[F. I.O./Full name of the employer] represented by [position name, full name], acting on the basis of the [Charter, regulations, power of attorney], hereinafter referred to as the “Employer”, on the one hand, and a citizen of the Russian Federation
[F. Acting Employee], hereinafter referred to as the “Employee”, on the other hand, collectively referred to as the “Parties”, have entered into this agreement as follows:
1. The 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 area, 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. Work under this agreement is the main place of work for the Employee.
1.3. Working conditions in 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)].
1.4. The probationary period for hiring is [specify the period]./The employee is hired without a probationary period.
1.5. An employment contract is concluded for the performance of clearly defined work, the completion of which cannot be determined by a specific date.
1.6. The employee must begin work on [day, month, year].
1.7. The employment contract is terminated upon completion of the work assigned to the Employee.
1.8. The employee is obliged to complete the work assigned to him no later than [date, month, year].
2. Rights and obligations of the employee
2.1. The employee has the right to:
Conclusion, amendment and termination of an employment contract in the manner and under the conditions established by the Labor Code of the Russian Federation and other federal laws;
Providing him with work stipulated by the employment contract;
A workplace that meets state regulatory requirements for labor protection and the conditions provided for by the collective agreement [if any];
Timely and full payment of wages in accordance with your qualifications, complexity of work, quantity and quality of work performed;
Rest ensured by the establishment of normal working hours, reduced working hours for certain professions and categories of workers, the provision of weekly days off, non-working holidays, paid annual leave;
Complete reliable information about working conditions and labor protection requirements in the workplace;
Preparation and additional professional education in the manner established by the Labor Code of the Russian Federation and other federal laws;
Association, including the right to create trade unions and join them to protect their labor rights, freedoms and legitimate interests;
Participation in the management of the organization in the forms provided for by the Labor Code of the Russian Federation, other federal laws, if any, and by the collective agreement;
Conducting collective negotiations and concluding collective agreements and agreements through their representatives, as well as information on the implementation of the collective agreement and agreements;
Protection of your labor rights, freedoms and legitimate interests by all means not prohibited by law;
Resolution of individual and collective labor disputes, including the right to strike, in the manner established by the Labor Code of the Russian Federation and other federal laws;
Compensation for damage caused to him in connection with the performance of labor duties, and compensation for moral damage in the manner established by the Labor Code of the Russian Federation and other federal laws;
Compulsory social insurance in cases provided for by federal laws;
Labor legislation
2.2. The employee is obliged:
Conscientiously fulfill his labor duties assigned to him by the employment contract;
Comply with internal labor regulations;
Maintain labor discipline;
Comply with established labor standards;
Comply with labor protection and occupational safety requirements;
Treat with care the property of the Employer (including the property of third parties held by the Employer, if the Employer is responsible for the safety of this property) and other employees;
Immediately inform the Employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the Employer’s property (including the property of third parties held by the Employer, if the Employer is responsible for the safety of this property);
Labor legislation and other regulatory legal acts containing labor law norms, collective agreements, local regulations].
3. Rights and obligations of the employer
3.1. The employer has the right:
Conclude, amend and terminate an employment contract with the Employee in the manner and under the conditions established by the Labor Code of the Russian Federation and other federal laws;
Conduct collective negotiations and conclude collective agreements;
Encourage the Employee for conscientious, effective work;
Demand that the Employee fulfill his job duties and take care of the property of the Employer (including the property of third parties located by the Employer, if the Employer is responsible for the safety of this property) and other employees, and compliance with internal labor regulations;
Bring the Employee to disciplinary and financial liability in the manner established by the Labor Code of the Russian Federation and other federal laws;
Adopt local regulations;
Create associations of employers for the purpose of representing and protecting their interests and join them;
Create a works council;
- [other rights provided for by the current Labor legislation and other regulatory legal acts containing labor law norms, collective agreements, local regulations].
