially serious consequences).
A one-time violation of the above mentioned job duties may form sufficient grounds for dismissal.
Termination Due to Grounds Independent of the Will of the Parties (Art 83 Labor Code)
A labor contract may under certain conditions be cancelled regardless of the will of the parties. Such cases are:
- The labor contract has been entered into in violation of the law (Art 84 Labor Code).
- Conscription into the military or alternative civil service.
- When employee has taken the place of another employee who has been dismissed, and a court requires the employer to reinstate the predecessor.
- The reversal of a court or administrative decision concerning reinstatement to a job.
- Death of employer (individual entrepreneur) or an employee (as well as being declared dead or missing).
- The employee’s access to state secrets has been terminated (in cases where access is needed for performance of job duties).
- Non-election to an elective office (this most frequently means cases where the holder of the office has not been re-elected or the results of elections were revised, etc.).
- Administrative or criminal punishment which makes the continuation of work impossible.
- Expiry or suspension for a period of more than two months or cessation of a certain special right (e.g., driver’s license) which the job was conditioned upon.
- Under force majeure conditions which are recognized by a decision of the executive bodies of the state.
- Recognition of employee as completely unfit for work in accordance with a medical report.
- Bringing the total number of foreign workers to the allowable number set by the government.
Termination of Employment of Women
Women enjoy special protection against dismissal. The employer can terminate a labor contract with a pregnant woman only due to reasons of liquidation of the entity or termination of the activity of the employer who is an individual entrepreneur. Termination under all other grounds in the law is forbidden (Art 261 Labor Code).
Pregnant women also enjoy additional protection under a fixed term agreement. Even when a fixed term has been agreed, the employer will have an obligation to extend the contract until the woman receives the right to maternity leave.
With respect to a woman with a child under 3 years old or a single mother until the child turns 14 years old (or when the child is disabled, until the child turns 18), a woman with a child under 3 (or when the child is disabled, until the child turns 18), if the child’s father does not work and the family has 3 or more children, dismissal can only be effected under the grounds specified in the law.
Such grounds for dismissal include:
- Liquidation of the company (or closure of the branch or other subdivision; termination of business by an employer who is an individual entrepreneur) (Art 81(1(1)) Labor Code).
- Dismissal due to health reasons (Paragraph ‘a’ Item 3 Art 81 Labor Code).
- Repeated non-performance of job duties (Art 81(1(5)) Labor Code).
- Serious violation of job duties (Art 81(1(6)) Labor Code).
- Loss of trust (in relation to cashiers and other employees managing cash, bank issues or other valuables) (Art 81(1(7)) Labor Code).
- Loss of trust due to special restrictions established by laws (Art 81 (1(7.1)) Labor Code, in effect since January 1, 2013).
- Commission of an immoral offence by an employee who performs educational functions (Art 81(1(8)) Labor Code).
- A one-time gross violation of duties (restricted to top management; see Top Management) (Art 81(1(9-10)) Labor Code).
- Deliberate submission of false documents in connection with entering into the labor contract (Item 11 Art 81 Labor Code).
- Act of physical or psychological violence towards a pupil on the part of a teacher (Art 336(2) Labor Code).
The same protection can also be extended to a single father or other legal custodian (Art 264 Labor Code).
Additional Requirements to be Met when Dismissing Certain Categories of Employees
An employer cannot dismiss trade union leaders (as defined by Art 374 Labor Code) without consent of a superior trade union organization on the grounds of redundancy, insufficiency of their professional skills or repeated non-performance of job duties. Moreover, they enjoy this privilege for two years upon their resignation from a trade union office (Art 376 Labor Code). This privilege was, however, significantly restricted by courts. On December 4, 2003, the Constitutional Court held that a trade union must substantiate its refusal to give consent to dismissal, and this refusal can be examined in a judicial proceeding. If the trade union agency fails to prove that the actual reason for dismissal was discriminatory, the court examining the case can find in favor of the employer. The Supreme Court, in its turn, decreed that it is an abuse of the law on the part of the employee if he intentionally hides the fact of his being a trade union official in order to escape dismissal on lawful grounds (Decree dated March 17, 2004, item 27).
