Labor legislation provides for cases when fixed-term employment contracts can be concluded with employees. When such an agreement can be concluded, what violations there may be, how to terminate such an agreement, these and other issues are given attention in the following subheadings of this material.
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Basis for a fixed-term employment contract
Cases when a fixed-term employment contract can be concluded are specified in Art. 59 of the Labor Code of the Russian Federation, namely:
- when an employee is temporarily absent and his place of work is retained, for example, a woman is on maternity leave
- if the work is temporary (up to 2 months), for example, harvesting
- for seasonal work , where the work can only be carried out during a certain period of the season, for example icebreaking work
- if the contract is concluded with a person who is sent to work abroad
- in case of hiring a person who must carry out work that goes beyond the normal activities of the employer , for example, commissioning work, or work related to a temporary (up to 1 year) expansion of production or the volume of services provided
- if a person is accepted into an organization that is created for a certain period or to perform a certain job
- when a contract is concluded with a person to perform a specific work, if the completion of such work cannot be determined by a specific date
- in a situation of employment of a person whose work is related to internship , vocational training or additional. professional education in the form of internship
- if a person is elected for a certain term to an elected body or to an elective position
- in case of sending a person by the employment service to work of a temporary nature and public works
- if citizens are sent to perform alternative civil service
- in other cases established by the Labor Code of the Russian Federation and laws
- by agreement of the parties, in cases provided for by the Labor Code of the Russian Federation and laws
Is it possible to convert a fixed-term contract into a permanent one?
The possibility of transferring an employee from a fixed-term employment contract to a contract is provided for by the general rules on changing the contract (Article 72 of the Labor Code of the Russian Federation).
A temporary contract can be extended for an unlimited period in the following cases:
- the parties decided to recharacterize the agreement by mutual consent;
- the temporary agreement expired, but the parties to the relationship continued to cooperate;
- the court recognized the temporary employment relationship as permanent.
Despite the fact that the agreement can be renewed automatically, it is advisable to prepare personnel documents.
Is it possible to terminate a fixed-term employment contract early?
When concluding a fixed-term contract, while the employee is performing his duties, it may be necessary to terminate the concluded contract ahead of schedule. Is it possible? Of course yes, because a fixed-term contract differs from an open-ended one only in that it is concluded for a specific period, and this does not mean that the employee is inviolable and cannot be fired, or that the employer can refuse to dismiss the employee at his request.
A fixed-term employment contract can be terminated for various reasons:
- due to the fact that the person has not completed the probationary period
- at the employee's own request
- by agreement of the parties
- at the initiative of the employer
When deciding to terminate a fixed-term contract before the period for which it was concluded expires, it is necessary to take into account cases and situations when such a contract cannot be terminated ahead of schedule, for example, with a pregnant woman. This does not mean that when the contract expires, the pregnant woman cannot terminate it; in such a situation, the fixed-term contract is terminated, but it cannot be terminated early, unless the pregnant woman expresses a desire to resign on her own initiative.
The procedure for transferring from a fixed-term to an open-ended employment contract
The standard procedure for transferring from a fixed-term to an open-ended employment contract involves drawing up an annex to the main agreement. The parties to the agreement sign an additional contract to change the labor relationship between the employee and the employer.
When preparing a supplementary agreement, it is important to remember that:
- the conclusion of an open-ended contract must be permitted by current labor legislation;
- the employer is obliged to obtain consent from the employee to transfer the agreement to an unlimited term;
- in this case, a change in the duration of the contract is initiated, rather than an extension of the contract;
- when assigning an employee to another position, this must be indicated in the additional agreement.
If an employee has written a statement of intention to continue performing work duties in the organization on a permanent basis, that is, under a contract with an indefinite period, the head of the enterprise prepares a corresponding order.
The date of the submitted application must be no later than 3 days before the expiration of the employment contract.
How to challenge a fixed-term employment contract in court?
