The term for which the contract is concluded is the duration of the contractual obligations of the parties. Depending on the duration of the term, contracts are divided into one-time, short-term, long-term, and unlimited. Particular importance is attached to specifying the term when concluding an employment contract. It is in the interests of the employee to enter into a long-term employment relationship with the employer, therefore the Labor Code establishes that, in the general case, it should be concluded for an indefinite period.

When can you conclude a fixed-term employment contract?

Situations in which a fixed-term employment contract is concluded are given in Article 59 of the Labor Code of the Russian Federation. The grounds on which the term of an employment contract is specified can be divided into two groups:

• the employment relationship cannot be established for an indefinite period due to the nature of the work or the conditions of its performance;
• The parties, by mutual agreement, establish a certain period of validity of the employment contract, but only in cases permitted by law.

Please note: an employee cannot initiate the conclusion of a fixed-term contract if the grounds given in Article 59 of the Labor Code of the Russian Federation are not available. Even if the employee knows in advance how long he will work in this place (for example, he will move to another city), the employer must still enter into an open-ended employment contract.

The list of situations in which a fixed-term employment contract is concluded is incomplete, i.e. additional grounds may be adopted by federal laws. When specifying the term in the employment contract, be sure to indicate the reason why it is urgent. The remaining mandatory conditions of a fixed-term contract are no different from an open-ended contract.

The entry is made in the usual manner, but the period for which the employee is hired is not indicated. However, upon dismissal, an entry stating that the employment contract has been terminated due to its expiration must be made.

For how long can a fixed-term employment contract be concluded?

The longest term of an employment contract is five years; the minimum period is not established by law. Theoretically, it is possible to conclude a fixed-term employment contract for one day, but in this case it is easier to formalize the relationship with the employee in the form of a civil contract.

You can specify in the employment contract the expiration date by a specific date or by indicating a specific event. For example, if it is unknown when a permanent employee will return to work, the period in the contract can be specified as “For the period of temporary disability of a permanent employee who retains his job” or “Until the main employee returns to his work duties.”

It is not allowed to enter into a fixed-term employment contract multiple times to perform the same job function (with the exception of teachers and athletes). Such an agreement can be reclassified as an open-ended one, and the employer can be brought to administrative liability under Art. 5.27 Code of Administrative Offenses of the Russian Federation (fine up to 100 thousand rubles for organizations and up to 20 thousand rubles for individual entrepreneurs).

An exception is the situation when an employee under a fixed-term contract replaced a permanent employee, and after his departure, another fixed-term contract for the same job function was concluded with the temporary employee. For example, a salesperson was hired during the maternity leave of a permanent employee, and when he returned to work, a fixed-term contract was again concluded with the temporary employee, by his consent, but with different dates.

It will also not be considered a violation of labor legislation to repeatedly conclude a fixed-term employment contract with the same person and for the same position if the contract is concluded with a director re-elected in the manner prescribed by the charter.

Termination of a fixed-term employment contract before expiration

The fact that the parties entered into an employment contract with a specified period does not mean that it cannot be terminated earlier. For termination of a fixed-term contract, the same grounds for termination exist as for an open-ended one:

• agreement of the parties - Article 78 of the Labor Code of the Russian Federation;
• employee initiative - Art. 80 Labor Code of the Russian Federation;
• employer's initiative Art. 81 Labor Code of the Russian Federation.

In addition, a fixed-term contract can be terminated based on the results of the test (Article 70 of the Civil Code of the Russian Federation). It is not always possible to establish a probationary period when concluding a fixed-term employment contract. This possibility depends on the specific period for which the contract is concluded and for what work:

• for temporary work, as well as in the case of any other engagement of an employee for a period of up to two months, a probationary period is not established at all;
• for seasonal work, and if the contract period is from 2 to 6 months, the probationary period cannot be more than two weeks;
• if the contract is concluded for a period of more than six months, then the probationary period should not exceed three months or six months for certain categories of employees (managers and their deputies, chief accountants and their deputies).

In addition, regardless of the term of the employment contract (fixed-term or indefinite), a probationary period is not established for pregnant women, women with children under one and a half years old and employees under eighteen years of age.

