How to transfer an employee to another job. Temporary transfer of an employee

Temporary transfer within the organization at the initiative of the employer.

The employee may betemporarily transferred with his consent for another job for a period up to one year. If the transfer is needed to replace a temporarily absent employee, whose place of work is retained in accordance with the law, - then the translation will be before the employee returns to work . (For example, in place of a person on maternity leave or on sick leave or on vacation.)

If the transfer period has ended, and you were not given the previous job, and you did not demand to return and continue to work, then the transfer is considered permanent (Part 1 of Article 72.2 of the Labor Code of the Russian Federation. Agreement of the parties is concluded in writing)

Remember! In accordance with the Labor Code of the Russian Federation, Art. 72.1 and 72.2 without yours written consent from you Dont Have the right to transfer to a lower position than you previously held (except for the cases specified in Part 2 of Article 72.2 of the Labor Code of the Russian Federation). With your consent, you can be transferred to a lower position, firstly, for a period of up to 1 month, and secondly, your payment must be no less than the average earnings for your previous job.

But! Let's look at situations in which the employer has the right transfer the employee to another job not stipulated by the employment contract, without his consent for a period of up to one month (Part 2 of Article 72.2 of the Labor Code of the Russian Federation).

These are the cases:

— natural or man-made disaster;

— industrial accident;

- accident at work;

- fire;

- flood;

- hunger;

- earthquake;

- epidemic or epizootic;

- other exceptional cases that threaten the life or normal living conditions of the entire population or part of it.

Also, Part 3 of Article 72.2 of the Labor Code of the Russian Federation provides for a number of other situations in which a temporary transfer of an employee is possible without his consent for a period of up to one month, namely:

— downtime (temporary suspension of work for reasons of economic, technological, technical or organizational nature);

— the need to prevent destruction or damage to property;

— replacing a temporarily absent employee

You can refuse the transfer. However! If you unreasonably refuse a transfer in the above situations, then this will be regarded as a disciplinary offense, and absence from work - as absenteeism (clause 19 of the resolution 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 "), If:

— a danger to your life and health arose due to a violation of labor protection requirements (except for cases provided for by federal laws) until such a danger is eliminated;

— the transfer is carried out to perform heavy work and work with harmful and (or) dangerous working conditions, and they are not provided for in the employment contract.

Attention! The duration of a temporary transfer of an employee to another job without his consent cannot exceed one month. But during the calendar year, such transfers can be made by the employer more than once .

The employee is paid depending on the work he performs, but not lower than the average earnings that he received at his previous place of work (Part 4 of Article 72.2 of the Labor Code of the Russian Federation for transfers that were made in the cases specified in Parts 2 and 3 of Article 72.2 of the Labor Code of the Russian Federation ).

Remember! If you are transferred to a job that requires lower qualifications, for the reasons set out in Part 3 of Article 72.2 of the Labor Code of the Russian Federation, then the employer must obtain written consent from you for such a transfer in any case, for example, if in the event of an emergency the accountant is charged with duties clean up the trash, then his consent to this transfer necessary.

How in practice should a temporary transfer be processed in the HR department?.

1. Employer orally or through a Transfer Offer offerstransfer to the employee.

2. The worker gives written agreement for translation (statement of consent to translation or phrase in the Proposal: I agree with the translation - date-signature).

3. The employee is introduced to his job description or other documentation related to his new position for signature.

4. The employer draws up an Addendum (agreement) to the employment contract on the transfer. The addition (agreement) to the employment contract is drawn up in 2 copies, both signed by both the employee and the head of the organization.

5. One copy remains with the employer, the second is given in person employee. In the first copy (which remains with the employer), the employee writes the phrase: “ I received the addition (agreement) to the employment contract - date-signature").

6. The employer issues an order to transfer an employee in the form T-5 (on the transfer of an employee) or T-5a (on the transfer of employees), approved by Resolution of the State Statistics Committee of the Russian Federation No. 1 of 01/05/2004. on the basis of the concluded Addendum to the employment contract, and its content must strictly comply with the conditions specified therein. The employee gets acquainted with the Order for signature.

The order must contain the number and date of registration of the order, as well as the signature of the manager.

