Hiring under a fixed-term employment contract

In the practice of working with hired personnel, situations sometimes arise when the work of employees is needed not on an ongoing basis, but for some time. In this case, it is worth concluding a fixed-term employment contract with such employees. Unlike ordinary (unlimited) contractual relationships, such contractual relations cannot last longer than the time specified by law.

Fixed-term contracts have their own nuances of conclusion, which should be observed by both parties in order to avoid misunderstandings, which will then have to be resolved in court. Let us analyze the grounds for formalizing such labor relations, their legal basis, as well as the main points that employees and employers need to take into account.

Legislative justification for fixed-term contracts

The word “urgent” in the definition of this type of contract does not mean any additional speed of its execution; it comes not from “urgency”, but from “deadline”. This is how it is declared to differ from contracts that are concluded for an indefinite period.

In the usual form of employment contractual relations, the start date of work is precisely known, but the time of separation and the reasons for dismissal cannot yet be determined. But when the last condition is known to both parties, that is, both the employee and the employer know when they will terminate their cooperation agreement, it is advisable to formalize the relationship with a predetermined period - a fixed-term employment contract .

The Labor Code of the Russian Federation calls an employment contract mandatory when formalizing the “employee-employer” relationship (Article 56 of the Labor Code of the Russian Federation), and the term is its essential condition. Options when an employer gives an employee temporary employment are defined in Art. 59 Labor Code of the Russian Federation. Their determining factor is an important circumstance: a fixed-term employment contract is legal only when, for objective reasons, it is impossible to conclude a permanent one.

NOTE! To conclude such an agreement, the will of the employer and even the consent of the employee are not enough; its execution must comply with the grounds given in the legislation.
Otherwise, if you have to deal with it in court, a fixed-term contract concluded on an illegitimate basis will be recognized as unlimited.

Subject of the agreement

1.1. Under this employment contract, the Employee undertakes to fulfill the duties of his profession/position [indicate work by position in accordance with the staffing table, profession, specialty indicating qualifications; specific type of work entrusted to the employee] at [place of work, and in the case where the employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another locality, the place of work indicating the separate structural unit and its location], and The Employer undertakes to provide the Employee with the necessary working conditions provided for by labor legislation, as well as timely and full payment of wages.

1.2. Working conditions at the workplace in terms of the degree of harmfulness and (or) danger are [optimal (class 1)/permissible (class 2)/harmful (specify the class and subclass of harmfulness)/hazardous (class 4)].

1.3. The employment contract was concluded [indicate the basis for concluding a fixed-term employment contract, provided for in Art. 59

Labor Code of the Russian Federation] for a period of [specify the period, if it can be determined].

1.4. The employee must begin work on [day, month, year]. The employment contract is terminated [indicate a specific date or event upon the occurrence of which the termination of the employment contract is associated].

1.5. Work under this agreement is the main place of work for the Employee.

1.6. The probationary period for hiring is [specify the period]./The employee is hired without a probationary period.

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The attractiveness of fixed-term employment contracts

The party that benefits most from entering into a fixed-term rather than an open-ended contract is the employer. The reasons are obvious:

an employee on a temporary basis is more manageable;
It is easier to motivate a “conscript”, since the extension of cooperation with him directly depends on the management;
it is much easier to carry out the dismissal procedure;
an employee dismissed at the end of his term cannot challenge such dismissal;
In this way, you can get rid of any categories of employees, even the most socially protected ones.

For workers, as a rule, permanent employment is preferable, providing certain guarantees and confidence in their future. Domestic legislation and the International Labor Convention (ILO) adhere to the same position, seeking to minimize the number of workers employed on a temporary basis.

Features of a fixed-term employment contract

The determining factor in the choice in favor of the urgency of contractual relations is an important circumstance: a fixed-term employment contract is legal only when, for objective reasons, it is impossible to conclude a permanent one.

This reason must be indicated in the text of the contract.

The validity period of such an agreement cannot exceed 5 years. If the document does not indicate specific terms or an event that terminates the contractual relationship, it will automatically be considered a contract with an indefinite period. Likewise, if a period of more than five years is specified.

Termination of a fixed-term contract must be indicated in the text. This is possible in two ways:

indicating a specific date when the contract will be terminated;
designation of an event, the occurrence of which terminates the validity of the fixed-term contract.

