TEMPORARY TRANSLATION: EXAMPLE STEP-BY-STEP PROCEDURE (GENERAL)

According to Part 1 of Art. 72.2 of the Labor Code of the Russian Federation:

"By agreement of the parties concluded in writing, an 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 this employee returns to work ".

1. One of the parties (employee or employer) comes up with the initiative to temporarily transfer the employee to another job.

The initiative may be verbal. And the parties in the negotiations come to an agreement on a temporary transfer.

The idea of ​​a temporary translation may also have a written form, but this is not necessary.

1.1. If the employee himself comes out with the initiative of temporary transfer to another job, then he can write an application for his temporary transfer to another job (position). The employee's application is registered in the manner prescribed by the employer, for example, in the register of employees' applications.

1.2. If the employer comes up with the initiative to temporarily transfer the employee to another job, he can make a written offer to the employee on temporary transfer to another job (position). The offer is made in two copies. The offer is registered in the manner prescribed by the employer, for example, in the register of notifications and offers to employees. One copy is given to the employee. On the second copy (the copy that remains with the employer), the employee writes that he is familiar with the proposal, received one copy, puts the date of receipt, and signs. If the employee agrees to the transfer, then he can put a "consensual note" on the employer's proposal or write a statement of consent to the transfer. The employee's application is registered in the manner prescribed by the employer, for example, in the register of employees' applications.

2. Familiarization of the employee with his job description (for a new position), other local regulatory legal acts directly related to his new labor activity.

The order of acquaintance with local regulations is not defined by the code, in practice there are various options:

Familiarization sheets are attached to the local regulatory act, on which employees put their signatures confirming familiarization and the dates of familiarization (such sheets are stitched together with the local regulatory act),

Keeping logs of familiarization with local regulations, in which employees put their signatures confirming familiarization, and indicate the dates of familiarization.

A certain procedure for familiarization with local regulations can be enshrined in such an act itself. Find out your employer's procedure for familiarizing employees with local regulations before you begin to familiarize an employee with them.

3. Signing a written transfer agreement between the employee and the employer (to the employment contract) and, if there are grounds, the signing of an agreement on the full liability.

The agreement and the contract are drawn up in two copies (one for each of the parties), unless a larger number of copies is provided for the given employer.

4. Registration of a transfer agreement and an agreement on full liability in the manner prescribed by the employer. For example, an agreement can be registered in the register of agreements for employment contracts with employees, and an agreement on full liability - in the register of agreements on full liability with employees.

5. Handing over to the employee his copy of the transfer agreement.

The receipt by the employee of a copy of the agreement should be confirmed by the signature of the employee on the copy of the agreement remaining for storage with the employer. We recommend putting the phrase “I have received a copy of the agreement” before the signature.

If an agreement on full liability is signed with the employee, then one copy of it is also transferred to the employee.

6. Issuance of an order (instruction) on the transfer of an employee to another job.

7. Registration this order(orders) in the manner prescribed by the employer, for example, in the register of orders (orders).

8. Familiarization of the employee with the order (instruction) against signature.

Notes.

* Information about a temporary transfer is not entered in the employee's work book. Therefore, it is recommended to resolve with the employee the issue of issuing him a copy of the temporary transfer order, duly certified, so that the employee can confirm in the future, if necessary, that he performed this work.

** The issue of entering information about a temporary transfer into a personal card is controversial in practice.

*** At the end of the temporary transfer period, an order may be issued to end the temporary transfer period.

• Book

The implementation of a temporary transfer of an employee in case of production necessity is regulated by Article 72.2 of the Labor Code of the Russian Federation.

Based on the provisions of the current labor code, it is possible to conditionally distinguish three types of temporary transfers.

First view: to eliminate the consequences of catastrophes, accidents and other emergencies (fire, flood, explosion, etc.), if the consequences of such an event threaten the normal living conditions of a population group. Translation is allowed for a period up to one month.
Notice two things about this translation:

• it applies only in emergency situations when delay can lead to serious consequences for citizens;
• law does not require employee consent to such a transfer in view of the above circumstances. Therefore, if a person refuses to perform the work entrusted to him, this will be considered absenteeism.

Article 72.2 paragraph 2
In the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic, and in any exceptional cases that endanger the life or normal living conditions of the entire population or part of it, the 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 these cases or eliminate their consequences.

