The consequences of an employee's refusal to transfer to another permanent job or the employer's lack of a suitable job. How to file a refusal to transfer to another position If the employee refuses to transfer

Article 72.1. Transfer to another job. moving

Transfer to another job - permanent or temporary change labor function employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer, as well as transferring to work in another area together with the employer. Transfer to another job is allowed only with the written consent of the employee, except for the cases provided for by parts two and three of Article 72.2 of this Code. At the written request of the employee or with his written consent, the employee may be transferred to permanent job to another employer. In this case, the employment contract at the previous place of work is terminated (paragraph 5 of part one of Article 77 of this Code). workplace, to another structural unit located in the same area, entrusting him to work on another mechanism or unit, if this does not entail a change in the terms of the employment contract determined by the parties. It is forbidden to transfer and move an employee to work that is contraindicated for him for health reasons.
Article 72.2. Temporary transfer to another job
(Introduced by Federal Law No. 90-FZ of June 30, 2006)

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 . 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 of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent. In the event of a natural or technogenic character, 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 up to one month for non-contractual work with the same employer to prevent these cases or elimination of 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 destruction or damage to property or replacement of a temporarily absent employee, if the downtime or the need to prevent the destruction or damage to property or replacement of a temporarily absent employee is caused by the emergency circumstances specified in part two of this article. At the same time, a transfer to a job requiring a lower qualification is allowed only with the written consent of the employee. In case of transfers carried out in the cases provided for in parts two and three of this article, the employee’s remuneration is made according to the work performed, but not lower than the average earnings for the previous job.

Article 74
(in ed. federal law dated 30.06.2006 N 90-FZ)
In the case when, for reasons related to changes in organizational or technological working conditions (changes in engineering and production technology, structural reorganization production, other reasons), the terms of the employment contract determined by the parties cannot be saved, they can be changed at the initiative of the employer, with the exception of changes in the labor function of the employee. is obliged to notify the employee in writing no later than two months, unless otherwise provided by this Code. If the employee does not agree to work in the new conditions, the employer is obliged in writing to offer him another job available to the employer (as vacant position or a job corresponding to the qualifications of the employee, and a vacant lower position or lower paying job), which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided collective agreement, agreements, labor contract. In the absence of the specified work or refusal of the employee from the proposed work, the labor contract is terminated in accordance with paragraph 7 of the first part of Article 77 of this Code.

Dismissal in case of refusal to transfer, whether it be a new structural unit or position, should be. Under the law, the employee is able to refuse duties and conditions not specified in the employment contract. But first you should seriously think about what is best for you -.

As a matter of fact, this is your right, which is clearly spelled out in the Labor Code and other acts and laws. But also at certain conditions the employer also has the right to fire an employee who refuses a proposed transfer.

Regulatory regulation

The law clearly spells out the rules for dismissal. various categories of people. At the same time, some of them can be fired only under special circumstances or quit for a number of reasons. Everything depends more and more on why a person does not want to go to another unit,.

The legislation contains various articles on this subject:

According to the Labor Code of the Russian Federation, Part 3 and Part 4 of Art. 73 An employee may refuse a proposed transfer to another position on the basis of medical indications and quit your job.
Also, according to Article 74, Part 4, an employee can refuse his job and quit if one of the parties violates or changes the contract.
An employee may be dismissed upon transfer to another locality by the employer in accordance with Art. 72.1.

Transfer to another position, another locality, etc. also refers to changes in working conditions that are not covered by normal employment contracts. But the dismissal of an employee can also be carried out for reasons that do not depend on the will of the parties.

Often such manipulation is carried out during. In general, if the employee refuses to transfer, the employer, in accordance with part 6 of article 77, has the right to dismiss the employee.

What is the risk of rejection

An employee's refusal to transfer can be motivated by a number of reasons. At the same time, it is important to take into account the factor that sometimes there are situations when the parties simply have no choice. For example, when reducing, the employer is obliged to offer another position or place of work to the employee. But if the latter refuses, then the owner of the organization has every right to dismiss him.