How to fire an employee at the end of the employment contract?

The expiration of a fixed-term contract does not mean that it is terminated automatically. The fact is that the norm of Article 58 of the Labor Code of the Russian Federation applies here. According to it, if none of the parties to a fixed-term employment contract demands its termination, then the contract automatically becomes indefinite.

At the same time, Rostrud believes that in order to record the fact of changing the term of an employment contract and transfer it from fixed-term to indefinite, it is necessary to draw up an additional agreement to change the term to the fixed-term contract. If the employee insists on signing such an agreement, then it should be drawn up, but in any case (whether this agreement is formalized or not), by virtue of Article 58 of the Labor Code of the Russian Federation, the employment contract becomes unlimited.

If the employer still intends to terminate the employment contract concluded for a certain period, then this he is obliged to notify the temporary worker in writing. This must be reported at least three days in advance. It is not necessary to wait exactly three days before the expiration of the contract; this can be done earlier, the main thing is not to miss this three-day period.

In case of disputes, the employer must have confirmation that the employee has been informed of the termination of the employment contract. To do this, you need to prepare two copies of the notice, one of which with the employee’s signature is kept by the employer. If the employee refuses to sign, a corresponding act is drawn up, for which it is necessary to attract at least two witnesses.

Notification is not required only if a fixed-term contract was concluded for the period of absence of a permanent employee (Article 79 of the Labor Code of the Russian Federation).

A situation may arise that the employee, just before the expiration of the contract, fell ill and is on sick leave. In any case, the employer, if he intends to terminate a fixed-term employment contract, must try to contact him, otherwise a dispute may arise as to whether the contract has been terminated. If the employee, for some reason, is unavailable, then he must be notified of the termination of the employment contract by registered mail with a list of attachments and delivery notification. This will confirm that the employer notified the employee of its decision in a timely manner.

The Labor Code especially protects the interests of such a category of workers as pregnant women. It is possible to terminate a fixed-term employment contract with a pregnant employee due to its expiration only if two conditions are simultaneously met:

• a temporary worker was hired during the absence of a permanent employee;
• the employer cannot offer the pregnant woman another job or she herself refused the offered vacancy (at the same time, she cannot be offered a job that she cannot perform for health reasons).

If a pregnant employee agrees to another place of work, instead of where the permanent employee returned, then the term of the employment contract is extended and such an employee can be dismissed on the day the maternity leave ends. The employer is obliged to extend the employment contract until the end of pregnancy in any case, even if the pregnant woman was hired to perform a certain amount of work, and all of this scope has already been completed.

Fixed-term employment contract - with whom can you conclude it and under what conditions? These issues are relevant for all participants in labor relations. Unlike an open-ended contract, a contract concluded for an agreed period ends at a specified time or upon the occurrence of certain events. The reader will learn more about the list of persons with whom fixed-term employment relationships can be formed by reading the publication.

Fixed-term employment contract: signs and cases of conclusion

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

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

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

Let us note that if the agreement does not contain an indication of its time-limited validity, as well as in cases where the stipulated period exceeds 5 years, then the contract is considered to be concluded on an indefinite basis.

In what cases does the law establish that a fixed-term employment contract is concluded and not an open-ended one?

The legislator in Art. 59 of the Labor Code of the Russian Federation directly stipulates cases of drawing up an agreement with an employee that provides for a limited period of validity. The law establishes that a fixed-term employment contract is concluded:

• to assign to the hired employee the duties of an employee who is absent from work for a long time, in cases where the employer is required by law to maintain the job for such an employee (for example, in case of illness);
• carrying out urgent work (up to 2 months);
• performing work with a characteristic feature of seasonality, which, due to climatic conditions, can only be carried out in the corresponding season, and the agreement concluded for such work is terminated at the end of the season;
• if necessary, perform work duties abroad (as a rule, the term of the agreement corresponds to the time spent outside the Russian Federation);
• carrying out work not included in the main activities of the organization, related to the expansion of production capacity or increase in volumes, as well as the implementation of other activities (repair, commissioning and other types of work);
• when the employer is a legal entity created for a limited period to carry out certain work (the agreement is limited to such a period, and it ceases to be valid at the moment of termination of the organization’s activities, provided there is no succession);
• when hiring an employee for an internship, training in a specialty or practice;
• hiring an employee to perform specific work, including in cases where the period for its completion cannot be determined at the time of concluding a fixed-term contract;
• sending an employee to public and other temporary work by the employment center;
• issuing a referral to alternative civil service;
• election of a citizen to an elective position in government bodies, political, public and other associations.

