I’m writing it as it is because I’m confused. We hired a specialist while she was on maternity leave, and a few months later we transferred her temporarily to the position of head of the same department. Now we want to transfer this employee permanently to the position of specialist, and leave the temporary transfer to the position of manager. Is this option possible and how to do it? And one more thing: A specialist is hired for the duration of another specialist who is on maternity leave, after a while the maternity leave ends, but we have another place where the employee is on maternity leave at a later date. Is it possible to transfer this employee to that maternity leave by additional agreement? How can everything be documented correctly without violating the Labor Code?
Answer
Answer to 1 question: I’m writing it as it is because I’m confused. We hired a specialist while she was on maternity leave, and a few months later we transferred her temporarily to the position of head of the same department. Now we want to transfer this employee permanently to the position of specialist, and leave the temporary transfer to the position of manager. Is this option possible, and how to do it?
A fixed-term employment contract can be made indefinite, since the Labor Code of the Russian Federation provides for the possibility of such a change. To do this, conclude a contract in which you indicate the condition that the contract is concluded for an indefinite period, and then, based on the agreement, issue the corresponding document.
Since it is necessary to make a fixed-term contract indefinite for the first position for which the employee was hired - a specialist position, and now the employee is temporarily occupying another position, we believe that you should first stop the temporary transfer and provide the employee with his previous job, enter into an agreement with him that the contract becomes indefinite, and after that (you can even the next day) again arrange a temporary transfer to the position of manager.
Answer to question 2: A specialist is hired for the duration of another specialist who is on maternity leave, after some time the maternity leave ends, but we have another place where the employee is on maternity leave at a later date. Is it possible to transfer this employee to that maternity leave by additional agreement? How to document everything correctly without violating the Labor Code?
No you can not.
A fixed-term employment contract is concluded with a temporary employee for the duration of the duties of one absent employee, who retains his place of work. That is, the newly hired employee must perform job duties one specific employee during his absence. A fixed-term employment contract concluded with such a temporary employee is subject to termination when the absent employee returns to work. Consequently, it is impossible to immediately conclude one fixed-term contract with a temporary employee to replace several permanent employees who will alternately be on vacation.
This conclusion follows from the provisions of Part 1 of Article 59 and Article 79 of the Labor Code of the Russian Federation.
To formalize temporary work in such a situation, the employer should work with the temporary worker sequentially - first to replace one employee, then another. Moreover, after each permanent employee returns to work, the employer will need to work with a temporary employee and enter into a new one, on a new basis.
Details in the materials of the Personnel System:
1. Answer: What documents need to be drawn up if a fixed-term employment contract was not terminated at the end of its validity period and became indefinite?
Nina Kovyazina
If a fixed-term employment contract was not terminated in a timely manner - intentionally or due to oversight, then it is recognized as indefinite. That is, imprisoned for an indefinite period.*
Since the term is a mandatory condition of the contract, this fact can be documented. To do this, conclude a contract in which you indicate the condition that the contract is concluded for an indefinite period, and then, based on the agreement, issue the corresponding document. Rostrud also gives such recommendations.
Attention: if a fixed-term employment contract was not terminated in a timely manner and the employee continues to work, then such a contract will be considered unlimited-term by default, even if the employer does not draw up an additional agreement to the contract to change the term ().
Temporary transfer by written agreement
How to temporarily transfer an employee to another job by agreement of the parties
Record of temporary transfer
Is it necessary to make an entry in the work book about the temporary transfer of an employee to another job?
Do not make an entry about the temporary transfer in the work book, but it can be made in the employee (Rules, approved, instructions, approved).
If temporary work is of a special nature and is important for confirming the employee’s preferential length of service (for example, temporary work as a doctor), then such work experience can be confirmed by a certificate from the employer about the performance of the relevant work, an additional agreement to the employment contract on temporary transfer, etc.
The courts take a similar position. See, for example,.
Example of registration of temporary transfer of an employee to another job
A.V. Lampochkin works as an electrician for the organization. In November 2008, an accident occurred - the warehouse building collapsed.
During the period of liquidation of the consequences of the accident, Lampochkin was transferred to replace a temporarily absent employee for a less qualified job (appointed as a watchman). The duration of the temporary transfer is 14 calendar days (from November 13 to November 26 inclusive). The employee agrees with the transfer. The corresponding entry was made on the transfer. The manager issued a transfer notice.