7. If you do not agree with the transfer and refuse to read the order against signature, the employer draws upact of refusal to familiarize yourself with the order.

8. Remember! Information about temporary transfer Not are entered in your work book, so I recommend that you take a duly certified copy of the temporary transfer order so that you can confirm in the future that you performed this work.

9. At the end of the temporary transfer period, the employer must issue an order about the end of the transfer period and the employee returning to work in his previous position. The employee reads the order for signature, the order must contain the number and date of registration of the order, as well as the signature of the manager.

How to arrange a temporary transfer that does not require consent employee.

1. The manager issues an order for temporary transfer in form No. T-5 or T-5a indicating the reason for the transfer in the line called “reason for transfer”. The order must be supported by relevant documents, for example: testimonies of eyewitnesses and emergency service employees, various documents: written statements from employees about downtime due to the fault of the employer due to equipment malfunction, acts of emergency, order of the head of the organization on measures to eliminate the consequences of the accident, etc.

otherwise you may refuse the transfer. You must read the order for signature. The order must have a number registration, date and signature of the manager.

2. You must be familiarized with the job description and safety regulations for signature.

3. You have the right to refuse a transfer if you believe that labor safety requirements have been violated at the new place of work and this threatens your life or health. In this case, you write a statement in free form, in which you provide arguments that serve as the basis for refusing the transfer.

4. Make a copy of the order with your signature.

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

The following is not considered a transfer and does not require the employee’s consent:

• moving him from the same employer to another workplace,
• moving it to another structural unit located in the same area,
• assigning him work on another mechanism or unit, unless this entails a change in the terms of the employment contract.

A transfer is not considered to be the case if the structural unit in which the employee works is not specified in the employment contract.

All translations are divided into:

• temporary,
• permanent,
• mandatory translations.

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

Permanent transfers of an employee to another job

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

• the employee’s job function changes (for example, an engineer becomes a chief engineer);
• the structural unit specified in the employee’s employment contract changes (for example, the manager of the purchasing department is transferred to the sales department);
• the employee is transferred to work in another locality (settlement) due to the relocation of the employer.

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

What an employer needs to do:

1. Enter into an additional agreement to the employment contract with the employee. In it, write down the name of the new position, the amount of remuneration and other conditions that have changed due to the transfer. The agreement is drawn up in two copies for each party; on the employer’s copy, the employee marks the receipt of his own. Give one copy to the employee, the second copy remains with you, on which the employee must sign that he received his copy of the agreement.
2. Issue an order for transfer to another position and to another unit (Form N T-5 or arbitrary).
3. Make an entry about the transfer to another job in your work book. In column 4 of the work book you must indicate the details of the transfer order. The entry must be made within a week from the date of publication of the order (clause 10 of the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”, hereinafter referred to as the Rules).
4. Enter information about the transfer in section. III of the employee’s personal card and familiarize him with this entry against signature.

If an employee is transferred to a position that requires the conclusion of a fixed-term employment contract. To ensure that the reclassification of an open-ended contract into a fixed-term one is not regarded as an infringement of the employee’s rights, it is better to terminate the previously concluded employment contract and enter into a new fixed-term one.

5 situations when the employer is wrong

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

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

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

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

It is not uncommon for an employer to transfer an employee to a higher position and, in order to check the employee, sets him a probationary period:

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

Answer: There is no provision for establishing a probationary period for an employee working in an organization. The test is established only upon concluding an employment contract, that is, for a new employee (Article 70 of the Labor Code of the Russian Federation). Concluding a fixed-term employment contract when transferring to another position will also be unlawful. In this case, the employer can arrange a temporary transfer of the employee to another position.

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

Answer: It is legal to engage a foreign citizen to work in a specialty other than that specified in the work permit. Such a situation, when the work actually performed by a foreigner does not correspond to the type of activity specified in the permit, is equated by the Federal Migration Service and the courts to work without a permit (Decision of the Moscow City Court dated December 12, 2011 N 7-2678; Resolutions of the Federal Antimonopoly Service of the North Caucasus District dated May 21, 2012 N A53 -16050/2011, Supreme Court of the Russian Federation dated September 23, 2011 N 18-AD11-15). And entails the imposition of significant penalties or suspension of the organization’s activities, which in any case is an unjustified risk for the employer.