With whom is a fixed-term employment contract concluded?

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

Don't know your rights?

• citizens who apply to work for individual entrepreneurs or small organizations whose staff does not exceed 35 people (20 people for employers in the field of trade and the provision of consumer services);
• pensioners who, by virtue of law or medical indications, are allowed only to work temporarily;
• employees who are accepted into organizations operating in the Far North, subject to relocation;
• employees involved in work aimed at preventing epidemics, accidents and other disasters, and, if necessary, eliminating the consequences of such incidents;
• have passed a competition to fill a vacant position;
• workers in creative professions, including the media, theaters, circuses and others (the list of professions classified as creative is approved by the Government of the Russian Federation);
• organizations included in the management, including managers, their deputies and chief accountants;
• those undergoing full-time training;
• members of the crew of vessels of various types of navigation;
• involved in part-time work.

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

Who should you not enter into a fixed-term employment contract with?

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

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

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

Features of concluding and terminating a fixed-term employment contract

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

Such a contract is terminated due to the expiration of its validity period in the manner provided for in Art. 79 Labor Code of the Russian Federation. The legislator does not limit the employee and the employer in applying any grounds for termination provided for indefinite employment contracts. In particular, termination is permissible at the initiative of the employee or employer, by agreement of the parties, before the end of the stipulated period.

A sample fixed-term agreement can be studied by reading

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

An employee whom the manager accepts as a member of the enterprise for a certain period is a temporary worker. An employment contract is always signed with such a subordinate only for a specified period. This document necessarily specifies the period of its validity. Otherwise, the contract is considered to be of unlimited duration, and the temporary worker is considered a permanent employee. The latter, in turn, has the right to receive monthly wages 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 an enterprise is forced to look for a replacement for a permanent employee who is on sick leave or on vacation. In this case, the organization often hires 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 an organization must always remember that not all citizens can sign a fixed-term employment contract. Article 59 of the Labor Code of the Russian Federation contains a list of persons with whom the formation of official relations is not prohibited, 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 hired to perform certain work, the completion date of which is unknown 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 established by law, it is possible for an employee to be hired under a fixed-term employment contract. Article 59 of the Labor Code of the Russian Federation provides for the following:

A citizen is hired to replace a temporarily absent employee;

If you need to perform work, the completion period of which is no more than 2 months;

Conducting an internship;

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

For the period of seasonal work (performing the duties of a wardrobe attendant).

A small characteristic

So, a temporary worker is a person who is hired for a specific position in an enterprise for a period specified in 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 his actions do not violate labor laws. That's 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 clinic), then he has every right to sign a fixed-term employment contract with him.

In addition, the hiring 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 of time must provide the employer with all the necessary documents (for example, a diploma, a certificate of no criminal record, etc.).

Nuances

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

Completion of work and payment

In practice, the head of a 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 was temporarily performing the duties entrusted to him.

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

On the last day of the subordinate’s work, the employer must pay him in full. This means that the latter must transfer wages and additional remuneration for unused vacation 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 does this work out in practice?

The manager may offer the employee a transfer to a temporary position while maintaining his average income or the earnings 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 duties of the absent employee at the same time. This must be confirmed by an order and an additional agreement.

Recording in labor

So, as 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? Everything here is actually 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 HR specialist prints the order and makes an entry in the temporary worker’s work book. In this case, you may not immediately indicate the validity period of the employment contract. Because when dismissing a temporary employee, you will need to indicate in the work book the reason for the termination of the official relationship. In this case, the entry should contain the following content: “Dismissed due to the end of the period of validity of the employment contract”, paragraph two of the first part of Article 77 of the Labor Code of the Russian Federation.