3.2. The employer is obliged:
Comply with labor legislation and other regulatory legal acts containing labor law norms, local regulations, terms of the employment contract, agreements, collective agreement [if any];
Provide the Employee with work stipulated by the employment contract;
Ensure safety and working conditions that comply with state regulatory labor protection requirements;
Provide the Employee with equipment, tools, technical documentation and other means necessary to perform his job duties;
Provide the Employee with equal pay for work of equal value;
Pay the full amount of wages due to the Employee within the terms established in accordance with the Labor Code of the Russian Federation, the collective agreement [if any], internal labor regulations, and the employment contract;
Conduct collective negotiations, as well as conclude a collective agreement in the manner established by the Labor Code of the Russian Federation;
Provide employee representatives with complete and reliable information necessary for concluding a collective agreement, agreement and monitoring their implementation;
Introduce the Employee, against signature, to the adopted local regulations directly related to his work activity;
Timely comply with the instructions of the federal executive body authorized to exercise federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms, other federal executive bodies exercising state control (supervision) in the established field of activity, pay fines imposed for violations of labor legislation and other regulatory legal acts containing labor law norms;
Consider submissions from the relevant trade union bodies and other representatives elected by employees about identified violations of labor legislation and other acts containing labor law norms, take measures to eliminate the identified violations and report on the measures taken to the specified bodies and representatives;
Create conditions that ensure the Employee’s participation in the management of the organization in the forms provided for by the Labor Code of the Russian Federation, other federal laws and the collective agreement [if any];
Provide for the Employee’s everyday needs related to the performance of his job duties;
Carry out compulsory social insurance of the Employee in the manner established by federal laws;
Compensate for harm caused to the Employee in connection with the performance of his labor duties, as well as compensate for moral damage in the manner and under the conditions established by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation;
- [other duties provided for by the current Labor legislation and other regulatory legal acts containing labor law norms, collective agreements, local regulations].
4. Working time and rest time
4.1. The employee is assigned [a five-day work week with two days off/a six-day work week with one day off/a work week with days off on a sliding schedule/a part-time work week].
4.2. The duration of daily work/part-time work is [value] hours.
4.3. The start and end times of work, the time of the break and its duration [in the case of providing days off on a sliding schedule - alternating working and non-working days] are established by the internal labor regulations.
4.4. The employee is granted annual basic paid leave of [value] calendar days.
4.5. The employee is granted an additional annual paid leave of [value] calendar days [indicate the basis for providing additional leave].
4.6. For family reasons and other valid reasons, the Employee, upon his written application, may be granted leave without pay, the duration of which is determined by agreement between the Employee and the Employer.
5. Terms of payment
5.1. The employee is paid a salary of [amount in figures and words] rubles.
5.2. Additional payments and allowances of a compensatory nature, including for work in conditions deviating from normal conditions, systems of additional payments and incentive allowances and bonus systems are established by a collective agreement, agreements, local regulations and other regulatory legal acts containing labor law norms.
5.3. Wages are paid to the Employee [indicate specific dates of the calendar month]./ Wages are paid to the Employee at least every half month on the day established by the internal labor regulations.
5.4. When performing work outside the normal working hours, at night, on weekends and non-working holidays, when combining professions (positions), when performing the duties of a temporarily absent employee, the Employee is paid appropriate additional payments in the manner and amount established by the collective agreement and local regulations.
5.5. During the period of validity of this employment contract, the Employee is subject to all guarantees and compensation provided for by the current labor legislation of the Russian Federation.
6. Responsibility of the parties
6.1. In case of failure or improper performance by the Employee of his duties specified in this employment contract and job description, violation of the labor legislation of the Russian Federation, as well as causing material damage to the Employer, he bears disciplinary, financial and other liability in accordance with the current legislation of the Russian Federation.
6.2. The Employer bears financial and other liability to the Employee in accordance with the current legislation of the Russian Federation.
7. Final provisions
7.1. Disputes between the Parties arising during the execution of this employment contract are considered in the manner established by the Labor Code of the Russian Federation and other federal laws.
7.2. In all other respects that are not provided for in this employment contract, the Parties are guided by the legislation of the Russian Federation governing labor relations.
7.3. The employment contract is concluded in writing, drawn up in two copies, each of which has equal legal force.
7.4. All changes and additions to this employment contract are formalized by a bilateral written agreement.
7.5. This employment contract may be terminated on the grounds provided for by current labor legislation.
8. Details and signatures of the parties
I received a copy of the employment contract [date, month, year] [signature, surname, initials of the employee]
With whom and for what period can a fixed-term employment contract be concluded?