The arrival of the final date does not mean immediate termination of work: the employee must be notified in writing 3 days in advance of the upcoming dismissal in accordance with its expiration. If this is not done, the dismissal can be challenged.

In the second case, prior notification is impossible, since the occurrence of an event automatically terminates the fixed-term contract, as provided for by its terms. Most often, such an event is the return to work of the main employee, instead of whom a temporary one was hired.

The procedure for terminating a fixed-term employment contract, including upon expiration of the term

The procedure for terminating a fixed-term employment contract is regulated by Art. 79 Labor Code of the Russian Federation. The employer warns the employee about the end of a fixed-term employment contract at least three calendar days before the date indicated in the contract as its end date.

If neither party has requested termination of a fixed-term employment contract due to its expiration and the employee continues to work after the expiration of the employment contract, the condition on the fixed-term nature of the employment contract loses force, and the employment contract is considered concluded for an indefinite period.

But there are certain features in dismissing an employee under a temporary employment contract:

an employment contract concluded for the duration of a certain work is terminated upon completion of this work;
an employment contract concluded for the duration of the duties of an absent employee is terminated when this employee returns to work;
an employment contract concluded for seasonal work is terminated at the end of the period (season) specified in the contract.

Special nuances apply to the conclusion of an employment contract for a certain period in the absence of sufficient grounds established by law. In this case, the contract is considered concluded for an indefinite period by a court decision.

If a pregnant woman works under a fixed-term contract, she remains employed in that position until the end of her maternity leave. She cannot be fired before this date. However, there are exceptions here too. If a woman is hired during the employee’s absence, and he returns to his previous position, then the pregnant woman is offered a different position. If the employer does not have a vacancy that suits her qualifications and health conditions, the contract is terminated. A pregnant employee working under a fixed-term contract can also be dismissed before the end of maternity leave if the employer’s activities are completely terminated (the employer, a legal entity or individual entrepreneur, is deregistered as a business entity).

If the contract period has expired, the employee has no right to insist on further work in this place. Management, in turn, cannot retain an employee or prevent his dismissal. If the agreements have expired, the employee notified the employer that he was stopping work, worked the last scheduled day and did not come back, this cannot be considered absenteeism. A temporary employee who resigns at his own request is not required to work the required number of days.

Dismissal of an employee upon expiration of the employment contract is usually quick and painless

With whom can you enter into fixed-term employment contracts?

Employers formalize such relationships with those employees whose nature of work does not make it possible to determine the duration of the working relationship or, on the contrary, quite clearly indicates their end. Such categories of personnel include, for example, the following:

seasonal workers;
employees hired to complete a specific type of work by a specific date;
employees who were sent to work abroad or to another branch of the organization;
specialists hired from outside to perform work not provided for by the organization’s core activities;
teachers who can work in the corresponding position only for the duration of the competition;
replacing an employee on long-term sick leave or maternity leave, etc.

Do I need a note in the work book for a fixed-term contract?

According to the legislation set out in the norms of Article 58 of the Labor Code of the Russian Federation, agreements on the labor activity of persons under a fixed-term contract are concluded for a period of no more than 5 years.
Article 59 of the Labor Code of the Russian Federation provides a list of situations when such conclusions are allowed.

IMPORTANT: It is permissible to conclude a fixed-term contract with employees only when there is official confirmation that it is impossible to conclude a permanent, open-ended contract.

In this case, the period of work may be limited to different durations. It can be less than two months for temporary or seasonal work.

Accordingly, it is not advisable to hire workers for such a period. However, according to the provisions of Article 65 of the Labor Code of the Russian Federation, an entry is made whenever the employee claims to make it.

If a person is hired as a deputy for a temporary vacancy, the period of his work may be quite long.

For example, absence from maternity leave and further leave to care for a child until the child is three years old can open up a vacancy for 3 or more years.

The same applies to university teachers and other specialists who are elected by competition for a 5-year term. In this case, keeping the book with the employer, with information about the position filled in, is extremely advisable.