By agreement

Here it is necessary to point out once again 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 and part-time students. Most often, the latter do not object to such a proposal from the head of the enterprise. After all, part-time workers are not the main employees, because they already have their main place of work. Entrepreneurs engaged in small businesses and employing less than thirty-five people can enter into fixed-term employment contracts with employees.

Conclusion

Every employee whom an employer employs only for a certain period must be aware that he will be dismissed after the end of his official duties. In practice, this is most often what happens. If a person was hired for two months, then it is prohibited to set him on a probationary period. 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 hires a pregnant woman to work during the absence of a permanent employee. After all, ending an employment relationship with such a subordinate is not so easy. Because she can ask her boss to transfer her to another position (after the departure of the permanent employee whose duties she performed) and extend the employment relationship with her until the birth.

The conclusion of an employment contract for a certain period is legal. But it should be remembered that this is not possible with every employee and not in all situations. What should an employer pay attention to when concluding a fixed-term employment contract and terminating it?

The provisions of the Labor Code of the Russian Federation approve two groups of circumstances that allow concluding fixed-term employment contracts:

• the nature of the work to be performed or the conditions for its implementation do not allow the establishment of labor relations for an indefinite period (Part 1 of Article 59);
• there is an agreement between the parties to an employment contract, on the basis of which it can be concluded without taking into account the nature of the work to be done and the conditions for its implementation (Part 2 of Article 59).

Reasons for concluding a fixed-term employment contract

When concluding a fixed-term employment contract, the employer must indicate the reason for the impossibility of establishing an employment relationship on a permanent basis. That is, the hired employee must know that his job is temporary and that he can be legally fired at the end of the contract, even if the employer has no complaints about the quality of performance of duties and labor discipline.

Labor relations cannot be established for an indefinite period

According to Part 2 of Art. 58 of the Labor Code of the Russian Federation, a fixed-term employment contract is concluded when the employment relationship cannot be established for an indefinite period based on the nature of the work to be performed or the conditions for its implementation. By virtue of Art. 56 of the Code of Civil Procedure of the Russian Federation, the obligation to prove the existence of circumstances that make it impossible to conclude an employment contract for an indefinite period rests with the employer. To give him a “hint” – Part 1 of Art. 59 of the Labor Code of the Russian Federation, which lists such circumstances. If the possibility of concluding a fixed-term employment contract follows from this article, there are no grounds for indicating these reasons in the text of the employment contract. But when a fixed-term employment contract is concluded in the absence of sufficient grounds, it is considered concluded for an indefinite period (Parts 5, 6, Article 58 of the Labor Code of the Russian Federation).

Labor relations cannot be established for an indefinite period in the following cases:

By agreement of the parties

Some features of concluding a fixed-term employment contract

Please note the last paragraphs of the two lists given here - they mean that these lists are not closed. But, be that as it may, the possibility of concluding a fixed-term contract must be spelled out in the Labor Code of the Russian Federation or other, necessarily federal, laws.

When concluding a fixed-term employment contract, it is necessary to indicate why the employer chooses this particular form of labor relations - there must be a link to the corresponding basis from the Labor Code of the Russian Federation or other federal law. It is important to indicate the validity period of the contract (a specific date or the occurrence of a certain event). All this is spelled out in Art. 57 Labor Code of the Russian Federation.

The maximum period for concluding a fixed-term employment contract is five years, unless a different period is established by the Labor Code of the Russian Federation and other federal laws (Article 58 of the Labor Code of the Russian Federation).

According to clause 2, part 1, art. 77 of the Labor Code of the Russian Federation, the basis for termination of an employment contract is the expiration of its term (Article 79 of the Labor Code of the Russian Federation).

Reasons for termination of a fixed-term employment contract named in Art. 79:

• expiration of the contract;
• completion of the work for which the contract was concluded;
• return to work of a person whose duties were temporarily performed;
• end of the contract work season.

The employer must notify the employee in writing about the expiration of a fixed-term employment contract at least three calendar days before dismissal (the requirement does not apply to contracts to perform the duties of temporarily absent employees).

