[F. Name / Full name of the employer] represented by [position name, full name], acting on the basis of the [Charter, regulations, power of attorney], hereinafter referred to as the "Employer", on the one hand and a citizen (s) of the Russian Federation

[F. Name of the employee], hereinafter referred to as the "Employee", on the other hand, together referred to as the "Parties", have entered into this agreement as follows:

1. The Subject of the Agreement

1.1. Under this employment contract, the Employee undertakes to perform duties in the profession / position [indicate work according to the position in accordance with the staffing table, profession, specialty, indicating qualifications; the specific type of work entrusted to the employee] in [place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of an organization located in another locality, the place of work with an indication of the separate structural unit and its location], and The Employer undertakes to provide the Employee with the necessary working conditions provided for by labor legislation, as well as timely and full payment of wages.

1.2. Work under this contract is the main place of work for the Employee.

1.3. The working conditions at the workplace according to the degree of hazard and (or) hazard are [optimal (class 1) / acceptable (class 2) / harmful (indicate the hazard class and subclass) / hazardous (class 4)].

1.4. The term of probation for employment is [specify the term] ./ An employee is hired without probation.

1.5. An employment contract is concluded for the performance of a deliberately defined job, the completion of which cannot be determined by a specific date.

1.6. The employee is obliged to start work on [date, month, year].

1.7. The employment contract terminates upon completion of the work entrusted to the Employee.

1.8. The employee is obliged to complete the work entrusted to him no later than [date, month, year].

2. The rights and obligations of the employee

2.1. The employee has the right to:

Conclusion, amendment and termination of an employment contract in the manner and on the terms established by the Labor Code of the Russian Federation, other federal laws;

Providing him with work as stipulated by the employment contract;

A workplace that meets the state regulatory requirements for labor protection and the conditions provided for by the collective agreement [if any];

Timely and in full payment of wages in accordance with their qualifications, labor complexity, quantity and quality of work performed;

Rest, provided by the establishment of normal working hours, reduced working hours for certain professions and categories of workers, the provision of weekly days off, non-working holidays, paid annual leave;

Complete reliable information about working conditions and labor protection requirements at the workplace;

Training and additional professional education in the manner prescribed by the Labor Code of the Russian Federation, other federal laws;

Association, including the right to form and join trade unions to protect their labor rights, freedoms and legitimate interests;

Participation in the management of the organization in the forms provided for by the Labor Code of the Russian Federation, other federal laws, if any - and the collective agreement;

Conducting collective bargaining and concluding collective agreements and contracts through their representatives, as well as information on the implementation of the collective agreement, agreements;

Protection of their labor rights, freedoms and legal interests by all means not prohibited by law;

Resolution of individual and collective labor disputes, including the right to strike, in accordance with the procedure established by the Labor Code of the Russian Federation, other federal laws;

Compensation for harm caused to him in connection with the performance of labor duties, and compensation for moral harm in the manner prescribed by the Labor Code of the Russian Federation, other federal laws;

Compulsory social insurance in cases stipulated by federal laws;

Labor legislation

2.2. The employee is obliged:

Conscientiously fulfill his labor duties assigned to him by the employment contract;

Comply with the internal labor regulations;

Observe labor discipline;

Comply with established labor standards;

Comply with labor protection and labor safety requirements;

Take care of the property of the Employer (including the property of third parties held by the Employer, if the Employer is responsible for the safety of this property) and other employees;

Immediately inform the Employer or direct supervisor about a situation that poses a threat to the life and health of people, the safety of the Employer's property (including the property of third parties held by the Employer, if the Employer is responsible for the safety of this property);

Labor legislation and other regulatory legal acts containing labor law norms, collective agreements, local regulations].

3. Rights and obligations of the employer

3.1. The employer has the right:

To conclude, modify and terminate an employment contract with an Employee in the manner and on conditions established by the Labor Code of the Russian Federation, other federal laws;

Conduct collective bargaining and bargaining;

Encourage the Employee for conscientious and effective work;

Require the Employee to fulfill his job duties and respect the property of the Employer (including the property of third parties held by the Employer, if the Employer is responsible for the safety of this property) and other employees, to comply with the internal labor regulations;

Bring the Employee to disciplinary and material liability in the manner prescribed by the Labor Code of the Russian Federation, other federal laws;

Adopt local regulations;

Create associations of employers in order to represent and protect their interests and join them;

Create a works council;

- [other rights provided for by the current Labor legislation and other regulatory legal acts containing labor law norms, collective agreements, local regulations].

3.2. The employer is obliged:

Comply with labor legislation and other regulatory legal acts containing labor law norms, local regulations, terms of an employment contract, agreements, collective agreement [if any];

Provide the Employee with work stipulated by the employment contract;

Ensure safety and working conditions that meet the state regulatory requirements for labor protection;

Provide the Employee with equipment, tools, technical documentation and other means necessary for the performance of his job duties;

Provide the Employee with equal pay for work of equal value;

To pay in full the salary due to the Employee within the terms established in accordance with the Labor Code of the Russian Federation, the collective agreement [if any], the internal labor regulations, the labor contract;

Conduct collective bargaining, as well as conclude a collective agreement in the manner prescribed by the Labor Code of the Russian Federation;

Provide employee representatives with complete and reliable information necessary for concluding a collective agreement, agreement and monitoring their implementation;

Introduce the Employee against signature with the adopted local regulations directly related to his labor activity;

Timely fulfill the instructions of the federal executive body authorized to exercise federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms, other federal executive bodies exercising state control (supervision) in the established area of ​​activity, pay fines imposed for violations of labor legislation and other regulatory legal acts containing labor law norms;

Consider the submissions of the relevant trade union bodies, other representatives elected by employees on the violations of labor legislation and other acts containing labor law norms, take measures to eliminate the violations identified and report on the measures taken to these bodies and representatives;

Create conditions that ensure the participation of the Employee in the management of the organization in the forms provided for by the Labor Code of the Russian Federation, other federal laws and the collective agreement [if any];

Provide the everyday needs of the Employee related to the performance of his labor duties;

Carry out compulsory social insurance of the Employee in the manner prescribed by federal laws;

Compensate for harm caused to the Employee in connection with the performance of his labor duties, as well as compensate for moral damage in the manner and on the terms established by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation;

- [other obligations stipulated by the current Labor legislation and other regulatory legal acts containing labor law norms, collective agreements, local regulations].

4. Working hours and rest time

4.1. The employee is set [five-day work week with two days off / six-day work week with one day off / work week with flexible days off / part-time work week].

4.2. The duration of daily work / part-time work is [value] hours.

4.3. The start and end time of work, the time for granting a break and its duration [in the case of granting days off on a sliding schedule - alternation of working and non-working days] are established by the internal labor regulations.

4.4. The employee is provided with an annual basic paid leave with a duration of [value] calendar days.

4.5. The employee is provided with an additional annual paid leave of [value] calendar days [indicate the basis for granting additional leave].

4.6. For family reasons and other valid reasons, the Employee, upon his written application, may be granted unpaid leave, the duration of which is determined by agreement between the Employee and the Employer.

5. Terms of remuneration

5.1. An employee is paid a salary in the amount of [amount in figures and words] rubles.

5.2. Additional payments and allowances of a compensatory nature, including for work in conditions deviating from normal, the system of additional payments and allowances of a stimulating nature and the bonus system, are established by the collective agreement, agreements, local regulations and other regulatory legal acts containing labor law norms.

5.3. Wages are paid to the Employee [specify specific dates of the calendar month] ./ The wages are paid to the Employee at least every half month on the day established by the internal labor regulations.

5.4. When performing work outside the normal working hours, at night, on weekends and non-working holidays, when combining professions (positions), while performing the duties of a temporarily absent employee, the Employee is paid appropriate additional payments in the manner and amount established by the collective agreement and local regulations.

5.5. For the period of validity of this employment contract, the Employee is subject to all guarantees and compensations provided for by the current labor legislation of the Russian Federation.

6. Responsibilities of the parties

6.1. In case of non-fulfillment or improper fulfillment by the Employee of his duties specified in this employment contract and job description, violation of the labor legislation of the Russian Federation, as well as causing material damage to the Employer, he bears disciplinary, material and other liability in accordance with the current legislation of the Russian Federation.

6.2. The Employer bears material and other liability to the Employee in accordance with the current legislation of the Russian Federation.

7. Final provisions

7.1. Disputes between the Parties arising from the performance of this employment contract are considered in the manner prescribed by the Labor Code of the Russian Federation and other federal laws.

7.2. In all other respects that are not provided for by this employment contract, the Parties are guided by the legislation of the Russian Federation governing labor relations.

