Fixed-term employment contract with deputy manager
In these cases, the employer can only enter into a fixed-term employment contract with the employee. It is not possible to establish an employment relationship for an indefinite period. The second group of cases is when the term of the contract is determined by voluntary agreement of the parties. This is possible if a fixed-term employment contract is concluded with certain categories of employees (part two of article 59 of the Labor Code of the Russian Federation, paragraph 2 of paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2). For example, with age pensioners entering work, part-time workers, heads of organizations, etc. In this case, concluding an employment contract for a certain period is a right, not an obligation, for the employer and employee. The desire to conclude a fixed-term contract must be expressed by both parties. Otherwise, after dismissal, the employee may go to court, claiming that he was pressured when concluding the contract.
General Audit Department on the issue of extending the employment contract with the manager
Answer In accordance with Article 58 of the Labor Code of the Russian Federation, employment contracts can be concluded:
1) for an indefinite period;
2) for a certain period of not more than five years (fixed-term employment contract), unless a different period is established by this Code and other federal laws.
By virtue of part two of Article 59 of the Labor Code of the Russian Federation, a fixed-term employment contract
by agreement of the parties,
it can be concluded with managers
, deputy managers and chief accountants of organizations, regardless of their legal forms and forms of ownership;
Article 275 of the Labor Code of the Russian Federation establishes that in the case when, in accordance with part two of Article 59 of this Code, a fixed-term employment contract is concluded with the head of an organization, the validity period of this employment contract is determined by the constituent documents of the organization or by agreement of the parties
.
Thus, from the content of Articles 59 and 275 of the Labor Code of the Russian Federation, we can conclude that both a fixed-term employment contract and an employment contract for an indefinite period can be concluded with the head of an organization.
At the same time, according to paragraph 1 of Article 40 of Law No. 14-FZ[1], the sole executive body of the company
(general director, president and others) is elected by the general meeting of the company's participants for a period determined by the company's charter, if the company's charter does not include the resolution of these issues within the competence of the board of directors (supervisory board) of the company. The sole executive body of the company may also be elected not from among its participants.
An agreement between the company and the person performing the functions of the sole executive body of the company is signed on behalf of the company by the person who chaired the general meeting of the company’s participants, at which the person performing the functions of the sole executive body of the company was elected, or by a participant in the company authorized by the decision of the general meeting of the company’s participants, or , if the resolution of these issues falls within the competence of the board of directors (supervisory board) of the company, the chairman of the board of directors (supervisory board) of the company or a person authorized by a decision of the board of directors (supervisory board) of the company.
From these norms it is concluded that an employment contract with the general director of an LLC can only be concluded for a certain period. In this case, the period must be defined in the company's charter.
Thus, if, in accordance with the charter of the LLC, the term of office of the general director is set at one year, then by virtue of Article 40 of Law No. 14-FZ, the general director of the company must be elected every year.
In this case, a fixed-term employment contract for a period of 1 year must be concluded with the general director.
Let us note that there is another point of view, according to which an employment contract for an indefinite period can be concluded with the head of an organization.
It is based on the fact that the norm of Part 2 of Article 59 of the Labor Code of the Russian Federation provides the right, but does not oblige, to conclude a fixed-term employment contract with the manager.
The possibility of concluding an open-ended employment contract with the manager is confirmed by Rostrud (Letter RT 08.12.08 No. 2742-6-1).
In our opinion, the question of the type of employment contract (fixed-term or indefinite) concluded with the head of the Organization should be determined by the Charter. In the situation under consideration, the Charter stipulates that the appointment of a general director is made annually.
In this case, in our opinion, a fixed-term employment contract for a period of 1 year should be concluded with the general director.
Upon expiration of its term, it is terminated (Article 79 of the Labor Code of the Russian Federation). Moreover, by virtue of Article 79 of the Labor Code of the Russian Federation, the employee must be warned in writing about the termination of an employment contract due to the expiration of its validity period at least three calendar days before dismissal, with the exception of cases when the term of a fixed-term employment contract concluded for time of performance of duties of the absent employee.