Since not in all cases a fixed-term employment contract is concluded legally, or it is not terminated in a timely manner and becomes indefinite, and the employer terminates the employment relationship, citing the urgency of the contract, the employee has a chance to challenge such a contract as a fixed-term one in court.
Having decided to sue the employer regarding the conclusion of a fixed-term employment contract in the absence of any grounds or necessity, the person should follow a certain algorithm of actions:
- determine the grounds for recognizing the conclusion of a fixed-term employment contract as unlawful
- prepare and send a letter to the employer, a claim about the unlawful conclusion of a fixed-term contract. Performing this action is not mandatory, however, the employer may agree with the applicant’s arguments and then there will be no need to go to court
- prepare a claim in court, defining the requirements. The following may be stated as requirements: recognition of an employment contract as concluded for an indefinite period, termination of the contract as illegal, reinstatement at work, recovery of earnings during forced absence, compensation for moral damage
- send one copy of the claim to the defendant, the other - together with the attached evidence, file it with the court
- take part in the trial, voicing your position on the case and your demands, raise objections to the defendant’s arguments, ask to question witnesses and make other motions related to the case
- based on the results of the consideration of the case and the removal of the court to the deliberation room, wait for the court’s decision
- if a court decision is made in favor of the plaintiff and there is no voluntary compliance on the part of the employer, contact the bailiffs with a writ of execution to force the employer to comply with the court decision
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Let's sum it up
Thus, the employer has the right to extend the temporary contract for an indefinite period.
Notice should be sent to the employee. After receiving consent, an additional agreement or order is signed. If the relationship cannot be extended for objective reasons, the citizen can be transferred to another vacant position.
But under some circumstances, a transfer from a fixed-term employment contract to an open-ended or permanent one occurs as if automatically.
When does a fixed-term employment contract become permanent? After the expiration date of the fixed-term contract, if the employee has not approached the administration with proposals regarding his further cooperation, and the administration, for its part, has not made any counter-proposals, then from the day following the expiration date of the fixed-term contract, the contract of unlimited cooperation begins to operate ().
If the employee himself decides to continue further cooperation, or if the employer wishes to use the services of a person after the expiration of the Employment Contract, then 3 days before the end of this term a written notification must be received from one of the parties.
In one or the other option, no additional entries are required to be made in the person’s work book if the position or nature of the work has not changed.
How to prove that a contract with an employer is a contract for an indefinite period?
When going to court with demands to recognize an employment contract as concluded for an indefinite period, and not for the period specified in the contract, it is necessary to prove to the court that the contract is of unlimited duration.
What can serve as evidence of the validity of the plaintiff’s claims?
- when the contract and job description do not indicate that the employee was hired to perform some temporary work
- when the contract specifies a basis for the urgency of its conclusion, which is not provided for by law or which does not actually exist for a particular employer. For example, concluding an agreement to perform work that goes beyond the normal activities of the organization, but in fact this is not the case, which can be confirmed by the provisions of the charter, other documents, including documents of the employer
- in the case of a fixed-term contract being forced by an employee, it is necessary to prove that, for example, the employer forced the employee to conclude a fixed-term contract. Evidence may include witness testimony, information about the employer’s vacancy, in which there was no indication of the urgent nature of the employment relationship
- if a fixed-term contract is concluded on a certain basis, which in reality does not exist, then it is necessary to provide evidence of the absence of such basis. For example, concluding a fixed-term contract allegedly by agreement of the parties, but on the part of the employee there was in fact no such agreement and he was forced to enter into a fixed-term contract because he could not find work for a long time, which is confirmed by information from the employment center, he had debts, which can be confirmed by receipts for payment of utility bills services, information about enforcement proceedings
As you can see, specific evidence depends on the situation in which the fixed-term contract is concluded. Therefore, in each specific case it is necessary to understand and think about what can confirm certain facts.
Subtleties of transferring from a fixed-term to an open-ended employment contract
When replacing a fixed-term employment contract with an open-ended one, you must strictly comply with the requirements of the current labor legislation. If the deadlines for preparing the application, order and additional agreement are not met, while the employee continues to perform his job duties in accordance with the provisions of the fixed-term contract, this will in no case be a basis for the employer’s failure to comply with his obligations to the employee.