7.3. The employment contract is concluded in writing, drawn up in two copies, each of which has the same legal force.

7.4. All changes and additions to this employment contract are formalized by a bilateral written agreement.

7.5. This employment contract may be terminated on the grounds provided for by the current labor legislation.

8. Details and signatures of the parties

I received a copy of the employment contract [date, month, year] [signature, surname, initials of the employee]

Temporary workers occupy a special position in the workforce. Their peculiarity follows from the temporary nature of the labor relationship. Those with whom it is possible to conclude a fixed-term employment contract are detailed in Art. 59 of the Labor Code of the Russian Federation. More than one article is devoted to the topic of the legal status and features of the conclusion and termination of an employment contract with "temporary workers". From the point of view of personnel officers and managers of enterprises with temporary workers in the labor collective, it will be interesting to analyze the practice of litigation with temporary workers. What is the source of disputes? What are the claims in most cases typical of disputes with this category of employees? What are the features of the evidence base of the employer of the “temporary worker” and are there any special differences compared to disputes with employees who work on a permanent basis? What solutions are more inherent in the most "popular" disputes with "temporary workers"? Let us consider these and other issues using examples from judicial practice and draw appropriate conclusions based on judicial positions.

Based on the composition of the court decisions, the main composition of the disputing temporary workers is:

- "conscripts": employees with whom an employment contract is concluded for a certain period to perform a certain amount of work or based on the results of a competition;
- "substitute": employees hired for the period of absence of the main employee (for the period of his illness or vacation);
- part-time workers: employees hired part-time on a permanent basis, but who can be dismissed on an additional basis provided for in Art. 288 of the Labor Code of the Russian Federation - in connection with the hiring of an employee for whom this work is the main one. It is because of this feature that in the framework of this article we consider part-time workers as "temporary workers";
- seasonal workers: workers employed to perform seasonal work, when, due to natural conditions, work can only be performed during a certain period (season).

With other categories of "temporary workers", the term of labor relations with which is established on the grounds listed in Art. 59 of the Labor Code of the Russian Federation (for example, with persons sent to work abroad; with persons applying to work in organizations created for a predetermined period or to perform a predetermined job, etc.), litigation is very rare or does not occur at all. Practice in relation to them almost did not develop, typical disputes and claims did not form.

1. "Conscripts"

In accordance with paragraph 2 of Part 1 of Art. 77 of the Labor Code of the Russian Federation, the basis for terminating an employment contract is the expiration of the term of the employment contract (Article 79 of the Labor Code of the Russian Federation). The employee must be notified in writing of the termination of an employment contract due to the expiration of its validity period at least three calendar days before dismissal, except for cases when the term of the fixed-term employment contract concluded at the time of the performance of the duties of the absent employee expires. An employment contract concluded for the duration of a certain job is terminated upon completion of that job.

Conclusion 1: The dismissal of an employee due to the expiration of the term of the employment contract is also lawful on the last day of his being on vacation (after its termination), while the employment contract is not considered to be extended indefinitely

Example: the head of the department did not agree with the dismissal under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation in connection with the expiration of the employment contract and challenged it in court. The court, having studied the documents submitted by the parties, came to the conclusion about the legality of concluding a fixed-term employment contract (by competition, with a scientific and pedagogical worker, which is allowed by Articles 59, 332 of the Labor Code of the Russian Federation and Article 20 of the Federal Law "On higher and postgraduate professional Education "dated 22.08.1996, No. 125-FZ). The court also correctly concluded that the employer complied with the requirements of Part 1 of Art. 79 of the Labor Code of the Russian Federation, according to which the employee must be warned in writing about the termination of an employment contract due to the expiration of its validity period at least three calendar days before dismissal. The plaintiff's assertion that he was dismissed after the expiration of the employment contract, when, in his opinion, the employment relationship actually continued for an indefinite period, the court declared insolvent on the following grounds. So, Art. 127 of the Labor Code of the Russian Federation stipulates that upon dismissal due to the expiration of the term of the employment contract, leave may be granted with subsequent dismissal even when the vacation time fully or partially exceeds the term of this contract. In this case, the last day of the vacation is also considered the day of dismissal. In such a case, there is an extension of the term of the employment contract for the period of the granted leave on the basis of the law. It follows from the materials of the case that the term of the employment contract expired on June 19. At the request of the plaintiff, he was granted another vacation from June 18 to August 15. Therefore, in this case, August 15 is correctly indicated as the day of dismissal. Since it was not established any violations of the plaintiff's labor rights committed by the employer upon his dismissal, the court correctly refused to satisfy the claim for reinstatement at work.

An important additional conclusion of the court: even in the absence of a notification-warning about the upcoming expiration of the term of the employment contract, there is no basis for recognizing the dismissal as illegal, since the plaintiff, concluding a fixed-term employment contract, knew about its validity period and the consequences of the expiration of the employment contract, and the employer, exercising his right, terminates the employment relationship with an employee due to the expiration of the employment contract.

Conclusion 2: An employment contract concluded for the duration of a certain job is terminated upon completion this work, and not just the direct functions of the individual worker.

Example: the employee filed a claim with the employer for reinstatement at work, indicating that the defendant unreasonably dismissed him under paragraph 2 of Part 1 of Art. 77 of the Labor Code of the Russian Federation due to the expiration of the employment contract. From the content of the employment contract and the admission order, the court established that the plaintiff had been hired to carry out deliberately certain work in the project management group for the conversion of the customer's facility into an ice-resistant stationary platform. The employer dismissed the plaintiff before the launch of the ice-resistant platform, believing that the plaintiff had already fulfilled his functions according to his position.

The court disagreed with this opinion, pointing out that from the content of the employment contract it follows that it was concluded for the development of working and design documentation, the supply of materials and equipment, the construction and commissioning of an ice-resistant stationary platform No. 1 at the field. In addition, the employment contract established a specific deadline for the termination of the employment contract, which had not yet come at the time of the actual dismissal. Considering that the dismissal was made in violation of the requirements of labor legislation, the court reasonably satisfied the claims stated by the plaintiff, reinstating him at work.

2. Substitutes for the absent

By virtue of paragraph 2 of Part 1 of Art. 77 of the Labor Code of the Russian Federation, the grounds for terminating an employment contract are the expiration of the term of the employment contract (Article 79 of the Labor Code of the Russian Federation), except for cases when the labor relationship actually continues and none of the parties demanded their termination. The exit of the main employee is a sufficient reason to terminate the employment contract under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

In most cases of disputes with substitute workers, the latter dispute the fact that this right of the employer arises, as well as his failure to comply with the guarantees established by the Labor Code of the Russian Federation upon dismissal.

The legal position on the issue under consideration was expressed by the Constitutional Court of the Russian Federation in its Ruling No. 614-О-О dated October 21, 2008, which indicated that the termination of an employment contract due to its expiration complies with the general legal principle of contract stability. An employee, giving consent to the conclusion of an employment contract in cases stipulated by law for a certain period, knows about its termination after a predetermined period. The possibility of terminating a fixed-term employment contract concluded for the duration of the duties of a temporarily absent employee, before the end of the expected period of absence of such an employee, in particular in case of early termination of parental leave on 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 the freedoms of a temporarily absent employee. This rule applies on all faces 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.

Conclusion 3: The employer has the right to dismiss the temporary worker replacing the main one, even if the latter is also subject to dismissal on one of the grounds provided for by the Labor Code of the Russian Federation.

Example: the employee did not agree with the dismissal under paragraph 2 of Part 1 of Art. 77 of the Labor Code of the Russian Federation and went to court with a claim for restoration. He considered that he was dismissed on the above grounds unlawfully, since the main employee, at the time of replacement of which he was hired, quit, and his employment contract was to take on the character of an indefinite one. During the consideration of the case, the court established that the plaintiff was hired for the period of the incapacity for work of the main employee; at the end of the certificate of incapacity for work, the employer warned the plaintiff about the termination of the fixed-term employment contract, and the plaintiff was dismissed under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation. A settlement was made with the plaintiff, a work book was issued. On the same day (on the day of leaving the hospital), the main employee was dismissed due to his refusal to transfer to another job under paragraph 8 of Part 1 of Art. 77 of the Labor Code of the Russian Federation. Since the dismissal of the main employee was later than the temporary dismissal, the dismissal of the plaintiff under paragraph 2 of Part 1 of Art. 77 of the Labor Code of the Russian Federation lawfully and reasonably. When making a decision, the plaintiff's arguments that the employer had to conclude an open-ended contract with him, since the main employee quit, the court did not accept, indicating that the employer had the right to hire and he had the right to refuse the plaintiff to conclude a new employment contract for an open-ended basis. The court recognized the dismissal of the plaintiff as legal, and refused to satisfy the claims of the dismissed temporary worker (decision of the Achitskiy District Court of the Sverdlovsk Region of 23.04.2012 in case No. 2-94).

Conclusion 4: The main employee who has gone on maternity leave retains the right to choose the subsequent behavior: go to work or take parental leave. A substitute employee is subject to dismissal upon leaving the main employee, despite the previously reached agreement on the duration of the main employee's leave and, accordingly, the duration of the employment contract.

