Temporary or fixed-term employment contract as correct. When is a fixed-term contract required?

A fixed-term employment contract is concluded with an employee in the event that the nature of the proposed work or the conditions for its performance do not allow concluding a contract for an indefinite period. In other words, :

• or under circumstances in which it is impossible to conclude an open-ended employment contract. For example, in the case of hiring an employee who retains his place of work. Let's say for a period;
• or , but subject to certain conditions. For example, small businesses with no more than 35 employees (in the general case) are entitled to hire workers under fixed-term employment contracts.

Employment under a fixed-term employment contract

The conclusion of a fixed-term employment contract has its own. It must be written in it. As a rule, it cannot exceed 5 years. If the term is not specified in the contract, then the contract is considered concluded for an indefinite period. By the way, in some cases, a fixed-term employment contract.

The "conscript" worker can be installed. However, if the contract is concluded for a period:

• from 2 to 6 months, then the test cannot last more than 2 weeks;
• up to 2 months, then a trial period cannot be established at all.

Based on the order for hiring an employee, it must be done. Including in the case when a fixed-term employment contract is concluded with the employee. But information about the term of the contract in the work book is not indicated.

Such an agreement is concluded for no more than five years, unless otherwise provided by the Labor Code or other federal laws. Please note: if the employment contract does not specify the term of its validity, it is considered concluded for an indefinite period.

Conclusion of a Fixed-Term Employment Contract, sample download

The article deals with the issues of correct acceptance and execution of a fixed-term employment contract. Below are the questions and answers.

1) Is it possible hire employees for a fixed-term contract, and after the expiration of its term, if the employees prove themselves, take them to a permanent job, i.e. an employment contract for an indefinite period?

2) Is it possible for this period, do not enter them into the state, and enter only after the expiration of these months?

3) Do I need to make an entry in the work book if the employee works under a fixed-term employment contract for 3 months?

1. The conclusion of a fixed-term employment contract can take place only in the cases provided for. The possibility of its conclusion in other cases does not depend on the will of the parties in the employment contract, since this limits the rights of the employee.

For example, if you have an existing position, then you cannot accept a fixed-term contract. Then you need to conclude a contract for certain types of work for a certain period.

If there is no such position, then such a position is introduced by order.

It should be noted that since it provides a right, not a duty the employer to conclude a fixed-term employment contract in the cases provided for by this provision, the employer can exercise this right, provided compliance with the general rules for concluding a fixed-term employment contract established.

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Employment contract, indication of urgency

The employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. One copy of the employment contract is transferred to the employee, the other is kept by the employer (Article 67 of the Labor Code of the Russian Federation)

Specify the location of the document. The place of compilation or publication is indicated taking into account the accepted administrative-territorial division, it includes only generally accepted abbreviations (GOST R 6.30-2003)

If the employer allowed the employee to work without drawing up an employment contract, then the contract must be concluded no later than three working days from the date the person was actually admitted to work (Article 67 of the Labor Code of the Russian Federation).

The position of the employee is indicated in accordance with the staffing table (Article 57 of the Labor Code of the Russian Federation). The employee’s place of work is also indicated (Article 57 of the Labor Code of the Russian Federation), working conditions at the workplace: optimal, permissible, harmful, dangerous - in accordance with the results of a special assessment of working conditions (Part 2 of Article 57 of the Labor Code of the Russian Federation), the period for which an agreement was concluded, and the reason for setting the deadline (seasonal work, temporary absence of the main employee) (Article 57 of the Labor Code of the Russian Federation), the day from which the employee must start work. If the date of commencement of work is not specified in the employment contract, then the employee is obliged to start work the next day after the conclusion of the contract (Article 61 of the Labor Code of the Russian Federation)

Download a fragment of a fixed-term employment contract(.doc 36Kb)

At the same time, if there is a dispute in court by virtue of duty to prove the presence of circumstances that make it impossible to conclude an employment contract with an employee for an indefinite period, assigned to the employer. If the employer fails to prove such circumstances, it should be assumed that the employment contract with the employee is concluded for an indefinite period.

