Transfer of an employee temporarily to another job. How to transfer an employee to another job. The maximum period of temporary transfer to another job

12.12.2019

In this article, we will tell you how to arrange for the personnel officer to transfer employees to another job. Let us consider in detail the following types of transfers: temporary and permanent, at the initiative of the employee and at the initiative of the employer, with the consent of the employee and without obtaining his consent. We will also turn Special attention on the procedure for transferring an employee to work in another area together with the employer.

Rules for transferring to another job

General rules

P transfer to another job - this is a permanent or temporary change in the labor function of an employee or structural unit in which the employee works (if the structural unit was indicated in the employment contract), while continuing to work for the same employer, as well as transfer to work in another area together with the employer (Art. 72.1 of the Labor Code of the Russian Federation). Transfers can be temporary and permanent, at the initiative of the employee and at the initiative of the employer, with the consent of the employee and without his consent.

Note

In this case, structural subdivisions should be understood as branches, representative offices, as well as departments, workshops, sections, etc. (Clause 16 of the decision of the Plenum of the Supreme Court dated March 17, 2004 No. 2).

Please note that transfer to another job is allowed only with the written consent of the employee (Article 72.1 of the Labor Code of the Russian Federation). The exception is some cases of temporary transfer, to which we will pay special attention below. In this case, an agreement to change the terms of the employment contract determined by the parties must be concluded in writing (Article 72 of the Labor Code of the Russian Federation).

Note that the consent of the employee is not required for his transfer from the same employer to another workplace, to another structural unit located in the same locality, entrusting him to work on another mechanism or unit, if this does not entail a change in the terms of the employment contract determined by the parties.

In all cases, it is forbidden to transfer and move an employee to work that is contraindicated for him for health reasons.

Also, at the written request of the employee or with his written consent, it can be carried out.

Please note: in case of recognition of a transfer to another job illegal employee must be restored to the former place of activity. At the same time, the body considering an individual labor dispute makes a decision to pay such a person the difference in earnings for the entire time of performing lower-paid work. Also, the court has the right, at the request of the employee, to make a decision on the recovery from the employer of monetary compensation for moral damage caused by these actions (Article 394 of the Labor Code of the Russian Federation). Moreover, in the event of a delay by the employer in the execution of the decision to reinstate the employee in his previous job, the body that made the decision makes a determination on the payment of the difference in earnings to this citizen for the entire time of the delay (Article 396 of the Labor Code of the Russian Federation).

Permanent translation

In this case, we are talking about a permanent change in the labor function of the employee or the structural unit in which the employee works (if the structural unit was indicated in the employment contract) (Article 72.1 of the Labor Code of the Russian Federation).

Any employee can apply for a transfer (see Example 1).

To process the transfer, form No. T-5 or form No. T-5a (see Example 3) is used, approved by the Decree of the State Statistics Committee of the Russian Federation of 01/05/2004 No. 1 "On approval of unified forms of primary accounting documentation for accounting for labor and its payment" ( hereinafter - Decree No. 1).

Based on the order to transfer the employee to another job, marks are made in the section “Employment, transfers to another job” in the employee’s personal card (form No. T-2 or No. T-2GS (MS)) (see Example 4) and the front invoice (Form No. T-54 or No. T-54a).

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When issuing an order to transfer an employee to another job (form No. T-5, approved by the Decree of the State Statistics Committee of the Russian Federation dated January 05, 2004 No. 1 “On approval of unified forms of primary accounting documentation for accounting for labor and its payment”), personnel officers often have a question: “Which document should be indicated in the line “Reason: change to employment contract from…."? Details of the employment contract itself or details of an additional agreement to the employment contract?

Olga Maksimova,
Head of the Human Resources Department, Burevestnik LLC, Nizhny Novgorod

Answered by Vladimir Pirogov, lawyer at Nikline LLC:

In the line "Basis: change to the employment contract from ..." the details of the supplementary agreement to the employment contract should be indicated. Let's explain our position.

In accordance with Art. 72.1 of the Labor Code of the Russian Federation transfer to another job - a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if the structural unit was indicated in the employment contract), while continuing to work for the same employer, as well as transfer to work to another area with the employer. And the place of work and labor function employee are mandatory terms of the employment contract (Article 57 of the Labor Code of the Russian Federation).

Article 72 of the Labor Code of the Russian Federation states that changing the terms of an employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract, which is concluded in writing.

Therefore, the basis for issuing a transfer order will be an amendment to the employment contract signed by both parties, namely, an additional agreement.

And in accordance with the Instructions for the application and filling out the forms of primary accounting documentation for accounting for labor and its payment, if an employment contract was not concluded with the employee (the employee was hired before 10/06/1992) and his employment is issued by order, with filling unified form No. T-5 on the line "Basis" indicates specific documents on the basis of which the employee will be transferred to another job (application, medical report, memo, etc.), and the requisite "Change to the employment contract" is not filled out.

In accordance with Art. 66 of the Labor Code of the Russian Federation, information on transfers to another permanent job is entered in work book employee (see Example 5). At the same time, the transfer record is drawn up no later than a week on the basis of the relevant order (instruction) of the employer (clause 10 of the Rules for maintaining and storing work books, preparing work book forms and providing employers with them, approved by Government Decree No. 225 dated April 16, 2003, hereinafter - Decree No. 225).