A fixed-term employment contract is drawn up in cases established by law. If an agreement is unreasonably concluded for a certain period, then in court it can be recognized as unlimited. Read on to learn about the grounds and rules for drawing up, as well as the specifics of terminating such an agreement.
Grounds for concluding a fixed-term employment contract
A fixed-term employment contract is an employment contract that stipulates a specific deadline for the completion of the labor relationship between the parties (Article 58 of the Labor Code of the Russian Federation).
The grounds for concluding an employment contract for a certain period can be divided into 2 groups:
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Cases when only a temporary employment contract is drawn up (Part 1 of Article 59 of the Labor Code of the Russian Federation) |
Cases when a temporary employment contract is drawn up by agreement of the parties (Part 2 of Article 59 of the Labor Code of the Russian Federation) |
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Carrying out the duties of a temporarily absent employee |
An old-age pensioner going to work |
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Carrying out duties abroad |
Moving to work in an organization located in the Far North |
|
Performing seasonal work |
Drawing up an agreement with a full-time student |
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Performing temporary work for up to 2 months, etc. |
Drawing up an agreement with the director, chief accountant, their deputies, the head of a branch or representative office, etc. |
Important! Conclusion of a fixed-term employment contract under Part 2 of Art. 59 of the Labor Code of the Russian Federation is permissible only if there is voluntary consent of both parties to the agreement (paragraph 2, paragraph 13 of the resolution of the plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2). Expression of will of persons not listed in Part 2 of Art. 59 of the Labor Code of the Russian Federation, when assessing the existing grounds for concluding a fixed-term employment contract, the judicial body is not taken into account (see the ruling of the Krasnoyarsk Regional Court dated November 28, 2012 in case No. 33-10385/2012).
A temporary employment contract, concluded in the absence of sufficient grounds identified in court, can be qualified as unlimited with all the ensuing legal consequences (including reinstatement of the dismissed person, payment of appropriate compensation, etc.).
A sample fixed-term employment contract can be downloaded from the link: Fixed-term employment contract - template.
Recognition by courts of fixed-term employment contracts as concluded for an indefinite period: common situations
The judicial authority recognizes a temporary employment contract as valid for an indefinite period in the following cases:
- The grounds for concluding an agreement are not specified (paragraph 10, article 57 of the Labor Code of the Russian Federation). To avoid qualifying the contract as unlimited, the employer must prove that the grounds regulated by law actually existed, although they were not spelled out. For example, the ruling of the Kamchatka Regional Court dated 05.21.2015 in case No. 33-808/2015 and the ruling of the Supreme Court of the Republic of Karelia dated 01.09 .2015 in case No. 33-3390/2015.
- The contract was concluded for a certain period on the grounds regulated by paragraph. 1-13 tbsp. 59 of the Labor Code of the Russian Federation, but in fact the worker’s functionality does not go beyond the standard activities of the organization (decision of the KhMAO-Yugra court dated December 6, 2011 in case No. 33-5544/2011).
- A temporary employment contract was signed with the head of a structural unit of a legal entity in the absence of other grounds regulated by Art. 59 Labor Code of the Russian Federation. For the head of a structural unit, the rules of paragraph. 21 Art. 59 of the Labor Code of the Russian Federation do not apply (see the ruling of the Moscow City Court dated December 18, 2013 in case No. 4g/8-12759).
- An employment contract for a certain period was concluded under duress (paragraph 3, paragraph 13 of resolution No. 2). Usually the court interprets the very fact of a person signing an agreement as its voluntary conclusion (for example, the ruling of the Supreme Court of the Republic of Tatarstan dated December 1, 2014 in case No. 33-16227/2014). In the situation under consideration, witness testimony can be cited as evidence of forced signing of the contract (see the ruling of the Voronezh Regional Court dated January 25, 2011 No. 33-340).
Conclusion of a temporary employment contract: determining the period
Important! The longest period for which an employment contract can be concluded is, as a general rule, 5 years (Article 58 of the Labor Code of the Russian Federation).
The end of a temporary employment contract is tied to a specific date or the occurrence of certain circumstances. Thus, if a fixed-term employment contract was concluded to perform work, the exact completion date of which cannot be established, the contract will be considered to have ended upon completion of such work.
Another option is when a fixed-term contract is signed with an employee accepted into the staff of an organization created for a predetermined period or to achieve an established goal. In this situation, its termination is possible only in the event of the actual termination of the organization’s activities without the transfer of its rights and obligations through succession (clause 14 of Resolution No. 2).
