Extension of the contract until the date of delivery in the context of the limits of fixed-term contracts

Pursuant to Art. 251 § 1 and 2 of the Labor Code, the period of employment under a fixed-term employment contract, as well as the total period of employment under fixed-term employment contracts concluded between the same parties to the employment relationship may not exceed 33 months, and the total number of such contracts may not exceed three. An agreement between the parties during the term of a fixed-term employment contract for a longer period of work under this contract shall be deemed to be the conclusion, from the day following the day on which it was to be terminated, a new fixed-term employment contract. The question arises - how does the above-mentioned article relate to the protection of the employment relationship in terms of parental functions? The provisions of the Labor Code provide for, in certain circumstances, the extension of the contract until the day of childbirth. What if a pregnant employee has a planned birth after 33 months of a fixed-term contract? Will this contract become an indefinite term contract? The Ministry of Family, Labor and Social Policy answered the question in the negative.

Extension of the contract until the day of childbirth and contracts and the limit of contracts - the Ministry explains

The provision of art. 251 § 1 and 2 of the Labor Code does not apply to the extension of the employment contract until the date of delivery pursuant to art. 177 § 3 of the Labor Code, because this extension takes place by operation of law, and not on the basis of a declaration of will by the parties to the employment relationship, as provided for in this article. Pursuant to Art. 177 § 3 of the Labor Code an employment contract concluded for a definite period or for a trial period exceeding one month, which would be terminated after the third month of pregnancy, shall be extended until the day of childbirth. The provision of art. 177 § 3 of the Labor Code regulates the issue of changing the deadline for termination of a fixed-term employment contract agreed between the parties. Such a change resulting in the extension of the duration of the employment relationship under a fixed-term employment contract takes place, as indicated above, on the basis of a legal provision. Bearing in mind the purpose and function of Art. 251 of the Code of Civil Procedure, as well as the fact that the extension of the employment contract in such a situation takes place regardless of the will of the parties, but by operation of law (automatically), in a situation where, as a result of the extension of the contract until the date of delivery, the limit of 33 months of employment on the basis of contracts for a period of time is exceeded specified, the contract will not be converted into an employment contract for an indefinite period.

Extension of the contract until the date of delivery in the context of limits according to the Legal Department of the Chief Labor Inspectorate

In this case, a position was also taken by the Legal Department of the Chief Labor Inspectorate, which has a similar attitude to this issue and states that:

(...) in connection with the extension of the employment contract until the date of delivery, the period of employment under a fixed-term contract (contracts) for a specified period may be exceeded 33 months. In such a case, however, the contract will not be transformed into an employment contract for an indefinite period. Violation of the above limit will be caused by the application of the mandatory provisions of the Labor Code, and not the result of the parties to the employment relationship. Regulation of Art. 177 § 3 of the Labor Code is of a special nature and its aim is to ensure that the employee remains in employment until the day of giving birth. Thus, it would be contrary to the ratio legis of this provision to find that if the maximum period of employment under fixed-term employment contracts is exceeded due to the obligation to extend the contract until the date of delivery, this contract is transformed into an employment contract for an indefinite period. (...)

Due to the fact that the regulation is fresh and the jurisprudence and doctrine are silent on this issue, any disputes in this matter will be settled in court.

In the event that a pregnant employee will have to extend the contract until the date of delivery, it should be borne in mind that this does not require any additional actions by the parties to the employment relationship. Of course, however, there is no obstacle for the employer to inform the employee in writing that the contract will last until the day of giving birth.

An agreement concluded for a definite period, which is extended until the day of delivery, is terminated on that date by operation of law and it is not necessary to prepare an additional document informing about it.

An employee whose employment contract is terminated on the day of childbirth is entitled to a maternity allowance payable by the Social Insurance Institution.