In what cases is a fixed-term employment contract concluded on a mandatory basis? The procedure for concluding a fixed-term employment contract - grounds, conditions, terms What does a fixed-term employment contract mean

Example: you are the owner of a strawberry farm. You have 15 hectares of land on which you need to set up beds, fertilize, plant strawberries, take care of them every day in order to end up with a good harvest. One, of course, cannot cope, we need helpers. Hundreds of people are rushing to you in a crowd who want to help for a purely symbolic and modest monetary reward.

You are happy to accept offers, but the question arises: how to properly formalize short-term industrial relations with people? After all, you will need their services only for the summer period, and what if one of them does not want to leave in the fall, bluntly declaring: no, give me a salary now all the time!

Link to the basis of the conclusion

When drawing up a fixed-term employment contract, it is imperative to indicate for what reason the contract of limited duration is concluded.

If there are no grounds for its conclusion in the text of the document, then by the court it can be recognized as indefinite ( Art. 58 of the Labor Code of the Russian Federation).

You must also indicate the end date or designate an event that means the end of work ( Art. 294 of the Labor Code of the Russian Federation).

This is especially important in a situation where an employee is hired to replace a temporarily absent one. In this case, the moment of termination of the contract is determined by the moment the main employee leaves, and this must be directly indicated in the text.

Probation for a fixed-term employment contract

A sample of a short-term employment contract with an employee may also contain a test condition, the duration of which depends on the term of the employment contract. If the period is less than two months, the probationary period is not established ( Art. 70 of the Labor Code of the Russian Federation).

If the duration of the temporary contract is between two and six months, the trial cannot exceed two weeks ( Art. 70 of the Labor Code of the Russian Federation).

If an employment contract is concluded for 6 months or more, then the duration of the test, as with the conclusion of an open-ended contract, is limited to 3 months, and for executives - 6.

Paperwork

The procedure for documentary support of the employee's activities as a whole does not depend on the term of the contract concluded with him. But there is still one peculiarity.

When such an employee is hired, an order is drawn up in the form of T1 or another, independently developed and approved by the employer, which necessarily reflects that the contract was concluded for a specific period, and a link is given to the basis of such a decision (one of the paragraphs Art. 59 of the Labor Code of the Russian Federation).

Upon dismissal, an entry is made in the employee's work book of the form:

“... terminated due to the expiration of the employment contract, paragraph 2 of part one Article 77 of the Labor Code of the Russian Federation».

A similar mark is made in the employee's personal card.

Fixed-term employment contract and pregnancy

Yes, it also happens ... In this case, the employer, in accordance with article 261 of the Labor Code of the Russian Federation, you will have to demand (but very gently!) from the employee an appropriate medical certificate confirming her interesting condition, and extend the temporary agreement until the end of the pregnancy, that is, in fact, before delivery. When she gives birth to a baby, you can say goodbye to her, but until that moment you can’t.

Variants are also possible. If, instead of a certificate of pregnancy, a girl brings the statutory form of a sheet of temporary incapacity for work, where pregnancy is indicated in the justification for its issuance, as well as a statement of the desire to go on paid leave (it does not matter at all how long she worked for you, at least a week), the employer will have to prepare and sign the corresponding order. Because, in accordance with Article 260 of the Labor Code of the Russian Federation, before maternity leave (or after it), the employer is obliged to provide the woman with annual paid leave, regardless of the time she worked for him.

Therefore, it turns out that instead of three summer months, some legally literate girls can hold out on temporary work longer.

Difficulties also arise in a situation when, on the date of the end of the contract, the employee is on sick leave. It is well known that termination of an agreement with a sick employee at the initiative of the employer is not allowed. But the expiration of the term is not the initiative of the management, therefore, it is quite legitimate to dismiss such an employee, the main thing is to comply with the procedure.

Prolongation of a fixed-term employment contract

As such, the procedure for extending the STD is not described, which invariably raises questions about the possibility of increasing (or reducing) its duration.

On the one hand, such a contract either terminates on a predetermined day of its expiration, or becomes indefinite if the employee continues to work.

On the other hand, the legislation does not prohibit the employee and the employer, as parties to labor relations, to conclude additional agreements if it is necessary to change the terms of the contract, including with respect to its term.

Temporary employee dismissal rules

In accordance with Article 79 of the Labor Code of the Russian Federation, a fixed-term contract ends with the expiration of its validity period; this is an independent basis for terminating working relations.

The main steps for firing a temporary worker are as follows:

If they want to transfer an employee to a permanent job in the organization, then nothing needs to be done. STD automatically becomes indefinite if the employment relationship continues after the date of its termination in force Art. 58 of the Labor Code of the Russian Federation... But it is not forbidden (and even recommended by Rostrud) to conclude an additional agreement in which to cancel the points indicating the duration of the STD.