Situation 5: the employer demanded that the employee, who was on maternity leave, go to work for one day to familiarize herself with the order to transfer her to a lower position and reduce her salary. Is the employer acting legally when he motivates this transfer by the need to reduce the organization’s expenses?

Answer: The employer is acting unlawfully. An employee cannot be recalled from vacation without her consent and transferred (Article 125 of the Labor Code of the Russian Federation). A transfer without the consent of the employee is permissible only on the basis of a medical report. Thus, her previous position must be retained (Article 256 of the Labor Code of the Russian Federation). Thus, the order issued by the employer will worsen the position of the employee in comparison with the established labor legislation and will be unlawful. In accordance with Part 4 of Art. 8 of the Labor Code of the Russian Federation it cannot be applied. If the employer nevertheless carries out the transfer without such consent and applies an order that worsens the employee’s rights, then she can resort to protecting her labor rights by legally established means and appeal the employer’s actions, thereby being reinstated in her previous position.

Temporary transfers to another job

Temporary transfer to another job is made for a certain period. In this case, the employee’s job function and (or) structural unit temporarily changes, if it was specified in the employment contract. Temporary transfers include (Article 72.2 of the Labor Code of the Russian Federation):

• transfer to another job, carried out by agreement of the parties for a period of no more than one year;
• transfer to another job, carried out by agreement of the parties to replace an absent employee for the period until he returns to work;
• transfer to another job due to objective reasons (for example, for a period of up to 4 months in accordance with a medical report).

The procedure for obtaining a temporary transfer is similar to that for permanent transfers. The exception is that during temporary transfers, an entry in the employee’s work book is not made, regardless of the reason and period of such transfer. If the deadline is not known, write “until the temporarily absent employee leaves.” And based on the agreement, an order for temporary transfer is issued.

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

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

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Transfers with the consent of the employee

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

Transfers without employee consent

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

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

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

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

A transfer without the employee’s consent is formalized by an order from the employer indicating the circumstances that led to such a transfer. If an employee is transferred to a position requiring lower qualifications, written consent should be sought from him. Payment in this case is made in an amount not lower than the average earnings for the previous job.

Transfer to another location

A transfer to another location together with the employer, that is, a change in the location of the organization, is considered a permanent transfer. It does not occur very often, however, there are nuances and the employer needs to be aware of it.

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

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

In a situation where the organization’s legal address has changed and the executive body has changed its location, but the actual place of work of the employees remains the same, there is no need to complete a transfer.

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

Relations with employees who have expressed a desire to continue working with this employer in another location are formalized as follows:

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

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

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

Transfer to another job is mandatory

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

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

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

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

1. The employee provided a medical report issued in accordance with the procedure for issuing certificates and medical reports, approved by Order of the Ministry of Health and Social Development of the Russian Federation dated May 2, 2012 N 441n. According to the document, the employee needs to be transferred to another job. In this case, the employer is obliged to transfer to another job he has that is not contraindicated for the given citizen due to health reasons. The transfer of an employee to another position, where the work is not contraindicated for him due to health reasons, is carried out with his written consent (Part 1 of Article 73 of the Labor Code of the Russian Federation).

True, there is one “but” - if an employee who needs a temporary transfer for a period of up to four months refuses the transfer (or the corresponding job is not available), then the employer must remove the employee from work for this period while maintaining his place of work (position). However, during the period of suspension, the employee’s wages are not accrued. At the same time, if an employee needs a temporary transfer for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the appropriate work, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of the Labor Code of the Russian Federation (Article 73 Labor Code of the Russian Federation).

The situation is different with managers (and their deputies) who need to be transferred for medical reasons. In their case, the employment contract with them may not be terminated, and the period of suspension from work is determined by agreement of the parties.

