What is the basis for concluding a fixed-term employment contract? Fixed-term employment contract: what are its features.

Hello! Today we will talk about hiring on a fixed-term employment contract. The features of such an agreement are detailed in the Labor Code, but despite this, when hiring new employees for a period, the company often makes mistakes. In order to avoid litigation and fines, the employer should understand all issues in detail.

What is a fixed term contract

Fixed-term employment contract - a common type of agreement between an employer and an employee, when, for certain reasons, these relationships have an agreed end date, unlike the usual one.

• Download the form, a sample fixed-term employment contract
• Download Sample Order for Employment under a Fixed-Term Employment Contract

Fixed-term and perpetual contracts - what is the difference

For ease of comparison, we present the data in the form of a table:

However, the employer is not always free to choose which type of contract to offer to the applicant, since in some paragraphs the law requires the conclusion of a STD, and in some it makes such a step on the part of the employer possible, but not mandatory.

In what cases is it necessary to register an employee according to STD

There are types of work, the nature and conditions of which require the conclusion of an employment contract for a limited period. Most often this is due to natural or seasonal features, as well as the inability to know the end date of the activity.

We list the main cases:

• During the absence of a permanent employee (for example, due to maternity leave);
• When sending an employee to work abroad;
• In case of temporary transfer of an athlete to another employer;
• If the employing organization itself was created temporarily to solve a specific problem;
• For activities that are not typical for the organization;
• To perform seasonal work;
• To perform temporary work (up to two months);
• For work in connection with professional activities / internships;
• For persons sent to public works;
• If the employee is the Vice-Rector of the Higher educational institution;
• If citizens are undergoing alternative civilian service;
• When elected for a fixed term as a member of an elected body.

In what cases is it possible to register an employee under STD, but not necessarily

An optional STD is called “by agreement of the parties”.

The employer may conclude it with persons under the following circumstances:

• Small businesses with no more than thirty-five employees;
• Employee retirement age, and also if, according to the doctor's prescription, he can only be at a temporary job;
• Work in the conditions of the Far North and is associated with moving there;
• To eliminate the consequences of catastrophes, epidemics, accidents, as well as to prevent these events;
• People creative professions(filmmakers, media journalists, theater and circus artists);
• Full-time employee in an educational institution;
• Crew members of sea and river vessels;
• Managers, their deputies and chief accountants of enterprises, regardless of the form of ownership and activities of the company;
• part-time workers;
• Deputy positions of scientific and pedagogical employees in a higher educational institution;
• Persons invited to the coaching position to prepare the wards for the competition.

In all other cases (the vast majority of them), the law prescribes the hiring of workers only under an indefinite employment contract.

How to apply for a job on STD

So, if the employer is convinced that the case with his future employee falls under one of the above points, the question arises of competent employment, including the correct completion of all documents. In general, employment according to STD does not differ from the traditional one, but has several features.

With both options for employment, the employee must bring the following documents to the personnel department:

• Passport or other identity document;
• Work book (if the work is the first, the employer, by law, does not have the right to ask the employee to bring an empty book, since it is a document of strict accountability. It must be entered by the employer himself);
• Insurance certificate of state pension insurance (SNILS);
• Documents of military registration - for persons liable for military service;
• Document on education or qualification;
• Certificate of non-conviction.

Strictly according to the Labor Code, the employer is not entitled to request from the employee TIN, as well as registration at the place of residence, but they are often needed and therefore requested. As for medical books, their need is determined by the nature of the employee's activity (trade, education, public catering, and others).

After the employee submits the documents, the next multi-stage stage begins - its registration by the personnel department of the organization. At this stage, there are a number of nuances inherent in STD.
Let's look at them in a table:

Without fail, even before signing the contract, the employee must familiarize himself with the internal labor regulations, his job description, as well as confirm your familiarization with a signature in the appropriate journal.

The employment contract, order and work book are registered in the relevant journals by an employee of the personnel department.