Lampochkin’s days of work as a watchman were paid based on his average earnings from his previous job - 552.60 rubles/day. During the temporary transfer, the employee worked 10 working days. Therefore, Lampochkin was accrued:
RUB 552.60/day × 10 days = 5526 rub.
Termination of temporary transfer
How to formalize the termination of a temporary transfer
After the end of the transfer period, it is advisable to issue an order to provide the employee with the previous job, since if at the end of the transfer period the employee’s previous job is not provided, and he did not demand its provision and continues to work, the condition of the agreement on the temporary nature of the transfer loses force and the transfer is considered permanent (). Such an order does not have a unified form, so draw it up in .
If the condition of the agreement on the temporary nature of the transfer has lost force and the transfer is considered permanent, then to document this situation it is recommended to draw up a new agreement between the employee and the employer regarding the change in the nature of the transfer and issue a corresponding document. Among other things, you will need to make records of the permanent transfer to and employee (approved).
It should be taken into account that if, upon completion, it is impossible to provide him with his previous job, then he must be ().
Ivan Shklovets,
Deputy Head of the Federal Service for Labor and Employment
3. Answer: Is it possible to hire an employee under a fixed-term employment contract at once to replace several employees who are alternately on vacation?
Nina Kovyazina, Deputy Director of the Department of Education and Human Resources of the Russian Ministry of Health
No you can not.
A fixed-term employment contract is concluded with a temporary employee for the duration of the duties of one absent employee, who retains his place of work. That is, a newly hired employee must perform the job duties of one specific employee during his absence. A fixed-term employment contract concluded with such a temporary employee is subject to termination when the absent employee returns to work. Consequently, it is impossible to immediately conclude one fixed-term contract with a temporary employee to replace several permanent employees who will alternately be on vacation. with a temporary worker - as the relevant main workers go on vacation. Moreover, after each permanent employee returns to work, the employer will need to
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Employees of institutions can receive temporary status for a number of reasons. One of them is replacing another specialist in a position if he went on administrative leave, etc. But the former employee can. In this case, the question will certainly arise of how to transfer a previously accepted person from a temporary position to a permanent job. The procedure does not imply a complex scheme of actions. It is not necessary to draw up a statement asking to be fired, and then follow it with a demand to be hired again. However, there are some nuances that are worth considering. They are related to paperwork.
Transfer from a temporary position to a permanent one according to the Labor Code of the Russian Federation
Assumes certain requirements. A fixed-term employment contract may become invalid if neither the employee nor the employer has previously requested termination of the document due to its expired date. At the same time, the specialist continues to perform his functions after the contract has expired.
Attention
After a fixed-term employment contract has expired, it automatically becomes concluded for an indefinite period.
Additional agreement will be required. It will indicate that the contract is of unlimited duration, and the work changes in nature from temporary to permanent.
Required documents
- List of documents required to obtain permanent employment status within the organization:
- Application from a specialist with a request to apply for a permanent position. It should be written before the temporary contract expires. The document is drawn up in the name of the first person of the company.
An order to transfer an employee from temporary to permanent work, issued on the basis of an application. It contains the following information:
-type and reasons for re-registration;
- initials of the specialist;
-previous and new places of employment;
- - number, date of signing and completion of the previously concluded labor document.
- New agreement. It must reflect the position, salary, rights and obligations. Drawed up in two copies. Signed by both parties and sealed with the company's seal.
- Job description. You will also need a note in the work book indicating the position, date and order number.
For your information There is an alternative way of registration - to terminate the temporary contract. But in this case the period of service is interrupted.
A new order, card, file will be required. This procedure is a necessary measure. They resort to it only when the necessary papers for re-registration for permanent work have not been prepared before the expiration of the temporary document.
All documents require signatures of both parties and are certified by the seal of the organization.
Order to transfer an employee to permanent work
The order to transfer an employee to permanent work has a unified form No. T-5. The form, taking into account the specialist’s consent given in writing, is filled out by an employee of the HR department.
Step-by-step translation instructions The specificity of the procedure for transferring an employee to a permanent job is that it can be carried out both within the organization and with a transfer to another employer. For an external one, you will need to leave one employer and apply for employment with another.
Step-by-step instructions.
- For external re-registration the new employer draws up a written application using the full name of the head of the previous institution where the employee is employed. The invitation indicates the specialist’s initials, his position, as well as the date of planned admission to the new organization. The letter is assigned a number and date, it is certified by the seal of the institution and signed by the director.