Because, if the work itself is indefinite and is for the organization one of the permanent activities - then it is illegal to set the term of an employment contract.

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Download a sample fixed-term employment contract(.doc 52Kb)

3. It is necessary to make an entry in the work book if the employee is in the state.

The urgent nature of the employment relationship (for any of the above reasons) does not in any way affect the procedure for filling out the employee's work book. So, it should not indicate that the contract is concluded for a certain period. After all, this is not provided for either by the Labor Code, or by the Instructions for filling out work books (approved by the Decree of the Ministry of Labor of Russia dated 10.10.03 No. 69), or by the Rules for maintaining and storing work books, preparing forms of a work book and providing employers with them (approved by a decree of the Government of the Russian Federation dated 16.04.03 No. 225) .

If the employer enters into the work book data on the period for which the employment contract is drawn up, then this will be a violation of the procedure for maintaining work books, and may entail administrative liability for.

. Employment history

The work book of the established form is the main document on the work activity and work experience of the employee.
......
Employer (except for employers - individuals who are not individual entrepreneurs) maintains work books for each employee who has worked for him for more than five days, in the case when the work for this employer is the main one for the employee.
......

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Features of registration of personnel documents when concluding a fixed-term employment contract with an employee

You can also do the same when registering an employee for the performance of a specific job, the deadline for which cannot be set in advance. Then it is written in the contract that its validity expires upon completion of the work for which the employee was hired. If the contract with the employee is concluded for the period of seasonal work, then you can indicate that it is valid until the end of the season.

Is there a minimum term? Can we, for example, conclude an employment contract for a period of seven days?

Yes, you can. There is no minimum term for such contracts. True, according to Article 79 of the Labor Code of the Russian Federation, the company is obliged to notify the employee about this three days before the expiration of the employment contract. It turns out that in order to comply with this requirement, the term of the employment contract cannot be less than four days.

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Termination of a fixed-term contract, Extension, Application, Dismissal.

One of the employees has a fixed-term employment contract, which is not planned to be renewed. The contract ends February 28. Should an employee write a letter of resignation from this date?

Such an application is not required. The expiration of the term of the employment contract is in itself a sufficient reason for its termination. The end date of the employment contract in your case will be February 28, the same day is considered the day the employee was fired. That's why a dismissal order must be issued no later than this date. And given that this day falls on a weekend, the order must be issued no later than February 25.

At the same time, it should notify the employee of the dismissal in writing No less than three calendar days until the termination of the contract (). If after the expiration of the contract employment relationship continues, and none of the parties demanded their termination, then the conditions on the duration of the contract become invalid. In this case, it will become an employment contract concluded for an indefinite period. Then it will be possible to terminate the contract with the employee only on a general basis ().

Compile personnel documents in the web service using ready-made templates for free

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In what cases it is really possible to conclude a fixed-term employment contract

As a rule, when hiring employees, the company draws up termless employment contracts with them. But there is an opportunity to conclude an agreement until a certain date. True, it is not always possible to issue it on your own initiative.

Firstly, there are a number of cases in which the company is simply obliged to conclude fixed-term employment contracts. For example, when employees are hired for temporary or seasonal jobs. This also includes the execution of contracts with those who are temporarily transferred to another job. In addition, a fixed-term employment contract is drawn up with employees who will work abroad, and with those who are accepted for a specific job. If employees are registered in a company created for a certain time, then only fixed-term contracts are also concluded with them. A complete list of situations in which an organization is required to conclude a fixed-term contract is given in.

Secondly, a fixed-term employment contract can be drawn up by agreement of the parties. But again, not in all cases, but only in those provided for by labor legislation. This is possible, for example, if an employee is hired by a small business with up to 35 employees. If we are talking about retail trade or consumer services, then their number should not exceed 20 people. It is also possible to conclude a fixed-term contract by agreement of the parties with a pensioner, a full-time student, a part-time worker, an employee of a creative profession, those who have restrictions on work for medical reasons. A complete list of situations in which the company has the opportunity to conclude a fixed-term contract by agreement of the parties is given in the same article 59 of the Labor Code of the Russian Federation.

