This article is devoted to the consideration and analysis of judicial practice related to the dismissal of employees under clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation (expiration of the employment contract).

Dictionary

Employment contract- an agreement between the employer and the employee, according to which the employer undertakes to provide the employee with work according to the specified labor function, to provide working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations and this agreement , pay the employee wages on time and in full, and the employee undertakes to personally perform the labor function determined by this agreement, to comply with the internal labor regulations in force for this employer (Article 56 of the Labor Code of the Russian Federation).

The main document concluded between the employee and the employer is the employment contract. In accordance with Art. 58 of the Labor Code of the Russian Federation, employment contracts with employees can be concluded:

1) for an indefinite period;

2) for a certain period of not more than five years ( fixed-term employment contract), unless a different period is established by this Code and other federal laws.

If the employment contract does not specify the duration of its validity, the contract is considered to be concluded for an indefinite period.

In the event that neither party requested termination of a fixed-term employment contract due to its expiration and the employee continues to work after the expiration of the employment contract, the condition on the fixed-term nature of the employment contract loses force and the employment contract is considered concluded for an indefinite period (h 4 Article 58 of the Labor Code of the Russian Federation).

It is prohibited to conclude fixed-term employment contracts in order to evade the provision of rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period (Part 6 of Article 58 of the Labor Code of the Russian Federation).

A fixed-term employment contract is concluded in special cases.

1 . When labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation - in cases provided for in Part 1 of Art. 59 Labor Code of the Russian Federation.

Extraction

Article 59. Fixed-term employment contract
A fixed-term employment contract is concluded:
for the duration of the performance of the duties of an absent employee, whose place of work is retained in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract;
for the duration of temporary (up to two months) work;
to perform seasonal work, when, due to natural conditions, work can only be carried out during a certain period (season);
Withpersons sent to work abroad;
for carrying out work that goes beyond the normal activities of the employer (reconstruction, installation, commissioning and other work), as well as work related to a deliberately temporary (up to one year) expansion of production or the volume of services provided;
Withpersons entering work in organizations created for a predetermined period or to perform a predetermined job;
with persons hired to perform obviously defined work in cases where its completion cannot be determined by a specific date;
to perform work directly related to practice, vocational training or additional professional education in the form of an internship;
in cases of election for a certain period to an elected body or to an elective position for paid work, as well as employment related to the direct support of the activities of members of elected bodies or officials in state authorities and local self-government bodies, in political parties and other public associations;
with persons sent by employment services to temporary work and public works;
with citizens sent to perform alternative civil service;

[…]

2 . When a fixed-term employment contract is concluded by agreement of the parties to the employment contract without taking into account the nature of the work to be done and the conditions for its implementation - in cases provided for in Part 2 of Art. 59 Labor Code of the Russian Federation.

Extraction
from the Labor Code of the Russian Federation

Article 59. Fixed-term employment contract
[…]
By agreement of the parties, a fixed-term employment contract may be concluded:
with persons entering work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the field of retail trade and consumer services - 20 people);
with age pensioners entering work, as well as with persons who, for health reasons, in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, are allowed to work exclusively of a temporary nature;
with persons entering work in organizations located in the Far North and equivalent areas, if this is related to moving to the place of work;
to carry out urgent work to prevent disasters, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;
with persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms;
with creative workers of the media, cinematography organizations, theaters, theatrical and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these workers, approved by the Government of the Russian Federation Federation, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations;
with managers, deputy managers and chief accountants of organizations, regardless of their legal forms and forms of ownership;
with persons receiving full-time education;
with crew members of sea vessels, inland navigation vessels and mixed (river-sea) navigation vessels registered in the Russian International Register of Vessels;
with persons applying for part-time work;
in other cases provided for by this Code or other federal laws.

An employment contract concluded for a specific period in the absence of sufficient grounds, may be recognized by the court as a contract concluded for an indefinite period.

Conditions for termination of a fixed-term employment contract differ from the conditions for termination of an employment contract concluded for an indefinite period, primarily by the fact that a fixed-term employment contract is terminated upon the expiration of its validity.

