In what cases and circumstances can an employer cancel the assignment (transfer) of an employee to perform the duties of an absent employee? That is, the employee has now been transferred to the position of maternity leave. How can an employer reverse this decision?
Answer
Early termination of a temporary transfer can be formalized by agreement of the parties (Labor Code of the Russian Federation). Also, the temporary transfer is terminated due to the return to work of the main one.
The rationale for this position is given below in the materials of "Systems Lawyer" .
1. Situation: How to issue a temporary transfer of an employee to another job
« Termination of temporary transfer
How to apply for the termination of the 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 is not provided with the previous job, and 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 constant(). Such an order does not unified form, so compose it in any form.
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 additional agreement between the employee and the employer on changing the nature of the transfer and issue an appropriate order. Among other things, you will need to record permanent transfers in work book and an employee's personal card ( approved ).
It should be noted that if, at the end of the period of temporary transfer of a foreign employee, carried out without his consent, it is impossible to provide him with his previous job, then he must be fired ().
2. Situation: Is it possible to lay off an employee who is hired on maternity leave of the main employee
"No.
By carrying out reduction measures, the employer reduces the staff unit or position, and not the specific employee who occupies it (). For an employee who is on leave to care for a child under three years old, the employer retains workplace and his position (). The admission of a newcomer under a fixed-term employment contract to the place of a temporarily absent main employee does not increase the number of staff positions and the emergence of new jobs does not entail (). At the same time, the legislation establishes a ban on the reduction of the position of women who have children under the age of three ().
Thus, it is impossible to reduce the staffing unit or the position of a temporary employee who is hired for parental leave to three years of the main employee.
Advice: if there is a need to fire a temporary employee, ask the employee who is on parental leave to interrupt her vacation and go to work for a few days, including part-time or at home. In this case, the contract with a temporary employee will be terminated due to the expiration of the term. After the dismissal of a temporary employee, the main employee can again go on parental leave *.
Professional help system for lawyers, where you will find the answer to any, even the most complex question.
How long does it take for an employer to notify an employee of the end of a temporary transfer?
But in practice, it is recommended to issue an Order on the expiration of the temporary transfer, which removes any risk of a dispute with the employee on recognizing the temporary transfer as permanent. Supplementary agreement in this case, it is not necessary to conclude, because the transfer time was originally indicated in the add. temporary transfer agreement. Details in the materials of the System Personnel:
- Situation: How to issue the termination of the 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 is 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 (part 1 of article 72.2 of the Labor Code of the Russian Federation).
How is a temporary transfer terminated?
Labor Code of the Russian Federation);
- women with children under the age of three, and persons raising such children without a mother (Articles 259 and 264 of the Labor Code of the Russian Federation).
CollapseShow About the need to report to work to provide an explanation for absence from work Absenteeism is one of the most common violations labor discipline. But before applying a disciplinary sanction to an employee, it is necessary to request a written explanation from him (part one, article 193 of the Labor Code of the Russian Federation). If the employee does not show up at work, he is sent a notice demanding to come to work to provide an explanation for the absence from the workplace.
But the employee’s failure to provide an explanation is not an obstacle to the application of a disciplinary sanction (part two of article 193 of the Labor Code of the Russian Federation).
End of temporary transfer
- to perform work in the season (weeding vegetables, harvesting, heating season, etc.);
- if it is required to perform work that is not included in the main activity of the organization (for example, repair of premises or adjustment and start-up of equipment);
- to perform a specific task, the end date of which cannot be predicted in advance and the result of the work will be accepted upon drawing up the act;
- with persons sent from the territorial employment center to perform public works or military commissariats for alternative service (for example, if religion does not allow you to pay military duty to the Motherland);
- during the production practice;
- other cases provided for by the provisions of Art.
Temporary transfer to another job
Temporary transfer is one of the ways of personnel maneuvering. Article 72.1 Labor Code defines it as a temporary change labor function employee and (or) structural unit while continuing to work for the same employer, as well as transfer to work in another area together with the employer. It is noteworthy that a change in the structural unit can be considered a transfer only if it structural subdivision specified in the employment contract.