What probationary period can be set for STD

As you know, under a regular employment contract probation cannot exceed three months (or six months in the case of the position of head or chief accountant). However, with STD, the conditions are somewhat different, given the possible short duration of work.

• Unless otherwise provided, the trial period remains the standard of up to three months;
• If the TD is issued for a period of two to six months, then the duration of the test cannot exceed a two-week period;
• If the contract is concluded for a period of less than two months, then the test is not carried out.

So, we have analyzed the key issues on a fixed-term employment contract. Let's hope that the information received will allow employers to better navigate this difficult issue and more confidently lead their company to success.

Sometimes a company needs to hire a person for a while. But it is worth remembering that, as with the conclusion of any contract, there are features of concluding a fixed-term employment contract.

Grounds for concluding a temporary employment contract

Sometimes there are situations when a company needs an employee, but not for a permanent one. workplace, but for a while. An employer can hire a person for a certain period, because this is allowed by article 58 of the Labor Code of the Russian Federation. However, there are certain grounds for concluding a fixed-term employment contract, which are spelled out in Art. 59 of the Labor Code of the Russian Federation, namely:

A) conclusion fixed-term contract when urgency is required:

• the absence of an employee if, according to a law containing labor law norms, or local acts of the organization, a workplace is retained;
• performance of temporary works, the production of which takes up to two months;
• provision of certain services or performance of work, if it is impossible to set a specific date for the completion of work or services;
• for the period of seasonal work, the list of which is available in industry agreements at the federal level;
• sending an employee to work in a foreign country;
• admission of an employee to an organization that was created for the duration of the work or a strictly limited period;
• in the event of an increase in production or a change in production technology, it is possible to hire temporary worker for installation and commissioning of new equipment;
• when accepting an employee for practice, training or professional training;
• in case of sending an employee by the employment service for temporary or public works;
• in the case of a person performing alternative service;
• for the period of election of a person to an elective position in state authorities or local self-government;
• on other grounds provided for by the Labor Code of the Russian Federation or federal regulations;

B) conclusion of a fixed-term employment contract by agreement of the parties:

• if for the period of creation or exhibition of works of art, creative workers are hired, the list of works and professions of which is clearly regulated by the Government of the Russian Federation;
• in the case of training a hired person on full-time learning;
• if the employee comes to work part-time;
• with crew members of inland and/or sea navigation vessels;
• conclusion of a fixed-term employment contract with pensioners;
• employment in a small business organization or individual entrepreneur if the number of employees is less than 35, and in retail- less than 20 employees;
• when performing work in the regions of the Far North or equivalent to them;
• in case of a threat of an emergency or to prevent it, the employer may hire employees temporarily, but only to eliminate the consequences or threat of an emergency;
• regardless of the organizational and legal form of the enterprise, a fixed-term employment contract can be concluded with the head, his deputy or chief accountant;
• also, the Labor Code of the Russian Federation or other laws may contain other grounds for the urgency of the contract.

It is worth remembering that an incorrect indication of the basis for the urgency of the contract may lead to its recognition through the court as concluded for an indefinite period. Such an opportunity is given to an employee by article 58 of the Labor Code of the Russian Federation.

With whom can I conclude a fixed-term employment contract?

Naturally, there are age restrictions in accordance with Art. 63 of the Labor Code of the Russian Federation. An employment contract can be concluded with a person who has reached the age of 16, including a fixed-term one. With the consent of parents or guardians, an employment contract can also be concluded with children from 14 years old, but then labor obligations should not be associated with heavy or hazardous production. With a younger worker, in addition to the fact that parental consent is required, the work must be related to creativity, and as we remember, one of the grounds for the urgency of the employment contract was the creation or display of works of art.

Restrictions on gender are associated with prohibitions on hiring women for harmful or dangerous work in accordance with Art. 253 of the Labor Code of the Russian Federation. Women are also prohibited from taking on work related to lifting and carrying heavy objects by hand. There is a List of heavy work, in the performance of which it is forbidden to use female labor, approved by Decree of the Government of the Russian Federation No. 162 of 25.02.2000.