A fixed-term employment contract is terminated:

• if neither party requested its termination due to expiration;
• if the employee continues to work after the expiration of the employment contract.

However, as already mentioned, in this case the employee is not fired, but transferred to permanent work. The additional agreement makes changes to the employment contract. It should be noted that the Labor Code of the Russian Federation does not mention the corresponding additional agreement, however, Rostrud advises that such a document be drawn up. But there is no need to make any entry in the work book.

Termination of a fixed-term employment contract

Problems when dismissing conscripts

It is beneficial for the employer to enter into fixed-term employment contracts, but not so much for the employee. This form of legal relationship allows you to avoid the complex procedure of dismissing an unwanted employee. A person who understands that he may lose his job is more flexible and diligent.

Although the law establishes restrictions for fixed-term employment contracts, practice shows that, firstly, the restrictions are not always interpreted properly, and secondly, they are not always implemented. Let's look at some controversial situations.

The manager signed an additional agreement to the fixed-term employment contract, extending the performance of his functions for another three years. Thus, the total time in office exceeded five years. Can we consider that the employment contract has become unlimited?

The additional agreement, which stipulates, among other things, the duration of the manager’s duties, is a new fixed-term employment contract. Accordingly, the employment relationship remains of a fixed-term nature. Let us analyze this situation using the example of the Appeal Ruling of the Supreme Court of the Republic of Mordovia dated January 16, 2014 in case No. 33-91/2014.

The school director, dismissed on the grounds provided for in clause 2, part 1, art. 77 of the Labor Code of the Russian Federation (expiration of the employment contract), went to court. The plaintiff motivated her disagreement with the employer’s decision by the fact that the validity period of her contract exceeded the permissible five years - the employment relationship must be recognized as unlimited. The fixed-term contract with the head of the educational institution was concluded on 09/01/2007, its validity period ended on 08/31/2010. The next day after the end of the contract - 09/01/2010 - an additional agreement was signed establishing new terms of validity of the employment contract - until 09/02/2013. The plaintiff considered that the additional agreement was drawn up and signed after the expiration of the employment contract, during which changes could be made, that is, when the employment relationship lost its urgent nature. The additional agreement is not a newly concluded fixed-term employment contract, since no dismissal orders were issued after 08/31/2010, as well as hiring orders under the newly concluded contract dated 09/01/2010, and no corresponding entries were made in the work book. The plaintiff held the position of director for more than five years (from 2007 to 2013), which does not allow such relationships to be classified as urgent.

The courts refused to satisfy the demands, motivating their decision as follows. The additional agreement, in fact, is a newly concluded employment contract, and not a continuation of the previous document. The first employment contract expired in 2013, so there was a need to re-register the employment relationship.

How many times can an employment contract be concluded with the same employee?

A new fixed-term employment contract can be concluded with an employee an unlimited number of times immediately after the termination of the previous one - there are no restrictions in the legislation. But if the court establishes multiple extensions of contractual relations with an employee performing the same function, the contract may be recognized as indefinite.

Let us take as an example the Appeal Ruling of the Sverdlovsk Regional Court dated March 19, 2015 in case No. 33-4662/2015. The deputy head of the school was hired on the basis of an open-ended employment contract. Subsequently, by an additional agreement, the employment relationship was recognized as fixed-term, and the position was renamed without changing the labor function.

The dismissal procedure on the basis of clause 2, part 1, art. 77 of the Labor Code of the Russian Federation with the further registration of new fixed-term relationships took place several times, until the final dismissal. The court ordered the plaintiff to be reinstated, motivating the decision as follows.

A fixed-term employment contract is concluded only if the employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be performed or the conditions for its implementation.

The court indicated that the parties had an employment relationship for an indefinite period; the employer had no reason to transform this employment contract into a fixed-term one on the basis of an additional agreement. And the appointment of a term cannot be considered as a change in the terms of the employment contract determined by the parties, since the term refers to species-forming characteristics.

The employee’s labor functions did not change, and the employment relationship was not formally interrupted.