- The current boss is writing a letter to the future boss. This is followed by the answer - the consent of the new manager, certified by signature and seal.
- Notification of an external transfer to a permanent job is provided at least 8 weeks before the procedure. The employee's written consent will be required. In it, he will have to indicate that he is familiar with the text of the notification.
- The dismissal-transfer order is drawn up with reference to. The document is certified by the seal and signature of the manager. In addition, the employee also signs it.
- Part of the procedure ends with an entry in the labor report about dismissal and transfer to another institution. After this, the fired person receives money against payment and his personal card is closed.
- The specialist who has received the book draws up an application with demands to accept him for permanent employment, and a contract is concluded with him that does not imply a probationary period. An order document on admission to a position through transfer from another institution is also generated. A new personal card is issued.
- For internal re-registration The specialist is notified in writing about the procedure for transferring an employee from temporary to permanent work two months before the start of preparation. The employee confirms consent with a dated signature or statement.
- An additional agreement to the contract is concluded taking into account the changed responsibilities. Based on the agreement, an order is created. The position, initials, transfer department, and salary amount are discussed.
- The relevant data is recorded in the work book.
Transfer of an employee from a permanent job to a temporary one
The placement of a temporary employee occurs with reference to. According to its requirements, a fixed-term contract is drawn up with the employee, implying a certain period of validity.
Translation stages.
- The applicant draws up an application letter with an assigned serial number addressed to management personnel.
- Copies of the documents of the future temporary worker are taken - passport data, SNILS, INN, diploma. A driver's license and medical record may be required.
- An acceptance order is issued. In the “conditions” line, “temporarily” is written with the dates indicated. Signed by both parties.
- An urgent labor document is drawn up, which specifies the rights, responsibilities and nature of employment. If it is intended to temporarily fill the place of the main specialist, then the initials of the main person are indicated. The payment procedure and working hours are prescribed. In certain cases, a fixed-term contract requires additional agreements. Usually we are talking about situations where key personnel extend their vacation for various reasons.
- The temporary worker’s personal file is completed and a personal card is created.
Nuances
The nuances of re-registering a temporary specialist for a permanent job are important for those who want to minimize the number of errors. You need to know the exact wording of the terms of the Labor Code of the Russian Federation, as well as the process of drawing up documents, the number of required samples and other information.
- Transfer is an appointment to a specific position that requires consent from the employee.
- The agreement on re-registration includes the main points of the procedure, is drawn up in two copies, signed by both the employee and the manager.
- The transition period is the time period during which this procedure occurs. Negotiated individually with the employee.
- An employment contract reflects data on rights, responsibilities, and salary.
Transfer to another job is a fairly common personnel procedure. However, this entire process is clearly regulated by labor law. Knowing the legal requirements for completing a transfer will help you avoid litigation with employees. It will also help minimize the risk of fines from regulatory authorities. This article discusses the reasons for the need to change the labor function of employees and the procedure for action in this case. Attention is also paid to the preparation of documents when transferring to work with another employer.
Read our article:
The concept of transfer to another job
The employee’s position specified in his employment contract upon its conclusion does not remain unchanged. Business needs, increased skill levels, or personnel changes may necessitate the transfer of an employee.
The difference between transfer to another job and relocation
In Art. 72.1 of the Labor Code of the Russian Federation gives the concept of transfer to another job. It can be expressed as follows:
- change in labor function;
- change of structural unit, if it is specifically indicated in the employment contract;
- moving with the employer to another locality.
That is, this procedure does not always mean a change in the position; it may remain the same. A distinctive feature of the transfer will be a change in the key terms of the employment contract.
It is this fact that necessitates the need to obtain the employee’s written consent. Hiring and transfer to another job are possible only by agreement of the parties. Otherwise it will be a violation of the law.
If there is a need to assign an employee to work on another unit (machine, car, device, computer, etc.), but the duties do not change, then this is no longer a transfer, but a transfer.
The same applies to a change in structural unit, if it is not specified in the employment contract, change of workplace or location within the same area.
Transfer to another job and relocation differ from each other in their impact on the terms of the employment contract.
Let's look at examples:
1. In the employment contract A. It is said that she was accepted as a teller in branch No. 1 of Bank C. The expansion of the geography of service made it necessary to appoint her, as an experienced employee, to the newly opened branch No. 10 for the same position as a teller. This is a transfer because one of the terms of the employment contract is changing. And to carry it out, A’s consent is required.