As you can see, in order to draw up an employment contract for a specific period, the desire of the company alone is not enough.

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It is better to notify the employee in advance about the expiration of the contract

To prevent this from happening, it is important for the company to warn the employee about the termination of the employment contract in advance. Ideally, if such a warning is received at least three days before the expiration of the contract. Moreover, an application from the employee to terminate such an agreement is not necessary.

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It is not possible to extend the fixed-term contract for another term

It is not possible to extend a fixed-term employment contract. If the employee is needed by the company even after the expiration of the contract, then he must be fired and rehired under a new fixed-term or indefinite contract.

EXCEPTIONS

There are only two exceptions to this rule.

The first concerns pregnant workers. If the fixed-term contract expires during the woman's pregnancy, then the company, upon her written application, may extend the contract until the birth. This is covered in part 2.

The second applies to employees of the scientific and pedagogical staff who are elected by competition for the position they previously held. (Part 8)

The more fixed-term contracts a company has, the easier it is to miss the deadline for terminating them. The journal of accounting for the end of fixed-term employment contracts will help solve the problem. It will make it possible to unconditionally comply with the requirement. It will be enough to look into the magazine and establish an agreement, which expires in the near future. This is more convenient and visual than each time to raise the originals of the contracts themselves and look for deadlines in them.

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Is it possible to extend a fixed-term employment contract without terminating it when the employee has not completed work yet

First, determine for how long you want to extend the contract with the employee. If you are going to extend the employment relationship for a certain period, you can do this through dismissal and hiring under a new fixed-term contract. This is due to the fact that a fixed-term employment contract is concluded for a certain period, but not more than five years (Articles 58, 59 of the Labor Code). At the same time, the law does not establish the possibility of extending a fixed-term contract. Therefore, the extension of the term of the contract will be the basis for recognizing it as indefinite. The exception is when:

• the term of a fixed-term employment contract expires during the woman's pregnancy. Then the employer, at the written request of the employee, can extend the term of the employment contract until the end of pregnancy (part 2 of article 261 of the Labor Code). In some cases, a fixed-term employment contract with a pregnant employee can be terminated;
• an employee is elected by competition to fill the position of a scientific and pedagogical worker previously occupied by him under a fixed-term employment contract (Article 332 of the Labor Code).

Therefore, in the general case, the organization is not entitled to draw up an additional agreement to a fixed-term employment contract to change its validity for a certain period. The organization can only conclude a new employment contract with an employee after dismissal under the old contract. The legitimacy of this is also confirmed by the Supreme Court in its ruling dated June 27, 2014 No. 41-KG14-10.

If the employer, with the consent of the employee, is going to extend the employment relationship indefinitely, then this can be done without dismissal. To do this, when the fixed-term contract ends, neither party should demand its termination. Then the contract acquires an unlimited character and it can be extended by issuing an additional agreement and an order (Article 58 of the Labor Code, letter of Rostrud dated November 20, 2006 No. 1904-6-1).

An exception to this procedure applies to the heads of organizations for which the term of the employment contract is established by the constituent documents of the organization and the norms of federal legislation (Article 275 of the Labor Code). In any case, they need to be fired and hired for a new term specified in the statutory documents.

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An example of a notice of termination of a fixed-term employment contract

Limited Liability Company
"Your company"

NOTIFICATION

Ivanova Maria Ivanovna,

working as an accountant

On dismissal due to the expiration of a fixed-term employment contract

Dear Maria Ivanovna!

I notify you that on June 4, 2010, the term of the employment contract No. 15-TD of February 4, 2010 expires. The employment contract will be terminated in accordance with paragraph 2 of part 1 of Article 77 of the Labor Code of the Russian Federation.

Please sign for delivery of this notice on the second copy and submit it to the Human Resources Department.