Example: an employee hired in the civil service in the place of a woman who had gone on maternity leave was hastily dismissed, because, unlike the generally accepted behavior, after the decree, the employee decided to work and only after a while take parental leave. The substitute employee decided that the employer was obliged by agreement of the parties to conclude another service contract or change the essential terms of the contract. However, the court did not agree with the opinion of the dismissed "temporary worker", pointing out that the expiration of a fixed-term service contract is an objective event, the occurrence of which does not depend on the will of the employer's representative, and therefore the dismissal of the plaintiff is legal and justified. The notification procedure was followed by the employer, the fact that the main employee had entered work was confirmed by a time sheet. Taking into account the above circumstances, the court concluded that the plaintiff was mistaken about the occurrence of allegedly other essential conditions and circumstances, provided for by Art. 29 of Law 79-FZ of July 27, 2004, "On the State Civil Service of the Russian Federation", related to the fact that after leaving the main employee soon went on another leave (to care for a child). The employer had no grounds for changing the terms of the employment contract with the plaintiff, in contrast to the grounds for terminating it. The court rejected the claims of the "temporary worker" as unfounded (the decision of the Oktyabrskiy District Court of the city of Belgorod dated 07.08.2012 in case No. 2- 3280-2012).

Conclusion 5: The multiple conclusion of employment contracts (or transfers within the framework of one employment contract) does not give rise to an indefinite term of an employment contract in cases due to the temporary nature of labor relations for the period of replacement of a temporarily absent main employee.

Example: a bank teller, hired as a temporarily absent employee for the period of maternity and subsequent parental leave, was transferred eight times to other temporarily vacant similar positions in different branches of the same bank and was dismissed due to the expiration of the employment contract under clause . 2 part 1 of article 77 of the Labor Code of the Russian Federation in connection with the release of the main employee to work. Disagreeing with the dismissal, she filed a lawsuit against the employer, in which she asked to recognize the employment contract as perpetual, and the dismissal - illegal. The court, however, came to the conclusion about the legality of the plaintiff's dismissal, indicating that the multiple conclusion of fixed-term employment contracts with the plaintiff in this case is not a basis for recognizing the employment contract as open-ended, since fixed-term employment contracts with the plaintiff were concluded during the absence of the main employees, including in different structural divisions. The fact that the main employee at the last place of work again took parental leave does not have legal significance for the resolution of this dispute, since the plaintiff, under the terms of the supplementary agreement to the employment contract, was permanently transferred to an additional office before the main employee left for work. In addition, at the time of the decision, the main employee resumed her duties, and therefore the plaintiff could not be reinstated in her previous position. Thus, in this situation, only the fact that the main employee has entered work is of legal significance, which is already a sufficient reason for terminating labor relations with an employee who was previously hired under a contract concluded for the duration of the performance of the duties of the absent employee (decision of the Nyagan City Court Khanty-Mansiysk Autonomous Okrug - Ugra dated October 29, 2012).

Conclusion 6: The transfer of an employee to a temporary position to replace an absent employee from a permanent job is an abuse of the right on the part of the employer and does not give the employer the right to dismiss her under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation upon leaving the main employee.

Example: dismissed under clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation, the employee filed a lawsuit against the employer for the recognition of the illegal order to terminate the employment contract, reinstatement at work. The lawsuit was motivated by the fact that she was accepted to the defendant for a permanent job, was once transferred to another position, and subsequently dismissed in connection with the release of the main employee. She considers her dismissal to be illegal, since she worked on a permanent basis. The court carefully studied the orders for the admission and transfer of the employee, her employment contract with an additional agreement, entries in the work book and came to the conclusion that the established contradictions in these documents do not indicate that the plaintiff's employment contract is urgent - until the leave from vacation on caring for the child of another employee. Taking into account the above, as well as evaluating the copy of the supplementary agreement submitted by the employer with unspecified corrections, the order, from which it is seen that the employment contract was concluded with the plaintiff for the period of parental leave M ***, the court concluded that there were labor violations on the part of the employer. legislation and abuse of law. So, it followed from the employment contract that it was concluded for an indefinite period. Thus, the transfer of the plaintiff to the position of M *** could take place only by way of replacement. By virtue of the above, the plaintiff could not be dismissed under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation (due to the expiration of the employment contract). The court declared the dismissal unlawful and reinstated the plaintiff in office (decision of the Zheleznodorozhny District Court of the city of Ulyanovsk dated 25.06.2010; ruling of the Ulyanovsk Regional Court dated 03.08.2010 in case No. 33-2766 / 2010).

Conclusion 7: Artificial creation of grounds for termination of labor relations with an employee replacing the main employee, the court equates to the absence of grounds and dismissal under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation recognizes illegal.

Example: the employee won the dispute over reinstatement, despite the employer providing seemingly ironclad arguments. The essence of the case turned out to be as follows: the employee was hired under a fixed-term employment contract during the absence of the main employee, who was on maternity leave and subsequent parental leave until July 2012. However, the temporary worker was dismissed by the employer under paragraph 2 of Part 1 of Art. 77 of the Labor Code of the Russian Federation back in February of the same year with reference to the exit of the maiden. Meanwhile, the main employee was simultaneously (from the same date) written: an application for early release, an application for granting leave without pay. After the dismissal of the temporary employee, the main employee wrote an application for parental leave (again). The main employee did not go to work. Satisfying the plaintiff's demands for reinstatement at work, the court came to a reasonable conclusion that the defendant had no legal grounds for terminating the employment relationship with her. Despite the confusion of the written statements of the main employee, the court made the correct conclusion that in fact she did not go to work, continues to be on parental leave, which was reissued by the defendant, and the main employee had no intention of going to work and interrupting the vacation. Thus, the court did not recognize the dismissal of her substitute employee as legal and restored the latter at work (decision of the Dimitrovgrad City Court of the Ulyanovsk Region of 04/28/2010; ruling of the Ulyanovsk Regional Court of 06/08/2010 in case No. 33 - *** / 2010).

Disputes with substitute workers and guarantees of the Labor Code of the Russian Federation

A fairly large segment in the number of labor disputes with substitute "temporary workers" is made up of disputes with women, to whom the Labor Code of the Russian Federation provides a number of additional guarantees related to the termination of an employment contract.

Labor legislation provides for the dismissal of an employee at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation), at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation), termination of the employment contract on independent grounds (Articles 79, 83 of the Labor Code of the Russian Federation). According to Part 2 of Art. 77 of the Labor Code of the Russian Federation, a fixed-term employment contract is subject to termination due to circumstances beyond the control of the parties, which is an objective event - the expiration of its validity period, the employer and the employee do not show any initiative here. Accordingly, the guarantees established by Art. 261 of the Labor Code of the Russian Federation, in this case, do not apply.

Temporary worker - a woman with children under the age of three

Article 256 of the Labor Code of the Russian Federation, which provides for the employee to retain his place of work for the period of parental leave, Art. 261 of the Labor Code of the Russian Federation, providing for the prevention of termination of an employment contract with women with children under the age of 3, Art. 81 of the Labor Code of the Russian Federation, which provides for the prevention of dismissal of an employee during the period of his temporary incapacity for work and during the period of being on vacation, apply only to employment contracts concluded for an indefinite period.

Conclusion 8: Temporary worker, having a child under the age of three, adopted at the time of replacement of the absent employee, with the release of the latter to work, is subject to dismissal under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation due to the urgency of the nature of labor relations

Example: an employee who was on parental leave was dismissed under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The court recognized the dismissal as legal and denied the claim for reinstating the employee who did not agree with the dismissal. During the consideration of the case, it was established that the dismissed was initially accepted under a fixed-term employment contract for the time the main employee was on maternity leave and subsequent parental leave. During work, the temporary employee herself went first on maternity leave, and then on parental leave. With the exit of the main employee, the employment contract with her was terminated on the above grounds. The court, when deciding to dismiss the plaintiff in the claim, indicated that to the fixed-term employment contracts concluded between the employer and the employee during the performance of the duties of the absent employee - a woman on parental leave, the norms of Art. Art. 256, 261 of the Labor Code of the Russian Federation are not applied, including in the case of a newly hired employee leaving for parental leave. The legality of the dismissal of the temporary worker and the correctness of the conclusions of the court of first instance was also confirmed by the higher court, which upheld the decision (the decision of the Kirovo-Chepetsky District Court of the Kirov Region of 09/04/2008; the determination of the Judicial Collegium for Civil Cases of the Kirov Regional Court of 09/10/2008).

