Fixed term contract for 1 day. When is a fixed-term contract concluded?

The company can hire employees either for a permanent term or for a strictly limited one. In the latter case, a fixed-term employment contract is signed. Depending on the circumstances of the particular hiring and the specifics of the work of the organization, a fixed-term employment contract is concluded either taking into account the assigned work (part 1 of article 59 of the Labor Code of the Russian Federation), or by mutual agreement of the manager and employee (part 2 of article 59 of the Labor Code of the Russian Federation).

When you don't need employee consent

The Labor Code provides for certain categories of employees who can only be hired for a period when a fixed-term employment contract is mandatory, in other words, when a contract for an indefinite period cannot be concluded.

So, for example, it would be unlawful to hire an employee who, for health reasons, is only allowed temporary work, or a general director, if the company's constituent documents provide that the employment contract with him is concluded for a certain period (part 1 of article 275 of the Labor Code) RF).

The absence of the consent of the employee in this case means that the employment contract will not be concluded at all. In other words, if the employee does not agree to sign a temporary contract, the company will not have an obligation to conclude an open-ended contract (as will happen if a fixed-term employment contract is signed by agreement of the parties - see below).

Cases when a temporary contract can be concluded without the consent of the employee

A fixed-term employment contract is concluded in cases where either the specifics of the work or the conditions for its implementation do not allow hiring an employee permanently (part 1 of article 59 of the Labor Code of the Russian Federation). At the same time, the contract itself must indicate how long a fixed-term employment contract is concluded. The maximum term of the contract is five years.

The list of grounds for concluding a temporary contract is open and can be supplemented by grounds that will be further provided for by the Labor Code of the Russian Federation or other laws.

Today it is:

• replacement of a temporarily absent employee (as a rule, we are talking about a decree);
• performance of temporary works (no more than two months);
• seasonal workers;
• employees sent to work abroad;
• employees hired for non-standard work for the organization (installation, reconstruction) or in case of temporary expansion of production;
• the entire staff of employees hired by the company, created for a limited period or to perform specific temporary work (project work), incl. if the time of completion of work cannot be determined in advance;
• interns and trainees;
• replacement of an elective office;
• employees sent by the employment service for temporary (public) work;
• alternative civil servants.

Agreement of the parties for a fixed-term employment contract

If there are no circumstances of the temporary nature of the work that would justify the urgency of the employment relationship, the employee and his manager can agree to sign a fixed-term employment contract - the Labor Code provides for this possibility. However, this can not always be done, but in strictly defined cases (part 2 of article 59 of the Labor Code of the Russian Federation):

• hiring to a small business entity (number of employees - less than 35, and if we are talking about retail and consumer services - less than 20);
• hiring old-age pensioners or employees who, for health reasons, are only allowed to work temporarily. Here it must be emphasized that we are talking specifically about hiring a new employee, and not about a working pensioner under an indefinite employment contract. In the latter case, it is categorically impossible to “transfer” him to a fixed-term employment contract, this is illegal;
• hiring an employee to the Far North, if he is supposed to move;
• recruitment of employees on a competitive basis;
• hiring creative workers (media, circuses, theaters, etc.);
• hiring managers, their deputies and chief accountants of companies;
• hiring full-time students;
• recruitment of seafarers;
• hiring partners;
• hiring employees to prevent emergencies, accidents, epidemics and other similar events, as well as to eliminate the consequences of these events, if they have already occurred.

The nuances of concluding a temporary contract by agreement of the parties

The main point that needs to be monitored when concluding a fixed-term contract by agreement of the parties is voluntariness. This means that both the employee and his manager really prefer to limit the term of their employment relationship and voluntarily waive an indefinite employment contract.

The fact of voluntariness is confirmed by the signatures of the parties on the contract; a separate written agreement for a fixed-term employment contract is not required to be signed.

In the contract itself, it is necessary to emphasize that it is urgent, to confirm this with an appropriate basis (for example, by the fact that the employee is studying at a university full-time). It is necessary to make sure that the employee has a supporting document (training document, pension certificate, etc.).

