In what cases is a fixed-term employment contract concluded? Temporary employment contract What is fixed-term employment
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.
A fixed-term employment contract is concluded only in those cases that are provided for by law. A fixed-term contract, which is concluded at the request of the employer without sufficient grounds, is considered concluded for an indefinite period.
Employers have the right to issue temporary contracts when the employment relationship cannot be established for an indefinite period. Such agreements are made:
- Only in cases provided for by law;
- Given the nature of the work;
- Taking into account the conditions of work.
There are two types of grounds for issuing fixed-term contracts: mandatory and by agreement of the parties. In other words, the legislation separates situations when a temporary contract is concluded regardless of the wishes of the parties and when it is drawn up at the personal request of the parties.
The Labor Code contains a closed list of grounds on which a temporary contract is concluded. If a fixed-term contract is not concluded in accordance with these grounds, it is considered to be concluded for an indefinite period.
Let's take a closer look at each type of foundation.
A fixed-term employment contract is mandatory in the following cases:
- For the duration of temporary work, the term of which is less than two months;
- Citizens were sent to work abroad;
- For the duration of seasonal work;
- For the duration of the duties of an absent employee;
- Persons get a job in companies that are created for a predetermined time to perform a specific job;
- The jobs for which employees are hired are different from the jobs that the organization normally does;
- Work is associated with an increase in production for some time;
- Citizens are sent to the civil service;
- Persons are hired for work, the end of which cannot be determined by a specific date;
- Passing an internship;
- Election for a specific term to an elective office;
- Citizens are sent to work by employment agencies.
By agreement of the parties, the contract is concluded:
- With citizens who get a job with employers who are engaged in small business, the number of their employees is less than thirty-five people (if the organization is engaged in retail trade - no more than twenty people);
- With pensioners;
- With citizens who, due to their health, can only work temporarily;
- With persons who get a job in companies located in the Far North;
- With citizens selected in a competitive way to fill a position;
- To carry out urgent work to prevent various accidents and disasters, as well as to eliminate the consequences after them;
- With citizens of creative professions;
- With persons holding managerial positions, including chief accountants;
- With full-time students;
- With citizens who get a part-time job;
- In other cases provided by law.
It should be noted that a fixed-term contract is concluded in accordance with the general rules. However, in addition to general provisions, the text of the contract must contain:
- The reason for concluding a temporary contract, always with reference to the TC;
- The term of the contract.
Violation by the employer of the current legislation
If during the execution of a temporary contract the employer violated any norms of the law, the employee has the right to defend his rights. To do this, he can apply to the court.
If a disputable situation arises, the court recognizes a temporary contract as a contract concluded for an indefinite period, if, upon its conclusion, the employer:
- Did not specify the term of its validity in the text of the contract;
- Did not take into account the list of cases in which it is possible to conclude a temporary contract;
- He did not indicate the reason why the contract is concluded for a certain period;
- Did not provide the employee with the stipulated rights and guarantees.
If the dismissal of an employee is illegal, the court will oblige the employer to:
- Reinstatement of the employee in the previous position;
- Payment of wages to the employee for the period of forced absenteeism;
- Compensation for non-pecuniary damage.
It is worth noting that the court may recognize a temporary contract as a contract concluded for an indefinite period not only upon termination of the contract, but also during its validity.
Changing the term of the contract
Employers quite often wonder if it is possible to change the term of a temporary contract.
As a general rule, the extension of the period of validity of a temporary contract is prohibited. However, there are exceptions to all rules. So, in this situation, there are cases in which the employer can (and sometimes even obliged) to extend the contract. Subject to these exceptions, the contract period can be extended with:
- Employees of higher educational institutions elected in a competitive way to fill a previously occupied position;
- Athletes;
- Expectant mothers (if a woman writes an application for an extension and provides a certificate from a doctor).
It is possible to extend the period of the contract only in these three cases. To extend the term of the contract in other cases, you can make changes to the text of the contract. This can be done by signing an additional agreement.