Temporary worker - pregnant woman

In accordance with Part 3 of Art. 261 of the Labor Code of the Russian Federation, the dismissal of a woman is allowed due to the expiration of the employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of the absent employee and the impossibility, with the woman's written consent, to transfer her to another job available to the employer before the end of pregnancy (as a vacant position or a job corresponding to the qualifications of a woman, and a vacant lower position or lower-paid job) that a woman can perform based on her health condition. At the same time, the employer is obliged to offer her all the vacancies that meet the specified requirements that he has in the area. A vacant position is a position provided for by the organization's staffing table, which is vacant, that is, not replaced (not occupied) by any specific employee. The position of an employee temporarily absent from work, which includes an employee on maternity leave, is not vacant, since the specified employee retains a place of work. The conclusion of a fixed-term employment contract for the time of the absent employee, by virtue of Art. 59 of the Labor Code of the Russian Federation, according to the judicial position, is a right, not an obligation of the employer.

Conclusion 9: A pregnant temporary worker can be dismissed in connection with the exit of the main employee, while the subsequent (after dismissal) release of the same position no longer obliges the employer to offer it as vacant. On the day of dismissal, this position is not yet considered vacant and is not included in the number of vacancies offered to a pregnant worker in accordance with Part 3 of Art. 261 of the Labor Code of the Russian Federation.

Example: an employee hired under a fixed-term employment contract for the period of replacement of an absent employee was dismissed, despite the state of pregnancy, in connection with the departure of the main employee to work. Challenging her dismissal in court, the plaintiff indicated that the employer had not offered her a vacancy that was vacated due to the dismissal of the main employee on the same day of release. The court established the following: according to clause 2 of the employment contract with the plaintiff, the day of termination of the contract is the day preceding the day the absent employee left ("A"). 07/30/2012 "A" wrote a statement on the interruption of parental leave and a desire to start work, in connection with which the plaintiff was sent a notice of dismissal due to the expiration of the employment contract. By order of 02.08.2012, the plaintiff was dismissed from her position under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation - due to the expiration of the contract. At the time of dismissal, the plaintiff was in a state of pregnancy, which was known to the employer. The employer followed the dismissal procedure: the plaintiff was warned in advance about the termination of the contract, she was offered all the vacant positions available to the defendant, which she refused to occupy. Since the vacant position "A" at the time of the dismissal of the plaintiff could not be considered, the dismissal was recognized by the court in accordance with the law, the claim for recognizing the dismissal as illegal was reasonably denied to the employee (decision of the Zasviyazhsky District Court of Ulyanovsk dated 11.09.2012; the appeal ruling of the Ulyanovsk Regional Court from 12/04/2012 in case-33-3824 / 2012).

3. Side workers

One of the temporary workers can be indirectly considered a part-time worker, that is, an employee hired part-time. The temporary nature of labor relations is due to the presence in the Labor Code of the Russian Federation of an additional basis for terminating an employment contract with persons working part-time, provided for in Art. 288 of the Labor Code of the Russian Federation. So, an employment contract concluded for an indefinite period with a person working part-time may be terminated in the event of hiring an employee for whom this work will be the main one, about which the employer warns the specified person in writing at least two weeks before termination of the employment contract.

However, this category of workers is also characterized by disputes arising from dismissal under Art. 288 of the Labor Code of the Russian Federation, associated with a misunderstanding by the parties to labor relations of both the grounds for dismissal and the specifics of labor relations with part-time workers.

Conclusion 10: The condition of part-time employment does not change when the position held (rotation) changes, unless otherwise provided by the employment contract; while additional grounds for dismissal remain

Practice: the employee did not agree with his dismissal under Art. 288 of the Labor Code of the Russian Federation, considering it illegal for the chosen reason. The court found that when hiring the plaintiff, a fixed-term employment contract was concluded for a certain position part-time, subsequently the employee was transferred to another position, about which the parties entered into an additional agreement to the employment contract. The court did not agree with the employee's opinion that when he was transferred to another position, he ceased to be a part-time worker and, therefore, could no longer be fired under Art. 288 of the Labor Code of the Russian Federation as a part-time worker. The court indicated that the condition of the part-time job by the parties did not change, which was confirmed by the submitted labor contract with the addition, timesheets, orders. Taking into account the foregoing, the court concluded that it was lawful to dismiss a part-time employee under Art. 288 of the Labor Code of the Russian Federation, since another employee was hired for whom this work was the main one. The court dismissed the employee's claim (decision of the Koptevsky District Court of Moscow dated 07.06.2011 in case No. 2-1113 / 11).

4. Seasonals

Seasonal workers, as well as persons who have entered into a fixed-term employment contract for up to two months (hereinafter referred to as “short-term workers”), are also typical “temporary workers”. However, disputes with this category of employees arise on a different matter, not related to the termination of the employment contract. So, the stumbling block becomes:

- severance pay (employees who have entered into an employment contract for up to two months are not paid severance pay upon dismissal (Article 292 of the Labor Code of the Russian Federation), and severance pay is established for employees employed in seasonal work and dismissed in connection with the liquidation of the organization, reduction in the number or staff of the organization's employees. in a reduced amount - in the amount of two-week average earnings (Article 296 of the Labor Code of the Russian Federation);

- payment of compensation for unused leave upon dismissal or granting leave in kind (seasonal workers and workers who have entered into an employment contract for a period of up to two months are entitled to two working days of vacation for each month of work - Articles 295, 291 of the Labor Code of the Russian Federation);

- inclusion of periods of work in seniority (periods of seasonal work or temporary work for up to two months, along with other periods of work, are included in the length of service required for the appointment of a pension - Article 10 of the Federal Law of December 17, 2001 No. 173-FZ "On Labor Pensions in the Russian Federation").

Conclusion 11: the periods of seasonal work should be included in the length of service for calculating the pension. If these periods are controversial, confirmation of the fact of seasonal work is possible through the court.

Example: G. filed a claim with the Pension Fund (PF) to include the disputable periods in the length of service for calculating the pension. In support of the claims, the plaintiff indicated that the PF refused to include the disputed periods of seasonal work in the length of service due to mistakes made by the personnel department in the plaintiff's work record book. The court found that when filling out the periods of seasonal work, the following mistakes were made in the work book: one dismissal record did not contain the director's signature, but there was a seal. In others, there were discrepancies in the orders on the basis of which the plaintiff was accepted and fired. These errors contradict the requirements of the rules for filling out work books. With the help of witness testimony, the plaintiff was able to prove the fact of multiple seasonal work on the collective farm. The court ruled to include the disputable periods of work in the plaintiff's seniority for calculating the pension (decision of the Sovetskiy District Court of Tomsk on February 27, 2012).

conclusions

1. Disputes with temporary workers differ in the subject matter of the claim, the claim and the justification for the claim. Not all requirements are the same for different categories of “temporary workers”.
2. The courts clearly follow the position of the legality of the employer's termination of the employment contract with the "temporary worker" upon the expiration of the employment contract, regardless of the changed specific conditions. If the condition on the urgency of the employment contract has not changed - the application of paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation for its termination is lawful.
3. The guarantees established by Art. 261 of the Labor Code of the Russian Federation in relation to pregnant women and persons with family responsibilities related to the ban on termination of an employment contract, in the event of a temporary employment relationship, do not apply. At the same time, the obligation to offer vacancies to the dismissed person remains for all cases of dismissal of a pregnant woman.
4. Artificial creation of conditions for termination of an employment contract under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation is regarded by the courts as abuse by the employer of his right and the dismissal is recognized as illegal.
5. If the employer fails to comply with the requirements of Part 1 of Art. 79 of the Labor Code of the Russian Federation on the notification procedure preceding the dismissal, the court finds no grounds for recognizing the dismissal as illegal, since the plaintiff, concluding a fixed-term employment contract, knew about its validity period and the consequences of the expiration of the employment contract, and the employer, exercising his right, terminates labor relations with an employee due to the expiration of the employment contract.
6. If earlier the employee's main argument in a dispute arising from dismissal was the employer's illegality to conclude a fixed-term employment contract, then modern judicial practice, in connection with the introduction of amendments to Art. 59 of the Labor Code of the Russian Federation already practically does not mention such arguments.
7. Part-time workers, who, in fact, are also mostly temporary workers (before hiring an employee for whom this job will be the main one), seasonal workers and "short-term workers" very rarely dispute their dismissal. These categories of "temporary workers" are characterized by other claims - for wages, other monetary claims or related to them.

Last time we considered issues related to the conclusion of an employment contract for a certain period (see ""). However, as practice shows, problems arise even after the contract is concluded - for example, when it is terminated. Of course, the presence of a condition on the duration of the contract facilitates the procedure for parting with an employee. But, despite this, the employer is required to pay increased attention to such details as the terms of termination fixed in the contract and notification of the upcoming dismissal. You should also take into account the risks that arise when renegotiating and extending a fixed-term employment contract. In this article, we will tell you which issues regarding the relationship with "temporary" workers, the employer should pay special attention to.

Early termination of a fixed-term contract at the initiative of the employee

The organization entered into an employment contract with the employee for a period of one year. A month later, the employee wrote a letter of resignation. Does he have the right to quit before the end of the contract?