The employer's arguments that fixed-term employment contracts were concluded by agreement of the parties, the court considered insufficient to conclude that it was possible to conclude fixed-term employment contracts by virtue of the direct instructions of the law. The employer did not provide specific reasons for concluding such contracts, and there were no grounds provided by law for establishing a fixed-term employment relationship with the employee.

The employer forced the employee to enter into a fixed-term employment contract. Can the court legalize open-ended employment relationships?

The answer to this question will be the legal position of the Constitutional Court of the Russian Federation, set out in the Determination of May 15, 2007 No. 378-O-P, which is that a fixed-term employment contract is concluded on the basis of the voluntary consent of the employee and the employer, but if consent to the conclusion of the contract has been given employee is forced to do so, he has the right to challenge the legality of concluding a fixed-term employment contract with him. It should be noted that, when indicating the circumstances of signing the document, the employee must provide evidence of coercion, and the employer, on the contrary, must provide evidence of voluntariness.

Logic dictates that not a single employee, on his own initiative, will exchange an open-ended employment relationship for a fixed-term one. However, the courts care about evidence, and most of those fired have problems with it.

Courts, when considering such disputes, are usually guided by the principle of voluntariness - if an employee has signed a fixed-term employment contract, it means that he has agreed with its terms. The appeal ruling of the Sverdlovsk Regional Court in case No. 33-4662/2015, considered by us above, is rather an exception to the rule. But a typical example is the Appeal ruling of the Supreme Court of the Republic of Tatarstan dated December 1, 2014 in case No. 33-16227/2014. A fixed-term employment contract was concluded with the director of the children's center three times, which indicated that the work was not temporary. The terms of the contracts were similar, the functions and responsibilities of the manager did not change throughout the entire period. The courts have indicated that the employee’s signature in fixed-term employment contracts indicates their voluntary conclusion.

An example of a situation where there is no evidence of coercion to sign several consecutive fixed-term contracts with further dismissal is the Ruling of the Perm Regional Court dated September 30, 2014 in case No. 33-8619.

In 1999, the deputy director of the theater was hired for a permanent job after being transferred from the regional administration. After some time, the employment contract concluded with him was reclassified as a fixed-term one. Labor relations were renewed more than once after the expiration of the next contract. When the employer did not offer another fixed-term contract for signature, the dismissed employee went to court, demanding that the employment relationship be recognized as indefinite. However, the court of first instance, and then the appeal commission, sided with the employer, pointing out that the employee signed the contracts voluntarily.

In accordance with Part 2 of Art. 58 of the Labor Code of the Russian Federation in cases provided for in Part 2 of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract can be recognized as legal if there was an agreement between the parties, that is, if the employee’s consent was given voluntarily. The courts have qualified the presence of an employee’s signature on such an agreement as consent. The materials of the case also confirmed the voluntary expression of the employee’s will regarding the termination of an open-ended employment contract with the transition to a fixed-term one.

If an employee claims that the employer forced him to sign a document, this circumstance is subject to verification and the responsibility to prove its existence rests with the employee. In other words, the employee must provide evidence of a cause-and-effect relationship between the employer’s actions and the forced signing of a fixed-term contract, and convince the court that the employer acted intentionally. For example, the presence of a conflict relationship between an employee and an employer cannot in itself be an unconditional and sufficient evidence of psychological pressure being exerted on the employee’s will. We need “direct evidence”.

The question arises: what evidence does the court need to recognize a fixed-term employment contract as concluded (that is, signed) under duress? Perhaps complaints to the labor authority? However, not every conscript, who essentially depends on a good relationship with the employer, will risk contacting the regulatory authority with a complaint that he was forced to sign an undesirable document. Another option is the testimony of witnesses, who, as a rule, are employees of the same organization and are unlikely to want to speak out against their superiors (although it was the words of the witnesses, proving that the document was signed under pressure from the employer, that influenced the Voronezh Regional Court to issue a Ruling dated January 25 .2011 No. 33-340 on illegal dismissal).

The evidence can be an audio recording that records not only the fact of pressure exerted on the employee when signing the contract, but also allows identifying the identities of the participants in the procedure, the place and time of the action. As you understand, few employees can boast of such “trump cards”. A study of judicial practice forces us to state that employees mostly lose their claims - the employer has formal grounds for concluding fixed-term employment contracts.