Additional Grounds to Terminate a Labor Contract with Top Management
The Labor Code provides for additional reasons for terminating a labor contract with members of top management. We refer to the section on Top Management for discussion of the relevant provisions.
Employee’s Notice of Termination
An employee may recall the notice of termination if an application was filed for voluntary resignation at any time within two weeks after the receipt of his notice by the employer, except if a new employee has been officially invited to occupy the vacancy, so his/her labor contract may not be lawfully cancelled (Art 80 Labor Code).
Formal Procedures at Termination
On the last day of employment the employer has an obligation to pay all monies due on salary, other compensations and reimbursements. On the last day the employer also must return to the employee the labor book and other documents relating to employment (Arts 80, 84.1 Labor Code).
In the case of dismissal following a liquidation or downsizing, the employer has to give notice to the employees not later than two months prior to dismissal date (Art 180 Labor Code). The trade union must be notified two months in advance in case of downsizing (Art 82 Labor Code). If there is a mass dismissal, the employer must give three months’ notice to trade union and labor authorities (Rostrud), as required by the Law “On Employment of the Population in the Russian Federation” dated April 13, 1991. What amounts to “mass dismissal” is to be established by industrial or territorial agreements.
The amount of severance payments is set out in the law and varies with the reason for termination of the contract (Art 178 Labor Code).
Severance Payments at Termination Due to Liquidation and Downsizing
At dismissal due to liquidation and downsizing the employee shall receive (Art 178 Labor Code):
- 1 month severance pay;
- 2 x monthly average salary during a job search (with offset of severance pay);
- Possible additional 1 month average earnings if the former employee was duly registered as a job seeker, but not employed.
The salaries due are calculated on the basis of the average monthly salary.
After giving notice of dismissal due to liquidation or downsizing, the employer and employee may agree to terminate the contract with immediate effect with simultaneous compensation in the amount of two average monthly salaries (Art 180 Labor Code).
Upon downsizing, employees with higher labor productivity and qualifications have a priority right to remain at work. If it is impossible to establish which worker has better qualifications, then the priority rights are set in accordance with the family and social conditions of the employee (Art 179 Labor Code). Upon downsizing, the employer has an obligation to offer the employee another suitable job.
When terminating the labor contract with a seasonal worker by reason of liquidation of the company or downsizing, the dismissal wage shall be paid at the rate of a two week average monthly salary (Art 296 Labor Code).
Severance Payments at Termination Due to Other Reasons
Severance pay in the amount of a 2 week average monthly salary is granted under the following other reasons for dismissal (Art 178 Labor Code):
- Medical reasons.
- Military drafting (or civil service).
- Return of a substituted employee.
- Refusal to move to a new location together with the employer or to another job due to medical reasons.
- Recognition of employee as completely unfit to work.
- Refusal to work on the grounds of change of conditions of labor contract.
- Possible other reasons set in the labor contract or collective contract.
See section on Top Management for special provisions regarding severance pay for members of top management under certain conditions.
Compensation for Annual Leave at Termination
In case of dismissal, an employee has the right to monetary compensation for all unused days of annual leave (annual vacation).
The employee can agree with the employer that all unused days of the annual leave can be granted to him with subsequent dismissal. In this case, the date of dismissal is the last day of the annual leave (Art 127 Labor Code).
Change of Ownership
Change of ownership does not, as a rule, affect the continuation of labor contracts.
The positions of members of top management are regulated separately in connection with the change of ownership. We refer to the section on Top Management for details.
In connection with change of ownership, downsizing may be effected only after proper state registration of the transfer of ownership rights (Art 75 Labor Code).
General Information on Working Time
A specific regime for working hours, days and holidays (working time) can be set individually for each company or entity within the 40-hour workweek. The working time is set out in the internal working rules (rules). The law makes a direct reference to these rules, therefore it becomes mandatory to have such rules in force. In entering into an employment contract with a particular employee, the employer has the right to include in it a reference to the working time specified in the rules, or directly specify the working hours in the contract, if different from what is contained in the rules. The employer is obliged to indicate directly in the employment contract working hours for employees for whom a maximum permitted length of the workday is established (Art 94 Labor Code).
An employer has an obligation to record the actual working hours of each employee (Art 91 Labor Code).