Reasons for concluding a fixed-term employment contract

Mandatory terms of a fixed-term employment contract

Candidate's data, his surname, name and patronymic,

Data of the employee's identity document and other documents submitted for concluding an employment contract;

Data of the employer, his TIN, PSRN, location address;

Signatory data on behalf of the employer;

The place of work where the employee will perform official duties;

Directly the duties of the employee or a link to a local act that spells out labor duties;

The date from which the employee starts work;

Data on the employee's salary (the salary is indicated, but if other payments are provided, then there should be an indication of the local act in force with the employer);

Working hours, if it differs from those established by the internal labor regulations or regulations of the department;

Working conditions at the workplace (it is necessary to indicate the presence of harmful or dangerous production factors);

Provided guarantees established by law;

An indication of the employee's mandatory social insurance;

Other obligatory conditions stipulated by other regulatory acts containing the norms of labor legislation.

A temporary contract must contain all of the above items. In addition, a prerequisite for a fixed-term employment contract is an indication of the urgency and duration of the contract.

The following terms and conditions may also be included in the employment contract:

About the probationary period of the hired employee;

About the department in which the employee is hired;

About additional guarantees, benefits and improved social conditions provided to the candidate;

On the prohibition of disclosure of information received by the employee in the performance of his official duties or just in an organization;

On additional rights, obligations and benefits arising from the collective agreement.

The procedure for concluding a temporary contract

For employment, the candidate must submit to the employer a number of documents, the list of which is disclosed in Art. 65 of the Labor Code of the Russian Federation, namely:

Identification document;

Diploma or certificate of completion of an educational institution or courses in a profession;

Employment book, if the candidate has already been hired;

document about military service if the candidate is subject to conscription;

If necessary, a certificate of no criminal record, a medical book or other document required for submission in accordance with labor legislation.

When hiring a temporary employee, there are some nuances. For example, when an employee is hired for the period of performing "seasonal work", the list of seasonal work that the employee will need to perform is specified. This list must correspond to the work specified in industry or inter-industry agreements approved at the federal level.

In case of concluding a fixed-term employment contract, the employer must also remember about testing the candidate. The order for employment and the employment contract must contain information about the probationary period. When hiring an employee under a fixed-term employment contract in accordance with Article 70 of the Labor Code of the Russian Federation, there are restrictions on the appointment of a test, namely:

If the term of the contract is less than two months, the manager does not establish a probationary period;

In the case of agreeing a contract for a period of two to six months, for example, for the time the employee performs the work specified in the contract, the test should be less than two weeks.

In some situations, an employer cannot or does not have the right to hire an applicant on an open-ended contract for a certain position. In this case, a fixed-term employment contract may be concluded with the employee on the basis of Article 59 of the Labor Code of the Russian Federation. Also, under similar conditions, it is possible to conclude a contract with a trade union or authorized representatives of employees. This is called a collective agreement.

What is a fixed term contract

An employment contract for a fixed period is a legal act that regulates temporary relations between an employee and an employer in accordance with the Labor Code of the Russian Federation. Main Feature such a document are clearly defined terms of labor relations, which can be up to 5 years. The minimum time frame for such a contract is not provided by law. At the same time, the future employee retains the right to annual leave, wages, and sick leave. An employer may assign a probationary period to an applicant.

In what cases is

A temporary employment contract is concluded on the basis of Art. 59 of the Labor Code of the Russian Federation, when signing a permanent contract is impossible. This situation may arise due to the following factors:

1. Performing temporary work.
2. The state is being filled by competition.
3. Elimination of the consequences of accidents, local natural Disasters.
4. The nature of the work differs from the profile of the enterprise.

