What is a fixed term contract with an employee. When consent is not needed

By illegally entering into such an agreement, the employer is at great risk. In the article you will find expert tips and a sample for 2019.

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What is a fixed-term employment contract: pros and cons

A fixed-term (temporary) employment contract has a limited duration. The contract is considered as open-ended if it does not say that it is urgent, the reason for the urgency is not indicated and there is no date or event upon the occurrence of which the employment relationship should be terminated (part 3 of article 58 of the Labor Code of the Russian Federation).

A temporary employment contract is beneficial, first of all, to the employer - it expands the list of grounds on which an employee can be fired. All that is needed for dismissal is to wait for the expiration of the period specified in the contract and notify the employee about it three days in advance. How this happens in practice, read the article "". In addition, upon dismissal as part of the liquidation of an enterprise, staff hired for a period of up to two months may not be paid severance pay.

Cons of a fixed term contract

1. Maximum allowablefixed term contractlimited. It is possible to establish an employment relationship for a longer period by concluding a new contract or retraining an existing one into an indefinite one. This is not always convenient.

2. If you miss the deadline and do not issue a dismissal on time, labor relations are transformed into indefinite. From this moment, it is possible to dismiss an employee only on general grounds.

Otherwise, the set of labor and social guarantees provided to the employee by a fixed-term contract does not differ from the standard one. Temporary and seasonal personnel are entitled to paid holidays, sick leave, all allowances and compensations required by law.

When to conclude a fixed-term employment contract

Labor relations are established by default for an indefinite period. But sometimes, due to the special nature of the upcoming work or the conditions for its implementation, a fixed-term employment contract is concluded on a mandatory or voluntary basis. A fixed-term employment contract is concluded under the circumstances listed in Part 1 of Art. 59 of the Labor Code of the Russian Federation. Separately, there are cases when the employer has the right to conclude a fixed-term employment contract by agreement of the parties (part 2 of article 59 of the Labor Code of the Russian Federation).

When is a fixed-term contract required?

• Seasonal or temporary (up to two months) work.
• Work abroad.
• The employee was sent by the employment service for temporary employment.
• Alternative civilian service.
• The employee performs work within the framework of vocational training, work experience, internship.
• The employee is elected to an elective position.
• An employee enters an organization established for a limited period of time, or performs work that is outside the normal activities of the employer.
• If an employee temporarily performs the duties of an absent main employee, who retains a place of work for the period of vacation, decree, sick leave, etc.

Table. Cases of concluding a fixed-term employment contract (in general cases and by agreement)

Cases in which a fixed-term employment contract must be concluded	Cases in which a fixed-term employment contract can be concluded by agreement of the parties
For the duration of the performance of the duties of an absent employee, for whom, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, the place of work is retained (paragraph 2, part 1, article 59 TC RF)	With persons entering work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the field of retail trade and consumer services - 20 people) (paragraph 2 of part 2 of article 59 of the Labor Code of the Russian Federation)
For the duration of temporary (up to two months) work (paragraph 3, part 1, article 59 of the Labor Code of the Russian Federation)	With pensioners entering work by age, as well as with persons who, for health reasons, in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of Russia, are allowed to work exclusively of a temporary nature (paragraph 3, part 2 article 59 of the Labor Code of the Russian Federation)
To perform seasonal work, when, due to natural conditions, work can only be done during a certain period (season) (paragraph 4, part 1, article 59 of the Labor Code of the Russian Federation)	With persons applying for work in organizations located in the regions of the Far North and areas equivalent to them, if this is associated with moving to the place of work (paragraph 4, part 2, article 59 of the Labor Code of the Russian Federation)

Attention! Additional grounds for concluding a fixed-term contract with certain categories of personnel - professional athletes and coaches - are contained in Art. 348.2 of the Labor Code of the Russian Federation.

When drawing up a temporary employment contract, be sure to indicate the reason for the urgency. First make sure that it is included in the list (Article 59 of the Labor Code of the Russian Federation), otherwise it will be difficult to avoid the instructions and fines of the GIT. Sistema Kadry experts have prepared for you convenient table: Download, keep handy and refer to as needed. Unfortunately, mistakes are made when drawing up every second fixed-term contract.

If the indicated ground of urgency does not meet the legal requirements, the supervisory authorities may decide that the contract was concluded illegally and impose penalties on the employer. In "Personnel System" - full list of fines .

The Alfa company entered into an employment contract for 1 year with the caretaker N. and justified the urgency by temporary registration of the employee at the place of residence. During a scheduled inspection, the inspector drew attention to the illegality of such justification. As a result, the employer had to pay a fine under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation in the amount of 30,000 rubles, and employment through the court was recognized as indefinite. Now watchman N. works at Alfa on a full-time basis.

It is important for the employer to have evidence that the employee is going to work on the terms of a fixed-term employment contract based on his own desire. This is necessary in order to confirm the main condition for concluding an urgent contract in the event of possible conflict situations - the voluntary consent of both parties.

Preparation of documents for the conclusion of a fixed-term employment contract

After signing the contract, the employer must issue 3 more documents. We'll tell you how.

Issue job orders. Such an order may have a free form or correspond to Form No. T-1. The order must indicate the date of termination of the employment contract. If such a date cannot be determined, it is necessary to indicate the event upon the occurrence of which the employment contract will be considered terminated.