Second view: transfer to other areas in case of downtime or to prevent the destruction of material assets or their deterioration.

The term “idle” means the temporary absence of work in the organization for a certain circle of employees due to objective reasons - there are no raw materials, necessary tools, there are difficulties with sales finished products and so on.

Always required to receive employee's consent to temporary transfer of this type, however, there are:

• if the named events were caused by natural disasters or man-made disasters;
• if the transfer involves work in a higher position or equivalent.

Article 72.2 paragraph 3
The transfer of an employee without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer is also allowed in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent the destruction or damage of property, or replacement temporarily absent employee, if downtime or the need to prevent the destruction or damage of property or to replace a temporarily absent employee is caused by the emergency circumstances specified in part two of this article. At the same time, transfer to work requiring lower qualifications is allowed only with the written consent of the employee.

Third view: temporary transfer to another position until the release of the main employee or, in other words, temporary performance other work with the same employer (up to one year) replacing an absent employee for a period until he again begins to fulfill his duties (for example, during maternity leave).

In this case, you must obtain the consent of the transferred employee.

Article 72.2 paragraph 1
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 returns to work. 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, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent.

Target

Having become acquainted with the types of temporary transfers, it is already possible to imagine a typical situation in which this legal instrument can be used: certain direction activities of the organization arise acute shortage of staff and the employer there is no way to invite new employees to solve this problem.

To get out of this situation, employees are transferred from less stressful areas who performed other work. Thus, the transfer of an employee to another position within the organization temporarily covers the shortage of personnel in a certain area of ​​the company's activities.

Decor

Change labor function on the certain period requires a certain order.

A similar algorithm is applicable for translation temporary worker on temporary job title.

Should start with notifying an employee that it is planned to entrust him with another job in a temporary transfer.

Employee agree on paper with upcoming translation. For example, in the form addressed to the director.

It concludes where the parties will prescribe the terms of the temporary transfer, the name of the new position, the unit and the amount of remuneration.

The transfer procedure ends with a design, with which the employee must be familiarized until the day of the temporary transfer.

Depending on who makes the decision to transfer and for what reason, the need to obtain consent is determined.

If the law does not require the consent of the employee, then all registration will consist only of the last stage. For example, in the case production needs.

Production necessity is the situation in the organization caused by emergency events, the onset of which is difficult to predict: a catastrophe, an accident, a fire, an epidemic, and others.

In a situation where a temporary transfer is made to replace an employee who is on maternity leave, documents no exact end date for such a transfer can be specified.

In fact, an employee "on maternity leave" can at will resume their duties, and then the replacement employee should be returned to their previous place of work.

In this case, the employer needs to show maximum flexibility in order to avoid infringement every worker.

Entry in the work book

Law does not provide making notes on cases of transfers of this kind in work books.

A situation may arise when a person worked, for example, as a head in the order of a temporary transfer, and he needs to confirm this fact for further employment.

To confirm their experience, an employee can use a copy of your transfer order or .

Often there are situations when an employee remains to work in a new place and after the end of the period temporary translation. It turns out that the employee will actually work in a new position from the same date, and the information in the work book will be entered upon publication. Some HR professionals get out of this situation as follows:

• in column 3, which indicates the unit and position, they also write the date from which the temporary transfer was made;
• in column 4 they immediately refer to both orders of the director legal entity who approve both temporary and permanent transfers.

Return to former duties

Temporary translation, like everything non-permanent, involves return of the employee to his normal work function.

Most often, the employer publishes, which describes which employee from which date and in which unit will continue to work at the end of the transfer period.

But the absence of such a local document will not interfere employee to return to their previous position. The fact is that the order of the director, according to which the employee was transferred, had already expired. Consequently, the parties return to their previous position.

The employer is obliged to provide an opportunity to work in the specialty to an employee who was previously transferred to another job for a certain period.

Leaders should always keep in mind that temporary transfer is an emergency measure. This method of solving personnel and production problems is best used in only in extreme cases. In the end, each person must work in his position, corresponding to his knowledge and qualifications.

temporary transfer

Temporary transfer - whether the consent of the employee is required

Does the manager have the right to transfer an employee without his consent due to personal hostility?

When can an employer transfer an employee to replace a temporarily absent employee?

Such questions often arise before the employee.

