We conclude a fixed-term employment contract during the absence of the main employee (+ Template of a fixed-term employment contract (during the absence of the main employee)

As you know, an employment contract can be:

1) open-ended, concluded for an indefinite period;

2) for a specified period, established by agreement of the parties;

3) such that it is agreed upon during the performance of certain work.

When a fixed-term employment contract is concluded

A fixed-term employment contract is concluded in cases where the employment relationship cannot be established for an indefinite period, taking into account the nature of the next job, or the conditions of its performance, or the interests of the employee, and in other cases provided for by legislative acts ( Article 23 of the Labor Code ).

Therefore, a fixed-term employment contract is concluded:

- for a specified period upon agreement of the parties

- during the performance of certain work

- in other cases provided by law

Importantly! Since according to Part 2 of Art. 23 of the Labor Code, an employment contract for a fixed term is concluded only in the case when employment relations for an indefinite term cannot be established taking into account the nature of the work or the conditions of its performance, or the interests of the employee (for example, his wishes), or in other cases provided for by legislative acts, the conclusion of an employment contract for a specified period in the absence of the specified conditions is the basis for declaring it invalid in terms of determining the term (paragraph 3 , paragraph 9 of the Resolution of the Plenum of the Supreme Court of Ukraine "On the practice of consideration of labor disputes by courts" N9 dated 06.11.9 2 ).

And is it possible to conclude a fixed-term employment contract for the duration of the main employee's military service?

According to Part 3 of Art. 119 of the Labor Code , for employees called up for fixed-term military service, military service by conscription of officers, military service by conscription during mobilization, for a special period, military service by conscription of reservists in a special period, or accepted for military service by contract, including by concluding a new contract for military service, during the validity of the special period for the period before its end or until the day of actual release, the place of work and position at the enterprise, institution, organization, farm, agricultural production cooperative are preserved, regardless of subordination and forms of ownership and at individuals - entrepreneurs, in which they worked at the time of the draft. Such employees are paid financial support at the expense of the State Budget of Ukraine in accordance with the Law of Ukraine "On Social and Legal Protection of Servicemen and Members of Their Families" .

The Ministry of Social Policy of Ukraine in its letter "Regarding employees called up for military service" dated 06.10.2015 N 231/06/186-15 clarified that the norm of Art. 119 of the Labor Code stipulates that the employment relationship between the employer and the employee is preserved, and the employee is only released from the performance of production or official duties, while the labor legislation does not establish restrictions for the employer regarding the replacement of a position during the temporary absence of the main employee.

But, in the future, the question arises, what period to specify in such a fixed-term employment contract? After all, it is known that without specifying the term, the contract will be considered open-ended, and it is impossible to predict how long the main employee will defend the state.

What can be the term of the employment contract

As stated in clause 7 of the Resolution of the Plenum of the Supreme Court of Ukraine "On the practice of consideration of labor disputes by courts" N9 of 06.11.92 , when concluding an employment contract for a certain period, this period is established by the agreement of the parties and can be determined both by a specific period and by the time of the occurrence of a certain event (for example, the return to work of an employee from leave for pregnancy, childbirth and child care; a person who resigned from work in connection with being called up for active military or alternative service, being elected as a people's deputy or to an elected position (or fulfilling a certain amount works).

Features of the release

The most obvious reason for dismissal is Clause 2 of Art. 36 of the Labor Code , where it is stated that the grounds for termination of employment are the expiration of the term ( paragraphs 2 and 3 of Article 23 ), except for cases when the employment relationship actually continues and none of the parties has made a demand for their termination.

Importantly! The dismissal of pregnant women and women with children under the age of three (up to six years - part six of Article 179 ), single mothers with a child under the age of fourteen or a child with a disability at the initiative of the employer is not allowed, except in cases of complete liquidation of the enterprise, institution , organizations, when dismissal with mandatory employment is allowed. Mandatory employment of these women is also carried out in cases of their dismissal after the end of a fixed-term employment contract. For the period of employment, the average salary is kept for them, but not more than three months after the end of the fixed-term employment contract ( Article 184 of the Labor Code ).

A fixed-term employment contract can be terminated at the initiative of the employee on the basis of Art. 39 KZpPP . Thus, a fixed-term employment contract ( paragraphs 2 and 3 of Article 23 ) is subject to premature termination at the request of the employee in the event of his illness or disability, which prevents the performance of work under the contract, violation by the employer of labor legislation, a collective or labor agreement, and in the cases provided for in part one Article 38 of this Code .

On the basis of Part 1 of Art. 38 of the Labor Code , the employee has the right to terminate the employment contract concluded for an indefinite period by notifying the employer in writing two weeks in advance. In the case when the employee's application for resignation is caused by the impossibility of continuing work (moving to a new place of residence; transfer of a husband or wife to work in another area; admission to an educational institution; impossibility of living in a given area, confirmed by a medical opinion; pregnancy ; care for a child until he reaches the age of fourteen or a child with a disability; care for a sick family member according to a medical opinion or a person with a disability of the I group; retirement; hiring by competition, as well as for other valid reasons). the employer must terminate the employment contract within the period requested by the employee.

A fixed-term employment contract can be terminated at the initiative of the owner on the basis of Art. 40 and Art. 41 KZpPP.

Other features of a fixed-term employment contract

Disputes about early termination of the employment contract are resolved in the general procedure established for consideration of labor disputes (Part 2, Article 39 of the Labor Code).

If after the expiration of the term of the employment contract ( paragraphs 2 and 3 of Article 23 ) the employment relationship actually continues and none of the parties demands its termination, the validity of this contract is considered to be extended for an indefinite period. Employment contracts that have been renegotiated one or more times, with the exception of the cases provided for by the second part of Article 23 , are considered to be concluded for an indefinite period ( Article 39-1 of the Labor Code ).

You can create a fixed-term employment contract (during the absence of the main employee ) in the Instaco designer by following the link . To create, you only need to enter the necessary data in the designer.

A short-term employment contract (during the absence of the main employee ) was prepared by attorney Natalya Krasnokutska (Instagram @advocate_knn , Facebook instaADVOCATE ) .

The lawyer conducts legal consultations on issues of business support:

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• by e-mail [email protected]