General Director __________________ I. I. Sidorov

Notice of the upcoming dismissal due to the expiration of the employment contract was handed to me.

M.I. Ivanova

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Fixed-term employment contract in the clarifications of the Ministry of Labor

How to draw up a fixed-term employment contract and an order to hire a “temporary” employee? How to transfer the “main” employee to another position if she is on parental leave? Do I need to terminate the fixed-term employment contract with the employee replacing her? The answers to these questions are contained in the letter of the Ministry of Labor dated March 21, 2018 No. 14-2 / ​​B-191.

How to register the reception of a "temporary" worker for the period of maternity leave of the "main"?

One of the situations when it is possible to conclude an employment contract for a certain period is hiring a temporarily absent employee to perform the duties. In this case, the absent employee retains the place of work, but another person can be temporarily taken in his place (part 1 of article 59 of the Labor Code of the Russian Federation). An agreement concluded for the duration of the performance of the duties of an absent employee is terminated with the release of this employee to work (part 3 of article 79 of the Labor Code of the Russian Federation).

When replacing a temporarily absent employee, a fixed-term employment contract should state that it is concluded for the duration of the absence of the main employee (full name). Employment is formalized by an order (instruction) of the employer, issued on the basis of a concluded employment contract (part 1, article 68 of the Labor Code of the Russian Federation). The content of the order (instruction) of the employer must comply with the terms of the concluded employment contract. In the order for employment in the column “by” you can indicate, for example: “until the release of the full name. (main employee) to work.

Fixed-term employment contract when transferring the "main" employee

When the main employee is transferred to another position, the condition on the urgent nature of the work of the replacement employee loses its force (after all, the “main” employee will actually perform labor duties in another position in another structural unit). Accordingly, a fixed-term employment contract can be converted into an open-ended one. How to be in such a situation?

If a transfer agreement is reached with the "essential" worker, he should interrupt the parental leave. At the same time, on the day of his return to work, the fixed-term employment contract with the replacement worker is terminated. Then you need to issue a transfer of the “main” employee. After that, he has the right to resume parental leave, and a new fixed-term employment contract can be concluded with a replacement worker.

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

According to the contract, a person who is hired 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 routine.

The employer, for its 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, in which specific deadlines for work are indicated;
• Indefinite, that is, in such a contract, the terms are not defined.

The STD must necessarily spell out for what reason the contract cannot be extended for an indefinite period. For example, when a person is hired for the period of illness of another employee, or seasonal work. The total term of the STD cannot exceed five years.

If the TD does not specify the time frame for the work, then it will be considered unlimited.

Grounds for concluding STD

These grounds can be divided into two groups:

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

The 1st group includes the following grounds:

1. For the period of absence of the main employee at the workplace, when his salary is kept for him. This may be when the main employee is absent due to illness, is on maternity leave, or on annual paid leave.
2. For the period of temporary work, such an agreement is concluded for a couple of months.
3. , 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, for the heating period and other work related to weather conditions.
4. When a person goes to work, by order of the employment center.
5. If the work goes beyond the scope of the main labor activity, the terms of which are agreed in advance. For example, installation work or the reconstruction of any equipment.
6. An election to a position for an indefinite period, for example, an election to a member of an election commission.
7. If a person goes to work abroad.
8. With persons for civilian alternative service.
9. With a person accepted into a sports organization.

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

By agreement between the two parties to the employment relationship:

1. If a person has completed full-time training.
2. Work for a sole proprietor or in the small business sector.
3. If a person who has reached retirement age gets a job.
4. If a person is hired who is recognized as disabled, but who has the right to light work and his labor functions are determined by the time frame.
5. For employment in places of the Far North and territories equated to it.
6. For work in emergency situations, disasters and elimination of consequences after them.
7. If a person has passed the competition to fill a certain position.
8. Managers, his deputies and chief accountant are accepted with the conclusion of the STD, regardless of the form of ownership of the enterprise.
9. When a person gets a part-time job.
10. When the work is related to navigation.