For example, the immediate supervisor repeatedly showed the employee and expressed dissatisfaction with the results of his work. He also believed that the employee did not get along with colleagues, and because of this, there was a tense atmosphere in the team. In this regard, he was temporarily transferred to another department to another position. But the employee did not agree to this. Can an employer transfer an employee without his consent?

No, not right. Labor Code provides that an employee can be transferred to another job only with his written consent (part one, article 72.1 of the Labor Code of the Russian Federation). However, there are exceptions.

The first is if the employee is transferred in order to prevent (eliminate) the consequences of an industrial accident, fire, flood and other incidents that endanger the life (living conditions) of the entire population or part of it (part 2 of article 72.2 of the Labor Code of the Russian Federation).
The second is if an employee is transferred in cases of downtime, the need to prevent the destruction of property or replace a temporarily absent employee1 (part 3 of article 72.2 of the Labor Code of the Russian Federation). At the same time, the period for which an employee can be transferred should not exceed one month.

When can an employer transfer an employee to replace a temporarily absent employee?

Worker "I". without his consent, was transferred to replace a temporarily absent worker who was injured due to a house fire. The employer considered that the employee's consent was not required because the substitution was caused emergency. Is it legal?

No, the employer did the wrong thing. When transferring an employee to replace a temporarily absent employee, written consent is not required if two conditions are met.

Firstly, the need for replacement is caused by emergency circumstances that endanger the life (normal conditions) of the entire population or part of it.
Secondly, the work to which the employee is transferred corresponds to his qualifications.

In our case, the employee is absent for personal reasons that do not relate to extraordinary circumstances for the employer. And in order for the court to recognize the transfer without the consent of the employee as legal, the employer will need to prove that there was a real need for this (paragraph 17 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2, ruling of the Supreme Court of the Russian Federation of April 8, 2010 No. 53-B11 -one).

Should an employee agree to a transfer if the company is idle?

Example: the factory has entered a downtime mode due to lack of funding. In this regard, employees were temporarily transferred to other workshops without their consent. However, they felt that their rights had been violated. Did the employer have the right to transfer workers without prior agreement?

No, the employer had no right to do so. In this case, it was necessary to obtain the written consent of the employees before transferring them to other workshops. Downtime can be declared both for one employee and for the organization as a whole. When idle, you can transfer employees:

- with their written consent to other work that is not contraindicated for them for health reasons, for a period of up to one year;
- without their consent for a period of up to 1 month to work not stipulated by an employment contract, if the downtime is caused by emergency circumstances;
– with their written consent to another permanent job.

From a transfer to another job, it is necessary to distinguish the transfer of an employee to another workplace, to another structural subdivision from the same employer. In this case, the consent of the employee is not required if a specific structural unit was not indicated in the employment contract. Otherwise, the place of work will be prerequisite of the contract, and its change is possible only with the written consent of the employee (part three of article 57 of the Labor Code of the Russian Federation).

Is the employee's consent required when transferring to a lower position?

Example; Employee "I" worked at the enterprise as an engineer. He was transferred to the position of a mechanic to replace a temporarily absent employee who suffered an accident at work. The employer believed that since such a need was caused by extraordinary circumstances, the consent of the employee for a temporary transfer was not required. Employee "I" did not come to work, as he considered such a transfer to be unlawful. Then he was fired for absenteeism. Is the employer right?

No, not right, since the position to which the employee "I" was transferred. is less qualified. In this situation, the employer has the right to transfer an employee without his consent only if the position to which he is being transferred corresponds to his qualifications. Then the refusal to transfer will be regarded as a disciplinary offense, and absence from work as absenteeism (paragraph 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2). But in our case, the employer did not receive written consent from the employee "I", which means that he was not entitled to dismiss him for absenteeism.

Can a temporary transfer be extended for more than one month?

There was a major accident at the plant. To eliminate its consequences, several workers were transferred from other areas. It was not possible to eliminate the accident in a month, but the legislation provides for a maximum period of temporary transfer in such a situation - one month. What should an employer do? Is it possible to extend the transfer?

Temporary transfer of workers to eliminate the consequences of industrial accidents is allowed for up to one month. That is, if an employee is transferred from November 10, then on December 10 he must already begin to fulfill his duties under the employment contract. Such a transfer cannot be extended for more than one month. At the same time, the Labor Code does not specify how many times during a calendar year an employer can transfer employees without their consent. Since the cause is, as a rule, urgent work that cannot be foreseen in advance.