Important! Identification of the fact of repeated conclusion of fixed-term employment contracts for a short period to perform similar labor functionality gives the judicial authority the right to recognize such an agreement, taking into account other circumstances in each specific case, concluded for an indefinite period.
For example, according to the ruling of the Pskov Regional Court dated June 11, 2013 in case No. 33-903/2013, the employer was unable to prove the validity of multiple conclusions of temporary employment contracts, and therefore the corresponding employment relationship was recognized as established for an indefinite period.
In another situation, the court did not see the fact of multiple conclusion of fixed-term employment contracts with the same person as a violation of the norms of the Labor Code of the Russian Federation, since the need for such a formalization of labor relations was directly related to the specifics of the work (see the definition of the Supreme Court of the Republic of Sakha (Yakutia) dated November 16, 2015 in case No. 33-4168/2015).
Termination of a fixed-term employment contract
Important! The basis for termination of a temporary employment contract is the end of its validity period depending on the date or event specified in it. The only exceptions will be situations when relations within the framework of the agreement de facto continue and none of the parties has expressed their intention to terminate them (Clause 2, Part 1, Article 77 of the Labor Code of the Russian Federation).
The expiration of the validity period in itself is recognized as grounds for termination of relations under the relevant agreement. When resolving disputes, the courts indicate that the circumstances surrounding the expiration of the contract cannot depend on the will of the employer. Consequently, the guarantees regulated by the Labor Code of the Russian Federation for employees whose dismissal is initiated by the second party to the contract, in cases of termination of fixed-term employment contracts on the grounds of clause 2 of Art. 77 of the Labor Code of the Russian Federation do not apply.
In this situation, the employee may be dismissed, including:
- during the period of temporary incapacity for work and while on vacation (decision of the Moscow Regional Court dated February 18, 2015 in case No. 33-3722/2015);
- while on parental leave (for example, the ruling of the Irkutsk Regional Court dated November 19, 2014 in case No. 33-9495/14).
Note! The Labor Code of the Russian Federation gives pregnant employees the right to apply to the employer to extend the employment contract until the end of pregnancy or the end of maternity leave, if it was provided to her in the proper manner. The application must be accompanied by a medical certificate confirming pregnancy. If these conditions are met, the employer cannot refuse to extend the term of the contract (paragraph 2 of Article 261 of the Labor Code of the Russian Federation).
Labor relations in case of prolongation of an employment contract for a certain period or its transformation into an indefinite one
As mentioned above, a fixed-term employment contract can be transformed into an open-ended one if none of the parties to the legal relationship made a demand for termination of the contract due to the expiration of its validity period and the employee did not stop performing work after the date or event with which the termination was associated such an agreement (paragraph 6 of article 58 of the Labor Code of the Russian Federation).
Formally, the extension of a temporary employment contract is permitted by law in 2 cases:
- at the request of a pregnant employee within the framework of the norms of paragraph. 2 tbsp. 261 of the Labor Code of the Russian Federation (the situation is discussed above);
- by written agreement of the parties in relation to a specialist in the pedagogical field, included in the teaching staff, elected to the position he is filling through a competition (paragraph 8 of Article 332 of the Labor Code of the Russian Federation).
At the same time, Rostrud notes: the Labor Code of the Russian Federation assumes the permissibility of making adjustments to an employment contract, regardless of its type (fixed-term or unlimited), including in terms of changing the duration of its validity (see letter dated October 31, 2007 No. 4413-6).
Conclusion! Thus, a fixed-term employment contract can be extended by drawing up an additional agreement. Although there is no limit to the number of such extensions, the maximum period for each extension must not exceed 5 years.
The law establishes that a dismissed employee working under a temporary employment contract must be notified by the employer of the termination of the contract at least 3 days in advance (paragraph 1 of Article 79 of the Labor Code of the Russian Federation). However, the employer’s failure to comply with the regulations is not interpreted by the courts as a basis for declaring the dismissal of an employee illegal, and a fixed-term contract transformed into an open-ended one (see the ruling of the Irkutsk Regional Court dated January 23, 2013 in case No. 33-450/13).
