Advantages and disadvantages of a fixed-term employment contract

What social guarantees do a fixed-term employment contract provide?

A fixed-term employment contract has the peculiarity that in terms of social guarantees a person will not feel the difference. In the same way as when signing a regular contract, the right to vacation, sick leave and other benefits is guaranteed.

It is not allowed to increase the duration of a work shift. All trips to work on weekends are paid in accordance with the Labor Code of the Russian Federation.

The agreement concluded by the parties defines the rights and obligations of both parties, as well as responsibility for their violations.

The procedure for re-registration and changing the type of agreement

Even if there is an agreement between the parties, an open-ended contract cannot be converted into a fixed-term one. You can do it in reverse! But for this the following conditions must be met:

• the agreement has expired, and the employee continues to carry out his labor activity at this enterprise;
• the condition of urgency is no longer relevant, but the person continues to work.

You need to draw up the agreement again and have the employee sign it.

When is a fixed-term contract signed?

Article 59 of the Labor Code of the Russian Federation lists cases when urgent work is performed.

8 reasons for signing a contract for a specific period:

• replacing a temporarily absent employee;
• performing seasonal work;
• carrying out work related to the expansion of production;
• provision of additional services (installation, reconstruction);
• registration of a specialist to perform duties for a certain period of time;
• internship;
• performance of public duties;
• acceptance into alternative civil service.

By agreement of the parties, the contract may be limited in duration when joining an enterprise with a small number of employees.

It is also practiced to conclude fixed-term employment contracts with pensioners and persons whose health condition does not allow concluding an open-ended agreement.

For work in the Far North, it is also envisaged to conclude a fixed-term employment contract. Company directors and their deputies work under fixed-term employment contracts. For activities on river and sea vessels, registration in this way is also allowed.

Minimum and maximum period

The legislation provides that:

• minimum period – any, even 1 day;
• maximum – 5 years.

In practice, an employment contract is not concluded for several days, since this is, first of all, unprofitable for the employer: compensation will have to be paid for unused vacation days, even if it is just one such day. In addition, there is a risk that the employee will go on sick leave or it turns out that the employee is pregnant, etc.

Therefore, in the case of work that will take several days or weeks, you can draw up one of the types of civil contracts:

• paid provision of services;
• contract

Thus, from the employee’s point of view, there are virtually no disadvantages or features of a fixed-term contract, and its advantages are no different from a regular agreement. And from the employer’s point of view, the only significant risk is associated only with hiring pregnant employees, who, by law, cannot be denied the right to extend the contract even after the expiration of the initial period.

Video commentary on the legal features of the agreement:

Benefits of temporary work

By and large, a person loses nothing if he takes a temporary position. He will also be able to use the social package. Sick leave and paid leave are guaranteed. Salaries are transferred twice a month. The duration between payments should not be less than fifteen days.

The company transfers contributions to the Pension Fund and also pays social contributions. The rights of workers are preserved in the event of liquidation of a company and reduction of staff.

So the employee is completely socially protected. But there is also a drawback to this form of cooperation.

Design nuances

If you are not offered a permanent job, you need to clarify why the employer is doing this.
The law prohibits the conclusion of temporary contracts for the purpose of evading the provision of social guarantees. Therefore, you can save email correspondence or record conversations. This evidence will help the specialist defend his rights. The evidence will be useful for appealing to labor inspectors and the court.

If, after the expiration of the contract, cooperation continues, the contract is considered unlimited. Therefore, if the employer does not remind about the dismissal, then the person is considered accepted for a permanent position.

Flaws

Upon expiration of the agreement or completion of work , the scope of which was agreed upon in advance, the employer may terminate the contract ahead of schedule and dismiss the employee .

A short specified period during which the employer is obliged to give notice of the end of the agreement and dismissal.

The employee's departure at his own request must occur by mutual agreement of the parties .

For the employer:

Employee pregnancy. In this case, the employer cannot terminate the employment contract .

Moreover, if a woman demands an extension of the period during which the agreement will be valid until the end of pregnancy, then the employer is obliged to satisfy this requirement (Article 261 of the Labor Code of the Russian Federation).

How to protect your rights

There is a way not only to quit, but also to receive substantial monetary compensation. The fact is that all terms of cooperation are fixed in the contract. Therefore, it is possible to agree that the person is paid severance pay. It will not be so offensive to quit if the company pays a decent remuneration.