Temporary transfer

In this case, we will talk about a temporary change in the labor function of the employee or the structural unit in which the employee works (if the structural unit was indicated in the employment contract), while continuing to work for the same employer (Article 72.1 of the Labor Code of the Russian Federation). At the same time, temporary transfers to another job are regulated by Art. 72.2 of the Labor Code of the Russian Federation.

So, by agreement of the parties, concluded in writing, an employee can be temporarily transferred to another job with the same employer for up to one year.

Please note: if at the end of the transfer period former job the employee has not been provided, but he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent.

When such a transfer is carried out to replace a temporarily absent employee, for whom, in accordance with the law, the place of work is retained, then it is valid until the employee returns to work.

The procedure for temporary transfers is similar to that for permanent transfers. The exception is that during temporary transfers, an entry in the employee's work book is not made out.

When does translation become mandatory?

Employee-initiated transfer

In some cases, the employee has the right to require the employer to temporarily transfer to another job.

For example, if an employee refuses to perform work in the event of a danger to his life and health, the employer is obliged to provide such an employee with another job while the danger is eliminated (Article 220 of the Labor Code of the Russian Federation).

Pregnant women and nursing mothers cannot be involved in the following work:

In this case, pregnant women, in accordance with a medical report and at their request, are transferred to another job that excludes the impact of adverse production factors, while maintaining the average earnings in the previous job. Until a pregnant woman is given another position, she is subject to release from work with the preservation of the average earnings for all the days missed as a result of this. Meanwhile, women with children under the age of one and a half years, if it is impossible to perform their previous work, they are transferred at their request to another job with wages for the work performed, but not lower than the average earnings at the previous place of activity until the child reaches the age of one and a half years (Art. 254 of the Labor Code of the Russian Federation). Also, pregnant women and women with children under the age of three cannot be involved in work performed by on a rotational basis(Article 298 of the Labor Code of the Russian Federation).

Transfer at the initiative of the employer and due to circumstances beyond the control of the parties

In some cases, labor legislation allows the dismissal of employees only when it is impossible to transfer them to another job available to the employer, which the citizen can perform taking into account his state of health. We are talking here about both vacant positions or work corresponding to the qualifications of the employee, and vacant lower positions or lower-paid work. In this case, the consent of the employee must be obtained. Please note that the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other areas only if it is provided for by the collective agreement, agreements, labor contract (Articles 81, 83 and 84 of the Labor Code of the Russian Federation). We are talking about the dismissal of employees in the following cases:

reduction in the number or staff of employees of the organization, individual entrepreneur(Clause 2, Article 81 of the Labor Code of the Russian Federation);
inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification (clause 3 of article 81 of the Labor Code of the Russian Federation);
reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court (clause 2, article 83 of the Labor Code of the Russian Federation);
disqualification or other administrative punishment, excluding the possibility of the employee fulfilling obligations under an employment contract (clause 8, article 83 of the Labor Code of the Russian Federation);
expiration, suspension for a period of more than two months or deprivation of an employee of a special right (license, right to drive a vehicle, the right to carry weapons, other special rights) in accordance with the law, if this entails the impossibility for the employee to fulfill obligations under an employment contract ( clause 9, article 83 of the Labor Code of the Russian Federation);
termination of access to state secrets, if the work performed requires such access (clause 10, article 83 of the Labor Code of the Russian Federation);
violation of the rules established by law for concluding an employment contract, if this violation was not committed through the fault of the employee and excludes the possibility of continuing work (clause 11, article 77 of the Labor Code of the Russian Federation).

We also remind you that an employee who needs to be transferred to another job in accordance with a medical report, with his written consent, the employer is obliged to transfer to another job he has that is not contraindicated for this citizen for health reasons. Meanwhile, if the specified person needs a temporary transfer for up to four months, refuses to transfer, or there is no corresponding job, then the employer must remove the employee from work for this period while maintaining the place of work (position). However, during the suspension wage the employee is not charged. At the same time, if an employee needs a temporary transfer for a period of more than four months, or permanent translation, then if he refuses to transfer or if the employer does not have the relevant work, the employment contract is terminated in accordance with paragraph 8 of the first part of Article 77 Labor Code Russian Federation (Article 73 of the Labor Code of the Russian Federation).

As a rule, in all the above cases, the employer sends the employee an appropriate notification or proposal to transfer the employee to the vacancies he has (see Example 6).

As a rule, the consent or disagreement of the employee in the transfer is drawn up in a separate document or is prescribed in the proposal for transferring to another job (see Example 7).

We would also like to remind you that according to Art. 74 of the Labor Code of the Russian Federation, in the case when, for reasons related to changes in organizational or technological working conditions, the terms of the employment contract determined by the parties cannot be saved, they can be changed at the initiative of the employer, with the exception of changing the labor function of the employee. Moreover, if the employee does not agree to work in the new conditions, the employer is obliged to offer him another available job in writing. In the absence of the specified work or the refusal of the employee from the proposed work, the employment contract is terminated in accordance with paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation.

In some situations, an employee may be transferred without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer in order to prevent the following cases or eliminate their consequences. We are talking about natural or man-made disasters, industrial accidents, accidents at work, fires, floods, famine, earthquakes, epidemics or epizootics, as well as any exceptional cases that endanger the life or normal living conditions of the entire population or part of it. .

