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

When can I conclude a fixed-term employment contract?

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

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

The employer must conclude a fixed-term employment contract	The employer has the right to conclude a fixed-term employment contract
For the period of absence of an employee who retains a permanent job	If the employer belongs to the subjects and has no more than 35 employees (and in the field of consumer services or retail trade - no more than 20 people)
For temporary (up to two months) and seasonal work	When hiring pensioners or persons who, for health reasons, are only entitled to temporary work
With workers who are sent to work abroad	With employees of organizations located in the regions of the Far North and equivalent areas
To perform work not related to the normal activities of the employer, such as commissioning and installation work, as well as work related to the temporary expansion of production or the scope of services	With managers, their deputies, chief accountants of organizations
To work in organizations created for a certain period or to perform certain work	With those accepted by competition for filling a position, in the manner prescribed by law
To perform work related to internships, practice, vocational training	With creative workers
With those undergoing alternative service	With full-time students
With persons elected to an elected body or to an elective position for paid work	With part-timers

Please note: an employee cannot initiate the conclusion of a fixed-term contract if there are no grounds given in Article 59 of the Labor Code of the Russian Federation. Even if the employee knows in advance how long he will work at this place (for example, he will move to another city), the employer must still conclude an open-ended employment contract.

The list of situations in which a fixed-term employment contract is concluded is incomplete, i.e. additional grounds may be adopted by federal laws. Specifying the term in the employment contract, be sure to indicate the basis on which it has the nature of urgency. The remaining mandatory conditions of a fixed-term contract are no different from an indefinite one.

The entry is made in the usual manner, while the period for which the employee was hired is not indicated. However, upon dismissal, a record that the employment contract has been terminated due to the expiration of its term is made without fail.

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

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

It is possible to prescribe in the employment contract its expiration date by a specific date or by indicating a specific event. For example, if it is not known when a permanent employee will return to work, the term in the contract can be indicated as “For the period of temporary disability of a permanent employee who retains a job” or “Until the main employee returns to his job duties.”

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

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

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

Termination of a fixed-term employment contract before the expiration date

The fact that the parties have entered into an employment contract with an indication of the term does not mean that it cannot be terminated earlier. To terminate a fixed-term contract, there are the same grounds for termination as for an indefinite one:

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

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

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

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

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

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

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

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

In case of disputes, the employer must have confirmation that the employee was informed of the termination of the employment contract. To do this, it is necessary to prepare two copies of the notice, one of which the employer keeps with the employee's signature. If the employee refuses to sign, an appropriate act is drawn up, for which at least two witnesses must be involved.

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

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

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

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

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

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 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 arises 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 us analyze this situation using the example of the Appellate Ruling of the Supreme Court of the 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. A fixed-term contract with the head of the educational institution was concluded on 09/01/2007, its validity period ended on 08/31/2010. The next day after the end of the contract - 09/01/2010 - an additional agreement was signed establishing new terms 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 hiring under a newly concluded contract of 09/01/2010, no corresponding entries were made in the work book. The plaintiff held the position of director for more than five years (from 2007 to 2013), which does not allow 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 expired in 2013, so it became necessary to formalize the employment relationship anew.

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, until the 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 performed 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, and there were no legal 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?

The answer to this question will be the 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 consent to the conclusion of the contract was given forcedly by an employee, 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. A fixed-term employment contract was concluded three times with the director of the children's center, 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 presence of a conflict relationship between an employee and an employer in itself cannot be an unconditional and sufficient evidence of psychological pressure being exerted on the will of an 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 unwanted 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 issuance of the Ruling of 25.01 by the Voronezh Regional Court .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 deceived plaintiff's hope for the mercy of the judges, but the fact that the list of grounds for concluding a fixed-term employment contract is exhaustive and 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 of a municipal institution, in the second case, by a security guard of a private enterprise. The arguments of the plaintiffs that they were misled about the extension of the employment relationship for this position in the future had no legal significance in view of the agreement by the parties to conclude 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 of the Federal Law of December 4, 2007 No. 329-FZ “On Physical Culture and Sports in the 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 of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter - Decree of the Supreme Court of the Russian Federation No. 2).

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 may 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 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 for a temporary expansion of 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 the specific period of time for which it was created or during which the work will be completed, the implementation of which is the goal of creating the 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 the organization actually 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 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 period of performing this particular work (for example, for the time of office renovation, for the period of construction of the facility). The 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 decision 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) when applying for a job 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 hard 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

The conclusion of an employment contract for a certain period is quite convenient for the employer, since upon termination of the employment relationship, no special grounds for dismissal are needed. For an employee, on the contrary, in most cases this is a necessary measure.