Labor contract (TD) is primarily a document. This agreement can be called a contract, it regulates the relations arising between the parties to the labor process.

According to the contract, a person hiring a job undertakes to perform certain types of work at the enterprise, prescribed in the terms of the contract, as well as to follow all the rules and regulations of the established schedule.

The employer, for his part, is obliged to provide all working and rest conditions and adequately pay for the labor functions performed by the employee.

TD can be:

Urgent, that is, which indicates specific terms of work;
Indefinite, that is, in such a contract, the terms are not specified.

The STD must necessarily state why the contract cannot be extended indefinitely. For example, when a person is hired for a period of illness of another employee, or seasonal work. The total term of the STD cannot exceed five years.

If the time frame of work is not specified in the TD, then it will be considered indefinite.

Grounds for conclusion of STD

These grounds can be divided into two groups:

When deadlines are set depending on the nature of the work being performed;
The conclusion of a fixed-term contract occurs by mutual agreement of the employer and the employee.

The 1st group includes the following bases:

For the period of absence of the main employee at the workplace, when his salary is saved for him. This can be when the main employee is absent due to illness, is on maternity leave, or on annual paid leave.
For the period of temporary work, such a contract is concluded for a couple of months.
, implies several months during which the employee's labor activity will be carried out. For example, work on sowing or harvesting grain and other crops, during the heating season and other work related to weather conditions.
When a person goes to work, by order of the employment center.
If the work goes beyond the main work activity, the terms of which are agreed in advance. For example, installation work or reconstruction of any equipment.
Election to office for an indefinite period, for example, election to an election commission.
If a person is sent to work abroad.
With persons for civilian alternative service.
With a person admitted to a sports organization.

With such registration for the position and the conclusion of the STD, the consent of the employee should not be taken into account.

By agreement between the two parties to the employment relationship:

If the person has completed full-time training.
Work for an individual entrepreneur, or in the small business sector.
If a person who has reached retirement age gets a job.
If a person is accepted for work, recognized as a disabled person, but having the right to lightened work, and his labor functions are determined by a time frame.
When employed in places of the Far North and territories equated to it.
For work in emergency situations, catastrophes and elimination of the consequences that have occurred.
If a person has passed a competition to fill a certain position.
Managers, his deputies and chief accountant are accepted with the conclusion of the STD, regardless of the form of ownership of the enterprise.
When a person gets a part-time job.
When the work is related to navigation.

In such cases, the opinion of both parties is taken into account, and the period for which the fixed-term contract will be concluded is stipulated.

Features and procedure for concluding STD

If an employee decides to get a job of a temporary nature, he must provide a number of documents: passport, TIN, SNILS, work book, document on obtaining any kind of education, if any. Also, an accepted employee can provide documents on his military service and obtaining qualifications for the position held.

In the case when a person gets a part-time job, he needs to provide a copy of the work book or a certificate from the main place of work.

The employee should write an application based on the model for admission to the relevant position. The form of such a statement is different for each organization. Such a statement must necessarily indicate the reason for the temporary nature of the work.

The employer must familiarize himself with these documents and make a decision on hiring a person, notify him about the rules of work and rest in the workplace and directly about what the future employee will do, and also familiarize him with local acts of remuneration.

The next step is the preparation and signing of the STD.

When drawing up this document, you must indicate:

Surname, name, patronymic of the received employee;
Passport data and other details of the employee (address of residence, age or date of birth, TIN and SNILS, education);
Start and end of urgent work;
Place and time of drawing up and signing the contract;
If the contract is signed by a specially authorized person, then this should be indicated.

The place of work must be indicated, it can be any structural unit of the company or a branch in which the employee will work. You should also indicate the type of work and position held, as it is indicated in, its nature according to the qualifications held.

An important aspect when concluding such an agreement is the indication of the wage system, premiums for harm, for work at night, on holidays and weekends.

Next, you need to indicate how many days a week are workers, and how many days off, there may be a shift nature of work. To make sure of the professional suitability of this employee, indicate the probationary period of work. Usually a probationary period of up to three months is established, and when a chief accountant or employee is hired for the position of deputy director, up to six months.

If during the conclusion of the contract, any conditions or data about the employee were not entered, this is not considered the reason for not concluding it. This can be done later, in the form of an annex to the contract or an additional agreement between the parties, which are a mandatory part of the STD.

All terms of the contract can also be changed by agreement between the worker and the director.

The STD may stipulate conditions for non-disclosure of state secrets, if necessary.