Extraction
from the Labor Code of the Russian Federation

Article 79. Termination of a fixed-term employment contract
A fixed-term employment contract is terminated upon expiration of its validity period. The employee must be notified in writing of the termination of the employment contract due to its expiration at least three calendar days before dismissal, with the exception of cases where a fixed-term employment contract concluded for the duration of the duties of the absent employee expires.
An employment contract concluded for the duration of a specific work is terminated upon completion of this work.
An employment contract concluded for the duration of the duties of an absent employee is terminated when this employee returns to work.
An employment contract concluded to perform seasonal work during a certain period (season) is terminated at the end of this period (season).

It should be noted that in accordance with Part 2 of Art. 261 of the Labor Code of the Russian Federation, in the event of expiration of a fixed-term employment contract during a woman’s pregnancy, the employer is obliged, upon her written application and upon provision of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract until the end of pregnancy. A woman whose employment contract has been extended until the end of her pregnancy is obliged, at the request of the employer, but not more than once every three months, to submit a medical certificate confirming the state of pregnancy. If the woman actually continues to work after the end of her pregnancy, then the employer has the right to terminate the employment contract with her due to its expiration within a week from the day the employer learned or should have learned about the end of the pregnancy.

SITUATION ONE

Let's consider a case from judicial practice regarding the dismissal of an employee in accordance with clause 2 of part 1 of Art. 77 Labor Code of the Russian Federation.

Citizen Yuryeva M.N. appealed to the city court against the decision of the district court in a civil case regarding a claim against her former employer, the State Treasury Institution Employment Center (hereinafter referred to as the GKU TsZN), with demands to recognize the order of her dismissal as illegal and to reinstate her work, to recover wages from the defendant for the period of forced absence and to compensate for moral damage caused.

Plaintiff's position

In substantiating the claims, Yuryeva M.N., having appealed to the district court, indicated that from 07/01/2014 she was hired as the chief specialist in the economic department of the State Budgetary Institution TsZN, as evidenced by the order dated 07/01/2014 No. 207-ls, as well as an urgent employment contract No. 147 dated July 1, 2014, concluded for the duration of the performance of official duties of the absent employee. From 08/01/2014 to 08/14/2014 she was inpatient treatment in the hospital. The reason for her hospitalization was pregnancy pathology, which she immediately reported to her employer. After falling ill, the plaintiff returned to work on August 15, 2014 and immediately submitted a sick leave certificate to the HR department. She was summoned by the head of the State Public Institution TsZN and handed her, against signature, notice No. 50-k dated 08/15/2014 about the termination of the fixed-term employment contract on 08/20/2014 under clause 2 of part 1 of Art. 77 Labor Code of the Russian Federation. From 08/15/2014 to 08/20/2014, the plaintiff was again hospitalized in the hospital, the reason for hospitalization was the same, of which the employer was also notified. On August 20, 2014, when she returned to work after illness, the personnel department gave her a work book and presented her with a dismissal order against signature. Former employee of the State Public Institution TsZN Yuryeva M.N. claims that she repeatedly verbally informed her employer about her pregnancy. Unfortunately, she did not have the opportunity to receive a certificate in a timely manner stating that she was pregnant. She considers the dismissal illegal, basing her arguments on the fact that neither at the time she was notified of her dismissal on August 15, 2014, nor at the time of her dismissal on August 20, 2014, did the employer offer her any vacant positions. By decision of the district court, M.N. Yuryeva’s claims were denied. In her appeal, she asks the district court to cancel the decision as illegal and unfounded, and to make a new decision, which will satisfy her claims.

Defendant's position

Representatives of the defendant GKU TsZN, acting on the basis of a power of attorney, objected to the satisfaction of the claims, citing the fact that the GKU TsZN did not receive a written opinion from any medical institution confirming the pregnancy of their employee M. N. Yuryeva. Representatives of the defendant also reported that Even if the employee had been able to provide documentary medical evidence of her pregnancy, the State Budgetary Institution of the Center for Health Protection did not have any available vacancies corresponding to the woman’s qualifications, and there were also no vacant lower positions or lower-paid work that the woman could perform taking into account her state of health. Thus, the defendant’s representatives believe that the dismissal took place on legal grounds, in compliance with all norms and rules in accordance with the Labor Code of the Russian Federation.

Court position

In accordance with Part 1 of Art. 327.1 of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Civil Procedure Code of the Russian Federation), the appellate court verifies the legality and validity of the decision of the first instance court based on the arguments set out in the appeal and objections to the complaint.