The transfer of an employee without his consent for a period of up to one month to another job is also allowed in cases of downtime, the need to prevent the destruction or damage to property, or to replace a temporarily absent employee, if these situations are caused by the emergency circumstances indicated above. At the same time, transfer to work requiring lower qualifications is possible only with the written consent of the employee himself (Article 72 of the Labor Code of the Russian Federation). Please note that for temporary transfers carried out in exceptional cases, remuneration is made according to the work performed, but not lower than the average earnings at the previous place of employment.

Note

When applying Art. 72.2 of the Labor Code of the Russian Federation, which allows the temporary transfer of an employee to another job without his consent, it should be borne in mind that the obligation to prove the existence of circumstances with which the law associates the possibility of such a transfer rests with the employer (paragraph 17 of the decision of the Plenum of the Supreme Court dated March 17, 2004 No. 2).

The transfer of an employee is also possible for the period of suspension of work due to the suspension of activities or a temporary ban on activities due to violation of labor protection requirements through no fault of the employee. At this time, the employee, with his consent, can be transferred by the employer to another job with wages for the work performed, but not lower than the average earnings at the previous place of activity (Article 220 of the Labor Code of the Russian Federation).

Transfer to another locality

Transfer order

In this case, the employer sends the employee an offer to transfer to work in another locality. Further, the consent or disagreement of the employee is drawn up in a separate document or prescribed in the transfer proposal itself.

With the consent of the employee, changes to the employment contract should be made. This is done through the signing of an additional agreement. To process the transfer, form No. T-5 or form No. T-5a, approved by Decree No. 1, is used. Then, on the basis of the order, marks are made in the employee’s personal card (form No. T-2 or No. T-2GS (MS)) and personal account ( form No. T-54 or No. T-54a).

Note

The arbitrators in paragraph 16 of the decision of the Plenum of the Supreme Court dated March 17, 2004 No. 2 noted that “other locality” should be understood as an area located outside the administrative-territorial boundaries of the corresponding settlement.

Please note that when an employee moves to work in another locality, the employer is obliged to reimburse him for the following expenses (Article 169 of the Labor Code of the Russian Federation):

for the relocation of the employee, members of his family and the transportation of property (except for cases when the employer provides the employee with appropriate means of transportation);
for settling in a new place of residence.

The specific amounts of reimbursement of expenses are determined by agreement of the parties to the employment contract. In this case compensation payments a citizen in connection with his relocation to work in another area is not subject to personal income tax (clause 3 of article 217 of the Tax Code of the Russian Federation) and unified social tax (subclause 2 of clause 1 of article 238 of the Tax Code of the Russian Federation), and can also be included in other expenses ( subparagraph 5, paragraph 1, article 264 of the Tax Code of the Russian Federation). Financiers also agree with this position (letters of the Ministry of Finance dated July 14, 2009 No. 03-03-06 / 2/140 and dated December 17, 2008 No. 03-03-06 / 1/688). At the same time, according to officials, the amounts reimbursed by the organization to a housing worker are subject to personal income tax and unified social tax in the usual manner (letters of the Ministry of Finance of July 13, 2009 No. 03-04-06-01 / 165 and of December 17, 2008 No. 03-03-06/1/688).

Employee refusal to transfer

The refusal of an employee to transfer to work in another locality together with the employer is the basis for the termination of the employment contract (clause 9, article 77 of the Labor Code of the Russian Federation). In this case, as in the case of a regular dismissal, to formalize the termination labor relations with employees, form No. T-8 (or form No. T-8a), approved by Resolution No. 1, is applied (see Example 8).

On the day of dismissal, the employee, in addition to the amounts due, is paid severance pay in the amount of a two-week average earnings (Article 178 of the Labor Code of the Russian Federation). At the same time, an increased amount of severance pay may be established by labor or collective agreements (Article 178 of the Labor Code of the Russian Federation).

In this case, we are talking about the termination of the contract in accordance with paragraph 9 of the first part of Article 77 of the Labor Code (see Example 9).

Further, upon receipt of the work book, the employee signs in a personal card, as well as in the book of accounting for the movement of work books and inserts in them (clause 41 of Resolution No. 225). At the same time, the entry made in the work book is repeated in the personal card (clause 12 of Resolution No. 225).

Footnotes

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Transfer is a permanent or temporary change in the labor function of an employee and (or) the structural unit in which he works (if the unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to work in another locality together with the employer (Article 72.1 of the Labor Code of the Russian Federation).

The transfer is not considered and does not require the consent of the employee:

moving him from the same employer to another workplace,
moving it to another structural unit located in the same area,
entrusting him to work on another mechanism or unit, if this does not entail a change in the terms of the employment contract.

The circumstance is also not considered a transfer if the structural unit in which the employee works is not specified in the employment contract.

All translations are divided into:

temporary,
permanent,
mandatory transfers.

In turn, temporary transfers can be divided into those carried out with the consent of the employee and transfers without consent. Let's look at all types of translations in order.

Permanent transfers of an employee to another job

A permanent transfer is issued in the following cases (Article 72.1 of the Labor Code of the Russian Federation):

the labor function of an employee changes (for example, an engineer becomes a chief engineer);
the structural unit specified in the employee's employment contract changes (for example, the manager of the purchasing department is transferred to the sales department);
the employee is transferred to work in another area ( locality) in connection with the relocation of the employer.

Permanent transfer is possible both at the initiative of the employee and at the initiative of the employer, but is allowed only after an agreement has been reached between the employee and the employer. It is mandatory to obtain the written consent of the employee. If the employee does not object to the transfer, he expresses his consent either on the proposal of the employer, or in a separate document (application).