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

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: a passport, TIN, SNILS, a work book, a document confirming the receipt of any education, if any. Also, an accepted employee can provide documents on his military service and qualifications for his position.

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 according to the model for admission to the appropriate position. The form of such an application in each organization is different. In such a statement, the reason for the temporary nature of the work must be indicated.

The employer must familiarize himself with these documents and decide on hiring a person, inform him about the rules of work and rest at the workplace and directly about what the future employee will do, as well as familiarize him with local acts of remuneration.

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

When compiling this document, you must specify:

• Surname, name, patronymic of the accepted 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 works;
• 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 the position held, as it is indicated in, its nature according to the qualifications held.

An important aspect in concluding such an agreement is the indication of the wage system, bonuses for harmfulness, for working at night, on holidays and weekends.

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

If at the conclusion of the contract any conditions or data about the employee were not entered, this is not considered a 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 on non-disclosure of state secrets, if necessary.

Further, the STD is signed by the two parties to the labor relations and legalized with 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 accepted 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 admission order is issued to the employee in his hands.

Timing 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 has 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 operate in a number of cases:

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

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

Advantages and disadvantages of STD

A STD will be considered legal when it is concluded by mutual agreement of the two parties to the employment relationship. If, having started to fulfill his labor 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 declaring the STD indefinite.

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

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

An important advantage when concluding a STD is a simple execution, and it is also possible not to pay compensation for unused vacation upon dismissal.

The disadvantage is the lack of competence of some employees in the legality of issuing a STD, which is what employers use. Incorrect compilation of the form and content of the STD by the organization entails the illegality of concluding this agreement.

Many directors try to conclude a STD in order to evade the provision of a social guarantee package 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 an employer tries to manipulate an employee and concludes several STDs with one employee to perform the same work. In this case, the court recognizes the fact of the conclusion of the STD for an indefinite period.

The main disadvantage for the employee is the ease 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 the main employees.

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

The main disadvantage for employers is the onset of the employee's pregnancy, as this entails a mandatory extension of the term under the contract with her. Also, the company will need to pay her all compensations established by law. Even if a pregnant employee wrote an application 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 a STD is concluded with him. But when drawing up such a contract, there are many different rules, norms 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 employee who is hired by the head of the enterprise for a certain period is a temporary worker. With such a subordinate, an employment contract is always signed only for a fixed period. This document necessarily prescribes the period of its validity. Otherwise, the contract is considered indefinite, and the temporary employee is a permanent employee. The latter, in turn, is entitled to a monthly salary and compensation for the unused rest period upon dismissal.

What you need to know

Most citizens carry out their official activities at enterprises and institutions of our state. Almost all of them work under an employment contract, which is concluded on However, the situations are different. Sometimes the head of the enterprise is forced to look for a replacement for a permanent employee who has gone on sick leave or is on vacation. In this case, the organization often accepts a temporary worker who performs the duties of an absent subordinate. After the departure of a permanent employee, a person working under a fixed-term contract is subject to dismissal.

Important

The head of the organization should always remember that it is not possible to sign a fixed-term employment contract with all citizens. Article 59 of the Labor Code of the Russian Federation contains a list of persons with whom it is not prohibited to formalize service relations even for a certain period of time. These include the following:

People who are sent to work abroad;

Persons entering to carry out labor activities in organizations created only for a certain period;

Citizens accepted to perform certain work, the end date of which is not known in advance (for example, the construction of a private house);

People who were sent from the labor exchange to public works;

Persons sent to the civil service.

In addition, in cases prescribed by law, it is possible to register an employee for work under a fixed-term employment contract. Article 59 of the Labor Code of the Russian Federation provides for the following of them:

A citizen is taken to the place of a temporarily absent employee;

If you need to perform work, the deadline for which is not more than 2 months;

Implementation of an internship;

To carry out work that goes beyond the scope of the organization's activities (for example, the reconstruction of a building);

For the period of seasonal work (performance of the duties of a cloakroom attendant).

