An order to extend a fixed-term employment contract is an important local regulatory act, as well as the only acceptable way to document the agreement reached between the employee and the employer in this area.
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There are two types of contracts: fixed-term and unlimited. It is possible to change the conditions in both. Only the former require a special occasion.
Is it possible to extend a fixed-term employment contract?
The fact is that there is no specific procedure in such a situation. A citizen who works under a fixed-term contract decides for himself what to do.
You can read what a fixed-term employment contract is in our article.
The best option in such a situation is if the employer and employee come to a mutual agreement on this issue. If the boss liked the employee while the latter was working for him under a fixed-term contract, then he himself can take such an initiative.
The employer may simply offer to renew the old contract with a new one or offer the employee another place in their organization.
But unfortunately, there are also situations in which the manager does not want to renew the employment contract, but the employee wants to stay in the workplace he likes. There is one peculiarity in this case. The fact is that the organization must notify its employee that his employment contract will soon terminate.
This must be done at least 3 days before the document expires. If such notification is not made, then, in accordance with the Labor Code, the fixed-term employment contract will turn into an indefinite one.
If a person finds himself in such a situation, then he should thoroughly prepare for legal proceedings , since the employer will still try to get his way.
Features of prolongation in various cases
The legislation regulates the extension of STD for certain categories of workers.
Pregnant
An employee working under the STD brought a certificate of pregnancy and an application to extend the employment agreement. The length of time for which the contract is extended is determined by the termination of pregnancy. Dismissal takes place after the birth of the child. The date of termination of the STD is the end of maternity leave, indicated in the medical certificate. The employer has the right to require a document confirming pregnancy every three months before the birth of the child. If the pregnancy ends for other reasons, the employee can be fired within a week after the personnel or employer learns of the termination of the pregnancy.
Managers
Temporary labor agreements are concluded with enterprise managers. The basis for how to extend a fixed-term employment contract for a new term without dismissing the general director is the decision of the general meeting. If the same person is elected, the termination of powers and re-election for the next term are reflected in separate paragraphs in the protocol. The extension of the STD is not considered here - the previous contract is terminated and a new one is concluded. Information about dismissal and hiring is entered into information about labor activity.
Athletes
When an athlete is transferred to temporary work in another organization, a temporary TD is concluded with him - no longer than 1 year. At the same time, the TD with the first employer is valid. If at the end of the fixed-term contract no one declares an end, the original TD is interrupted and the temporary one is extended. There are 2 options:
- extension for a period established by agreement of the parties;
- in the absence of an agreement - for an indefinite period.
Teachers
It is permitted not to conclude a new TD with employees of the scientific and teaching staff who, through competition, fill a position that they previously occupied under a temporary contract - Art. 332 TK. Its validity period is changed by written agreement:
- lasting no longer than 5 years;
- uncertain.
In all other cases, the answer to the question of whether it is possible to extend a fixed-term contract without dismissing the employee is negative. Extension of the STD will be the basis for recognizing it as unlimited.
Legal documents
- Labor Code
- Art. 332 TK
- Art. 72 TK
- Art. 59 TK
- Art. 58 TK
How to do this correctly?
As mentioned above, an employee of the organization may show a desire to extend the employment contract. To do this, you should write and submit an appropriate application , which will outline the employee’s request to remain in the organization.
The manager’s consent or, conversely, his refusal is presented in the form of a resolution . If there are compelling reasons that are specified in the Labor Code, then the contract can be extended for a new time period without any problems.
The most common development of events in such a situation is the renegotiation of the employment contract . The manager resorts to such measures in a situation when he cannot yet fully trust the new employee, but wants to see him in action.
A new contract in such a situation is concluded on the same terms. They can be changed or supplemented at the request of the parties. This is where the employee will be required to write an application to extend the contract; this will serve as the basis for renewing the contract .
Download the application form for contract renewal here.
When extension is prohibited
The current regulations do not stipulate when the extension of an agreement with a limited period of validity is prohibited. For this reason, conflict situations and violations arise in this area. For example, if the contract states that the employee is employed to perform seasonal work, he will not be able to be involved in cooperation for 12 months of the year.
A similar situation occurs with people selected to occupy a particular position. The work of such an employee under the terms of the contract extension is excluded, because after the expiration of the document, he must be fired. In any case, each situation is considered individually, and when deciding on an extension, one must proceed from the specifics of employment and logic.
Additional agreement
If the employer and employee decide to extend the employment contract with an additional agreement , then they must begin to act even before the validity period of the old document has come to an end.
You can find the additional agreement form here for free.
It is very important to formulate everything correctly here. The fact is that the law does not provide for any special detail in the wording. To compile the above document, you can use general phrases.
However, the use of such a document may be controversial , but if we take into account what happens in most cases, we can say that many employers will agree to this without any problems. In court, the conclusion of such agreements is also recognized as legal.
The text of such a document must indicate the period for which the parties want to extend the employment contract.