2. Fitter B. changed workshop No. 2 to workshop No. 4, located on a neighboring street, at the request of management, but remained in his previous position specified in his employment contract. This is a displacement, since nothing has changed for B. other than his position in space. Consent for such a change is not required.
Types of transfers to another job
Changes in labor functions are usually classified on various grounds. Each variety has its own design features. It is important to take them into account when drawing up documents.
Internal and external transfers
Translation can be internal or external. In the first case, the employee remains in the same organization, even if the structural unit or locality where his workplace is located has changed. The procedure for personnel registration in this case will be general; we will consider it below.
External will be a move to another position in another organization. In fact, this is a private type of dismissal.
Initiative and forced transfers
The basis for proactive changes in labor functions will be:
- the desire of the employee himself,
- employer's order
- or a petition from the trade union committee.
The reason for the manifestation of initiative is the opening of vacancies, production needs, or the desire of the manager to contribute to the career growth of his subordinate.
Changes in labor functions are forced if the law insists on them. For example, in the case of medical contraindications. Or, if the result of the certification does not give the employee the right to occupy the position specified in the employment contract. In this case, both the employee and the employer are subject to the requirements of the law.
Transfers permanent and temporary
The employee's function can be changed permanently. But sometimes a temporary change in function is required due to production needs.
The difference will be not only in the time frame, but also in the order of registration. The maximum period for a temporary change in function is one year. After which the employee returns to his previous position.
Some changes may only be temporary. For example, for the so-called “light labor” for a pregnant woman. After the end of her maternity leave, she should be returned to her previous position.
Scheduled and emergency transfers
The decision to transfer is usually made within a certain period of time. The employer and employee weigh all its pros and cons. Moreover, the law requires the employer to provide advance warning in the event of, for example, layoffs. But there are situations when a transfer order is issued urgently.
For example, in the event of a natural or man-made emergency. Or in cases where it is necessary to urgently save the employer’s property from damage.
Transfer to another job with or without the employee’s consent
As a general rule, a person’s consent, expressed in writing, is strictly mandatory. Without it, it is impossible to constantly change the employee's responsibilities.
But there are a number of exceptions when the employer does not require the consent of employees. They are set out in Art. 72.2 Labor Code of the Russian Federation. It refers to a short-term change, up to 1 month, in cases of preventing or eliminating the consequences:
- natural disasters (floods, tsunamis, earthquakes, hurricanes, etc.);
- man-made accidents;
- accidents;
- fires;
- hunger;
- epidemics or epizootics.
If the specified circumstances occur that threaten the life, health or safety of a large number of people, the grounds for a temporary change in job functions without the employee’s consent are:
- simple;
- the need to prevent damage or destruction of material assets;
- replacing a temporarily absent employee.
Transfers within or outside the same area
The locality in which the employing enterprise is located also refers to the key terms of the employment contract. And his change means a transfer for the workers.
Therefore, the employer is obliged to notify employees of such changes in advance. For those who agree to move, a change of place of work is formalized. Within the same locality, the transfer is associated with a change in position, or with a change in the structural unit where the employee’s workplace is located.
Temporary transfer of an employee to another job
A change in an employee’s job function is possible for a short period of time. The law sets it equal to a year under normal conditions and a month in the event of various emergency circumstances.
Temporary transfer to another position, for obvious reasons, is possible only within one organization. As with a permanent change in job responsibilities, a person's position or place of work may change.
A change is impossible even temporarily if the new job poses a threat to the employee’s health and is prohibited by a medical certificate.
In this case, the contract will not be renewed. Instead, an additional agreement is drawn up.
This means that with such a transfer a probationary period cannot be established. It is only possible during initial employment. But such an agreement must include a condition regarding the duration of its validity. This can be either a specific date or a certain condition, for example, an absent employee returning to work.
As a general rule, this type of change is made by mutual agreement of the parties to the labor relationship. Moreover, the employee must express it in writing. But in extreme circumstances, written consent should only be obtained when a job is offered that requires lower qualifications and pays less.
Such a change, even if it is important for the employee’s career growth, is not reflected in his work record. But in the future, at the request of the employee, he may be given a copy of the transfer order, confirming the fact of working in another position, albeit for a short time. The second order, to return the employee to his previous position, is not necessary.
If the transfer period has expired and the previous position has not been provided, and the employee himself does not express a desire to take it, he becomes permanent. The agreement on its temporary nature is considered invalid.