It is not uncommon for an employee to be transferred to a lower-paid job. The employer is obliged to maintain the average salary for the previous job for one month from the date of transfer. If the transfer is associated with a work injury, occupational disease or other work-related health damage - until a permanent loss of professional ability to work is established or until the employee recovers (Article 182 of the Labor Code of the Russian Federation). Judicial practice confirms this. The judges ruled that the employer’s obligation to maintain the employee’s average earnings arises from the moment the employee is transferred to a lower-paid position and terminates with the establishment of permanent loss of professional ability to work (Appeal ruling of the Vologda Regional Court dated September 13, 2013 N 33-4301/2013).

1. When carrying out measures to reduce the number or staff of an organization's employees, the employer is obliged to offer the employee another available job (both a vacant position or a job that meets the qualifications, and a vacant lower-level position or lower-paid job). If the transfer cannot be made, the employee will have to be dismissed on the basis of clause 2, part 1, art. 81 Labor Code of the Russian Federation. Employees are notified by the employer personally and against signature of an upcoming dismissal due to a reduction in the number or staff of the organization's employees at least two months before the dismissal (Article 180 of the Labor Code of the Russian Federation).
2. If an employee has lost the ability to perform duties under an employment contract in the event of suspension of the employee’s special right (license, right to drive a vehicle, right to carry a weapon, etc.) for a period of up to two months, the employer is obliged to transfer the employee to another available job (as a vacant one). position or work that meets the qualifications, as well as a vacant lower position or lower paid job) that the employee can perform taking into account his state of health. Of course, in this case the employer must obtain the written consent of the employee. In addition, the employer is obliged to offer all vacancies available in the local area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract. If the employee refuses or there is no vacant position, he is suspended from work without saving his salary (Article 76 of the Labor Code of the Russian Federation). If the period of suspension of a special right exceeds two months or the employee is deprived of this right, the employment contract with him is subject to termination in accordance with clause 9 of Part 1 of Art. 83 Labor Code of the Russian Federation.
3. In accordance with a medical report, the employer must transfer a pregnant employee to another job that excludes exposure to adverse production factors, while maintaining the average earnings for her previous job. A statement is required from the employee. Until another job is provided, a pregnant woman is released from work. She retains the average earnings for all working days missed as a result at the expense of the employer (Article 254 of the Labor Code of the Russian Federation).

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

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

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

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

Procedure for drawing up an additional agreement:

1. Date of change in job function—we indicate the date from which the employee will perform a new job function (work in a new position or in another department). This may be the current date (in the case where the company structure is changing) or the actual date of her return to work from maternity leave.
2. In the additional agreement, you can indicate (optional) that the employee began her new duties after returning from maternity leave.
3. If, when transferring to another position (department), the employee’s salary changes, then these changes should also be made in the additional agreement.

In any organization, whether large or small, there may be a need to temporarily transfer an employee to another job. How to properly formalize a transfer, in which cases the employee’s consent is required, in which it is not, what are the various consequences of incorrect translation and execution - we will look into this article.

Temporary transfer of an employee to another job should not be confused with part-time and part-time work. Let's first consider the difference between temporary transfer, part-time and part-time.

Part-time job

The concept of “part-time work” is contained in Art. 282 Labor Code of the Russian Federation. Part-time work is the performance by an employee of other paid work in his free 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 reflected in the employment contract indicating that it is not the main one. There are two types of part-time work:

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

Combination

The concept of “combination” is contained in Art. 60.2 Labor Code of the Russian Federation. Combination is when an employee performs a larger amount of work, for example, fulfilling the duties of an absent employee. At the same time, the employee is not released from his main job and works part-time not in his free time, but during the main working hours. In other words, the employee is under a lot of workload. At the same time, the employee can perform additional work in both one and another profession. When combining, it is not necessary to conclude a new employment contract, unlike part-time work.

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 Labor Code of the Russian Federation. An employee may be temporarily transferred to another job with the same employer for a period of up to one year. A situation may arise that a transfer is required during the absence of another employee and its duration does not fit into one year, then the deadline will be set with the wording “until the main employee returns to work.”

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

That is, in contrast to part-time and part-time work, with a temporary transfer there is no additional burden beyond 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: by agreement with the employer, by production necessity and forced transfer.

Temporary transfer by agreement of the parties

Temporary transfer by agreement of the parties is probably the simplest transfer. It seems like nothing complicated, but the employer needs to pay attention to the correct execution of such a transfer.