What an employer needs to do:

Conclude an additional agreement with the employee to the employment contract. Write the name in it new position, the amount of remuneration and other conditions that have changed in connection with the transfer. The agreement is drawn up in two copies for each party, on the copy of the employer, the employee puts a mark in receiving his own. Give one copy to the employee, the second copy remains with you, the employee must sign on it that he received his copy of the agreement.
Issue an order to transfer to another position and to another unit (form N T-5 or arbitrary).
Make a record of the transfer to another job in the work book. In column 4 of the work book, you must specify the details of the transfer order. The entry must be made within a week from the date of issuance of the order (clause 10 of the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”, hereinafter referred to as the Rules).
Enter information about the transfer in sect. III of the employee's personal card and familiarize him with this entry against signature.

If the employee is transferred to a position for which the conclusion of a fixed-term employment contract is provided. So that the re-qualification of an open-ended contract into an urgent one is not regarded as an infringement of the employee's rights, it is better to terminate the previously concluded employment contract and conclude a new fixed-term one.

5 situations when the employer is wrong

Situation 1: The organization has free rates. The employee asked the boss to transfer her to one of them, but he refused. Are the boss's actions legal?

Answer: According to Art. 72 of the Labor Code of the Russian Federation, a change in the terms of an employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract, with the exception of cases provided for by the Labor Code of the Russian Federation. Thus, yes, the boss has the right to refuse an employee.

Situation 2: The employee was transferred to another department for the same position and with the same amount of work performed, but the salary was reduced without the consent of the employee. Is it legal?

Answer: Changing the terms of an employment contract, in particular wages, is allowed by general rule only with the consent of the employee and is issued additional agreement to an employment contract. Therefore, the employer acted incorrectly.

It is not uncommon for an employer to transfer an employee to more high position, and to check the employee, sets him a trial period:

Situation 3: The employee holds the position of chief specialist. The position of head of department was vacated in the department. The employer wants to offer this position to the chief specialist, but he is not sure whether the employee will be able to cope with the assigned duties. Can an employer set a probationary period for an already employed employee? Can an employer conclude a fixed-term employment contract for three months?

Answer: Establishing a probationary period for an employee carrying out labor activities in an organization is not provided. The test is established only at the conclusion of an employment contract, that is, for a new employee (Article 70 of the Labor Code of the Russian Federation). The conclusion of a fixed-term employment contract when transferring to another position will also be illegal. In this case, the employer can issue a temporary transfer of the employee to another position.

Situation 4: The employer hired a foreign citizen for a position in accordance with the permit. However, due to operational necessity, this employee was transferred to another position not specified in the permit. Is the employer right?

Answer: hiring a foreign citizen to work not in the specialty specified in the work permit is not legal. Such a situation, when the work actually performed by a foreigner does not correspond to the type of activity specified in the permit, is equated by the Federal Migration Service and the courts to work without a permit (Decision of the Moscow City Court dated 12.12.2011 N 7-2678; Resolutions of the Federal Antimonopoly Service of the North Caucasus District dated 05.21.2012 N A53 -16050/2011, Supreme Court of the Russian Federation dated September 23, 2011 N 18-AD11-15). And entails the imposition of significant penalties or suspension of the organization, which in any case is an unjustified risk for the employer.

Situation 5: the employer demanded that the employee, who is on parental leave, go to work for one day to familiarize herself with the order for her transfer to a lower position and a decrease in wages. Is the employer legally acting, motivating the specified transfer by the need to reduce the expenses of the organization?

Answer: The employer is acting illegally. An employee cannot be recalled from vacation without her consent and transferred (Article 125 of the Labor Code of the Russian Federation). Transfer without the consent of this employee is only allowed on the basis of a medical report. Thus, her former position should be retained for her (Article 256 of the Labor Code of the Russian Federation). Thus, the order issued by the employer will worsen the position of the employee in comparison with the established labor law and be illegal. In accordance with Part 4 of Art. 8 of the Labor Code of the Russian Federation, it cannot be applied. If the employer nevertheless makes a transfer without such consent and applies an order that worsens the rights of the employee, then she can resort to the protection of her labor rights legislatively fixed ways and appeal against the actions of the employer, thereby reinstating in his previous position.

Temporary transfers to another job

Temporary transfer for other work is done for a certain period of time. At the same time, the employee’s labor function and (or) structural unit is temporarily changed, if it was indicated in the employment contract. Temporary transfers include (Article 72.2 of the Labor Code of the Russian Federation):

transfer to another job, carried out by agreement of the parties for a period not exceeding one year;
transfer to another job, carried out by agreement of the parties to replace an absent employee for a period before his return to work;
transfer to another job due to objective reasons (for example, for up to 4 months in accordance with a medical report).

The procedure for issuing a temporary transfer is similar to that for permanent transfers. The exception is that in case of temporary transfers, an entry in the employee's work book is not made, regardless of the reason and term for such a transfer. If the deadline is not known, they write "until the temporarily absent employee leaves." And already on the basis of the agreement, an order for a temporary transfer is issued.

When such a transfer is carried out to replace a temporarily absent employee, for whom, in accordance with the law, the place of work is retained, then it is valid until the employee returns to work. As a general rule, at the end of the term, the transfer is terminated, and the employee is provided with the work provided for by the employment contract.