In this situation, there are two ways to proceed.
The first is to provide employees with work stipulated by their employment contracts after the expiration of the transfer period (one month). After they have worked at least one working day in their places, they can again be transferred to another site to eliminate the consequences of the accident for up to one month. In this case, the consent of the workers is not required. The second is by mutual agreement, that is, with the written consent of the employees, to transfer them to another job for a period of more than one month.

Most transfers are possible only with the consent of the employee. Employers often make mistakes in additional agreements by writing in them a new position, salary and other changing conditions, but forget about the deadline for the transfer or indicate the completion date when this is not necessary. The employee may not challenge the return to his previous position, but he can divert the resources of the employer to the process.

TRANSLATION ACCORDING TO PRODUCTION NEEDS.

For such a transfer, the consent of the employee is required. Temporary transfers to another job are used for various purposes, in particular, to replace the main employee who went on long leave (annual, educational leave to take care of a child).

Often, a temporary transfer is used as a test of an employee in a new promising position. This is usually how potential leaders are tested. different levels. After all, the test is set only when applying for a job ... And a transfer for a certain period will achieve a similar result, but with long-term employees.

By general rule: temporary transfer is possible by agreement of the parties. It is concluded in writing. The employee's consent is required for any type of transfer, both permanent and temporary.

A temporary transfer is not necessarily associated with a promotion. Downgrading will also be legal. For example, if a woman family circumstances wants to work according to the schedule that is used in a lower-paid position.

In such cases, it is advisable to play it safe and take a statement from the employee in which the employee’s intention to own initiative move on to another job. Such a statement will exclude the employer's accusations of forcing the employee to write a statement. It is drawn up in addition to the agreement, where the details of the temporary transfer are prescribed.

Temporary transfer without the consent of the employee

Sometimes a temporary transfer is possible without the consent of the employee. The employer issues an order because he considers the reason for such a decision to be weighty and significant. The most common reasons are production needs and suspension of activities. In any case, the transfer ends with the provision of the employee with the previous job.

The law establishes a one-month period for the temporary transfer of an employee without his consent.

A temporary transfer entails a change in the terms of the employment contract: positions, remuneration, and possibly the mode of work. These nuances are fixed in an additional agreement. It also sets the expiration date of the transfer. If the employee replaces a colleague, the transfer will be completed after he returns to work.

You can only move an employee within the locality where he works. If this principle is violated, it is impossible to punish an employee for absenteeism (part 3 of article 72.1 of the Labor Code of the Russian Federation, definitions of the Rostov regional court dated 10.08.2015 No. 33-11932/2015.

If the manager is not confident in the newcomer, then it is better to make the transfer time as short as possible. Then you do not have to negotiate with him to reduce this period. It will not work to cancel the transfer by order, as is allowed when combining professions.

It is not necessary to transfer information from the temporary transfer order to the work book. It is intended only for permanent transfers.

THE DIFFERENCE OF TRANSFER FROM RELOCATION

The consent of the employee is almost always required for the transfer. It is not required when moving.

Translation is characterized by a change in the labor function. When moving, the unit, cabinet, etc. changes, but the functionality remains the same. The transfer affects the terms of the employment contract, while the transfer does not.

Return of an employee after a temporary transfer

At the end of the temporary transfer of an employee, the employer is faced with the following situations. The employee returns to his previous duties. In most cases, the return to the original position goes without problems, but sometimes a temporary job is more attractive than the previous job. And then some employees say that the temporary transfer has become permanent. The main argument is that the employer did not provide the previous job, and he continues to work in the new conditions (part 1 of article 72.2 of the Labor Code of the Russian Federation).

In the event of a litigation, the employer will have to prove the opposite. That is, to confirm the fact of the return of the employee to the previously held position. This will help report cards, work plans and correspondence, as well as testimonies.

Such manipulations will nullify the order to complete the temporary transfer. Moreover, it is advisable to publish it regardless of whether the employee is loyal or not. For the order, a unified form is suitable. The full name of the employee, the date of the provision of the previous place of work and the position to which he is returning are entered in it.