The procedure for temporary transfer to another job is regulated by article 72.2 of the Labor Code. It provides for the temporary transfer of an employee: - with his consent (part 1 of article 72.2 of the Labor Code of the Russian Federation); - without his consent (parts 2 and 3 of article 72.2 of the Labor Code of the Russian Federation). Transfer without the consent of the employee is always associated with the occurrence of an emergency, but this is a separate topic for conversation.
Receive and sign: we notify the employee about ...
Attention
That does not prevent her, on her own initiative, from terminating the employment relationship at any time she considers it necessary for herself. What is the purpose of the notification? Since the norms of the second paragraph of Art. 77 of the Labor Code of the Russian Federation established that the grounds for termination employment contract can only serve as an expiration date labor relations if one of the parties has demanded their termination, a written notice serves as documentary evidence of the legality of termination labor relations. Otherwise, if the management did not notify the employee of the expiration of the contract and allowed him to continue working when he was dismissed, the employer must be prepared that when applying to the judicial authorities, his actions will be considered unlawful and the employee will have to be reinstated in his previous position with payment of compensation for the time forced walk.
Do I need to notify the employee about the end of the employment contract?
An employee, with his consent, can be transferred both to a more qualified job, and to a job that requires less qualification. Temporary transfer time. The duration of the transfer depends on its reason. If the reason for the transfer is the replacement of a temporarily absent main employee, the temporary transfer may last until he returns to work.
For all other reasons, for example, if an employee is temporarily transferred to a vacant position, the transfer period should not exceed one year. If at the end of the term the employer did not provide the employee with the previous job, and the employee did not demand to provide it and continues to work, the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent (part 1 of article 72.2 of the Labor Code of the Russian Federation). In the case when the position to be filled is vacant, the timing of the temporary transfer should be monitored with particular care.
That is, as soon as the absentee appeared at work, the temporary worker should be sent a written notice that he is provided with the previous place of work in connection with the departure of the main employee, and indicate the date. The employee must read the notice against signature. Based on this document, the employer should issue an order and be sure to familiarize the employee with it.
If you know the date of exit of the previous employee, it is better to do all this in advance. The notification and order will confirm that the temporary transfer period has ended and the employee has been given the previous job. If the agreement and the order indicate a specific transfer period, for example, from 08/10/2013 to 09/25/2013, then there is no need to issue an order to provide the employee with the previous place of work.
How to confirm the preferential length of service if the transfer is temporary and an entry about it is not made in the work book? In this case, the preferential service is confirmed only on the basis of personalized accounting information, which the employer submits to the FIU for each employee on a quarterly basis no later than the 15th day of the second month following the reporting period. If an employee works in special conditions labor or has the right to an early pension, the insured submits the form SZV-6-1 “Information on the accrued and paid insurance premiums for compulsory pension insurance and the insurance period of the insured person”, which was approved by the Resolution of the Board of the Pension Fund of the Russian Federation dated July 31, 2006 No. 192p.
CollapseShow On dismissal due to an unsatisfactory test result In accordance with Part 1 of Art. 71 of the Labor Code, in case of an unsatisfactory test result, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, warning him in writing not later than three days. At the same time, the employer must without fail indicate the reasons that served as the basis for recognizing this employee as having failed the test. Here it must be borne in mind that it will be unlawful to dismiss an employee due to an unsatisfactory test result, if the test condition was not included in the employment contract, because.
its absence in the contract means that the employee was hired without testing (letter of Rostrud dated March 11, 2010 No. 4 \ 642-6-1).
Important
On the basis of an additional agreement, the employer issues an order in unified forms No. T-5 or T-5a, approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1. The employee must be familiarized with the order against signature. Personal card. An employer must make an entry about a temporary transfer in section III of the employee’s personal card “Employment and transfers to another job” (form No. T-2, approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1).
With each record, the employee must be familiarized with signature. Employment history. An entry in the work book about a temporary transfer is not made.