Registration of a fixed-term employment contract

The fact of signing the contract must be recorded by order (indicate in it the grounds for concluding a temporary contract), and the personnel worker must make a record of employment in the work book.

The term of the contract must be fixed in it, otherwise, de jure, the contract will be considered unlimited (part 3 of article 58 of the Labor Code of the Russian Federation). In this case, it will be possible to terminate it only on the general grounds of the Labor Code of the Russian Federation for fixed-term contracts (Chapter 13 of the Labor Code of the Russian Federation).

In the work book, unlike the order and the contract, it is impossible to indicate that the employee is temporarily hired by the company - neither the Labor Code, nor the Instruction for filling out work books, nor the Rules for maintaining and storing work books give permission for this. Otherwise, the company may be held administratively liable (

Temporary work is understood as work, which is known in advance that it will last no more than two months (for example, during the preparation of the annual report). It will be illegal to conclude a fixed-term employment contract for up to two months to perform work that is permanent.

When concluding a fixed-term employment contract, the parties must determine its specific period within two months (a month, a month and a half, etc.). Such wording as "for up to two months" is unacceptable.

The conclusion of a fixed-term employment contract for the performance of seasonal work is allowed provided that these works are provided for in a special list. Lists of seasonal work, including work that can be carried out during a period (season) exceeding six months, and the maximum duration of these individual seasonal works are determined by sectoral (intersectoral) agreements concluded at the federal level of social partnership (part 2 of article 293 TC);

3) with persons sent to work abroad. These can be diplomatic missions and consular offices of the Russian Federation abroad, as well as representative offices of federal executive authorities and state institutions of the Russian Federation, commercial organizations, scientific and educational institutions, etc.;

4) for carrying out work that goes beyond the normal activities of the employer, as well as for carrying out work related to a deliberately temporary (up to one year) expansion of production or the volume of services provided.

In this case, activities that correspond to the main directions of the organization's work, enshrined in its charter, will be normal.

The law, as an example of work that goes beyond the normal activities of the organization, calls the reconstruction, installation, commissioning. Depending on the nature (type) of the ordinary activities of the organization, this may be repair, construction work.

In any case, work that goes beyond the normal (main) activities of the organization, for the performance of which fixed-term employment contracts may be concluded, must be of a temporary (urgent) nature.

The law does not establish any special deadline for which such an employment contract can be concluded, therefore its term in each case is determined by agreement of the parties based on the specific circumstances and the period of time during which there remains a need to perform work that goes beyond normal activities of the organization. Here, the general rules on the deadline for the employment contract, established by Art. 58 TC, i.e. five years.

As for the employment contract concluded in connection with the need to temporarily expand production or the volume of services provided, its term is limited - it cannot exceed one year. This is due to the fact that work under such an agreement is carried out as part of the normal activities of the organization and the need to expand production or the volume of services provided is limited to certain time frames that are known to the employer.

The specific period of validity of such an employment contract within one year is determined by agreement of the parties. For example, due to the increase in the number of tourists in the summer and the expansion in connection with this volume of services provided, hotels, cafes, restaurants, transport organizations can accept an additional number of employees by concluding employment contracts with them for a certain period (1, 2, 3 months and etc.);

5) with persons entering work in organizations created for a predetermined period of time or to perform a predetermined job.

If an organization is established for a fixed term or only to perform certain work, this should be recorded in its charter. It also defines a specific period of time for which it was created or during which work will be completed, the implementation of which is the goal of creating an organization (for example, for 2, 3, 4 years).

The term of an employment contract with persons entering such organizations is determined by the period for which they were created. Therefore, the termination of the employment contract with the specified employees after the expiration of the period is permissible if this organization really terminates its activities due to the expiration of the period for which it was created, or the achievement of the purpose for which it was created, without the transfer of rights and obligations by succession to others persons (clause 14 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" * (17));

6) with persons hired to perform a deliberately defined work in cases where its performance (completion) cannot be determined by a specific date.

The employment contract concluded on this basis must indicate that it is concluded for the time of performing this particular work (for example, for the time of office renovation, for the period of construction of the facility). Completion (completion) of the specified work will serve as the basis for termination of the employment contract due to the expiration of its validity.