The grounds for canceling or changing a court decision on appeal are: incorrect determination of circumstances relevant to the case; failure to prove the circumstances relevant to the case established by the court of first instance; discrepancy between the conclusions of the court of first instance, set out in the court decision, and the circumstances of the case; violation or incorrect application of substantive law or procedural law (Article 330 of the Code of Civil Procedure of the Russian Federation). The court did not allow such violations.

When considering the civil case, having checked all the necessary materials, having listened to the opinions of the plaintiff and representatives of the defendant, the judicial panel found that citizen Yuryeva M.N. was actually hired as of July 1, 2014 as a chief specialist in the economic department of the State Budgetary Institution of the Central Bank of Ukraine, as evidenced by an order to hire her and a fixed-term employment contract concluded for the period of parental leave of the main employee.

On August 12, 2014, the head of the State Public Institution Center for Labor Protection received an application from the main employee N. to leave parental leave before the child reaches the age of three years and to begin performing his official duties on September 1, 2014. On August 19, 2014, based on N.’s application, an order was issued for her to return to work as a chief specialist in the economic department of the State Budgetary Institution of the Central Bank. On August 15, 2014, the employer informed Yuryev M.N. about this orally and in writing (by notification). By order of August 20, 2014 No. 268-ls, Yuryeva M.N. was dismissed from her position on August 20, 2014 on the basis of clause 2, part 1, art. 77 of the Labor Code of the Russian Federation (due to the expiration of the employment contract). Resolving the stated demands, the court found that the corresponding application and medical certificate confirming the state of pregnancy were not submitted to the employer by M. N. Yuryeva.

By virtue of the provisions of Art. 58 of the Labor Code of the Russian Federation, employment contracts can be concluded both for an indefinite period and for a specific period of not more than five years (fixed-term employment contract), unless a different period is established by this Code and other federal laws.

A fixed-term employment contract is concluded when the employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation, namely in the cases provided for in Part 1 of Art. 59 Labor Code of the Russian Federation. In cases provided for in Part 2 of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract can be concluded by agreement of the parties to the employment contract without taking into account the nature of the work to be performed and the conditions for its implementation.

According to clause 2, part 1, art. 77 of the Labor Code of the Russian Federation, the basis for termination of an employment contract is the expiration of the employment contract (Article 79 of the Labor Code of the Russian Federation), except for cases where the employment relationship actually continues and neither party has demanded its termination.

The employee must be notified in writing of the termination of the employment contract due to its expiration at least three calendar days before dismissal, with the exception of cases where a fixed-term employment contract concluded for the duration of the duties of the absent employee expires.

Thus, the expiration of the employment contract is an independent basis for termination of this contract (clause 2, part 1, article 77 of the Labor Code of the Russian Federation).

In part 2 art. 261 of the Labor Code of the Russian Federation, in the event of expiration of a fixed-term employment contract during a woman’s pregnancy, the employer is obliged, upon her written application and upon provision of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract until the end of pregnancy.

It is permissible to dismiss a woman due to the expiration of an employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of an absent employee and it is impossible, with the written consent of the woman, to transfer her to another job available to the employer before the end of her pregnancy (as a vacant position or a job corresponding to the woman’s qualifications, and a vacant lower-level position or lower-paid job), which a woman can perform taking into account her state of health. At the same time, the employer is obliged to offer her all the vacancies available in the given area that meet the specified requirements (Part 3 of Article 261 of the Labor Code of the Russian Federation).

According to the legal position of the Constitutional Court of the Russian Federation, set out in the Determination of October 21, 2008 No. 614-О-О, termination of an employment contract due to the expiration of its validity period corresponds to the general legal principle of contract stability; the employee, giving consent to the conclusion of an employment contract in cases provided for by law for a certain period, knows about its termination after the expiration of a pre-agreed period. The possibility of terminating a fixed-term employment contract concluded during the performance of the duties of a temporarily absent employee, earlier than the end of the expected period of absence of such an employee, in particular in case of early termination of parental leave at the initiative of the employee (Article 256 of the Labor Code of the Russian Federation), is due to the need to protect the rights and freedoms of a temporarily absent employee. This rule applies to all persons who have entered into a fixed-term employment contract and cannot be considered as contrary to the principle of equality of human rights and freedoms.

