E.A. answered the questions. Shapoval, lawyer, Ph.D. n.

We conclude, extend and terminate a fixed-term employment contract

A fixed-term employment contract may be concluded if, taking into account the nature of the work or the conditions for its performance, it is impossible to conclude an agreement for an indefinite period. Art. 58 Labor Code of the Russian Federation. And to terminate such an agreement, it is enough to wait for the expiration of its term (of course, in the absence of other grounds). But not everything is as simple as it seems. Here are answers to the most common questions regarding such contracts.

A fixed-term employment contract with a pensioner is possible

A.N. Gladysheva, Samara

We offered a pensioner entering a job to conclude a fixed-term employment contract. But it requires the execution of a contract for an indefinite period. Do we have the right to insist on a fixed-term employment contract just because he is a pensioner?

: It is possible to conclude a fixed-term employment contract for up to 5 years only if the pensioner himself agrees to this articles 58, 59 of the Labor Code of the Russian Federation. True, pensioners often appeal against the legitimacy of concluding fixed-term employment contracts with them. The courts take the side of the employer if the pensioner signed an employment contract containing a condition on its term, thereby expressing agreement with such a condition. Cassation ruling of the Rostov Regional Court dated April 25, 2011 No. 33-5663; Determination of the Moscow Regional Court dated November 17, 2011 No. 33-25523. But if the pensioner proves that consent to the conclusion of the contract was given involuntarily, then the court recognizes the contract as concluded for an indefinite period. clause 13 of the Decree of the Plenum of the Supreme Court of March 17, 2004 No. 2; Clause 3 of the motivational part of the Definition of the Constitutional Court of May 15, 2007 No. 378-O-P.

It should also be borne in mind that the unwillingness of a pensioner to conclude a fixed-term employment contract is not a basis for refusing employment. In such a situation, the employer will have to conclude a contract for an indefinite period.

In small businesses, a fixed-term contract can be concluded with any employee

M.I. Mavlyanova, Taman

We have 7 people in our company. Can we conclude fixed-term employment contracts with all employees?

The employer is a small business entity is an organization or entrepreneur, the number of employees of which does not exceed 35 people, and in the field retail and consumer services - 20 people Art. 59 Labor Code of the Russian Federation.

: You can conclude a fixed-term employment contract with any employee if articles 58, 59 of the Labor Code of the Russian Federation:

• your company is a small business entity;
• the employee agrees to conclude a fixed-term employment contract for up to 5 years. But do not forget to indicate in the contract e Art. 57 of the Labor Code of the Russian Federation:

The term for which it is concluded;

basis for his conclusion. In your case, this is part 2 of Art. 59 of the Labor Code of the Russian Federation.

The condition of the term in the contract for the performance of specific work

NOT. Maxaim Trankova, Mozhaisk

We need to hire employees for the duration of a certain project. How can we indicate the term of the contract if the end date of this project is not yet known?

: In the employment contract, you need to indicate for which particular project the employee is hired. And as a period, indicate that the contract was concluded before the completion of the project (without specifying a specific date) Art. 59 of the Labor Code of the Russian Federation; Appeal rulings of the Moscow City Court of July 16, 2012 No. 11-14184, of May 14, 2014 No. 33-11227 / 2014.

1.5. The employment contract is valid until the completion of work on project No. 20-1, related to the fulfillment by the Employer of obligations under the contract dated 06/01/2015 No. 23/10, concluded with Design LLC.

But you must have documents confirming the existence of the project and the end of its validity. Appeal ruling of the St. Petersburg City Court dated June 10, 2014 No. 33-7964/2014. Otherwise, the employee will be able through the court to retrain the employment contract into an open-ended one.

When the project comes to an end, the date of its completion will become clear. 3 calendar days before this date, notify the employee about dismissal due to the expiration of the employment contract and Art. 79 Labor Code of the Russian Federation.

Work for up to 2 months is always temporary

I.Yu. Duyunova, Novorossiysk

We want to hire an employee to replace the main employee for a rather long vacation. What kind of fixed-term contract to conclude with him?

: If the planned vacation of the main employee is less than 2 months, you need to conclude a fixed-term employment contract with the substitute employee for up to 2 months in Art. 289 of the Labor Code of the Russian Federation. Then a new employee you can't install probation when hiring, and for the time worked you will have to provide vacation (or pay compensation for vacation) at the rate of 2 working days for each month of work articles 289, 291 of the Labor Code of the Russian Federation.

If the vacation of the main employee lasts 2 months or more, then conclude a fixed-term employment contract with the new employee for the duration of the vacation of the main employee (for a period of 2 to 6 months) Art. 58 Labor Code of the Russian Federation. Then everything will be exactly the same for him as for the rest of the workers. That is, you can set him a trial period, but only up to 2 weeks Art. 70 of the Labor Code of the Russian Federation, and leave for hours worked (or compensation for unused leave upon dismissal) to provide in calendar days Art. 115 Labor Code of the Russian Federation.