At the same time, if during the trial the fact of multiple conclusion of fixed-term employment contracts for a short period of time to perform the same labor function is established, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period (paragraph 14 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2);

7) to perform work directly related to the internship or vocational training of an employee. In this case, the employment contract is concluded for the period of internship or vocational training.

Internship or vocational training of employees in an organization can be carried out both on the basis of an agreement with another organization that sent its employee for an internship or vocational training, and on the basis of a student agreement concluded by the organization with the student himself (see Articles 198-208 of the Labor Code);

8) in case of election for a certain period to an elected body or to an elective position for a paid job. For example, for the position of rector of a state or municipal higher educational institution, dean of a faculty or head of a department of a higher educational institution. According to Art. 12 of the Federal Law of August 22, 1996 N 125-FZ "On Higher and Postgraduate Professional Education" * (18), Art. 332 of the Labor Code, these positions are filled on the basis of elections held in the manner prescribed by the charter of the educational institution (see Art. 17, 332 of the Labor Code);

9) upon admission to work related to the direct support of the activities of members of elected bodies or officials in state authorities and local governments, in political parties and other public associations.

So, not all persons entering the work in these elected bodies can be concluded a fixed-term employment contract. We are talking about such work that is directly aimed at ensuring the activities of members of the relevant elected bodies or officials (for example, work as an assistant, secretary, adviser to the governor; assistant, assistant to the chairman of the party).

In these cases, the term of the employment contract is established by agreement of the parties within the term of office of the relevant elected body or official. Moreover, the early termination of their powers should entail the termination of employment contracts with persons hired to directly ensure their activities;

10) with persons sent by the bodies of the employment service to work of a temporary nature and public works. Such works are organized as additional social support for citizens looking for work. The term of the employment contract for the performance of such work is determined by agreement of the parties.

The conclusion of a fixed-term employment contract is not allowed if the work for which the citizen is sent by the employment service is of a permanent nature;

11) with citizens sent for alternative civilian service. When concluding an employment contract with this category of citizens, it should be borne in mind that the status of citizens undergoing alternative civilian service is established by the Federal Law of July 25, 2002 N 113-FZ "On Alternative Civil Service" * (19) in accordance with the Constitution of the Russian Federation .

Alternative civilian service is a special type of labor activity in the interests of society and the state, carried out by citizens in return for conscription military service. The procedure for sending citizens to alternative civilian service is determined by the named Federal Law, other federal laws, the Regulations on the procedure for performing alternative civilian service, approved by Decree of the Government of the Russian Federation of May 28, 2004 N 256 * (20), and other regulatory legal acts adopted in accordance with them acts of the Russian Federation. The labor activity of citizens undergoing alternative civilian service is regulated by the Labor Code, taking into account the specifics provided for by this Law.

5) with creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works in accordance with the lists of works, professions, positions of these workers, approved by the Government Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations.

6) with heads, deputy heads and chief accountants of organizations. At the same time, it does not matter what the organizational and legal form of these organizations is - a joint-stock company, a limited liability company, a state unitary enterprise, etc.

In accordance with Part 1 of Art. 275 of the Labor Code, the term of the employment contract with the head of the organization is determined by the constituent documents of the organization or by agreement of the parties. Based on this, it should be assumed that by agreement of the parties, the term of the employment contract with the head of the organization is determined if it is not established by the constituent documents of the organization;

7) with persons studying full-time education;

8) with persons entering a part-time job.

Part-time employment is the performance by an employee of another regular paid job on the terms of an employment contract in his spare time from his main job (Article 282 of the Labor Code). The conclusion of employment contracts for part-time work is allowed with an unlimited number of employers, unless otherwise provided by federal law. Part-time work can be performed by an employee both at the place of his main job, and with other employers. It is not allowed to work part-time for persons under the age of 18, in heavy work, work with harmful and (or) dangerous working conditions, if the main work is associated with the same conditions, as well as in other cases provided for by the Labor Code and other federal laws.

The employment contract must indicate that the work is part-time.