The arguments of the appeal that the court unreasonably refused to satisfy the claim are untenable and are based on an erroneous interpretation of the rules of substantive law.

Moreover, by agreeing to conclude a fixed-term employment contract, Yuryeva M.N. expressed her consent to conclude the contract for a certain period, and this, in turn, indicates that the parties agreed on the conditions for its termination, including connection with the return of the main employee to his workplace.

The plaintiff's allegations about the court's violation of the requirements of Art. 81 of the Labor Code of the Russian Federation are also untenable for the following reasons: the provisions of this article of the Labor Code of the Russian Federation regarding the inadmissibility of dismissal of an employee during a period of temporary incapacity for work are not subject to application to the legal relations that have arisen, since they apply exclusively in the event of termination of an employment contract at the initiative of the employer, and not in connection with the expiration the duration of the fixed-term employment contract. Termination of a fixed-term employment contract is not the initiative of the employer.

There are no other arguments indicating the illegality of the contested decision in the appeal.

Assessing the stated circumstances on the basis of the above legal norms, the judicial panel proceeds from the fact that a fixed-term employment contract was concluded between the parties, the validity of which has expired; The plaintiff did not notify the defendant about her pregnancy, and did not provide medical documents confirming this fact, and therefore the employer had grounds to dismiss the plaintiff under clause 2, part 1 of Art. 77 Labor Code of the Russian Federation.

As can be seen from the case materials, as of August 20, 2014, there was a vacancy at the State Budgetary Institution Central Committee for the profession “first-class building maintenance worker,” which involves actions contraindicated for pregnant women: lifting and moving heavy objects (buckets of water), working with toxic substances (cleaning and detergents), etc. There were no vacant positions or work corresponding to the qualifications of Yuryeva M.N., which she could perform taking into account her state of health, at the State Public Institution of the Center for Health.

The panel of judges believes that when resolving the dispute, the court of first instance correctly determined the circumstances relevant to the case, the legal relations of the parties within the framework of the stated requirements and the law to be applied. Moreover, the court's conclusions correspond to the circumstances established in the case, confirmed by the case materials and evidence examined by the court, which the court gave a proper assessment in accordance with the requirements of procedural norms. Violations norms of procedural and substantive law, entailing the reversal of the decision, the court also did not allow.

Under these circumstances, the judicial panel does not see any grounds for canceling the court decision based on the arguments of the appeal.

Guided by Art. 328, 329 Code of Civil Procedure of the Russian Federation, appeal board of the city court determined: decision of the district court dated September 25, 2014 leave unchanged, appeal by Yuryeva M.N. - without satisfaction.

SITUATION TWO

Let's consider another legal dispute. In this case, the court's decision is the opposite.

Citizen M.A. Artemov filed a claim in the district court against his former employer, F LLC.

Plaintiff's position

Former employee of the company "F" LLC Artemov M.A. appealed to the district court with demands to recognize the order of his dismissal under clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation is illegal, reinstate him at work, as well as pay wages for the period of forced absence and collect compensation for moral damage caused.

Employee Artemov M.A. On May 15, 2011, he was hired by the company F LLC for the position of General Director of a branch of the company, as evidenced by the employment order dated May 15, 2011 No. 168-k, as well as the fixed-term employment contract concluded with him agreement dated May 15, 2011 No. 198 without a specific expiration date for this employment contract, but with the wording “... for the period until the appointment of the General Director in the prescribed manner.”

The plaintiff explained to the court that more than three years passed before the “appointment of the general director in accordance with the established procedure”, after which he (the plaintiff) was dismissed on 08/24/2014 (dismissal order dated 08/24/2014 No. 205-k) under clause 2, part 1 Art. 77 Labor Code of the Russian Federation.