Termination of an employment contract before its expiration occurs according to the same rules that apply when terminating perpetual contracts. The fact is that the article of the Labor Code, which contains a list of grounds for terminating an employment contract, does not distinguish between a fixed-term and an open-ended contract. Thus, a temporary employment contract can be terminated before the expiration of the period specified in it, not only at the initiative of the employer, but also at the request of the employee (Article of the Labor Code of the Russian Federation, clause 22 of the resolution of the Plenum of the Supreme Court of the Russian Federation), as well as by agreement of the parties (Art. Of the Labor Code of the Russian Federation, clause 20 of the resolution of the Plenum of the Armed Forces of the Russian Federation) and for circumstances beyond the control of the parties to the agreement (Article of the Labor Code of the Russian Federation).

If the employee intends to resign of his own free will, then he must notify the employer about this. At the same time, the Labor Code did not establish any specifics in relation to contracts concluded for a period of more than two months. This means that the employee must notify the employer of his desire to terminate such an agreement at least two weeks in advance (Article of the Labor Code of the Russian Federation). If the term of the employment contract is less than two months, then the warning period is reduced to three calendar days (Art. And Labor Code of the Russian Federation).

How to properly fire a fixed-term employee

O organization iya dismisses an employee due to the expiration of an employment contract concluded for one year in connection with the expansion of production. However, the employee faces a trial for being fired without warning. Is it really necessary to warn the employee about dismissal in this case? If so, how to do it correctly?

The answer to the question whether it is necessary to notify the employee about the termination of a fixed-term employment contract depends on the basis for concluding such an agreement. So, if the contract is concluded for the duration of the duties of the absent employee or for the performance of work, the completion date of which has not been determined, then notifying the employee about the upcoming dismissal is not required. But if the contract is drawn up for a certain period (that is, it indicates a specific date for its expiration), then the employee must really be notified of the termination of the contract. This must be done in writing at least three days before the end of the contract (this day will be the last day of the person's work, which means the day of his dismissal; Art. Labor Code of the Russian Federation). The notice must be handed over to the employee against signature. Such rules are established in the article of the Labor Code of the Russian Federation.

The notice is drawn up in any form. It must indicate the name of the employer, the full name of the employee, the date and number (if any) of the employment contract. You also need to clearly indicate that this document is a notice of termination of an employment contract due to the expiration of its validity period and is drawn up in accordance with article of the Labor Code of the Russian Federation. Further, the notice indicates the date of termination of the employment contract (it must coincide with the date that is fixed in the contract itself) and the current date is put down. On the part of the employer, the notice is signed by the manager or other authorized person. It is advisable to draw up two copies of the notification, one of which will be handed to the employee, and the second - with the employee's signature of receipt - will remain in the organization. This will help eliminate any controversy about whether the notice was properly drafted.

Please note: illness or absence of an employee with whom a fixed-term contract has been concluded is not a reason for its extension. Therefore, even if a temporary employee is absent from the workplace, he still needs to be notified of the upcoming dismissal.

At the same time, the Labor Code does not spell out any consequences for cases when the notification described above is not served. Therefore, the employer has the right to dismiss the employee in connection with the expiration of the term of the employment contract, even if the notification was not sent. It is clear that this will create certain risks for the organization. In particular, the lack of notification of the upcoming dismissal is a violation of labor law. And if this fact is timely (that is, within a year; article of the Code of Administrative Offenses of the Russian Federation) revealed by the labor inspectorate, the organization can be brought to administrative responsibility on the basis of article of the Code of Administrative Offenses of the Russian Federation.

Note that an employee who disputes the dismissal must justify the violation of his rights. By default, the courts proceed from the fact that failure to comply with the requirements of the article of the Labor Code of the Russian Federation on notifying an employee of termination of an employment contract due to the expiration of its validity period is not grounds for recognizing the dismissal as illegal. Indeed, by concluding a temporary employment contract, the employee knows both its urgent nature and the date of its termination. And the Labor Code, as already noted, does not regulate the issue of the consequences of untimely notification of the employee about the upcoming termination of a fixed-term employment contract (see, for example, the appeal ruling of the Moscow City Court dated 02.02.16 No. 33-3252 / 2016).

Renewal of a fixed-term employment contract

The employee is registered under a fixed-term employment contract to perform temporary work. It was planned that it will end within two months, but due to unforeseen circumstances, the deadlines were delayed. Is it possible to renew a fixed-term employment contract for another two months?

The Labor Code does not explicitly prohibit the renegotiation of a fixed-term contract. Moreover, in relation to some categories of employees, this is directly permitted (for example, part 1 of article of the Labor Code of the Russian Federation provides for the employer's right to renegotiate a fixed-term employment contract with an employee who is sent to work at a representative office of the Russian Federation abroad). Therefore, if after the expiration of the contract, it becomes necessary to continue the employment relationship, you can conclude a new fixed-term employment contract, which will enter into force immediately after the expiration of the previous one. But since the Labor Code does not directly indicate such a possibility, it is still better that a new contract, drawn up immediately after the expiration of the previous one, was concluded on a different basis, or for the performance of another labor function or work. In case of repeated renegotiation of a fixed-term employment contract for a short period to perform the same labor function (or work), the court may recognize that the contract has been concluded for an indefinite period (paragraph 4, clause 14 of the resolution of the Plenum of the Supreme Court of the Russian Federation).

In addition, the organization can be fined for violation of labor legislation (Art. Code of Administrative Offenses of the Russian Federation).

At the same time, other grounds can be used to conclude a new fixed-term employment contract. For example, to draw up a temporary contract in connection with the performance of work outside the scope of the main activity of the company, or deliberately certain work, the completion time of which cannot be determined by a specific date.

If the contract has expired, but the work has not been completed

The organization entered into fixed-term employment contracts with a construction team to perform temporary work on the construction of the facility. The contracts indicate that they are drawn up to perform temporary (for a period not exceeding two months) construction work. As an event that determines the completion of work, the contract says: "completion of construction." But due to the slow work of the brigade, the facility was not built in two months. Is it possible in this case to dismiss employees in connection with the expiration of the term of the contracts?

When concluding a fixed-term employment contract, the employer must remember the need to strictly follow the terms of termination of the contract, which are fixed in it. Therefore, if the moment of termination of the contract is determined by the occurrence of an event, in particular, the end of the construction of the facility, then the termination of the contract before the actual completion of construction will be illegal. Indeed, according to the rules of the article of the Labor Code of the Russian Federation, an employment contract concluded for the duration of a certain work is terminated upon completion of this work. This means that in the event of a dispute over the dismissal of an employee, the organization will have to confirm that by the time of his dismissal the work had indeed been completed. That is, she will have to submit the relevant acts (acceptance, commissioning, etc.). It will not be possible to terminate an employment contract for the performance of temporary work due to the expiration of the two-month period established in the article of the Labor Code of the Russian Federation as the maximum period for which such an agreement can be concluded.

Therefore, in the situation under consideration, the employer will either have to decide on the extension (renegotiation) of labor contracts, or dismiss the workers "under the article." For example, on the basis of clause 5 of part 1 of article of the Labor Code of the Russian Federation in connection with repeated non-performance without good reason of their labor duties. However, in this case, it is necessary to correctly and in advance take the actions necessary for such a dismissal. In particular, it is necessary that employees be brought to disciplinary responsibility (reprimand or reprimand) during the period of work (i.e. before the expiration of two months).

Prolongation of a fixed-term employment contract

By hiring a "seasonal" employee, the agricultural producer entered into an employment contract with him until 31 August. However, the work on harvesting was delayed. Is it possible to extend the term of the contract?

Formally, the Labor Code does not prohibit the extension of the term of the employment contract, and in some cases even directly prescribes to do so. For example, a temporary contract is extended upon the election of a pedagogical worker, who belongs to the teaching staff, through a competition for filling a position previously held by him under a fixed-term employment contract (part 8 of Art. pregnancy of a woman (part 2 of article of the Labor Code of the Russian Federation).

However, the jurisprudence on this issue is contradictory. Thus, some judges believe that the extension of the term of the employment contract does not contradict the norms of the Labor Code and does not entail the retraining of the contract for an indefinite one. In this case, the arbitrators refer to the provisions of Article Art. and Art. Labor Code of the Russian Federation (see the definitions of the Moscow City Court dated 20.01.14 No. 33-1433 / 2014, the Supreme Court of the Chuvash Republic dated 23.12.13 No. 33-4638 / 2013 and the St. Petersburg City Court dated 18.10.10 No. 33-14178 / 2010 ). But at the same time, the courts also take opposite decisions. The judges acknowledge that the extension of a fixed-term employment contract violates the rights of the employee and, in fact, it must be considered that such an agreement is concluded for an indefinite period (see the definitions of the Omsk Regional Court dated 26.08.15 No. 33-6106 / 2015, the Moscow City Court dated 06.02. 12 No. 4g / 3-114 / 12 and the Supreme Court of the Republic of Sakha (Yakutia) dated 02.05.12 No. 33-1380 / 12).