So, concluding an employment contract for a certain period must have sufficient legal grounds. Otherwise, such an agreement will be recognized as unlimited. The grounds for concluding a temporary TD must be specified in the text of the document - otherwise, if controversial situations arise, the employer will have to prove their actual existence.
Violation by the employer of the procedure for notifying an employee of dismissal 3 days before the upcoming termination of a fixed-term employment contract does not in itself constitute grounds for his reinstatement.
Is it possible to hire workers under a fixed-term employment contract for the duration of construction and installation work at a specific site, when the completion of the work is unknown. Does this case fall under subparagraph of Article 59 of the Labor Code of the Russian Federation?
Answer
Yes, this case falls under the subparagraph of Article 59 of the Labor Code of the Russian Federation “A fixed-term employment contract is concluded with persons hired to perform a clearly defined job in cases where its completion cannot be determined by a specific date.” This basis makes it possible to conclude a fixed-term employment contract for the duration of construction work, since in this case the term of the employment contract is not known in advance and is determined by the date of completion of construction. In this case, the employment contract must indicate its urgent nature and reflect the specific type of assigned work for which the employee is hired.
It is imperative that the employment contract states that the contract is concluded for the duration of the construction of the facility (also indicate at what address the construction is being carried out). An employment contract concluded for the duration of certain work is terminated upon completion of this work (Part 2 of Article 79 of the Labor Code of the Russian Federation). And since each stage of construction ends with an act of completed work, the end of the employment contract is tied to the moment of signing the act of acceptance of completed work (for example, installation work, laying slabs, etc.). The end date of the employment contract will be the fact of signing the act of acceptance of work at the end of the construction phase.
Last time we looked at issues related to concluding an employment contract for a certain period (see “”). However, as practice shows, problems arise even after the contract is concluded - for example, when it is terminated. Of course, the presence of a condition on the duration of the contract facilitates the procedure for parting with an employee. But, despite this, the employer is required to pay increased attention to such details as the terms of termination specified in the contract and notification of upcoming dismissal. One should also take into account the risks that arise when re-concluding and extending a fixed-term employment contract. In this article we will tell you what issues regarding relationships with “temporary” employees an employer should pay special attention to.
Early termination of a fixed-term contract at the initiative of the employee
The organization entered into an employment contract with the employee for a period of one year. A month later, the employee wrote a letter of resignation. Does he have the right to resign before the end of the contract?
Termination of an employment contract before its expiration occurs according to the same rules that apply when terminating open-ended contracts. The fact is that the article of the Labor Code, which contains a list of grounds for termination of an employment contract, does not distinguish between a fixed-term and an open-ended contract. Thus, a temporary employment contract can be terminated before the expiration of the period specified in it, not only at the initiative of the employer, but also at the request of the employee (Article of the Labor Code of the Russian Federation, paragraph 22 of the resolution of the Plenum of the Supreme Court of the Russian Federation), as well as by agreement of the parties (Article Labor Code of the Russian Federation, clause 20 of the resolution of the Plenum of the Armed Forces of the Russian Federation) and for circumstances beyond the control of the parties to the agreement (Article Labor Code of the Russian Federation).
If an employee intends to resign of his own free will, he is obliged to notify the employer about this. At the same time, the Labor Code did not establish any specifics in relation to contracts concluded for a period of more than two months. This means that the employee must notify the employer of his desire to terminate such a contract at least two weeks in advance (Article of the Labor Code of the Russian Federation). If the term of the employment contract is less than two months, then the warning period is reduced to three calendar days (Article and Labor Code of the Russian Federation).
How to properly fire an employee on a fixed-term contract
ABOUT organization iya dismisses the employee due to the expiration of the employment contract concluded for one year in connection with the expansion of production. However, the employee threatens to sue for being fired without warning. Is it really necessary to warn the employee about dismissal in this case? If yes, then how to do it correctly?
The answer to the question of whether it is necessary to notify an employee of the termination of a fixed-term employment contract depends on the basis for concluding such a contract. Thus, if the contract is concluded for the duration of the duties of an absent employee or for the performance of work whose completion date is not determined, then it is not necessary to notify the employee of the upcoming dismissal. But if the contract is drawn up for a specific period (that is, it specifies a specific end date), then the employee really needs to be notified of the termination of the contract. This must be done in writing at least three days before the expiration date of the contract (this day will be the last day of the person’s work, which means the day of his dismissal; Art. Labor Code of the Russian Federation). The notice must be given to the employee against signature. Such rules are established in the article of the Labor Code of the Russian Federation.