Enter employment records in the work book. The information in the columns of the document must be consistent with other executed documents, including a fixed-term contract and an employment order. At the same time, an indication of the urgent nature of employment in the work book is not made.

Create a personal employee card. If form No. T-2 is used for this document, an indication of the temporary type of employment is made in the section "Nature of work". In section III "Employment, transfers to another job" repeat the entry made in the work book. The employee must be familiarized with this record against signature.

The maximum term for concluding a fixed-term employment contract

A fixed-term employment contract is concluded for a period of up to five years (part 1 of article 58 of the Labor Code of the Russian Federation). The minimum threshold is not set by law, so it is possible to hire a temporary worker for a couple of months or even weeks, but for five years and one day it is no longer possible.

More about the terms of a fixed-term employment contract:

Attention! As a general rule, a fixed-term employment contract is not extended, but an exception has been made for three categories of workers - athletes, university employees and pregnant women.

A fixed-term employment contract is drawn up as an exception, when labor relations cannot be established on a permanent basis, for a period of up to five years. If the validity period is not specified, the employment will be considered indefinite. If the deadline is set without sufficient grounds, the employer faces a fine and re-qualification of the contract in court.

Labor legislation - legislation regulating labor relations between an employee and an employer that arise in the course of labor activity.

The right to work is enshrined in the fundamental law of our country - the Constitution of the Russian Federation. The main legislative act regulating labor relations is the Labor Code of the Russian Federation.

The Labor Code is required to comply with all parties, both employees and employers, regardless of their organizational and legal form. However, not all issues of labor activity are regulated by this law.

Rules for drawing up a fixed-term employment contract

Legal relations not regulated by the code may be regulated by local acts of the employer. Local acts regulate in detail the rights and obligations of the parties to labor relations.

These acts are approved by the management of the enterprise - the employer and are binding not only for employees, but also for the employers themselves. Local acts may take the form of regulations, instructions, orders, etc. Each employee of the employing organization must be familiar with each such act. Local acts should not contradict the labor legislation of the Russian Federation.

If the internal document of the employer contradicts any normative act, then in terms of the contradiction, the local act does not apply, in this case, priority remains with legislative normative acts.

In addition to local acts, the relationship between the parties is regulated by an employment contract. An employment agreement can be drawn up both for a certain period () and indefinitely. In this article, we will consider some of the features of such a document using the example of a sample employment contract with an employee.

Features of the conclusion of fixed-term contracts

A fixed-term employment contract is a written agreement between the employee and the employer on the basic working conditions and concluded for a certain period. The term of such an employment contract may not exceed five years.

The fixed-term employment contract sample below is an exception to the general labor rules. In the overwhelming majority, an employment contract is concluded between the worker and the employer for an indefinite period, and only in cases where this is not possible, a fixed-term employment contract is concluded.

The Labor Code of the Russian Federation establishes cases when a fixed-term contract may be concluded. This list is exhaustive. The conclusion of such an employment contract under other circumstances is not allowed by labor legislation.

If the employment agreement does not contain the period for which it is concluded, then, in accordance with labor law, it is considered that it is concluded for an indefinite period.

Consequences of expiration of the contract

At the end of the term of the labor contract, none of the parties to the agreement demanded its official termination due to the expiration of the term and the employee continues to perform his duties, then such an employment contract is considered concluded indefinitely.

The labor legislation of our country prohibits the conclusion of fixed-term employment contracts in order to avoid granting the rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period.

An employer is prohibited from requiring an employee to perform labor functions that are not provided for by an employment contract.

This page contains one of these documents. A fixed-term employment contract with an employee, the form of which is located below, you can download absolutely free of charge using the functionality at the end of the page.

Fixed term contract with an employee

Moscow "___" ___________ 201_.

Limited Liability Company "__________________" (abbreviated name "____________" LLC), hereinafter referred to as the "Employer", represented by the General Director _______________________________, acting on the basis of the Charter, on the one hand, and citizen ______________________________, hereinafter referred to as the "Employee", on the one hand on the other hand, have entered into this employment contract, hereinafter referred to as the "Agreement", as follows.

1. The Subject of the Agreement
1.1. Under the Agreement, the Employer undertakes to provide the Employee with work according to the labor function stipulated in this agreement, to ensure the working conditions provided for by the current labor legislation, local regulations of the Employer, and to pay the Employee's wages in a timely manner and in full.

etc...

The entire sample of a fixed-term employment contract is located in the attached file.

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 necessary measure.

Nevertheless, the Labor Code establishes quite a lot of grounds for concluding a fixed-term employment contract. And if the employer still “does not have enough” grounds and he concludes such an agreement in violation of the law, as a result, the employee can be reinstated after dismissal, and the agreement can be reclassified into an open-ended one.

In the 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 declared illegal.

Grounds for conclusion

The main rule for an employer concluding a fixed-term employment contract: all the grounds for concluding it are established by law, the Labor Code and other laws, for example, the Law of the Russian Federation of April 19, 1991 No. 1032‑1 “On employment 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 to be done or the conditions for its implementation (part 1 of article 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 to be done and the conditions for its implementation (part 2 of article 59). Let's present these bases in the table.