Further, the STD is signed by the two parties to the labor relationship and legalized by the official seal of the organization. Make up two copies of the contract, one of which is kept in the organization, the other is handed over to the employee.

The last stage of registration of labor relations is the issuance of an order for employment. A copy of such an order, after three days from the date of employment, is signed by the employee. A copy of the acceptance order is handed over to the employee.

Terms of STD

The maximum term of STD is 5 years, but no more, and the minimum is unlimited, that is, it can be from one day to five years.

The only case when it is mandatory is when an employee is recognized as pregnant and brought documents from a medical institution confirming this fact.

The STD may become indefinite if the parties have not expressed a desire to terminate their employment relationship, after the expiration of the period specified in the STD.

STD ceases to work in a number of cases:

By the joint decision of the employee and his boss;
When an employee submits an application for early dismissal. Such an application is submitted two weeks before the date of dismissal;
At the initiative of the head, but not less than 30 days before the end of the terms under the contract.

If the nature of the work is indicated in the STD, then its term ends at the end of these works.

Advantages and disadvantages of STD

The STD will be considered legal when it is concluded by mutual consent of the two parties to the employment relationship. If, starting to fulfill his job duties, a person did not know about the urgent nature of the contract, then he can apply to the courts. The court will issue a ruling recognizing the STD as indefinite.

In the case when the worker has already begun to perform his job functions, and the contract has not yet been drawn up in writing, the court recognizes it as indefinite.

The legality of the fact depends on the legality of the conclusion of the STD. If such a nuance is not observed, the STD is recognized as indefinite and will require the restoration of the employee at the previous workplace.

An important plus when concluding a STD is simple registration, and you can also not pay compensation for unused leave upon dismissal.

The disadvantage is the lack of competence of some employees in the legality of registration of STD, which is what employers use. Incorrect drawing up of the form and content of STD on the part of the organization entails the illegality of concluding this agreement.

Many directors are trying to conclude a STD in order to evade the provision of a package of social guarantees under the contract. They believe that temporary workers are not entitled to benefits.

In this regard, temporary workers are equal to the main ones and they are provided with the same benefits. This is spelled out in the Labor Code of the Russian Federation.

Often the employer tries to manipulate the employee and concludes several STDs with one employee to perform the same job. In this case, the court recognizes the fact that the STD has been concluded for an indefinite period.

The main disadvantage for the employee is the simplicity of dismissal, if all the legal rules for the preparation and conclusion of the STD are observed. All basic payments for a temporary employee (vacation pay, temporary disability benefits, etc.) are calculated in the same manner as for basic employees.

Important for the employee : if during the period specified in the STD, none of the parties to the employment relationship demanded its termination, and the employee continues to fulfill his duties, then the STD is transferred to the status of an indefinite one.

The main disadvantage for employers is the onset of the employee's pregnancy, as this entails a mandatory extension of the contractual term with her. Also, the company will need to pay her all the compensations established by law. Even if a pregnant employee wrote a statement to extend the time frame of the contract, the boss does not have the right to refuse this request until the end of the pregnancy.

Conclusion

If a person gets a job that has a time frame, then STD is concluded with him. But when drawing up such a contract, there are many different rules and regulations established by law. Proper implementation of such rules will have a beneficial effect on the performance of the employee's duties and a satisfactory end result for the employer.

An employment contract (TD) is the main document that is concluded between the employer and the employee. A fixed-term employment contract (STD) is signed when it is impossible to set an indefinite period for. In this case, the maximum term of STD is five years. If a longer term is specified in the contract, it is considered that the employee has been hired for a permanent job.

Termination of a fixed-term employment contract

A fixed-term employment contract is terminated upon the expiration of its validity period. Including:

a prisoner for the duration of a certain work - upon its completion;
a prisoner for the duration of the duties of an absent employee - with his return;
prisoner for seasonal work during a certain period (season) - at the end of this period (season).

Dismissal upon expiry of the term of the employment contract

The employee must be notified in writing of the termination of the TD due to the expiration of its validity period at least three calendar days prior to dismissal, except for cases when the validity period of the STD concluded during the performance of the duties of the absent employee expires.

The original of the notification is handed to the employee personally, and on the copy of the notification he must put a personal signature with a transcript, and also indicate the date of receipt of the notification. A copy of the document is attached to the employee's personal file.

If you refuse to read the notification, an appropriate act is drawn up.

Sample notice of termination of a fixed-term employment contract

Expiration of a fixed-term employment contract for the performance of work

The procedure for dismissal upon the expiration of the term of the employment contract concluded for the duration of the performance of a certain work begins with the drawing up of an act of acceptance of work performed under the STD. It is he who is the basis for termination.