Let's consider a situation where the main employee either got sick, or went on a business trip for a couple of months, or went on a long vacation, or on a regular vacation, and there was a need to replace such an employee. Here it is possible to temporarily transfer an employee to an absentee position, since, for example, there are urgent unfinished issues, production will stop without signing any documents, or the employee has quit altogether, and while a replacement is found, certain work needs to be done.

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

Before transferring a temporary employee to another job, you must inform him about this. For what period is not established by law, so there is no need to wait certain days or weeks. Such a message (notification) can be either in writing or orally, the main thing is to obtain the employee’s consent that he is not against it.

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

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

After completing the additional agreement, the manager issues an order for the temporary transfer of the employee in form No. T-5 or T-5a (these forms are approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1). In such an order, the employer should indicate the reasons for the temporary transfer, the work performed, the period and wages.

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

Employers should also take note of the Resolution 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 has an employment relationship, and the 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 destruction or damage to property, or replacing 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 Resolution).

An error would also be the action of the employer if, for example, an employee was temporarily transferred to another job and then fired because the employer took another employee to take his previous place. Do not forget that during a temporary transfer, the employee retains his job and he can safely return after the agreed period. This situation was considered by the Constitutional Court of the Russian Federation, and this conclusion is contained in the Determination of the Constitutional Court of the Russian Federation dated 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, and by written agreement of the parties, an employee can replace a temporarily absent employee, who, in accordance with the law, retains his place of work 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 is 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 loses force and the transfer is considered permanent. Such regulation also cannot be considered as violating the constitutional rights of citizens.”

Temporary transfer due to production needs

The concept of temporary transfer in case of production necessity is also contained in Art. 72.2 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 threatening 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 the employment contract with the same employer to prevent these cases or eliminate their consequences;
• transfer of an employee without his consent for a period of up to one month to a job not stipulated by an employment contract with the same employer is also permitted 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 temporary replacement absent employee, if downtime or the need to prevent destruction or damage to property or to replace a temporarily absent employee is caused by emergency circumstances.

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

When making such a transfer in the event of a production necessity, the employer should take into account that if disputes arise with employees, he will be required to prove the existence of circumstances that led to a temporary transfer due to these circumstances. This is directly stated in paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.

Consider, for example, the following situation: some kind of disaster (accident) occurred at work, the employer issued an order for the temporary transfer of workers to eliminate the consequences of the disaster (accident) and did not indicate the reason for the transfer, and the employee did not agree to transfer, even temporarily, to work to eliminate a disaster (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 Determination of the Kemerovo Regional Court dated February 29, 2012 No. 33-1817: “...When considering the case, the court came to the conclusion that the employer had grounds for transferring the employee, that is, circumstances that jeopardize life and normal living conditions population or part thereof. The court included the deformation of the support, which can lead to rock collapse and death, as well as the piling of the conveyor belt, which can lead to smoke, fire and fire, as such circumstances.

However, when considering the case, the defendant (employer) did not provide evidence of the existence of extraordinary 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 workers 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 formalized, since the order applies to miners, and he worked as a mining machine operator, and therefore an order must 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 the transfer.

Russian legislation does not establish an employee’s obligation to be at the workplace in the event of an illegal transfer. Under such circumstances, his refusal to transfer illegally could not be considered a violation of labor discipline, and therefore imposing a disciplinary sanction in the form of dismissal on him was illegal.

In paragraph 40 of the Resolution 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” 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 begin it, the employer is obliged to provide evidence demonstrating the legality of the transfer itself (Articles 72.1, 72.2 of the Labor Code of the Russian Federation). If the transfer is declared illegal, dismissal for absenteeism cannot be considered justified and the employee must be reinstated at his previous job.

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

Having established these circumstances, the court of first instance came to the conclusion that there was a case provided for in 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 workers without their consent to work not stipulated by the employment contract in order to prevent this incident.”