The order should be issued a couple of days before the end of the transfer. After all, conflicts arise even because of one day of delay. If the employee does not want to sign the order, then they draw up an act of refusal. After fixing the provision of the previous workplace, it will become easier for the employer to refute any claims against him. This also applies to checks on complaints to the GIT.

Not all temporary translations cause conflicts. Employees who have proven themselves with better side, remain in the new position permanently. Formally, the parties do not need to do anything for this. The employee continues to work in the new place. The employer does not provide him with the previous position. That is, the transformation of a temporary transfer into a permanent one occurs by itself.

But you still need to complete the paperwork. It is necessary to sign an agreement that excludes the condition of the transfer period from the employment contract ... It is necessary to issue an order that will be required to fill out the work book and to inform stakeholders, in particular, accounting, timekeeper, etc.

The law does not say what the entry in the work book should look like, but it should be done like this. After the serial number, column 2 indicates the start date of the temporary transfer. Column 3 reflects the position and division that have become permanent. Column 4 is reserved for details. It is advisable to reflect two orders in it: about the transfer and that the transfer has become permanent.

There are emergency situations that give the employer the right to temporarily transfer the employee, without his consent. Employees can be involved in the prevention of accidents, fires, floods or eliminate their consequences. In this case, the transfer (even to a lower position) without the consent of the employee will be legal. It can last a month.

There are also temporary transfers during downtime, to replace an absent colleague and prevent the destruction or damage to property. But the consent of the worker is not asked only when these events are caused by cataclysms. So, downtime due to a burnt shop allows you to move the joiners from the manufacture of furniture to its restoration. But it is no longer possible to send them to clean up the territory. Temporary transfer with a reduction in qualification requires written consent (part 3 of article 72.2 of the Labor Code of the Russian Federation).

There are no similar articles yet.

This term refers to the movement of an employee to another position, to another department or locality. The transfer can be carried out on a permanent basis, or for a certain period of time. It can be carried out only with the consent of a person, with the exception of cases specifically stipulated in the Labor Code of the Russian Federation.

Temporary transfer to a vacant position

Transfers for a certain period of time are regulated by Article 72.2 of the Labor Code of the Russian Federation. It says that by agreement between the parties to the employment relationship, the employee can be transferred to another job, but only for a period not exceeding 12 months.

The translation order is as follows:

• Drawing up a written agreement, supplementing the existing employment contract, that the person will be transferred to another position temporarily;
• Issuing a transfer order. As a rule, a unified form T-5 is used for this.

In the case when, after the completion of the transfer period, the employee remains on new job by default, that is, none of the parties expressed a desire to return him to his previous position, then such a transfer becomes permanent. To do this, you need to issue the following documents:

• Another addition to the employment contract, in the form of an agreement that the temporary transfer is changed to permanent;
• An order that refers to a change in the transfer time.

Note! If the transfer was made to vacant position with the wording “until the vacancy is filled”, the period of 1 year is still valid. Therefore, in order not to contradict the provisions of Article 72.2 of the employee, after a year it is necessary to transfer to the previous position, and then issue another transfer.

If there is a transfer temporary worker to another temporary work, then the order will not change. The only thing that the personnel department must take into account is that the duration of the transfer should not exceed the term of termination of the main contract, otherwise the employee may become permanent, that is, his contract is recognized as open-ended.

Temporary transfer of an employee to replace an absent employee

The case when a temporary transfer is carried out to a staff unit that already has an employee, but is temporarily absent, is stipulated separately in the legislation. In this case, the transfer period is limited not to 1 year, but to the time of absence of the main employee. Accordingly, it may exceed the specified 12 months. For example, you can make a temporary transfer for three years if the employee went on maternity leave.

The order of registration will be the same as in the previous case.

Note! In the case of a transfer to the place of an absent employee, it is better not to put down a specific number as the end date, but to indicate an event that will mark the end of the transfer period. For example: “The transfer is carried out from 10/01/2017 until the end of the period of disability and the manager Esenina A.V. returns to work.”

Temporary transfer to another job without the consent of the employee

The Labor Code of the Russian Federation provides a list of factors and conditions under which an employee can be transferred without his consent:

• in the event of natural and man-made disasters, as well as other factors in which there is a risk of a threat to the life and health of people around;
• in the event of downtime, as well as to eliminate the risk of damage and loss of property, if these circumstances were caused by the factors listed above.