A company can set a 5-workday or a 6-workday weekly schedule, a system with rolling schedule of days off, or a partial workweek.
Shortened Day ahead Official Holidays
The working hours are reduced by 1 hour ahead of official holidays. When the production process does not allow for such a reduction, the employer has to pay monetary compensation or provide additional time off in the future (Art 95 Labor Code).
Night Time Work
Work between 10 PM and 6 AM is considered to be nighttime work (Art 96 Labor Code).
The workday is reduced by 1 hour during nighttime work. However, the reduction does not apply to employees who have been especially hired for nighttime work, or to whom reduced working hours apply for other reasons. Nor does nighttime reduction apply to work where the production process calls for a normal length of work time, and when work is conducted in shifts in a 6-day workweek. The list of work may be determined by a collective agreement or local regulation.
Nighttime work is prohibited for pregnant women and youths under 18 (with the exception of those involved in the creation and execution of works of art), as well as other persons mentioned in the Labor Code and other special laws.
In other cases with certain social groups (women who have children younger than 3 years old, and those who take care of sick or disabled family members, etc.), nighttime work requires written consent of employees, provided that they are not prohibited from such work due to health reasons. Moreover, the employer must inform them in writing of their right to refuse nighttime work (Art 96 Labor Code).
Every hour of nighttime work is paid at a higher rate compared to work under normal conditions, and not less than the rate provided by labor laws (Art 154 Labor Code). However, there are no mandatory rules establishing specific rates of payment for nighttime work. The Labor Code provides for increased rates and confers the power to establish the minimal increased rate upon the federal government. Currently, according to Decree of the Government of the Russian Federation dated July 22, 2008 No. 554 “On the Minimum Wage Increase for Night Work”, the minimum rate is 20% increase of base salary, calculated per hour, for each hour of night work. The previously effective paragraph 9 of Resolution of the CC of the CPSU, the Council of Ministers of the USSR and the Trade Unions dated 12.02.1987 N 194, which provided for adding of surcharges for work during the evening and night shifts for workers engaged in multi-shift operation, in an amount not less than 20% and 40% of the base rate (salary) for each hour of work in the relevant shift, is recognized as invalid. Surcharges for work on evening shifts are not currently provided for.
Specific amounts of higher wages for night work may be established by a collective agreement, a local regulation, or the labor contract.
Reduced Working Time
The law provides for a reduced workweek (less than 40 hours a week) for some groups of employees (Art 92 Labor Code). In addition, there are provisions regarding reduced work hours during the day (Art 94 Labor Code). The groups in question are: youths (see Youth Labor), students in general education programs and vocational education programs, disabled persons, and workers in hazardous conditions.
According to the law, some other categories of workers are also eligible for reduced work hours, namely: teachers, medical staff, etc. (see Arts 333, 350 Labor Code).
The duration of day work may follow special regulations as envisaged by Art 94 of the Labor Code. Such special rules are established by collective agreement, local regulation, or labor contract and may affect:
- Artistic staff of mass media, film and television industry;
- Artistic staff of theaters, orchestras, circuses.
The employer and the employee have the freedom to agree that the employee will only work part-day or part-week. A part-time work schedule can be established by agreement or supplemental agreement and can be for a particular term or indefinitely.
The employer has an obligation to agree to part-time work hours upon application by a pregnant woman, a parent (guardian, trustee) who has a child under 14 years of age or a disabled child under 18 years of age, and when the employee is taking care of a sick family member.
The law is not specific enough as to the extent of this privilege and the role of employer in determining the concrete conditions of part-time work. It appears that the employee may determine the duration of work unilaterally and the employer must agree to any duration asked for. Likewise, it seems that the law does not preclude the employee from changing unilaterally his schedule upon new application.
At the request of a child’s mother, father, grandmother, grandfather, other relative or guardian who is actually caring for the child while on leave to take care of the child, the employer is obliged to establish a part-time work schedule (Art 256 Labor Code).
The salary for part-time work must be paid in proportion to the worked hours or depending on the volume of work done. However, part-timers receive the full right to vacation and other rights that are calculated in accordance with the length of the employment (Art 93 Labor Code).
We wrote earlier on the establishment of part-time work by the employer, in the section Changes Due to Organizational or Technological Reasons.