Based on the analysis of this case, employers should think about the fact that for a correct temporary transfer in case of production necessity, they should either obtain the employee’s consent to the temporary transfer, or independently issue an order for the temporary transfer of the employee/employees with a mandatory indication of the reason for such transfer. If the temporary transfer order is correctly executed, indicating the reason, timing or specific event, the employer will be able to avoid misunderstandings on the part of employees, as well as protect itself from litigation.

It should also be taken into account that the employee has the right to refuse the transfer if it is dangerous to his life and health. An employee’s unreasonable refusal of a temporary transfer in these situations will be regarded as a disciplinary offense, and absence from work will be regarded as absenteeism. This is clearly stated in paragraph 19 of the Resolution 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 para. 5 hours 1 tbsp. 219, part 7 art. 220 of the Labor Code of the Russian Federation, an employee cannot be subject to disciplinary action for refusing to perform work if a danger to his life and health arises due to violation of labor protection requirements, except in cases established by federal laws, until such a danger is eliminated, or from performing work with harmful and ( or) dangerous working conditions not provided for in the employment contract. Since the Labor Code of the Russian Federation does not contain rules prohibiting an employee from refusing to perform such work even when they are caused by 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 temporary transfer is carried out by agreement of the parties, but this is at best. Then you just need to formalize it correctly so that there are no future claims against each other.

When temporarily transferring an employee in case of production necessity, it is necessary to indicate in the order itself why such a temporary transfer is necessary. We should not forget 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 related to the skills, knowledge, skills of the employee and the transfer will actually threaten his life and health, only in this case the employee will be able to refuse the transfer. I repeat, an employee’s unreasonable refusal of a temporary transfer due to production necessity if there is a real need for it in the organization is not allowed.

Accordingly, by taking into account all the necessary written documentation and understanding when it is possible or necessary to temporarily transfer an employee to another job, the employer will protect itself from disputes with employees.

Irina Chuchkina - legal consultant at IC U-Soft LLC, Regional Information Center of the ConsultantPlus Network. Editorial staff of the magazine "Kadrovik"

• Personnel policy, Corporate culture

An employee's absence from work or an empty vacancy adversely affects the production process. To prevent company employees from getting “lost” in the responsibilities of an empty position, a more suitable employee can be temporarily moved to it.

Labor legislation defines a temporary transfer as a change in an employee’s job function or structural unit for a certain period while continuing to work for the same employer, as well as a transfer to work in another location together with the organization. Paragraph 16 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 states that the structural divisions of an organization should be understood as its branches, representative offices, departments, workshops, sections, etc. And by another area - an area outside the administrative-territorial boundaries the corresponding locality. Meanwhile, an employee can be transferred to another structural unit only if it is specified in the employment contract.

Such a transfer is an effective way to fill a vacant position or temporarily absent employee.

Get consent

The temporary transfer of an employee occurs in accordance with the provisions of Article 72.2 of the Labor Code. The transfer can be carried out either with or without the employee’s consent.

However, in the latter case, the transfer can be made only if there have been natural or man-made disasters, industrial accidents, industrial accidents, fire, flood, famine, earthquake, epidemic (epizootic) and in any other cases that threaten life and normal life conditions of the entire population (part of it).

Also, the employer can carry out a temporary transfer without the will of the employee during downtime or the need to prevent destruction or damage to property. In this case, the transfer cannot be made to a job that requires lower qualifications, and the period of stay in the new position should not exceed one month.

In accordance with Part 4 of Article 72.1 of the Labor Code, it is prohibited to transfer an employee to a job that is contraindicated for him for health reasons. If there are no contraindications, then with his consent the employee can be transferred to work with harmful working conditions.

Features of temporary transfer

The employer almost always transfers an employee in its own interests. For example, increase productivity or temporarily replace an employee whose duties are necessary for the company.

The employee, in turn, during the transfer strives for career development and salary increases.

The employer is not obligated to replace a temporarily absent employee. This decision is made by the organization independently based on the needs of production. At the same time, the employee is not deprived of the opportunity to offer the employer to make a temporary transfer. For example, if the work responsibilities of an absent employee are performed by several people at once, which interferes with normal work.

Attention

If the employee has agreed to a temporary transfer and all the necessary documents have been completed, then the employee completely ceases to perform his duties and begins to work in another position.