Grounds for concluding a fixed-term employment contract

A short-term contract is a contract whose legal basis is entirely built around the temporary nature of the work for which the applicant is hired. Also, on legal grounds, such a contract can be concluded with special categories of citizens:

• performing alternative service;
• full-time faculty students;
• aimed at forced public works;
• people who have the status of a pensioner;
• disabled people of 2, 3 groups.

Advantages and disadvantages

The temporary nature of the employment relationship, which is implied by a short-term contract, has both pluses and minuses for the employee. The disadvantages of this type of contract include:

• short time to master the position;
• termination of the employment relationship after the agreed period.

However, a fixed-term contract also has undeniable advantages that allow us to consider it as an adequate alternative to regular work. Among them are the full preservation of all social guarantees from the employer:

• official wage;
• holiday pay, sick leave;
• dismissal compensation.

Form of a fixed-term employment contract

A sample fixed-term employment contract for temporary work assumes the presence of 2 clauses “from” and “to”, filled in with specific dates. In the last paragraph of the form, you must indicate the exact date dismissal or a specific event associated with it. The urgency of the contract must be indicated in the “nature of work” cell. The final version of the agreement must contain the following clauses, defined by GOST 6.30, which govern the procedure for signing urgent employment contracts:

• the name of the employer;
• type/date/number of document, place of signing;
• headings, text itself;
• applications;
• signatures;
• approval certificates;
• seal;
• mark of receipt by the employee of the second copy.

Terms of a fixed-term employment contract

Hiring an employee for a fixed period is associated with some difficulties and conditions. When making an entry in the work book about the conclusion of the contract, a note on its terms is not made. In the STD, it is imperative to indicate the mode of the working day, rest time, the procedure for granting leave, if they differ from the standard ones due to the nature of the work. Terms of remuneration, the availability of compensation for work in hazardous production, the condition for compulsory social insurance of the employee in accordance with the federal Labor Code of the Russian Federation.

Supplementary agreement

The STD may provide for additional conditions that do not infringe on any rights of the employee. These conditions cannot be contrary to the legislation governing the recruitment of employees, other regulations that reflect the rights and obligations of the parties when entering into an employment relationship. The following terms can be included in an additional agreement:

• probation;
• additional employee insurance;
• improvement of the social and living conditions of the worker;
• pension non-state provision;
• non-disclosure of legally protected secrets;
• vacation duration.

With whom is a fixed-term employment contract

There are several significant reasons prescribed in the Labor Code of the Russian Federation for issuing a fixed-term contract. Groups of persons are also indicated, the conclusion of a fixed-term contract with which is legal. The following groups of citizens may enter into an employment relationship with an employer by mutual agreement:

• applicant in the north of the country;
• liquidator;
• an employee hired to fill a position (including women in maternity leave, permanent employees);
• theater employee, media;
• manager, assistant, accountant.

Who can not conclude a fixed-term employment contract

As in the case of an open-ended contract, a fixed-term contract with an employee has a number of restrictions related to the list of persons with whom it is illegal to conclude a STD. These may be people on probation who are under house arrest. Various diseases can also cause refusal when signing a contract. So, it is illegal to hire disabled people of the 3rd group, people with officially confirmed mental disorders or dangerous infectious diseases.

How long is a fixed-term contract?

According to Art. 58, Art. 59 of the Labor Code of the Russian Federation, the employer is obliged to indicate in the agreement with the employee the specific terms of the employment relationship. The actual date of completion of this agreement is set based on the needs of the employer and can be increased by mutual agreement of the parties. The nature of the work that determines the duration of the contract is spelled out in Art. 58 of the Labor Code of the Russian Federation.

Minimum term

The law of the Russian Federation does not establish a minimum period of validity of labor relations between an employee and an employer arising as a result of the conclusion of a STD. In each individual case, the minimum duration of the contract is determined only by the employer, based on his needs. The applicant can only agree to sign the agreement or refuse if he is not satisfied with the duration of the work.

