Fixed-term employment contract after the replacement contract - what are the consequences?

What is the conclusion of a replacement employment contract? After the termination of this contract, is it possible to conclude a fixed-term employment contract with the employee? How to terminate a replacement contract, how long can it last? Will the signed employment contract for a definite period after the replacement contract be legal - and if so, what are the consequences? What can this affect in terms of employee rights in the workplace?

When can a replacement contract be entered into?

A replacement contract may be concluded at the workplace in a situation where a permanent employee is absent from work and his absence is excused. This may be due to, for example:

• take advantage of maternity leave;
• taking advantage of a childcare leave;
• taking advantage of parental leave;
• from being on sick leave and using an allowance or rehabilitation benefit;
• from temporary incapacity to work;
• from unpaid leave granted for a longer period of time.

In such a situation, in order to ensure the continuity, uninterrupted operation of the workplace, the real need to fill a job position, an employment contract may be concluded with another person for the duration of the replacement of a given employee. The replacement employment contract should specify that the employee is employed for a specific employee, in a specific position, and provide information about the objective reasons for concluding such a contract.

How to terminate a replacement contract?

The replacement contract may be terminated:

• with the passage of time for which it was concluded;
• by agreement of the parties;
• unilaterally, subject to the notice period;
• unilaterally, without the notice period.

These are, therefore, the same principles that apply to the termination of any employment contract. Only the period of notice may differ, depending on the length of service in a specific workplace. And so, for employees who are employed for less than 6 months, the notice period is 2 weeks, for more than 6 months - a month, and at least 3 years - 3 months.

Example 1.

Ms Maria was employed on the basis of a replacement contract for Ms Wanda, in a personnel position in a company employing 30 people. The contract was concluded on February 1, 2020, was supposed to last until January 31, 2021. However, Wanda reported to work before taking the maternity leave in full, on October 10, 2020. In this situation, the employer wanted to terminate the contract with Mrs. Maria. However, she did not agree to this, which resulted in the handing over of a statement on the termination of the employment contract with notice. As she has been working for over 6 months, the notice period will be one month. Since the statement was given to her in October, November will be the month of the notice period. The contract will therefore be terminated on November 30, 2020.

How long can the replacement contract last?

There are no restrictions as to its duration in the provisions of the labor law regarding the replacement contract. This is because it is justified by the period for which the replacement is required, for how long the employee will be replaced absent from work. It may happen that the contract is initially concluded for, for example, 3 months, but it will be necessary to extend it. This may be justified by continuing to remain on sick leave, extending the sick leave, and the replacement worker will still be needed by the employer.

Fixed-term employment contract after the replacement contract - is it legal?

There are no legal restrictions against entering into a fixed-term employment contract after the replacement contract. What's more, an employee can also be hired under an employment contract for an indefinite period, the decision on this subject rests with the employer.

It often turns out that the replacement employee is doing very well, meets the employer's requirements, achieves good results at work, which justifies his continued employment. The enterprise may also develop and therefore it is necessary to employ more than one person in the same position. Then the employee will be replaced by another person doing the same job. Start a free 30-day trial period with no strings attached!

Fixed-term employment contract after the replacement contract - what are the consequences?

As a rule, pursuant to Art. 251 § 1 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 these contracts shall not may exceed three.

This would mean that if the replacement employment contract were included in these contracts, it could not be concluded for a period longer than 33 months, and that if, for example, the replacement contract lasted 30 months, then the employment contract for a definite period of time it could be concluded for only 3 months. There are exceptions to this general rule of 33 months or three consecutive employment contracts. This does not apply to fixed-term employment contracts:

1. to replace an employee during their justified absence from work,
2. in order to perform occasional or seasonal work,
3. in order to perform work during the term of office,
4. if the employer indicates objective reasons on his part

- if their conclusion in a given case serves to satisfy the actual periodic demand and is necessary in this respect in the light of all the circumstances of the conclusion of the contract.

That is why it is so important for the employer to indicate in the employment contract information about the objective reasons for concluding this contract. If it is justified, and the replacement contract is not an apparent fixed-term contract, then it is possible to conclude fixed-term employment contracts after the expiry of the period for which it was concluded. The limit of these contracts is 3 and their total duration is 33 months and is not included in this period of employment under a replacement contract.

Example 2.

Ms Maria was employed under a contract to replace another employee for the period from January 1, 2017 to December 31, 2018. Therefore, she was employed by the employer for 24 months. After this time, the employer wants to employ her under a fixed-term employment contract for another year - from January 1, 2019 to December 31, 2019. Although Mrs. Marta would be employed under fixed-term contracts for 36 months, the employer's action is correct. Until then - 33 months or 3 consecutive employment contracts - fixed-term employment contracts to replace an employee during their justified absence from work are not included. It is important that the conclusion of a replacement contract in a specific case serves to meet the actual periodic demand and is necessary in this respect in the light of all the circumstances of concluding this contract.

Another consequence of concluding a fixed-term contract after the replacement contract is that the employee's work experience with the employer includes the duration of employment under the replacement contract. This, in turn, affects the notice period for a given employer, which is related to the period of employment in a specific workplace.

Additionally, there is no need for the employer to re-report such an employee to social and health insurance at ZUS.

When does a fixed-term employment contract become an open-ended employment contract?

A fixed-term employment contract becomes a contract for an indefinite period if:

• the number of fixed-term employment contracts between the same employee and employer will exceed 3,
• the total duration of employment of an employee with one employer exceeded 33 months.

Every fourth fixed-term employment contract, even if the total period is 10 months, will be an employment contract for an indefinite period.

Fixed-term employment contract after the replacement contract - summary

The conclusion of a replacement employment contract must contain information about the objective reasons for concluding this contract.

After a replacement employment contract, it is possible to conclude a fixed-term contract with the same person. In such a situation, the employer is not bound by the provisions that transform the contract with the employee into an employment contract for an indefinite period after 33 months respectively, or when it is the fourth employment contract between the parties. The employment contract for the duration of the replacement will not be counted.

The employment contract for the period of replacement will, however, count towards the employee's length of service with the employer, which in turn will affect the length of the notice period in a given workplace.

The employer will not have to report to the Tax Office and the Social Insurance Institution the person he will employ immediately after the employment contract as a replacement for a fixed-term employment contract.