Nevertheless, the Labor Code establishes quite a lot of grounds for concluding a fixed-term employment contract. And if the employer still “does not have enough” grounds and he concludes such an agreement in violation of the law, as a result, the employee can be reinstated after dismissal, and the agreement can be reclassified into an open-ended one.

In the article, we will consider in which cases the conclusion and termination of a fixed-term employment contract are lawful, and in which they can be declared illegal.

Grounds for conclusion

The main rule for an employer concluding a fixed-term employment contract: all the grounds for concluding it are established by law, the Labor Code and other laws, for example, the Law of the Russian Federation of April 19, 1991 No. 1032‑1 “On Employment in the Russian Federation” (hereinafter - Law No. 1032‑ 1), Federal Law of July 27, 2004 No. 79‑FZ “On the State Civil Service of the Russian Federation”.

In the Labor Code, these grounds are divided into two groups. The first includes specific grounds for concluding such an agreement - when labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation (part 1 of article 59, 332, 348.4). And the second group - when a fixed-term employment contract can be concluded by agreement of the parties without taking into account the nature of the work to be done and the conditions for its implementation (part 2 of article 59). Let's present these bases in the table.

Grounds for concluding a fixed-term employment contract
Mandatory (part 1 of article 59 of the Labor Code of the Russian Federation)	By agreement of the parties (part 2 of article 59 of the Labor Code of the Russian Federation)
For the duration of the performance of the duties of an absent employee, who retains the place of work	With persons coming to work for employers - small businesses (including individual entrepreneurs)
For the duration of temporary (up to two months) work	With pensioners entering work by age, as well as with persons who, for health reasons, are allowed to work exclusively of a temporary nature
To perform seasonal work, when, due to natural conditions, work can only be done during a certain period (season)	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
With persons sent to work abroad	To carry out urgent work to prevent disasters, accidents, epidemics, epizootics, as well as to eliminate their consequences
To carry out 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 elected on the basis of a competition to fill the relevant position, conducted in the manner prescribed by labor legislation and other acts containing labor law norms
With persons entering work in organizations created for a predetermined period or to perform a predetermined job	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 special lists
With persons hired to perform known work in cases where its completion cannot be determined by a specific date	With heads, deputy heads and chief accountants of organizations, regardless of the organizational and legal form of the organization and form of ownership
To perform work directly related to practice, vocational training or additional professional education in the form of an internship	With persons receiving full-time education
In cases 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 crew members of seagoing vessels, inland navigation vessels and mixed (river - sea) navigation vessels registered in the Russian International Register of Vessels
With persons sent by the bodies of the employment service to work of a temporary nature and public works	With persons entering a part-time job
With citizens sent for alternative civilian service	With an employee involved in the implementation of the regional program to increase the mobility of labor resources (Art. 22.2 of Law No.   1032‑1)
With vice-rectors of an educational organization of higher education (Article 332 of the Labor Code of the Russian Federation)
With an athlete for the period of temporary transfer (Article 348.4 of the Labor Code of the Russian Federation)
In other cases provided for by federal laws

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

The legitimacy of the dismissal in connection with the expiration of its validity period depends on how legitimate (that is, in accordance with the law) the conclusion of a fixed-term employment contract. Failure to comply with the established procedure will result in the recognition of a fixed-term contract as open-ended and, accordingly, the reinstatement of the employee. And here problems can arise with the main employee if the contract was concluded, for example, during his long absence.

To prevent this from happening, the employer should remember a few rules. Most importantly, as already noted, the grounds for concluding a fixed-term employment contract must be established by the Labor Code or other federal laws. And they must be correctly applied, and this is where employers often face difficulties. For example, they confuse temporary work with seasonal work or conclude an agreement by agreement of the parties with a person not specified in Part 2 of Art. 59 of the Labor Code of the Russian Federation, apparently assuming that, by agreement of the parties, any employee can be temporarily accepted.

It is also unlawful to conclude a fixed-term employment contract when an employee is hired “for the duration of the performance of the duties of an absentee”, but in fact the position is vacant.

As for the conclusion of a fixed-term employment contract by agreement of the parties, this option will be valid only if the contract is concluded on the basis of the voluntary consent of the employee and employer. Here we note that employers often violate this condition when applying for a job, in particular, pensioners, concluding a fixed-term contract almost without fail.

Often, employers, in order not to conclude a contract for an indefinite period, conclude several fixed-term employment contracts with one person and for the performance of one job. On this occasion, the Supreme Court noted that when establishing during the trial the fact of the repeated conclusion of fixed-term employment contracts for a short period to perform the same labor function, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period (paragraph 14 of the Resolution No. 2) (see the Appellate ruling of the Arkhangelsk Regional Court dated February 20, 2013 in case No. 33‑885/2013).