Grounds for concluding a fixed-term employment contract
Mandatory (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 performance of the duties of an absent employee, who retains the place of work	With persons coming to work for employers - small businesses (including individual entrepreneurs)
For the duration of temporary (up to two months) work	With pensioners entering work by age, 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 done during a certain period (season)	With persons entering work in organizations located in the regions of the Far North and areas equivalent to them, if this is associated with moving to the place of work
With persons sent to work abroad	To carry out urgent work to prevent disasters, accidents, epidemics, epizootics, as well as to eliminate their consequences
To carry out work that goes beyond the normal 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 on the basis of a competition for filling the relevant position, held in accordance with the procedure established by labor legislation and other acts containing labor law norms
With persons entering work in organizations created for a predetermined period or to perform a predetermined job	With creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with special lists
With persons hired to perform known 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 the organization and form of ownership
To perform work directly related to practice, vocational training or additional professional education in the form of an internship	With persons receiving full-time education
In cases of election for a certain period to an elected body or to an elective position for paid work, as well as employment related to the direct support of the activities of members of elected bodies or officials in state authorities and local governments, in political parties and other public associations	With crew members of seagoing vessels, inland navigation vessels and mixed (river - sea) navigation vessels registered in the Russian International Register of Vessels
With persons sent by the bodies of the employment service to work of a temporary nature and public works	With persons entering a part-time job
With citizens sent for alternative civilian service	With an employee involved in the implementation of the regional program to increase the mobility of labor resources (Art. 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 the period of temporary transfer (Article 348.4 of the Labor Code of the Russian Federation)
In other cases provided for by federal laws

When is it legal to conclude a fixed-term employment contract?

The legitimacy of the dismissal in connection with the expiration of its validity period depends on how legitimate (that is, in accordance with the law) the conclusion of a fixed-term employment contract. Failure to comply with the established procedure will result in the recognition of a fixed-term contract as open-ended and, accordingly, the reinstatement of the employee. And here problems can 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. Most importantly, as already noted, the grounds for concluding a fixed-term employment contract must be established by the Labor Code or other federal laws. And they must be correctly applied, and this is where employers often face difficulties. For example, they confuse temporary work with seasonal work 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 accepted.

It is also unlawful to conclude a fixed-term employment contract when an employee is hired “for the duration of the performance of the duties of an absentee”, 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 valid only if the contract is concluded on the basis of the voluntary consent of the employee and employer. Here we note that employers often violate this condition when applying for a job, in particular, pensioners, concluding a fixed-term contract almost without fail.

Often, employers, in order not to conclude a contract for an indefinite period, conclude several fixed-term employment contracts with one person and for the performance of one job. On this occasion, the Supreme Court noted that when establishing during the trial the fact of the repeated 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 February 20, 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 unlawful is non-compliance with its form and content requirements.

note

The 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, part 2, 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 accurately and in advance established by the parties. If it is impossible to determine the period, then by virtue of Art. 79 of the Labor Code of the Russian Federation indicates a period of time - for example, in cases of performing certain work, the 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 a different 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 us name the main signs that a fixed-term employment contract is concluded legally.

A fixed-term employment contract is legally concluded if ...		... concluded in writing for a period of not more than five years and it indicates the period of validity and the circumstances (reasons) that served as the basis for its conclusion for this period
		... the grounds for his conclusion are established by the Labor Code or other federal laws
		... work on it is obviously 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 employer

When concluding such an agreement, remember that it is prohibited to conclude agreements of this type in order to avoid granting the 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 terminating a fixed-term contract

By virtue of Art. 79 of the Labor Code of the Russian Federation, a fixed-term employment contract terminates with the expiration of its validity. 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 performance of the duties of an absent employee, - terminates with the release 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 about the termination of the employment contract due to its expiration at least three calendar days before the dismissal, except for cases when the term of the fixed-term employment contract concluded for the period of performance of the duties of the absent employee expires.

Of course, a fixed-term contract can also be terminated ahead of schedule in the cases established by the Labor Code of the Russian Federation, but we will consider the termination of labor relations due to the expiration of the contract.

The dismissal of an employee is unlawful

The dismissal of an employee due to the expiration of the employment contract is illegal, as already noted, if the contract was concluded illegally, 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 the conclusion of the contract by agreement of the parties in accordance with Part. 2 Article. 59 of the Labor Code of the Russian Federation and was able to prove it.

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

If the court establishes that the fixed-term employment contract was concluded unlawfully, it can be re-qualified as 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 order for employment against signature, in which there was a note about the urgent nature of the employment contract Appeal ruling of the Sakhalin Regional Court dated March 3, 2016 in case No. 33‑540/2016).

The dismissal is not always recognized as illegal even if there are no circumstances (reasons) in the fixed-term contract that served as the basis for its conclusion. Thus, dismissal was recognized as legal in the case when the circumstances of concluding a fixed-term employment contract were not indicated in it, but in fact existed and were provided for by the Labor Code (see the Appeal ruling of the Supreme Court of the Republic of Karelia dated 01.09.2015 in case No. 33-3390 / 2015).