The Labor Code states that if an employee continues to work after the expiration of a fixed-term employment contract
the agreement automatically loses its legal force and becomes unlimited.
At the same time, the employer and employee should not delay the renewal of documents, including the obligation to sign an additional agreement as soon as possible.
There are a number of situations when it is impossible to convert a fixed-term employment agreement into an open-ended one, including:
- an employment contract is concluded to perform seasonal work;
- the contract is signed for only one purpose - to document temporary work;
- the contract is concluded with employees employed in “temporary companies”. In this case, the validity period of the agreement will correspond to the life of the organization;
- The signed agreement provides for the performance of certain works, the duration of which is not precisely established, but cannot be more than 5 years.
Thus, transferring a fixed-term employment contract to an open-ended one is a fairly simple procedure that involves drawing up an additional agreement and order. There are several situations when switching to an open-ended contract is not possible.
Article 58 of the Labor Code of the Russian Federation contains a definition of a fixed-term employment contract between a worker and a manager.
According to this article, all benefits belong to a perpetual document.
The possibilities of concluding a fixed-term contract are significantly reduced.
Indefinite
In the Russian Federation, most agreements are not included in the time frame, but end due to cases prescribed in the Labor Code.
It could be:
- agreement on both sides;
- unsatisfactory test result;
- the desire of the manager (exclusively in accordance with the law);
- the desire of the worker;
- reasons that are independent of both;
- some special cases.
There must be a good reason for a contract that does not have a term to be terminated.
And such a reason must be approved by law.
At the same time, the worker has the right to terminate his work activity by giving fifteen days’ notice. Thus, the state compensates the worker for his dependence on his superiors.
Urgent
When preparing documents for employment, the boss and the worker have the right to enter into a cooperation agreement for a specific time, which will be agreed upon in advance.
This period should not last longer than five years, and may end on the basis of:
- end of the season;
- return of the replaced worker;
- the arrival of a specific date;
- completion of the scope of work.
It is not allowed to hire every worker on a fixed-term basis, because... legislation recognizes this type of relationship as a necessary measure.
According to the law (), there is a list of cases when the contract is urgent due to the type of work and another, also closed list - in this case it is permissible to determine the completion date of the work with the consent of the recruit.
A contract with a definite term may become indefinite for the following reasons:
- the boss and the worker did not complete their cooperation on time;
- there are no grounds for determining the period;
- the enterprise thus “turned a blind eye” to workers’ rights.
Transfer from a fixed-term contract to an open-ended one
There are two ways to switch to a permanent contract:
- Preparation of a package of documents;
- The employee simply continues to perform his duties without any formalities.
In the first case, the parties sign an additional agreement to change the terms of the contract. This method is suitable in a situation where the employee’s responsibilities do not change. You can find out more about the additional agreement and view a sample at.
If an employee transfers to another position, another transfer order is signed. A corresponding entry is made in the work book.
Transfer to another position
The employee's position is written down in the employment contract. And job responsibilities are in the job description. The employee’s right to work in the position specified in the employment contract is almost ironclad. An exception is a catastrophe, epidemic and illness of an employee.
Permanent translation
As a general rule, an employee is transferred to another position with his consent. Demotion or promotion in your career does not matter. In the language of the law, this is called translation - Art. 72.1 Labor Code of the Russian Federation.
For example, an employee is registered as an English teacher for adults at a training center. But few clients come to the language course. An employer is opening a new robotics course for children—it’s more popular. If an English teacher is ready to move to the position of robotics teacher, a transfer is arranged.
The chain of documents for translation is as follows. The employee writes a transfer application. Next, the employee and employer sign an additional agreement to the employment contract with the new position and salary - if it also changes. The employer issues an order for the transfer and makes an entry in the work book. The employee gets acquainted with the new job description by signing.