4. Except for the cases listed in part 2

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

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

Conclusion of a fixed-term employment contract

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

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

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

Note! You should not conclude a fixed-term employment contract just to have an additional basis for terminating the employment contract. In the event of a court proceeding and establishing in the course of it the fact of the repeated conclusion of fixed-term employment contracts for a short period to perform the same labor function, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period.

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

Termination of a fixed-term contract

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

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

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

Here is an example of a written notice.

Open Joint Stock Company "Sokol"

Dear Anna Viktorovna!

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

Director Zorin /P. D. Zorin/

Acquainted 15.06.2009 by Samoylenko

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

Early termination of a fixed-term employment contract

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

Outcome

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

In practice, the conclusion of indefinite employment contracts with employees is much more common. However, the employer may also need a temporary worker who needs to be hired under a temporary employment contract. In the terminology of the Labor Code of the Russian Federation - under a fixed-term employment contract.

A fixed-term contract is concluded with an employee for no more than 5 years (Article 58 of the Labor Code of the Russian Federation).

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

Registration of an employee under a fixed-term employment contract is possible only if this is due to the specifics of the upcoming work or is related to the conditions for its implementation. The Labor Code of the Russian Federation is given when the employer has the right to accept an employee for a certain period. For example, if an employee is supposed to be sent to work abroad, or if he is hired to perform the duties of a temporarily absent employee, for example, on parental leave (Article 59 of the Labor Code of the Russian Federation).

In addition, the Labor Code of the Russian Federation contains a list of cases when the conclusion of a fixed-term contract is possible simply by decision of the employer, but with the consent of the employee. So, if the employer is a small business entity and the number of employees does not exceed 35 people, then he has the right to conclude fixed-term employment contracts with any employees (regardless of what work they will perform), if they do not mind.

If there are no grounds for concluding a fixed-term employment contract, but it was nevertheless drawn up, then the court can re-qualify it as an open-ended one at the request of the employee (Article 58 of the Labor Code of the Russian Federation). A similar outcome is possible if, in the course of the proceedings, it turns out that:

• the employee agreed to sign a fixed-term contract under pressure (clause 13 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2);
• fixed-term contracts drawn up for a short period were concluded repeatedly to perform the same labor function (paragraph 14 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

Contents of a fixed-term employment contract

A fixed-term contract with an employee must necessarily indicate the period for which the contract was concluded and the basis for issuing a fixed-term contract (Article 57 of the Labor Code of the Russian Federation, Letter of Rostrud dated November 30, 2009 N 3523-6-1). If a term is not specified in the employment contract, then it will be considered concluded indefinitely (Article 58 of the Labor Code of the Russian Federation). Note that the period can be determined both by the exact date and by the onset of a certain event (Article 79 of the Labor Code of the Russian Federation, Letter of Rostrud dated December 28, 2006 N 2264-6-1).

A conscripted worker can be set a test with a duration (

Gavrikova I. A., senior scientific editor of the journal "Salary"

Summer is the time for vacations, seasonal and temporary work. During this period, fixed-term employment contracts are most often concluded. What are their features compared to perpetual contracts? What do employees and employers lose and gain when concluding a fixed-term employment contract? You will find answers to these and other questions in the article.

Labor legislation provides for two types of employment contract. According to part 1 of article 58 of the Labor Code of the Russian Federation, contracts can be concluded:

For undefined period;

for a specified period, but not more than five years. Let's talk more about a fixed-term employment contract.

When they conclude

In some cases, the nature of the upcoming work or the conditions for its implementation do not allow formalizing an employment relationship with an employee for an indefinite period. Therefore, a fixed-term employment contract is concluded with him.

The grounds for concluding a fixed-term employment contract are listed in Part 1 of Article 59 of the Labor Code. And in part 2 of article 59 of the Labor Code of the Russian Federation, cases are prescribed when a fixed-term employment contract can be concluded by agreement of the parties (see table below). At the same time, the list of grounds for establishing the term of labor relations is exhaustive. This is also stated in the letter of Ros-Labor dated December 18, 2008 No. 6963-TZ.

Table.

* The list of works, professions, positions of creative workers was approved by the Decree of the Government of the Russian Federation of April 28, 2007 No. 252.

