According to the Labor Law (“Law“), an employment contract may be concluded for a fixed period of time, for the purpose of establishing an employment relationship whose duration is determined in advance by the objective reasons justified by the deadline or performance of a particular job or occurrence of a particular event. The employer may conclude one or more such employment contracts establishing an employment relationship with the same employee for a period which, intermittently or without interruption, must not exceed 24 months. When calculating the limitation of the fixed-term employment duration, a break shorter than 30 days is not considered an interruption in the period of limitation of the fixed-term employment duration of 24 months.
Consequently, the lexical interpretation of this provision of the Law, as well as numerous opinions of the Ministry of Labor, Employment, Veterans and Social Affairs (“the Ministry“), tell us that an employer can establish an employment relationship with the same employee for the same or different jobs for the duration which, with interruptions (if longer than 30 days) or without them, regardless of the specific time interval between the two employment relationships, can be a maximum of 24 months. Thus, for example, the Opinion of the Ministry number 011-00-947/2014-02 as of 1.12.2014 indicates the following:
The employer may conclude one or more fixed-term employment contracts with the same employee for a maximum of 24 months (with or without interruptions) and after the expiration of that period may not re-establish a fixed-term employment relationship with that employee (regardless of the lapse of time of 30 days or longer), but only for an indefinite period of time (“Opinion“).
However, the question arises as to whether this restriction applies only to employment relationships from fixed-term employment contracts that are successively concluded, or whether this applies in general to the possibility of concluding fixed-term employment contracts, and what was the actual legislator’s intention in this respect. The basic question is whether this provision restricts the employer from employing the same person, if that person has worked for the employer for 24 months, then had a break in the employment relationship of, say, 6 or 12 months (working for another employer, going abroad, absence from work, etc.), and the employer after that period wants to hire them again for a fixed period of time.
The question is, what if:
- The employer is a company operating in a small town where the workforce supply is not large,
- The employees establish a fixed-term employment with the employer and work for him during the autumn and winter months, and with the arrival of spring for personal reasons terminate the employment relationship with the employer (e.g. go abroad for seasonal work or to another employer to take the opportunity of earning more money during the summer/season),
- At the end of the summer/season, employees return and turn to the employer to re-establish the employment relationship with him, as they have done before, in order to earn some income during the autumn and winter months, knowing that with the arrival of spring they will leave the employer again to perform seasonal or better paid jobs.
Thus, what if the employees “accumulated” 24 months of work with the employer through such a nomadic mode of working, and they turn to him again to work for a fixed period of time until the new season, when, as before, they will terminate employment and go to work abroad and/or for another employer in order to do better paid jobs?
In such cases, is the employer authorized to establish a fixed-term employment relationship with the employees, as he has done until that point?
According to the lexical interpretation of the provision of the Labor Law regarding fixed-term employment, and in accordance with the text of the Opinion, the employer should not establish a fixed-term employment relationship with that employee, but only employment for an indefinite period of time.
However, we believe that a simple lexical interpretation of the provision was not the intention of the legislator, and that the Opinion should be interpreted in such a way that it refers to a situation where the employer and employees successively conclude fixed-term employment contracts, because such implementation, in addition to not being fair, actually goes to the detriment of both employers and employees.
Namely, in principle, the employer will always decide to hire a worker who already has “proven” work experience with him. Also, employees will always decide to return to the employer with whom they have a positive experience, so a simple linguistic interpretation of this provision (without going into the essence and purpose of the provision itself) is harmful for both contracting parties, namely:
- for the employer who would be prohibited from re-employing a “proven” worker for a fixed period of time whom he had already hired for a fixed period of time (24 months) and whose employment was terminated after which he worked for another employer or abroad for a certain period (several months),
- for the employees who, by such interpretation of the provisions, would be deprived of the possibility of fixed-term employment with a verified employer who again had a temporary need for additional engagement due to increased workload, and only because they had previously worked with that employer for 24 months.
The opposite interpretation of the provision in our example forcibly pushes the employer and the employee to establish an employment relationship for an indefinite period of time, although this is not the real intention of either of the contracting parties.
The following arguments also suggest that the opinion and interpretation of this provision exclusively through its lexical meaning is a wrong approach to the norm:
- The transformation of the employment relationship into an indefinite period of time is a consequence of the continuous work of employees on the same jobs with the employer, which indicates the continuity of his need to perform those jobs, while in this case there is no such continuity. On the contrary, in our example there is a significant discontinuity of the employment relationship of employees with the employer.
- The law and case law treat all fixed-term employment contracts that are successively concluded during the employment of each employee with employer as a single fixed-term employment contract. In this particular case, each employee, regardless of the fact that he collected a total of 24 months with the employer, concluded several employment contracts with the employer between which there was a break of more than 30 days, which were legally terminated, after which each of those employees worked for another employer and/or worked abroad, and later returned to the “old” employer. Therefore, there is no continuous work of these employees with the employer.
- Then, according to the logic of things, we look at this situation in a way that the employer had an increase in workload, which was the reason for hiring employees for a fixed period of time (24 months), after which the employees terminated their employment with the employer to go to another employer or to work abroad. The employees then established an employment relationship with another employer where they worked for a significant period of time, e.g. 6-24 months and their employment was terminated, while the employer again had a fixed-time need to re-hire these workers due to a temporary increase in the volume of work.
The above means that in a potential lawsuit of the employees against the employer, which would seek the transformation of employment into an indefinite period, the court should not ignore the existence of a substantial discontinuity of employment of these employees with the employer in the previous period.
Moreover, any different interpretation of the norm concerning the establishment of a fixed-term employment relationship would be too restrictive and to the detriment of both parties, so certain adjustments are necessary in order to adapt the interpretation of this legal provision to various life situations, such as employee turnover and migration.
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