One of the most important properties inherent in temporary transfer is its urgent nature. In accordance with Part 1 of Article 72.2 of the Labor Code, a temporary transfer is carried out for a period of up to one year. The legislators made the only exception for the transfer of an employee who will replace a temporarily absent employee (he retains his position) until he returns to work. The end of the transfer will be the date that precedes the day the main employee leaves.

The salary during transfer is established by agreement of the parties. Most often, the amount of payment is determined in accordance with the new position. However, when transferring to a less qualified job, the previous salary may be maintained or additional payment may be made.

If a temporary transfer was carried out without the employee’s consent, then wages must be paid no lower than the average earnings that the employee received in his previous position.

During a temporary transfer, the employer must comply with all formalities, since the employee’s job function, salary, often place of work, etc. change.

Paperwork

In most cases, the initiator of a temporary transfer is the employer. He must make an appropriate offer to the employee. This proposal can be made either in writing or orally.

It is more rational to submit the proposal in writing, since in the end it will be an official document.

When drawing up a proposal, it should indicate the new position (structural unit, location of the organization), the estimated period of transfer, the time during which the employer asks the employee to respond to the proposal.

There is no deadline for transmitting this document to the employee.

Consent or refusal is also formalized in writing in free form, in a separate document or in the proposal itself, if special columns were provided in it.

After receiving the employee’s consent to a temporary transfer, an additional agreement to the employment contract should be drawn up and signed. This document is drawn up in two copies and signed by both the employer and the employee. Each party is given a copy.

The additional agreement states:

• date and place of compilation;
• Name of the organization;
• an employee transferred to another job;
• employee's position;
• reason for transfer and position to be replaced;
• term of temporary transfer;
• documents that an employee must follow when performing new duties;
• salary amount;
• details of the parties.

The clause about the reason for the transfer may contain different wording. For example:

“Due to the temporary absence of chief accountant I.I. Ivanov due to being on annual paid leave, accountant P.P. Petrov is temporarily transferred to the position of chief accountant.”

You can also write the following: “Due to the lack of candidates for the vacant position of head of the legal department, lawyer S.S. is temporarily transferred to this position. Sidorov."

When drawing up a clause on the period of transfer when a vacant position is filled (temporary transfer is carried out for a period of up to one year), the following wording is used:

“The parties have determined that the additional agreement will expire on March 11, 2013” ​​or “The parties have determined that the additional agreement will be valid until the vacant position is filled by a permanent employee.”

In the case when a temporarily absent employee is being replaced and the termination of the temporary transfer depends on the fact that the employee leaves (from annual paid or educational leave, return from a business trip, the end of a period of incapacity, etc.), then the agreement should indicate the condition upon the occurrence of which its action ceases. For example:

“The additional agreement is terminated, and employee E.E. Egorov returns to the position of Deputy Marketing Department until the date of departure of the Head of the Marketing Department S.S. Sidorova."

The reason for prescribing conditions rather than specific dates is, in most cases, the impossibility of knowing exactly the date of departure of the main employee. Thus, an employee can be found for a vacant position within a couple of months, and sometimes it takes more than six months. Meanwhile, an employee who was on a business trip may return from it earlier or, conversely, be delayed.

Next, the employer is obliged to issue an order to transfer the employee to another job, with which the employee must be familiarized with signature. In accordance with the Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1, the order is issued using unified forms No. T-5 or No. T-5a.

When filling out these forms, you should pay attention to the “Transfer to another job” option. In it, the “Date” column is filled in taking into account the wording about the transfer period. So, in the “from” field the date from which the employee begins to perform duties at the new job is entered, and in the “to” field there is either a dash (the end date is not defined) or the end date of the work period.

The next stage of registration is entering information into the employee’s personal card according to form No. T-2 approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1 (hereinafter referred to as the Goskomstat Resolution). The basis for making entries is an order to transfer to another job. In this case, it is necessary to fill out Section III “Hiring and transfers to another job.” The employee must be familiarized with each entry against signature.

Some experts are of the opinion that you should not fill out a personal card. However, in the section on filling out the order according to the specified form No. T-5, approved by the resolution of the State Statistics Committee, it is indicated that on the basis of the order (instruction) on transfer to another job, marks are also made in the employee’s personal card.