A migrant’s patent is not a reason to conclude a fixed-term contract with him

S.A. Belonogov, St. Petersburg

We hire a citizen of Moldova with a patent. Do we think that a contract with him can be concluded only for the duration of the patent?

: The fact that you hire a foreigner with a patent that is valid for a certain period is not a basis for concluding a fixed-term employment contract, since there is no such basis in the Labor Code of the Russian Federation articles 58, 59 of the Labor Code of the Russian Federation. As with Russians, a fixed-term contract with migrants is concluded if the nature and conditions of work do not allow concluding a contract for an indefinite period articles 58, 59 of the Labor Code of the Russian Federation. After the expiration of the patent, the migrant worker must be removed from work Art. 327.5 of the Labor Code of the Russian Federation. If the employee does not renew the patent, then after 1 month from the expiration date of the patent, you simply dismiss him p. 5, part 1, part 2, art. 327.6 of the Labor Code of the Russian Federation.

Can a fixed term contract be extended?

E.A. Tereshchenko, Ulyanovsk

Taking into account the nature of the work, we have concluded a fixed-term employment contract with the employee for a period of 1 year. Can we extend the contract with the employee by changing the term of the contract?

: There is no definite answer to this question. There is an opinion that before the expiration of the employment contract with the employee, it is possible to conclude an additional agreement to employment contract on changing the term of its validity, if the circumstances in connection with which the contract was concluded for a certain period have not disappeared. Moreover, according to the courts, the extension of the term of the contract in such a situation does not indicate the repeated conclusion of a fixed-term employment contract, which entails for the employer the recognition of the employment contract as concluded for an indefinite period. Appeal decision of the Supreme Court of the Chuvash Republic dated December 23, 2013 No. 33-4638 / 2013; Determination of the St. Petersburg City Court dated October 18, 2010 No. 33-14178 / 2010.

You can formulate a condition for extending the term of an employment contract as follows.

The employee and the employer agreed that the employment contract No. 3 dated 01.01.2014 was concluded for a period until 01.01.2016.

But there are courts that believe that the extension of a fixed-term employment contract violates the rights of the employee. And they recognize the extended fixed-term employment contract concluded for an indefinite period Determination of the Moscow City Court dated February 6, 2012 No. 4g / 3-114 / 12.

Therefore, when deciding to extend the term of the employment contract, it makes sense to familiarize yourself with judicial practice in your area for similar cases.

Not all summer jobs are seasonal

G.A. Panarina, Shadrinsk

For the summer (June to August) we hired a vendor to sell vegetables and fruits on the street. Do we understand correctly that this is a seasonal job?

: No. Seasonal work should be due to the peculiarities of climatic and other natural conditions(for example, rafting and logging; heating season in housing and communal services). Types of seasonal work are determined in special lists contained in Art. 293 of the Labor Code of the Russian Federation:

• in sectoral (intersectoral) federal social partnership agreements х see, for example, clause 2.A of the Industry Agreement on the organizations of the timber industry complex of the Russian Federation for 2015-2017. ; clause 3.7 of the sectoral tariff agreement in the housing and communal services of the Russian Federation for 2014-2016.;
• in normative legal acts, including acts former USSR operating in the part that does not contradict the Labor Code of the Russian Federation see, for example, the List, approved. Decree of the Government of 04.07.2002 No. 498; Art. 423 of the Labor Code of the Russian Federation; List of seasonal works, approved. Decree of the NCT of the USSR dated 11.10.32 No. 185.

You cannot set a probationary period of more than 2 weeks for a seasonal worker, during the time of work he will need to be granted leave (or pay compensation for leave) at the rate of 2 working days for each month of work articles 70, 295 of the Labor Code of the Russian Federation.

Work as a seller does not apply to seasonal types of work, so you need to conclude a fixed-term employment contract with an employee for a period from 06/01/2015 to 08/31/2015 to perform obviously defined work. articles 58, 59 of the Labor Code of the Russian Federation.

What day to dismiss a temporary employee if the main employee left the care leave

I.Yu. Tupeeva, Kazan

We have a fixed-term contract with an employee for the duration of parental leave of the main employee. The main worker went to work without warning. When to fire a temporary worker, because we did not warn her about the dismissal?

: It all depends on how the condition on the term is formulated in the contract with the temporary worker. If the contract states that it is concluded for the period of temporary absence of a particular employee, then the day of dismissal (the last day of work) of the temporary employee will be the day preceding the day the main employee leaves maternity leave Art. 79 of the Labor Code of the Russian Federation; Letter of Rostrud dated October 31, 2007 No. 4413-6; ; Appeal decision of the Tula Regional Court dated November 27, 2014 No. 33-3260.

