The main differences between a fixed-term employment contract and an open-ended one

Probation

According to Art. 70 of the Labor Code, as a general rule, a probationary period may be established for an employee. According to Part 5 of Art. 70 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), the probationary period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise not established by federal law.

A six-month probationary period when hiring can be established only for the above categories of workers (Letter of Rostrud dated November 20, 2015 No. 2630-6-1).

A probationary period is established even if a fixed-term employment contract is concluded. When concluding a fixed-term contract for a period of up to two months, a probationary period is not established (Article 289 of the Labor Code of the Russian Federation). When concluding an employment contract for a period of two to six months, the trial cannot exceed two weeks (Article 70 of the Labor Code of the Russian Federation).

The probationary period is established according to the following algorithm:

1 step. It is necessary to determine the possibility of establishing a probationary period.

This possibility depends on two main factors:

– the term of the most urgent contract;

– categories of employees for whom a probationary period is prohibited.

These categories include:

2 step. Determine the categories with which a fixed-term contract can be concluded.

A fixed-term employment contract is not concluded with all employees, but only in exceptional cases established by law. 3 . Establish what maximum trial period can be included in the contract.

The table shows that the test period depends on:

– categories of workers;

– the term of a fixed-term employment contract.

Step 4 Obtaining employee consent.

The employer often forgets that the terms of the employment contract are established by agreement between the employee and the employer.

Step 5 Establishing a probationary period in an employment contract.

The employee’s written consent to the probationary period is expressed in the employment contract concluded with the employee.

In the future, it is important to calculate the probationary period, that is, the time that the employee actually worked.

Legal basis

As mentioned above, a fixed-term contract, by its definition, obliges the employer to indicate why the employee is accepted for this type of agreement. In other respects, fixed-term and unlimited-term agreements are similar (name of employer, position, responsibilities, rights, remuneration, etc.)

A fixed-term contract always ends after the end date specified in the contract. 3 days before the end, the manager is obliged to warn the employee. If this does not happen and the employee is in demand, his fixed-term contract is transformed into an open-ended one. This occurs by drawing up an additional agreement. If an employee is dismissed on his own initiative, the boss must be notified 2 weeks in advance.

Similarly, with an open-ended written agreement, the employee is provided with a probationary period (specified in the contract). In urgent cases - up to 6 months, the probationary period cannot be more than 2 weeks. In a number of cases, a probationary period is prohibited:

• When filling a position, selected by competition.
• Women who are pregnant or with children.
• Minors.
• Graduates of educational institutions working for the first year.
• When transferring from another place of work.

There are certain nuances for pregnant women. As you know, a pregnant woman cannot be fired (with the exception of liquidation of an organization), but in determining a fixed-term agreement, the employee takes into account the time of replacement of a maternity position or the seasonality of work.

At the request of the employee, the employer is obliged to extend the fixed-term contract until the end of the pregnancy (upon presentation of a doctor’s certificate about the progress of the pregnancy quarterly). At the end of this period, the manager has the right to dismiss the woman.

Notice of termination of a fixed-term employment contract

The general period when an employee wants to terminate the contract is 14 days, then the employee writes a statement of his own free will. If the employer plans to carry out measures to reduce staff or numbers, then in this case the employer must notify the employee later than 2 months in advance.

But for a fixed-term employment contract, the period is shorter. Based on Part 1 of Art. 79 of the Labor Code of the Russian Federation about the termination of an employment contract due to its expiration, the employee must be warned in writing at least three calendar days before dismissal.

Notice of termination of an employment contract is submitted in the following order:

1. Determination of the period.

It is very important not to miss the notice period for termination of a fixed-term employment contract. Because if the employer missed the notice period, then in this case the contract is considered concluded for an indefinite period.

2. Preparation of notification.

There is no specific form of notification, so the employer develops it independently. Notification is provided to a specific employee. It must indicate that the fixed-term employment contract concluded with the employee is terminated due to the expiration of its validity period. The notification is signed by the head of the organization or a person performing his duties or having duly formalized authority to notify of the upcoming dismissal. If the document is signed by an unauthorized person, the dismissal may be considered unlawful.