A small characteristic

So, a temporary worker is the person who is hired for a certain position at the enterprise for the period established by the contract. Therefore, such an employee knows in advance that he will not be able to work permanently in this organization. After all, the date of completion of his official duties is fixed in advance in the employment contract.

Reception

Before hiring a new person for a temporary job, the head of the enterprise must make sure that he does not violate the norms of labor legislation by his actions. That is the order. If the latter hires an employee to carry out seasonal work (for example, a gardener for the summer period or a cloakroom attendant at a polyclinic), then he has every right to sign a fixed-term employment contract with him.

In addition, the reception of temporary workers is no different from the employment of those citizens who will serve in the organization on a permanent basis. Indeed, in cases specified by law, employees hired for a certain period must provide the employer with all the necessary documents (for example, a diploma, a certificate of no criminal record, and others).

Nuances

If the head of the enterprise hired an employee for a period of up to two months, then he needs to know about all the existing features of such labor activity. In this case, there should be no trial period. After all, a person is already a temporary worker. The Labor Code of the Russian Federation also warns managers that if such an employee is involved to work on a weekend or holiday, the latter is only entitled to material remuneration for his work. He is not entitled to an additional day of rest.

Completion of work and settlement

In practice, the head of the company often faces a number of difficulties when dismissing a temporary employee. And in most cases, he seriously violates labor laws. After all, not every employer remembers that before dismissing an employee who was hired for a position for a certain period of time, the latter must be notified of this three calendar days before the date of termination of the fixed-term contract.

Therefore, many subordinates often file complaints with the prosecutor's office and the labor inspectorate. To prevent this from happening, the employer must follow the norms of the current law even when dismissing an employee who temporarily performed the duties entrusted to him.

Therefore, on the last day of the employee's labor activity, the personnel specialist must prepare the appropriate order and all other documents related to the work of the latter. In certain cases, the employee immediately asks for a certificate of his latest income. This document is required for registration with the employment service.

On the last day of the work of a subordinate, the employer must pay him in full. This means that the latter must transfer the salary and additional remuneration for the vacation not used by the temporary worker.

Translation

When carrying out official activities, it often happens that one of the employees goes on vacation or sick leave, and another person begins to perform his duties. But in this case, the latter has the right to receive additional income. After all, he will perform not only his duties, but also work for another employee. But how is this done in practice?

The manager can offer the employee a transfer to a temporary position while maintaining his average income or the salary of the employee whose duties he will perform. As a rule, the latter always agrees. The transfer of an employee is formalized by an appropriate order.

Also in this case, it is possible to combine two positions. Then the employee will perform his duties and the absent employee at the same time. This must be confirmed by an order and an additional agreement.

Enrollment in labor

So, as it was already written earlier, a temporary employee is hired only for the period established by the contract. But what will be written in his work book in this case? Here, in fact, everything is quite simple.

First, the head of the enterprise signs an employment contract with the employee, which fixes the date of completion of the latter's official activities. Then the personnel specialist prints the order and makes an entry in the temporary worker's work book. In this case, you can not immediately indicate the duration of the employment contract. Because when dismissing a temporary employee in the work book, it will be necessary to indicate the reason for the termination of the service relationship. In this case, the entry should be as follows: "Fired due to the end of the period of validity of the employment contract" clause of the second part of the first article 77 of the Labor Code of the Russian Federation.

By agreement

Here again it is necessary to point out that when concluding an employment contract with an employee for a certain period of time, the head of the organization must comply with the requirements of the law. Otherwise, it will be impossible for him to avoid problems with the law. If a pensioner wants to get a job, then the boss has the right to offer him. By mutual agreement of the parties, a fixed-term contract can be concluded with full-time students, with part-timers. Most often, the latter do not object to such a proposal by the head of the enterprise. After all, part-time workers are not the main employees, because they already have the main place of work. Entrepreneurs who are engaged in small business and have less than thirty-five people in the state of the organization can conclude fixed-term employment contracts with employees.