Renewing the contract with the help of agreements, employers should remember that the maximum allowable renewal period is five years. Also, in order to extend the contract, the grounds on which the contract was concluded must be preserved.
For more information about the conditions for extending a fixed-term employment contract, read in.
An employment contract (TD) is the main document that is concluded between the employer and the employee. A fixed-term employment contract (STD) is signed when it is impossible to set an indefinite period for. The maximum term of STD in this case is five years. If the contract specifies a longer period, it is considered that the employee has been hired for a permanent job.
Termination of a fixed-term employment contract
A fixed-term employment contract is terminated upon expiration of its validity period. Including:
- concluded for the duration of a certain work - upon its completion;
- concluded for the duration of the performance of the duties of an absent employee - with his return;
- concluded for the performance of seasonal work during a certain period (season) - at the end of this period (season).
Dismissal after the expiration of the employment contract
The employee must be notified in writing about the termination of the TD due to the expiration of its validity period at least three calendar days before the dismissal, except for cases when the period of validity of the TD concluded for the duration of the duties of the absent employee expires.
The original notice is handed to the employee personally, and on the copy of the notice, he must put a personal signature with a transcript, as well as indicate the date the notice was received. A copy of the document is filed in the personal file of the employee.
In case of refusal to read the notification, an appropriate act is drawn up.
Sample notice of termination of a fixed-term employment contract
Expiration of a fixed-term employment contract for the performance of work
The dismissal procedure after the expiration of the employment contract concluded for the duration of the performance of a certain work begins with the preparation of an act on the acceptance of work performed according to the STD. It is he who is the basis for termination.
To do this, you can use the act of a unified form No. T-73, approved by the Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1 "On approval of unified forms of primary accounting documentation for accounting for labor and its payment." However, this form is not mandatory. The parties may draw up an act in free form.
The act is drawn up in two identical copies. A copy of the employer is filed in the personal file of the employee. The expiration date of the STD will be the day following the date of issue of the act.
Sample certificate of acceptance of work performed under a fixed-term employment contract
Letter of resignation at the end of a fixed-term employment contract
Upon termination of the STD after the expiration of the validity period, the employee is dismissed under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation - due to the expiration of the TD. At the same time, an order is issued to terminate (terminate) the TD with the employee (dismissal). The unified form of such an order No. T-8 was approved by the Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1. The employee must be familiarized with the order (instruction) on dismissal. A copy is filed in the employee's personal file.
Entry in the workbook
The employer is obliged to issue it on the day of dismissal. The procedure for making an entry in it upon termination of the TD is prescribed in sec. 5 Instructions approved by the Decree of the Ministry of Labor of Russia dated 10.10.2003 N 69.
If the fixed-term employment contract has not expired
STD may be terminated before the expiration of its term on the grounds set forth in Article 77 of the Labor Code of the Russian Federation. The procedure is the same as for the termination of a trade agreement concluded for an indefinite period of time.
Extension of a fixed-term employment contract
If none of the parties demanded the termination of the STD due to the expiration of the period of its validity, and the employee continues to work after the expiration of the period of validity of the STD, he is considered to be imprisoned for an indefinite period. In this case, changes are made to the TD by concluding an additional agreement. In the workbook, on the contrary, no additional entries are made. This position is stated in the Letter of Rostrud dated November 20, 2006 No. 1904-6-1.
The employer must keep in mind that he is not entitled to demand the fulfillment of duties after the expiration of the TD validity period. If he has a desire to extend the TD, then it is necessary to offer to conclude an additional agreement to the contract. Otherwise, the employee, having worked the last working day, may not go to work, and this will not be considered absenteeism.
Leave and its compensation upon dismissal
The conclusion of an urgent TD does not change the obligation of the employer to provide annual basic paid leave of 28 calendar days while maintaining the place of employment and average earnings. In accordance with Article 127 of the Labor Code of the Russian Federation, upon dismissal, monetary compensation is paid for all unused vacations. Wherein:
- Those employed in seasonal work are provided with paid leave at the rate of two working days for each month worked (Article 295 of the Labor Code of the Russian Federation).