After completing all of the above documents, the employee must be familiarized with the job description (against signature). If working conditions require this, safety and labor protection instructions are also provided, a liability agreement is concluded, etc.

In accordance with the provisions of labor legislation and paragraph 4 of the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books,” an entry about a temporary transfer is not made in the work book.

Old is better than new

When the main employee returns to work, the temporary replacement employee must return to his old duties. The Labor Code does not contain provisions on how to formalize the return of an employee to his old position. In order to avoid controversial situations, it is first necessary to send the employee a notification about the return to work of the main employee, which is drawn up in any form.

The notice may contain the following wording:

“On February 17, 2013, the head of the marketing department S.S. goes to work. Sidorova. In this regard, we are providing you with your previous job as deputy head of the department, whose duties you must begin on February 16, 2013.”

An order should also be issued to terminate temporary duties and return to the old position. It is drawn up in any form. Next, changes are made to section III of the employee’s personal card, that is, the return of the previous position is noted.

The employer's procedure for temporary transfer of an employee directly depends on who initiated it. We will tell you how to arrange such a transfer in two cases - by agreement of the parties and without the consent of the employee. Find out how to stop staff changes.

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

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

• job position;
• salary size.

When executing a short-term employee transfer to replace an absent employee, it is impossible to predict the exact end date of the event. Therefore, a condition is included in the additional agreement that serves as the basis for ending the temporary personnel reshuffle. In this case, such a basis will be the return to work of the main employee.

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

1. The document is drawn up in two copies
2. The amended clauses of the TD are included in it, indicating that the remaining terms of the TD remain unchanged.
3. The agreement is signed by the employee and the employer. The service in the Personnel System will help you arrange a temporary transfer in various cases. Get started with master of temporary transfer registration right now.

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

Additional agreement. Temporary transfer of an employee to another position

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

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

Temporary transfer to another position: distribution of responsibilities among several employees

The labor legislation of the Russian Federation does not oblige employers to resolve issues of replacing absent employees in a single standard way. If the scope of the absent employee’s job responsibilities is extensive, and the personnel situation allows his functions to be distributed among several employees, this can be done. In this case, we are not talking about translation. The relocation of an employee or several employees is also not possible. Everyone will perform their job responsibilities plus additional work that was previously performed by a temporarily absent specialist.

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

• an additional agreement, specifying the scope of new responsibilities and the amount of additional payment;
• an order that gives employees additional powers.

There is no need to enter information about the additional amount of work into employees’ personal cards and work books.

When is a temporary transfer to another job possible without the employee’s consent?

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

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

Additionally, two conditions must be met:

1. All of these cases must be caused only by emergency circumstances: disasters, accidents, fire, floods, and so on.
2. The job to which the employee transfers must correspond to his skill level or be more qualified.

If the latter condition is not met, written consent must be obtained, either by an entry on the notice provided by the employer or by a separate statement.

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

Such transfers are divided into temporary and permanent. Temporary ones are made by agreement of the parties or without the consent of the employee.

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

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

★ System Personnel expert will tell you how to arrange a temporary transfer of an employee to another job. From the article you will learn about the procedure, about transferring to another position by agreement of the parties and without the consent of the employee, the specifics of drawing up an order and documents on the basis of which the transfer is terminated.

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

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

The following documents are used as such documents:

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

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

After the transfer period expires, the employer issues an order on the basis of which the employee is given his previous job. The order is drawn up in any form, since a unified form for such a document has not been approved. If, at the end of the transfer period, the employee’s previous job was not provided, and he does not insist on it and continues to work, the terms of the executed agreement lose force, the temporary position becomes permanent (Part 1 of Article 72.2 of the Labor Code of the Russian Federation).

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

Order recognizing temporary transfer as permanent

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

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

An employee can be transferred to another job for a short time only with his written consent, unless there is an emergency. An additional agreement is concluded to the current employment contract. The reason is that when moving to another position, the employee’s job position and salary temporarily changes.

In the event of emergency situations, the employer has the right to transfer the employee without his consent for some time.