On the other hand, there are certain categories of citizens to which this thesis does not apply. These are mostly single parents, people who are dependent on children under 3 years old. In such cases, the employee usually has the right to refuse the proposed transfer without consequences.

Important! The employee must be notified of the upcoming transfer in advance. This is usually done at least two months before the event.

Dismissal in case of refusal to transfer to another job

Dismissal in case of refusal to transfer can be carried out in different situations differently. It is important to know that when offering an employee a new job, position or other conditions that were not specified in the contract, the employer must understand that these conditions are fully consistent with the qualifications and level, experience, and salary of the employee.

To another employer

Dismissal upon refusal to transfer to another employer usually occurs when or. In this case, the employee is offered a job with the same or approximately the same position, which corresponds to his experience and qualifications, as well as wages.

But if the employee refuses such a transfer, the employer has the right to dismiss him in the standard manner under Article 77 Part 6 of the Labor Code of the Russian Federation.

When changing employer (transfer and dismissal)

For another position

In case of refusal to transfer to another position, the employer has the right to dismiss the employee, but if there are good reasons. It is important to understand that the procedure must be justified and in accordance with the law. If the position does not correspond to both the qualifications and the salary of the employee, then the decision to dismiss can be challenged in court.

To another structural unit or department

When transferring to another department or even a structural unit, it is important to consider a number of nuances:

The position must correspond to the qualifications, education, work experience of the employee;
The selected position must correspond to the salary of the employee;
In the absence of the necessary education, it will be necessary to provide appropriate training, and at the expense of the organization.

If, in the process of making a transfer, the employee must change their place of work and residence, then the employer must pay the costs associated with the move, as well as the costs associated with daily transportation to the workplace (that is, travel). If the employee refuses such a transfer, the employer may dismiss him in accordance with Art. 77 of the Labor Code of the Russian Federation in the standard manner.

When reducing

With the reduction, the rules change slightly. If the employee does not belong to the category of exceptions, then the employer can offer a new position or workplace, and if they refuse, they can calmly dismiss the employee under the article with

Sometimes work circumstances force employers to move or transfer employees from place to place in the company. Typically, such a move must be carried out after receiving written confirmation from the worker.

In some cases, directly enshrined in law, the administration can do it alone. True, here you will have to endure certain procedures, not to exceed the maximum allowable time. And what to do if the employee refuses to transfer to another job:

Legal obligation - it is mandatory to obtain the personal approval of the employee if it is subject to a fundamental change. Under significant changes it is necessary to understand the clauses of the contract that oblige the citizen to fulfill new duties for him, previously not performed by him.

You can not change the employment contract without the consent of the employee

Such obligations may arise during:

change of position due to staff reduction or changes in the organizational structure;
the need to move to another position due to medical contraindications;
job changes for own initiative citizen;
transfer to another area of activity, after the dismissal of an employee (or several employees) who performed labor functions there;
due to major changes working conditions after the introduction of new technologies in the organization, automation of production processes.

To continue to fulfill labor obligations and receive for this cash reward, the employee is obliged to agree with the administration on the updated terms of the existing labor agreement (annex to the existing one). Only in this way does the employer acquire the right to allow him to perform labor functions.

Remember, the transfer to the updated terms of business may be permanent or temporary. When this is done outside the list of conditions specified in the law that allow the employer to do this without the consent of the employee, in without fail his written consent must be present.

Reasons and types of transfer

The need for an employee to change the field of activity within the company is a forced measure caused by the peculiarities of providing production process or the need to address the personal needs (physiological characteristics) of a citizen. is permanent or temporary. The most common reasons that prompt the administration to take such steps are as follows:

the employee independently wishes to change the type of activity;
there was a conflict between the employee and his employer regarding the violation labor discipline;
at the end of the passage medical commission the employee is further prohibited from performing the functional duties previously assigned to him;
the need to move with the family to another city or region;
difficulties encountered at the enterprise in terms of filling positions in a certain unit due to the dismissal of employees who worked there;
the need to temporarily reduce the workload due to the pregnancy of an employee or immediately after the birth of a baby;
if in process labor activity the employee was found to lack the required level of qualification, which is necessary for the full performance of the duties assigned to him;
when the company approves a new organizational structure or there are measures to reduce the staff;
if an emergency situation arises (accidents, natural disasters, the need to urgently ensure the operation of equipment and units at continuously operating enterprises).