3. Familiarization against signature.

The employee must be familiarized with the notification against signature. Such familiarization will allow you to prove the fact of familiarization.

Changing the duration of the contract

The legislation of the Russian Federation does not prohibit renewing a fixed-term employment contract. But with continuous confinement with the same employee, if controversial situations arise, it can become indefinite. When neither party expresses a desire to terminate it and the employee continues to work after completion, the contract also moves to the next category. If the employee is ill at the end of the agreement, the contract does not continue.

When the deadlines come to an end, but the work has not yet been completed, an additional agreement is drawn up or a new fixed-term contract is drawn up. The legislation of the Russian Federation does not prohibit both options.

Extension of this type of agreement is possible in the following cases:

• If it ended before the woman returned from maternity leave.
• When an employee is selected by competition.

Payment of compensation upon termination of a fixed-term employment contract

Under a fixed-term employment contract, the employer does not pay compensation if it terminates the contract and reduces staff or numbers. But with any dismissal, the employee has the right to compensation for unused vacation, and the employment contract itself or the collective agreement may provide for special compensation. These include, in particular, “golden parachutes”, which are paid to top managers.

The amount of compensation is calculated depending on the length of work. Employees who have entered into an employment contract for a period of up to two months are paid compensation upon dismissal at the rate of 2 working days per month of work. Compensation for unused vacation on a general basis should be calculated at 2.33 calendar days per month.

Guarantees for compensation payments apply to both main employees and part-time workers. But often workers performing work under a fixed-term employment contract do not have the same guarantees as those who work under an open-ended contract; workers who have entered into fixed-term employment contracts have the same rights as other employees, not only regarding the regulation of working hours and rest, wages and other legal issues, but also on “everyday” issues, for example, the provision of employer transport, food, showers, libraries, locker rooms, rest rooms, kindergartens, etc.

However, a fixed-term employment contract worsens the employee’s position by not providing him with the same guarantees as a contract concluded for an indefinite period.

Algorithm for calculating compensation:

1 step. Determination of the amount of compensation.

It is necessary to determine the amount of compensation based on the provisions of local acts, for example, a collective agreement or regulations on wages, as well as on the basis of an employment contract with the employee.

Step 2. Calculation and payment of compensation.

Compensation is calculated based on all the above documents and information about unused vacation.

Step 3. Providing a payslip.

The payslip is required because it contains information about the accruals due to the employee. The payslip must contain the following information:

– on the components of the employee’s salary for the relevant period;

– about the amounts of other accrued amounts. These include, in particular, monetary compensation for the employer’s violation of the established deadline for payment of wages, vacation pay, dismissal payments, and (or) others;

– about the amounts and grounds for deductions made;

– about the total amount of money to be paid.

The use of a pay slip form not approved by the employer is a violation of labor laws and may result in administrative liability.

Termination of a fixed-term employment contract with a pregnant woman

If we talk about open-ended employment contracts, then an employer, concluding a fixed-term employment contract, can actually fire a pregnant woman. Termination of an employment contract due to the expiration of its term (clause 2, part 1, article 77 of the Labor Code of the Russian Federation) refers to the general grounds for termination of the contract. However, the procedure for dismissing women on this basis in some cases has its own characteristics.

Termination of a fixed-term employment contract with a pregnant employee is possible in the following cases (Articles 77, 261 of the Labor Code of the Russian Federation):

- at the request of the employee herself;

– by agreement of the parties;

– if a pregnant employee fails to perform actions related to the extension of a fixed-term employment contract;

– when a temporarily absent employee returns to work, if a pregnant woman performed his duties and it is impossible to transfer her to another available job before the end of her pregnancy (if she agrees to such a transfer);

– upon liquidation of an organization (termination of activity of a branch, representative office or other structural unit of the organization) in which a pregnant employee works, or termination of activity by an individual entrepreneur.

An employer has the right to dismiss a pregnant woman after the expiration of the employment contract, subject to the following conditions (Part 3 of Article 261 of the Labor Code of the Russian Federation):

– a fixed-term employment contract was concluded for the duration of the duties of the absent employee;

– transfer of an employee with her consent to another job available to the employer and not contraindicated for her for health reasons is impossible.