However, it is not necessary to write that the parties specifically want to extend the validity of the document, since in this case such a written agreement may be considered invalid. After all, in the Labor Code of the Russian Federation there is no such term as extension of the validity period of an employment contract.
In what cases is the employer obliged to extend the contract?
The legislator in Art.
59 of the Labor Code of the Russian Federation establishes the employer’s obligation to enter into employment agreements that provide for a limitation of their validity period for various reasons. In addition, this norm contains a list of grounds on which fixed-term contracts can be concluded by agreement of the parties to the labor relationship, that is, dispositively. In addition to the obligation to conclude fixed-term contracts in cases provided for by law, the employer is charged with the obligation to prolong a fixed-term contract in certain cases:
- If an employee becomes pregnant before the expiration of the contract with her on the basis of a corresponding written application (Article 261 of the Labor Code of the Russian Federation).
- When hiring a temporarily hired teaching worker on a permanent basis based on the results of a competition (Article 332 of the Labor Code of the Russian Federation). It should be noted that in this situation it is possible not only to extend the term of the employment contract, but also to conclude a new one.
At the initiative of the employer and with the consent of the employee, the employment contract may be extended by agreement of the parties.
You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
Notifying the employee about termination of the contract
The law also does not provide for any specific form of this document. Therefore, such a notification must be in writing and in any form.
The main thing that needs to be done is to prepare this document legally correctly . All wording must be written down correctly; errors in such paper are excluded.
If the contract is terminated unilaterally, then it should be stated that the refusal is of an appropriate nature.
The document must include:
- The word notification. It is written in the central part of the sheet at the top.
- An introductory part in which to indicate the details belonging to both parties, such as TIN, KPP, legal and actual address.
- Full name of the employee, organization in which he works and position.
- The main content, which should include the number of the employment contract, the exact date and place where it was signed, the procedure for termination and the reason why it was canceled, the date when the document ceased to be valid completely.
Such a document must be signed by the head of the organization and certified with his seal. It must be handed to the employee three days before the Employment Contract terminates.
Those who have some experience in such matters recommend registering this document as the original one and sending it to the recipient as registered mail . This is done in case the case goes to trial. If a person was notified in the above manner, then this will be additional evidence in court.
Download the contract termination notice form here for free.
Thus, the employer will significantly increase its chances of winning the process . After all, it is very rare for employees to be happy that their employment contract is being terminated. Usually they cling with all their might to a job that they like.
Order to extend work periods
This document is prepared and then executed taking into account all legal nuances.
When drawing up, you should remember that the validity period of a fixed-term employment contract must be less than one year, so if you write more in the order, it will automatically be invalid.
Moreover, a contract extension can only be made if both parties agree .
Here you can order a contract extension for free.
The order must specify a serious reason why the contract needs to be extended. If there is none, then the order must write that the validity period of the contract is increased on the basis that an additional agreement has been concluded. It is imperative to indicate which documents served as the basis for extending the contract.
Only the head of the organization or a person who is his deputy and has all the necessary powers to do so has the right to issue such an order. If this is done by someone who does not have one, then the order will be invalid.
TWO VIEWS ON THE PROBLEM
Opinion 1. The term of the employment contract is one of the conditions that together constitute the content of the employment contract. Therefore, it can be changed by agreement of the parties, like any other condition of the employment contract, according to the rules provided for in Art. 72 Labor Code of the Russian Federation.
This point of view is shared by Rostrud, in its letter dated October 31, 2007 No. 4413-6, recommending that the parties change the term of the employment contract by concluding an additional agreement to it.
Opinion 2. The term of the employment contract determines the type of employment contract, therefore it cannot be changed by agreement of the parties, like any other condition of the employment contract.
It is the term condition that makes it possible to determine what type of employment contract it is and what rules are to be applied in this regard.
This means that this condition differs from the “ordinary” terms of the contract, which can be changed by agreement of the parties.
A serious argument in defense of this position is the possibility of transforming a fixed-term employment contract into a contract concluded for an indefinite period, when the employment contract expires and neither party requires its termination. Also, an employment contract concluded for a certain period in the absence of sufficient grounds established by the court will be considered concluded for an indefinite period (i.e., another type of contract).
It is impossible to ignore the rules for extending the validity of an employment contract provided for by the Labor Code of the Russian Federation, which exist as an exception to the general rule provided for in Part 4 of Art. 58 Labor Code of the Russian Federation.
Is it possible to extend a fixed-term contract with a pregnant employee?
In the case where a fixed-term employment contract was concluded with a girl who became pregnant shortly before the end of the contract, then one can only sympathize with the employer. Unfortunately for him, such a contract cannot be terminated .
The fact is that the Russian state protected such workers. An unlucky employer does not have the legal right to fire such an employee until the end of her pregnancy. Such women can quite legitimately demand an extension of the employment contract until the time of childbirth.
The employer will be obliged to yield to the employee’s demands, as required by Article 231 of the Labor Code of the Russian Federation. She can only be fired if she wants it herself.
Find out more details about the extension of a fixed-term contract from the video:
