Is it possible to convert an open-ended employment contract into a fixed-term one?

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Sometimes an employer needs to transfer an employee to a fixed-term employment contract. You should know that this is only permissible with the consent of the employee. The procedure involves dismissing a person and rehiring him. At the same time, all guarantees provided for by law are preserved, in particular, payment of full salary and compensation for unused vacation. We will tell you in the article in which cases a translation is acceptable and how to format it correctly.

Period of validity of the employment agreement

The provisions of norm 58 of the Labor Code of the Russian Federation reflect the concept of a fixed-term employment contract. This article indicates that acts of unlimited duration have priority over those concluded for a certain period. Currently, most employment contracts in the country are valid for an indefinite period. This indicates that the termination of relations between an employee and the company’s management occurs in cases reflected in the Labor Code of the Russian Federation. These include:

• coordination of the parties' positions on this issue;
• if a person fails the test;
• expression of desire by an employee;
• creation of circumstances that are independent of the will of the parties.

To terminate the validity of an indefinite act, one of the events reflected in the list must occur. On its own initiative, the management of the enterprise cannot determine such circumstances. Also, when concluding an employment agreement, the parties may agree that the duration of the document is limited. In this case, the period cannot be more than five years. Completion of the act can be written as:

• completion of specific work;
• return to work of an employee whose position is occupied;
• end of the season.

Labor legislation indicates that not all employees will be able to conclude such an agreement. The list of situations when the use of this form of act is permissible is reflected in Article 59 of the Labor Code of the Russian Federation. It also provides that a fixed-term contract may be classified as an open-ended one if:

• the parties did not terminate the relationship within the appointed time;
• there were no grounds for concluding a fixed-term contract;
• the company did not respect the rights of the employee.

In the last two situations, to establish the perpetuity of the agreement, it is necessary to apply to the court.

Arbitrage practice

As a rule, the employer initially calculates all future risks of possible litigation, but in some cases the benefit exceeds prudence.

So, if a company transfers its entire staff to urgent legal relations, there is a high probability of such a decision being reversed, given that the organization is unlikely to simply change its field of activity.

The timing of the contract should also be taken into account. After all, if the management of an enterprise is initially talking about transferring to a fixed-term contract for a period of just over three months, it means that it is already anticipating legal disputes and thus seeks to avoid them by creating conditions for missing the claim period, which, under Article 392 of the Labor Code of the Russian Federation, is exactly three months and makes up.

Examples from court practice:

Appeal ruling of the Moscow City Court

Determination of the Supreme Court of the Udmurt Republic

That is, as judicial practice shows, the result of the consideration of the case, first of all, depends on the conditions under which the contract was transformed, as well as on the evidence provided by the parties to confirm that they were right.

And since the conditions for transferring an employee to a different work mode are for the most part unfavorable for workers, the number of positive decisions specifically in defense of ordinary workers prevails.

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Employment contract

Conversion from unlimited to fixed-term

Not in all situations that are reflected in Article 59 of the Labor Code of the Russian Federation, the parties form a fixed-term agreement. In the future, the company's management may want to correct this. This rarely happens in practice; for this reason, this topic is poorly covered by specialists. Article 58 of the Labor Code of the Russian Federation talks about how you can convert a fixed-term act into an indefinite one. However, there is no way back to transform the document.

We can conclude that such a transfer certainly needs to be included under the ban, since it affects the deterioration of the employee’s position. It is also necessary to point out the provisions of Article 72 of the Labor Code of the Russian Federation, which allows adjustments to be made to the employment agreement only if an agreement is reached between the parties.

Therefore, some lawyers are confident that this provision makes it possible to conclude an additional agreement where the conditions for the urgency of the contract are specified. It has been said for a long time that the terms of the agreement cannot be changed. Even after the expiration of the period of validity of the urgent act, additional acts are not drawn up, but a new agreement is formed.

In 2007, Rostrud announced that any provisions of agreements could change. At the same time, it is noted that if the duration of the employment relationship is more than five years, it is unacceptable to limit them to deadlines. Judicial practice on this issue is also not clear. For example, in 2013, the capital city court pointed out the legality of such an additional agreement and did not allow the urgency of the agreement to be challenged. When considering the case, the judge proceeded from the fact that when concluding the contract there was voluntariness, and this act was not challenged. Working conditions made it possible to conclude an agreement for a certain period.

This decision can be called a precedent regarding the transfer of a permanent act into a fixed-term one.

Step-by-step instruction

Transfer can be done in two ways:

1. dismissal of an employee and rehiring under new conditions - conditions of urgency of labor relations;
2. drawing up an additional agreement to an existing employment contract.

The first option is less attractive, since if you want to go on a prescribed vacation, you will have to wait six months from the date of hiring (Part 2 of Article 122 of the Labor Code of the Russian Federation), while a transfer under the second option allows you to go on vacation as planned, those. within the existing vacation schedule.

Drawing up a notice

The beginning of the procedure for transferring an employee from an open-ended employment contract to a fixed-term one is marked by a written notification to the employer with a proposal to carry out such a transfer.

Reference! In this notice with the offer of transfer, the reason for the transfer should be indicated and a column should be provided for the employee’s consent - this way the employer will protect itself from claims regarding the existence of grounds for the transfer and obtaining the employee’s consent.

In such a notice, in no case should one indicate the possibility of dismissal if the employee refuses the transfer, because Article 74 of the Labor Code of the Russian Federation allows such dismissal only in the event of a change in working conditions for organizational or technological reasons (changes in equipment and production technology, structural reorganization of production etc.), but not in the case of establishing a limitation on the duration of the employment contract.

Additional agreement

If the employee’s consent to the transfer has been received, then an additional agreement must be drawn up . This document, by its nature, does not have any special conditions for its preparation. Most importantly, it must contain the amended conditions for further cooperation, as well as the start date of such conditions and signatures of the parties.

However, when drawing up this additional agreement, you should still pay attention to some points:

1. it is necessary to indicate the reasons that served as the basis for establishing the urgency of the employee’s work activity, for example, a temporary replacement of the main employee, or the completion of a specific amount of work;
2. if, with a change in the duration of the contract, the position also changes, then the new duties and powers of the employee should be listed, or a link should be made to the corresponding job description, which should subsequently be familiarized to the employee against signature (we wrote about how to change the position in the TD here) ;
3. in order to at least somehow motivate the employee for the transfer being studied, the new working conditions should be made more attractive in relation to the previous ones, for example, you can increase wages or increase the scope of authority - this way obtaining the employee’s consent to the transfer will be more justified (on how to formalize the changes employee salary, described here);
4. The contract period should be set as long as possible (preferably a maximum, but within five years), since a short period may raise doubts among regulatory authorities about the absence of pressure from the employer during the transfer.

Thus, if the duration of the contract is fixed for several years, and even on conditions favorable to the employee, questions about the advisability of such cooperation should not arise.

Do not forget that the employer does not have the right to demand that the employee switch from an open-ended contract to a fixed-term one , especially through threats or other pressure, because in modern conditions the employee is a more vulnerable party to the labor relationship than the employer, therefore the legislator strives to protect the legal status of the worker as much as possible .

On our website you can also find useful materials on how to transfer an employee from a fixed-term contract to an open-ended one, as well as how to change the employee’s last name in the employment contract.

How does the translation happen?

Despite the fact that practice on this issue is far from clear, the presence of several court decisions indicating the legality of such a translation indicates that the translation is permissible. To prevent the case from falling apart in court, it is necessary to comply with all legal requirements. When forming an additional agreement containing the validity period of the contract, certain restrictions must be taken into account . The following conditions must be met:

• The Labor Code allows the formation of fixed-term agreements;
• it is necessary to obtain consent from the citizen whose contract is being converted from an open-ended one to a fixed-term one;
• The expiration of the act must occur before five years of acceptance into the position.

In this case, the term of work is calculated not from the date of formation of the contract, but from the date of employment in the company. The usual form is used when drawing up, which is secured with the signature of the employee and the seal of the company. Provisions on the validity period of the act must be placed as a separate paragraph. If the previous agreement contains a clause on perpetuity, the additional agreement reflects the same clause, but with adjustments.

How to carry out the procedure safely?

Despite the fact that from a legal point of view there is no prohibition on such a transfer, there is no clear permission to establish urgency in relation to an indefinite act. For this reason, lawyers advise taking a safer route - ending the relationship with the employee and rehiring him, but on the basis of a fixed-term agreement. This option of action has its own logic, including the transfer of an open-ended contract to a fixed-term one presupposes the consent of the citizen, but in the case of dismissal and a new job, no problems should arise.

This process will entail additional expenses, including money and time, but at the same time, from the legal side, the transition to a fixed-term contract will be clear.

When will there be no complaints from an employee?

The main way to prevent dissatisfaction on the part of an employee is to agree with him in advance. For greater security for the company, it is best to draw up an additional agreement three months before the start of the new act. This is due to the fact that the statute of limitations lasts exactly three months in this case. If, after the termination of the employment relationship, a citizen goes to court, the consideration of the complaint will be refused.

The court relies on the fact that since the complaint was not sent for three months, the person was satisfied with everything. The document should reflect the maximum validity period; this will help to extend the validity period as little as possible. In addition, the workload of HR department employees will be significantly reduced. It is important to take into account that if there is an urgent nature, the act must be terminated in the appropriate manner.

What responsibility does the employer have?

If government authorities do not agree with the process of converting an open-ended agreement into a fixed-term agreement, then there is no specific responsibility for this. The only consequence of such dissatisfaction will be that the document again acquires the character of an indefinite term.

If a person does not agree with the changes that have taken place, then the judicial authorities will come to his defense. As a result, the employee is reinstated and paid compensation. This concerns moral damage and downtime. The amount depends on the specific situation.

Thus, the legislation does not contain a direct prohibition on the transfer of an open-ended employment agreement to a fixed-term one. In this case, you must follow the established rules.

Transfer of an employee to a fixed-term employment contract upon layoff

The procedure for reducing the personnel of an organization obliges employers to offer existing vacancies to employees before canceling employment agreements, even if the work carried out there will be of an urgent nature. Transfer to such positions is carried out using one of the methods discussed above. In case of dismissal of an employee without granting the right to transfer, subject to availability in the company, the employer can be brought to administrative liability through the assistance of a judicial authority.

The transfer of a citizen from an indefinite to a temporary agreement is formalized by the appropriate administrative document.
If the employer carries out this procedure by terminating the primary employment contract with the person and concluding a new fixed-term contract, information about cooperation of a temporary nature is not entered into the work book. If such a mark is made by HR specialists, the employer will be punished for violating the provisions of the Labor Code of the Russian Federation. No rating yet