To do this, you can use the act of the unified form No. T-73, approved by the Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1 "On the approval of unified forms of primary accounting documentation for labor accounting and remuneration." However, it is not mandatory to use this form. The parties can draw up an act in free form.

The act is drawn up in two identical copies. At the same time, a copy of the employer is filed into the employee's personal file. The expiration date of the STD will be the day following the date of issue of the act.

Sample certificate of acceptance of work performed under a fixed-term employment contract

Dismissal order at the end of a fixed-term employment contract

If the STD is terminated after the expiration of the validity period, the employee is dismissed under clause 2, h. 1, Art. 77 of the Labor Code of the Russian Federation - due to the expiration of the TD term. At the same time, an order is issued to terminate (terminate) the TD with the employee (dismissal). The unified form of such an order No. T-8 was approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1. The employee must be familiar with the order (decree) on dismissal. A copy is attached to the employee's personal file.

Employment book entry

The employer is obliged to issue it on the day of dismissal. The procedure for making an entry into it when the TD is terminated is spelled out in section. 5 of the Instruction approved by the Resolution of the Ministry of Labor of Russia dated 10.10.2003 N 69.

If a fixed-term employment contract has not expired

STD may be terminated before the expiration of its term on the grounds set forth in Article 77 of the Labor Code of the Russian Federation. The procedure is the same as for terminating a TD concluded for an indefinite period of time.

Prolongation of a fixed-term employment contract

If none of the parties demanded termination of the STD due to the expiration of its validity period, and the employee continues to work after the expiration of the STD period, he is considered imprisoned for an indefinite period. In this case, changes are made to the TD by concluding an additional agreement. In the workbook, on the contrary, no additional entries are made. This position is stated in the Rostrud Letter dated 20.11.2006 No. 1904-6-1.

The employer should keep in mind that he has no right to demand to perform duties after the expiration of the TD period. If he has a desire to extend the TD, then it is necessary to offer to conclude an additional agreement to the contract. Otherwise, the employee, having completed the last working day, may not go to work, and this will not be considered absenteeism.

Vacation and its compensation upon dismissal

The conclusion of an urgent TD does not change the employer's obligation to provide annual basic paid leave of 28 calendar days while retaining the place of work and average earnings. In accordance with article 127 of the Labor Code of the Russian Federation, upon dismissal, monetary compensation is paid for all unused vacations. Wherein:

Those employed in seasonal work are provided with paid vacations at the rate of two working days for each month worked (Article 295 of the Labor Code of the Russian Federation).
Those who have entered into a TD for a period of up to two months are provided with paid vacations at the rate of two working days per month worked (Article 291 of the Labor Code of the Russian Federation).

Special cases

A special case is the dismissal of a pregnant woman after the expiry of the TD period. With the exception of the case, which will be discussed below, the dismissal of a pregnant woman after the expiry of the TD period is impossible. The employer is obliged to extend the TD of the employee if she submits a relevant application and a medical certificate confirming pregnancy. The period of validity of the TD should be extended until the end of pregnancy, regardless of the reason for its termination.

The date of dismissal in this case will be:

if the employee has been granted maternity leave - the day the leave ends;
if such leave is not granted - within a week from the day when the employer learned about the end of the pregnancy.

Maternity benefits, when registering in early pregnancy and when a child is born, are calculated and paid as usual. No parental leave is granted.

The employer has the right to dismiss a pregnant woman after the expiration of the urgent TD, subject to the following conditions (part 3 of article 261 of the Labor Code of the Russian Federation):

urgent TD is concluded for the duration of the duties of the absent employee;
transfer of an employee with her consent to another job available to the employer and not contraindicated for her health reasons is impossible.

In this case, the employer is obliged to offer the pregnant employee all vacant positions or work that he has in the given area that correspond to her qualifications, as well as vacant lower positions or lower-paid work that a woman can perform, taking into account her state of health.

The conclusion of an employment contract for a certain period is quite convenient for the employer, since upon termination of the employment relationship, no special grounds for dismissal are needed. For an employee, on the contrary, in most cases this is a compulsory measure.

Nevertheless, the Labor Code establishes quite a lot of grounds for concluding a fixed-term employment contract. And if the employer still “lacks” grounds and concludes such an agreement in violation of the law, as a result, the employee may be reinstated after dismissal, and the agreement may be retrained into an indefinite term.

In this article, we will consider in which cases the conclusion and termination of a fixed-term employment contract are lawful, and in which they can be recognized as illegal.

Grounds for conclusion

The main rule for an employer concluding a fixed-term employment contract: all grounds for its conclusion are established by legislation, the Labor Code and other laws, for example, the Law of the Russian Federation of 19.04.1991 No. 1032-1 "On employment of the population in the Russian Federation" (hereinafter - Law No. 1032- 1), Federal Law of July 27, 2004 No. 79-FZ "On the State Civil Service of the Russian Federation".

In the Labor Code, these grounds are divided into two groups. The first includes specific grounds for concluding such an agreement - when labor relations cannot be established for an indefinite period, taking into account the nature of the work ahead or the conditions for its performance (part 1 of Art. 59, 332, 348.4). And the second group - when a fixed-term employment contract can be concluded by agreement of the parties without taking into account the nature of the work ahead and the conditions for its implementation (part 2 of article 59). Let us present these bases in the table.

Grounds for concluding a fixed-term employment contract
Without fail (part 1 of article 59 of the Labor Code of the Russian Federation)	By agreement of the parties (part 2 of article 59 of the Labor Code of the Russian Federation)
For the duration of the duties of the absent employee, who retains the place of work	With persons applying for work for employers - small businesses (including individual entrepreneurs)
For the duration of temporary (up to two months) work	With old-age pensioners entering work, as well as with persons who, for health reasons, are allowed to work exclusively of a temporary nature
To perform seasonal work, when, due to natural conditions, work can only be performed during a certain period (season)	With persons applying for work in organizations located in the regions of the Far North and equivalent areas, if this is associated with moving to the place of work
With persons sent to work abroad	To carry out urgent work to prevent catastrophes, accidents, accidents, epidemics, epizootics, as well as to eliminate their consequences
To carry out work that goes beyond the usual activities of the employer (reconstruction, installation, commissioning and other work), as well as work associated with a deliberately temporary (up to one year) expansion of production or the volume of services provided	With persons elected through a competition to fill the relevant position, held in the manner prescribed by labor legislation and other acts containing labor law norms
With persons applying for work in organizations created for a predetermined period or to perform a predetermined work	With creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibiting) of works, in accordance with special lists
With persons hired to carry out deliberately certain work in cases where its completion cannot be determined by a specific date	With heads, deputy heads and chief accountants of organizations, regardless of the organizational and legal form of organization and form of ownership
To perform work directly related to practice, vocational training or additional vocational education in the form of an internship	With persons receiving full-time education
In cases of being elected for a certain period of time to an elective body or to an elective position for a paid job, as well as admission to work related to the direct support of the activities of members of elected bodies or officials in public authorities and local self-government bodies, in political parties and other public associations	With crew members of sea-going vessels, inland navigation vessels and mixed (river-sea) navigation vessels registered in the Russian International Register of Vessels
With persons sent by the employment service bodies to work of a temporary nature and public works	With persons applying for a part-time job
With citizens sent for alternative civilian service	With an employee involved in the implementation of a regional program to increase labor mobility (Article 22.2 of Law No. 1032-1)
With vice-rectors of an educational organization of higher education (Article 332 of the Labor Code of the Russian Federation)
With an athlete for a period of temporary transfer (Article 348.4 of the Labor Code of the Russian Federation)
In other cases stipulated by federal laws

When the conclusion of a fixed-term employment contract is legal

The legality of the dismissal due to the expiration of its validity period depends on how legitimate (that is, complies with the law) to conclude a fixed-term employment contract. Failure to comply with the established procedure will entail the recognition of a fixed-term contract as indefinite and, accordingly, the restoration of the employee. And here problems may arise with the main employee if the contract was concluded, for example, during his long absence.

To prevent this from happening, the employer should remember a few rules. The most important thing, as already noted, is that the grounds for concluding a fixed-term employment contract must be established by the Labor Code or other federal laws. They also need to be applied correctly, and this is often where the difficulties arise for employers. For example, they confuse temporary jobs with seasonal ones or conclude an agreement by agreement of the parties with a person not specified in Part 2 of Art. 59 of the Labor Code of the Russian Federation, apparently, assuming that, by agreement of the parties, any employee can be temporarily hired.

It is also illegal to conclude a fixed-term employment contract when an employee is hired “for the duration of the performance of the duties of an absent person,” but in fact the position is vacant.

As for the conclusion of a fixed-term employment contract by agreement of the parties, this option will be legal only if the contract is concluded on the basis of the voluntary consent of the employee and the employer. Here we note that employers often violate this condition when applying for work, in particular, for retirees, concluding a fixed-term contract almost without fail.

