Translation as agreed between employers. Agreement. Are there any compensations?

In this article we will tell you how a HR manager can formalize the transfer of employees to another job. We will consider in detail the following types of transfers: temporary and permanent, at the initiative of the employee and at the initiative of the employer, with the consent of the employee and without obtaining his consent. We will also pay special attention to the procedure for transferring an employee to work in another location together with the employer.

Rules for transferring to another job

General rules

P transfer to another job - this is a permanent or temporary change in the labor function of an employee or a 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 transfer to work in another locality together with the employer (Art. 72.1 of the Labor Code of the Russian Federation). Transfers can be temporary or permanent, at the initiative of the employee and at the initiative of the employer, with the consent of the employee and without his consent.

FYI

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

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

Let us note that the employee’s consent will not be required to move him from the same employer to another workplace, to another structural unit located in the same area, or to assign him work on another mechanism or unit, if this does not entail a change in the terms of the employment contract determined by the parties.

In all cases, it is prohibited to transfer or relocate an employee to work that is contraindicated for him due to health reasons.

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

Please note: if a transfer to another job is declared illegal, the employee must be reinstated to his previous place of business. In this case, the body considering the individual labor dispute makes a decision to pay such person the difference in earnings for the entire period of performing lower-paid work. Also, the court has the right, at the request of the employee, to make a decision to recover from the employer monetary compensation for moral damage caused by these actions (Article 394 of the Labor Code of the Russian Federation). Moreover, if the employer delays the execution of the decision to reinstate the employee to his previous job, the body that made the decision makes a determination to pay this citizen the difference in earnings for the entire time of the delay (Article 396 of the Labor Code of the Russian Federation).

Permanent translation

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

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

To complete the transfer, use form No. T-5 or form No. T-5a (see Example 3), approved by Decree of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1 “On approval of unified forms of primary accounting documentation for recording labor and its payment” ( hereinafter referred to as Resolution No. 1).

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

• To whom: kadry@site
• Subject: Free consultations

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

• Olga Maksimova,
• Head of the HR Department of Burevestnik LLC, Nizhny Novgorod

Vladimir Pirogov, lawyer at Nikline LLC, answers:

In the line “Base: amendment to the employment contract dated...” details of the additional agreement to the employment contract should be indicated. Let's explain our position.

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

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

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

And in accordance with the Instructions for the use and completion of forms of primary accounting documentation for the accounting of labor and its payment in the event that an employment contract was not concluded with the employee (the employee was hired before 10/06/1992) and his hiring was formalized by order, when When filling out the unified form No. T-5, in the line “Bases”, specific documents are indicated on the basis of which the employee will be transferred to another job (application, medical report, memo, etc.), and the details “Change to the employment contract” are not filled in.

In accordance with Art. 66 of the Labor Code of the Russian Federation, information about transfers to another permanent job is entered into the employee’s work book (see Example 5). In this case, a record of the transfer is made no later than a week on the basis of the relevant order (instruction) of the employer (clause 10 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by Government Decree No. 225 of April 16, 2003, hereinafter referred to as Resolution No. 225).

Temporary transfer

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

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

Please note: if, at the end of the transfer period, the employee’s previous job is not provided, and 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.

When such a transfer is carried out to replace a temporarily absent employee, who, in accordance with the law, retains his place of work, it is valid until this employee returns to work.

The procedure for 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.

In what cases does translation become mandatory?

Transfer at the initiative of the employee

In some cases, an employee has the right to demand from the employer a temporary transfer to another job.

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

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

In this case, pregnant women, in accordance with a medical report and at their request, are transferred to another job that excludes the impact of unfavorable production factors, while maintaining the average earnings for their previous job. Before a pregnant woman is given another position, she is subject to release from work with preservation of average earnings for all days missed as a result. 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).

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

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

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

We also remind you that an employee who needs to be transferred to another job in accordance with a medical report, with his written consent, the employer is obliged to transfer to another available job that is not contraindicated for this citizen due to health reasons. Meanwhile, if the specified person 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 the 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).