If, however, the contract with a temporary worker indicates that it terminates when a particular employee returns to work, then the day of dismissal (the last day of work) of the temporary worker will be the day the main employee leaves maternity leave. Art. 79 of the Labor Code of the Russian Federation; Appeal rulings of the Krasnoyarsk Regional Court dated 06/09/2014 No. 33-5452 / 14A-09; Moscow City Court dated April 16, 2015 No. 33-6310/15.

In any case, you are not required to notify the temporary employee of the dismissal and Art. 79 of the Labor Code of the Russian Federation; Letter of Rostrud dated October 31, 2007 No. 4413-6; Appeal ruling of the Chelyabinsk Regional Court dated July 17, 2014 No. 11-6967/2014. But for the future - ask the main workers to inform you in advance about leaving work so that you can warn temporary workers about dismissal 3 calendar days in advance.

Is it possible to dismiss a temporary employee if the main employee quit without leaving parental leave

L.A. Efremova, Togliatti

We have concluded a fixed-term employment contract with the employee for the period of maternity leave and maternity leave of the main employee. The main employee resigned of her own free will, without leaving the vacation. Do we need to fire a temporary employee at the end of the vacation of the main employee?

: If the main employee quit during the period of parental leave without a work permit, you have no reason to dismiss the temporary employee. After all, the basis for terminating an employment contract with a temporary worker has disappeared. And you just have to change the condition on the term of the contract by concluding an additional agreement with the temporary worker to the employment contract with Art. 58 of the Labor Code of the Russian Federation; Letter of Rostrud dated November 20, 2006 No. 1904-6-1.

Formulate a transformation condition fixed-term contract in a contract for an indefinite period is possible so.

The employee and the employer agreed that the employment contract No. 10 dated April 30, 2013 was concluded for an indefinite period.

But if the main worker issued a job and then quit of her own free will, then the temporary worker must be fired due to the expiration of the employment contract and Appeal ruling of the Omsk Regional Court dated June 27, 2012 No. 33-3641/12.

A temporary worker on sick leave can be fired

ON THE. Kisileva, Pskov

Can we dismiss an employee due to the expiration of the employment contract concluded for 1 year, if he is sick and will not be at work on the last day of the employment contract?

: Yes, you can. After all, it is forbidden to dismiss during illness only at the initiative of the employer. And dismissal due to the expiration of the employment contract does not apply to such grounds. p. 2 h. 1 art. 77, articles 79, 81 of the Labor Code of the Russian Federation; Determination of the Moscow City Court dated May 24, 2011 No. 33-15449.

But the fact that the employee is sick does not relieve you of the obligation to notify him of the upcoming dismissal and Art. 79 Labor Code of the Russian Federation. You can send him such notification by mail or telegram. Some courts, in the absence of such notice, reinstate the employee at work. Determination of the Moscow City Court dated February 14, 2011 No. 33-2941.

If on the day of dismissal (the last day of the term of the employment contract) the employee does not come to work, send it to his home address by mail by registered mail notification of the need to come to the employer for a work book or agree to send it by mail Art. 84.1 of the Labor Code of the Russian Federation. On this day, you also need:, part 1 of Art. 7 of the Law of December 29, 2006 No. 255-FZ.

The allowance must be accrued no later than 10 calendar days from the date of submission former employee disability sheet. And you must pay him the allowance on the next day after the accrual of the allowance, set for the payment of salaries. Part 1 Art. 15 of the Law of December 29, 2006 No. 255-FZ.

When to fire an employee if the employment contract expires on a weekend

Fixed term contract ends on the weekend. What day to fire an employee?

: In such a situation, the end date of the term is considered to be the next business day following it Art. 14 Labor Code of the Russian Federation.

Is it possible to fire a former student due to the expiration of the employment contract?

S.A. Bragin, Vologda

Our company hired a full-time student on a fixed-term contract. Before the expiration of the employment contract, he was expelled from the university. Will we be able to fire him later due to the expiration of the employment contract?

: If the only reason for concluding an employment contract was that the employee is studying full-time, then after being expelled from the university, it is impossible to dismiss him due to the expiration of a fixed-term employment contract. After all, you no longer have the basis that served as the reason for concluding a fixed-term employment contract Art. 59 Labor Code of the Russian Federation.

A fixed-term employment contract becomes indefinite, which is formalized by an additional agreement to the employment contract. Above we gave an example of how you can formulate a condition on the term of the contract.

Is it possible to dismiss an employee who did not go to work on the last day of the contract term?