If there are no specified grounds when registering an employment relationship, the employer cannot conclude a fixed-term employment contract with the employee. Otherwise, in a labor dispute, this fact will be qualified as a violation of the employee's rights. In addition, it is impossible to conclude fixed-term employment contracts repeatedly without a temporary break when it comes to employees performing the same job function. This, in particular, is stated in paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution No. 2). Given the circumstances of the case, such contracts may be considered concluded for an indefinite period.

We draw up a fixed-term employment contract

Now let's move on to the execution of a fixed-term employment contract. As mentioned above, it is concluded only if there are grounds established by the Labor Code or other federal law. Therefore, when drawing up a contract, it is necessary to indicate for what reasons it is concluded with an employee for a certain period. This requirement is set out in paragraph 4 of part 2 of article 57 of the Labor Code of the Russian Federation.

Mandatory terms of an employment contract

A fixed-term employment contract, like any other, must contain mandatory conditions. According to part 2 of article 57 of the Labor Code, these are:

place of work;

labor function;

date of commencement of work;

salary;

mode of operation;

compensation;

the nature of the work;

condition on compulsory social insurance, etc.

How to determine the terms of the contract

The condition on the term of the employment contract is probably one of the most important points of this document. Without it, the contract would not be considered urgent. Therefore, we will pay special attention to it. How to formulate a term condition? It all depends on the circumstances of the contract. Let's consider them.

The end date of the contract is set. If a specific date is set when the term of the employment contract ends, it must be written in the document. Recall that a fixed-term contract can be concluded for a period not exceeding five years.

In particular, the expiration date of a fixed-term employment contract is indicated in the case when an employing organization is created to perform specific work. Accordingly, employees will be hired for a period not exceeding their duration. This also applies to seasonal work (if the specific end date of the season is known) and elected positions.

Let's consider how a term record can be formulated using an example.

Example 1

L.D. Smekhov got a job at Veseli Gorki LLC (amusement park) as a janitor. The park is open to visitors from May 1 to October 1. The employer concluded a fixed-term employment contract with him for the period of the park operation. How to reflect the term condition in the document?

Solution

The clause of the contract, in which the condition on the term of its validity is written, will look like this:

"2. Contract time

2.3. The contract is concluded for five months for the period of operation of the amusement park from May 1 to September 30.

An end date for the contract has not been set. In some cases, it is impossible to determine the end date of the employment contract. Here are some typical situations when the contract prescribes a condition on its validity period, and not a specific date. So, the conclusion of a fixed-term employment contract is possible:

• in connection with the departure of the employee on maternity leave and parental leave;

illness of an employee;

• performance of seasonal work.

In these cases, the expiration of the employment contract is associated with a specific event, for example, the return of an employee to work after a long illness. In this regard, Resolution No. 2 provides the following explanations. If a fixed-term employment contract is concluded for the performance of certain work, and the exact date of its completion is unknown, the contract is terminated upon completion of this work by virtue of part 2 of Article 79 of the Labor Code.

Example 2

Confectioner P.L. Pryanishnikova was accepted into Vanil LLC for the duration of the confectioner V.A. Kalacheva course of treatment in a hospital since August 1, 2010. With P.L. Pryanishnikova signed a fixed-term employment contract. How will the condition on the term of the contract be spelled out if it is not known exactly when V.A. Kalacheva will return to her workplace?

Solution

In the employment contract with P.L. Pryanishnikova should have the following wording:

"2. Contract time

2.1. The Agreement comes into force from the day it is concluded by the Employee and the Employer (or from the day the Employee is actually admitted to work with the knowledge or on behalf of the Employer or his representative).

2.3. The contract was concluded for the period of temporary disability of the confectioner V.A. Kalacheva, who retains her job.

2.4. The term of the contract is determined until the return of the main employee V.A. Kalacheva.

2.5. In the event that the main employee V.A. Kalacheva disability with limited ability to work or dismissal, the Employer extends this contract with the Employee replacing him for an indefinite period.

Probation

Is it possible to establish a probationary period when concluding a fixed-term employment contract? It all depends on how long and for what work the employee is hired.