The extension of a fixed-term employment contract with the general director by concluding an additional agreement to it is not provided for by the norms of the Labor Code of the Russian Federation.
Accordingly, in the situation under consideration, when extending the powers of the general director, it is necessary to conclude a new employment contract with him for the period determined by the organization’s charter, subject to the prior procedure for terminating the employment contract.
This conclusion is confirmed by Letter of Rostrud dated 08.12.08 No. 2742-6-1 (clause 2):
“In accordance with Article 275 of the Labor Code of the Russian Federation, in the case when, in accordance with part two of Article 59 of the Code, a fixed-term employment contract is concluded with the head of an organization, the validity period of this employment contract is determined by the constituent documents of the organization or by agreement of the parties.
Thus, in contrast to the previous version of Article 275 of the Code, which provided for the conclusion in all cases of a fixed-term employment contract with the head of the organization, the new version of this article, in conjunction with Part 2 of Article 59 of the Code, establishes that with this category of employees contracts can be concluded as follows: employment contracts for an indefinite period and fixed-term employment contracts
. In the situation described in the letter, the organization’s charter provides for the conclusion of a fixed-term employment contract with the general director.
As a general rule, the current labor legislation, while allowing the conclusion of a fixed-term employment contract in cases established by law, does not provide for the possibility and procedure for its re-registration and extension.
An exception is established only for certain categories of workers in a special section XII of the Code: for pregnant women - Article 261 of the Code, as well as for teaching staff - Article 332 of the Code. In addition, when concluding an employment contract with certain categories of employees, preceding procedures may be established.
Taking into account the above, we believe that when concluding a fixed-term employment contract, there are no legal grounds for extending the fixed-term employment contract for a new term without terminating the previous contract (with registration in accordance with the law, making an entry in the work book).
In particular, upon expiration of the employment contract, it must be terminated under paragraph 2 of part one of Article 77 of the Code with the corresponding entry being made in the employee’s work book.
The termination of an employment contract is completed in accordance with Article 84_1 of the Code.
Upon dismissal (including under paragraph 2 of part one of Article 77 of the Code), the employee is paid monetary compensation for all unused vacations (Article 127 of the Code).
In the future, a new fixed-term employment contract may be concluded with this employee if there are appropriate grounds for its conclusion. In this case, as a general rule, an order for employment should be issued and the corresponding entry about employment under a new fixed-term employment contract should be made in the work book.”
A similar opinion is contained in the Letter of Rostrud dated 04/07/08 No. 838-6-1.
Summarizing the above, we can draw the following conclusions:
In the situation under consideration, a fixed-term employment contract is concluded with the head of the Organization.
for the period established by the Charter (1 year).
When the manager’s powers are extended, this employment contract is terminated and a new contract is concluded.
.
The following procedures are performed:
— the general director is notified against signature no later than 3 calendar days before the termination of the contract about the upcoming dismissal (Article 79 of the Labor Code of the Russian Federation);
— a general meeting of participants is held (or a meeting of another body authorized by the Organization’s Charter to make decisions on the election of the General Director), following which a decision is made to extend the powers of the General Director;
— an order is issued to terminate the employment contract with the general director (Article 84.1 of the Labor Code of the Russian Federation);
— an entry is made in the work book about the termination of the employment contract under clause 2 of part 1 of Article 77 of the Labor Code of the Russian Federation (Article 66 of the Labor Code of the Russian Federation);
— compensation is calculated and paid for unused vacations during the period of validity of a fixed-term employment contract (Article 127 of the Labor Code of the Russian Federation);
— the hiring of a newly elected manager is formalized (new fixed-term employment contract, hiring order, entry in the work book).
