POSITION OF A TEMPORARY WORKER REPLACING THE DECREATED

This possibility falls under the grounds for concluding a fixed-term employment contract provided for in par. 2 part 1 of Article 59 of the Labor Code (LC), according to which "for the duration of the duties of an employee, for whom, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract the place of work is saved contingent employee.

In some organizations, the expiration of such a contract is often associated with the onset of a specific date. In fact, fixed-term employment contracts are terminated with the onset of a certain event, namely the release of the main employee to work (part 3 of Article 79 of the Labor Code).

By prescribing such provisions in the contract, the employer thereby creates an extra headache for the future. The temporary worker reasons as follows: "The contract says that it is valid until April 15, 2009. Therefore, if I was not fired after that date, then my contract has become indefinite."

In the current legislation, there is no such thing as maternity leave. As a result, it turns out that the employee can only mean maternity leave by it, and the employer including parental leave.

As a result, a conflict may arise between the employer and the employee hired under a fixed-term employment contract.

Who is right?

According to the first point of view, with the end of the period specified in a fixed-term employment contract, its validity period expires. Indeed, according to Article 58 of the Labor Code, in the case when none of the parties demanded the termination of a fixed-term employment contract due to its expiration and the employee continues to work, the condition of the urgent nature of the employment contract becomes invalid and the employment contract is considered concluded for an indefinite period. And if the period is over, the fixed-term employment contract has ended.

Let's consider the situation.

A fixed-term employment contract was concluded with a woman for the period of maternity leave of another employee. The employer and the employee did not agree on what it was. The woman believed that after the main employee, without leaving work after maternity leave, took parental leave, her employment contract was transformed into an indefinite one. When the main employee returned, her replacement employee was fired.

The court, examining the case and identifying whether there was a transformation of the employment contract, considered that it was necessary to establish what maternity leave was. Maternity leave is a name sometimes used in everyday life for maternity leave. The court recognized the fact of transformation of a fixed-term employment contract into an unlimited one.

This is not an entirely correct solution to the question.

Firstly, part 3 of Article 79 of the Labor Code directly provides that the employment contract concluded for the duration of the performance of the duties of the absent employee terminates with the release of this employee from vacation. The Labor Code itself connects the end of a fixed-term employment contract not with the end of the period specified in the employment contract, but with the exit of the main employee. Moreover, according to the Labor Code, it does not matter whether it came out earlier or later.

Secondly, the current labor legislation, as a general rule, does not provide for the extension of a fixed-term employment contract. Therefore, if one is of the opinion that his term expires with the end of the corresponding period, then the employer must dismiss the temporary employee, and the next day he must be hired again for a new period. Moreover, such periods can last for several days.

Thirdly, the purpose of concluding a fixed-term employment contract with a temporary worker is to replace the main employee; circumstances - absence from work of the main employee, preservation of the place of work for the main employee. If the circumstances and purpose have not changed, then there is no need to talk about the expiration of the employment contract, even if it contains specific dates that have long passed, or periods that smoothly flowed into new ones.

Consequently, the term of an employment contract with a temporary employee does not end with the end of the period specified in the contract, but with the release of the main employee.

If the temporary worker also got pregnant?

If the main employee goes to work while her replacement pregnant employee is still working, then some global problems should not arise. In this case, according to Article 261 of the Labor Code, at the request of the woman and upon presentation of the relevant medical certificate, the employer must extend the term of the employment contract until the end of the pregnancy. At the same time, if the employment contract was concluded for the duration of the duties of the absent employee and it is impossible to transfer the woman before the end of her pregnancy to another job available to the employer, then dismissal is allowed.

And if the main employee did not leave during the pregnancy of another employee, but already during her period of being on parental leave?

Some experts believe that it is possible to fire a temporary replacement employee, despite the fact that she is on parental leave. Firstly, a fact-event has occurred, and secondly, it is prohibited to dismiss an employee during his temporary incapacity for work or while on vacation only if the employment contract is terminated on the initiative of the employer. Accordingly, if the employer did not dismiss the temporary worker while she was on parental leave, then her fixed-term employment contract is transformed into an unlimited one.