It is important to note that in each of these cases, the administration is obliged not only to notify the employee of the upcoming change in the type of activity (or the employee himself informs about the existence of such an initiative), but also to issue an appropriate order, which must be brought to those involved in advance under the signature.

Remember, ignoring the legal administrative document of the employer, which was brought to the employee in a timely manner, will cause the start of the procedure for his dismissal due to refusal to work in conditions that are different from the existing ones.

Moving and transfer: what is the difference

Today in the legislation you can find two concepts regarding the revision of the labor agreement of a worker:

movement (usually implemented within the company);
transfer (can be carried out to another organization).

Relocation, unlike transfer, is temporary

It should be noted that they are not interchangeable words. These are concepts that are different in nature and functional content and have different legal consequences.

Relocation should be understood as the need for an employee to temporarily perform work functions for a certain period of time. It is important to understand when there is a continuation of work in the same specialty, and using the same tools and equipment, but in a different workshop or department, the employer may not ask the employee's consent to perform such functions.

Here, an order is simply issued, with which the employee is introduced under the signature. Refusal or ignoring of such an order is a violation of labor discipline with corresponding consequences.

Another thing is if translation is applied. Usually, the written consent of the employee is required here (usually this is his statement), which is drawn up by an order for personnel. Can be temporary and permanent.

Here the employee will have to perform labor functions that are fundamentally or significantly different from those that were previously assigned to him. When a worker does not agree to a proposal, the administration is even authorized to stop further work with him. labor Relations. But here it will be necessary to follow a certain procedure.

Remember, depending on the task being solved, the employer can apply either a transfer or a transfer with respect to his employee. The main thing is not to consider these concepts the same and correctly draw up documents.

Features of temporary translation

Usually staff members are transferred to other areas of work temporarily, with the aim of a one-time solution to an emergency situation that has arisen. It is important to indicate that the legislator has provided for the possibility of transferring citizens to areas of labor activity that are different from the existing ones, without the need to obtain their consent. This is allowed:

During the occurrence of an industrial accident or catastrophe. It does not matter whether it is man-made or natural. The employee is involved in eliminating the consequences. An attracted citizen can be obliged to perform even tasks that are not characteristic of him.
When the production happened.
In case of fire, flood, natural disaster, the need to eliminate the consequences of an earthquake, fight hunger, and various infectious diseases.

Such a transfer is due to the need to eliminate downtime at the enterprise, when someone needs to be replaced at a particular site.

An important nuance is that the transfer is carried out for a period not exceeding one month from the date of its start. If more time is needed, then it will be necessary to obtain the consent of the worker.

And it will also require confirmation of who is to be attracted to perform the function of the lowest qualification, with a lower level of payment than the worker has. It should be noted that paying below average earnings is prohibited here.

In production, there are also often cases when someone quits, is on sick leave for a long time, goes on vacation, just a separate section of work is released that needs to be filled. To this end, the concept of temporary transfer employee for such area of work.

This type of transfer is carried out for a period of time not exceeding one year. The primary direction of work may change, but must correspond to the employee's education, professional skills, and qualifications.

It is optimal if such an employee has several diverse educations. Then, if there is his consent, there should be no problems with the execution of a temporary transfer.

Remember, when the end date of a temporary transfer is missed, and the employee continues to work in a new position, he is considered transferred there permanently. It is possible to restore him to his previous position only upon a written personal application.

When is a transfer possible without consent?

The legislator determined that before transferring an employee to perform work functions to another area of work, it is necessary to obtain written confirmation. If this document is available, the procedure for the regulatory registration of such actions is launched, unless the employer is forced by circumstances to act otherwise.

