Legality of concluding and terminating a fixed-term employment contract

Nevertheless, the Labor Code establishes quite a lot of grounds for concluding a fixed-term employment contract. And if the employer still “lacks” the grounds and concludes such an agreement in violation of the law, as a result, the employee may be reinstated after dismissal, and the agreement may be reclassified as permanent.

In the article we will consider in which cases the conclusion and termination of a fixed-term employment contract is legal, and in which it can be considered illegal.

What is a fixed-term employment contract?

The hiring of new employees is confirmed by the execution of employment contracts, which reflect the procedure and conditions of work, the rights and obligations of existing parties, as well as the duration of the employment relationship.
More detailed information about the procedure for registering contractual relations can be found in the material “Unified Form No. TD - 1 - Employment Contract”.

In this case, it is possible to conclude both open-ended employment contracts and contracts with a limited period of validity. The duration of the latter cannot exceed 5 years (Article 58 of the Labor Code of the Russian Federation). If a longer period is prescribed, then such an agreement becomes indefinite.

In accordance with the provisions of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract is drawn up on the basis of the following conditions:

1. If you plan to hire a new employee whose responsibilities include performing the functions of temporarily absent employees.
2. If it is necessary to perform seasonal or temporary (no more than 2 months) work.
3. To perform specific types of work and services not related to the daily activities of an economic entity.
4. To perform labor functions, the end date of which is determined by a specific date.
5. When sending an employee abroad.
6. If the nature of the work is related to studies, internships.
7. For temporary employment of persons undergoing alternative civil service, or citizens sent to temporary work by employment centers.
8. In other situations permitted by law.

In addition, fixed-term employment contracts can be concluded with paralegals and prosecutorial employees, as well as with persons in the civil service.

Employers also have the right to conclude employment contracts with a limited period of validity with the agreement of the interested parties (Article 59 of the Labor Code of the Russian Federation). These include small enterprises whose number of employees does not exceed 35 people. Also, contracts of this kind can be drawn up with:

• citizens who have reached retirement age, as well as those who, for medical reasons, are allowed only temporary employment;
• persons working in the Far North;
• employees whose activities are related to the prevention of natural disasters and other emergency situations;
• workers of culture and art;
• representatives of the management apparatus - managers, chief accountants;
• ship crew members;
• employees performing their duties part-time;
• full-time students.

Illegal establishment of the validity period of an employment contract, confirmed by the judicial authorities, transfers it to the category of indefinite (Article 58 of the Labor Code of the Russian Federation). The conclusion of fixed-term employment contracts that limit the rights of employees may be considered illegal. Thus, if dismissal is due to the liquidation of an enterprise or staff reduction, severance pay in the amount of two average monthly salaries is not due to employees who have entered into fixed-term employment contracts lasting up to two months.

For more information about severance pay and its taxation, see this resource.

Mandatory

The employer must draw up the STD if the employee is hired:

• For the duration of the duties of the main employee. A classic case is when an employee goes on maternity leave. You can hire a new employee in her place only under the STD.
• For temporary work up to 2 months. For example, you hire a team of workers to decorate a house. When the work ends, the workers will be fired.
• For seasonal work, as a rule, up to 6 months (Article 293 of the Labor Code of the Russian Federation). Work is classified as seasonal if it directly depends on natural conditions and is included in the approved industry list. For example, a water bus driver may be hired before the end of the navigation period.
• For work outside the scope of normal activities (reconstruction, installation, temporary expansion of production). For example, you purchased new equipment and hired workers for installation. After completion of the work, the need for these workers will no longer exist and contracts with them will be terminated.

Conditions for applying a fixed-term employment contract

Employment contracts with a limited duration are mainly concluded in cases where the type of work performed is temporary. In other situations, agreement of both parties is required.

If fixed-term contracts are periodically concluded with the same employee, the employer must be ready to provide reasoned explanations for the need to determine the terms. Otherwise, when considering conflict situations, such agreements may be recognized as unlimited by the judicial authorities.

If, after the expiration of the concluded employment contract, neither party has expressed a desire to terminate the employment relationship, the contract is recognized as unlimited. In this case, there is no need to make additional entries in the work book. However, the changes will need to be recorded in an additional agreement (letter of Rostrud “On the term of the employment contract” dated November 20, 2006 No. 1904-6-1). The extension of the term of the employment contract is also confirmed by the order.

Recommendations from ConsultantPlus experts will help you correctly arrange the extension of your fixed-term employment. If you don't have legal access, a full access trial is available for free.

Considering the fact that the expiration date of employment contracts does not imply their completion, employers are recommended to keep records of these documents themselves. Otherwise, employees will have to be dismissed on a general basis at the end of the completion period.

For additional information on the procedure for dismissal in certain situations, see the material “Procedure for dismissal due to liquidation of an organization.”

Severance pay amount

On the last day of work of a temporary employee, the amount of severance pay is calculated. This guide includes the following:

• the balance of salary not received by an employee of the company;
• bonus and other payments - the amount is set at the discretion of the management;
• compensation for vacation days.