When the employer changes Temporary transfer to another job is carried out within the same organization. An exception to this rule is made only for athletes. At certain conditions they can be temporarily transferred to another employer (part 1 of article 348.4
TK RF). Terms of temporary transfer to another job with the consent of the employee Job function and qualifications of the employee. Temporary transfer is possible both with the preservation of the labor function, for example, when transferred to another unit to perform the same work, and with its change, if the level vocational training employee and the practical experience of his work allow him to perform other duties. At the same time, in any case, the transferred employee is released from the performance of the labor function under his main employment contract.
Such an order does not have a unified form, so make it in any form. Popular questions 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 additional agreement between the employee and the employer on changing the nature of the transfer and issue an appropriate order. Among other things, it will be necessary to make entries about the permanent transfer in the employee's work book and personal card (Article 66 of the Labor Code of the Russian Federation, instructions approved by the Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1). It should be noted that if, at the end of the period of temporary transfer of a foreign employee, carried out without his consent, it is impossible to provide him with his previous job, then he must be fired (clause 10, part 1, article 327.6 of the Labor Code of the Russian Federation).
It is necessary to offer vacancies in other localities only if it is provided for by the collective (labor) agreement, other agreements. This procedure is enshrined in Part 3 of Article 74 of the Labor Code of the Russian Federation. If the employee refuses to work in the new conditions or there are no suitable vacancies in the organization, then the employment contract can be terminated:
- on the basis of paragraph 2 of part 1 of article 81 of the Labor Code of the Russian Federation with the payment of all compensation - if we are talking about changing the working regime, namely the introduction of an incomplete regime (part 6 of article 74 of the Labor Code of the Russian Federation);
- in connection with the refusal to continue work in the new conditions on the basis of paragraph 7 of part 1 of article 77 of the Labor Code of the Russian Federation, also with the payment of compensation - in all other cases (part 3 of art.
Combination and its termination: the correct order of registration
Early termination of temporary transfer
According to this regulatory legal act, an employee, if he does not want to perform his additional job duties, must notify his employer about this in advance. Moreover, this notice must be in writing. If possible, send this waiver. by registered mail, with a description of the attachment.
If the employer himself is the initiator in such a situation, then he is also obliged to notify his employee in advance of the termination of the supplementary agreement to the employment contract. It must be done by signature, otherwise this procedure will be illegal. Terms To date, the combination of positions can be:
- temporary;
- permanent.
This moment is necessarily indicated in a special supplementary agreement.
Articles and consultations on the website www.kadrovik-praktik.ru
Among other things, it will be necessary to make entries about the permanent transfer in the employee's work book and personal card (Article 66 of the Labor Code of the Russian Federation, instructions approved by the Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1). It should be noted that if, at the end of the period of temporary transfer of a foreign employee, carried out without his consent, it is impossible to provide him with his previous job, then he must be fired (clause 10, part 1, article 327.6 of the Labor Code of the Russian Federation). Ivan Shklovets, Deputy Head Federal Service for Labor and Employment A change in the name of a position without changing the labor function is not a transfer.
1 st. 72.1 of the Labor Code of the Russian Federation). At the same time, such a renaming can be carried out both by agreement of the parties, when both parties agree to the change, or unilaterally at the initiative of the employer (Articles 72, 74 of the Labor Code of the Russian Federation).
Important
See, for example, the appeal ruling of Chelyabinsk regional court dated April 21, 2014 No. 11-4312/2014. The only option is to agree with the employee and issue the dismissal earlier, but on a different basis, for example, by agreement of the parties, by paying an attractive amount of compensation. Once again, we draw your attention to the fact that renaming is possible only if the official duties, for example, of the Deputy Director for academic work, will not differ from official duties deputy director.
Otherwise, the employee must be offered a transfer to the position of deputy director, with his consent, conclude an additional agreement on the transfer, and exclude his previous position from the staff list. If the employee refuses to transfer, then a reduction procedure must be carried out.
Amendment of the employment contract in connection with the transfer of the employee to another job
That is, as soon as the absentee appeared at work, the temporary worker should be sent a written notice that he is provided with the previous place of work in connection with the departure of the main employee, and indicate the date. The employee must read the notice against signature. Based on this document, the employer should issue an order and be sure to familiarize the employee with it.