The algorithm is as follows.

1 step. Establishing the fact of pregnancy.

The fact of pregnancy is established on the basis of documents provided by the woman from the antenatal clinic.

Step 2. Extension of a fixed-term employment contract until the moment of childbirth.

The duration of the employment contract must be extended until the end of the pregnancy, regardless of the reason for its end - the birth of a child, spontaneous miscarriage, abortion for medical reasons, etc. This follows from Part 2 of Art. 261 Labor Code of the Russian Federation, para. 1, 3 clause 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1.

You must submit a written application to the employer for such an extension and a certificate confirming your pregnancy status. Otherwise, the employer is not obliged to renew the employment contract (Part 2 of Article 261 of the Labor Code of the Russian Federation).

By virtue of Part 2 of Art. 261 of the Labor Code of the Russian Federation, a fixed-term employment contract cannot be terminated until the end of pregnancy. The pregnancy status is confirmed by a medical certificate provided by the woman at the request of the employer, but not more than once every three months.

A fixed-term employment contract is extended until the end of a woman’s pregnancy, regardless of the reason for the end of the pregnancy (birth of a child, spontaneous miscarriage, abortion for medical reasons, etc.). In the event of the birth of a child, the dismissal of a woman due to the end of a fixed-term employment contract is carried out on the day the maternity leave ends. In other cases, a woman may be fired within a week from the day the employer learned or should have learned about the end of the pregnancy.

Step 3. Calculation of compensation and payment of benefits.

A woman is entitled to the same compensation that is paid upon termination of a fixed-term employment contract, for example, compensation for unused vacations. The benefit is paid for the entire period of maternity leave in the amount of 100% of the woman’s average earnings (Part 1 of Article 11 of the Law of December 29, 2006 No. 255-FZ).

The amount of the benefit is determined by multiplying the amount of the daily benefit by the number of calendar days falling during the period of maternity leave (Part 5 of Article 14 of Law No. 255-FZ).

Step 4 Termination of the contract and familiarization against signature.

To avoid risks, it is important that the employee is familiar with the order upon signature. In addition, on the last working day all payments are made and a work book is provided.

There are specifics for terminating a contract if the employee has already held a maternity position. According to Art. 79 of the Labor Code of the Russian Federation, a fixed-term employment contract is terminated upon expiration of its validity period. The employee must be notified in writing of the termination of the employment contract due to its expiration at least 3 calendar days before dismissal, except in cases where a fixed-term employment contract concluded for the duration of the duties of the absent employee expires.

An employment contract concluded for the duration of the duties of an absent employee is terminated when this employee returns to work.

Part 3 art. 261 of the Labor Code of the Russian Federation provides for the possibility of dismissing a woman due to the expiration of the employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of an absent employee, and it is impossible, with the written consent of the woman, to transfer her to another job available to the employer before the end of pregnancy (as a vacant position or work that corresponds to the woman’s qualifications, as well as a vacant lower position or lower paid job) that a woman can perform taking into account her state of health. In this case, the employer is obliged to offer her all the vacancies that he has in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

Indefinite

Article 58 of the Labor Code of the Russian Federation establishes that an open-ended employment contract is a contract that is concluded for an indefinite period. That is, it has no expiration date. An agreement is drawn up between the applicant and the employer if the work is of an uncertain nature and its volume cannot fit within a certain time frame.

This agreement can be terminated at any time. You just need to notify the employer about this 2 weeks in advance. If an employee is hired, but decides to leave while on a probationary period, then the employer must be notified 3 days in advance. The employer can also initiate the termination of a permanent employment contract. This is reflected in the law: but an employee can be dismissed under the article only if any of the grounds specified in the Labor Code of the Russian Federation occur.

IMPORTANT: The employer does not have the right to limit the duration of an open-ended employment contract. Under no circumstances can such an agreement become a fixed-term agreement, even if the parties agree to this.

The grounds on which fixed-term employment contracts are concluded are listed in Article 59 of the Labor Code of the Russian Federation. In all other cases, the employer is obliged to enter into contracts with applicants for work for an indefinite period.