Maximum term

As in the case of the minimum period, the maximum is determined by the needs of the employer, but, unlike the first case, it already has restrictions established by law. STD cannot be concluded with anyone for a period of more than 5 years. This does not mean that at the end of this period of time, the employment relationship must end completely. STD can be extended by mutual agreement of the parties. After the agreement, the contract must be extended.

When does a fixed-term contract become indefinite?

STD can be turned into an indefinite one on the basis of a court decision, which established the fact of multiple extensions of a fixed-term agreement by the employer in order to deceive employees and infringe on their rights. STD can be transferred to an open-ended format by agreement of the parties (at the end of the employment relationship). This happens when the position for which the applicant was hired as a deputy is vacated. In litigation, an employee who continued labor activity after the expiration of the STD, receives the right to employment indefinitely.

Termination of a fixed-term employment contract

A STD can be terminated ahead of schedule in the same manner as a standard contract (Article 77 of the Labor Code of the Russian Federation, Article 79). An employee can be reduced by notifying him 2 months in advance and paying appropriate compensation. An employee with whom a fixed-term contract has been concluded has the right to terminate it at own will by submitting an application in the required form 2 weeks before the deadline. On the part of the employer, the dismissal of an employee is also not a problem after the expiration of the contract. 3 days before the end of the STD, a dismissal order is issued in the name of the employee. It cannot be disputed.

By agreement of the parties

Any contract can be freely terminated by agreement of the parties on the basis of Art. 78 of the Labor Code of the Russian Federation. Termination of STD by mutual agreement can be carried out at any time, regardless of the date of termination of legal relations. If the employee wants to leave by agreement, then it will be necessary to indicate this separately in the application for dismissal. The employer can also initiate this type of termination, but without the written consent of the employee, he will not be able to carry it out.

At the initiative of the worker

Art. 80 of the labor legislation regulates the procedure for terminating labor relations at the request of the employee. By law, the employee is required to send a notice to the employer about the decision to quit of his own free will in 2 weeks. On the day of dismissal, the employee is provided with a full payment (Article 127 of the Labor Code of the Russian Federation). Exceptions are cases:

1. Probation. During this period, the employee must write a corresponding application for 3 calendar days(Article 71 of the Labor Code of the Russian Federation).
2. Performance of seasonal work, STD up to 2 months. These categories are exempted from mandatory work for a period of 2 weeks and can quit by warning the employer 3 days in advance (Article 292, Article 296 of the Labor Code of the Russian Federation).

At the initiative of the employer

Termination of a short-term contract at the initiative of the employer is regulated by Art. 81 of the Labor Code of the Russian Federation. It is possible to dismiss both a temporary employee and a permanent one in several cases that serve as the basis for termination of employment:

1. Liquidation of the enterprise, bankruptcy, termination of the activity of the employer - IP.
2. Reduction of staff.
3. Inconsistency of the employee with the position held due to the circumstances provided for by labor law, Art. 81.

With a pregnant woman

Like any employee, a pregnant woman has the right to quit at her own request or by agreement of the parties. The employer has the right to terminate the contract with her before the end of pregnancy without labor disputes on the basis of the articles of the Labor Code of the Russian Federation:

1. The exit of an absent employee. This is a legal basis for the dismissal of pregnant women, issued according to STD (Article 261 of the Labor Code of the Russian Federation).
2. Inconsistency of the employee with the position held due to the circumstances provided for in Art. 81 and not related to the fact of pregnancy.

Video

The conclusion of an employment contract for a fixed 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 approved two groups of circumstances that make it possible to conclude fixed-term employment contracts:

• the nature of the forthcoming work 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 the 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 legally be fired at the end of the contract, even if the employer has no complaints about the quality of the performance of duties and labor discipline.

An employment relationship 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 labor relations cannot be established for an indefinite period based on the nature of the work to be done 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 him in the "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 of article 58 of the Labor Code of the Russian Federation).