There is one more little trick you can do. If the specialist was not notified three days in advance that the work time was coming to an end, then there is no need to remind about this. The contract is automatically transformed into an open-ended one if the employer does not notify the person about the end of work.

Often things end up leading to dismissal. When all the documents are completed, you can go to court. If the case is successfully resolved, the employee is reinstated in his position.

The court will evaluate the circumstances of the case. It is checked whether there really are grounds for limiting the work to a time frame or not. All grounds are listed in Art. 59 of the Labor Code. If there are no such grounds, then the judge takes the side of the employee who filed the statement of claim. A conclusion is made about whether there was really good will of the parties to sign an agreement limited in time, or whether the person was forced to agree to such conditions.

Arbitrage practice

Let us present a case from judicial practice to show how controversial situations are resolved. Disagreements between the parties to labor relations were resolved by the Moscow City Court. Determination No. 4g/8-12759 is dated December 2013.

The crux of the matter. The specialist was assigned to a division of the company under a fixed-term contract. The term of cooperation expired and the person was fired. But the employee was not satisfied with this situation, so he sent a statement of claim to the court.

Conclusions made by the court:

1. It is possible to sign a contract limited to a certain period of time with the management personnel of the company.
2. There are no grounds for hiring heads of a structural unit for a temporary position.
3. Since the contract was concluded with violations, the dismissal is illegal.

Comments

This legal dispute shows that violations of the procedure established by law are interpreted in favor of the employee. Infringement of labor rights is not allowed. There is one important nuance. A manager can be hired for a limited period. But only when it comes to managing the company itself. Another issue is filling management positions in a structural unit. It is impossible to temporarily hire a branch manager, since such an organization is not an independent legal entity. However, such mistakes are often made in practice.

The second definition is given from the practice of the Irkutsk Regional Court. Case No. 33-4481/13 is dated June 2013.

The essence of the dispute. The person was hired temporarily. The duration of cooperation is limited to the duration of the government contract. The specialist was unhappy that he was fired. I sought justice through the courts.

Conclusions on the case:

1. There is no basis for signing a temporary contract. The employee's responsibilities do not go beyond the normal activities of the enterprise.
2. There is no evidence that additional services were actually required. The company's references to the expiration of the agreement have no legal significance.

Comments

The result of the consideration of the case turned out to be pleasant for the plaintiff, because the contract was recognized as unlimited. Indeed, Art. 59 of the Labor Code of the Russian Federation clearly defines the cases that constitute the basis for urgent work. In this situation we are talking about work that goes beyond the normal work of the enterprise. For example, a company receives an order and is forced to hire new specialists. When the work does not go beyond the scope of normal activities, it means that the person should be registered under an open-ended contract.

Pros and cons for employee and employer

Basically, this type of employment agreement has no fundamental differences with a “regular” contract, which is also often called open-ended (in the legal sense this means “concluded for an indefinite period”). There is a common misconception that a fixed-term contract has more disadvantages for the employee than advantages. In particular, it is believed that there will be losses on sick leave and vacation pay.

In fact, both types of document guarantee equal rights and the same types of social packages for all employees . Moreover, the legislation directly prohibits the deliberate conclusion of a fixed-term agreement in order to limit the employee to any guaranteed rights.

However, a fixed-term contract has its own characteristics - the main advantages and disadvantages for both parties are discussed in the table.

Expert opinion

Ozerova Marina

Lawyer, specializing in inheritance, family, housing matters

As can be seen from the analysis, it is actually no different from the usual one. It can also be terminated early - for any of the reasons that are regulated by law (both at the initiative of one party and by decision of the other party). In general, the rule that a 14-day work period is required applies. However, the parties can also sign an agreement for dismissal without service.

Summary

So, temporary work has its own characteristics. There are cases when you can accept a person for a set period of time. A fixed-term employment contract has pros and cons for the employee. The document concluded by the parties defines the basic conditions of the activity.

1. A fixed-term employment contract has its own characteristics. Social guarantees remain in any case. However, it is important to take signing documents seriously. An employee may file an application incorrectly and lose entitlement to benefits.
2. No one has abolished the right to judicial protection. If labor rights have been violated, you should go to court.
3. If possible, it is better to collect evidence in advance: recordings of conversations, email correspondence. As they say: words cannot be tied to deeds. You will need serious arguments to prove the correctness of your position.
4. When labor rights are violated, you can use alternative methods of protection: contact labor inspectors or the prosecutor's office.