Irregular Work Hours
An employer may establish a regime of irregular work hours for certain positions in the company. The list of positions subject to irregular work hours is set forth by the collective contract, collective agreements or internal working regulations (Art 101 Labor Code). Conditions of an irregular workday must be indicated in the employment contract with the employee, as they differ from generally established working time in the organization (Art 57 Labor Code). The possibility of establishing irregular work hours is provided for, along with special rules.
Establishment of irregular work time does not relieve the employee from compliance with the work schedule established by the employer, but allows the employer to have employees work outside of normal work hours. Also, the employer can summon an employee who has been assigned irregular work hours to work, either before the start of the workday or after it ends. An irregular workday can also be set for part-time employees.
Working irregular hours does not mean the same as unlimited work hours, but rather the possibility for the employer from time to time to call in the employee for work in excess of the normal work hours as set by the law without regard to the strict rules of overtime work. Systematically requiring an employee who has irregular work hours set may be considered by the court as requiring overtime work.
In establishing irregular work hours it is not required to obtain the employee’s consent to work this schedule for each instance he is asked to work such hours.
Employees under irregular work hours receive the right to a minimum of 3 days extra vacation (Art 119 Labor Code). The employer and the employee may agree in writing on paid compensation instead of these additional days (Art 126 Labor Code). The employer has an obligation to record the work time according to the general rules for those employees who are under the regime of irregular work hours. Such extra vacation is provided to an employee who works on the terms of irregular work hours, regardless of the actual work time outside of normal business hours.
Flexible Work Hours
Flexible work hours means a system where the commencement, termination and total duration of the workday can be established freely by an agreement between employer and employees (Art 102 Labor Code). Flexible work hours will, however, have to follow the normal cumulative restrictions set by the law (the 40-hour workweek and other restrictions). When using flexible work time recording of working time on a summarized basis applies. The employer must ensure availability of the total number of hours to be worked during the relevant accounting periods.
The condition of flexible work hours must be included in the labor contract with the employee, as it usually is different from the general rules of the employer (Art 57 Labor Code).
Work in Shifts
The Russian Labor Code allows work to be organized in two or more shifts (Art 103 Labor Code). The law contains more detailed provisions on work in shifts.
Shift work must be specified in the local regulations of the organization and in the labor contract with the employee.
An employee is prohibited by law from working two shifts in a row. When using shift mode the employer conducts summarized accounting of work time, which is determined according to the procedure set out in internal working rules (Art 104 Labor Code). Shift work is carried out on the basis of a shift schedule, approved under a special procedure, in accordance with Art 103 of the Labor Code. If the next shift does not come to work, the employee who has just finished his shift, with his consent, may be called to work overtime to continue the work, if the work does not allow for interruption (Art 99 Labor Code).
The maximum duration of a work shift is not established by legislation. However, for some categories of workers, it is governed by separate regulations.
Recording of Working Time on a Summarized Basis
Sometimes the peculiarities of the work (e.g., working conditions) make it impossible to follow a regular weekly or daily work schedule. For such cases, the employer and the employee may agree upon a system of calculation of work time without a set schedule. This system is called Recording of Working Time on a Summarized Basis. However, the summarized work hours for a specific period of time which is called an “accounting period” (not more than one year) may not exceed the normal number of work hours (Art 104 Labor Code). This means that an employee working on a Summarized basis, at the end of the accounting period has to have worked the same number of hours as an employee working in normal mode.
The procedure for introducing Summarized mode is established by internal working rules (Art 104 Labor Code).
Summarized mode can be instituted for both an organization as a whole and for individual employees or organizational subdivisions.
When implementing Summarized mode, the employer adopts under a special procedure a schedule of shifts for workers and acquaints employees with it no later than 1 month prior to its entry into force.
Division of Workday into Parts
The Labor Code allows setting a work schedule whereby the workday is divided into 2 or more parts. This means a system where, for example, the employee comes to work in the morning, leaves before lunch, and comes back after lunch for the second part of the day.
Such a work regime is allowed when the nature of activity or business calls for unequal intensity of work during the day.
The total duration of the work day may not, however, exceed the regular work hours as set by law (Art 105 Labor Code).