Often employers, in order not to conclude an agreement for an indefinite period, conclude several fixed-term employment contracts with one person and to perform one job. In this regard, the Supreme Court noted that when establishing in the course of court proceedings the fact of multiple conclusion of fixed-term employment contracts for a short period to perform the same labor function, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period (paragraph 14 of the Resolution No. 2) (see the Appellate ruling of the Arkhangelsk Regional Court dated 20.02.2013 in case No. 33-885 / 2013).

And one more of the violations that are allowed by employers and may lead to the recognition of the contract as illegal is non-compliance with its form and requirements for content.

note

An employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. One copy is given to the employee, the other is kept by the employer. The receipt of a copy of the employment contract by the employee must be confirmed by his signature on the copy kept by the employer (Article 67 of the Labor Code of the Russian Federation).

If the employment contract is not executed in writing, but the employee is actually admitted to the performance of duties (part 2 of article 67 of the Labor Code of the Russian Federation), then an employment relationship has arisen between the employee and the employer. However, the courts consider that in these cases the employment contract can be considered as concluded for an indefinite period.

Speaking about the content of the employment contract, we emphasize: it must indicate the period of its validity and the circumstances (reasons) that served as the basis for its conclusion for a certain period (paragraph 4 of part 2 of article 57 of the Labor Code of the Russian Federation). A specific period is indicated if the moment of termination of the contract can be precisely and in advance established by the parties. If it is impossible to determine the term, then by virtue of Art. 79 of the Labor Code of the Russian Federation, a period of time is indicated - for example, in cases of performing a certain job, duties of an absent employee, seasonal work.

Otherwise, the employment contract will be considered concluded for an indefinite period.

note

A fixed-term employment contract is concluded for a period of not more than five years, unless another period is established by the Labor Code or other federal laws (clause 2. Part 1, Article 58 of the Labor Code of the Russian Federation).

Let's name the main signs that a fixed-term employment contract was concluded lawfully.

A fixed-term employment contract was concluded lawfully if ...		... is concluded in writing for a period of not more than five years and it indicates the validity period and circumstances (reasons) that served as the basis for his conclusion for this period
		... the grounds for his conclusion are established by the Labor Code or other federal laws
		... work on it is deliberately temporary
		... by agreement of the parties (part 2 of article 59 of the Labor Code of the Russian Federation), on the basis of the voluntary consent of the employee and the employer

When concluding such an agreement, remember that it is prohibited to conclude contracts of this type in order to evade the provision of rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period (part 6 of article 58 of the Labor Code of the Russian Federation).

Grounds for termination of a fixed-term contract

By virtue of Art. 79 of the Labor Code of the Russian Federation, a fixed-term employment contract is terminated upon the expiration of its validity period. In this case, the employment contract concluded:

for the duration of a certain work, - terminates upon completion of this work;
for the duration of the duties of an absent employee, - terminates with the exit of this employee to work;
to perform seasonal work during a certain period (season), - terminates at the end of this period (season).

The employee must be notified in writing of the termination of an employment contract due to its expiration at least three calendar days prior to dismissal, unless the term of a fixed-term employment contract concluded at the time of the performance of the duties of the absent employee expires.

Of course, a fixed-term contract can be terminated early in the cases established by the Labor Code of the Russian Federation, but we will consider precisely the termination of labor relations in connection with the expiration of the contract.

The dismissal of an employee is unlawful

Dismissal of an employee due to the expiration of the term of the employment contract is illegal, as already noted, if the contract was concluded unlawfully, in particular, when there were no legal grounds for this, the term of the contract and the circumstances (reasons) that served as the basis for its conclusion were not indicated, as well as the employee did not give consent to conclude an agreement by agreement of the parties in accordance with Part 2 of Art. 59 of the Labor Code of the Russian Federation and was able to prove it.

In addition, the dismissal will be illegal if the event related to the termination of the employment contract has not occurred, and the employee has already been fired. The employer has the right to dismiss an employee only if the event that determines the expiration of the contract has occurred.

If the court finds that a fixed-term employment contract was concluded unlawfully, it can be retrained into a contract concluded for an indefinite period and the employee will be reinstated.

However, in some cases, the court makes a decision based on the circumstances of the case. For example, even in the absence of a written form of an employment contract, the court may recognize the dismissal as legal if it establishes that the employee knew about the urgent nature of the employment relationship - he was familiarized with the employment order against signature, in which there was a note about the urgent nature of the employment contract (see Art. The appeal ruling of the Sakhalin Regional Court dated 03.03.2016 in case No. 33-540 / 2016).

Dismissal is not always recognized as illegal even in the absence of circumstances (reasons) in the fixed-term contract that served as the basis for its conclusion. Thus, the dismissal was recognized as legal in the case when the circumstances of the conclusion of a fixed-term employment contract were not indicated in it, but in fact existed and were provided for by the Labor Code (see the Appellate ruling of the Supreme Court of the Republic of Karelia dated 09/01/2015 in case No. 33-3390 / 2015).