And one more of the violations that are allowed by employers and may lead to the recognition of the contract as unlawful is non-compliance with its form and content requirements.

note

The employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. One copy is given to the employee, the other is kept by the employer. The receipt of a copy of the employment contract by the employee must be confirmed by his signature on the copy kept by the employer (Article 67 of the Labor Code of the Russian Federation).

If the employment contract is not executed in writing, but the employee is actually admitted to the performance of duties (part 2 of article 67 of the Labor Code of the Russian Federation), then an employment relationship has arisen between the employee and the employer. However, the courts consider that in these cases the employment contract can be considered as concluded for an indefinite period.

Speaking about the content of the employment contract, we emphasize: it must indicate the period of its validity and the circumstances (reasons) that served as the basis for its conclusion for a certain period (paragraph 4, part 2, article 57 of the Labor Code of the Russian Federation). A specific period is indicated if the moment of termination of the contract can be accurately and in advance established by the parties. If it is impossible to determine the period, then by virtue of Art. 79 of the Labor Code of the Russian Federation indicates a period of time - for example, in cases of performing certain work, the duties of an absent employee, seasonal work.

Otherwise, the employment contract will be considered concluded for an indefinite period.

note

A fixed-term employment contract is concluded for a period of not more than five years, unless a different period is established by the Labor Code or other federal laws (clause 2, part 1, article 58 of the Labor Code of the Russian Federation).

Let's name the main signs that a fixed-term employment contract is concluded legally.

A fixed-term employment contract is legally concluded if ...		... concluded in writing for a period of not more than five years and it indicates the period of validity and the circumstances (reasons) that served as the basis for its conclusion for this period
		... the grounds for his conclusion are established by the Labor Code or other federal laws
		... work on it is obviously temporary
		... by agreement of the parties (part 2 of article 59 of the Labor Code of the Russian Federation), on the basis of the voluntary consent of the employee and employer

When concluding such an agreement, remember that it is prohibited to conclude agreements of this type in order to avoid granting the rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period (part 6 of article 58 of the Labor Code of the Russian Federation).

Grounds for terminating a fixed-term contract

By virtue of Art. 79 of the Labor Code of the Russian Federation, a fixed-term employment contract terminates with the expiration of its validity. In this case, the employment contract concluded:

• for the duration of a certain work, - terminates upon completion of this work;
• for the duration of the performance of the duties of an absent employee, - terminates with the release of this employee to work;
• to perform seasonal work during a certain period (season), - terminates at the end of this period (season).

The employee must be notified in writing about the termination of the employment contract due to its expiration 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.

Of course, a fixed-term contract can also be terminated ahead of schedule in the cases established by the Labor Code of the Russian Federation, but we will consider the termination of labor relations due to the expiration of the contract.

Unlawful dismissal of an employee

The dismissal of an employee due to the expiration of the employment contract is illegal, as already noted, if the contract was concluded illegally, in particular, when there were no legal grounds for this, the term of the contract and the circumstances (reasons) that served as the basis for its conclusion were not indicated, as well as the employee did not give consent to the conclusion of the contract by agreement of the parties in accordance with Part. 2 Article. 59 of the Labor Code of the Russian Federation and was able to prove it.

In addition, dismissal will be unlawful if the event associated with the termination of the employment contract has not occurred, and the employee has already been fired. The employer has the right to dismiss the employee only if the event that determines the expiration of the contract has occurred.

If the court establishes that the fixed-term employment contract was concluded unlawfully, it can be re-qualified as concluded for an indefinite period and the employee will be reinstated.

However, in some cases, the court makes a decision based on the circumstances of the case. For example, even in the absence of a written form of an employment contract, the court may recognize the dismissal as legal if it establishes that the employee knew about the urgent nature of the employment relationship - he was familiarized with the order for employment against signature, in which there was a note on the urgent nature of the employment contract (see Appeal ruling of the Sakhalin Regional Court dated March 3, 2016 in case No. 33‑540/2016).

The dismissal is not always recognized as illegal even if there are no circumstances (reasons) in the fixed-term contract that served as the basis for its conclusion. Thus, dismissal was recognized as legal in the case when the circumstances of concluding a fixed-term employment contract were not indicated in it, but in fact existed and were provided for by the Labor Code (see the Appeal ruling of the Supreme Court of the Republic of Karelia dated 09/01/2015 in case No. 33-3390 / 2015).

But if its term is not indicated in the fixed-term employment contract, such a dismissal will be recognized as unlawful (Determination of the Moscow City Court of December 12, 2014 No. 4g / 8-13140).

note

Dismissal due to the expiration of the employment contract of a pregnant employee is allowed if the contract was concluded for the duration of the duties of the absent employee, and the woman cannot be transferred with her written consent to another job available to the employer before the end of pregnancy. In other cases, the employment contract is extended on the basis of the employee’s application until the end of pregnancy or maternity leave (parts 2, 3 of article 261 of the Labor Code of the Russian Federation).