- Those who have concluded a TD for a period of up to two months are provided with paid vacations at the rate of two working days per month worked (Article 291 of the Labor Code of the Russian Federation).
Special cases
A special case is the dismissal of a pregnant woman after the expiration of the TD. Except as discussed below, it is not possible to terminate a pregnant woman after the expiration of the TD. The employer is obliged to extend the TD of the employee if she submits an appropriate application and a medical certificate confirming the pregnancy. The period of validity of the TD should be extended until the end of pregnancy, regardless of the reason for its termination.
The date of dismissal in this case will be:
- if the employee has been granted maternity leave, the end date of this leave;
- if such leave is not granted - within a week from the day when the employer learned about the end of the pregnancy.
Benefits for pregnancy and childbirth, when registering in the early stages of pregnancy and at the birth of a child, are calculated and paid in the usual manner. Parental leave is not granted.
The employer has the right to dismiss a pregnant woman after the expiration of the urgent TD, subject to the following conditions (part 3 of article 261 of the Labor Code of the Russian Federation):
- an urgent TD is concluded for the duration of the performance of the duties of an absent employee;
- the transfer of an employee with her consent to another job available to the employer and not contraindicated for her health reasons is impossible.
At the same time, the employer is obliged to offer the pregnant employee all the vacant positions he has in the given locality or work corresponding to her qualifications, as well as vacant lower positions or lower-paid work that the woman can perform taking into account her state of health.
Summer is the time for vacations, seasonal and temporary work. During this period, fixed-term employment contracts are most often concluded. What are their features compared to perpetual contracts? What do employees and employers lose and gain when concluding a fixed-term employment contract? You will find answers to these and other questions in the article.
Labor legislation provides for two types of employment contract. According to part 1 of article 58 of the Labor Code of the Russian Federation, contracts can be concluded:
- For undefined period;
- for a specified period, but not more than five years. Let's talk more about a fixed-term employment contract.
When is a fixed-term contract concluded?
In some cases, the nature of the upcoming work or the conditions for its implementation do not allow formalizing an employment relationship with an employee for an indefinite period. Therefore, a fixed-term employment contract is concluded with him.
The grounds for concluding a fixed-term employment contract are listed in Part 1 of Article 59 of the Labor Code. And in part 2 of article 59 of the Labor Code of the Russian Federation, cases are prescribed when a fixed-term employment contract can be concluded by agreement of the parties (see table below). At the same time, the list of grounds for establishing the term of labor relations is exhaustive. This is also stated in the letter of Ros-Labor dated December 18, 2008 No. 6963-TZ.
Table.
| Grounds for concluding a fixed-term employment contract | |
| unconditional (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) |
|
|
* The list of works, professions, positions of creative workers was approved by the Decree of the Government of the Russian Federation of April 28, 2007 No. 252.
If there are no specified grounds when registering an employment relationship, the employer cannot conclude a fixed-term employment contract with the employee. Otherwise, in a labor dispute, this fact will be qualified as a violation of the employee's rights. In addition, it is impossible to conclude fixed-term employment contracts repeatedly without a temporary break when it comes to employees performing the same job function. This, in particular, is stated in paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution No. 2). Given the circumstances of the case, such contracts may be considered concluded for an indefinite period.
We draw up a fixed-term employment contract
Now let's move on to the execution of a fixed-term employment contract. As mentioned above, it is concluded only if there are grounds established by the Labor Code or other federal law. Therefore, when drawing up a contract, it is necessary to indicate for what reasons it is concluded with an employee for a certain period. This requirement is set out in paragraph 4 of part 2 of article 57 of the Labor Code of the Russian Federation.
Mandatory terms of an employment contract
A fixed-term employment contract, like any other, must contain mandatory conditions. According to part 2 of article 57 of the Labor Code, these are:
- place of work;
- labor function;
- date of commencement of work;
- salary;
- mode of operation;
- compensation;
- the nature of the work;
- condition on compulsory social insurance, etc.