This gives rise to the employer’s obligation to supplement the work book with a corresponding entry. The transfer date is considered to be the one from which it was actually carried out.
Transfer to another job for medical reasons
One of the most common cases of mandatory changes in work function is the state of human health. When an employee presents a medical report, the employer immediately becomes obligated. It is necessary to immediately prevent the employee from performing work that is contraindicated for him due to health reasons.
A change in work function for medical reasons can be not only temporary, but also permanent. But in any case, this requires the consent of the employee. Presentation of a medical document is not such. Agreeing to a transfer is an employee’s right, not an obligation.
But first, the employer must decide what to do with that employee. It all depends on how long the health restrictions arose and whether there are suitable vacancies in the organization.
If there are any, the employer can immediately offer them. It is advisable to do this in writing. The employee can express his consent or refuse the offer.
In case of refusal, or if there is no suitable job at the moment, the employer has two options:
- . But this is only possible if a change in the nature of the work is required for no more than 4 months. For the entire period of suspension, the employee does not appear at the workplace, and his wages are not accrued, although his position is retained. The time of suspension is not included in the length of service that gives the right to leave.
- Terminate the employment relationship with such an employee. Article 77 of the Labor Code of the Russian Federation provides for a similar basis for termination of a contract. Upon dismissal, severance pay is paid. Its size, according to Art. 178 of the Labor Code of the Russian Federation is equal to the average salary for 2 weeks.
A change in position in this case also causes a change in salary. And, as a rule, to a lesser extent.
An exception is provided for a pregnant woman or mothers whose child is under 1.5 years old. If her production standards are reduced or she works in a lower position, she retains the average earnings for her previous position (Article 254 of the Labor Code of the Russian Federation).
Transfer to another job in another organization
Dismissal by way of transfer to another job is possible either at the request of the employee himself or with his consent. The main differences from moving within an organization will be:
- extremely permanent nature of job changes;
- termination of the employment contract.
According to the employee, his new employer draws up an official request on company letterhead for the manager at his previous place of work. It can be sent by mail, but most often the employee attaches it to his application for transfer to another position in another organization.
With the consent of the manager, he signs the application. Based on the resolution, an order is drawn up in form T-8. The date of dismissal in it and in the employee’s application must match. After signing the order and familiarizing the employee with it, entries are made in the work book and personal card, a calculation and the necessary documents are issued.
In fact, this is no different from voluntary dismissal. Except for three small nuances:
- the basis for dismissal in the work book will be indicated in clause 5 of Art. 77 of the Labor Code of the Russian Federation, which can have a beneficial effect on future employment.
- an employee hired by transfer cannot be given a probationary period;
- when reinstating (for example, through the court) a person who previously held this position, the employee invited in writing cannot be dismissed on the grounds of Art. 83 Labor Code of the Russian Federation.
The employer has the right to refuse a transfer if he is not satisfied with the method of dismissal or its date. This is reflected in the resolution to the application. In this case, the employee has the opportunity to resign at his own request or.
Transfer to another job in the same organization
Transfer to another job in one organization usually implies a change in position. The case when the position simply changes its name (for example, manager - manager) will not be considered a transfer.
The department specified in the employment contract may change. Sometimes it is possible to work simultaneously and at places of work.
A less common case of internal transfer is a change in the legal address of the employer. But not any, but only if it occurs in another area, in other words, in another populated area.
The position and department do not change, but since one of the main conditions of the employment contract is affected, this is considered a translation of Art. 72.1 Labor Code of the Russian Federation).
In this case, the initiator can be the employee himself. For example, if a position with a higher salary or more convenient work schedule becomes available. For example, if a position with a higher salary or more convenient work schedule becomes available.
In this case, a statement is written to the head of the organization. It should reflect the name of the desired position and the reasons why the choice should be made on the applicant.
The transfer offer may also come from the employer. Typically this is a senior position. But there are also opposite situations. For example, if, based on the results of certification, the employee did not show a very good result. Or in cases where the reason for the change is a medical report.
Any change in job functions within the organization requires written consent from the employee. With the exception of temporary transfers, which are carried out in emergency situations.
An employee’s refusal will not be a violation of discipline; it is a right that he exercised. Therefore, the employer under normal conditions has no grounds for imposing disciplinary sanctions. Although under certain conditions, refusal to transfer may ultimately lead to dismissal
Under normal conditions, termination of an employment contract, that is, dismissal, does not occur upon transfer to another job. Labor relations continue, albeit under new conditions. The registration process consists of several stages strictly regulated by law. Let's look at each of them in more detail.