College of Tax Consultants, May 20, 2020
[1] Federal Law No. 14-FZ dated 02/08/98 “On Limited Liability Companies”
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Fixed-term employment contract with Deputy General Director
The record of the name of the organization is not numbered. Under the heading in column 1, enter the serial number of the entry being made (9), and in column 2 - the actual date of hiring (10). In column 3 they write: “Accepted or assigned to such and such department, workshop, etc.
d. for such and such a position / to perform such and such work” (clause 3.1
In the header of the personal card (form No. T-2) in the column “Nature of work” indicate “temporarily”, since the employee was hired under a fixed-term employment contract. In Section III “Hiring, transfers to another job,” the entry made in the work book is repeated.
The employee must be familiarized with this entry against signature (clause 12 of the Rules for maintaining and storing work books).
Common mistakes
Error: The employer did not indicate in the contract what powers are vested in the deputy director of the LLC.
Comment: The employment contract must definitely indicate what rights, responsibilities and powers are vested in the deputy director, since he does not always receive the same level of clearance as the general director.
Error: The organization hired a deputy director without first inquiring about his qualifications in the Ministry of Internal Affairs of the Russian Federation.
Comment: Before hiring an employee so important for the enterprise, it is necessary to familiarize yourself with the information about him contained in the database of the Ministry of Internal Affairs of Russia - perhaps the employee has been disqualified.
Drawing up an employment contract with the deputy director
A fixed-term employment contract must indicate the circumstances or reasons that served as the basis for its conclusion. The reason is prescribed in accordance with the wording of the Labor Code or other federal law (para.
4 hours second art. 57 Labor Code of the Russian Federation) (4). If this is not done or a reason is given that is contrary to the law, regulatory authorities may consider that a fixed-term employment contract was concluded illegally. In this case, the State Labor Inspectorate will bring the employer to administrative liability (Article 5.27
Code of Administrative Offenses of the Russian Federation). The court will be able to recognize a fixed-term contract as indefinite if the employee applies. If the contract was concluded in accordance with the second part of Article 59 of the Labor Code, the agreement of the parties is indicated as the reason.
Make sure it is mutual and voluntary. This will help avoid charges of discrimination in the future.
Documents for creating and running a business
Due to the absence of a direct indication of the law on the mandatory conclusion of a fixed-term employment contract with the head of an LLC or JSC , as well as taking into account the organizational and legal form of the employing organization (LLC or JSC) and the content of the constituent documents of the employing organization, the term of the employment contract with the manager is determined as follows :
- it is necessary to determine whether the constituent documents of the employing organization directly (for example, it is stated that the contract is concluded for a specific period) or indirectly (for example, the term of the contract can be determined based on the period for which the manager is appointed or elected) the term of the employment contract with the head of this organization ;
- if the term of the employment contract with the manager is determined from the constituent documents (for example, the charter of an LLC or JSC states that the general director is elected for a 3-year term), then the employment contract with the manager can be concluded for a period not exceeding this period (for example, if despite the provision of the charter on a 3-year term, by decision of the authorized body of the organization the manager is elected for 5 years, an employment contract for 5 years cannot be concluded, since such a decision contradicts the charter);
- if there is no direct or indirect indication of the term of the employment contract with the head of the organization in the constituent documents, then it is necessary to determine whether there is an indication of the term in the decision of the authorized body of the organization on the election or appointment of a manager, since such a decision is the basis for concluding an employment contract for the period specified in decision deadline; As a rule, before making this decision, the period is discussed with the candidate for the position of manager, i.e. there is an agreement between the parties;
- if the decision of the authorized body of the organization on the election or appointment of a manager contains an indication of the period for which the manager is elected or appointed, then the employment contract is concluded for this period;
- if in the decision of the authorized body of the organization on the election or appointment of a manager there is no indication of the period for which the manager is elected or appointed, then it is necessary to determine whether there is a relationship between the candidate for the position of manager (i.e. potential employee) and the employer or his authorized representative (for example , a person authorized in accordance with the law or the constituent documents of the organization to sign an employment contract with the manager) agreement on the period for which the employment contract is concluded;
- if there is an agreement on a period and this period is limited in time (i.e. a specific period is discussed), then a fixed-term employment contract is concluded for the period agreed upon by the parties; it is necessary to take into account that although Part 1 of Art. 58 of the Labor Code of the Russian Federation, a fixed-term employment contract is characterized as a contract for a certain period of no more than five years, followed by a clause, unless a different period is established by the Labor Code of the Russian Federation and other federal laws; as noted above, part 1 of Art. 275 of the Labor Code of the Russian Federation allows for a fixed-term employment contract to be concluded with the head of an organization for a period determined by agreement of the parties;
- if there is no agreement on the period , then an open-ended employment contract is concluded (i.e., a contract for an indefinite period), since according to Part 3 of Art. 58 of the Labor Code of the Russian Federation, if the employment contract does not stipulate its validity period, then the contract is considered concluded for an indefinite period.