But it may well be that the transfer period has expired, and the employee was not provided with the previous job and he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent. In such a situation, it is advisable for the parties to fix these agreements in writing by drawing up an additional agreement to the employment contract. Further, the employer, on the basis of such an agreement, issues an order on personnel, in which it states the fact that the transfer, which was originally issued as temporary, is now considered permanent. And in this case, it becomes necessary to make an entry in the work book of the employee.

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Transfers with the consent of the employee

The employer may also temporarily transfer the employee with his consent for the period of suspension of work due to an administrative suspension of activities or a temporary ban on activities in accordance with the legislation of the Russian Federation due to violation of state regulatory requirements labor protection through no fault of the employee. At the same time, the place of work (position) and average earnings(Article 220 of the Labor Code of the Russian Federation).

Transfers without the consent of the employee

The period of temporary transfer at the initiative of the employer, that is, without the consent of the employee, cannot exceed one month.

In addition, this can be done only in certain cases, which are indicated in Part 3 of Art. 72.2 of the Labor Code of the Russian Federation:

natural or man-made disasters, industrial accidents, industrial accidents, fire, flood, famine, earthquake, epidemics or epizootics and any exceptional cases that endanger the life or normal living conditions of the entire population or part of it (part 2);
downtime (temporary suspension of work due to economic, technological, technical or organizational reasons);
the need to prevent destruction or damage to property;
the need to replace a temporarily absent employee (part 3).

All of the above cases must be caused by emergency circumstances specified in Part 2 of Art. 72.2 of the Labor Code of the Russian Federation. These include any circumstances that endanger the life or normal living conditions of the population or part of it. It is strongly not recommended to transfer an idle employee to another job if he does not agree to this. If no emergency circumstances are identified, then the transfer of the employee will be declared illegal.

A transfer without the consent of the employee is executed by order of the employer, indicating the circumstances that caused such a transfer. If an employee is transferred to a position requiring a lower qualification, written consent should be requested from him. At the same time, payment is made in an amount not lower than the average earnings for the previous job.

Transfer to another locality

Transfer to another locality together with the employer, that is, a change in the location of the organization, is considered a permanent transfer. It does not occur so often, however, there are nuances and the employer needs to know about it.

The execution of such a transfer should take place in the following sequence:

The employer must notify all employees of such a transfer in advance. Since the timing of such a warning is not established, one should be guided by Art. 74 of the Labor Code of the Russian Federation and apply a two-month notice period,
Offer employees a translation. It is not necessary to send a transfer proposal to each employee, but it is enough to issue one order and bring it to the attention of everyone against signature.
Be sure to obtain the consent of employees,

In a situation where the organization's legal address has changed and the executive body has changed its location, but the actual place of work of employees has remained the same, it is not necessary to issue a transfer.

Employees who refuse to be transferred to another locality must be dismissed under paragraph 9 of part 1 of Art. 77 of the Labor Code of the Russian Federation - refusal to transfer to another locality together with the employer. The employee is paid a severance pay in the amount of two weeks' earnings (Article 178 of the Labor Code of the Russian Federation). As with ordinary dismissal, form No. T-8 (or form No. T-8a), approved by Resolution No. 1, is used to formalize the termination of employment relations with employees.

With employees who have expressed a desire to continue working with this employer in another locality, relations are formalized as follows:

an additional agreement is concluded to the employment contract on transfer to another locality,
on the basis of an agreement with the employee, an order is issued,
a record is made of the transfer to another locality, even if the employee remains in the same position and in the same structural unit,
an entry is made in the employee's personal card.

The employer should not forget about such an important point: if the employee agrees to move to work in another area, he will have to reimburse:

expenses for the relocation of the employee himself, his family members and the transportation of property (except for cases when the employer provides the employee with appropriate means of transportation);
expenses for settling in a new place of residence.
The specific amounts of reimbursement of expenses are determined by agreement of the parties to the employment contract (Article 169 of the Labor Code of the Russian Federation).

Mandatory transfer to another job

Situations in which the transfer is mandatory occur both at the initiative of the employee (when he has the right to require the employer to transfer to another job), and at the initiative of the employer (due to circumstances beyond the control of the parties). At the same time, an employee can be transferred both on a permanent and temporary basis. For example, if an employee refuses to perform work in the event of a danger to his life and health, the employer is obliged to provide such an employee with another job while the danger is eliminated (Article 220 of the Labor Code of the Russian Federation).

The employer is obliged to satisfy the request of the employee to transfer him to another job in the following situations:

provided with a medical certificate;
reduction in the number or staff of employees in the organization;
in case of suspension of a special right;
a woman is pregnant or has children under the age of one and a half years.

Moreover, each of these situations has its own design features.

The employee provided a medical report issued in accordance with the procedure for issuing certificates and medical reports, approved by Order of the Ministry of Health and Social Development of the Russian Federation of 02.05.2012 N 441n. According to the document, the employee needs to be transferred to another job. In this case, the employer is obliged to transfer to another job he has, which is not contraindicated for this citizen for health reasons. The transfer of an employee to another position, where work is not contraindicated for him for health reasons, is carried out with his written consent (part 1 of article 73 of the Labor Code of the Russian Federation).

True, there is one “but” - if an employee who needs a temporary transfer for up to four months refuses to transfer (or there is no corresponding job), then the employer must remove the employee from work for this period while maintaining the place of work (position). In this case, during the period of suspension, wages are not accrued to the employee. At the same time, if an employee needs a temporary transfer for a period of more than four months or a permanent transfer, then if he refuses to transfer or if the employer does not have the appropriate job, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of the Labor Code of the Russian Federation (Art. 73 of the Labor Code of the Russian Federation).