The division of the day into parts is conducted based on local regulation. The number of parts into which a business day may be divided, and the time intervals between these parts, is not set out in the Labor Code. Therefore, the employer independently determines the working conditions for the workers for whom the workday is divided into parts. The terms of the division of the day into parts, the number of parts of the day, their duration and other characteristics of work time and rest periods is specified in employment contracts with employees (Art 57 Labor Code). For certain categories of workers division of the day into parts is governed by special regulations.
Breaks for Rest and Meals
During the workday the employee has the right to a break for rest and meals. The maximum duration of the break is 2 hours, and the minimum is 30 minutes. The time for the break is not included in the work time. Rest breaks and lunch are not divisions of a workday divided into parts in the sense indicated in the section above.
Each company should establish in its internal working rules or the labor contracts with each employee the details for time and duration of breaks.
The law foresees the possibility that a break may be granted due to individual circumstances of work. In particular cases, when due to the conditions of production, providing a break for rest and eating is impossible, the employer will have to arrange the possibility to eat and rest during the time of work in the working premises. The internal working rules should include detailed instructions regarding such cases (Art 108 Labor Code).
The employer may be under the obligation to arrange the opportunity and facilities for special breaks (e.g., for those working in the cold season or in the open air), for warming and recreation, and have specially-equipped premises to this end. The time of the breaks shall be included in the work hours (Art 109 Labor Code). The types of such work, and the duration and procedures for granting such breaks are established by rules in the internal working rules.
The minimal duration of rest in one job is 42 hours every week (Art 110 Labor Code). The practicality of this is dubious because many people work in two or more jobs; therefore, this limitation falls short of its purpose and is usually neglected. We have found no cases of applying sanctions for its violation. Nevertheless, this rule is worth taking into account whenever possible.
 It should be noted that the concept of the “loss of trust” as a ground for dismissal of an employee has been expanded by the Supreme Court so as to cover cases of theft or embezzlement even if these offences have been committed without any relationship to the job of the offender (Decree of March 17, 2004, item 45).
 Decision of Plenum of the Supreme Court of the Russian Federation dated 17.03.2004 No. 2 “On Application of the Labor Code of the Russian Federation by the Courts of the Russian Federation” // Rossiyskaya Gazeta. No. 297. 2006.
 Ruling of the Constitutional Court of the Russian Federation dated 04.12.2003 No. 421-O // Collected Legislation of the Russian Federation. No. 5. 2004, Art. 404.
 Art 21 of the Law “On Employment of the Population in the Russian Federation” No. 1032-1 dated 13.04.91 // Collected Legislation of the Russian Federation, No. 17.1996. Art 1915.
 Decree of Government of the Russian Federation dated 22.07.2008 No. 554 “On the Minimum Wage Increase for Night Work” // Collected Legislation of the Russian Federation.2008, No. 30 (part 2), Art 3640.
 Determination of the Supreme Court dated 12.11.2008 No. GKPI08-2113 // ATP ConsultantPlus. 2014.
 For example, paragraph 14 of the Order of the Ministry of Transport of Russia dated 20.08.2004, No. 15, paragraph 35 of the Order of the Ministry of Transport of Russia dated 09.03.2016 No. 44
 Decision of Moscow City Court dated 30.11.2011 No.33-38948// ATP ConsultantPlus.
 Letter of Rostrud dated 07.06.2008 No. 1316-6-1 // ATP ConsultantPlus. 2014.
 Letter of Rostrud dated 19.04.2010 No. 1073-6-1 // ATP ConsultantPlus. 2014.
 Letter of Rostrud dated 07.06.2008 No. 1316-6-1 // ATP ConsultantPlus. 2014.
 For example, the Order of the Ministry of Transport of the Russian Federation dated 16.05.2003 No. 133 “On Approval of the Regulation on Work Time and Rest Periods for Workers on Vessels of Inland Waterway Transport” (Registered in the Ministry of Justice on 01.09.2003 No. 5036) // ATP ConsultantPlus. 2014.
 For example, the Order of the Ministry of Transport of the Russian Federation dated 18.10.2005 No. 127 “On Approval of the Regulation on Working Time and Rest Periods for Drivers of Trams and Trolleys” (Registered in the Ministry of Justice on 25.11.2005 No. 7200) // ATP ConsultantPlus. 2014.