Conclusion

Every employee who is hired by the employer only for a certain period must be aware that he will be fired after his term of performance of his official duties ends. In practice, this is most often what happens. If a person was hired for two months, then it is prohibited to establish a probationary period for him. In addition, when choosing an employee, even for a certain period, the head of the company needs to be more careful.

This is especially true in cases where the boss takes a pregnant woman to work during the absence of a permanent employee. After all, it is not so easy to end an employment relationship with such a subordinate. Because she can ask her boss to transfer her to another position (after the departure of a permanent employee whose duties she performed) and extend her employment relationship with her until the very birth.

The material will address the following questions:

• Fixed-term employment contract: advantages, disadvantages
• Conclusion and termination of a fixed-term employment contract, legal aspects
• Extension of a fixed-term employment contract (when a fixed-term contract turns into an indefinite one)

Fixed-term employment contract: period of conclusion

The cases and grounds when the parties must or may conclude a fixed-term employment contract are defined in articles 58 and 59 of the Labor Code. When concluding a fixed-term employment contract, the employer is obliged to indicate in it the period of its validity and specific circumstances that prevent the conclusion of an employment contract for an indefinite period (clause 3, part two, article 57 of the Labor Code of the Russian Federation).

These circumstances mean special conditions for the performance of work (not to be confused with working conditions - harmful, dangerous, difficult). In this case, we are talking about such conditions that deprive the employer of the opportunity to establish a permanent relationship with the employee (for example, when performing temporary (up to two months) work).

The term of the employment contract in any case may not exceed five years. However, it is possible to extend the fixed-term employment contract.

When is a fixed-term employment contract with an employee legal?

A fixed-term employment contract is, of course, a convenient tool for regulating labor relations, primarily for the employer. Despite the fact that the Labor Code strictly limits the list of cases in which such an agreement can be concluded, employers often set the term of the agreement without sufficient grounds.

Example

The employer entered into a two-year fixed-term employment contract with Maksimov A.B., who is receiving a seniority pension. Three calendar days before the termination of the employment contract, the employer warned Maksimov about his dismissal (part one, article 79 of the Labor Code of the Russian Federation). The employee considered the position of the employer unlawful and pointed out that fixed-term employment contracts can be concluded with old-age pensioners, and not with persons receiving a pension for long service (clause 2, part two, article 59 of the Labor Code of the Russian Federation). After listening to the employee, the employer was forced to agree with his opinion.

Please note: upon dismissal at the end of the contract period, there is no need to pay the employee severance pay

Some employers prefer fixed-term employment contracts, assuming that then the employee is not entitled to benefits, and it will be easier to fire him. However, employees with whom a fixed-term employment contract is concluded are granted rights and guarantees to the same extent as those who work under an open-ended contract. Separately, it is worth mentioning the situation when the term of a fixed-term employment contract expires during the pregnancy of an employee. In this case, the employer is obliged to extend the fixed-term employment contract only until the end of pregnancy (part two of article 261 of the Labor Code of the Russian Federation).

Fixed-term employment contract: a ban on the conclusion of the Labor Code of the Russian Federation

The Labor Code contains a direct prohibition on concluding fixed-term employment contracts in order to evade granting the rights and guarantees provided for employees with whom ordinary labor contracts are concluded for an indefinite period (part six of article 58 of the Labor Code of the Russian Federation).

The obligation to prove the existence of circumstances that make it impossible to conclude an employment contract with an employee for an indefinite period rests with the employer. If it is impossible to prove such circumstances, it is assumed that the employment contract with the employee was concluded for an indefinite period.

When does a fixed-term contract become indefinite?

You need to carefully choose the type of employment contract: the fact of unreasonable conclusion of a fixed-term employment contract is one of the most common violations by employers. If there are sufficient grounds, the court requalifies a fixed-term employment contract as an indefinite one, that is, concluded for an indefinite period. Moreover, on the basis of a court decision, an employer may be held administratively liable for violation of labor legislation under Article 5.27 of the Code of Administrative Offenses of the Russian Federation.