With managers (and their deputies) in need of translation medical indications, the situation is different. In their case, the employment contract with them may not be terminated, and the period of suspension from work is determined by agreement of the parties.

It is not uncommon for an employee to be transferred to a lower-paid job. The employer is obliged to keep the average earnings from the previous job within one month from the date of transfer. If the transfer is related to an industrial injury, occupational disease or other damage to health associated with work - until a permanent loss of professional ability to work is established or until the employee recovers (Article 182 of the Labor Code of the Russian Federation). Arbitrage practice this confirms. The judges ruled that the employer’s obligation to maintain the average salary for the employee arises from the moment the employee is transferred to a lower-paid position and terminates with the establishment of a permanent loss of professional ability to work (Appeal ruling of the Vologda regional court dated 13.09.2013 N 33-4301/2013).

When carrying out measures to reduce the number or staff of the organization's employees, the employer is obliged to offer the employee another available job (both a vacant position or a job corresponding to qualifications, and a vacant lower position or a lower-paid job). If the transfer cannot be made, the employee will have to be fired on the basis of paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation. About the upcoming dismissal due to a reduction in the number or staff of the organization's employees, employees are warned by the employer personally and against signature at least two months before the dismissal (Article 180 of the Labor Code of the Russian Federation).
If an employee has lost the opportunity to perform duties under an employment contract in the event of suspension of the employee’s special rights (licenses, the right to drive a vehicle, the right to carry weapons, etc.) for a period of up to two months, the employer is obliged to transfer the employee to another available job (as a vacant a position or job corresponding to qualifications, as well as a vacant lower position or lower-paid job) that an employee can perform taking into account his state of health. Of course, in this case, the employer must obtain the written consent of the employee. In addition, the employer is obliged to offer all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract. If the employee refused or is absent vacant position, he is suspended from work without pay (Article 76 of the Labor Code of the Russian Federation). If the period of suspension of the special right exceeds two months or the employee is deprived this right, the employment contract with him is subject to termination in accordance with paragraph 9 of part 1 of Art. 83 of the Labor Code of the Russian Federation.
In accordance with the medical report, the employer must transfer the pregnant employee to another job that excludes the impact of adverse production factors, while maintaining the average earnings from the previous job. A statement is required from the employee. Until other work is provided, a pregnant woman is released from work. She retains the average earnings for all missed working days as a result of this at the expense of the employer (Article 254 of the Labor Code of the Russian Federation).

Meanwhile, women with children under the age of one and a half years, if it is impossible to perform their previous work, they are transferred at their request to another job with wages for the work performed, but not lower than the average earnings at the previous place of activity until the child reaches the age of one and a half years (Art. 254 of the Labor Code of the Russian Federation). Also, pregnant women and women with children under the age of three cannot be involved in work performed on a rotational basis (Article 298 of the Labor Code of the Russian Federation).

In this situation, the transfer to another job is carried out as follows:

The parties conclude an additional agreement to the employment contract
The manager issues an order to transfer to another job
The personnel officer makes entries about the transfer in the work book and personal card in the form No. T-2

A situation may arise when an employee does not want to interrupt her vacation or go on part-time working time. In this case, there is no need to force her to interrupt the vacation. It is enough to invite her to drive to work to draw up an additional agreement to the employment contract or send a courier to her. True, it is recommended to acquaint the worker with the new job description in order to avoid refusal to perform duties that may come as a surprise to her. This must be done before signing an additional agreement to the employment contract.

The procedure for issuing an additional agreement:

Date of change of labor function - indicate the date from which the employee will perform a new labor function (work in a new position or in another department). This may be the current date (in the case when the structure of the company changes) or the actual date of her return to work from parental leave.
In the additional agreement, it is possible to indicate (optionally) that the employee began her new duties after leaving parental leave.
If, when transferring to another position (in a department), the salary of an employee changes, then these changes should also be made to the supplementary agreement.

The employer may transfer the employee with his consent to another position temporarily or permanently. Such a change of positions must be formalized by agreement of the parties, which is attached to the employment contract. Payment must be made not lower than his salary in the average monthly equivalent.

Let's allow a temporary transfer of your own employee, on his initiative, to a third-party employer under an outstaffing agreement. Outstaffing is not prescribed in the Labor Code of the Russian Federation, but it is equated to agency work and requires careful observance of the nuances in the process of registration. You can not prescribe the word rent, as it humiliates the dignity of the employee. You should choose the correct word forms.

The movement of a worker to a position must have a fixed period, which can be expressed in various forms:

For the vacation period of the main employee;
For the period of treatment of the main employee;
For the period of implementation of certain work, for example, the preparation of reporting documents, the implementation of projects;
The period of elimination of the accident due to production necessity.

Transfers are regulated by three articles of the Labor Code of the Russian Federation. Short-term transfers are allowed both within one organization and its branches, and to another industrial enterprise at the initiative of the worker.

Temporary transfer to another job due to production needs

This is the only way to force an employee to change the place and nature of the activity without his documented consent. But there are some nuances here. The management has no legal right to force an employee without his initiative to perform work that is deadly to his life, or contraindicated due to his state of health.

This type of change of activity of an employee cannot last longer than a month. If the consequences of an accident, emergency, military or natural disaster have not been eliminated within the specified period, such a transfer, if there is a production need, can be renegotiated repeatedly. This renegotiation does not require the written consent of the workers.