The notification is drawn up in any form. It must indicate the name of the employer, full name of the employee, date and number (if any) of the employment contract. It is also necessary to clearly indicate that this document is a notice of termination of the employment contract due to the expiration of its validity period and is drawn up in accordance with the article of the Labor Code of the Russian Federation. Next, the notice indicates the date of termination of the employment contract (it must coincide with the date fixed in the contract itself) and the current date is indicated. On the employer's part, the notice is signed by the manager or other authorized person. It is advisable to draw up two copies of the notice, one of which will be given to the employee, and the second - with the employee’s signature on receipt - will remain in the organization. This will help eliminate disputes about whether the notice was drafted correctly.
Please note: the illness or absence of an employee with whom a fixed-term contract has been concluded is not grounds for its extension. Therefore, even if a temporary employee is absent from the workplace, he still must be notified of the upcoming dismissal.
At the same time, the Labor Code does not stipulate any consequences for cases when the notice described above is not served. Therefore, the employer has the right to dismiss an employee due to the expiration of the employment contract, even if no notice was sent. It is clear that this will create certain risks for the organization. In particular, the lack of notification of upcoming dismissal is a violation of labor laws. And if this fact is detected in a timely manner (that is, within a year; Art. Code of Administrative Offenses of the Russian Federation) by the labor inspectorate, the organization may be brought to administrative responsibility on the basis of an article of the Code of Administrative Offenses of the Russian Federation.
Please note that the employee who challenges the dismissal must justify the violation of his rights. “By default,” the courts proceed from the fact that failure to comply with the requirements of the article of the Labor Code of the Russian Federation on notifying an employee of the termination of an employment contract due to its expiration is not grounds for declaring the dismissal illegal. After all, when concluding a temporary employment contract, the employee knows both about its urgent nature and about its expiration date. And the Labor Code, as already noted, does not regulate the issue of the consequences of untimely notification of an employee about the upcoming termination of a fixed-term employment contract (see, for example, the appeal ruling of the Moscow City Court dated 02.02.16 No. 33-3252/2016).
Renewal of a fixed-term employment contract
The employee is signed under a fixed-term employment contract to perform temporary work. It was planned that it would be completed within two months, but due to unforeseen circumstances the deadline was delayed. Is it possible to renew a fixed-term employment contract for another two months?
The Labor Code does not contain a direct prohibition on renewing a fixed-term contract. Moreover, for some categories of employees this is directly permitted (for example, Part 1 of Article of the Labor Code of the Russian Federation provides for the right of the employer to renew a fixed-term employment contract with an employee who is sent to work at a representative office of the Russian Federation abroad). Therefore, if after the expiration of the contract there is a need to continue the employment relationship, you can conclude a new fixed-term employment contract, which will come into force immediately after the expiration of the previous one. But since the Labor Code does not directly indicate such a possibility, it is still better for a new contract, drawn up immediately after the expiration of the previous one, to be concluded on a different basis, or to perform a different labor function or work. If a fixed-term employment contract is repeatedly re-signed for a short period to perform the same labor function (or work), the court may recognize that the contract was concluded for an indefinite period (paragraph 4, paragraph 14 of the resolution of the Plenum of the Supreme Court of the Russian Federation).
In addition, the organization may be fined for violating labor laws (Article of the Code of Administrative Offenses of the Russian Federation).
At the same time, you can use other grounds for concluding a new fixed-term employment contract. For example, draw up a temporary contract in connection with the performance of work that falls outside the scope of the company’s core business, or pre-determined work, the completion time of which cannot be determined by a specific date.
If the contract has expired but the work has not been completed
The organization entered into fixed-term employment contracts with a team of construction workers to perform temporary work on the construction of the facility. The contracts indicate that they are drawn up to perform temporary (for a period of no more than two months) construction work. As an event that determines the completion of work, the contract states: “completion of construction.” But due to the slow work of the team, the facility was not built in two months. Is it possible in this case to fire employees due to the expiration of their contracts?