But if its term is not indicated in the fixed-term employment contract, such a dismissal will be recognized as unlawful (Determination of the Moscow City Court of December 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 for the duration 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 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 of article 261 of the Labor Code of the Russian Federation).

With regard to the employer's failure to comply 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 recognizing the dismissal as illegal (see the Appeal ruling of the Irkutsk Regional Court dated January 23, 2013 in case No.   33-450 / 13). In others, that the will of the parties to terminate the employment relationship must be supported by evidence, one of which may be a notice to the employee of dismissal in accordance with Part 1 of Art. 79 of the Labor Code of the Russian Federation. Moreover, the dismissal will certainly 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 dismissal order. Non-compliance by the employer 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 Appeal ruling of the Krasnodar Regional Court dated May 17, 2012 in case No. 33-7701 / 2012).

In any case, if the contract is concluded for the duration of the performance of the duties of the absent employee, it is not necessary to warn about the termination of the contract.

Thus, it is possible to 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 the order with the specified contract validity period)
	...the contract does not specify the duration of its validity
	... the contract does not indicate the circumstances that served as the basis for its conclusion (an exception is when these circumstances are not in doubt, for example, if the employee is a pensioner)
	... a fixed-term contract was entered into under duress
	... the employee was dismissed before the occurrence of an event that determines the expiration date of the employment contract
	... a pregnant woman is fired, and she wrote an application for an extension of the contract
	... a pregnant employee, with whom the contract was concluded for the duration of the duties of an absent employee, was not offered a transfer to another position

We talked about what to look for when concluding a fixed-term employment contract, about what causes such a contract to be recognized as indefinite, as well as about the most common cases when the dismissal of a "conscript" may be considered illegal. In this situation, the employer will not only have to reclassify the employment contract into an open-ended one and reinstate the employee, but also pay him the average salary for the time of forced absenteeism, compensation for legal costs and non-pecuniary damage. We hope that you will take into account all of the above when concluding fixed-term employment contracts. Most importantly, apply only the grounds provided for by law. And of course, the agreement of the parties on the establishment of a period in accordance with Part 2 of Art. 59 of the Labor Code of the Russian Federation can only be voluntary.

In the practice of working with hired personnel, situations sometimes arise when the work of employees is needed not on an ongoing basis, but for some time. In this case, it is worth concluding a fixed-term employment contract with such employees. Unlike ordinary (termless), such contractual relations cannot last longer than the time specified by law.

Fixed-term contracts have their own nuances of conclusion, which should be observed by both parties in order to avoid misunderstandings, which will then have to be resolved in court. Let us analyze the grounds for formalizing such labor relations, their legal foundation, as well as the main points that employees and employers need to take into account.

Legislative justification for fixed-term contracts

The word "urgent" in the definition of this type of contract does not mean any additional speed of its execution, it does not come from "urgency", but from "term". This is how it is declared different from contracts that are concluded for an indefinite period.

In the usual form of employment contractual relations, the date of commencement of work is precisely known, and the time of separation and the reasons for dismissal cannot yet be determined.
But when the last condition is known to both parties, that is, both the employee and the employer know when they will terminate their cooperation agreement, it is advisable to formalize the relationship with a predetermined period - fixed-term employment contract.

The Labor Code of the Russian Federation calls an employment contract mandatory when formalizing the relationship "employee-employee" (Article 56 of the Labor Code of the Russian Federation), and the term is its essential condition. The options when an employer gives an employee temporary employment are defined in Art. 59 of the Labor Code of the Russian Federation. Their determining factor is an important circumstance: a fixed-term employment contract is lawful only when, for objective reasons, it is impossible to conclude an indefinite one.

NOTE! To conclude such an agreement, the will of the employer and even the consent of the employee is not enough; its execution must comply with the grounds given in the legislation. Otherwise, if you have to deal with the court, a fixed-term contract concluded on an illegitimate basis will be recognized as open-ended.

Attractiveness of fixed-term employment contracts

The party that benefits the most from a fixed-term rather than an open-ended contract is the employer. The reasons are obvious:

• a temporary employee is more manageable;
• "conscript" is easier to motivate, since the extension of cooperation with him directly depends on the leadership;
• much easier to carry out the dismissal procedure;
• the employee dismissed at the end of the term cannot challenge such dismissal;
• in this way, you can get rid of any categories of employees, even the most socially protected.

For workers, as a rule, permanent employment is preferable, providing certain guarantees and confidence in their future. Domestic legislation and the International Labor Convention (ILO) adhere to the same position, seeking to minimize the number of workers employed on a temporary basis.

Features of a fixed-term employment contract

The determining factor in the choice in favor of the urgency of contractual relations is an important circumstance: a fixed-term employment contract is lawful only when, for objective reasons, it is impossible to conclude an open-ended one.

The reason for this must be indicated in the text of the contract.

The term of such an agreement cannot exceed 5 years. If the document does not specify specific terms or an event that terminates the contractual relationship, it will automatically be considered a contract with an indefinite period. Similarly, if more than five years is indicated.

Termination of a fixed-term contract must be indicated in the text. This is possible in two ways:

• specifying a specific date when the contract will be terminated;
• designation of the event, the occurrence of which terminates the fixed-term contract.

The onset of the final date does not mean an immediate cessation of work: the employee must be warned in writing about the upcoming dismissal in accordance with its expiration 3 days in advance. If this is not done, the dismissal can be challenged.