The maximum period of temporary transfer to another job

The maximum period for which it is permissible to transfer an employee is one month. But in the case of replacing a colleague who is absent from the workplace, it can be increased. If after the specified period the colleague, in whose position the employee works, did not go to work, then, at the initiative of the employee, he receives this position permanently.

Temporary transfer to another job by agreement of the parties to the Labor Code of the Russian Federation

According to the content of Art. 72 of the Labor Code of the Russian Federation, in order to transfer an employee, there must be the consent of the employee in writing, or his initiative. Without fail, upon agreement of the parties, an additional annex to the agreement on labor activity, an order is issued where the reason for changing the contract is the agreement reached between the parties. The maximum period is up to twelve months inclusive.

Transfer of an employee to another position without the consent of the employee

It is possible only in case of production necessity. If the employee does not take the initiative and does not agree to give written consent, it cannot be transferred. This is a gross violation. Failure to comply with labor laws threatens the management with administrative responsibility. Without the consent of the worker, it is impossible to transfer him to another employer on a permanent or non-permanent basis.

Transfer of a temporary worker to another temporary job

Regardless of the specifics, form and complexity of labor activity, the term of the contract, which is an important condition, must be strictly observed. It is possible to transfer a temporary employee to a non-permanent job. But such a transfer does not change the term of the contract. Let's say in an enterprise:

Skvortsova replaces Solovyov for the duration of her decree;
Then Skvortsova is temporarily transferred to the position of Ivolgina;
Solovieva goes to work, which automatically terminates the temporary contract with Skvortsova;
Skvortsova continues to work in Ivolgina's position, which makes Skvortsova's employment contract indefinite;
If Ivolgina comes out of the decree, then Skvortsova cannot be fired.

Therefore, in staffing you need to order an additional rate. Or dismiss Skvortsova when Solovyov leaves and conclude a new contract before Ivolgina leaves the decree on her initiative.

Remuneration for temporary transfer to another job

Payment for labor activity cannot be lower than the average monthly salary for the main position of the employee. An exception may be cases if the change of position is caused by partial disability, or at the initiative of the employee.

If the employer decides to transfer the employee on his initiative to another organization, his remuneration is not assigned lower than in a similar position with another employer. By necessity should not reduce the wages of workers.

The procedure for the employer's actions during the temporary transition of the employee directly depends on who was the initiator. We will tell you how to arrange such a transfer in two cases - by agreement of the parties and without the consent of the employee. Learn how to stop personnel changes.

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How to issue a temporary transfer of an employee to replace an absent employee

If the employer does not have emergency circumstances, he can briefly transfer an employee to another job only with his written consent (Article 72.2 of the Labor Code of the Russian Federation). To do this, it is necessary to conclude an additional agreement to the current TD (employment contract). This is important because when moving to another position for a short time, the employee changes:

official position;
salary amount.

When arranging a short-lived transfer of an employee to replace an absent employee, it is impossible to predict the exact end date of the event. Therefore, a condition is introduced into the additional agreement, which serves as the basis for the termination of the temporary personnel reshuffle. In this case, such a basis will be the exit to work of the main employee.

An additional agreement is drawn up taking into account the general rules:

The document is made in two copies
Amended items of TD are introduced into it, indicating that the remaining conditions of TD remain unchanged.
The agreement is signed by the employee and the employer. To issue a temporary transfer in various cases, the service in the Kadra System will help you. Get started with master of temporary translation right now.

A temporary transfer to another job by agreement of the parties is formalized not only by drawing up an additional agreement, but also by order. It claims the fact of temporary personnel changes within the organization. In addition to the order, which can be issued in the unified form No. T-5 or No. T-5A, as well as on forms developed by the company independently, you will need to make an entry in section III employee's personal card.

Additional agreement. Temporary transfer of an employee to another position

Information about the transfer is reflected in the work book only if it is carried out constantly. There is no need to make a temporary entry. If in the future the employee needs to confirm the fact of non-permanent work, he can request in writing from the employer a certificate or a copy of the temporary transfer order.

how to temporarily transfer an employee to another job by agreement of the parties. From the article you will learn about the procedure for the procedure and the features of documenting.

Temporary transfer to another position: distribution of duties between several employees

The labor legislation of the Russian Federation does not oblige employers to resolve issues of replacing absent employees with a single in a standard way. If volume official duties The absence of an employee is extensive, and the personnel situation allows you to distribute its functions to several employees, this can be done. In this case, it is not about translation. The movement of an employee or several employees is also not carried out. Everyone will perform their duties plus extra work, which was previously performed by a temporarily absent specialist.

This is formalized through an additional agreement to the employment contract on the temporary replacement of an absent employee. When expanding responsibilities, draw up:

an additional agreement, prescribing in it the scope of new duties, the amount of additional payment;
an order that gives employees additional powers.

It is not necessary to enter information about the additional amount of work in personal cards and work books of employees.

When is it possible to temporarily transfer to another job without the consent of the employee

You can temporarily transfer an employee to another job without his consent, only if it is necessary to prevent or eliminate the consequences of:

man-made, natural disasters;
accidents;
earthquakes, floods, fires;
epidemics, epizootics, famine;
other cases that threaten normal living conditions or the lives of a large part of the population.

Additionally, two conditions must be met:

All these cases should be caused only by extraordinary circumstances: catastrophes, accidents, fire, floods, and so on.
The job to which the employee moves must correspond to his level of qualification or be more qualified.