How to determine the terms of the contract
The condition on the term of the employment contract is probably one of the most important points of this document. Without it, the contract would not be considered urgent. Therefore, we will pay special attention to it. How to formulate a term condition? It all depends on the circumstances of the contract. Let's consider them.
The end date of the contract is set. If a specific date is set when the term of the employment contract ends, it must be written in the document. Recall that a fixed-term contract can be concluded for a period not exceeding five years.
In particular, the expiration date of a fixed-term employment contract is indicated in the case when an employing organization is created to perform specific work. Accordingly, employees will be hired for a period not exceeding their duration. This also applies to seasonal work (if the specific end date of the season is known) and elected positions.
Let's consider how a term record can be formulated using an example.
Example 1
L.D. Smekhov got a job at Veseli Gorki LLC (amusement park) as a janitor. The park is open to visitors from May 1 to October 1. The employer concluded a fixed-term employment contract with him for the period of the park operation. How to reflect the term condition in the document?
Decision
The clause of the contract, in which the condition on the term of its validity is written, will look like this:
"2. Contract time
2.3. The contract is concluded for five months for the period of operation of the amusement park from May 1 to September 30.
An end date for the contract has not been set. In some cases, it is impossible to determine the end date of the employment contract. Here are some typical situations when the contract prescribes a condition on its validity period, and not a specific date. So, the conclusion of a fixed-term employment contract is possible:
- in connection with the departure of the employee on maternity leave and parental leave;
- illness of an employee;
- performance of seasonal work.
In these cases, the expiration of the employment contract is associated with a specific event, for example, the return of an employee to work after a long illness. In this regard, Resolution No. 2 provides the following explanations. If a fixed-term employment contract is concluded for the performance of certain work, and the exact date of its completion is unknown, the contract is terminated upon completion of this work by virtue of part 2 of article 79 of the Labor Code.
Example 2
Confectioner P.L. Pryanishnikova was accepted into Vanil LLC for the duration of the confectioner V.A. Kalacheva course of treatment in a hospital since August 1, 2010. With P.L. Pryanishnikova signed a fixed-term employment contract. How will the condition on the term of the contract be spelled out if it is not known exactly when V.A. Kalacheva will return to her workplace?
Decision
In the employment contract with P.L. Pryanishnikova should have the following wording:
"2. Contract time
2.1. The Agreement comes into force from the day it is concluded by the Employee and the Employer (or from the day the Employee is actually admitted to work with the knowledge or on behalf of the Employer or his representative).
2.3. The contract was concluded for the period of temporary disability of the confectioner V.A. Kalacheva, who retains her job.
2.4. The term of the contract is determined until the return of the main employee V.A. Kalacheva.
2.5. In the event that the main employee V.A. Kalacheva disability with limited ability to work or dismissal, the Employer extends this contract with the Employee replacing him for an indefinite period.
Probation
Is it possible to establish a probationary period when concluding a fixed-term employment contract? It all depends on how long and for what work the employee is hired.
Seasonal work. When concluding an employment contract for the duration of seasonal work, a trial period of more than two weeks cannot be established (Article 70 of the Labor Code of the Russian Federation). At the same time, the seasonality condition must be included in the text of the contract in accordance with Article 294 of the Labor Code.
Temporary work. When drawing up a fixed-term contract for the duration of temporary work (up to two months), a probationary period is not established (Article 289 of the Labor Code of the Russian Federation).
Other works. When concluding an employment contract for a period of two to six months, the test cannot exceed two weeks (Article 70 of the Labor Code of the Russian Federation).
Recall that according to Article 70 of the Labor Code of the Russian Federation, a test for employment is also not established:
- pregnant women and women with children under the age of one and a half years;
- persons elected on the basis of a competition for the relevant position held in accordance with the procedure established by labor legislation and other regulatory legal acts containing labor law norms;
- under the age of 18;
- graduates of state-accredited educational institutions of primary, secondary and higher vocational education and for the first time entering work in the acquired specialty within one year from the date of graduation from the educational institution;
- elected to an elective position for a paid job;
- invited to work in the order of transfer from another employer as agreed between employers;
- to other persons in cases stipulated by the Labor Code, other federal laws, a collective agreement.