In the second case, advance notification is impossible, since the event that has occurred automatically terminates the fixed-term contract, as provided for by its terms. Most often, such an event is the entry to work of the main employee, instead of whom a temporary one was employed.

With whom you can conclude fixed-term employment contracts

Employers form such relationships with those employees whose nature of work does not make it possible to determine the duration of the working relationship, or, conversely, quite clearly marks their end. Such categories of personnel include, for example, the following:

• seasonal workers;
• employees hired to perform a specific type of work by a specific date;
• employees who were sent to work abroad or to another branch of the organization;
• specialists hired from outside to perform work not provided for by the main activity of the organization;
• teachers who can work in the relevant position only for the duration of the competition;
• replacing an employee on long-term sick leave or maternity leave, etc.

Transfer to a fixed-term employment contract from an indefinite

As a rule, employees work on an indefinite contract. However, sometimes there is a need to transfer to a fixed-term contract. This can be done, but the procedure must comply with all the rules.

Reasons for transferring to a fixed-term employment contract

It is possible to transfer an employee to a fixed-term contract only if there are sufficient grounds for this. If there are no such grounds, the agreement will be considered indefinite. The employer cannot draw up fixed-term agreements with the aim of deviating from providing employees with rights and guarantees. Consider the reasons why the employer transfers:

• An employee is assigned to the place of a temporarily absent employee. The latter retains the place of work.
• The employee is sent to work abroad temporarily.
• The work is connected with the temporary expansion of production.
• The employee has a disability.

That is, the transfer to a fixed-term contract is relevant for those cases when the status of an employee changes. For example, he had health restrictions.

Is it legal to transfer to a fixed-term contract?

The issue of the legality of transferring an employee to a fixed-term agreement is extremely controversial. If the employer initially issued the employee under an open-ended contract, he must ensure that the terms of this agreement are met. That is, the worker receives the right to work for an unlimited time.

The contract can only be based on the points established by the Labor Code of the Russian Federation.

For this reason, the transfer of an employee from an indefinite to a fixed-term contract is not legal. The employer cannot, for the purpose of transferring, simply enter into an additional agreement. The employee, if desired, can easily challenge this document.

Another significant mistake is the execution of a new agreement at a time when the previous agreement continues to operate. According to the law, if two documents are valid for an employee, the act with the most favorable conditions will be valid. In this case, the most advantageous would be an open-ended contract, as it provides a larger list of rights.

IMPORTANT! Many employers believe that entering into a new agreement automatically cancels the old agreement. However, this is a wrong position. In order for only one act to be valid, the old act must be legally repealed.

How to legally transfer a person to a fixed-term contract?

The only legal way to transfer an employee to a fixed-term contract is to terminate the previous agreement and draw up a new one. However, you need to take into account all the disadvantages of this path:

• The need to pay compensation for vacation that was not used.
• The accrual of seniority for registration of leave begins anew. In order for an employee to be able to legally go on vacation, he needs to work for 6 months. For example, an employee under the first termless contract worked for 5 months. That is, after a month he can go on vacation. However, if the previous agreement is terminated, another contract is drawn up, the vacation will be legal only after 6 months.
• You will have to draw up cadastral documentation for the employee as newly hired.

The legislation does not provide for a simplified procedure for dismissing an employee and hiring him again. These difficulties are related to preventing abuse.

The procedure for drawing up a new employment contract

Consider the legal procedure for transferring an employee to a fixed-term contract by drawing up a new agreement:

1. The employer conducts a conversation with the employee and offers him new working conditions. Explains the translation scheme.
2. The employee leaves of his own free will or by agreement of the parties.
3. A new employment contract with a limited duration is immediately drawn up. The manager issues an order to hire a person.
4. Relevant information is entered in the work book.

This method of translation is more complicated, but it is legal.

Legitimate reasons for urgency

The law provides for two legitimate reasons for concluding a fixed-term rather than an open-ended employment contract:

1. Relationships are concluded strictly for a certain period, based on the nature of the upcoming work and related circumstances.
2. The urgency of labor relations is determined by the agreement of the parties in cases where this does not contradict the current legislation.

The labor legislation of the Russian Federation (part 1 of article 59 of the Labor Code of the Russian Federation) allows to conclude fixed-term contracts arising from the nature of the work, in the following circumstances:

• for a time when, for objective reasons, there is no full-time employee at his workplace, the workplace for which must be retained by law;
• the upcoming work will not take more than 2 months;
• to ensure seasonal work;
• with foreign forms of work;
• performance of actions necessary for the company, but not related to its main activity (for example, installation work, repair, reconstruction, etc.);
• works associated with a limited (usually up to a year) time, such as expanding activities, increasing capacity, volumes, etc.;
• the company is specially created for a short existence, providing for a limited time to perform a specific job;
• work related to vocational training, internships for employees;
• election for a certain period to a working elected body;
• referral to public works;
• additional cases provided for by the Federal legislation (existing and possible to be adopted in the future).