If the last condition is not met, written consent must be obtained, which is expressed by a note on the notice provided by the employer, or in the form of a separate application.

Types of transfers to another job of the Labor Code of the Russian Federation

Such transfers are divided into temporary and permanent. Temporary work is carried out by agreement of the parties or without the consent of the employee.

The duration of the performance of official duties in case of a short transfer to another job is limited by the Labor Code of the Russian Federation to one month if the transfer is made without the consent of the employee.

It is also possible to transfer while the main employee also temporarily performs other duties.

★ The expert of "System Kadra" will tell you how to arrange a temporary transfer of an employee to another job. From the article you will learn about the procedure for carrying out the procedure, about transferring to another position by agreement of the parties and without the consent of the employee, the features of processing the order and documents on the basis of which the transfer is terminated.

How to justify the temporary transfer of an employee to another position b

If a dispute arises about the legality of transferring an employee without his consent, the employer needs to prepare documents that can be used to confirm the existence of emergency circumstances caused by such a transfer (paragraph 17 of the resolution of the Plenum Supreme Court dated March 17, 2004 No. 2).

These documents are used:

acts of emergency services specialists;
acts on the occurrence of emergencies;
order of the head of the organization on the measures taken to eliminate the consequences of the accident, etc.

How to stop the temporary transfer of an employee to another job: the procedure for registration

After the end of the transfer period, the employer issues an order, on the basis of which the employee is provided with the previous place of work. The order is made in free form, since the unified form of such a document is not approved. If, at the end of the transfer deadline, the employee was not provided with the previous job, but he does not insist on it, continues to work, the condition of the executed agreement becomes invalid, the temporary position becomes permanent (part 1 of article 72.2 of the Labor Code of the Russian Federation).

This situation must be documented by concluding a new supplementary agreement. After that, the employer issues an order, the personnel officer makes an entry in the personal card and in the employee's work book.

Order on the recognition of a temporary transfer as permanent

What is the difference between the movement of an employee according to the Labor Code of the Russian Federation

The transfer of an employee to another workplace is not considered a transfer if the conditions of the TD do not change, and the labor function remains the same. An exception is such situations when a workplace is indicated in the TD, when it changes, the terms of the TD change, and constitute an additional agreement. So, for example, a permanent transfer is possible only with the written consent of the employee. The movement is carried out without obtaining such consent.

It is possible to transfer an employee to another job for a short time only with his written consent, unless there is an emergency. An additional agreement is concluded to the current employment contract. The reason is that when moving to another position, the employee temporarily changes: position, salary.

In case of emergencies, the employer has the right to transfer the employee without his consent for some time.

The employee was temporarily transferred to a position with a lower average salary with his written consent for the period of absence of the main employee. Is the employer obliged to pay extra to the average earnings at the main place of work of this employee?

Answer

Answer to the question:

By agreement of the parties, concluded in writing, the employee may be temporarily transferred to another job with the same employer for a period of up to one year, and in the case when such a transfer is carried out to replace a temporarily absent employee, who, in accordance with the law, retains his job , - until the employee goes to work. This rule is established by part 1 of article 72.2 of the Labor Code of the Russian Federation.

In the event that the transfer is carried out with the consent of the employee, the Labor Code of the Russian Federation does not oblige the employer to make an additional payment up to the average earnings in the previous position (part 4 of article 72.2 of the Labor Code of the Russian Federation).

The employer is obliged to make such an additional payment in the event of a temporary transfer of an employee to a lower-paid position for up to one month without the consent of the employee himself. Such a transfer is made to prevent disasters, to prevent downtime, etc. (Parts 2 and 3 of Article 72.2 of the Labor Code of the Russian Federation).

Thus, when an employee is temporarily transferred by his consent to a lower-paid position during the absence of another employee, the employer is not obliged to make an additional payment up to the average earnings in the previous position.

Details in the materials of the System Personnel:

Situation: How to issue a temporary transfer of an employee to another job

Types of temporary transfers

Temporary translation is . Temporary transfers include:

In addition, () has its own characteristics.

Temporary translation by written agreement

The duration of the transfer, which is carried out without the consent of the employee, cannot exceed one month. At the same time, the number of such transfers and their frequency are limited by law only in relation to a foreign employee, who can be transferred no more than once during a calendar year. If during the year it becomes necessary to re-temporarily transfer a foreign employee without his consent and at the same time he will not be able to perform work under his employment contract due to, then it is necessary ().

The work of an employee during the period of temporary transfer without consent must be paid after the fact, but not lower than the average earnings for the previous job.

Record of temporary transfer

Do not make an entry about a temporary transfer in the work book, but it (Rules, approved, instructions, approved).

If temporary work is of a special nature and is important for confirming the employee’s privileged length of service, for example, temporary work as a doctor, then such length of service can be confirmed by a certificate from the employer on 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, .

Termination of temporary transfer

After the expiration of the transfer period, it is advisable to issue an order to provide the employee with the previous place of work, since if at the end of the transfer period the employee was not provided with the previous job, but he did not demand its provision and continues to work, the condition of the agreement on the temporary nature of the transfer becomes invalid, and the transfer is considered permanent (). Such an order does not have a unified form, so make it in .

If the condition of the agreement on the temporary nature of the transfer has become invalid and the transfer is considered permanent, then in order to document this situation, it is recommended to draw up a new one between the employee and the employer on changing the nature of the transfer and issue an appropriate one. Among other things, you will need to make records of a permanent transfer to and an employee (,