With regard to the employer's failure to comply with the notification procedure, the position of the judges is ambiguous. In some situations, the courts indicate that non-compliance with the requirements of Part 1 of Art. 79 of the Labor Code of the Russian Federation on a written notification of an employee about the termination of an employment contract due to the expiration of its validity period cannot be an independent basis for recognizing the dismissal as illegal (see the Appeal ruling of the Irkutsk Regional Court dated 01/23/2013 in case No.   33-450 / 13). In others, that the will of the parties to terminate the employment relationship must be supported by evidence, one of which may be a notice to the employee of dismissal in accordance with Part 1 of Art. 79 of the Labor Code of the Russian Federation. Moreover, the dismissal will certainly be recognized as illegal if the employee, in violation of Art. 84.1 of the Labor Code of the Russian Federation was not familiar with the dismissal order. Non-compliance by the employer with the established Art. 79, 84.1 of the Labor Code of the Russian Federation, the dismissal procedure is essential for recognizing the dismissal as unlawful (see the Appeal ruling of the Krasnodar Regional Court dated May 17, 2012 in case No. 33-7701 / 2012).

In any case, if the contract is concluded for the duration of the performance of the duties of the absent employee, it is not necessary to warn about the termination of the contract.

Thus, it is possible to identify the main reasons when dismissal due to the expiration of the employment contract will be illegal.

Dismissal due to the expiration of the employment contract is unlawful if ...	…there are no legal grounds for concluding a fixed-term contract
	... there is no written form of the contract (an exception is possible if the employee signed the order with the specified contract validity period)
	...the contract does not specify the duration of its validity
	... the contract does not indicate the circumstances that served as the basis for its conclusion (an exception is when these circumstances are not in doubt, for example, if the employee is a pensioner)
	... a fixed-term contract was entered into under duress
	... the employee was dismissed before the occurrence of an event that determines the expiration date of the employment contract
	... a pregnant woman is fired, and she wrote an application for an extension of the contract
	... a pregnant employee, with whom the contract was concluded for the duration of the duties of an absent employee, was not offered a transfer to another position

We talked about what to look for when concluding a fixed-term employment contract, about what causes such a contract to be recognized as indefinite, as well as about the most common cases when the dismissal of a “conscript” may be considered illegal. In this situation, the employer will not only have to reclassify the employment contract into an open-ended one and reinstate the employee, but also pay him the average salary for the time of forced absenteeism, compensation for legal costs and non-pecuniary damage. We hope that you will take into account all of the above when concluding fixed-term employment contracts. Most importantly, apply only the grounds provided for by law. And of course, the agreement of the parties on the establishment of a period in accordance with Part 2 of Art. 59 of the Labor Code of the Russian Federation can only be voluntary.

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

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

The court decisions mentioned in the article can be found: "Judicial practice" section of the ConsultantPlus system

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

A fixed-term employment contract with a pensioner is possible

A.N. Gladysheva, Samara

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

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

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

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

M.I. Mavlyanova, Taman

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

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

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

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

The term for which it is concluded;

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

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

NOT. Maxaim Trankova, Mozhaisk

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

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

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

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

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

Work for up to 2 months is always temporary

I.Yu. Duyunova, Novorossiysk

We want to hire an employee to replace the main employee during a rather long vacation. What is the contract with him to conclude?

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

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

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

S.A. Belonogov, St. Petersburg

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

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

Can a fixed term contract be extended?

E.A. Tereshchenko, Ulyanovsk

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

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

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

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

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

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

Not all summer jobs are seasonal

G.A. Panarina, Shadrinsk

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

: Not. Seasonal work should be due to the peculiarities of climatic and other natural conditions (for example, rafting and logging; heating season in housing and communal services). Types of seasonal work are determined in special lists contained in Art. 293 of the Labor Code of the Russian Federation:

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

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

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

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

I.Yu. Tupeeva, Kazan

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

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

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

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

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

L.A. Efremova, Togliatti

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

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

It is possible to formulate a condition on the transformation of a fixed-term contract into a contract for an indefinite period as follows.

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

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

A temporary worker on sick leave can be fired

ON THE. Kisileva, Pskov

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

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

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

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

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

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

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

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

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

S.A. Bragin, Vologda

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

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

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

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

E.V. Mishukov, Astrakhan

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

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

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

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

K.A. Vakhteeva, Smolensk

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

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

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

ON THE. Nakul, Ryazan

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

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