The probation period may not exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise established by federal law.
We draw up a fixed-term employment contract
Let's proceed directly to the design of the document. As we have already noted above, all mandatory conditions must be included in it.
Particular attention should be paid to the reasons why a fixed-term employment contract is concluded, and to the timing of its expiration. Let's take this document as an example.
Example 3
Civil engineer E.V. Nezabudkin was hired by Project-Design LLC, created specifically to service the international youth sports games Sportlantida, planned in Volgograd in August 2010. Preparation for them began in January 2010, construction work should be completed on July 15, 2010. The organization will function until July 31, 2010. With E.V. Nezabud-kin need to conclude a fixed-term employment contract for the period of existence of this organization. How to compose it?
Decision
The fixed term contract is below.
Entry in the work book upon employment
According to paragraph 4 of the Rules for maintaining and storing work books, preparing work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225, information about the employee, the work performed by him, transfer to another permanent job, dismissal, as well as the grounds for termination of the employment contract and information on the award for success in work.
Accordingly, if a fixed-term employment contract is concluded with an employee for any period, it is necessary to make an entry about this in the work book or start a new one, if there is none. The employer must make a record of hiring a conscript in the work book if he has worked for him for more than five days and this work is the main one for this employee. This is the requirement of paragraph 3 of the Rules for maintaining and storing work books, preparing work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225.
However, this does not mean that it is necessary to indicate in the work book that it is a fixed-term employment contract that has been concluded. Also, attention is not focused on the fact that an employee, for example, replaces an absent specialist. It is enough to make a standard entry, for example: “Employed as a mechanic”, indicating the serial number of the entry, the date, as well as the details of the employment order. This, in particular, is stated in the letter of the Federal Service for Labor and Employment of 04/06/2010 No. 937-6-1.
Vacation of a conscript worker
An employee who has entered into a fixed-term employment contract is generally granted annual paid leave with the preservation of the place of work and earnings (Article 114 of the Labor Code of the Russian Federation). Its duration is at least 28 calendar days per working year (Article 115 of the Labor Code of the Russian Federation). If the employee has worked less than a year, the duration of the vacation is calculated in proportion to the hours worked.
The right to use leave for the first year of work arises for the employee after six months of his continuous work with this employer (part 2 of article 122 of the Labor Code of the Russian Federation).
Holidays are paid on the basis of the average wage, which is calculated according to the rules established in Article 139 of the Labor Code, as well as in the Regulation on the peculiarities of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922.
In accordance with Part 1 of Article 128 of the Labor Code of the Russian Federation for family reasons and other good reasons, an employee, on the basis of his written application, may be granted leave without pay for the duration established by the labor legislation of the Russian Federation and the employer's internal labor regulations.
Extension of a fixed-term employment contract
In what cases can a fixed-term employment contract be extended? Let's consider several situations.
Mandatory extension of the contract
The validity of a fixed-term employment contract can be mandatory extended only in one case - if it coincides with the period of the employee's pregnancy. In this situation, the employer is obliged to extend the term of the employment contract until the end of the pregnancy. This is stated in part 2 of article 261 of the Labor Code.
The employee must submit a written application and bring a medical certificate confirming the state of pregnancy2.
Extension by agreement of the parties
Part 4 of Article 58 of the Labor Code states the following. In the event that neither of the parties demanded the termination of a fixed-term employment contract due to its expiration and the employee continues to work, the condition on the urgent nature of the employment contract becomes invalid. After that, the employment contract is considered concluded for an indefinite period. Does the fact of changing the status of a fixed-term contract to an open-ended contract need to be documented?
In fact, the change in the status of the contract occurs automatically. After that, the conscript employee is subject to the labor law norms that are provided for employees who have concluded open-ended employment contracts. For example, such an employee can no longer be fired on the basis of the expiration of the employment contract (clause 2, article 77 of the Labor Code of the Russian Federation).