Seasonal work. When concluding an employment contract for the duration of seasonal work, a trial period of more than two weeks cannot be established (Article 70 of the Labor Code of the Russian Federation). At the same time, the seasonality condition must be included in the text of the contract in accordance with Article 294 of the Labor Code.

Temporary work. When drawing up a fixed-term contract for the duration of temporary work (up to two months), a probationary period is not established (Article 289 of the Labor Code of the Russian Federation).

Other works. When concluding an employment contract for a period of two to six months, the test cannot exceed two weeks (Article 70 of the Labor Code of the Russian Federation).

Recall that according to Article 70 of the Labor Code of the Russian Federation, a test for employment is also not established:

• pregnant women and women with children under the age of one and a half years;
• persons elected on the basis of a competition for the relevant position held in accordance with the procedure established by labor legislation and other regulatory legal acts containing labor law norms;

under the age of 18;

• graduates of state-accredited educational institutions of primary, secondary and higher vocational education and for the first time entering a job in the acquired specialty within one year from the date of graduation from the educational institution;

elected to an elective position for a paid job;

• invited to work in the order of transfer from another employer as agreed between employers;
• to other persons in cases stipulated by the Labor Code, other federal laws, a collective agreement.

The probation period may not exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise established by federal law.

We draw up a fixed-term employment contract

Let's proceed directly to the design of the document. As we have already noted above, all mandatory conditions must be included in it.

Particular attention should be paid to the reasons why a fixed-term employment contract is concluded, and to the timing of its expiration. Let's take this document as an example.

Example 3

Civil engineer E.V. Nezabudkin was hired by Project-Design LLC, created specifically to service the international youth sports games Sportlantida, planned in Volgograd in August 2010. Preparation for them began in January 2010, construction work should be completed on July 15, 2010. The organization will function until July 31, 2010. With E.V. Nezabud-kin need to conclude a fixed-term employment contract for the period of existence of this organization. How to compose it?

Solution

The fixed term contract is below.

Entry in the work book upon employment

According to clause 4 of the Rules for maintaining and storing work books, preparing work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225, information about the employee, the work performed by him, transfer to another permanent job, dismissal, as well as the grounds for termination of the employment contract and information on the award for success in work.

Accordingly, if a fixed-term employment contract is concluded with an employee for any period, it is necessary to make an entry about this in the work book or start a new one, if there is none. The employer must make a record of hiring a conscript in the work book if he has worked for him for more than five days and this work is the main one for this employee. This is the requirement of paragraph 3 of the Rules for maintaining and storing work books, preparing work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225.

However, this does not mean that it is necessary to indicate in the work book that it is a fixed-term employment contract that has been concluded. Also, attention is not focused on the fact that an employee, for example, replaces an absent specialist. It is enough to make a standard entry, for example: “Employed as a mechanic”, indicating the serial number of the entry, the date, as well as the details of the employment order. This, in particular, is stated in the letter of the Federal Service for Labor and Employment of 04/06/2010 No. 937-6-1.

Vacation of a conscript worker

An employee who has entered into a fixed-term employment contract is generally granted annual paid leave with the preservation of the place of work and earnings (Article 114 of the Labor Code of the Russian Federation). Its duration is at least 28 calendar days per working year (Article 115 of the Labor Code of the Russian Federation). If the employee has worked less than a year, the duration of the vacation is calculated in proportion to the hours worked.

The right to use leave for the first year of work arises for the employee after six months of his continuous work with this employer (part 2 of article 122 of the Labor Code of the Russian Federation).

Holidays are paid on the basis of the average wage, which is calculated according to the rules established in Article 139 of the Labor Code, as well as in the Regulation on the peculiarities of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922.

In accordance with part 1 of article 128 of the Labor Code of the Russian Federation for family reasons and other good reasons, an employee, on the basis of his written application, may be granted leave without pay for the duration established by the labor legislation of the Russian Federation and the employer's internal labor regulations.

Extension of a fixed-term employment contract

In what cases can a fixed-term employment contract be extended? Let's consider several situations.