Defendant's position

A representative of the company F LLC, acting on the basis of a power of attorney, objected to the satisfaction of the claims, citing the fact that the wording “... for the period until the appointment of the general director in the prescribed manner” in the fixed-term employment contract was adopted in order to determine the establishment the procedure for appointing an applicant to the position of General Director, with a staffing table, as well as with a permanent salary for the position of General Director of a branch of the company "F" LLC. Over time, all the necessary standards were approved, and another candidate was invited to the position of general director of the branch of the company “F” LLC, after an interview with whom it was decided to dismiss the employee M.A. Artemov. According to Part 1 of Art. 79 of the Labor Code of the Russian Federation, within three calendar days, the employee was given a notice of impending dismissal against signature, after which he was dismissed from the position of general director of the branch of the company "F" LLC under clause 2, part 1 of art. 77 Labor Code of the Russian Federation. The defendant's representative believes that the dismissal was legal in compliance with all the requirements of the Labor Code of the Russian Federation.

Court position

The panel of judges, having heard the arguments presented by both the plaintiff and the defendant, having thoroughly studied the materials of the said case, having considered the orders for hiring and dismissal, notice of the upcoming dismissal of the employee, having carefully studied the fixed-term employment contract signed by both parties, came to a certain pointconclusion.

According to Art. 79 Labor Code of the Russian Federation:

  • a fixed-term employment contract is terminated upon expiration of its validity period;
  • an employment contract concluded for the duration of certain work is terminated upon completion of this work;
  • an employment contract concluded for the duration of the duties of an absent employee is terminated when this employee returns to work;
  • an employment contract concluded to perform seasonal work during a certain period (season) is terminated at the end of this period (season).

In this particular case, none of the points of the above article apply to the fixed-term employment contract, which was concluded with a former employee of the company F LLC and submitted to the court.

When concluding a fixed-term employment contract, it must indicate the period of its validity and the circumstances (reasons) that served as the basis for its conclusion for a certain period (paragraph 4, part 2, article 57 of the Labor Code of the Russian Federation).

If the employment contract does not stipulate its validity period, then the contract is considered concluded for an indefinite period (Part 3 of Article 58 of the Labor Code of the Russian Federation).

Since labor legislation does not provide for the conclusion of an employment contract for a period “until the appointment of the general director in the prescribed manner,” this condition cannot be considered as a condition of a fixed-term employment contract; therefore, the employment contract is considered to be concluded for an indefinite period. Legal grounds for dismissal of this employee under clause 2, part 1, art. 77 Labor Code of the Russian Federation there was no.

Court statement

Judicial paneldecided: claimcitizen Artemov M.A.satisfy in full: reinstate him at work in the company LLC "F" in his previous position as the general director of the branch, pay wages for the period of forced absence, and also collect compensation from the company LLC "F" in his favor for moral damage caused.

LET'S SUM IT UP

According to the provisions of the Labor Code of the Russian Federation, two groups of circumstances are defined in the presence of which the employer has the opportunity to conclude fixed-term employment contracts:

  1. The nature of the upcoming work or the conditions for its implementation do not allow the establishment of labor relations for an indefinite period (Part 1 of Article 59 of the Labor Code of the Russian Federation).
  2. An agreement between the parties to an employment contract, on the basis of which a fixed-term employment contract can be concluded without taking into account the nature of the work to be done and the conditions for its implementation (Part 2 of Article 59 of the Labor Code of the Russian Federation).

In accordance with Part 2 of Art. 57 of the Labor Code of the Russian Federation, the duration of the contract and the circumstances (reason) that served as the basis for concluding a fixed-term employment contract in accordance with the provisions of the Labor Code of the Russian Federation or other federal law, must be indicated in the employment contract as a prerequisite.

According to Part 1 of Art. 79 of the Labor Code of the Russian Federation, the following condition is mandatory: an employer who decides to terminate a fixed-term employment contract with an employee due to its expiration is obliged to notify the employee about this in writing at least three calendar days before dismissal. However, this circumstance does not apply to cases of termination of a fixed-term employment contract concluded during the performance of the duties of an absent employee.

It should be noted that the employee not entitled insist on the continuation of the employment relationship if the employer has decided to terminate the employment contract due to its expiration. However, in cases where the term of the employment contract has expired, but neither party has demanded its termination, and the employee continues to work after the expiration of the established period, the condition on the fixed-term nature of the employment contract loses force and the employment contract is considered concluded for an indefinite period. In this case, the employer loses the right terminate a fixed-term employment contract with an employee based on its expiration.

A. A. Panova, lawyer, head of personnel department

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, and unlimited. Particular importance is attached to specifying 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 should be concluded for an indefinite period.