When a fixed-term contract becomes indefinite

What happens if the actual term of the employment contract turns out to be longer than the maximum period allowed by the Labor Code?

As a general rule, a fixed-term employment contract cannot be concluded for a period exceeding five years (clause 2, part 1, article of the Labor Code of the Russian Federation). And for some cases, the article of the Labor Code of the Russian Federation establishes shorter periods (2 months for contracts for the performance of temporary work; 1 year for contracts concluded in connection with the temporary expansion of production).

If the term of the employment contract (actual or directly specified in the contract) exceeds these maximum periods, then if a dispute arises, it is likely that the court will re-qualify it into an agreement concluded for an indefinite period. Similar consequences can arise when the facts of multiple renegotiation of the contract are established, including in a situation where the total duration of its validity exceeds the limits established by the Labor Code (clause 14 of the resolution of the Plenum of the Supreme Court of the Russian Federation).

An employee with whom a fixed-term employment contract has been concluded performs his duties very well. The employer wants to take him to a permanent job. Is it possible to transfer an employee from a temporary job to a permanent one? Or is it necessary to fire and accept again?

The Labor Code does not regulate this situation in any way. Formally, nothing prohibits the parties from drawing up an additional agreement to the employment contract, excluding from it the condition on the duration of its validity. In this case, the risk of claims from the regulatory authorities is minimal, since changes in the employment contract do not violate the employee's rights, but, on the contrary, provide him with additional guarantees.

At the same time, there is also a way, directly provided for by the Labor Code, to turn a fixed-term employment contract into an indefinite one. So, by virtue of the article of the Labor Code of the Russian Federation, the condition on the temporary nature of the employment contract automatically loses force if the contract has expired, and none of the parties demanded termination of the contract and the employee continues to work. In this case, the contract is considered concluded for an indefinite period (part 4 of article of the Labor Code of the Russian Federation). In this case, you can not draw up any additional personnel documents. However, it is worth noting that Rostrud still recommends concluding an additional agreement on the exclusion of the condition on the term of the contract (letter).

With whom and for how long can a fixed-term employment contract be concluded?

A fixed-term employment contract is drawn up in the cases prescribed by law. If the contract is unreasonably concluded for a certain period, then in court it can be recognized as unlimited. Read below about the grounds and rules for drawing up, as well as about the peculiarities of terminating such an agreement.

Grounds for the conclusion of a fixed-term employment contract

An employment contract is called an urgent one, which regulates a specific deadline for the completion of labor relations between the parties (Article 58 of the Labor Code of the Russian Federation).

The grounds for concluding an employment contract for a specific period can be divided into 2 groups:

Cases when only a temporary employment contract is drawn up (part 1 of article 59 of the Labor Code of the Russian Federation)	Cases when a temporary employment contract is drawn up by agreement of the parties (part 2 of article 59 of the Labor Code of the Russian Federation)
Performing the duties of a temporarily absent employee	Retirement from work
Carrying out duties abroad	Moving to work in an organization located in the Far North
Seasonal work	Execution of an agreement with a full-time student
Performing temporary work for up to 2 months, etc.	Execution of an agreement with the director, chief accountant, with their deputies, with the head of a branch or representative office, etc.

Important! Conclusion of a fixed-term employment contract under Part 2 of Art. 59 of the Labor Code of the Russian Federation is permissible only if there is a voluntary consent of both parties to the agreement (paragraph 2, clause 13 of the resolution of the plenum of the RF Armed Forces of March 17, 2004 No. 2). Expression of will of persons not listed in Part 2 of Art. 59 of the Labor Code of the Russian Federation, when assessing the existing grounds for concluding a fixed-term employment contract, the judicial authority does not take into account (see the definition of the Krasnoyarsk Regional Court of November 28, 2012 in case No. 33-10385 / 2012).

A temporary employment contract concluded in the absence of sufficient grounds for that, revealed in court, can be qualified as an unlimited one with all the ensuing legal consequences (including the restoration of the dismissed person, payment of appropriate compensation, etc.).

A sample of a fixed-term employment contract can be downloaded from the link: Fixed-term employment contract - template.

Recognition by courts of fixed-term employment contracts as concluded for an indefinite period: common situations

The judicial authority recognizes a temporary employment contract as valid indefinitely in the following cases:

1. The grounds for concluding an agreement are not spelled out (paragraph 10 of article 57 of the Labor Code of the Russian Federation). To avoid qualifying the contract as indefinite, the employer must prove that the grounds regulated by law actually existed, although they were not spelled out .. For example, the determination of the Kamchatka Regional Court of 05/21/2015 in case No. 33-808 / 2015 and the determination of the Supreme Court of the Republic of Karelia of 01.09 .2015 in case No. 33-3390 / 2015.
2. The contract is concluded for a specified period on the grounds regulated by par. 1-13 Art. 59 of the Labor Code of the Russian Federation, but in fact the worker's functionality does not go beyond the standard activities of the organization (ruling of the Khanty-Mansi Autonomous Okrug-Yugra court dated 06.12.2011 in case No. 33-5544 / 2011).
3. A temporary employment contract was signed with the head of the structural unit of the legal entity in the absence of other grounds regulated by Art. 59 of the Labor Code of the Russian Federation. On the head of the structural unit, the rules of para. 21 Art. 59 of the Labor Code of the Russian Federation do not apply (see the definition of the Moscow City Court of 12/18/2013 in case No. 4g / 8-12759).
4. An employment contract for a specified period was concluded under duress (paragraph 3, clause 13 of Resolution No. 2). Usually, the court interprets the very fact of signing the contract by a person as its voluntary conclusion (for example, the determination of the Armed Forces of the Republic of Tatarstan dated 01.12.2014 in case No. 33-16227 / 2014). In the situation under consideration, witness testimony can be cited as evidence of the forced signing of the contract (see the definition of the Voronezh Regional Court dated 25.01.2011 No. 33-340).

Conclusion of a temporary employment contract: we determine the term

Important! The longest period for which an employment contract can be concluded is, as a general rule, 5 years (Article 58 of the Labor Code of the Russian Federation).

The end of a temporary employment contract is tied to a specific date or the occurrence of certain circumstances. So, if a fixed-term employment contract was concluded for the performance of work, the exact date of the end of which cannot be established, the contract will be considered terminated upon completion of such work.

Another option is when a fixed-term contract is signed with an employee who is hired by an organization created for a predetermined period or to achieve a set goal. In this situation, its termination is possible only in the event of the actual termination of the organization's activities without the transfer of its rights and obligations by way of succession (clause 14 of Resolution No. 2).

Important! Revealing the fact of multiple conclusion of fixed-term employment contracts for a short period to perform similar labor functions gives the judicial authority the right to recognize such an agreement, taking into account other circumstances in each specific case, concluded for an indefinite period.

For example, according to the determination of the Pskov Regional Court of 11.06.2013 in case No. 33-903 / 2013, the employer was unable to prove the validity of the repeated conclusion of temporary labor contracts, and therefore the relevant labor relations were recognized as established for an indefinite period.

In another situation, the court did not see the fact of multiple conclusion of fixed-term employment contracts with the same person as a violation of the norms of the Labor Code of the Russian Federation, since the need for just such a formalization of labor relations was directly related to the specifics of the work (see the definition of the Armed Forces of the Republic of Sakha (Yakutia) of 11/16/2015 in case No. 33-4168 / 2015).

Termination of a fixed-term employment contract

Important! The basis for the termination of a temporary employment contract is the end of its validity period, depending on the date or event specified in it. The only exceptions will be situations when relations within the framework of the contract de facto continue and none of the parties has expressed an intention to complete them (clause 2, part 1 of article 77 of the Labor Code of the Russian Federation).

The expiration of the validity period is itself recognized as the basis for the termination of relations under the relevant agreement. When resolving disputes by the courts, it is indicated that the circumstances associated with the expiration of the contract cannot depend on the will of the employer. Consequently, the guarantees regulated by the Labor Code of the Russian Federation for employees whose dismissal is initiated by the second party to the contract, in cases of termination of fixed-term employment contracts on the grounds of paragraph 2 of Art. 77 of the Labor Code of the Russian Federation do not apply.

In the situation under consideration, the employee may be fired, including:

• during the period of temporary incapacity for work and being on vacation (determination of the Moscow Regional Court of 18.02.2015 in case No. 33-3722 / 2015);
• while on parental leave (for example, the determination of the Irkutsk Regional Court of 11/19/2014 in case No. 33-9495 / 14).

Note! The Labor Code of the Russian Federation grants pregnant employees the right to apply to the employer with an application to extend the employment contract until the end of pregnancy or the end of maternity leave, if it was provided to her in the proper manner. The application must be accompanied by a medical certificate confirming the pregnancy. If these conditions are met, the employer cannot refuse to extend the term of the contract (paragraph 2 of article 261 of the Labor Code of the Russian Federation).