Fixed-term employment contract on agreement of the parties can be concluded only on a limited list of grounds:

• the employer is a representative of a small business;
• the worker is a pensioner;
• a medical employee is allowed only temporary employment;
• work in the Far North and other equivalent territories;
• when elected by competition to fill a vacant position;
• urgent work aimed at preventing and/or eliminating the consequences of emergency situations;
• with management, deputies and chief accountants of organizations;
• with creative workers (in accordance with the list of similar positions);
• with pupils or full-time students;
• with partners;
• with those working on watercraft registered in the Russian International Register of Vessels;
• other grounds corresponding to federal laws (current and future).

Employer, remember:

• it is impossible to conclude a fixed-term employment contract on grounds not specified in Art. 59 of the Labor Code of the Russian Federation;
• when dismissing an employee after the expiration of a fixed-term contract, do not forget to notify him in writing 3 days in advance;
• did not warn about the dismissal - the contract will become indefinite.

Worker, take note:

• when applying for an urgent (temporary) job, pay attention to the condition of the end of work (a specific date or event);
• if it is provided for by law, you can demand an extension of a fixed-term contract (for example, during pregnancy);
• if your rights as a “conscript” are violated, the court will reinstate you at work, force the employer to pay, and possibly moral damages.

One of the mandatory conditions of the employment contract is its term. Article 58 of the Labor Code of the Russian Federation provides that employment contracts can be concluded for an indefinite period (unlimited employment contract) and for a fixed period of not more than five years (fixed-term employment contract). Fixed-term employment contracts can be concluded only in cases specified by law. Often, the employer sets the term of the contract without sufficient grounds, which is a violation of labor laws. In this article, we will consider basic rules for concluding a fixed-term employment contract, compliance with which will avoid labor conflicts and nit-picking by regulatory authorities.

In accordance with Art. 58 of the Labor Code of the Russian Federation, a fixed-term employment contract is concluded when labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation, namely (part 1 of article 59 of the Labor Code of the Russian Federation):
- for the duration of the performance of the duties of an absent employee, for whom, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, the place of work is retained;
– for the duration of temporary (up to two months) works;
- to perform seasonal work, when, due to natural conditions, work can only be done during a certain period (season);
- with persons sent to work abroad;
- for work that goes beyond the normal 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 entering work in organizations created for a predetermined period or to perform a predetermined job;
- with persons hired to perform a deliberately defined work in cases where its completion cannot be determined by a specific date;
- to perform work directly related to the internship and vocational training of the employee;
- in case of election for a certain period to an elected body or to an elective position for a paid job, as well as employment related to the direct support of the activities of members of elected bodies or officials in public authorities and local governments, in political parties and other public associations;
- with persons sent by the bodies of the employment service to work of a temporary nature and public works;
- with citizens sent for alternative civilian service;
Part 2 Art. 59 of the Labor Code of the Russian Federation establishes cases when the conclusion of an employment contract for a certain period is possible by agreement of the parties without taking into account the nature of the work to be done and the conditions for its implementation:
- with persons entering work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the field of retail trade and consumer services - 20 people);
- with pensioners entering work by age, as well as with persons who, for health reasons, in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation, are allowed to work exclusively of a temporary nature;
- with persons entering work in organizations located in the regions of the Far North and areas equivalent to them, if this is associated with moving to the place of work;
- to carry out urgent work to prevent catastrophes, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;
- with persons elected on the basis of a competition to fill the relevant position, held in accordance with the procedure established by labor legislation and other regulatory legal acts containing labor law norms;
- with creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these workers, approved by the Government RF, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations;
- with heads, deputy heads and chief accountants of organizations, regardless of their organizational and legal form and form of ownership;
- with persons studying full-time;
- with persons entering a part-time job;
- in other cases provided for by the Labor Code of the Russian Federation or other federal laws.
Rostrud in Letter No. 6963-TZ dated December 18, 2008 emphasizes that the list of grounds for concluding a fixed-term employment contract with an employee, provided for in Art. 59 of the Labor Code of the Russian Federation, is exhaustive.

Conclusion of a fixed-term employment contract

When concluding a fixed-term employment contract, it is necessary to follow the rules established by Ch. 11 of the Labor Code of the Russian Federation. In addition, the requirement of par. 3 hours 2 tbsp. 57 of the Labor Code of the Russian Federation: when a fixed-term employment contract is concluded, its validity period and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with the Labor Code of the Russian Federation or other federal law are necessarily fixed in the contract. Moreover, these circumstances must be justified, because in the absence of sufficient grounds for concluding an employment contract for a fixed period, this contract, in the event of a labor dispute, will be recognized as concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation).

Note! An entry in the work book about the admission of an employee under a fixed-term contract is made WITHOUT indicating that the employee was hired for a certain period.