However, in this case, it is desirable to draw up a number of documents. Such recommendations are given in the letter of Rostrud dated November 20, 2006 No. 1904-6-1.
First of all, this is an additional agreement to the employment contract. It is possible to give the following wording in it: “To state clause No. ... in the following wording: “This employment contract is concluded for an indefinite period””.
Fixed term contract with pensioner
Often, employers enter into fixed-term contracts with pensioners. At the same time, many believe that this is the only form of relationship with this category of workers. However, it is not. The Ruling of the Constitutional Court dated May 15, 2007 No. 378-O-P states that when concluding an employment contract with a pensioner, a period can be set only by agreement of the parties. A similar conclusion is contained in paragraph 13 of Resolution No. 2.
Therefore, it is possible to conclude employment contracts with pensioners for an indefinite period. There is also no need to dismiss an employee who has received the status of a pensioner and conclude a fixed-term contract with him. He can continue to work on the basis of a previously concluded open-ended contract.
Termination of a fixed-term employment contract
An employment contract with a conscript employee is terminated due to the expiration of its validity. This is stated in part 1 of article 79 of the Labor Code of the Russian Federation. The procedure for terminating a fixed-term employment contract is regulated by Article 79 of the Labor Code of the Russian Federation. The termination of the employment contract upon the expiration of the term of the employee is warned in writing at least three calendar days before the dismissal. Only in the case when a fixed-term contract is concluded with an employee for the period of replacement of an absent specialist, the employer may not warn him in advance.
The notification is made in any form. It must specify the term for terminating the contract and the rationale (for example, in connection with the completion of work).
Dismissal order
After the employee is notified of the expiration of the employment contract and there are no obstacles to its termination, the manager issues an order to dismiss the employee. For this, there are two unified forms No. T-8 and T-8a (in the event of the dismissal of several employees), which are approved by the Decree of the State Statistics Committee of Russia of 01/05/2004 No. 1 "On approval of unified forms of primary accounting documentation for accounting for labor and its payment."
A fixed-term employment contract may also be terminated on the general grounds established in Article 77 of the Labor Code of the Russian Federation, namely:
- by agreement of the parties (Article 78 of the Labor Code of the Russian Federation);
- the initiative of the employee (Article 80 of the Labor Code of the Russian Federation);
- the initiative of the employer (Article 81 of the Labor Code of the Russian Federation).
Entry in the workbook
On the day the employment contract is terminated, the employee must be given a work book in his hands (part 4 of article 84.1 of the Labor Code of the Russian Federation).
According to paragraph 5.2 of the Instructions for filling out work books, approved by Decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69, upon termination of an employment contract on the grounds provided for in Article 77 of the Labor Code of the Russian Federation, a dismissal entry is made in the work book with reference to the corresponding paragraph of this article.
On a note
When to dismiss an employee if a fixed-term employment contract terminates on a holiday or weekend? According to Article 14 of the Labor Code of the Russian Federation, the expiration date of the employment contract, if the last day is a non-working day, is considered the next working day following it.
In the event of the dismissal of a conscript employee, when making an entry on the termination of a fixed-term employment contract, it is necessary to refer to clause 2 of part 1 of article 77 of the Labor Code of the Russian Federation. The wording will look like this: "Fired due to the expiration of the employment contract, clause 2 of part 1 of article 77 of the Labor Code of the Russian Federation."
After receiving the work book, the employee must sign in the book of accounting for work books and inserts to them in the form approved in Appendix 3 to the Decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69, and on the last page of the personal card, the unified form of which No. T-2 was adopted by the Decree Goskomstat of Russia dated 05.01.2004 No. 1.
If temporary disability coincided with the expiration of a fixed-term contract
If an employee is on sick leave at the time when his contract expires, the fixed-term employment contract is not extended. An employee is fired for general reasons. However, sick leave must be paid. Article 183 of the Labor Code of the Russian Federation obliges the employer to do this. It states that in the event of temporary disability, the employer pays the employee temporary disability benefits in accordance with federal laws.