An employment relationship cannot be established for an indefinite period in the following cases:

By agreement of the parties

Some features of the conclusion of a fixed-term employment contract

Pay attention to the last items 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 should 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 for what reason the employer chooses this particular form of labor relations - there must be a reference to the appropriate basis from the Labor Code of the Russian Federation or another federal law. It is important to indicate the duration of the contract (a specific date or the occurrence of a certain event). All this is written in Art. 57 of the Labor Code of the Russian Federation.

The maximum term 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 paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation, the basis for terminating an employment contract is the expiration of its term (Article 79 of the Labor Code of the Russian Federation).

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

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

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

A fixed-term employment contract is terminated:

• if none of the parties has demanded 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 does not quit, but is transferred to a permanent job. The supplementary agreement amends the employment contract. It should be noted that the relevant additional agreement is not mentioned in the Labor Code of the Russian Federation, however, Rostrud advises drawing up such a document. But there is no need to make any entry in the work book.

Termination of a fixed-term employment contract

Problems with the dismissal of "conscripts"

It is beneficial for the employer to conclude fixed-term employment contracts, and for the employee - not so much. This form of legal relationship allows you to avoid the complicated procedure of dismissal of an objectionable employee. A person who understands that he can lose his job is more accommodating and diligent.

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

The head signed an additional agreement to a fixed-term employment contract, extending the performance of his functions for another three years. Thus, the total time spent in office exceeded five years. Is it possible to consider that the employment contract has become indefinite?

The additional agreement, which stipulates, among other things, the term for the performance of the duties of the head, is a new fixed-term employment contract. Accordingly, the employment relationship is still urgent. Let's analyze this situation on the example of the Appellate ruling Supreme Court Republic of Mordovia dated January 16, 2014 in case No. 33-91/2014.

The principal of the school, dismissed on the grounds provided for in paragraph 2 of part 1 of 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 term of her contract exceeded the allowable five years - the employment relationship must be recognized as open-ended. Fixed term contract with manager 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 for 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 it was possible to make changes, that is, when the employment relationship was no longer urgent. 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 orders for employment under a newly concluded contract dated 09/01/2010, the corresponding entries were not 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 qualifying such relationships 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 ended in 2013, so it became necessary to formalize the employment relationship again.

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

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

Let's take as an example the Appellate 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 indefinite employment contract. Subsequently, by an additional agreement, labor relations were recognized as urgent, and the position was renamed without changing the labor function.

The dismissal procedure on the basis of paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation with the further registration of new urgent relations took place several times, up to final dismissal. The court ordered the reinstatement of the plaintiff in office, 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 done or the conditions for its performance.

The court pointed out that an employment relationship developed between the parties 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 features.

The employee's labor functions did not change, labor relations were 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 is possible to conclude fixed-term employment contracts by virtue of a direct indication of the law. The employer did not give specific reasons for concluding such contracts, but statutory there were no grounds for establishing a fixed-term employment relationship with the employee.

The employer forced the employee to conclude a fixed-term employment contract. Can a court legitimize an indefinite employment relationship?

Answer to this question there will be a legal position of the Constitutional Court of the Russian Federation, set out in the Ruling of May 15, 2007 No. 378-O-P, which consists in the fact that a fixed-term employment contract is concluded on the basis of the voluntary consent of the employee and the employer, but if the consent to the conclusion of the contract was given by the employee involuntarily, he has the right to challenge the legitimacy of concluding a fixed-term employment contract with him. It should be noted that, indicating the circumstances of signing the document, the employee must provide evidence of coercion, and the employer, on the contrary, voluntariness.

Logic dictates that not a single employee, on his own initiative, will change an open-ended employment relationship to a fixed-term one. However, evidence is important to the courts, and most dismissed people have problems with it.