But if its term is not specified in a fixed-term employment contract, such dismissal will be recognized as illegal (Determination of the Moscow City Court dated 12.12.2014 No. 4g / 8-13140).

note

Dismissal due to the expiration of the employment contract of a pregnant employee is allowed if the contract was concluded during the performance of the duties of the absent employee, and the woman cannot be transferred with her written consent to another job available to the employer before the end of the pregnancy. In other cases, the employment contract is extended on the basis of the employee's application until the end of pregnancy or maternity leave (parts 2, 3, article 261 of the Labor Code of the Russian Federation).

As for the employer's non-compliance with the notification procedure, the position of the judges is ambiguous. In some situations, the courts indicate that non-compliance with the requirements of Part 1 of Art. 79 of the Labor Code of the Russian Federation on the written notification of the employee about the termination of the employment contract due to the expiration of its validity period cannot be an independent basis for declaring the dismissal unlawful (see the Appeal ruling of the Irkutsk Regional Court of January 23, 2013 in case No. 33-450 / 13). In others - that the will of the parties to terminate the employment relationship must be confirmed by evidence, one of which may be the employee's notice of dismissal in accordance with Part 1 of Art. 79 of the Labor Code of the Russian Federation. Moreover, the dismissal is likely to be recognized as illegal if the employee, in violation of Art. 84.1 of the Labor Code of the Russian Federation was not familiar with the order of dismissal. Failure by the employer to comply with the established art. 79, 84.1 of the Labor Code of the Russian Federation, the dismissal procedure is essential for recognizing the dismissal as unlawful (see the Appellate ruling of the Krasnodar Regional Court of 05/17/2012 in case No. 33-7701 / 2012).

In any case, if the contract was concluded for the duration of the performance of the duties of the absent employee, there is no need to warn about the termination of the contract.

Thus, we can identify the main reasons when dismissal due to the expiration of the employment contract will be illegal.

Dismissal due to the expiration of the employment contract is unlawful if ...	... there are no legal grounds for concluding a fixed-term contract
	... there is no written form of the contract (an exception is possible if the employee signed an order with the specified duration of the contract)
	... the contract does not specify its validity period
	... the contract does not indicate the circumstances that served as the basis for its conclusion (an exception is when these circumstances do not raise doubts, for example, if the employee is a pensioner)
	... the fixed-term contract was concluded under duress
	... the employee is dismissed before the occurrence of an event that determines the expiration date of the employment contract
	... a pregnant woman is fired, and she wrote a statement to extend the contract
	... a pregnant employee, with whom the contract was concluded during the performance of the duties of the absent employee, was not offered a transfer to another position

We talked about what to look for when concluding an urgent labor contract, what becomes the reason for the recognition of such a contract as indefinite, as well as the most common cases when the dismissal of a "conscript" can be recognized as illegal. In this situation, the employer will not only have to retrain the employment contract into an open-ended one and restore the employee, but also pay him the average earnings during the forced absence, compensation for legal costs and moral damage. We hope that you will consider all of the above when concluding fixed-term employment contracts. Most importantly, use only the grounds provided for by law. And of course, the agreement of the parties to set a time limit in accordance with Part 2 of Art. 59 of the Labor Code of the Russian Federation can only be voluntary.

Fixed-term employment contract - with whom can you conclude it and on what conditions? These questions are relevant for all participants in labor relations. Unlike an indefinite one, a contract concluded for an agreed period expires at a specified moment or upon the occurrence of certain events. The reader will learn more about the list of persons with whom urgent labor relations can be formalized by reading the publication.

Fixed-term employment contract: signs and cases of conclusion

Legal regulation of issues related to the execution of the type of contracts under consideration is carried out in accordance with the Labor Code of the Russian Federation.

Art. 59 of the Labor Code of the Russian Federation provides that fixed-term contracts have the following features:

They are concluded for a specific period, which may be limited by a calendar date or a moment characterized by circumstances (events) specified in the agreement. Read about the differences between a fixed-term contract and an unlimited one.
At the end of the specified period and in the absence of proposals from the employer to extend it, the contract is deemed to have completed its validity.
Depending on the term of the contract, the probationary period may be minimal, up to 2 weeks, or not apply at all, for example, if the agreement is valid for up to 2 months (Article 70 of the Labor Code).

Note that if the agreement does not contain an indication of its time-limited effect, as well as in cases where the stipulated period exceeds 5 years, then the contract is considered concluded on an unlimited basis.