Employment contract with deputy director - sample
Vacation for the second and subsequent years of work can be granted at any time of the working year in accordance with the vacation schedule.4.5. For family reasons and other valid reasons, the Employee, based on his written application, may be granted leave without pay for the duration established by the labor legislation of the Russian Federation and the Internal Labor Regulations.
5. Rights and obligations of the employee 5.1. The employee is obliged: 5.1.1. Carry out your official duties conscientiously.5.1.2.
Reviews
The Employee's wages are paid by issuing cash at the Employer's cash desk or by transferring to the Employee's bank account twice a month, in accordance with the internal labor regulations.3.7. Deductions may be made from the Employee's salary in cases provided for by the legislation of the Russian Federation.
Working hours and rest schedule4.1. The employee is assigned a five-day work week with two days off - Saturday and Sunday.4.2. Work start time: hours, minutes.4.2.1. Work completion time: hours, minutes.4.3.
During the working day, the Employee is given a break for rest and food from hours, minutes to hours, minutes, which is not included in working hours.4.4. The employee is granted annual paid leave of 28 calendar days.4.4.1.
Fixed-term employment contract with deputy manager
The Employee’s labor duties are not related to the performance of heavy work, work in areas with special climatic conditions, work with harmful, dangerous and other special working conditions.1.6. The employee reports directly to the head of the Company. 2. Duration of the employment contract 2.1. The employee must begin to perform his work duties from " " 201_.2.2. This agreement is a fixed-term agreement and is valid until " " 201_2.3. The basis for concluding a fixed-term employment contract is. 3. Remuneration of the employee 3.1. For the performance of labor duties, the Employee is set an official salary in the amount of () rubles per month. 3.2. The employer establishes incentives and compensation payments (additional payments, allowances, bonuses, etc.).
Agreement with the director: general conditions
- place of work of the director;
- the employee’s labor function, i.e., an indication that the employee performs the duties of a director of an LLC (the job responsibilities of the director can be specified in the job description);
- the date from which the director must begin work;
- working conditions of the director in the workplace. Based on Federal Law No. 426-FZ dated December 28, 2013, these conditions are indicated based on the results of an assessment of working conditions;
- the amount and procedure for paying wages and other payments to the director, the working hours established for this employee, as well as rest time;
- employer's obligations for compulsory social insurance of the director;
- the validity period of the contract when concluding a contract for a specific period (paragraph 8 of part 2 of Article 59 of the Labor Code of the Russian Federation). The duration of the contract is determined by the charter, or other constituent documents of the enterprise, or by agreement between the employee and the employer (Article 275 of the Labor Code of the Russian Federation).
Fixed-term employment contract with deputy director
The director is the first person of the company. He is responsible for the decisions made, the results of the organization’s work and the safety of property. Due to the need to sign a lucrative contract, he may go on business trips.
Or, just like any person, get sick or go on vacation. During the absence of the director, his duties are performed by the deputy director.
How to correctly draw up an employment contract with a deputy general director? Employment contract with a deputy director, sample Sample employment contract with a deputy director of an LLC download For what period can a contract be concluded? Most often, a contract with a deputy is concluded for an indefinite period. But, according to Article 59 of the Labor Code of the Russian Federation, a fixed-term employment contract with a deputy director can also be drawn up if there are grounds provided for by the Labor Code of the Russian Federation.