In turn, paragraph 2 of Article 5 of the Federal Law of December 29, 2006 No. 255-FZ “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood” states that temporary disability benefits are paid to insured persons not only during the period of employment agreement, but also in cases where the disease or injury occurred within 30 calendar days from the date of termination of its validity.
Taxation and accounting of payments upon dismissal
Labor legislation requires the employer on the last working day of the employee to pay him wages for hours worked (Article 140 of the Labor Code of the Russian Federation) and compensation for unused vacation (Part 1 of Article 127 of the Labor Code of the Russian Federation). It is permissible to establish other payments in a collective or employment agreement.
Thus, part 4 of article 178 of the Labor Code states that labor or collective agreements can establish not only the payment of severance benefits not provided for in parts 1-3 of article 178 of the Labor Code of the Russian Federation, but also increased amounts of severance benefits.
Upon dismissal, the employee is paid wages for hours worked, compensation for unused vacation and, in some cases, severance pay.
The first two payments are subject to:
- personal income tax (clause 1, article 210 of the Tax Code of the Russian Federation);
- insurance premiums (clause 1, article 7 of Federal Law No. 212-FZ dated July 24, 2009 “On insurance premiums to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and territorial compulsory medical insurance funds”).
The amounts of wages and compensation are included in the taxpayer's expenses for wages (part 1 of article 255 of the Tax Code of the Russian Federation).
Wages are subject to contributions for injuries (clause 3 of the Rules for the calculation, accounting and spending of funds for the implementation of compulsory social insurance against industrial accidents and occupational diseases, approved by Decree of the Government of the Russian Federation of 02.03.2000 No. 184).
Compensation is not subject to contributions for injuries (clause 1 of the List of payments for which insurance premiums are not charged to the FSS of Russia, approved by Decree of the Government of the Russian Federation of 07.07.99 No. 765).
Severance pay within the limits is not subject to personal income tax, insurance premiums (subparagraph “e”, paragraph 2, part 1, article 9 of the Federal Law of July 24, 2009 No. 212-FZ), is not subject to injury contributions (paragraph 1 of the List of payments , for which insurance premiums are not charged to the FSS of Russia), reduces the taxable base for income tax as part of labor costs (clause 9, article 255 of the Tax Code of the Russian Federation).
In accounting, wages, severance pay and compensation for unused vacation are related to expenses for ordinary activities (clause 5 PBU 10/99).
The accrual and payment to their employee is reflected in the following entries:
DEBIT 20 (23, 25, 26, 29, 44) CREDIT 70 - payments to the employee upon dismissal were accrued;
DEBIT 70 CREDIT 68 sub-account "Personal income tax settlements" - personal income tax withheld from payments that are subject to this tax;
DEBIT 70 CREDIT 50 (51) - payments to the employee were issued (listed).
Gavrikova I. A., senior scientific editor of the journal "Salary"
A fixed-term employment contract is concluded with an employee in the event that the nature of the proposed work or the conditions for its performance do not allow concluding an agreement for an indefinite period. In other words, :
- or under circumstances in which it is impossible to conclude an open-ended employment contract. For example, in the case of hiring an employee who retains his place of work. Let's say for a period;
- or , but subject to certain conditions. For example, small businesses with no more than 35 employees (in the general case) are entitled to hire workers under fixed-term employment contracts.
Employment under a fixed-term employment contract
The conclusion of a fixed-term employment contract has its own. It must be written in it. As a rule, it cannot exceed 5 years. If the term is not specified in the contract, then the contract is considered concluded for an indefinite period. By the way, in some cases, a fixed-term employment contract.
The "conscript" worker can be installed. However, if the contract is concluded for a period:
- from 2 to 6 months, then the test cannot last more than 2 weeks;
- up to 2 months, then a trial period cannot be established at all.
Based on the order for hiring an employee, it must be done. Including in the case when a fixed-term employment contract is concluded with the employee. But information about the term of the contract in the work book is not indicated.