If you know the date of exit of the previous employee, it is better to do all this in advance. The notification and order will confirm that the temporary transfer period has ended and the employee has been given the previous job. If the agreement and the order indicate a specific transfer period, for example, from 08/10/2013 to 09/25/2013, then there is no need to issue an order to provide the employee with the previous place of work.
4. the difference between transferring to another job and combining positions
- employee statement;
- cancellation notice;
- order;
- supplementary agreement.
Application of an employee An application of an employee with a request to cancel an additional agreement on combining positions is drawn up in a free form, the format is not established by law this document. The application must include only the following information:
- the date of the application;
- addressee - director, immediate supervisor;
- as concisely as possible and indicating all the necessary facts, a request to cancel the combination;
- signature of the applicant and the receiving person (accountant, employee of the personnel department).
Notice of Cancellation If, for any reason, the employer decides on its own initiative to terminate the process of combining positions, he must notify his employee accordingly.
The order will confirm that both parties are aware of the cancellation of the combination, and fix its date, as well as inform all interested parties about this change. In particular, the order will become the basis for the accounting department to stop paying for the combination. It is possible, but not necessary, to conclude a separate additional agreement to the employment contract on the cancellation of the combination.
AT this case the parties do not agree on anything. Cancellation occurs unilaterally by notification without the need to obtain the consent of the other party. A similar approach is applied in case of dismissal. Upon dismissal, the parties conclude an agreement to an employment contract only if it is necessary to prescribe in it special conditions termination, such as a special term of dismissal or payment of additional compensation.
Sometimes an employee has to be transferred to another job for a while. Such a need can be caused by a number of reasons - medical indications, production needs, etc. However, not everything is so simple with the transfer procedure. For example, some people confuse a transfer with a move and do not process it properly or underpay wages when translated into lower paid position. You will learn about the cases in which temporary transfers are possible, how to distinguish them from displacement, how much to pay the temporarily transferred employee and how to document all this, after reading the article.
Instead of a preface
According to Art. 72.1 of the Labor Code of the Russian Federation transfer is understood as a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works, while continuing to work for the same employer, as well as transfer to work in another area together with the employer.Note that a change in a structural unit will be considered a transfer only if its name was fixed in an employment contract (for example, in the form of the phrase “An employee is accepted for the position of an accountant in the financial and economic department”).
Since today we are considering temporary transfers, it is worth noting that they can be carried out both with the consent of the employee and without.
Temporary transfer with the consent of the employee
A temporary transfer requires an agreement in writing. The employer first offers the employee a vacant position or a position where an absent employee needs to be replaced. Then, upon agreement, an additional agreement is concluded on a temporary transfer to another job, position or to another structural unit.And first of all, let's talk about the timing of such a transfer. Temporary transfer to another job with the same employer is possible 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 this employee returns to work.
We note that due to Part 4 Art. 72.1 of the Labor Code of the Russian Federation it is forbidden to transfer and move an employee to work that is contraindicated for him for health reasons. That is, if there are no medical contraindications and the employee agrees, then he can be temporarily transferred to work even with harmful or hazardous conditions labor.
When concluding a transfer agreement, fix in it the basis for the transfer, its term, the new duties of the employee, as well as other conditions that differ from those established by the employment contract.
Separately, let's talk about the wording of the translation period. If a temporary transfer is carried out to a vacant position, you can determine a specific end date for the transfer, and if to replace a temporarily absent employee, it is better to indicate the condition upon which the employee returns to his workplace, because the absent employee may return to work later (for example, when extending leave or sick leave). For the latter case, the wording may be as follows: "This supplementary agreement is valid until the date of return to work from parental leave of the leading specialist E. Gulkina."
Based on the agreement signed by the parties, a transfer order is issued in the unified form T-5 1] (T-5a). It is important to indicate in the line "Type of transfer" that the transfer is temporary. With such an order, the employee must be familiarized with signature.
The next step in making a temporary transfer will be to make an entry about it in section. III personal card "Employment and transfers to another job" (f. T-2 or T-2 GS (MS)).
But a temporary transfer is not entered in the work book. This rule has been set Part 4 Art. 66 Labor Code of the Russian Federation and clause 4 of the Rules for maintaining and storing work books, according to which only permanent transfers are entered in the work book.
note
If an employee is transferred to another job or position, he must be familiarized with job description and other local regulations relevant to this work. In addition, you may need to conduct a safety briefing or conclude a liability agreement.