Courts, considering such disputes, as a rule, are guided by the principle of voluntariness - if an employee signed a fixed-term employment contract, it means that he agreed with its terms. The appeal ruling of the Sverdlovsk Regional Court in case No. 33-4662/2015, discussed above, is rather an exception to the rule. And here is a typical example - the Appeal ruling of the Supreme Court of the Republic of Tatarstan dated 01.12.2014 in case No. 33-16227/2014. With the director children's center a fixed-term employment contract was concluded three times, which indicated that the work was not temporary. The terms of the contracts were similar, the functions and duties of the head did not change throughout the entire time. The courts pointed out that the signature of the employee 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 head of the theater was hired permanently 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 repeatedly renewed 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 open-ended. 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 by Part 2 of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract can be recognized as legitimate if there was an agreement between the parties, that is, if the consent of the employee was given voluntarily. The courts qualified as consent the presence of an employee's signature on such an agreement. The materials of the case also confirmed the voluntary will of the employee regarding the termination of an open-ended employment contract with the transition to a fixed-term one.

If the employee claims that the employer forced him to sign the document, this circumstance is subject to verification and the obligation to prove its existence rests with the employee. In other words, the employee must provide evidence of a causal relationship between the actions of the employer and the forced signing of a fixed-term contract, convince the court that the employer acted intentionally. For example, the existence of a conflict relationship between an employee and an employer cannot in itself be an unconditional and sufficient evidence of the provision of psychological pressure at the will of the employee. 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 a complaint to the labor authority? However, not every “conscript”, depending, in fact, on a good relationship with the employer, will risk turning to 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 oppose 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).

Evidence can be an audio recording, which recorded not only the fact of pressure exerted on the employee when signing the contract, but also allows you to identify the identities of the participants in the procedure, the place and time of the action. As you understand, few of the workers can boast of such "trump cards". The study of judicial practice forces us to state that, in general, employees lose 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 re-qualify an employment relationship into an open-ended one?

If an employee can prove that he was misled, a fixed-term employment contract can be retrained into an indefinite one. The difficulty in this situation is the improbability of evidence. After all, for the employee’s assertion 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 precisely the agreement of the parties. Does the jurisprudence know examples when fixed-term contracts with misled employees were reviewed? Knows. But in these cases, the decisive argument, as a rule, was not the hope of the deceived plaintiff on the mercy of the judges, but the fact that the list of grounds for concluding a fixed-term employment contract is exhaustive and not subject to broad interpretation. If the grounds for concluding such an agreement are not on the list, the dismissed employee may win the case. If there is a basis, the chances of winning are significantly reduced. Consider two court decisions where the "conscripts" believed they had been misled. In the first case, an application for the protection of labor rights was submitted by the head municipal institution, in the second - the security guard of a private enterprise. The arguments of the plaintiffs 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 agreement reached by the parties on the conclusion of a fixed-term contract, as evidenced by their signatures in the contract containing the relevant 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 on the list. Therefore, by a court decision, the security guard was reinstated at work, but the head was not.

In conclusion, we again draw attention to the fact that the promises of the employer 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. In order to protect themselves in the future and confirm that signing the document is a forced action, the employee can seek advice from the labor inspectorate "until the thunder strikes." The specialist will tell you what to do in a particular situation.

For example, the conclusion of an agreement with a person undergoing sports training, on the basis of paragraph 8 of Art. 34.2 federal law dated 04.12.2007 No. 329-FZ “On physical education and sports in Russian Federation».

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

List of professions and positions of creative workers, approved. Decree of the Government of the Russian Federation of 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 features of reaching the age limit for civil servants in the service.

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

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

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

It is an employment contract concluded for a fixed period.

The conclusion of a fixed-term employment contract requires serious grounds from the employer. Violation of the rules for its preparation and execution may lead to the fact that a temporary employee will have to be employed on a permanent basis.

Normative base

The types of contracts are described in Article 58 of the Labor Code of the Russian Federation. The grounds for drawing up a temporary contract are indicated in Article 59 of the Labor Code of the Russian Federation.

The expiration of the term of the temporary contract is regulated by paragraph 2 of article 77 of the Labor Code of the Russian Federation.

The exclusion of a probationary period for employees hired under a fixed-term contract is stipulated in Article 289 of the Labor Code of the Russian Federation.