The procedure for transferring an employee to another job
We offer step-by-step instructions on how to transfer an employee to another job. If it is carried out and the documents required at each stage are carefully prepared, neither the employee nor the inspection authorities will have any complaints about the legality of the procedure.
Step 1. Showing initiative.
It can come from both the employer and the employee himself. Documentation of this stage is not necessary; the parties can express their wishes orally. But, as a rule, a written proposal follows from the employer, and consent from the employee to transfer to another job comes in the form of a statement.
Step 2. Familiarize the employee with the new job descriptions and other local regulations relating to his new job.
The employee signs about his reading of the regulatory documents in a special journal or familiarization sheets for each document.
Step 3. Signing an additional agreement.
Since we are talking about changes occurring at the same employer, the employment contract on transfer to another job. The contract is not terminated, which would mean dismissal.
Step 4. Issuing an order.
It is the order that will be the basis for making changes to all other documents, including accounting ones. It clearly indicates the reason for the change in labor functions and its duration.
Step 5. Familiarization of the employee with the order.
The fact that the order has been read is recorded with the employee’s personal signature. A copy can be handed over to him. If an employee refuses to read and sign the order, then a report is drawn up about this. It, along with a copy of the order, is kept in the personal file.
Step 6. Making appropriate entries in the Personal Card (form T-2) and work book.
These records are made by the employee responsible for maintaining books and cards based on the order. At this point the translation can be considered complete.
Registration of transfer to another job
During this procedure, a number of documents are drawn up. Since we are talking about changes to the main document regulating the relationship between employer and employee - the employment contract, it is worth approaching the preparation of all documents with special care.
Otherwise, the employee himself or the inspection authority will have doubts about the legality of this procedure.
The main documents to be completed by the HR department will be:
- assumption of transfer if the initiative comes from the employer;
- job descriptions for the employee to review;
- order for transfer to another position (this is the main document);
- employee's personal card;
- work book if the change is permanent.
Proposal for transfer and agreement to it
A formal written offer from an employer usually includes a description. A job description may also be attached. The notification receives an originating number and is logged.
The employee must express his consent in writing. This may be a “I agree” note, certified by a signature and date on the proposal itself. Or an application for transfer to another position, a sample of which can be obtained from the personnel service. The application is registered in a special journal and then stored in the employee’s personal file.
Additional agreement for transfer to another job and order
The additional agreement is an integral part of the employment contract. Transfer to another position does not terminate an employment contract or additional agreement concluded earlier; this means dismissal and has completely different grounds and legal consequences. The newly concluded agreement specifies the new position and the period for which the employee will hold it.
Additionally, the agreement is the basis for issuing an order for transfer to another position, sample 2017. Among the unified forms of personnel documents, it is presented as form T-5.
The use of personnel document templates approved by Goskomstat for organizations is no longer mandatory. However, this will allow personnel records to be maintained in full compliance with the requirements of the law.
Entries in the work book and personal card
This procedure is completed by making entries about him in the work book and personal card. The number of the transfer order is indicated as the basis in both documents. An entry in the work book is made after the entry into employment. It includes the date, an indication of the position to which the employee was transferred or the name of the structural unit. The record is certified by the seal of the organization. There is no need to introduce it to the employee against signature.
Refusal of an employee to transfer to another job
The legal requirement to obtain written consent from a person for translation has a number of consequences. In particular, if the employee does not agree to change his job function, department or locality, and the employer does not have the opportunity to continue the employment relationship with him on the same terms, then most likely they will have to part ways.
The grounds for dismissal in such a situation may be:
- mutual consent (clause 1 of article 77 of the Labor Code of the Russian Federation);
- the employee’s own desire (clause 3 of Article 77 of the Labor Code of the Russian Federation);
- refusal to change the terms of the contract (clause 7 of Article 77 of the Labor Code of the Russian Federation and Article 74 of the Labor Code of the Russian Federation);
- refusal to transfer for medical reasons (clause 8 of article 77 of the Labor Code of the Russian Federation);
- refusal to move with the organization (clause 9 of Article 77 of the Labor Code of the Russian Federation and Article 72.1 of the Labor Code of the Russian Federation);
- staff reduction (clause 2 of Article 81 of the Labor Code).