Employees with whom a fixed-term work contract was established have the right to leave if the duration of work at the company is more than two months.
The duration of leave is the same as for permanent employees working in an identical position. The number of days is counted from the last day the employee was on last leave. The calculation is made by dividing the duration of the vacation by 12. Then the final number is multiplied by the number of months that have been worked since the previous vacation.

If a person worked for less than a year, then only the months worked are compensated. But only the period when more than fifteen days were worked is considered a month. If fewer days were worked in a month, it is not taken into account.

Dismissal under a fixed-term employment contract

The process of terminating the employment relationship with employees who work on fixed-term contracts is slightly different from the standard dismissal procedure.

The reason for dismissal under a fixed-term employment contract may be the end of its validity period. But in this case, it is important not to miss the deadlines. The basis is clause 2 of Art. 77 of the Labor Code of the Russian Federation, which applies in cases where the parties have decided to terminate further labor relations.

Dismissal must be preceded by a written warning from management issued to the employee at least 3 days in advance. The fact that the dismissed person is familiar with the notice sent to him must be recorded. The only exception is the termination of the contract on previously accepted conditions, under which the duties of an employee absent for any reason were temporarily performed (Article 79 of the Labor Code of the Russian Federation).

The absence of notice of dismissal does not allow dismissing an employee due to the expiration of the employment contract. In such cases, the employment relationship can be terminated only on other conditions provided for by law.

Drawing up a notice of termination of an employment contract is allowed in any form. It should reflect the date and reason for dismissal. If the employee refuses to familiarize himself with the notice, a corresponding act is issued.

Termination of employment under a fixed-term employment contract is permitted in the following cases:

1. If the contract is drawn up for the purpose of performing certain types of work, termination occurs upon completion. In this case, an act of acceptance and transfer or performance of work is drawn up. The end of the contract term is the next day after the act is drawn up.
2. If the contract implied the fulfillment of the duties of a temporarily absent employee, then it terminates when the employee returns to the workplace.
3. A fixed-term contract can also be concluded for a period of seasonal work. It ends after the end of the designated period. Lists of seasonal work and their terms are established by the Government of the Russian Federation.

See also “Termination of a fixed-term employment contract during sick leave.”

After the termination of the employment relationship, the employee receives a work book, payroll and related documents.

For more detailed information about the documents issued upon dismissal, see the material “Certificate of wages - sample and form in 2021.”

If an employee decides to leave the workplace after the end of the contract, the employer does not have the right to retain him.

Upon dismissal, the employee is guaranteed all due monetary payments: payment for the period of work, compensation for unused vacation. If a fixed-term contract was drawn up for a period of up to 2 months, then compensation for vacation is calculated at the rate of 2 days for 1 month worked (Article 291 of the Labor Code of the Russian Federation). The grounds for termination of the employment relationship do not affect the amount of compensation paid. The terms of the contract may provide for other payments, such as severance pay, the amounts of which are reflected in local documents.

Under some circumstances, the termination of fixed-term contracts occurs earlier than the established period, including on the basis of the provisions of Art. 77 of the Labor Code of the Russian Federation, by mutual agreement of the parties, at the initiative of the employer and other circumstances beyond the control of the parties.

Dismissal under a fixed-term employment contract caused by the employee’s initiative must be accompanied by a written notification from management 3 calendar days before the expected date of termination of the employment relationship.

How to apply

Step 1. Give notice of dismissal under a fixed-term employment contract. Draw up the notification in two copies: give one to the employee, on the second he will sign for receipt of the notification (Article 79 of the Labor Code).

Step 2. The employee does not sign the notice - draw up a statement of refusal in the presence of witnesses (two or more).

Step 3. Prepare a dismissal order. In the “Bases” line, enter the paragraph indicating the date on which the fixed-term employment contract is terminated, and the notification details. Let's give an example of an order.

Step 4. On the last day of work (day of dismissal):

• make an entry in the work book;
• make the final calculation (part 1 of article 140 of the Labor Code);
• issue all necessary documents.

Sample of filling out a labor report

File your dismissal while on sick leave as usual. Do not extend your contract due to illness. Calculate sick leave benefits on a general basis (letter of the Ministry of Labor dated 03/07/2019 No. 14-2/B-139).

Results

Termination of a fixed-term employment contract must be carried out in accordance with all the rules enshrined in the Labor Code of the Russian Federation, in compliance with the established deadlines.
Otherwise, if conflict situations arise between the parties, termination of the contract will have to be carried out on a general basis, involving longer service or, possibly, a higher level of payments upon dismissal. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

How long is an order stored?

The completed order is registered in a special registration book (journal) for personnel documentation. Next, it is necessary to ensure its safety for a certain period established by archival documentation. For personnel documentation, including dismissal orders, the retention period is 75 years.

To ensure the safety of the document over such a long period of time, storage conditions should be properly organized, favorable climatic conditions should be created; the air in the room should not be humid. The place itself must have a high level of safety and security both from access by third parties and from the impact of unforeseen situations such as floods and fires. Ideally, orders will be stored in metal, fireproof and sealed boxes, safes with a lock.