If the fixed-term employment contract does not specify the term and the circumstance that served as the basis for its conclusion, it will be considered concluded for an indefinite period.

Let's highlight the main reasons for the retraining of an employment contract.

1. A fixed-term employment contract is concluded without legal grounds, that is, for a reason not provided for in Article 59 of the Labor Code. As a rule, in such cases, the employer, concluding a fixed-term contract, wants to avoid granting the rights and guarantees due to employees working under indefinite employment contracts.

2. The duration of the contract (or the work to be performed) is not specified. That is, the contract does not contain a reference to the event in connection with which it is terminated, or the date of termination of the employment relationship is not indicated.

Termination of a fixed-term employment contract is unlawful if it is recognized as open-ended

If the dismissal of an employee due to the expiration of a fixed-term employment contract is found to be unlawful, the illegally dismissed employee has the right to be reinstated at work (the employment contract will be considered indefinite) and recover from the employer compensation for moral damage, average earnings for the time of forced absenteeism, expenses for paying for services lawyer, etc.**

If the court, when resolving a dispute on the legitimacy of concluding a fixed-term employment contract, found that the contract was concluded by the employee involuntarily, the rules of the contract concluded for an indefinite period will be applied***.

Irina Akshanova - state labor inspector of the State Labor Inspectorate in Moscow:

Employment is formalized by an order (instruction) of the employer, issued on the basis of a concluded employment contract (part one, article 68 of the Labor Code of the Russian Federation). The content of this order (instruction) must comply with the terms of the concluded employment contract. If the term of its validity is not specified in the employment contract, the contract is considered concluded for an indefinite period (part three of article 58 of the Labor Code of the Russian Federation). If the employment order indicates the validity period of the employment contract, which differs from the period mentioned in the contract itself, on the basis of which the order is issued, the latter is considered issued in violation (part one, article 68 of the Labor Code of the Russian Federation). The employee will carry out labor activities on the conditions that are provided for in the employment contract concluded with him.

Termination of a fixed-term employment contract with a pregnant employee

Galiya Izmalkova- Head of the Human Resources Department of Risar LLC (Republic of Tatarstan, Kazan):

A fixed-term employment contract can be terminated even before the end of the employee's pregnancy. A woman working under a fixed-term employment contract can be fired even before the end of pregnancy, if the employment contract is concluded for the duration of the duties of the absent employee and it is impossible, with the written consent of the woman, to transfer her to another job before the end of pregnancy (part three of article 261 of the Labor Code of the Russian Federation). In addition, any contract (fixed-term and indefinite) can be terminated by agreement of the parties (clause 1, part one, article 77 of the Labor Code of the Russian Federation).

Conclusion of a fixed-term employment contract part-time

Irina Orlova- Human Resources Manager of LLC "Volga" (Moscow):

If you need to replace another employee, a second fixed-term employment contract (part-time) can be concluded with a temporary worker. There is another option: before the termination of a fixed-term employment contract, changes can be made to it by concluding an additional agreement. This is not contrary to the Labor Code. The opportunity to make adjustments to the contract is provided regardless of its type (urgent or concluded for an indefinite period).

Fixed-term employment contract for the period of absence of another "conscript"

Maria Lapina- Consultant for HR administration at LLC "Industry of the Business World" (Ufa):

An employee temporarily replacing an absent employee may himself go on sick leave. This situation occurs quite often in practice. One of the options for solving it is to hire a new employee under a fixed-term employment contract for the period of absence of the first employee and the second employee temporarily replacing him (Article 59 of the Labor Code of the Russian Federation). For example, in place of Petrova, who is on parental leave, Ivanova, who fell ill, was hired under a fixed-term employment contract. In her place, under a fixed-term employment contract, Sidorova is accepted. In this case, the contract and the order for employment must indicate that it was accepted for the period of absence of the employee holding this position. The employment contract with Sidorova will be terminated with the release of one of the replaced employees to work in this position (Article 79 of the Labor Code of the Russian Federation).

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