As a general rule, the employer is obliged to enter into open-ended employment contracts with employees. An employee needs stability to support his family, pay a mortgage and grow professionally in one job. They hired a person, and he works until retirement or successful headhunting of competitors.
But organizations often have a reasonable business need to hire a temporary employee. The Labor Code of the Russian Federation takes this need into account: in specific cases, fixed-term employment contracts can be concluded with employees.
In this article, we explained for what reasons employers have the right to hire and fire temporary workers. A bonus is how to avoid making popular mistakes that cause entrepreneurs to lose money on fines and payments to employees.
In what cases is it permissible to conclude a fixed-term employment contract?
A fixed-term employment contract is concluded for a period of up to five years - Art. 58 of the Labor Code of the Russian Federation.
Here are two groups of grounds for a fixed-term contract in a small business. You can't invent your own. The entire list of reasons is spelled out in Art. 59 Labor Code of the Russian Federation.
Conclude without the employee’s consent:
— To temporarily replace another employee until he returns to work.
Most often, this is the reason why workers are hired to take the place of maternity leavers. But it is also suitable for other cases of long absence of the main employee. For example, when a young man joins the army or alternative service.
— For a temporary project of up to two months: a developer for a specific program, a waiter for a series of catering services.
— To perform seasonal work: snow removal.
— When a graduate is hired for an internship.
Conclude with the consent of the employee:
— Small businesses with a staff of up to 35 people, and for trade and personal services - up to 20, can enter into fixed-term contracts with all personnel.
— With old-age pensioners and people who, for health reasons, are allowed to work only temporarily.
— With directors, chief accountants and their deputies.
— When the employee is studying full-time.
- With part-time workers.
Important. With the consent of the employee, this means that it is also convenient and profitable for the applicant to get a temporary job. If the employer offers to conclude a contract for six months or not at all, this is an ultimatum, not consent. There is no universal recommendation here, but you need to be careful with the design by agreement with the person.
In a fixed-term contract, the reason for its conclusion and the validity period must be written. Otherwise, the employment relationship will become permanent.
Fines
The Labor Inspectorate fines for drawing up a fixed-term contract without a reason under paragraph 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation. The reasons are clear - complaints from employees dissatisfied with unstable work. Fines: individual entrepreneurs - up to 5,000 ₽, companies - up to 50,000 ₽.
How an individual entrepreneur can hire an employee
How to hire an employee to an organization
How to hire employees to work remotely
Necessary documents when changing conditions by agreement of the parties
In the event that the employee and employer decide to convert the contract into an open-ended one without waiting for its expiration, an additional agreement will be required. How to do it and when does it take effect?
Preparation and preparation of papers
The law does not indicate who can initiate the transfer of fixed-term employment relationships to indefinite ones. This can be done either by the employee by submitting a corresponding application during the contract period, or by the employer by inviting the employee in writing to change the conditions.
Regardless of who proposes to do this, the procedure will be the same:
- An additional agreement to the employment contract is being prepared.
- The employer issues an order that approves the document signed by the parties.
The specific wording used by the parties in the document remains at the discretion of the parties: the legislation does not provide standard forms and forms for employment contracts. In practice, changing the deadline can be formalized using statements like:
- “Consider the employment contract No.... dated... concluded for an indefinite period.”
- “Exclude from the employment contract No.... dated... clause number...” (here is the clause of the original contract that stated the validity period).
The parties may use other wording if they wish. The main thing in this case is to clearly and unambiguously establish in the employment contract the conditions under which it ceases to be limited to a certain period of validity.
Important! As in the case of expiration, when concluding an additional agreement, an order from the employer will be required. It is compiled according to the same rules as described above.
We have also prepared material for you on how to transfer an employee from an open-ended contract to a fixed-term one. We also invite you to read about the specifics of changing an employment contract due to an employee’s transfer to another position, a change in salary or a change in the employee’s last name.
Limitations on the probationary period of temporary workers
To understand whether the employee is liked, the employer sets a probationary period under Art. 70, 71 Labor Code of the Russian Federation. This is convenient: if a person is not suitable, it is enough to give written notice of dismissal three days in advance.
The probationary period is set for a period of up to three months. For the company director, chief accountant and their deputies - up to six months. The probationary clause must be written into the employment contract.
The probationary period is shorter
Temporary workers are also allowed to undergo background checks. But when registering for a position from two months to six months, the probationary period should not exceed two weeks.
Test prohibited
When a contract is concluded for a period of up to two months, testing cannot be established. Therefore, unsuitable specialists will have to be fired under the article.