Mandatory extension of the contract

The validity of a fixed-term employment contract can be mandatory extended only in one case - if it coincides with the period of the employee's pregnancy. In this situation, the employer is obliged to extend the term of the employment contract until the end of the pregnancy. This is stated in part 2 of article 261 of the Labor Code.

The employee must submit a written application and bring a medical certificate confirming the state of pregnancy.

Extension by agreement of the parties

Part 4 of Article 58 of the Labor Code states the following. In the event that neither of the parties demanded the termination of a fixed-term employment contract due to its expiration and the employee continues to work, the condition on the urgent nature of the employment contract becomes invalid. After that, the employment contract is considered concluded for an indefinite period. Does the fact of changing the status of a fixed-term contract to an open-ended contract need to be documented?

In fact, the change in the status of the contract occurs automatically. After that, the conscript employee is subject to the labor law norms that are provided for employees who have concluded open-ended employment contracts. For example, such an employee can no longer be fired on the basis of the expiration of the employment contract (clause 2, article 77 of the Labor Code of the Russian Federation).

However, in this case, it is desirable to draw up a number of documents. Such recommendations are given in the letter of Rostrud dated November 20, 2006 No. 1904-6-1.

First of all, this is an additional agreement to the employment contract. It is possible to give the following wording in it: “To state clause No. ... in the following wording: “This employment contract is concluded for an indefinite period””.

Fixed term contract with pensioner

Often, employers enter into fixed-term contracts with pensioners. At the same time, many believe that this is the only form of relationship with this category of workers. However, it is not. The Ruling of the Constitutional Court dated May 15, 2007 No. 378-O-P states that when concluding an employment contract with a pensioner, a period can be set only by agreement of the parties. A similar conclusion is contained in paragraph 13 of Resolution No. 2.

Therefore, it is possible to conclude employment contracts with pensioners for an indefinite period. There is also no need to dismiss an employee who has received the status of a pensioner and conclude a fixed-term contract with him. He can continue to work on the basis of a previously concluded open-ended contract.

Termination of a fixed-term employment contract

An employment contract with a conscript employee is terminated due to the expiration of its validity. This is stated in part 1 of article 79 of the Labor Code of the Russian Federation. The procedure for terminating a fixed-term employment contract is regulated by Article 79 of the Labor Code of the Russian Federation. The termination of the employment contract upon the expiration of the term of the employee is warned in writing at least three calendar days before the dismissal. Only in the case when a fixed-term contract is concluded with an employee for the period of replacement of an absent specialist, the employer may not warn him in advance.

The notification is made in any form. It must specify the term for terminating the contract and the rationale (for example, in connection with the completion of work).

Dismissal order

After the employee is notified of the expiration of the employment contract and there are no obstacles to its termination, the manager issues an order to dismiss the employee. For this, there are two unified forms No. T-8 and T-8a (in the event of the dismissal of several employees), which are approved by the Decree of the State Statistics Committee of Russia of 01/05/2004 No. 1 "On approval of unified forms of primary accounting documentation for accounting for labor and its payment".

A fixed-term employment contract may also be terminated on the general grounds established in Article 77 of the Labor Code of the Russian Federation, namely:

• by agreement of the parties (Article 78 of the Labor Code of the Russian Federation);
• the initiative of the employee (Article 80 of the Labor Code of the Russian Federation);
• the initiative of the employer (Article 81 of the Labor Code of the Russian Federation).

Entry in the workbook

On the day the employment contract is terminated, the employee must be given a work book in his hands (part 4 of article 84.1 of the Labor Code of the Russian Federation).

According to paragraph 5.2 of the Instructions for filling out work books, approved by Decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69, upon termination of an employment contract on the grounds provided for in Article 77 of the Labor Code of the Russian Federation, a dismissal entry is made in the work book with reference to the corresponding paragraph of this article.

On a note

When to dismiss an employee if a fixed-term employment contract terminates on a holiday or weekend? According to Article 14 of the Labor Code of the Russian Federation, the expiration date of the employment contract, if the last day is a non-working day, is considered the next working day following it.