When can you conclude a fixed-term employment contract?

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 an employment contract is specified 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 enter into 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 is a constituent entity and has no more than 35 employees (and in the field of consumer services or retail trade - no more than 20 people)

To perform temporary (up to two months) and seasonal work

When hiring pensioners or persons who, due to health reasons, are entitled to only temporary work

With employees who are sent to work abroad

With employees of organizations located in the Far North and equivalent areas

To perform work not related to the employer’s normal activities, such as commissioning and installation work, as well as work related to the temporary expansion of production or the volume of services

With managers, their deputies, chief accountants of organizations

To work in organizations created for a certain period or to perform certain work

Those accepted through a competition to fill a position, in the manner prescribed by law

To perform work related to internship, 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 the grounds given in Article 59 of the Labor Code of the Russian Federation are not available. Even if the employee knows in advance how long he will work in this place (for example, he will move to another city), the employer must still enter into 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. When specifying the term in the employment contract, be sure to indicate the reason why it is urgent. The remaining mandatory conditions of a fixed-term contract are no different from an open-ended contract.

The entry is made in the usual manner, but the period for which the employee is hired is not indicated. However, upon dismissal, an entry stating that the employment contract has been terminated due to its expiration must be made.

For what period 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 the relationship with the employee in the form of a civil contract.

You can specify in the employment contract the expiration date by a specific date or by indicating a specific event. For example, if it is unknown when a permanent employee will return to work, the period in the contract can be specified as “For the period of temporary disability of a permanent employee who retains his job” or “Until the main employee returns to his work duties.”

It is not allowed to enter into 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 as an open-ended one, and the employer can be brought to administrative liability under Art. 5.27 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 for the same job function was concluded with the temporary employee. For example, a salesperson was hired during the maternity leave of a permanent employee, and when he returned to work, a fixed-term contract was again concluded with the temporary employee, by his consent, 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 expiration

The fact that the parties entered into an employment contract with a specified period does not mean that it cannot be terminated earlier. For termination of a fixed-term contract, the same grounds for termination exist as for an open-ended one:

  • agreement of the parties - Article 78 of the Labor Code of the Russian Federation;
  • employee initiative - Art. 80 Labor Code of the Russian Federation;
  • employer's initiative Art. 81 Labor Code of the Russian Federation.

In addition, a fixed-term contract can 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 the specific period for which the contract is concluded and for what work:

  • for temporary work, as well as in the case of any other engagement of an employee for a period of up to two months, a probationary period is not established at all;
  • for seasonal work, and if the contract period is from 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 fire 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 demands its termination, then the contract automatically becomes indefinite.

At the same time, Rostrud believes that in order to record the fact of changing the term of an employment contract and transfer it from fixed-term to indefinite, it is necessary to draw up an additional agreement to change 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 formalized or not), by virtue of Article 58 of the Labor Code of the Russian Federation, the employment contract becomes unlimited.

If the employer still intends to terminate the employment contract concluded for a certain period, then this he is obliged to notify the temporary worker in writing. This must be reported at least three days in advance. 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 has been informed of the termination of the employment contract. To do this, you need to prepare two copies of the notice, one of which with the employee’s signature is kept by the employer. If the employee refuses to sign, a corresponding act is drawn up, for which it is necessary to attract at least two witnesses.

Notification is not required only if 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).

A situation may arise that the employee, just before the expiration of the contract, fell ill and is on sick leave. In any case, the employer, if he intends to terminate a 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 he must be notified of the termination of the employment contract by registered mail with a list of attachments and delivery notification. This will confirm that the employer notified the employee of its decision in a timely manner.

The Labor Code especially 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:

  • a temporary worker was hired during the absence of a permanent employee;
  • the employer cannot offer the pregnant woman another job or she herself has refused the offered vacancy (at the same time, she cannot be offered 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. The employer is obliged to extend the employment contract until the end of pregnancy in any case, even if the pregnant woman was hired to perform a certain amount of work, and all of this scope has already been completed.