The duration of seasonal work, under which a fixed-term contract is concluded, is described in article 293 of the Labor Code of the Russian Federation, and the list of these works, accrual of experience and the procedure for this process are listed in Decree of the Government of the Russian Federation of July 4, 2002 N 498.

Mandatory grounds for concluding an employment contract

Article 59 of the Labor Code of the Russian Federation contains two main sections devoted to the possible grounds for concluding an employment contract of a fixed-term nature. Thus, part 1 of this article includes a list of situations in which the signing of a fixed-term employment contract is mandatory. It includes the following circumstances:

the need to fulfill the duties of the main employee who, for reasons established by applicable law, is unable to perform his job duties, but has the right to retain his job;

the need to perform seasonal or temporary work, and the duration of the latter for the purposes of concluding a fixed-term employment contract should not exceed two months;

attracting employees to work abroad;

the organization's need for a temporary expansion of the volume or range of work performed or services provided;

attraction of employees to work in organizations created for a certain period of time, or to perform work that is of a temporary nature. This type of activity includes, among other things, public works, work in the direction of employment authorities and alternative civil service;

training employees in the form of internships, internships or other educational activities in order to acquire skills and knowledge within a particular profession or specialty;

work in elected positions or in a team official elected to carry out political tasks, tasks of the municipal or public service for a certain period;

other situations provided for by applicable law.

Thus, if the need to involve an employee in work is caused by one of the listed reasons, the employer is obliged to conclude a fixed-term employment contract with such an employee.

Current legislation in these circumstances does not allow other options for formalizing labor relations.

Validity period of a fixed-term employment contract

The duration of the employment contract must be clearly stated in its text. The permissible duration of a fixed-term employment contract is determined by Art. 58 of the Labor Code of the Russian Federation. According to this section of the Labor Code, the maximum period of validity of such a document is five years. At the same time, by mutual agreement of the employer and employee, fixed-term employment contracts may be concluded for any period within the specified limitation.

Note that the minimum term for concluding a fixed-term employment contract is not established by law.

What is the difference between a fixed-term and an open-ended contract

For ease of comparison, we present the data in the form of a table:

The nuances of drawing up a fixed-term employment contract

An employment agreement must be concluded subject to certain legal requirements. A typical fixed-term employment contract should include the following information:

information about the parties that concluded it;

subject of the contract;

the period of the agreement;

Fixed-term employment contract: details for an accountant

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• The nuances of translation when concluding a fixed-term employment contract

  This occasion the judge. The practice of concluding fixed-term employment contracts is quite common. And it seems nothing... to the civil service of the Russian Federation.” A fixed-term employment contract must specify the period of its validity ... under a fixed-term employment contract. Let's consider the most common. Situation 1. An employee is hired under a fixed-term employment contract, term ... a new fixed-term employment contract for the second position. Situation 2. An employee working under a fixed-term employment contract is transferred ...

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• Legality of concluding and terminating a fixed-term employment contract

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• Part-time employees: hiring, dismissal, transfer

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• The difficult situation with the dismissal of an employee on parental leave

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• The Supreme Court of the Russian Federation on the grounds for the emergence of labor relations and the procedure for their registration by employers-microenterprises

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• How to get an internship right?

  No, then the employer, concluding fixed-term employment contracts, bears significant risks, in ... training, it is allowed to conclude a fixed-term employment contract with the employee. The contract is concluded for a certain ... - the expiration of the employment contract. A fixed-term employment contract is also convenient and expedient, for example ... in some cases, when concluding a fixed-term employment contract, a probationary period is not established (.... But it is impossible to conclude a new fixed-term employment contract, since there is no justification ...

• Features of the passage of alternative service

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• Digest of legal information for specialists in the field of labor law for the first quarter of 2019

  An employee with whom a fixed-term employment contract was concluded for the duration of the performance of the duties of the absent ... the period of absence of which a fixed-term employment contract was concluded actually went to work (h...