An emergency situation may serve as a basis for transferring an employee without his consent

But sometimes in the course of work, emergency situations arise, after which the decision to change the place of activity has to be taken literally “from the wheels”. Usually this is the need to eliminate some consequences of accidents, catastrophes, natural disasters, other non-standard or emergency situations. The procedure for attracting a citizen to work that is not characteristic of him will be as follows:

An order is issued to transfer employees to perform functions that are not characteristic of them. Here it is important to point out statutory reasons for allowing the employer to do so, indicate the place future work, responsible manager, the beginning and end of such involvement, how this period of work will be paid. It is also necessary to list all involved employees by name.

The order must be coordinated with the trade union, or ensure their prompt notification of such a document.

The employees listed in the order get acquainted with the document against signature. It is considered that the employee is duly notified of the need to perform other work after signing the order.

Before the start of the activity, the employer is obliged to the workers regarding the requirements of labor protection for the period of performing a new type of work.

Remember, sending workers to new places of work without first obtaining their consent, when not expressly stated by the legislator, is gross violation the employer of the employee's rights. For this, the latter can be held legally liable.

It is forbidden to engage in other (not provided for by their employment contract) types of activities, even for emergencies, citizens to whom such work is contraindicated by medical reports, pregnant women, as well as minors. The prohibition applies even when workers have given written consent to carry out such activities.

About the movement and consent of the employee, see this video:

Refusal of the employee to transfer to another job and the dismissal procedure

Before considering the extreme measure of influence on a negligent employee who refused to change his position (place) to perform new functions, you should consider possible reasons when such actions on the part of the administration are legal and justified. Additionally, consider the sequence of actions of the administration in each case. The options may be:

The employer expressed a desire to strengthen another unit (department). At the same time, the current position of the employee who is being transferred is not reduced. Here, if the employee does not stick to the proposal of the administration, the latter does not have the right to take any disciplinary measures against him.
An emergency situation occurs at the enterprise and it is necessary to mobilize all employees to eliminate it. Here, after the issuance of the order, familiarization of the involved labor collective with it, the refusal of the worker to perform work will be regarded as failure to comply with the order of the head, for which disciplinary measures (for example, a reprimand) may be applied to him.
After receiving the medical opinion, the employer is obliged to transfer the employee to work with a lower load. Employee's refusal to obey demands medical report initially fraught with removal from the performance of the main work without saving wages for such a worker. After that, the employment contract is completely terminated at the initiative of the administration in the event of a refusal to transfer to another job.
The company changes its location and moves to another city. Employees who do not agree to squeeze together with the employer are subject to dismissal as such that they refused to continue working in a new place. Here the administration must offer the employee a position in another region in writing, receive a written refusal from him. Only having these documents issued a dismissal order.
There is a procedure of number (state). By law, the employer is required to offer employees all vacancies or notify the employment service of the inability to employ a freelance worker. Here you will need to wait for the period allotted by law and only after that draw up his dismissal.

Remember, dismissal is an extreme measure, applied only if the employee did not agree to any of the options proposed by the company for his future work. Refusals must be confirmed in writing.

What is meant by translation labor law see here:

Question form, write your

If the vacation date comes after the announced reduction date, then the employee can be dismissed on a general basis. Is it possible to lay off an employee who is hired on parental leave of the main employee No, it is not possible. When carrying out redundancy measures, the employer reduces the position (staff unit), and not the specific employee who occupies it (clause 2, part 1, article 81 of the Labor Code of the Russian Federation). An employee who is on leave to care for a child under three years of age retains a workplace (position) (part 4 of article 256 of the Labor Code of the Russian Federation). At the same time, the adoption of an employee who is on parental leave, a new, temporary employee, the number of jobs at this employer does not increase and does not entail the emergence of new jobs (paragraph 2, part 1, article 59 of the Labor Code of the Russian Federation). At the same time, a ban was established on the reduction of the position of women with children under the age of three (Article 261 of the Labor Code of the Russian Federation).