In the event of the dismissal of a conscript employee, when making an entry on the termination of a fixed-term employment contract, it is necessary to refer to clause 2 of part 1 of article 77 of the Labor Code of the Russian Federation. The wording will look like this: "Fired due to the expiration of the employment contract, clause 2 of part 1 of article 77 of the Labor Code of the Russian Federation."

After receiving the work book, the employee must sign in the book of accounting for work books and inserts to them in the form approved in Appendix 3 to the Decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69, and on the last page of the personal card, the unified form of which No. T-2 was adopted by the Decree Goskomstat of Russia dated 05.01.2004 No. 1.

If temporary disability coincided with the expiration of a fixed-term contract

If an employee is on sick leave at the time when his contract expires, the fixed-term employment contract is not extended. An employee is fired for general reasons. However, sick leave must be paid. Article 183 of the Labor Code of the Russian Federation obliges the employer to do this. It states that in the event of temporary disability, the employer pays the employee temporary disability benefits in accordance with federal laws.

In turn, paragraph 2 of Article 5 of the Federal Law of December 29, 2006 No. 255-FZ “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood” states that temporary disability benefits are paid to insured persons not only during the period of employment agreement, but also in cases where the disease or injury occurred within 30 calendar days from the date of termination of its validity.

Taxation and retirement benefits

Labor legislation requires the employer on the last working day of the employee to pay him wages for hours worked (Article 140 of the Labor Code of the Russian Federation) and compensation for unused vacation (Part 1 of Article 127 of the Labor Code of the Russian Federation). It is permissible to establish other payments in a collective or employment agreement.

Thus, part 4 of article 178 of the Labor Code states that labor or collective agreements can establish not only the payment of severance benefits not provided for by parts 1-3 of article 178 of the Labor Code of the Russian Federation, but also increased amounts of severance benefits.

Upon dismissal, the employee is paid wages for the time worked, and in some cases - severance pay.

The first two payments are subject to:

personal income tax (clause 1, article 210 of the Tax Code of the Russian Federation);

• insurance premiums (clause 1, article 7 of Federal Law No. 212-FZ dated July 24, 2009 “On insurance premiums to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and territorial compulsory medical insurance funds”).

The amounts of wages and compensation are included in the taxpayer's expenses for wages (part 1 of article 255 of the Tax Code of the Russian Federation).

Wages are subject to contributions for injuries (clause 3 of the Rules for the calculation, accounting and spending of funds for the implementation of compulsory social insurance against industrial accidents and occupational diseases, approved by Decree of the Government of the Russian Federation of 02.03.2000 No. 184).

Compensation is not subject to contributions for injuries (clause 1 of the List of payments for which insurance premiums are not charged to the FSS of Russia, approved by Decree of the Government of the Russian Federation of 07.07.99 No. 765).

Severance pay within the limits is not subject to personal income tax, insurance premiums (subparagraph “e”, paragraph 2, part 1, article 9 of the Federal Law of July 24, 2009 No. 212-FZ), is not subject to injury contributions (paragraph 1 of the List of payments , for which insurance premiums are not charged to the FSS of Russia), reduces the taxable base for income tax as part of labor costs (clause 9, article 255 of the Tax Code of the Russian Federation).

In accounting, wages, severance pay and compensation for unused vacation are related to expenses for ordinary activities (clause 5 PBU 10/99).

The accrual and payment to their employee is reflected in the following entries:

DEBIT 20 (23, 25, 26, 29, 44) CREDIT 70- accrued payments to the employee upon dismissal;

DEBIT 70 CREDIT 68 sub-account "Calculations for personal income tax"- personal income tax withheld from payments that are subject to this tax;

DEBIT 70 CREDIT 50 (51)- issued (listed) payments to the employee.

For more information about everything related to seasonal work, read the articles “Employee for the Season”, “Vacation of a Seasonal Worker” and “” // Salary, 2010, No. 4, 5 and 7. - Note. ed.

Read more about the extension of a fixed-term employment contract in the article "Dismissal of a seasonal worker" // Salary, 2010, No. 7. - Note. ed.

Features of termination of an employment contract with seasonal workers are discussed in the article "Dismissal of a seasonal worker // Salary, 2010, No. 7". There are also examples of filling out documents. - Note. ed.