Such a transfer can be carried out for a period not exceeding 1 month.

Is a temporary transfer included in the work book

In accordance with Article 66 of the Labor Code, temporary transfer is not included in the list of information that must be reflected in the work book.

This means that when transferring for a certain time, an entry in the work book is not made.

But if, after the expiration of the transfer period, not one of the parties expressed a desire for the employee to return to his previous place of work, then the transfer from temporary turns into permanent, and, therefore, it must be reflected in the work book.

In this case, the actual date is affixed when the employee violated the performance of new duties. That is, in fact, the recording will be made later specified date. But at the same time, one more point must be taken into account - the details of which order should be entered into the labor? The legislation does not regulate this issue in any way. But in practice, it is recommended to make two orders in column 4:

• temporary transfer order (the date indicated in the document will coincide with the transfer date);
• an order to recognize the transfer as permanent (this order will contain the date when the transfer becomes permanent).

If, however, an entry has already been made in the workbook about the transfer for a while, which has not become permanent, then it is corrected in the same way as all incorrect entries in the workbook.

Conclusion

Temporary transfer involves the transfer of an employee to perform another job for a certain period. After the end of this period, he returns to his previous job, or the transfer becomes permanent. The transfer time should not exceed 1 year, except for cases when the transfer is made to a temporarily vacant position.

In any organization, both with a large staff and with a small one, it may be necessary to temporarily transfer an employee to another job. How to arrange a translation correctly, in which cases the consent of the employee is required, in which not, what are the various consequences of incorrect translation and execution - we will understand in this article.

Do not confuse the temporary transfer of an employee to another job with part-time and combination. Consider first the difference between temporary transfer, part-time and combination.

part-time

The concept of "combination" is contained in Art. 282 of the Labor Code of the Russian Federation. A part-time job is the performance by an employee of another paid job in his spare time, and the number of such part-time jobs is not limited, the main thing is not to the detriment of the main job. Part-time work is displayed in the employment contract indicating that it is not the main one. Compatibility is of two types:

• internal part-time job is work for the same employer, in the same organization;
• external part-time work is work for other employers, in other organizations.

Combination

The concept of "combination" is contained in Art. 60.2 of the Labor Code of the Russian Federation. Combination is the performance by an employee of a greater amount of work, for example, the performance of more duties of an absent employee. At the same time, the employee is not released from the main job and works in combination not in his free time, but during the main working hours. In other words, the worker has a heavy burden. At the same time, an employee can perform additional work both in one and in another profession. When combining, it is not required to conclude a new employment contract, in contrast to part-time employment.

Temporary transfer to another job

Temporary transfer of an employee to another job occurs by agreement of the parties, concluded in writing. The concept of temporary transfer is contained in Art. 72.2 of the Labor Code of the Russian Federation. An employee may be temporarily transferred to another job with the same employer for up to one year. A situation may arise that the transfer is required during the absence of another employee and its duration does not fit into one year, then the period will be set with the wording "until the main employee goes to work."

If, after the expiration of the temporary transfer period, the employee did not demand to return him to his previous job, the “old” job was not provided by the employer and the employee continues to work, then the transfer is automatically considered permanent.

That is, unlike a combination and part-time job, during a temporary transfer there is no additional burden in excess of the main job (neither from your employer, nor from another), it does not bring additional income to the employee and, accordingly, is often simply not interesting to him.

Let's consider three cases of temporary transfer: in agreement with the employer, according to production needs and forced transfer.

Temporary transfer by agreement of the parties

Temporary transfer by agreement of the parties is probably the easiest transfer. It seems to be nothing complicated, but at the same time, the employer needs to pay attention to the correct design of such a translation.

Consider a situation where the main employee either fell ill, or went on a business trip for a couple of months, or went on a long vacation, or on a regular another vacation, and it became necessary to replace such an employee. Here, it is just possible to temporarily transfer an employee to the position of an absentee, since, for example, there are urgent unfinished issues, without signing any documents, production will stop or the employee quit altogether, but for now they will find a replacement for him, it is necessary to perform certain work.

Unlike part-time employment, a temporary transfer of an employee is not displayed in the work book, everything happens exclusively by agreement of the parties. Although, on the other hand, it is necessary to display the temporary translation in personnel documents, namely in the personal card of the employee in the form T-2 (clause 4 of the Rules for maintaining and storing work books, approved by the Government Decree Russian Federation dated April 16, 2003 No. 225).