Dismissal upon refusal of transfer

However, the dismissal of a disabled employee is possible if the percentage of the quota for hiring disabled people is maintained, that is, when reducing a disabled person, it is necessary to maintain the total number of jobs for them by introducing new quota places.

Important

In addition, the employer must take into account guarantees, in particular, the preferential right to remain at work, when laying off employees who have received a disability as a result of an accident at work or an occupational disease.

Such conclusions follow from the totality of the provisions of Articles 77, 81, 179 Labor Code RF.
Reduction of juveniles When reducing underage employees need to send a request to labor inspection and appeal to the Commission on Juvenile Affairs and the Protection of Their Rights in order to obtain their consent to dismissal (Art.
269 of the Labor Code of the Russian Federation).

How to refuse a transfer to another position?

And only according to the medical report, after the employee refuses to transfer, any termination of the employment agreement with him will be required or even followed.
Pay Special attention that the termination of any employment agreement, but not for the refusal to carry out the transfer, but in consequence of this any such refusal.
And in accordance with any formal basis for terminating the employment agreement, it will be the reduction in the number approved in the legislation, as well as the staff, in accordance with the necessary record and only through the payment of severance pay.

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Refusal to transfer to another position

The procedure for dismissing an employee on the basis of a reduction in headcount or staff is carried out as follows.

Necessary:

issue an order to reduce the number or staff and prepare a new staffing table;
determine whether any of the employees has a preferential right to remain at work;
create a list of reduced employees (positions);
notify the employee of the upcoming dismissal (p.
2 tbsp. 180, part 2 of Art. 292, part 2 of Art. 296 of the Labor Code of the Russian Federation);
offer the employee another vacant position (part 3 of article 81, part 1 of article 180
arrange the transfer of those employees who agreed to take other positions (Art.
72.1 Labor Code of the Russian Federation);
notify the trade union about the upcoming reduction (if it exists in the organization) and inform the employment service about it
1 st. 82 of the Labor Code of the Russian Federation, paragraph 2 of Art. 25 of the Law of April 19, 1991

How to apply for a transfer to another position

The reflection time is not limited by law, so the employee can give an answer by the end of the two-month period;

with the intention of further cooperation to draw up a new contract of employment;
in case of refusal to work in the changed conditions, offer the employee vacancies that he can occupy, taking into account his qualifications and professionalism.

Answers to current questions Question №1.

How to formalize the dismissal of an employee of his own free will in the event of a reorganization of a legal entity? First of all, an employee who has expressed a desire to terminate the employment agreement must write a statement about this.

Based on the application, a dismissal order is issued. As a basis, the following wording can be proposed: "... the employment contract was terminated in accordance with Article 77, clause 6 of the Labor Code of the Russian Federation due to refusal to work due to a change in departmental subordination."

not found

At the same time, it is forbidden to change the labor function of an employee.

This is stated in part 1 of article 74 of the Labor Code of the Russian Federation. The difference between a transfer and a transfer When transferring, there is a change in the terms of the employment contract and the employee's job function.

An employee is considered transferred to a new position in the same organization (without changing location) if at least one of the following conditions is met:

change of the labor function provided for by the employment contract.
At the same time, the place of work may change or remain the same;
change in the structural unit in which the employee works. In the case when the structural unit as the place of work was indicated in the employment contract with the employee.

Translation is allowed only with the written consent of the employee. It is forbidden to transfer an employee to work that is contraindicated for him for health reasons.

Transfer to another position

Its minimum duration is not prescribed either in the Labor Code or in other regulations. When a reduced working time regime is introduced, it is necessary to inform the staff about the upcoming changes no later than 2 months in advance. This notice must be made in writing. Non-observance by the employer of the established deadlines allows the employee to challenge the decision to reduce the working time in court, recover lost earnings and compensation for moral damage.

Any changes regarding this issue should be recorded in the employment agreement.

The employee may not agree to the new working conditions.