Transferring an employee is an absolutely normal practice accepted all over the world. It consists of changing the initial terms of the employment contract regarding the employee’s position or place of work. The reason and type of translation largely determine how.
Failure to comply with the procedure established by labor legislation or negligence in the preparation of documents may lead to the recognition of a transfer or dismissal if it is refused as illegal. The dismissed employee will be reinstated, and the employer will pay him legal expenses, forced absenteeism and compensation for moral damage.
An exceptional case when the employer may not ask the employee’s consent would be emergency circumstances. But such a change can only be short-term, no more than a month.
All changes, regardless of the reasons and deadlines, are formalized by order. It is published on the basis of an additional agreement concluded with employees. The employment contract is not terminated in this case.
An exception is the transfer of an employee to another employer. Information about permanent changes in job functions must be entered into the personal card and work book.
Based on production needs, the employer can arrange a temporary or permanent transfer of an employee to another job. With some exceptions, the employee’s consent to the transfer is required.
From the article you will learn:
Such changes in the conditions of the labor function can drown not only individual specialists, but also an entire structural unit. Transfers can be temporary or permanent.
The procedure for permanently transferring an employee to another job
The procedure for registering a permanent transfer of an employee to another job depends on the type of transfer. According to the Labor Code of the Russian Federation, permanent transfers can be:
- to another job or position with the same employer;
- to work in another area with the same employer;
- to another employer.
All permanent transfers to another job are possible only with the consent of the employee, usually obtained in the form of a written application. However, other methods are also allowed, for example, drawing up a transfer agreement with the employer. The main thing is that any consent for translation must be obtained in writing.
Due to the fact that the transfer changes the conditions of the employee’s labor function, it is advisable to sign a new employment contract with him. The order issued by the employer to transfer the employee to another job is communicated to the employee against signature within three days.
When is a temporary transfer to another job possible?
Temporary transfer of an employee to another job is possible in several provided legislation options.
Temporary transfer to another job for a period of up to one year by agreement of the parties, concluded in writing.
Transfer of an employee to replace another temporarily absent employee, who, in accordance with the law, retains his place of work until this employee returns to work.
A feature of transfers 1 and 2 is that if, after the specified period of transfer, the previous job employee was not provided, and no application was received from him to provide it, while he continues to work and perform his new job functions, then the condition of the agreement on the temporary nature of the transfer loses force and the transfer from that moment is considered permanent.
Translation in case force majeure:
- natural or man-made disasters,
- industrial accident,
- epidemics or epizootics,
- fire,
- industrial accident,
- floods,
- earthquakes
- hunger,
- and other exceptional cases that threaten the life or normal living conditions of the entire population or part of it.
If such circumstances occur, the employee may be temporarily transferred to another job without his consent for a period of up to one month to work not provided for by the employment contract with the same employer in order to prevent force majeure events or eliminate their consequences.
With such transfers, the salary of the involved employee is calculated according to the new functions performed, but it cannot be lower than the average earnings for the previous job.
Transfers to another job due to health reasons
- If an employee needs, in accordance with a medical report, a temporary transfer to another job.
- An employee, in accordance with a medical report, who needs to be transferred to another job, with his written consent, the employer is obliged to transfer to another job available at the enterprise that is not contraindicated for the employee due to health reasons. The transfer is temporary and is allowed for a period of up to four months.
- If an employee, for medical reasons, needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then with his written consent he must be transferred to another job available at the enterprise that is not contraindicated in the health report. If the employee refuses such a transfer or there is no corresponding activity at the enterprise, the employment contract, in accordance with clause 8 of Part 1 of Art. 77 Labor Code, terminated.
- Temporary transfer of pregnant women to another job that excludes exposure to unfavorable production factors, while maintaining the average earnings for their previous job.
How to draw up an additional agreement when transferring an employee to another job
When transferring an employee to another job, an additional agreement to the main employment contract must be drawn up. There is no unified form of this document approved by law. Therefore, each organization develops its own free form, according to which an additional agreement is drawn up in 2 copies.
This agreement must include the following details:
- type of this document;
- place of its compilation;
- employer details (company name, address, telephone);
- passport details of the transferred employee.
The document itself sets out the main provisions of the agreement: the position held by the employee, current working conditions, including the size wages, if the translation is temporary, its duration must be indicated.
One of the common types of temporary transfer to another job is a transfer due to the absence of the replaced employee. The reason for such absence may be leave, including maternity leave, temporary disability, or business trip.