Before transferring a temporary employee to another job, it is necessary to inform him about it. How long is not established by law, so there is no need to wait for certain days, weeks. Such a message (notification) can be both in writing and orally, the main thing is to get the consent of the employee that he is not against it.

After obtaining consent between the employer and the employee, an additional agreement is concluded to the employment contract, in which it is necessary to indicate the basis for the transfer, for how long the transfer is carried out, the level wages if it is subject to change, working time if it is different from the real one. The level of wages is also not determined by law and remains at the discretion of the employer and employee, i.е. by agreement.

It is advisable in such an additional agreement to clearly indicate the time of the temporary transfer. For example, if this is a business trip of another employee or a production need, you can specify a certain date until which the transfer will be made; if before a certain event - this event is indicated, for example, the employee's exit from vacation, the acceptance of a new employee for this position, etc.

After clearance additional agreement the head issues an order for the temporary transfer of the employee in the form No. T-5 or T-5a (these forms are approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1). In such an order, the employer should indicate the reasons for the temporary transfer, the work performed, the term and wages.

The employer should not forget that with this order, as with others, the employee must be familiarized with signature. This familiarization and signing of the order by the employee will be the official receipt of his consent to the temporary transfer.

Also, employers should take note of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, which clearly states that an employee can be temporarily transferred to another job only with the same employer with whom he is in labor relations and work should not be contraindicated for health reasons. It is also stipulated that if, when transferring to another job in the event of downtime, the need to prevent the destruction or damage to property, or to replace a temporarily absent employee, the employee will have to perform work of a lower qualification, then such a transfer, by virtue of Part 3 of Art. 72.2 of the Labor Code of the Russian Federation is possible only with the written consent of the employee (clause 18 of this Decree).

An employer's action will also be a mistake if, for example, an employee was temporarily transferred to another job and then fired, because the employer took another employee to his previous place. Do not forget that during a temporary transfer, the employee retains his workplace and he can safely return after the agreed period. This situation was considered by the Constitutional Court of the Russian Federation, and such a conclusion is contained in the Ruling of the Constitutional Court of the Russian Federation of December 24, 2013 No. 1912-O: “The court explained that Art. 72.2 of the Labor Code of the Russian Federation provides for cases of temporary transfer to another job, while, by written agreement of the parties, an employee can replace a temporarily absent employee, who, in accordance with the law, retains a job until this employee returns to work. At the end of the transfer period, the employee is guaranteed the provision of the previous job, but if the employee was not provided with the previous job, 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. Such regulation also cannot be considered as violating the constitutional rights of citizens.”

Temporary transfer if necessary

The concept of temporary transfer in case of operational necessity is also contained in Art. 72.2 of the Labor Code of the Russian Federation. Two cases are considered:

• in the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic, and in any exceptional cases that endanger the life or normal living conditions of the entire population or part of it, the 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 these cases or eliminate their consequences;
• the transfer of an employee without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer is also allowed in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent the destruction or damage to property, or replacement temporarily absent employee, if downtime or the need to prevent the destruction or damage to property or to replace a temporarily absent employee is caused by extraordinary circumstances.

It is also clarified that temporary transfer to work requiring lower qualifications is allowed only with the written consent of the employee. And also in case of temporary transfers on the above grounds, the level of wages is made according to the work performed, but not lower than the average earnings for the previous job.

With such a transfer, in the event of a production need, the employer should take into account that in the event of disputes with employees, he will be obliged to prove the existence of circumstances that led to a temporary transfer for the named circumstances. This is expressly stated in paragraph 17 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.

Consider, for example, the following situation: there was some kind of catastrophe (accident) at work, the employer issued an order for the temporary transfer of workers to eliminate the consequences of the catastrophe (accident) and did not indicate the reason for the transfer in it, and the employee did not agree to transfer, even temporarily, to work to eliminate the catastrophe (accident). Subsequently, due to the fact that the employee refused to temporarily transfer to another job, the employer fired him. Is it legal in this situation to dismiss an employee because of his refusal to temporarily transfer?