In this case, the employer offers him vacancies.

If there are none, and the employee refuses to work on the terms of a reduced working week, the employer has the right to terminate the employment agreement unilaterally.

How to refuse a transfer to another position

No 77 of the Labor Code of Russia, then in case of any termination of this employment agreement on one of the general grounds, the employee will be paid a certain severance pay in the amount of two weeks of earnings.

The same is provided for in stat. No. 178 of the Labor Code of Russia.

Another thing may be the moment when the employee himself quits for one reason or another, which were also provided for in accordance with the Labor Code of Russia, including the grounds that the employee owns during employment.

Before you completely terminate the main employment agreement with an employee, you can try to subsequently transfer him to a completely different work activity.

Refusal to transfer to another position

Dismissal by a court decision If a court decision on a ban on holding a certain position has entered into force with respect to an employee, the employer can offer a new place to which the restriction does not apply.

The employee may not agree to the transfer proposal.

In this case, the employer has the right to terminate the employment contract unilaterally. Dismissal due to reduction of working hours As a result of production and technological transformations at the enterprise, the employer may need to introduce a part-time regime.

As a rule, this forced measure is introduced for up to six months in order to save jobs.

Labor legislation establishes only an upper limit on the duration of working hours. Work week cannot be longer than 40 hours.

Refusal to transfer to another position in case of reduction

family, which contain two or more disabled family members who are fully supported by them (for example, an employee has two minor children);
employees in whose family there are no other people with independent earnings;
employees who have received an industrial injury or occupational disease in this organization;
disabled people of the Great Patriotic War and invalids of military operations for the defense of the Fatherland;
employees who improve their skills in the direction of the employer on the job;
employees affected by the Chernobyl accident;
employees exposed to radiation due to nuclear tests at the Semipalatinsk test site;
employees laid off from military service, provided that they first got a job.

According to paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 another locality should be understood as an area outside the administrative-territorial boundaries of the corresponding settlement.

Branches, representative offices and other separate structural divisions in accordance with paragraph. 3 art. 55 of the Civil Code of the Russian Federation are not legal entities. That's why refusal to transfer to a branch or representative office located in another area cannot be grounds for dismissal employee in connection with the refusal of the transfer, if the employer himself does not move to this area.

The procedure for dismissal of an employee in case of refusal to transfer to another locality

The actions of the employer when transferring to another locality are not regulated by the Labor Code of the Russian Federation. Therefore, the employer determines the terms of warning, the procedure and amounts of compensation to employees for expenses independently. However, it is advisable to start the dismissal procedure in connection with the refusal to transfer to another locality by notifying the employee that:

the employer decided to transfer to another locality;
the employee is offered a transfer together with the employer to another locality;
in case of refusal of the employee, the employment contract will be terminated on the basis of clause 9, part 1, article 77 of the Labor Code of the Russian Federation.

The notification of the transfer of the employer must be handed over to the employee against signature.

At refusal of the transfer, the employee draws up in writing either a waiver statement or an indication of disagreement with the transfer on the employer's notice.

After that, an order is issued to dismiss the employee in the T-8 form, in accordance with paragraph 9 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The employee's statement of refusal or notice of the employer signed by the employee is used as the basis for the order.

Entries in the work book and personal card

In accordance with the Instructions for filling out work books, approved Decree of the Ministry of Labor of the Russian Federation of October 10, 2003 No. 69 and Art. Labor Code of the Russian Federation in work book an entry is made: “The employment contract was terminated due to the employee’s refusal to transfer to work in another locality together with the employer, paragraph 9 of the first part of Article 77 Labor Code of the Russian Federation.

A record of dismissal is entered into the employee's personal card, which the employee certifies with his signature.

Payments to an employee upon dismissal

AT in case of dismissal in case of refusal to transfer to another locality, the employee is paid wage, compensation for unused vacation. In addition, the employee must be paid a severance pay in the amount of 2 weeks of average earnings (paragraph 5, part 3, article 178 of the Labor Code of the Russian Federation).