Employment contract form
The deputy director is an ordinary employee, but with an expanded range of duties and greater responsibility. As a rule, a proven person who understands all the nuances of leadership work is selected for this position.
The contract with this employee is drawn up according to the general rules: in writing, in two copies. It specifies the same conditions as in the contract with other employees of the organization:
- employee's work function;
- work and rest time;
- amount of remuneration for labor;
- date and place of signing;
- employer details;
- employee data;
- validity period of the TD and start date of work.
The document is signed by both parties to the legal relationship.
Also, when concluding a TD with a deputy, an agreement on non-disclosure of confidential information may be signed with him.
Fixed-term employment contract with deputy director sample
For example, use the wording “a fixed-term employment contract was concluded by mutual voluntary agreement of the parties as with a person applying for a part-time job.” Procedure for granting leave. As a general rule, employees who have entered into a fixed-term employment contract are provided with paid leave at the rate of at least 28 calendar days per working year (Article 115 of the Labor Code of the Russian Federation). If an employee has worked for less than a year, the duration of vacation is calculated in proportion to the time worked. For each month, the employee is entitled to 2.33 days of vacation (28 days: 12 months). A non-integer number of vacation days is rounded in favor of the employee, and not according to the rules of arithmetic. Employees hired for a period of up to two months or to perform seasonal work are provided with paid leave or paid compensation upon dismissal at the rate of two working days per month of work (Articles 291, 295 of the Labor Code of the Russian Federation).
Fixed-term employment contract with Deputy General Director
Exercise other rights provided for by the current legislation of the Russian Federation, other regulatory legal acts containing labor law norms, and local regulations of the Employer. 7.2. The employer is obliged: 7.2.1. Comply with the legislation of the Russian Federation, local regulations of the Employer, and the terms of this Agreement. 7.2.2. Provide the Employee with work stipulated by this Agreement. 7.2.3. Provide the Employee with a workplace, equipment, tools, documentation, reference and information materials and other means necessary for the proper performance of his job duties. 7.2.4.
By order of the Employer, go on business trips in Russia and abroad.5.2. The employee has the right to: 5.2.1. Providing him with work stipulated by this fixed-term employment contract.5.2.2.
Timely and full payment of wages in accordance with their qualifications, complexity of work, quantity and quality of work performed.5.2.3. Rest, including paid annual leave, weekly days off, non-working holidays.5.2.4.
Compulsory social insurance in cases provided for by federal laws.5.2.5. Other rights established by the current legislation of the Russian Federation.5.3. Job responsibilities of the Employee: 5.3.1. Assumes management of the current activities of the Company during the absence of the General Director for any reason for the period of validity of this fixed-term employment contract.5.3.2.
The deputy director was fired on a fixed-term contract
The employee with equipment, tools, technical documentation and other means necessary to perform his job duties; — pay the full amount of wages due to the Employee within the time limits established by this agreement; — familiarize the Employee, against signature, with the adopted local regulations directly related to his work activity;
— provide for the Employee’s everyday needs related to the performance of his job duties; — carry out compulsory social insurance of the Employee in the manner established by federal laws; — compensate for damage caused to the Employee in connection with the performance of his job duties, as well as compensate for moral damage in the manner and under the conditions established by the current legislation of the Russian Federation; 2.5. The employee undertakes not to hold leadership positions in other commercial organizations. 2.6.
Comply with the internal labor regulations and other local regulations of the Employer.5.1.3. Maintain labor discipline.5.1.4. Comply with labor protection and occupational safety requirements.5.1.5. Treat the property of the Employer and other employees with care.5.1.6. Immediately inform the Employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the Employer’s property.5.1.7.
Do not give interviews, do not hold meetings and negotiations regarding the activities of the Employer, without prior permission from management.5.1.8. Do not disclose information that constitutes a trade secret of the Employer.
Information that is a trade secret of the Employer is defined in the Regulations on Trade Secrets of the Employer.5.1.9.
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