Labor relations in case of prolongation of an employment contract for a certain period or its transformation into an indefinite one

As mentioned above, a fixed-term employment contract can be transformed into an indefinite one if none of the parties to the legal relationship filed a demand to terminate the contract due to the expiration of its term and the employee did not stop performing work after the date or event associated with the termination such an agreement (paragraph 6 of article 58 of the Labor Code of the Russian Federation).

Formally, the prolongation of a temporary employment contract is allowed by law in 2 cases:

• at the request of a pregnant employee within the framework of par. 2 tbsp. 261 of the Labor Code of the Russian Federation (the situation is discussed above);
• by written agreement of the parties in relation to a specialist in the pedagogical sphere, who is a member of the teaching staff, elected to the position he replaces by competition (paragraph 8 of article 332 of the Labor Code of the Russian Federation).

At the same time, Rostrud notes: the Labor Code of the Russian Federation assumes the admissibility of making adjustments to the employment contract, regardless of its type (urgent or indefinite), including in terms of changing its validity period (see letter dated 31.10.2007 No. 4413-6).

Conclusion! Thus, a fixed-term employment contract can be extended by drawing up an additional agreement. Although the number of such renewals is not limited, the maximum period for each renewal should not exceed 5 years.

The law establishes that a dismissed employee working under a temporary employment contract must be notified by the employer of the termination of the contract at least 3 days in advance (paragraph 1 of article 79 of the Labor Code of the Russian Federation). However, non-compliance by the employer with the regulations is not interpreted by the courts as a basis for recognizing the dismissal of an employee as illegal, and a fixed-term contract as transformed into an indefinite one (see the determination of the Irkutsk Regional Court of 23.01.2013 in case No. 33-450 / 13).

So, the conclusion of an employment contract for a certain period must have sufficient legal basis. Otherwise, such an agreement will be deemed indefinite. The grounds for the conclusion of the temporary TD must be spelled out in the text of the document - otherwise, in the event of disputable situations, the employer will have to prove their actual existence.

An employer's violation of the procedure for notifying an employee about dismissal 3 days before the upcoming termination of a fixed-term employment contract does not in itself constitute a basis for his reinstatement at work.

Recall that the concept of "seasonal work" is disclosed in part 1 of article 293 of the Labor Code. Due to climatic or other natural conditions, they are performed only for a certain period of time. Its duration is usually no more than six months. At the end of the season, the employee can be fired.

The employee can also terminate the contract ahead of time on his own initiative. Let's consider these and other situations in detail.

Dismissal of a seasonal worker - termination of a fixed-term employment contract

Since seasonal work implies the establishment of labor relations only for a certain period of time, a fixed-term employment contract is concluded with the employees hired to perform them. This is stated in part 1 of article 59 of the Labor Code.

Date or condition of termination of the employment contract

As a rule, in a fixed-term employment contract with a seasonal worker, the day of its termination is indicated. However, it happens that at the time of its preparation it is impossible to indicate a specific date. This is due to the specifics of seasonal work. For example, it is impossible to predict exactly when the harvest season will end. In this case, the fixed-term contract terminates on the day of the end of the seasonal work period (part 4 of article 79 of the Labor Code of the Russian Federation). In this case, instead of the exact date, a certain condition (event, fact) is indicated, upon the occurrence of which the labor contract ends. For example, you can record that the contract expires at the end of the field work. The duration of specific seasonal work is determined by industry agreements.

The procedure for terminating an employment contract with a seasonal worker

The procedure for terminating an employment contract with a seasonal worker is regulated by Articles 79 and 296 of the Labor Code of the Russian Federation.

Dutiesemployer. Part 4 of Article 79 of the Labor Code of the Russian Federation states that a fixed-term employment contract with a seasonal employee is terminated due to the end of the season. The employee must be notified in writing about the termination of a fixed-term employment contract at least three calendar days before dismissal (part 1 of article 79 of the Labor Code of the Russian Federation).

Dutiesemployee. In turn, an employee who decides to quit before the end of the season must notify the employer in writing three calendar days in advance (part 1 of article 296 of the Labor Code of the Russian Federation).

Vacationfollowed bydismissal. A seasonal worker, like any other employee, is entitled to annual paid leave. However, it is not always possible to realize it during the working season. Therefore, the practice of providing leave with subsequent dismissal.

In this case, the vacation time, in whole or in part, goes beyond the term of the employment contract. When granting leave with subsequent dismissal, the last day of the leave is considered the day of dismissal. This is stated in part 3 of article 127 of the Labor Code. This situation was discussed in the article "Vacation of a Seasonal Worker" ("Salary", 2010, No. 5).

We issue a dismissal due to the end of the season

How to warn an employee

The employer chooses how to inform the employee about the expiration of the fixed-term employment contract. You can send him a notice drawn up in any form, or you can immediately issue an order to terminate the employment contract due to the expiration of its term, which the employee must familiarize himself with against signature.

However, experienced HR professionals usually choose the former. The fact is that due to some circumstances, a fixed-term employment contract can be extended, for example, in the event of an employee's pregnancy. Therefore, it is better for the employee to first notify the expiration of the term of the employment contract, and if there are no reasons for its extension, issue an order.

The notification might look like below.

Employee pregnancy is an obstacle to dismissal

Sometimes the period of validity of a fixed-term employment contract coincides with the period of the employee's pregnancy. In this case, the employer is obliged to extend the term of the employment contract until the end of pregnancy (part 2 of article 261 of the Labor Code of the Russian Federation).

To do this, the employee must submit a written application and bring a medical certificate confirming the state of pregnancy. The application is made in any form (see below).

After the employee writes the application, the manager issues an order in any form to extend the fixed-term employment contract. Your document might look like the one shown below.

A woman whose employment contract has been extended until the end of pregnancy is obliged, at the request of the employer, but no more than once every three months, to submit a medical certificate confirming the state of pregnancy (part 2 of article 261 of the Labor Code of the Russian Federation).

Dismissal order

Formorder. After the employee is notified of the end 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 case of dismissal of several employees), which are approved by the decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1 "On approval of unified forms of primary accounting documentation for labor accounting and remuneration" ( see below).

Pensionexperienceseasonals. Note that it is important for seasonal workers that when processing various documents, reference is made to the seasonal nature of the work they perform. This is due to the calculation of retirement experience. When calculating the insurance experience for a pension, the periods of work during the full navigation period on water transport and during the whole season in organizations of seasonal industries determined by the Government of the Russian Federation are taken into account as a full year. This is stated in paragraph 2 of Article 12 of the Federal Law of December 17, 2001 No. 173-FZ "On labor pensions in the Russian Federation." The list of seasonal industries, where work during a full season is counted for a year of work, was approved by the Government of the Russian Federation of 04.07.2002 No. 498.

In this regard, in the order for dismissal, the following wording must be given: "The expiration of the term of the employment contract in connection with the end of the work season, paragraph 2 of part 1 of article 77 of the Labor Code of the Russian Federation."

Record in the work book of a seasonal worker

On the day of termination of the employment contract, the employee must be issued a work book in accordance with part 4 of article 84.1 of the Labor Code.

On the basis of clause 5.2 of the Instructions for filling out work books, approved by the 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 record of dismissal is made in the work book with reference to the relevant paragraph of this article.

When making an entry on the termination of a fixed-term employment contract with a seasonal worker, you must refer to paragraph 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 (end of seasonal work), paragraph 2 of part 1 of article 77 of the Labor Code of the Russian Federation."

After making a record of dismissal, the employee must familiarize himself with it and sign in the work book. He can sign below the signature of the personnel officer, or make a handwritten entry "Acquainted" and sign.

After receiving the work book, the employee is obliged to 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) approved by the decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1.

The seasonal boy fell ill on the eve of the termination of the employment contract

If the seasonal worker is on sick leave at the moment when the employment contract expires, the contract is not renewed. A seasonal worker can be dismissed during a period of temporary disability, but sick leave must be paid. This is stated in article 183 of the Labor Code.

The employee leaves before the expiry date of the employment contract

One of the possible situations is the dismissal of an employee before the expiration of the term of the employment contract. In this case, the contract is terminated according to the general rules.

The employee writes a statement in which he asks to fire him of his own free will, the head of the organization issues an order in the form No. T-8 (T-8a).

Recall that on the day of termination of the employment contract, the employee must be handed over a work book (part 4 of article 84.1 of the Labor Code of the Russian Federation). In accordance with the instructions of clause 5.2 of the Instructions for filling out work books, approved by the decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69, an entry is made in the employee's work book: "Fired at his own request, clause 3 of part 1 of article 77 of the Labor Code of the Russian Federation."

There is another option for filling out a work book. If you rely on the requirements of article 84.1 of the Labor Code, the entry will look like this: "The employment contract was terminated on the initiative of the employee, paragraph 3 of part 1 of article 77 of the Labor Code of the Russian Federation."