In what cases is it established by law that a fixed-term employment contract is concluded, and not an unlimited one

The legislator in Art. 59 of the Labor Code of the Russian Federation directly stipulate cases of execution of a contract with an employee, providing for a limited period of validity. The law stipulates that a fixed-term employment contract is concluded:

to impose on the accepted employee the duties of an employee who is absent from work for a long time, in cases where the employer, by virtue of the law, is obliged to keep the job for such an employee (for example, in case of illness);
urgent work (up to 2 months);
performance of work with a characteristic sign of seasonality, which, due to climatic features, can only be carried out in the relevant season, and the agreement concluded for such work is terminated at the end of the season;
if necessary, perform labor duties abroad (as a rule, the term of the agreement corresponds to the time spent outside the Russian Federation);
carrying out works that are not part of the main activities of the organization, related to the expansion of production capacities or an increase in volumes, as well as the implementation of other activities (repair, commissioning and other types of work);
when the employer is a legal entity created for a limited period to carry out certain work (the agreement is limited to such a period, and it ceases to be valid at the time of the termination of the organization's activities, provided there is no legal succession);
when accepting an employee for an internship, for training in a specialty or for practice;
hiring an employee to perform a specific job, including in cases where the deadline for its performance cannot be determined at the time of the conclusion of a fixed-term contract;
the direction of the employee by the employment center for public and other works of a temporary nature;
issuing a referral to alternative civilian service;
election of a citizen to an elective position in government bodies, political, public and other associations.

With which persons a fixed-term employment contract is concluded

At the legislative level, the categories of persons are fixed, in the presence of an agreement with whom it is permissible to conclude a fixed-term contract, regardless of the conditions and nature of the duties performed. By virtue of para. 2 tbsp. 59 of the Labor Code of the Russian Federation, such persons include:

Don't know your rights?

citizens who apply for work for individual entrepreneurs or in small organizations, the staff of which does not exceed 35 people (20 people for employers in the field of trade and the provision of personal services);
retirees who, by virtue of law or for medical reasons, are admitted only to temporary work;
employees who are accepted in organizations operating in the Far North, subject to relocation;
employees involved in work aimed at preventing epidemics, accidents and other disasters, and, if necessary, to eliminate the consequences of such incidents;
passed the competition for filling a vacant position;
workers in creative professions, including the media, theaters, circuses and others (the list of professions classified as creative is approved by the Government of the Russian Federation);
organizations included in the management, including managers, their deputies and chief accountants;
full-time students;
members of the crew of ships of various types of navigation;
involved in part-time work.

The legislator may additionally provide for other categories of persons with whom, with the appropriate consent, it is permissible to conclude a fixed-term contract. In particular, to such persons by virtue of Art. 348.2 of the Labor Code of the Russian Federation also includes athletes and coaches of sports teams.

Who cannot enter into a fixed-term employment contract

A fixed-term contract is a type of contract concluded with an employee for an indefinite period, in connection with which restrictions in force by law apply to both types of agreement.

In particular, it is impossible to conclude a fixed-term contract with persons under the age of 16 (the exception is the categories of professions directly provided for by law). In addition, only capable persons can act as employees; in some cases, it is possible to admit persons with limited legal capacity if the conditions and nature of work are safe both for the employee himself and for those around him.

At the same time, the analyzed type of contract is characterized by an additional condition, in the absence of which the conclusion of such an agreement is unacceptable. This condition is the consent of the employee. In the absence of his consent regarding the period for which the contract is concluded, the contract is concluded for an indefinite period or not at all.

Features of the conclusion and termination of a fixed-term employment contract

The procedure and consequences of signing a fixed-term contract are almost identical to those that take place when an agreement with an employee is concluded that does not provide for its validity period. An exception is the indication of the reason for the conclusion of the analyzed type of contract, for example, the performance of work depending on climatic conditions (seasonal) and its validity period. Please note that an entry is made in the work book according to the general rule without indicating the type of agreement drawn up.

Such a contract is terminated due to the expiration of the validity period in the manner provided for in Art. 79 of the Labor Code of the Russian Federation. The legislator does not restrict the employee and employer in the application of any grounds for termination provided for open-ended employment contracts. In particular, termination is permissible at the initiative of the employee or employer, by agreement of the parties, until the end of the specified period.

An example of a fixed-term contract can be studied by reading

In conclusion, we note that employers have the right to exercise the right to conclude a fixed-term employment contract only in situations specified by law and with specific groups of persons with their consent. Such conditions are aimed at protecting the interests of workers' rights, since the conclusion of a fixed-term employment contract is a convenient tool for unscrupulous employers.