Note that the employer should control the end of the temporary transfer, since due to Part 1 Art. 72.2 of the Labor Code of the Russian Federation, if at the end of the transfer period the previous job is not provided to the employee, but he did not demand its provision and continues to work, then the condition on the temporary nature of the transfer becomes invalid and the transfer is considered permanent. In this regard, the question arises: is it necessary to formalize the provision of the previous job? Labor law does not contain requirements for processing the return of an employee. In the meantime, we recommend doing so. Usually, for this, an order (instruction) is issued to terminate the performance of duties for temporary position and return to the performance of duties in the main position. He may look like this.
State Autonomous Institution of the Arkhangelsk Region
"Sports Training Center"
Arkhangelsk
Due to the expiration of the temporary transfer by agreement of the parties
I ORDER:
1. Pshenitsyna Olga Viktorovna, who temporarily, by agreement of the parties dated 04/04/2014 No. 2, held the position of deputy head of the department for providing sports teams, start working under the employment contract dated 06/12/2010 No. 10-06, as the chief specialist of the department for providing sports teams teams, since August 21, 2014
2. Accounts departments to accrue Pshenitsyna O. V. wages in accordance with staffing as the chief specialist of the department for providing sports teams.
Director cereals I. I. Zlakov
Acquainted with the order. Pshenitsyn, 20.08.2014
It may happen that the main employee quits or the temporarily occupied position is completely vacant, and the management of the organization, and the temporary employee himself, do not mind making the temporary transfer permanent. In this case, it is necessary to conclude another additional agreement, indicating in it that a temporary transfer made under an agreement from such and such a date is considered permanent. On the basis of the agreement signed by the parties, it is necessary to issue an order in any form, in which it is also fixed that the condition on the term of the transfer has become invalid.
Note that in this situation there is a nuance. When transforming a temporary transfer into a permanent one, it is necessary to make an entry in the work book. Moreover, the date of the transfer will be the first day of the temporary transfer.
Example
On February 3, 2014, an employee of the State Budgetary Institution, by agreement of the parties, was transferred to the position of foreman of the road maintenance section for six months. After this period, the parties signed an agreement that the transfer is considered permanent. How to make an entry in the work book?
| №
records | the date | Information about hiring, transfer to another permanent job, qualifications, dismissals (indicating the reasons and referring to the article, paragraph of the law) | Name, date and number of the document on the basis of which the entry was made | ||
| number | month | year | |||
| 1 | 2 | 3 | 4 | ||
| … | … | … | … | … | … |
| State state-financed organization | |||||
| Vladimir region "Management | |||||
| highways» | |||||
| 8 | 09 | 12 | 2012 | Adopted as leader | Order dated 09.12.2012 |
| specialist expert. | № 22 | ||||
| 9 | 03 | 02 | 2014 | Promoted to chief | Order dated 03.02.2014 |
| acceptance department | № 16* | ||||
| for repair and maintenance | Order dated 28.07.2014 | ||||
| highways. | № 47** | ||||
*
Temporary Transfer Order.
**
An order to invalidate the provision on the temporary nature of the transfer.
Please note that if an employee does not start work under an employment contract, that is, he wants to continue working in accordance with the order for a temporary transfer, the employer has the right to apply disciplinary measures to him: remark, reprimand, dismissal on appropriate grounds, for example, for absenteeism - pp. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation.
Temporary transfer without the consent of the employee
As we have already understood, general rule temporary transfer, as well as transfer on a permanent basis, is made by agreement of the parties to the employment relationship. However, the Labor Code makes an exception for some cases. So, an employee can be transferred without his consent to work not stipulated by an employment contract with the same employer in order to prevent or eliminate the consequences of:- natural or man-made disasters;
- industrial accident or industrial accident;
- fire, flood, famine, earthquake, epidemic or epizootic;
- 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 to work not stipulated by an employment contract with the same employer is also allowed in the following cases:
- downtime (temporary suspension of work due to economic, technological, technical or organizational reasons);
- the need to prevent destruction or damage to property;
- replacement of a temporarily absent employee.