Dismissal of a Seasonal Employee Due to Liquidation of an Enterprise or Reduction of Staff

If an employee engaged in seasonal work is dismissed in connection with the liquidation of the organization, the employer must notify him of the upcoming dismissal in writing against signature at least seven calendar days in advance. These are the requirements of Part 2 of Article 296 of the Labor Code. The notification form is arbitrary (see below).

Similar requirements apply to cases of reduction of the number or staff of the organization's employees.

In all of the above situations, upon termination of an employment contract with an employee engaged in seasonal work, severance pay is paid in the amount of two-week average earnings (part 3 of article 296 of the Labor Code of the Russian Federation).

Payments to the dismissed seasonal worker. Taxes and fees

Regardless of whether an employee resigned at the end of the seasonal work period or earlier, he is entitled to certain payments. Labor legislation instructs the employer on the last working day of the employee to pay him wages for hours worked (part 1 of 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). Other payments may be established by the norms of a collective or labor agreement.

In particular, part 4 of article 178 of the Labor Code states that an employment or collective agreement may provide for the payment of severance pay not provided for in parts 1-3 of article 178 of the Labor Code of the Russian Federation, as well as establish increased severance pay.

Salary for hours worked

Personal income tax. Personal income tax is withheld from all employee income received by him both in cash and in kind (clause 1 of article 210 of the Tax Code of the Russian Federation).

Insurancecontributions. The object of taxation with insurance premiums is recognized as payments and other remuneration accrued by payers of insurance premiums in favor of individuals under employment contracts. This is stated in paragraph 1 of Article 7 of the Federal Law of July 24, 2009 No. 212-FZ "On Insurance Contributions 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" (hereinafter - the Law No. 212-FZ). Therefore, the salary of the dismissed seasonal worker is subject to insurance premiums.

According to article 57 of Law No. 212-FZ, insurance premium rates in 2010 are:

• in the FIU - 20%;
• FSS of Russia - 2.9%;
• FFOMS - 1.1%;
• TFOMS - 2%.

Contributionson theobligatorysocialinsurancefromunfortunatecaseson theproductionandoccupational diseases. In accordance with paragraph 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 the Government of the Russian Federation of 03/02/2000 No. 184, insurance premiums are charged on the wages (income) of employees.

Taxon theprofit. The taxpayer's expenses for wages include any accruals to employees in cash and (or) in kind (clause 1 of article 255 of the Tax Code of the Russian Federation).

Personal income tax. According to clause 3 of part 1 of article 217 of the Tax Code, all types of compensation payments established by the current legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of the representative bodies of local self-government (within the limits established in accordance with the legislation of the Russian Federation) related to the dismissal of an employee are not subject to taxation Personal income tax. An exception is the payment of compensation for unused vacation. Personal income tax is withheld from the amount of compensation.

Insurancecontributions. Compensation payments related to the dismissal of employees are not subject to taxation (subparagraph "d", clause 2, part 1 of article 9 of Law No. 212-FZ), except for compensation for unused vacation.

Contributionson thehappeninginjury. Compensation is not subject to injury contributions. This is indicated by paragraph 1 of the List of payments for which insurance contributions are not charged to the FSS of the Russian Federation, approved by the Government of the Russian Federation of 07.07.99 No. 765. PayAttention: in the case of going on vacation with subsequent dismissal, the employee is charged regular vacation pay. Injury premiums are charged on regular vacation pay.

Taxon theprofit. Compensation for unused vacation is included in labor costs when calculating income tax (clause 8 of article 255 of the Tax Code of the Russian Federation).

Severance pay

A severance pay is paid to a seasoned worker if his dismissal is caused by the liquidation of the company, downsizing or other reasons, which, according to labor law, are accompanied by this payment. It is also paid in other cases provided for by the local regulations of the employer.

To determine the amount of severance pay, it is necessary to calculate the average earnings of an employee according to the rules established in part 3 of article 139 of the Labor Code, taking into account the Regulations on the specifics of the procedure for calculating the average wages, approved by Decree of the Government of the Russian Federation of 12.24.2007 No. 922.

The average earnings of an employee for calculating the severance pay is determined by multiplying the average daily earnings by the number of working days in the period payable (clause 9 of the Regulation on the specifics of calculating the average wage, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922).

Personal income tax. Severance pay within the normal range (the basis and amount of payment correspond to labor legislation) refers to legally guaranteed payments (Article 164 of the Labor Code of the Russian Federation), which are associated with the dismissal of employees. These payments are not subject to personal income tax (clause 3 of article 217 of the Tax Code of the Russian Federation).

Insurancecontributions. Compensation payments related to the dismissal of employees are not subject to taxation (subparagraph "d", clause 2, part 1, article 9 of Law No. 212-FZ).

Contributionson thehappeninginjury. This payment is not subject to Injury Contributions. This is stated in clause 1 of the List of payments for which insurance premiums are not charged to the FSS of the Russian Federation, approved by Decree of the Government of the Russian Federation of 07.07.99 No. 765.

Taxon theprofit. For tax accounting purposes, the amount of severance pay reduces the taxable base for income tax as part of labor costs (clause 9 of article 255 of the Tax Code of the Russian Federation).

The order of taxation of the final payments to the seasonal worker and the collection of insurance premiums from them is presented in the table on p. 116.

Payments accounting

In accounting, wages, severance pay and compensation for unused vacation refer to expenses for ordinary activities (clause 5 of PBU 10/99).

Their accrual and payment to the employee is reflected in the following entries:

DEBIT 20 (23, 25, 26, 29, 44) CREDIT 70

DEBIT 70 CREDIT 50 (51).

Table. Taxes and premiums on final payments to the seasonal worker

Taxes and fees	Final payments to the seasonal worker
	Wage	Compensation for unused vacation	Severance pay
Personal income tax	Levied	Levied	Not taxed if paid within the limits of labor legislation
Income tax	Decreases the taxable base	Decreases the taxable base	Reduces the taxable base if paid within the established norms
Insurance premiums	Levied	Levied	Is not a subject to a tax
Injury Contributions	Levied	Is not a subject to a tax	Does not tax

Example

Plant grower E.M. Yagodkina received a notification from the employer (LLC "Strawberry Glades") about the liquidation of the organization and the termination of the employment contract with her ahead of schedule. She was informed that she would be fired from July 27, 2010. Since E.M. Yagodkina is a seasonal worker and is entitled to a severance pay of two weeks' average earnings. In addition, she needs to pay wages for hours worked and compensation for unused vacation. The employee's salary is 15,000 rubles. per month. She is not entitled to tax deductions. The organization's contribution rate in case of injury is 0.2%. What amount will E.M. Yagodkina on dismissal? What taxes and fees will be charged?

Solution

First, let's calculate the amount salaryfees for the time worked. According to the production calendar for 2010, the working time rate for a 40-hour work week in July is 22 working days. Accordingly, E.M. Yagodkina will receive a salary for July in the amount of 12,272.73 rubles. (15,000 rubles ÷ 22 working days × 18 working days).

Now let's determine the size compensationperunusedvacation.

According to article 295 of the Labor Code of the Russian Federation, the season worker is entitled to 2 working days of vacation for each month of work. EAT. Yagodkina worked for 4 months (from April 1 to July 26, 2010). She is entitled to leave for 8 working days (4 months × 2 working days).

In this case, the average daily wage is determined by dividing the amount of accrued wages by the number of working days in the calendar of a six-day working week.

According to the schedule of a six-day working week in April 2010, 26 working days, May - 24, June - 25.

The average daily earnings of a worker will be 600 rubles. [(15,000 rubles × 3 months) ÷ (26 working days + 24 working days + 25 working days)]. The amount of compensation will be equal to 4800 rubles. (600 rubles × 8 working days).

Now let's calculate the amount weekendbenefits.

According to the production calendar of a five-day working week in the billing period from April 1 to June 30, 62 working days.

Average daily earnings are 725.81 rubles. (15,000 rubles × 3 months ÷ 62 working days).

The first day after the dismissal is July 27. From this date, within two weeks according to the production calendar of the five-day period, there are 10 working days.

Thus, the employee received severance pay in the amount of 7258.1 rubles. (725.81 rubles × 10 working days).

Now let's look at the taxation of payments.

Wages and compensation for unused vacation are subject to:

• personal income tax in the amount of 2219 rubles. [(12,272.73 rubles + 4800 rubles) × 13%];
• insurance premiums in the amount of 4438.91 rubles. [(12,272.73 rubles + 4800 rubles) × 26%].

Wages are also subject to compulsory social insurance contributions against industrial accidents and occupational diseases in the amount of 24.45 rubles. (12,272.73 rubles × 0.2%).

The employee will receive 22,111.83 rubles in her hands. [(12 272.73 rubles + 4800 rubles + 7258.10 rubles) - 2219 rubles].