When concluding a fixed-term employment contract, the employer must remember the need to strictly follow the conditions for termination of the contract that are recorded in it. Therefore, if the moment of termination of the contract is determined by the occurrence of an event, in particular, the completion of construction of the facility, then termination of the contract before the actual completion of construction will be unlawful. Indeed, according to the rules of the article of the Labor Code of the Russian Federation, an employment contract concluded for the duration of certain work is terminated upon completion of this work. This means that if a dispute arises regarding the dismissal of an employee, the organization will have to confirm that at the time of his dismissal the work was actually completed. That is, she will have to submit the relevant acts (acceptance, commissioning, etc.). It will not be possible to terminate an employment contract to perform temporary work due to the expiration of the two-month period established in the article of the Labor Code of the Russian Federation as the maximum period for which such an agreement can be concluded.
Therefore, in the situation under consideration, the employer will either have to resolve the issue of extending (renegotiating) employment contracts, or dismiss employees “under the clause”. For example, on the basis of paragraph 5 of part 1 of the article of the Labor Code of the Russian Federation in connection with repeated failure to fulfill one’s labor duties without good reason. However, in this case, it is necessary to correctly and in advance take the actions necessary for such dismissal. In particular, it is necessary that employees be subject to disciplinary action (reprimand or reprimand) during the period of performance of work (i.e. before the expiration of two months).
Extension of a fixed-term employment contract
When hiring a “seasonal” employee, the agricultural producer entered into an employment contract with him until August 31. However, the harvesting work was delayed. Is it possible to extend the contract period?
Formally, the Labor Code does not prohibit extending the term of an employment contract, and in some cases even directly orders this. For example, a temporary contract is extended upon the election of a teaching employee who belongs to the teaching staff, through a competition to fill a position previously occupied by him under a fixed-term employment contract (Part 8 of Art. Labor Code of the Russian Federation), or in the event of expiration of a fixed-term employment contract during the period pregnancy of a woman (Part 2 of Art. Labor Code of the Russian Federation).
However, judicial practice on this issue is contradictory. Thus, some judges believe that extending the term of an employment contract does not contradict the norms of the Labor Code and does not entail reclassification of the contract as unlimited-term. In this case, the arbitrators refer to the provisions of Article Art. and Art. Labor Code of the Russian Federation (see the rulings of the Moscow City Court dated 01.20.14 No. 33-1433/2014, the Supreme Court of the Chuvash Republic dated 12.23.13 No. 33-4638/2013 and the St. Petersburg City Court dated 10.18.10 No. 33-14178/2010 ). But at the same time, the courts also make opposite decisions. The judges recognize that the extension of a fixed-term employment contract violates the rights of the employee and, in fact, we must assume that such an agreement was concluded for an indefinite period (see the rulings of the Omsk Regional Court dated 08.26.15 No. 33-6106/2015, the Moscow City Court dated 02.06. 12 No. 4g/3-114/12 and the Supreme Court of the Republic of Sakha (Yakutia) dated 02.05.12 No. 33-1380/12).
When a fixed-term contract becomes indefinite
What happens if the actual term of the employment contract is longer than the maximum period allowed by the Labor Code?
As a general rule, a fixed-term employment contract cannot be concluded for a period of more than five years (clause 2, part 1, article of the Labor Code of the Russian Federation). And for some cases, the article of the Labor Code of the Russian Federation establishes shorter periods (2 months for contracts for temporary work; 1 year for contracts concluded in connection with the temporary expansion of production).
If the duration of the employment contract (actual or directly specified in the contract) exceeds these maximum periods, then if a dispute arises, there is a high probability that the court will reclassify it as a contract concluded for an indefinite period. Similar consequences may arise when establishing facts of multiple re-conclusion of an agreement, including in a situation where the total duration of its validity exceeds the limits established by the Labor Code (clause 14 of the resolution of the Plenum of the Supreme Court of the Russian Federation).
An employee with whom a fixed-term employment contract has been concluded performs his duties very well. The employer wants to hire him for a permanent job. Is it possible to transfer an employee from a temporary job to a permanent one? Or is it necessary to fire and hire again?
The Labor Code does not regulate this situation in any way. Formally, nothing prohibits the parties from drawing up an additional agreement to the employment contract, excluding from it the condition regarding the duration of its validity. The risk of claims from regulatory authorities in this case is minimal, since changes to the employment contract do not violate the rights of the employee, but, on the contrary, provide him with additional guarantees.