Plenum of the Armed Forces of the Russian Federation in Decree No. 2
noted that if, when transferring to another job in case of downtime, the need
to prevent the destruction or damage to property or the replacement of a temporarily absent employee, the employee will have to perform work of a lower qualification, then such a transfer is effective Part 3 Art. 72.2 of the Labor Code of the Russian Federation possible only with the written consent of the employee.
The Labor Code does not limit the number of such transfers of an employee during a calendar year, since in specified cases unforeseen and urgent work is carried out. But if, due to emergency circumstances, it becomes necessary to transfer an employee for a period of more than one month, the transfer is still possible only with the consent of the employee.
We emphasize: if the employer cannot prove the existence of circumstances with which the law associates the possibility of a transfer without the consent of the employee, such a transfer will be declared illegal ( clause 17 of Resolution No. 2 ). So, T. since 1999 worked as a cardiovascular surgeon at the Pskov Regional Hospital. By order of the chief physician, he was temporarily transferred without his consent to the polyclinic of the regional hospital for the position of a cardiovascular surgeon, citing the need for replacement vacant position and in order to prevent a threat to the life and health of the population. Considering the employer's decision to be unlawful, T. refused to perform his duties at the polyclinic, for which he was subjected to disciplinary action in the form of a reprimand. The court declared illegal both the disciplinary order and the temporary transfer order. The GBUZ did not provide evidence of the existence of emergency circumstances that necessitated the temporary transfer of an employee without his consent to work not stipulated by an employment contract. The transfer was made under the pretext of operational necessity, in the absence of exceptional cases indicating the real need for such a transfer, and therefore the specified transfer is illegal (Appeal ruling of the Pskov Regional Court dated October 2, 2012 in case No. 33‑1580).
note
Refusal to perform work during translation in case of emergency, committed in compliance with the law, is recognized as a violation of labor discipline, and absence from work - absenteeism ( clause 19 of Resolution No. 2 ). At the same time, it should be taken into account that due to par. 5 hours 1 art. 219, Part 7 Art. 220 of the Labor Code of the Russian Federation An employee may not be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, except for the cases provided for federal laws, until such a hazard is eliminated or from the implementation heavy work and work with harmful and (or) dangerous working conditions not provided for by the employment contract. Since the Labor Code of the Russian Federation does not contain norms prohibiting an employee from exercising this right even when the performance of such work is caused by a transfer on the grounds specified in Art. 72.2 of the Labor Code of the Russian Federation, the employee's refusal to temporarily transfer to another job for the above reasons is justified.
A temporary transfer without the consent of the employee must also be issued. For this, a transfer order is issued indicating the reasons (catastrophe, industrial accident, etc.). And of course, it is better to back up such an order with relevant documents, otherwise the employee may refuse to transfer.
Translation or relocation?
Sometimes the employer confuses a temporary transfer with a transfer and, instead of issuing an agreement and a transfer order, issues a transfer order. Recall that due to Part 3 Art. 72.1 of the Labor Code of the Russian Federation moving from the same employer to another workplace, to another structural unit located in the same locality, entrusting work on another mechanism or unit, if this does not entail a change in the terms of the employment contract determined by the parties , does not require employee consent.Before moving, carefully check the terms of the employment contract - whether it indicates the workplace, structural unit and whether the employee's labor function will change. Otherwise, avoid labor disputes. So, G., who works in the State Unitary Enterprise as a senior accountant, was moved to the position of an accountant. The PMU believed that these positions have similar job functions. Considering the dispute on invalidating the transfer order, the court noted: it follows from the employer’s order that in fact there was not a transfer, but G.’s transfer to another position, which entailed a change in the employee’s labor function. These actions were carried out without the consent of G., therefore, the order to move is illegal ( Appeal ruling of the Yaroslavl Regional Court dated April 25, 2013 in case No. 33‑2536/2013).
Remuneration for temporary transfer
For transfers made without the consent of the employee (in the cases mentioned in part 2, 3 art. 72.2 of the Labor Code of the Russian Federation), remuneration is made according to the work performed, but not lower than the average earnings for the previous job. That is, if the employee's salary for the work performed is lower than his previous average earnings, then he is paid the previous average earnings, determined in the prescribed manner.