As a rule, when formulating a condition on the term of an employment contract, it is advisable to indicate not only the term of the contract, but also the date of its expiration, since in the future this will help to avoid disputes when terminating the contract due to the end of its term. However, situations are possible when it is almost impossible to determine the start and end dates of work, and the very duration of the contract. For example, when concluding an employment contract in connection with the employee's going on maternity leave or parental leave, the exact end date of the work for which the employee is hired is unknown. In this case, the end of the term of the employment contract will be associated with a certain event - the employee's exit from vacation. For such cases, the Plenum of the Armed Forces of the Russian Federation in Resolution No. 2 of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution No. 2) clarifies: if a fixed-term employment contract was concluded to perform certain work in cases where it completion cannot be determined by a specific date (paragraph 8 of part 1 of article 59 of the Labor Code of the Russian Federation), the contract by virtue of part 2 of art. 79 of the Labor Code of the Russian Federation terminates upon completion of this work.
Therefore, when concluding a fixed-term employment contract for the duration of the performance of the duties of an absent employee, the wording of the reasons may be as follows: “This contract is concluded for the duration of O. P. Zakharova’s leave to care for a child under the age of three.”
Part 2 of clause 14 of Resolution No. 2 can also help determine the term of an employment contract: when concluding a fixed-term employment contract with persons entering work in organizations created for a known period of time or to perform a known work (paragraph 7, part 1 article 59 of the Labor Code of the Russian Federation), the term of the employment contract depends on the period for which such an organization was created.

Note! You should not conclude a fixed-term employment contract just to have an additional basis for terminating the employment contract. In the event of a court proceeding and establishing in the course of it the fact of the repeated 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.

In case of re-qualification of a fixed-term employment contract, the rules established for a contract concluded for an indefinite period will apply to it. Therefore, we recommend that you pay attention to the following points when concluding a contract.
1. For the duration of seasonal work:
- the probationary period can be no more than two weeks (Article 70 of the Labor Code of the Russian Federation);
- for each month worked, the employee is entitled to two working days of vacation (Article 295 of the Labor Code of the Russian Federation);
- the seasonality condition must be indicated in the contract (Article 294 of the Labor Code of the Russian Federation).
2. For the duration of temporary work (up to two months):
- a probationary period is not established (Article 289 of the Labor Code of the Russian Federation);
- paid holidays are provided or compensation is paid upon dismissal at the rate of two working days per month of work (Article 291 of the Labor Code of the Russian Federation).
3. The term of an employment contract with persons entering work in organizations created for a known period or to perform a known job depends on the period for which such an organization was created.
4. If an employee is elected to an elective position:
- the term of the employment contract cannot be less than the term for which the employee is elected;
- employees directly supporting the activities of members of elected bodies or officials in state authorities and local self-government bodies cannot be hired for a period longer than the term of election.
Very often, the employer makes a mistake by concluding only fixed-term employment contracts with old-age pensioners. But Art. 59 of the Labor Code of the Russian Federation only allows, and does not oblige, to conclude such employment contracts with pensioners and persons who, in accordance with a medical report, for health reasons, are allowed to work on a temporary basis. In any of these cases, a fixed-term employment contract can be concluded only by agreement of the parties. The retirement age of a citizen as such is not a basis for concluding this employment contract with him, and the Ruling of the Constitutional Court of the Russian Federation dated May 15, 2007 No. 378-O-P confirms this.
In relation to those pensioners who did not quit and continued to work, the employer does not have the right to reissue an open-ended employment contract for a fixed-term one in connection with the achievement of retirement age by employees and the appointment of a pension (as well as terminate such an agreement). These pensioners can continue their labor activity on the terms of a contract concluded for an indefinite period.

Termination of a fixed-term contract

Article 79 of the Labor Code of the Russian Federation regulates the procedure for terminating a fixed-term employment contract and establishes, in particular, that it terminates upon expiration. The employee must be notified in writing about the termination of the employment contract due to the expiration of the term at least three calendar days before the dismissal, except for cases when the term of the fixed-term employment contract concluded for the period of performance of the duties of the absent employee expires.
The contract concluded for the period of performance of certain work terminates upon completion of this work; for a certain period, - if this organization really ceases to operate due to the expiration of the period for which it was created, or in connection with the achievement of the purpose for which it was created (clause 14 of Resolution No. 2).
Particular attention should be paid to the termination of a fixed-term employment contract during a woman's pregnancy. Article 261 of the Labor Code of the Russian Federation obliges the employer, upon her written application and upon presentation of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract until the end of the pregnancy. This is done by concluding an additional agreement to the employment contract, in which the condition on the term of its validity is changed.
A woman whose employment contract has been extended until the end of pregnancy is obliged, at the request of the employer, but not more than once every three months, to provide a medical certificate confirming the state of pregnancy. If at the same time the woman actually continues to work after the end of pregnancy, then the employer has the right to terminate the employment contract with her due to its expiration within a week from the day when the employer found out or should have found out about the fact of the end of pregnancy.
However, labor legislation makes it possible to dismiss a pregnant woman due to the expiration of the employment contract, if the employment contract was concluded for the duration of the duties of the absent employee and it is impossible to transfer the woman, with her consent, to another job that she can perform taking into account her state of health. In this case, the following rules must be observed:
- a woman should be offered not only a job or a vacant position corresponding to her qualifications, but also a lower position or a lower-paid job;
- all available vacancies that meet the requirements of the state of health must be offered;
- vacancies and jobs available to the employer in the area must be offered; vacancies and jobs available in another locality must be offered in cases where this is provided for by the collective agreement, agreements or labor contract.
If a woman agrees to a transfer by concluding an additional agreement to the employment contract, some conditions change, for example, place of work, position or term of the employment contract.