Therefore, according to the regulations, the legality of making an entry is as follows:

for short-term employment relationships - up to three months, including when registering seasonal workers, the employment contract is issued at the request of its owner.
When replacing during maternity leave, in elective positions for a period of 4-5 years, the document must be submitted or issued at the place of work for first-time employed persons.

The registration of information in the labor office has minor differences with open-ended types of employment.

However, the employer is obliged to follow them in order to avoid violations of HR standards, focusing on the provisions of Article 66 of the Labor Code of the Russian Federation.

The specifics of the design are as follows:

the entry into office is identical to that made in the case of permanent employment;
the dismissal record differs in the grounds for termination of work;
the remaining provisions are also unified and based on basic norms.

Transfer to a fixed-term employment contract from an open-ended one

As a rule, employees work under an open-ended contract. However, sometimes there is a need to transfer to a fixed-term contract. This can be done, but the procedure must comply with all the rules.

Reasons for transferring to a fixed-term employment contract

An employee can only be transferred to a fixed-term contract if there are sufficient grounds for doing so. If there are no such grounds, the agreement will be considered unlimited. An employer must not enter into fixed-term agreements for the purpose of deviating from providing employees with rights and guarantees. Let's look at the reasons why an employer makes a transfer:

The employee is appointed to replace the temporarily absent employee. The latter retains his place of work.
An employee is sent to temporary work abroad.
The work involves a temporary expansion of production.
The employee has a disability.

That is, transfer to a fixed-term contract is relevant in cases where the employee’s status changes. For example, he developed health restrictions.

Is it legal to transfer to a fixed-term contract?

The issue of the legality of transferring an employee to a fixed-term agreement is extremely controversial. If the employer initially signed the employee up to an open-ended contract, he must ensure compliance with the terms of this agreement. That is, the worker receives the right to work for an unlimited time.

The contract can be terminated only on the basis of the clauses established by the Labor Code of the Russian Federation.

For this reason, transferring an employee from an open-ended to a fixed-term contract is not legal. The employer cannot, for the purpose of transfer, simply enter into an additional agreement. The employee, if desired, can easily challenge this document.

Another significant mistake is drawing up a new agreement while the previous agreement is still in effect. According to the law, if two documents apply to an employee, the document with the most favorable conditions will be valid. In this case, the most advantageous would be an open-ended contract, since it provides a larger list of rights.

IMPORTANT! Many employers believe that entering into a new agreement automatically cancels the previous agreement. However, this is a wrong position. In order for only one act to be in effect, the old act must be legally repealed.

How to legally transfer a person to a fixed-term contract?

The only legal way to transfer an employee to a fixed-term contract is to terminate the previous agreement and draw up a new one. However, you need to take into account all the disadvantages of this path:

The need to pay compensation for vacation that was not used.
The accrual of length of service for vacation registration begins anew. In order for an employee to be able to legally go on vacation, he needs to work for 6 months. For example, an employee under the first open-ended contract worked for 5 months. That is, after a month he can go on vacation. However, if the previous agreement is terminated, another agreement is drawn up, the vacation will be legal only after 6 months.
You will have to draw up cadastral documentation for the employee as a newly hired employee.

The legislation does not provide for a simplified procedure for dismissing an employee and rehiring him. The listed difficulties are related to preventing abuse.

Procedure for drawing up a new employment contract

Let's consider the legal procedure for transferring an employee to a fixed-term contract by drawing up a new agreement:

The employer conducts a conversation with the employee and offers him new working conditions. Explains the translation scheme.
The employee resigns at his own request or by agreement of the parties.
A new employment contract with a limited duration is immediately drawn up. The manager issues an order to hire a person.
The relevant information is entered into the work book.

This method of transfer is more complicated, but it is legal.

Features of termination

Termination of a fixed-term employment contract has some features. Under certain circumstances, it can be automatically extended, thereby acquiring the status of an indefinite period. This happens in cases where neither party, upon expiration of the document, expressed a desire to terminate the employment relationship.

Termination of a fixed-term employment contract must be accompanied by a written warning from the employer to the employee about the termination of the contract. Notification must be submitted at least 3 days before the end of the period. An exception is performing work for an absent person.

Please note that in the absence of warning, dismissal must occur either with the consent of the employee or on a general basis.