Well, if wages new job exceeds the average earnings of the employee, then he is paid a supplement to the salary for a new job. Thus, the claims for the recovery of lost wages were satisfied by the court: during the period of temporary transfer to another position, the plaintiff acted as an employee of a higher position, therefore, the difference in wages is subject to recovery in his favor ( Ruling of the Perm Regional Court dated September 25, 2013 in case No. 33‑8092).
When a temporary transfer is carried out by agreement of the parties, the remuneration is also determined by agreement of the parties, however, usually when transferring an employee, the salary of a new position is set. If he is transferred to a less qualified job, the parties may agree to maintain the previous salary or to assign an additional payment to the previous salary.
Temporary transfer for medical reasons
As we found out, temporary transfer is carried out with the consent of the employee or without it. However, according to Art. 73 Labor Code of the Russian Federation the employer is obliged to transfer the employee to another job (position), if he needs it in accordance with medical opinion. Moreover, other work should not be contraindicated to the employee for health reasons.Note
The medical report is issued in the manner prescribed by the Order of the Ministry of Health and Social Development of the Russian Federation dated 02.05.2012 No. 441 “On Approval of the Procedure for Issuing medical organizations certificates and medical reports. A certificate of temporary incapacity for work is not considered a medical certificate.
When receiving a medical opinion from an employee, first of all, you need to pay attention to the transfer period indicated in the certificate, since the further actions of the employer depend on this.
If an employee is shown a temporary transfer to another job for up to four months, the employer must offer him another job suitable for health reasons. In the absence of such or refusal of the employee, the employer is obliged to remove him from work with the preservation of the place of work (position) for the entire period specified in the medical certificate. To do this, the employer issues an order in any form. The order should indicate the period for which the employee is suspended, if the period is still not specified, upon admission to work, an order should be issued on the admission of the employee.
If, in accordance with a medical report, an employee needs a temporary transfer to another job 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 by p. 8 h. 1 art. 77 Labor Code of the Russian Federation- the employee's refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation, or the absence of an appropriate job for the employer. Upon dismissal on this basis, the employee is paid severance pay in the amount of two weeks average earnings ( Part 3 Art. 178 Labor Code of the Russian Federation).
Note
According to Art. 254 of the Labor Code of the Russian Federation 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 the provision of another job, the pregnant woman is subject to release from work with the preservation of the average earnings for all missed working days as a result of this at the expense of the employer. A similar guarantee is provided for women with children under the age of one and a half years.
Temporary transfer of an athlete
This is a special type of temporary transfer - it can be carried out to another employer. Yes, based on Art. 348.4 of the Labor Code of the Russian Federation in cases where the employer is not able to ensure the participation of an athlete in sports competitions, it is allowed, by agreement between the employers, to temporarily transfer the athlete with his written consent to another employer for a period not exceeding one year. At the same time, the local employer temporary work enters into a fixed-term employment contract with the athlete in accordance with the requirements Art. 348.2 of the Labor Code of the Russian Federation.For the period of temporary transfer of an athlete to another employer, the originally concluded employment contract is suspended, but the validity period is not interrupted.
note
If an athlete during the period of temporary transfer to another employer wants to work part-time, permission for such work must be obtained both from the employer at the place of temporary work and from the employer with whom the employment contract was originally concluded ( part 2Art. 348.7 of the Labor Code of the Russian Federation).
In case of early termination of the employment contract concluded for the period of the athlete’s temporary transfer to another employer, for any of the reasons provided for by the Labor Code of the Russian Federation, the initially concluded employment contract is valid in full from the next business day after the calendar date on which the termination of the employment contract concluded on temporary transfer period.
If, after the expiration of the period of temporary transfer to another employer, the athlete continues to work for the employer at the place of temporary work and neither the athlete, nor the employer at the place of temporary work, nor the employer with whom the employment contract was originally concluded, require the termination of the employment contract concluded for the period of temporary transfer , and the renewal of the originally concluded labor contract, then the latter is terminated and the validity of the labor contract concluded for the period of temporary transfer is extended for a period determined by agreement of the parties, and in the absence of such an agreement - for an indefinite period.