Some workers have increased protection by law and it is prohibited to check their competence after registration. This also applies to temporary work. The probationary period does not work for pregnant women, women with children under one and a half years old, minors and graduates in the first year of work in their specialty.
Employer's order
After the additional agreement is signed, it is approved by order of the manager. This is necessary because, by virtue of Art. 68 of the Labor Code of the Russian Federation, registration of labor relations with an employee is carried out using an order.
If the conditions of the relationship change significantly, a document of equal legal force is required to record this fact - that is, an order. A similar conclusion can be drawn from Art. 9 Federal Law “On Accounting”.
Previously, orders of this kind had to be issued in form No. T-1, approved by Resolution of the State Statistics Committee of the Russian Federation No. 1 of 2004.
On a note. Since January 2013, when the above-mentioned Federal Law “On Accounting” came into force, it is allowed to use forms developed at the enterprise itself as primary accounting documents, with the exception of specially specified cases (to which the order form No. T-1 does not apply ).
Therefore, in order to approve an additional agreement to an employment contract, you can use not only this form, but also your own form developed and approved by the employer. The order must contain:
- Name of the organization.
- Document number and date.
- Full name of the employee, his position and structural unit.
- The conditions under which his work takes place from this moment on.
- Position and name of the manager.
The order must be communicated to the employee against signature , so the corresponding column should be included in the form. But since it is an internal document, there is no stamp on it.
- Download a sample order to change the term of an employment contract
Mistakes made by employers when drawing up a fixed-term employment contract
A legal employment contract is concluded for economic or organizational reasons. All of them are reflected in the Labor Code of the Russian Federation. The employee sees the exact term of employment in the contract and, upon completion, is ready to look for a new job. Otherwise, a competent employee will go to court. In court, the employer will be forced to formalize the contract and pay money for forced absence and moral damage.
Below are typical mistakes made by employers.
The term was not included in the fixed-term employment contract
If the contract does not indicate a validity period, it is recognized as unlimited - paragraph 5 of Art. 58 Labor Code of the Russian Federation. It is believed that the employee was not warned about temporary employment. The same applies if there was a delay in signing the papers and the employee learned about the deadline a few days after the start of work. The employee will go to court, and the court will recognize the contract as permanent.
It is safe to immediately write down the exact date in the contract. For example, from July 01, 2021 to September 01, 2021. If the exact date cannot be predicted, indicate the event after which the contract is terminated. For example, before a permanent employee returns from maternity leave.
The entrepreneur forgot to sign a fixed-term contract with the cashier in the canteen before starting work. The woman went to court and received a permanent job - case No. 33-31717/2019.
There was no legal basis for a fixed-term employment contract
All grounds for temporary employment can be taken strictly from Art. 59 Labor Code of the Russian Federation. Otherwise, the contract becomes permanent at the request of the employee in court under paragraph 7 of Art. 58 Labor Code of the Russian Federation. Even seemingly adequate reasons to hire an employee for a while are prohibited.
In one labor dispute, the court decided that the geography teacher’s lack of a diploma (he was still studying) was not a reason for a fixed-term contract. There is no such basis in the Labor Code of the Russian Federation. The dismissed employee was reinstated in his position permanently with payment of compensation - case No. 33-21838/2018.
Termination of a fixed-term employment contract was not formalized
If the termination date of the contract has passed, but the paperwork for the temporary employee has not been completed and he continues to work, the contract becomes indefinite. This is what it says in paragraph 6 of Art. 58 Labor Code of the Russian Federation. Such a basis often turns out to be an offensive formality for the employer. Therefore, do not miss the end of the fixed-term contract and prepare orders and salary calculations.
The employer “extends” the fixed-term contract
It is prohibited by paragraph 8 of Art. to cover up permanent employment by re-signing fixed-term contracts. 58 Labor Code of the Russian Federation. It is especially dangerous if the employee performs the same function and does not move up the career ladder.
There is a temptation: to fire a fixed-term employee, you don’t need to select an article, just wait until the end of the term. The consequence of multiple fixed-term contracts is permanent employment by the court at the request of the employee and a fine.
The organization constantly renegotiated the contract with the watchman. The man wanted stability and through the court ordered the employer to issue a permanent contract. In addition, he sued for money for forced absence - case No. 33-8033/2015.
A pregnant woman was fired
The employer is obliged to extend a fixed-term employment contract with a pregnant woman until the end of maternity leave. This is the rule from Art. 261 Labor Code of the Russian Federation.
If a pregnant woman works in the place of another person and he returns (most likely, also from maternity leave), she is offered another feasible job. In a small organization, another job for a woman is rare. If there are no vacancies, the pregnant woman is fired. Yes, this is one of those rare cases when this is possible.