Note! If none of the parties demanded the termination of a fixed-term employment contract due to the expiration of the validity period and the employee continues to work after the expiration of the employment contract, the urgent condition becomes invalid and the employment contract is considered concluded for an indefinite period based on Part 4 of Art. 58 of the Labor Code of the Russian Federation. At the same time, Rostrud in Letter No. 1904-6-1 dated November 20, 2006 recommends amending the employment contract by concluding an additional agreement.

It is important to notify the employee in writing when terminating a fixed-term employment contract. We repeat: according to the norms of Art. 79 of the Labor Code of the Russian Federation, the employer is obliged to do this at least three calendar days before the dismissal. The form of the warning is not established by law - it can be either a written notice or an order to terminate the employment contract indicating a specific date. We still recommend that you first notify the employee, and only then issue a dismissal order, since situations may arise when you have to cancel such an order (for example, if a woman submits a certificate of pregnancy).

Here is an example of a written notice.

Open Joint Stock Company "Sokol"

Dear Anna Viktorovna!

We hereby inform you that on June 19, 2009, the term of the employment contract dated April 19, 2009 No. 45 expires. The employment contract will be terminated in accordance with clause 2, part 1, art. 77 of the Labor Code of the Russian Federation.

Director Zorin /P. D. Zorin/

Acquainted 15.06.2009 by Samoylenko

We believe that in cases where the notice of dismissal is made in less than three days or not at all, the employee can challenge the dismissal order. The court, taking into account the requirements of the employee, can either reinstate him at work or change the date of dismissal.
A warning about the dismissal of an employee, accepted for the duration of the duties of an absent employee, is not provided for by labor legislation.
Very often the question arises: is it possible to terminate an employment contract due to the expiration of its term, when the employee is on sick leave? We believe yes. If the term of the contract ends and the employer no longer wishes to continue the employment relationship, the contract must be terminated - of course, with prior notification of the employee about this. The fact that the employee is on sick leave does not matter in this case. At the same time, by virtue of Art. 183 of the Labor Code of the Russian Federation, a sheet of temporary disability is payable. This is also stated in paragraph 2 of Art. 5 of the Federal Law of December 29, 2006 No. 255-FZ "On the provision of benefits for temporary disability, pregnancy and childbirth of citizens subject to compulsory social insurance."

Early termination of a fixed-term employment contract

Early termination of a fixed-term employment contract is possible on the general grounds established by Art. 77 of the Labor Code of the Russian Federation:
- (Article 78 of the Labor Code of the Russian Federation);
- (Article 80 of the Labor Code of the Russian Federation);
- (Article 81 of the Labor Code of the Russian Federation).
As a rule, in case of early termination of a fixed-term employment contract, the general rules established for terminating an open-ended employment contract apply.
In case of early termination of the employment contract at the initiative of the employee, he is obliged to notify the employer about this at least 14 calendar days in advance. However, there are exceptions to this rule - for example, Art. 292 of the Labor Code of the Russian Federation obliges an employee who has concluded an employment contract for a period of up to two months to notify the employer of his desire to terminate the employment contract at least three days in advance. For the same period, a seasonal worker must notify the employer (Article 296 of the Labor Code of the Russian Federation).
The head of the organization by virtue of Art. 280 of the Labor Code of the Russian Federation is obliged to notify the employer (property owner) of his desire to terminate the employment contract ahead of schedule in writing at least one month in advance. An athlete or coach must also notify the employer of their desire to quit a month in advance (Article 348.12 of the Labor Code of the Russian Federation) - except when the employment contract is concluded for a period of less than four months.
If the employment contract is terminated early at the initiative of the employer, in particular in connection with the liquidation of the organization, the reduction in the number or staff of the organization's employees, employees must be notified within the following terms:
- employees who have concluded an employment contract for a period of up to two months - at least three calendar days in advance (Article 292 of the Labor Code of the Russian Federation), while severance pay is not paid to such employees, unless otherwise established by a collective or labor agreement;
- seasonal workers - at least seven calendar days in advance (part 2 of article 296 of the Labor Code of the Russian Federation), while severance pay must be paid in the amount of two weeks of average earnings.

Outcome

When choosing the type of employment contract, the employer must be very careful, because one of the first places in terms of the number of violations is occupied by the unreasonable conclusion of fixed-term employment contracts. If, when resolving a dispute on the legality of concluding a fixed-term employment contract, it is established that the employee’s consent was forced, the court will apply the rules of the contract concluded for an indefinite period (clause 13 of Resolution No. 2). The court also reclassifies a fixed-term employment contract into an open-ended one if there are sufficient grounds for this. Let's single out the main reasons for the retraining of an employment contract:
- a fixed-term employment contract was concluded without legal grounds, that is, for a reason not provided for in Art. 59 of the Labor Code of the Russian Federation;
- the term of the contract was not specified, that is, there is no reference to the event in connection with which the contract is terminated, or the date of termination of the employment relationship is not indicated;
- when concluding a fixed-term contract, the employer wanted to avoid granting the rights and guarantees due to employees working under open-ended employment contracts.
In order to avoid problems with regulatory authorities and conflicts with employees, it is still necessary to comply with the requirements of labor legislation regarding the conclusion and termination of a fixed-term employment contract.

An example of the text of a fixed-term employment contract		64 KB	Download