In this case, the additional agreement provides for the execution of a temporary transfer for an unspecified period (more than a year). With this option, the agreement does not indicate the end date of the transfer, but uses the following wording: “until the replacement/absent employee leaves.”
The transfer agreement is printed in duplicate and signed by both parties. Next, it is registered in the enterprise’s document journal and one of the copies of the agreement is given to the employee, the second remains with the clerk. The employee must leave a note indicating receipt of an additional agreement to the employment contract.
How to draw up an order to transfer an employee to another job
After the parties sign the additional agreement, the employer issues an order or order to transfer the employee to another job. This documentation is drawn up according to the T-5 and T-5a standards established by regulatory documents. The order must contain the following information:
- name of previous and new place of work;
- the amount of the new salary;
- the start and end dates of the employee’s work activity, if the transfer to another job is temporary.
If the order for a temporary transfer does not have an end date, in this case it is necessary to register the event, upon the occurrence of which the transfer period will end. The order is issued on the basis of an additional agreement concluded between the employee and the employer. On the part of the enterprise, the document is signed by the director or other authorized person.
An employee of an enterprise is subject to the rules established by the management and legislation of the Russian Federation. Sometimes an employer obliges an employee to temporarily change his job to replace another employee or perform increased volumes of work. Employees should know when these requests are reasonable and not subject to challenge, and when the proposed conditions are illegal (as is the case with recalls from work-related leave).
Transfer of an employee to another job without his consent under the Labor Code
The Labor Code of the Russian Federation regulates the possibility of transferring employees to another job temporarily or permanently. Most of the conditions specified in the Labor Code of the Russian Federation require written consent from the employee. But cases are indicated in which a transfer to another place should not be agreed upon.
Transfers can be justified on various grounds, for example:
- Replacement of a temporarily departing employee.
- By necessity.
- Environmental and natural disasters.
- Man-made accidents.
- Changing the type of activity of the enterprise.
In any case, the employee must be notified of the decision made by management and has the right to disagree with it. When the employee's mandatory consent is not required to be provided, such non-consent may result in temporary suspension from work.
Is it possible to transfer to another job without the employee’s consent?
In certain cases specified by law, it is allowed to move an employee to another place, but this measure must be limited in time and the following conditions must be met:
- Strict adherence to permitted time periods.
- Maintaining the employee’s salary level is not lower than average.
- Do not transfer an employee to a place of work that is not permitted for him according to a doctor’s examination.
The employer has the right to transfer the employee to another place, with a deterioration in his work schedule or a change in working conditions in cases specified in Art. 72.2 for one month and no more.
When transferring to a similar job, you should adhere to time periods equal to one year. The end of this period should be marked by the candidate’s relocation back, and if such a request is not received from him, or the employer cannot offer him a former vacancy, the temporary position is exhausted and becomes a permanent place of work.
In what cases can an employee be transferred to another job without his consent?
Cases in which the transfer takes place without the consent of the hired person are listed in the Labor Code of the Russian Federation.
This list includes:
- The provided workplace is located structurally and geographically in the same place. Only the division, department, address changes. Working conditions and pay remain unchanged. Significant changes in job responsibilities or pay require the employee's consent. This transfer is issued on a temporary or permanent basis.
- Does not require consent in emergency situations. But such a transfer has a strict duration of one month.
- To prevent damage to valuable property or to temporarily replace an employee, but with the condition that this work will not be less qualified and will last no more than a month.
Temporary transfer to another job without the employee’s consent
A temporary transfer is often issued without the consent of the employee if it is necessary to replace an absent person in another structural department. The hired person is reassigned to work within the organization, provided that all main responsibilities and functions remain the same, with the same salary. You can transfer to another place for up to a year. If an employee is transferred to replace another person during his absence, provided that his place is retained, the transfer period lasts until the replacement leaves.
How to transfer an employee to another job without his consent - procedure
To transfer an employee to another place, it is necessary:
- Determine the requirements that must be met by a hired person who will fill the specified position temporarily or permanently. This includes the required health status, deadlines, and salary.
- Provide conditions under which it is impossible to transfer a person to another place.
- Notify the selected candidate orally.
- Place an order.
- Familiarize the candidate with the order.
The only insurmountable obstacle to moving to a new place can be health contraindications, officially recorded. Therefore, when movements are permitted by law, the selected candidate often cannot refuse the offered place.