When concluding a fixed-term employment contract, the employee was misled. Is it possible through the court to reclassify an employment relationship as permanent?

If an employee can prove that he was misled, a fixed-term employment contract can be reclassified as an open-ended one. The difficulty in this situation is the improbability of evidence. After all, in response to an employee’s claim that he was simply deceived, the employer can provide a fixed-term employment contract voluntarily signed by its participants. According to Art. 59 of the Labor Code of the Russian Federation, one of the main conditions for concluding a fixed-term employment contract is the agreement of the parties. Does judicial practice know of examples where fixed-term contracts with misled employees were revised? He knows. But in these cases, the decisive argument, as a rule, was not the deceived plaintiff’s hope for the mercy of the judges, but the fact that the list of grounds for concluding a fixed-term employment contract is exhaustive and cannot be interpreted broadly. If the basis for concluding such an agreement is not in the list, the dismissed employee may win the case. If there is a reason, the chances of winning are significantly reduced. Let's look at two court decisions where conscripts believed that they were misled. In the first case, an application for protection of labor rights was filed by the head of a municipal institution, in the second - by a security guard of a private enterprise. The plaintiffs' arguments that they were misled regarding the extension of the employment relationship for this position in the future had no legal significance in view of the parties reaching an agreement to conclude a fixed-term contract, as evidenced by their signatures in the contract containing the corresponding condition. But with the heads of organizations, a fixed-term employment contract can be concluded by agreement of the parties, but the profession of a security guard is not included in the list. Therefore, by court decision, the security guard was reinstated at work, but the manager was not.

In conclusion, we again draw attention to the fact that the employer’s promises when concluding a fixed-term employment contract to “be always together” are just words that have no legal force if the grounds for concluding a fixed-term contract are legalized. To protect yourself in the future and confirm that signing a document is a forced action, an employee can seek advice from the labor inspectorate “before the thunder strikes.” The specialist will tell you what to do in a specific situation.

For example, concluding an agreement with a person undergoing sports training on the basis of clause 8 of Art. 34.2 of the Federal Law of December 4, 2007 No. 329-FZ “On Physical Culture and Sports in the Russian Federation.”

Part 2 Art. 59 Labor Code of the Russian Federation.

List of professions and positions of creative workers, approved. Decree of the Government of the Russian Federation dated April 28, 2007 No. 252.

For example, paragraph 2 of Art. 25.1 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” stipulates the specifics of achieving the age limit for civil servants in service.

Part 4 art. 58 Labor Code of the Russian Federation.

Letter of Rostrud dated November 20, 2006 No. 1904-6-1.

Paragraph 4 of paragraph 14 of the Resolution of the Plenum of the RF Armed Forces dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as the RF Armed Forces Resolution No. 2).

Employers often have situations where they have to hire workers to perform a specific task. Usually in these cases, the director wants to hire people “temporarily,” that is, enter into a fixed-term employment contract with them. But is it always possible to conclude fixed-term employment contracts? How to do it right? What wording should be in the contract and in the employment order? The answers to these and other questions regarding fixed-term employment contracts are in our article today.

What are the limitations of using a fixed-term employment contract?

It is impossible to conclude a “temporary” (or, in legal language, fixed-term) employment contract with an employee, guided only by the desire of the employer. The list of cases in which the legislator allows a fixed-term employment contract to be drawn up is given in the article of the Labor Code of the Russian Federation. This list is exhaustive. At the same time, the article of the Labor Code of the Russian Federation states that if a fixed-term employment contract is concluded, then its text must indicate the circumstances (reasons) that served as the basis for the application of such a contract.

Thus, it is possible to formalize a temporary employment relationship with an employee only in cases where this is directly permitted by the provisions of an article of the Labor Code of the Russian Federation. To be fair, we note that the list of situations given in this article is quite long. Moreover, some items on the list are open-ended, which makes it possible to further expand the scope of a fixed-term employment contract.