Conditions for performing the upcoming work

As a basis for concluding a fixed-term employment contract, according to Art. 58 of the Labor Code of the Russian Federation, the conditions for performing the upcoming work may also be taken into account:

a) harmful, dangerous, difficult environmental and climatic conditions (for example, a fixed-term employment contract of the established form in accordance with the law “On State Guarantees and Compensations for Persons Working and Living in the Far North and Equivalent Areas”);

b) conditions for the performance of the duties of a temporarily absent employee, whose place of work is retained in accordance with Art. 256 of the Labor Code of the Russian Federation (these are the working conditions of an employee hired for the period of a woman’s maternity leave, as well as her leave to care for a child under three years of age) The peculiarity of working conditions is caused by the presence of benefits and guarantees provided by labor legislation to a pregnant woman, as well as a woman who has a child under three years of age);

Unfortunately, in practice there are cases when other criteria for assessing the circumstances (reasons) for concluding a fixed-term employment contract are used. These cases violate the principles of regulation of labor relations formulated in Art. 2 of the Labor Code of the Russian Federation, the legal rights of employees entail disputes in court. Thus, a fixed-term employment contract is sometimes concluded with persons entering work in organizations created for a “previously defined period of time,” as well as with “persons to perform a predetermined job.” In Russian, the word “deliberately” is used to denote a negative object or event, for example, “deliberate scoundrel” or “deliberate lie,” i.e. information that is used with selfish intent, since it is known in advance that it does not correspond to reality. It is no coincidence that the word “knowingly” is used in investigative and judicial practice to legally qualify the unlawful behavior of a person falling under one or another crime. Considering the meaning of the word obviously, it is not difficult to imagine what “organizations created for a deliberately defined period of time” are “one-day companies.”

Features of the application of Article 59 of the Labor Code

Additional attention in the practice of applying labor legislation requires Article 59 of the Labor Code of the Russian Federation, which from the first words contains an alternative: “A fixed-term employment contract may be concluded...”. In other words, it can be concluded, but not always and not necessarily.

The Plenum of the Supreme Court of the Russian Federation, in resolution dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” stated the following: “... since Article 59 of the Labor Code provides for the right, and not the obligation, of the employer to enter into a fixed-term employment contract in the cases provided for by this norm , then the employer can exercise this right subject to the general rules for concluding a fixed-term employment contract established by Article 58 of the Labor Code."

The general rules are associated with the impossibility of forming labor relations for an indefinite period, taking into account the nature of the work to be performed or the conditions for its implementation.

In this regard, attention should be paid to the conclusion of employment contracts with persons working part-time. As a general rule, an employment contract is concluded with part-time workers under paragraph one of Art. 58 of the Labor Code of the Russian Federation - for an indefinite period. The fact of part-time work in itself is not a basis for concluding a fixed-term employment contract. The results of a competition in which scientific or teaching staff, as well as teaching staff, participated cannot be the basis for concluding a fixed-term employment contract. Moreover, the wording “before holding a competition to fill the position” has nothing to do with the basis for concluding a fixed-term employment contract. An employment contract drawn up with this wording is considered to be concluded for an indefinite period.

According to Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract can be concluded with old-age pensioners, as well as with persons who, for health reasons, in accordance with a medical report, are allowed to work exclusively of a temporary nature. The text of the law does not explain what the wording “work of an exclusively temporary nature” means, although it is decisive for the type of employment contract that can be concluded with this category of workers. In order to decide what type of employment contract to conclude with age pensioners, and therefore to determine the features of the labor relationship that will be formed with these employees, you should use an already known concept that has a place in the law. We are talking about work for up to two months from Chapter 45 of the Labor Code of the Russian Federation. Here the work is “exclusively temporary” and is an indicator of irregular work that cannot be performed evenly from day to day over a long period of time (quarter, year). Thus, with age pensioners, as well as with persons whose official duties are determined by their state of health according to a medical report, labor relations are built under an employment contract for a period of up to two months, according to Art. 289 Labor Code (features of labor relations for this type of contract were discussed above). We can only clarify that in the case when a pensioner works at an enterprise for a year, and this entire period of work is formalized by concluding a second and subsequent contracts for a period of up to two months, an illegal substitution of an employment contract for an indefinite period occurs. The fact of numerous conclusions of employment contracts excludes the characteristic signs of irregular work and insignificant amount of work, which are the basis for concluding a fixed-term employment contract for a period of up to two months. According to Art. 58 of the Labor Code of the Russian Federation, a fixed-term employment contract concluded without sufficient grounds is considered concluded for an indefinite period.