Finally
As you can see, there are plenty of varieties of temporary translation, and each has its own characteristics. Let's recap the main points. Firstly, temporary transfer is carried out only within the organization (with the exception of athletes). Secondly, such a transfer is carried out with the consent of the employee. But the Labor Code of the Russian Federation established exceptions: the employer can make a temporary transfer for up to one month in case of prevention emergencies and disasters or their consequences. And thirdly, the remuneration of workers temporarily transferred without their consent cannot be lower than the average earnings for their previous job.
Approved by the Decree of the State Statistics Committee of the Russian Federation dated 01/05/2004 No. 1 “On approval of unified forms of primary accounting documentation for accounting for labor and its payment”.
Ivanova A., an employee of our company, was temporarily transferred to the position of Chief Accountant for the period of parental leave of the main employee Petrova A. Now the main employee Petrova A. is returning to work. Tell me, is it necessary to again conclude an additional agreement with Ivanova A. that she is returning to her main position?
Answer
Answer to the question:
No, if the temporary transfer terminates at the end of the term, then a new additional no agreement needed.
If the employee was temporarily transferred to another position for the period of absence of the main employee, then in connection with the entry of the main employee to work, the period of temporary transfer ends and the employee should be provided with her previous place of work.
Current legislation does not regulate how a temporary transfer should be completed.
But in practice, it is recommended to publish, which removes any risk of a dispute with an employee about recognizing a temporary transfer as permanent. In this case, it is not necessary to conclude an additional agreement, because. the transfer time was originally indicated in the add. temporary transfer agreement.
Details in the materials of the System Personnel:
- Situation:How to apply for the termination of the 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 is 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 to change the nature of the transfer and issue an appropriate one. Among other things, you will need to make records of the permanent transfer to and employee (approved).
It should be noted that if at the end, it is impossible to provide him with the previous work, then it is necessary ().
Ivan Shklovets,
Deputy Head of the Federal Service for Labor and Employment
Copy date: 09/12/2016
- Situation: From what date it is necessary to provide the employee with his main workplace, if the end of the temporary transfer period fell on the time of the employee's illness
Transfer to the main place at the end of the period of temporary transfer is possible during the period of illness.
An illness of an employee during the period of temporary transfer does not increase the period of transfer, including in a situation where the end of the temporary transfer falls directly on the period of illness. Therefore, the employee should be provided with his main workplace at the end of the temporary transfer period, determined, that is, from the next calendar day. For this purpose, the employer is recommended to publish about the end of the temporary transfer. In this case, in fact, the employee will start working at the main workplace and get acquainted with the order after the end of the illness. There will be no violation in this order. Such conclusions follow from a set of provisions, part 2 of article 22 of the Labor Code of the Russian Federation.
Ivan Shklovets, Deputy Head of the Federal Service for Labor and Employment
Material from KSS "System Personnel"
Ready-made solutions for the personnel service at www.1kadry.ru
Copy date: 09/12/2016
With respect and wishes for comfortable work, Tatyana Kozlova,
Expert Systems Personnel
The most important changes of this spring!
-
There have been important changes in the work of personnel officers that should be taken into account in 2019. Check in the game format whether you have taken into account all the innovations. Solve all the tasks and get a useful gift from the editors of the Kadrovoe Delo magazine. -
Read the article: Why should a personnel officer check accounting, is it necessary to submit new reports in January and what code to approve for a time sheet in 2019 -
The editors of the Kadrovoe Delo magazine found out which habits of personnel officers take a lot of time, but are almost useless. And some of them may even cause bewilderment in the GIT inspector. -
Inspectors of the GIT and Roskomnadzor told us what documents should never be required from newcomers when applying for a job. You probably have some papers from this list. We have compiled a complete list and selected a safe replacement for each prohibited document. -
If you pay holiday pay for the day late, the company will be fined 50,000 rubles. Reduce the notice period for the reduction by at least a day - the court will reinstate the employee at work. We have studied judicial practice and prepared safe recommendations for you.