At the same time, there is also a way, directly provided for by the Labor Code, to convert a fixed-term employment contract into an open-ended one. Thus, by virtue of the article of the Labor Code of the Russian Federation, the condition on the temporary nature of the employment contract automatically loses force if the contract has expired and neither party has demanded termination of the contract and the employee continues to work. In this case, the contract is considered concluded for an indefinite period (Part 4 of Article of the Labor Code of the Russian Federation). In this case, you do not need to prepare any additional personnel documents. However, it is worth noting that Rostrud still recommends concluding an additional agreement to exclude the condition on the duration of the contract (letter).
Question: ...Fixed-term employment contracts were concluded with employees for a period of temporary (up to two months) work. The end of the contracts is determined by the completion of construction of the facility. The construction of the facility is not completed in two months. Is it possible to terminate fixed-term employment contracts with employees? Is it necessary for dismissal under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation evidence of completion of construction? (Expert consultation, 2016)
Question: Fixed-term employment contracts were concluded with employees for the period of temporary (up to two months) work; the end of the contracts is determined by the occurrence of an event - the completion of construction of the facility. The workers did the work ineffectively, and construction of the facility was not completed two months later. Is it possible to terminate fixed-term employment contracts with employees before construction is completed? Is it necessary for the legality of dismissals under clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation evidence of completion of construction of the facility?
Answer: If fixed-term employment contracts are concluded with employees for the duration of temporary (up to two months) work, and the end of the contracts is determined by the occurrence of an event - the completion of construction of the facility, then termination of contracts before the actual completion of construction of the facility under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation is illegal. For the legality of dismissals, proof of completion of construction of the facility is required.
Justification: In accordance with Part 1 of Art. 58 of the Labor Code of the Russian Federation, employment contracts can be concluded for a certain period of no more than five years (fixed-term employment contract).
The grounds for concluding a fixed-term employment contract are listed in Art. 59 Labor Code of the Russian Federation. These include concluding a fixed-term employment contract for the duration of temporary (up to two months) work.
The basis for termination of a fixed-term employment contract is the expiration of the term of the employment contract, except for cases where the employment relationship actually continues and neither party has demanded its termination (Clause 2, Part 1, Article 77 of the Labor Code of the Russian Federation).
According to Part 1 of Art. 79 of the Labor Code of the Russian Federation, a fixed-term employment contract is terminated upon expiration of its validity period. The employee must be notified in writing of the termination of the employment contract due to its expiration at least three calendar days before dismissal.
An employment contract concluded for the duration of certain work is terminated upon completion of this work (Part 2 of Article 79 of the Labor Code of the Russian Federation).
In accordance with the wording of the question, the moment of termination of fixed-term employment contracts is determined by the occurrence of an event - the completion of construction of the facility. However, the workers did the work ineffectively and the construction of the facility was not completed two months later.
Thus, taking into account the provisions of Part 2 of Art. 79 of the Labor Code of the Russian Federation, as well as the fact that the moment of termination of contracts is determined by the occurrence of an event - the completion of construction of an object, and not by a specific date, it is possible to terminate an employment contract for temporary work after a two-month period only if the work is actually completed. The completion of the work must be confirmed. Evidence of completion of work can include documents such as a certificate of completion of work, a certificate of acceptance of the facility for operation.
In this case, fixed-term employment contracts under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation can be terminated only upon completion of the construction of the facility (Part 2 of Article 79 of the Labor Code of the Russian Federation).
Considering that employees do their work ineffectively, they can be fired under clause 5, part 1, art. 81 of the Labor Code of the Russian Federation - for repeated failure to fulfill one’s labor duties without good reason, if they are subject to disciplinary sanctions.
For this purpose, workers who perform their work ineffectively must, according to the rules of Ch. 30 of the Labor Code of the Russian Federation, bring them to disciplinary liability by applying disciplinary sanctions to them in the form of a reprimand or reprimand (one should remember to comply with the procedure for applying disciplinary sanctions established by Article 193 of the Labor Code of the Russian Federation). If subsequently the employees continue to perform their work ineffectively, then they can be brought to disciplinary action again, this time in the form of dismissal under clause 5 of Part 1 of Art. 81 Labor Code of the Russian Federation.