The end of a fixed-term employment relationship may be as follows:

Base	The moment of ending
Completion of work	Confirms the relevant document. For example, an act of completion.
Replacing another employee	His departure to work
End of period	In relation to seasonal work - the onset of a certain calendar date or climatic (temperature) minimum/maximum

The termination of the employment relationship is also accompanied by making an entry in the employment record. In this case, the wording will sound like this:

“The employment contract was terminated due to the expiration of the employment contract.”

The entry made, as with other grounds for dismissal, is signed by the company’s personnel specialist and the owner of the work book. The document must be issued to the dismissed employee on the last working day.

This is what the entry in the employment contract should look like for a fixed-term employment contract :

But in some cases, a fixed-term contract can be terminated early. The most common reasons are:

agreement of the parties;
termination at the initiative of the employee or employer;
transfer to another company;
refusal to further perform work functions due to changed labor circumstances.

And in such situations, a fixed-term employment contract does not affect the entry in the work book in any way. That is, the wording will fully correspond to the real grounds for dismissal.

Also see “Rules for filling out and maintaining a work book.”

Legitimate reasons for urgency

The law provides for two legitimate reasons for concluding a fixed-term rather than an open-ended employment contract:

Relationships are concluded strictly for a certain period, based on the nature of the work to be done and the accompanying circumstances.
The urgency of labor relations is determined by the agreement of the parties in cases where this does not contradict current legislation.

The labor legislation of the Russian Federation (Part 1 of Article 59 of the Labor Code of the Russian Federation) allows the conclusion of fixed-term contracts arising from the nature of the work in the following circumstances:

for a time when a full-time employee is absent from his workplace for objective reasons, whose workplace must be retained by law;
the upcoming work will not take more than 2 months;
to provide seasonal labor;
for foreign forms of work;
performing actions necessary for the company, but not related to its main activities (for example, installation work, repairs, reconstruction, etc.);
work associated with a limited (usually up to a year) time period, such as expanding activities, increasing capacity, volumes, etc.;
the company is specifically created for a short existence, providing a limited time for performing specific work;
labor related to vocational training and internship of employees;
election to a working elective body for a certain period;
assignment to community service;
additional cases provided for by Federal legislation (existing and possible to be adopted in the future).

A fixed-term employment contract, by agreement of the parties, can be concluded only on a limited list of grounds:

the employer is a small business representative;
employee - pensioner;
a medical employee is allowed only temporary employment;
work in the Far North and other equivalent territories;
when elected through a competition to fill a vacant position;
urgent work aimed at preventing and/or eliminating the consequences of emergency situations;
with management, deputies and chief accountants of organizations;
with creative workers (in accordance with the list of similar positions);
with pupils or full-time students;
with part-time workers;
with those working on watercraft registered in the Russian International Register of Ships;
other grounds consistent with federal laws (current and future).

Employer, remember:

You cannot conclude a fixed-term employment contract on grounds not specified in Art. 59 Labor Code of the Russian Federation;
when dismissing an employee after the expiration of a fixed-term contract, do not forget to notify him in writing 3 days in advance;
did not warn about dismissal - the contract will become indefinite.

Features of validity periods

Termination of a fixed-term contract occurs according to the specified date

The termination of a fixed-term contract is said to occur when the specified period ends. The wishes of the parties do not matter, but formally the employee or employer must express their intention to terminate the relationship.

Moreover, the dismissal takes place without payment of compensation. The only exception is compensation for vacation. The dismissal procedure itself under such circumstances is extremely simple. By law, the time frame of the contract varies up to 5 years. The document does not stipulate the terms of the work activity or its validity period is more than 5 years - it is considered unlimited.

All other time frames for drawing up a fixed-term contract only affect the procedure for establishing a probationary period. We can name other cases when a fixed-term contract begins to be considered unlimited.

If the audit reveals violations related to the impossibility of concluding a fixed-term contract, it begins to be considered unlimited.

When extended for another term, because the Labor Code does not provide for the extension of a fixed-term contract. There is only one exception: if a woman whose employment contract has ended writes a statement and indicates that she is pregnant. In this situation, the contract is extended until the full expiration of the maternity leave period.

When violations are established that were committed by management in order to save on providing the employee with the necessary rights and guarantees usual for employment. An urgent option can be converted into an indefinite one, if there is the will of both parties.