The list itself is divided into two parts. The first includes cases when a fixed-term employment contract can be concluded at the initiative of the employer. And the second part of the list lists situations where the application of a fixed-term employment contract requires agreement of the parties. Concluding the description of the general rules that govern the conclusion of fixed-term employment contracts, let us once again draw your attention to an extremely important rule. Even if the employee does not object to the temporary nature of the employment relationship, a condition regarding the duration of its validity can be included in the employment contract only if this is directly permitted by the provisions of the article of the Labor Code of the Russian Federation.

Below we will dwell in more detail on the most common grounds from the first part of this list (that is, we will consider cases when a fixed-term employment contract can be concluded at the initiative of the employer).

Temporarily absent employee

Perhaps, in practice, the most common situation in which it is possible to conclude an employment contract for a certain period is hiring to perform the duties of a temporarily absent employee. In this case, the job remains with the “main” employee. But while he is not doing his job, you can temporarily take another person in his place (Part 1 of Article of the Labor Code of the Russian Federation, letter of Rostrud dated November 3, 2010 No. 3266-6-1).

The Labor Code does not specify the reasons why the “main” employee may be absent from the workplace. Therefore, there can be absolutely any reasons. For example, temporary disability, leave (not only to care for a child, but also annual paid or unpaid leave), temporary transfer based on a medical certificate to another job, the employee’s performance of state or public duties, undergoing a medical examination or advanced training outside of work. work.

Let us note one more important point: it is impossible to draw up a fixed-term employment contract under which a “temporary” employee will alternately replace several absent “core” employees (for example, during their vacations). This is due to the fact that an article of the Labor Code of the Russian Federation provides for the execution of a fixed-term employment contract for the duration of the duties of an absent employee, that is, we are talking about a specific employee and the performance of his labor functions. Therefore, if it is necessary to organize “safety net” during the holidays of the “main” employees, then each time you will have to draw up a new contract (i.e., terminate the fixed-term employment contract when the “main” employee leaves and enter into a new one during the absence of another employee).

As noted above, on the basis of an article of the Labor Code of the Russian Federation, in a fixed-term employment contract it is necessary to directly indicate that the contract is concluded for a temporary period, and provide the corresponding reason from the list established by the article of the Labor Code of the Russian Federation. In the case under consideration (when hiring for the duration of the duties of an absent employee), it is recommended to include the following wording in the contract:

What to write in the contract and in form No. T-1

The list of seasonal work, as well as their maximum duration, are established by industry agreements (Part 2 of Article of the Labor Code of the Russian Federation). Also for these purposes, you can be guided by the List of Seasonal Works (approved by Decree of the People's Commissariat of Labor of the USSR dated October 11, 1932 No. 185) and other documents (for example, Decrees of the Government of the Russian Federation dated 04/06/99 No. 382 and dated 07/04/02 No. 498, Resolution of the Council of Ministers of the RSFSR dated 04.07.91 No. 381).

As we can see, in order to conclude a fixed-term employment contract on this basis, it is necessary that the seasonal nature of the work be officially confirmed. That is, the relevant type of work must be included in an industry agreement or regulation. Moreover, the term of such an agreement cannot exceed the term of the season established by the same document.

However, a probationary period for those hired for a period of up to two months is not assigned. If the employment contract is concluded for a period of two to six months, then the probationary period can be up to two weeks (Article of the Labor Code of the Russian Federation).

What to write in the contract and in form No. T-1

It should be noted in the employment contract that it is concluded for a season. Since the length of the season depends on natural and climatic conditions, it is not necessary to indicate a specific end date of the employment contract (Part 4 of Article of the Labor Code of the Russian Federation). Accordingly, the wording of the employment contract may be as follows:

The same wording must be transferred to the employment order (Form No. T-1). Moreover, in the “by” column of this order, the expiration date of the employment contract can be indicated not only by the specific end date of the season, but also by the occurrence of an event (for example, write “end of the season”).

Work outside the normal course of business of the employer

The next legal basis for concluding a fixed-term employment contract is the performance of work beyond the normal activities of the organization.

Features of concluding a fixed-term contract

If the employer enters into the work book information about 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 under Article 5.27 of the Code of Administrative Offenses of the Russian Federation.