Unified form of transfer order
Template for an additional agreement to an employment contract
A separate case is when an employee performs his duties poorly. It can be a shame to fire someone; you just want to demote them. But this can only be done with the consent of the employee.
According to the law, an incompetent employee is not demoted, but fired under clause 3 of Art. 81 Labor Code of the Russian Federation. And only if he fails the certification.
Certification is not just checking as you please. To check an employee, the employer adopts a certification regulation, prepares questions based on professional standards, issues an order, collects commissions, and only then checks the employee.
Article: how to conduct employee certification
Temporary transfer
It happens that an employer has a temporary position, and the employee is ready to take it for a while. For example, before an accountant returns from maternity leave, a driver returns from the army, or while candidates for the position of store director are being screened. This is a temporary translation under Art. 72.2 Labor Code of the Russian Federation.
A temporary transfer is issued for a period of up to one year. But as an option - before the employee leaves. The salary is paid according to the new position.
A temporary transfer is formalized as a permanent one: an application from the employee, an additional agreement to the employment contract - with the deadline for the transfer, an order and entry in the work book, familiarization with the job description.
The time rate has a special feature. If the deadline has passed and the employee has not been transferred back, the temporary rate becomes permanent. Don't miss this moment.
Temporary transfer under emergency circumstances
If there is a flood in the city, there is a pandemic in the world, or there is a fire in the bar, an employee can be entrusted with the job of eliminating the damage from the disaster. Duration: no more than one month. And the employee should not risk life and health.
The employee's consent to a transfer in emergency circumstances is not required. For example, a bartender can be transferred to general labor for a month. But such work is paid no less than the average salary of a bartender.
A temporary transfer under emergency circumstances is issued by order. The employee is introduced to him under his signature. Temporary duties are written in the order.
Temporary transfer during downtime due to a disaster
If an entrepreneur has downtime due to an epidemic or fire, the employee can be transferred to another job for one month.
Transfer to a position of equal qualifications without the employee’s consent. For example, a bartender can be made a courier for a month. But you can only be sent to work with lower qualifications, for example, washing walls, with the consent of the employee.
The translation is formalized by order. The salary is not lower than the average for the main position.
If there is a disaster, the order was issued from a distance, there is no danger to health, the employee was warned, but he did not come out - this is absenteeism. The employee can be fired. This is what the Supreme Court said in paragraph 19 of Plenum Resolution No. 2.
Mandatory translation for medical reasons
The employer is obliged to transfer the employee to lighter work for medical reasons. And for women in connection with pregnancy - Art. 73, 254 Labor Code of the Russian Federation.
For example, a seamstress works in a workshop. It turns out that she has hypertension and cannot sit for 12 hours at a sewing machine. Doctors recommend easier work for her.
For transfer, the employee brings a medical report. You receive it after a medical examination from your employer or from your doctor. The medical report must comply with Order of the Ministry of Health No. 972n: with the seal of the medical institution and the signatures of doctors. Certificates and sick leave certificates are not suitable.
Transfer to easier work can be temporary - up to four months, and permanent - until the end of the employee’s life. Depends on illness or injury.
Translation based on medical indications is formatted as follows. The employer offers a position with easier work in writing. If the employee agrees, he writes an application for transfer. The employer issues an order, draws up an additional agreement to the contract, and makes an entry in the work book. The employee gets acquainted with the new job description.
If the salary in the new position is lower, the first month is paid the average salary from the previous position. Then they pay for the new position - Art. 182 Labor Code of the Russian Federation.
It happens that the employer has no easier job. Or else, the employee didn’t like the options. For example, in a workshop only seamstresses are needed, and the manager deals with paperwork and clients himself. It turns out that for the seamstress with hypertension from our example there is no other job. Then they do this.
— If there is no temporary work, the employee is suspended for the entire period. No salary, but no dismissal either. The removal is formalized by order.
— If there is no permanent job, the employee is fired under clause 8 of Art. 77 Labor Code of the Russian Federation.