A fixed-term employment contract can be concluded with a student studying at a university, but again, subject to the general rules for concluding this type of contract. In accordance with Art. 57 of the Labor Code of the Russian Federation, a fixed-term employment contract must indicate two dates: the exact start date of work and the exact end date of work. It is unacceptable to replace the exact date of completion of work with the expression “before graduation from university” or “during internship”. With this formulation, the employment contract is initially considered to be concluded for an indefinite period. As for a fixed-term employment contract, concluded in compliance with the general procedure established by Article 58 of the Labor Code, its validity period cannot be shortened or terminated by the fact that the employee-student graduates from the university in which he studied.

Recently, cases of concluding an employment contract with the wording “for a probationary period” have become more frequent. In this case, during the probationary period, wages are set at a reduced rate. The text of the document indicates that a fixed-term employment contract has been concluded, which will be terminated upon expiration if the test result is unsatisfactory. Such tricks with illegal substitution of legal concepts are a gross violation of the principles of regulation of labor relations, outright discrimination against the employee, and the use of forced labor against him. In this case, there can be no question of a fixed-term employment contract. There is no doubt that the employment contract here is considered concluded for an indefinite period, according to paragraph one of Article 58 of the Labor Code.

Thus, a fixed-term employment contract is concluded in cases where the employment relationship cannot be established for an indefinite period. in case of concluding a fixed-term employment contract, it shall indicate the period of its validity and the circumstance (reason) that served as the basis for concluding a fixed-term employment contract. If they are not specified, then the employment contract is considered to be concluded for an indefinite period.

The circumstance (reason) that serves as the basis for concluding a fixed-term employment contract is the nature of the work to be performed. The nature of the work can be determined by the following qualities and indicators: irregularity of work, seasonality of work, insignificant amount of work, prevention and elimination of the consequences of natural disasters, accidents, catastrophes, epidemics and other emergency circumstances.

As a basis for concluding a fixed-term employment contract, the conditions for performing the upcoming work may also be taken into account:

a) harmful, dangerous, difficult environmental and climatic conditions;

b) conditions for the performance of the duties of a temporarily absent employee, whose place of work is retained in accordance with Art. 256 of the Labor Code of the Russian Federation (these are the working conditions of an employee hired for the period of a woman’s maternity leave, as well as her leave to care for a child under three years of age);

c) working conditions in small business organizations, as well as for employers - individuals.

Very often they send me contracts for analysis in which there is confusion between works and services.

Let's say, at the beginning of the contract it is stated that the Contractor provides services, and then in the subject or in the list of services provided, I see that it should, in fact, be about the performance of work.

Sometimes, in the text of the contract, these concepts are used inconsistently - works and services are confused...

However, the difference between works and services is not a difference between words, it is a difference between two legal structures that have different legal consequences.

How to distinguish works from services?

The criterion is actually quite simple.

Work always has a material result. The services have no result at all.

“What is meant by result in this case?”

The result is understood as some kind of object - material or materialized, which must be created as a result of the actions of the Performer.

Let's say software is not material, but materialized because you can interact with it.

Execution of work

If, as a result of the Contractor’s actions, some object is created that did not exist before, this is work.

Ultimately, such an object can be assessed and put on the balance sheet. And this object is the object of civil rights.

It is for the sake of its creation that people enter into an agreement. Therefore, when describing the work, lawyers describe precisely the result of the work, and not the actions of the Contractor.

For the same reason, all Customer claims related to violation of the terms of the contract relate specifically to the quality of the work result or the timing of its receipt.

How this item was created is completely irrelevant.

Examples of work performed:

  • build a house,
  • write a book, a program, create photographs, make a thing
  • and so on.

Provision of services

Services have no results in principle.

What is important here is the actions of the Performer themselves. And these are the actions that are described in the contracts.

Examples of service provision:

  • musicians play at a corporate party (where is the result here? :)),
  • any kind of consultation
  • and so on.

And it is the actions of the Contractor that constitute the subject of the service agreement.

It is always important for us to know how services will be provided to us. Whatever area of ​​services we take, it is the actions of the Contractor that are important here.

Determining the subject of the contract (service or work) is generally not difficult, the main thing is to take your time and think...