To resolve this issue, let us turn to the Ruling of the Kemerovo Regional Court dated February 29, 2012 No. 33-1817: “... When considering the case, the court concluded that the employer had grounds for transferring the employee, that is, circumstances that endanger life and normal living conditions the population or part of it. The court referred to such circumstances the deformation of the support, which can lead to the collapse of the rock and the death of people, as well as the blocking of the conveyor belt, which can lead to smoke, fire and fire.

However, when considering the case, the defendant (employer) did not provide evidence of the existence of emergency circumstances that necessitated the temporary transfer of the employee without consent to work not stipulated by the employment contract.

About the presence of any emergency circumstances that allow the transfer of employees in accordance with Part 2 of Art. 72.2 of the Labor Code of the Russian Federation, not mentioned in the order.

In addition, such involvement of an employee in work by the employer was not properly executed, since the order applies to tunnellers, and he worked as a mining machine operator, and therefore an order should be issued in form No. T-5 indicating the reason for his transfer. In this case, the basis for the transfer is of fundamental importance, the order must be supported by relevant documents, otherwise the employee may refuse to transfer.

Russian legislation does not establish the obligation of an employee to be at the workplace in the event of his illegal transfer. Under such circumstances, his refusal to illegally translate could not be regarded as a violation labor discipline, in connection with which the imposition of a disciplinary sanction on him in the form of dismissal is unlawful.

In paragraph 40 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, it is prescribed that when considering a case on the reinstatement of a person transferred to another job and dismissed for absenteeism due to refusal to proceed with it, the employer is obliged to provide evidence testifying to the legality of the translation itself (Articles 72.1, 72.2 of the Labor Code of the Russian Federation). If the transfer is recognized illegal dismissal for absenteeism cannot be considered reasonable and the employee is subject to reinstatement in his previous job.

Taking into account the circumstances of the case and the requirements of the law, it is significant for resolving the case whether the employer complied with the law when transferring an employee to work not stipulated by an employment contract.

Having established these circumstances, the court of first instance concluded that there was a case under Part 2 of Art. 72.2 of the Labor Code of the Russian Federation, endangering the life or normal living conditions of the entire population or part of it, and therefore considered that the employer had the right to transfer employees without their consent to work not stipulated by an employment contract in order to prevent this case.

Based on the analysis of this case, employers should think about the fact that for a correct temporary transfer in the event of an operational need, they should either obtain the consent of the employee for a temporary transfer, or independently issue an order on the temporary transfer of the employee / employees with the obligatory indication of the reason for such a transfer. At correct design a temporary transfer order indicating the reason, timing or a specific event, the employer will be able to avoid misunderstandings on the part of employees, as well as save themselves from litigation.

It should also be taken into account that the employee has the right to refuse the transfer if it is dangerous for his life and health. An unreasonable refusal of an employee to temporarily transfer in these situations will be regarded as a disciplinary offense, and absence from work as absenteeism. This is clearly stated in paragraph 19 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”.

However, by virtue of par. 5 hours 1 art. 219, part 7 of Art. 220 of the Labor Code of the Russian Federation, an employee cannot be subjected 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, with the exception of cases established by federal laws, until such a hazard is eliminated, or from performing work with harmful and (or) hazardous conditions work not covered by the employment contract. Since the Labor Code of the Russian Federation does not contain norms prohibiting an employee from refusing to perform such work even when they are due to a transfer on the above grounds, the employee’s refusal to temporarily transfer in accordance with Art. 72.2 of the Labor Code of the Russian Federation for the reasons mentioned above is justified.

Temporary transfer in the cases specified above is allowed only for a period of up to one month and should serve the purpose of preventing these cases or eliminating their consequences.

Conclusion

In conclusion, I would like to note that a temporary transfer is carried out by agreement of the parties, but this is at best. Then it just needs to be properly drawn up so that claims against each other do not arise in the future.

When a temporary transfer of an employee in case of production necessity, it is imperative to indicate in the order itself why such a temporary transfer is necessary. It should not be forgotten that if the functions of the employment contract do not provide for the conditions for preventing the consequences of any disasters or the transfer to work is in no way connected with the skills, knowledge, skills of the employee and the transfer will really threaten his life and health, only in this case the employee can refuse the transfer. I repeat, an unreasonable refusal of an employee from a temporary transfer in case of production need, with a real need in the organization, is not allowed.

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