E.V. Mishukov, Astrakhan

3 days before the expiration of the employment contract, we warned the employee with whom a fixed-term employment contract was concluded about dismissal. He didn't show up for work the next day. Can we fire him if he doesn't show up on the last day of the contract, or should we wait until it's clear why he didn't show up?

: You can fire an employee on the last day of the term of the employment contract. Art. 79 Labor Code of the Russian Federation.

If you don’t do this, but you find out why he didn’t go to work, then the fixed-term employment contract will turn into an employment contract for an indefinite period Art. 58 Labor Code of the Russian Federation. And then you will not be able to dismiss the employee due to the expiration of the employment contract. p. 2 h. 1 art. 77 Labor Code of the Russian Federation. And you will have to look for other grounds for dismissing an employee as well. Determination of the Moscow Regional Court of August 18, 2011 No. 33-18584.

Is it possible to fire a “fixed-term” employee if the contract does not specify a period

K.A. Vakhteev, Smolensk

We hired an employee to carry out reconstruction work, but did not indicate this in the contract, and also did not indicate the duration of the contract. Can we dismiss an employee at the end of the reconstruction due to the expiration of the employment contract?

: If the term of its validity is not specified in the employment contract, then the contract is considered concluded for an indefinite period Art. 58 Labor Code of the Russian Federation. That is, it is impossible to dismiss an employee in connection with the expiration of the employment contract. You can dismiss him only on the general grounds provided for permanent employees.

We count the days of unused vacation if the fixed-term contract is terminated before the expiration of 2 months

ON THE. Nakul, Ryazan

The employee was hired during the leave of the main employee to care for the child until the child reaches the age of 3 years. But a month and a half after going on vacation, the main worker returned to work. For which days to calculate compensation for a temporary worker for vacation: for working days or for calendar days?

: The fact that the contract with a temporary worker terminated already one and a half months after the start of the vacation does not mean that it was originally concluded for a period of up to 2 months. Therefore, you need to calculate compensation for unused vacation for calendar days, and not for working days, as when concluding an agreement for up to 2 months in articles 120, 291 of the Labor Code of the Russian Federation.

Example: You are the owner of a strawberry farm. You have 15 hectares of land on which you need to plant beds, fertilize, plant strawberries, take care of them every day in order to eventually get a good harvest. One, of course, can not cope, helpers are needed. Hundreds of people who want to help for a purely symbolic and modest monetary reward are running towards you in a crowd.

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

Reference to the basis of the conclusion

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

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

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

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

Trial under a fixed-term employment contract

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

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

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

Paperwork

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

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

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

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

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

Fixed term contract and pregnancy

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

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

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

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

Extension of a fixed-term employment contract

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

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

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

Rules for dismissing a temporary employee

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

The main steps to dismiss a temporary worker are as follows:

If an employee wants to be transferred to permanent job organization, you don't have to do anything. STD automatically becomes indefinite upon continuation of the employment relationship after the date of its termination in force Art. 58 Labor Code of the Russian Federation. But it is not forbidden (and even recommended by Rostrud) to conclude an additional agreement in which to cancel the clauses indicating the duration of the STD.

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

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.

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

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. They must also be applied correctly, 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.

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

• 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).

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

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).

Not always recognized illegal dismissal and in the absence of 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.

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.

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 2020.

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).

Crib. Cases where you can conclude a fixed-term contract

When is a fixed-term contract required?

• seasonal or temporary (up to two months) work;
• work abroad;
• the employee is sent by the employment service for temporary employment;
• alternative civilian service;
• the employee performs work as part of vocational training, industrial practice, internships;
• an employee is elected to an elective position;
• the employee enters an organization established for a limited period, 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)

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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.

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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 .

Example:

The Alfa company concluded N. and justified the urgency by temporary registration of the employee at the place of residence. During scheduled inspection the inspector drew attention to the illegitimacy 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 under the terms of a fixed-term employment contract on the basis of own desire. This is necessary so that, in the event of conflict situations confirm the main condition for concluding an urgent contract - 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 should be consistent with other executed documents, including. 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.

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

If the term of the fixed-term employment contract has expired (part 1 of article 79 of the Labor Code of the Russian Federation).

In order to process the dismissal of an “urgent” employee without errors, use the “Personnel Systems” express service

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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.

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 work performed by the employee. labor functions.

TD can be:

• Urgent, that is, which indicates specific dates work;
• 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 admitted for the period of illness of another worker, 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 in maternity leave or 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 main labor activity the terms of which are agreed in advance. For example, installation work or refurbishment 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 at individual entrepreneur 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 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 ensure the suitability this employee indicate the probation period. 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 applies 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

The STD will be considered legal when it is concluded by mutual agreement of the two parties to the employment relationship. If, having begun to fulfill their job duties, the 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 executed 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 Labor Code RF.

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.