As a rule, in all of the above cases, the employer sends the employee a corresponding notice or proposal to transfer the employee to his existing vacant positions (see Example 6).

As a rule, the employee’s consent or disagreement with the transfer is formalized in a separate document or stated in the proposal for transfer to another job (see Example 7).

I would also like to remind you that according to Art. 74 of the Labor Code of the Russian Federation in the case when, for reasons related to changes in organizational or technological working conditions, the terms of the employment contract determined by the parties cannot be preserved, they can be changed at the initiative of the employer, with the exception of changes in the employee’s labor function. Moreover, if the employee does not agree to work under the new conditions, the employer is obliged to offer him another available job in writing. If there is no specified work or the employee refuses the proposed work, the employment contract is terminated in accordance with paragraph 7 of part one of Article 77 of the Labor Code of the Russian Federation.

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

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

FYI

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

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

Transfer to another location

Transfer procedure

In this case, the employer sends the employee an offer to transfer to work in another location. Next, the employee’s consent or disagreement is formalized in a separate document or written down in the transfer proposal itself.

If the employee agrees, changes should be made to the employment contract. This is done through the signing of an additional agreement. To complete the transfer, use Form No. T-5 or Form No. T-5a, approved by Resolution No. 1. Then, based on the order, marks are made in the employee’s personal card (Form No. T-2 or No. T-2GS (MS)) and personal account ( form No. T-54 or No. T-54a).

FYI

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

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

• for relocation of the employee, members of his family and transportation of property (except for cases where the employer provides the employee with appropriate means of transportation);
• 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. In this case, compensation payments to a citizen in connection with his move to work in another area are not subject to personal income tax (clause 3 of article 217 of the Tax Code of the Russian Federation) and unified social tax (subclause 2 of clause 1 of article 238 of the Tax Code of the Russian Federation), and can also be taken into account as part of other expenses (subclause 5, clause 1, article 264 of the Tax Code of the Russian Federation). Financiers also agree with this position (letters from the Ministry of Finance dated July 14, 2009 No. 03-03-06/2/140 and dated December 17, 2008 No. 03-03-06/1/688). At the same time, according to officials, the amount of reimbursement by the organization of expenses to an employee for renting housing is subject to personal income tax and unified social tax in the usual manner (letters from the Ministry of Finance dated July 13, 2009 No. 03-04-06-01/165 and dated December 17, 2008 No. 03-03-06/1/688).

Employee refusal to transfer

An employee’s refusal to be transferred to work in another location together with the employer is grounds for termination of the employment contract (Clause 9 of Article 77 of the Labor Code of the Russian Federation). In this case, 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 (see Example 8).

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

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

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

Footnotes

Collapse Show

Dismissal of an employee followed by transfer to another employer is not very common in personnel practice. Therefore, HR officers should know what to do if an employee asks for a transfer to another employer.

The Labor Code of the Russian Federation in Article 72.1 defines a transfer to another job as a temporary or permanent change in the function or structural unit of an employee, and Part 2 of the same article provides for a transfer to another employer for a permanent job. An employment contract previously concluded by an employee, according to Article 77 of the Labor Code of the Russian Federation (part 1, paragraph 5), must be terminated, where the basis is the transfer of the employee to another employer.

An employee of the personnel department should be aware that the competent termination of an employment contract, where the basis is the transfer of an employee to a permanent job with another employer, necessarily requires the written consent of both the employee and the new employer.

Translation at the request of the employee

For example, due to the higher salary and career prospects offered to him by another employer, the employee wants to change his job.

In order to competently terminate an employment contract with an employee and formalize a dismissal based on a transfer, the personnel service must have on hand a request from a third-party organization to transfer the employee. Such a request is written on the organization’s letterhead and must have an outgoing number. The text of the request to transfer an employee is not regulated by regulatory documents and is executed in free form. The document must contain the signature of the head of the organization that will be the new employer and a seal.

Request and response

The request can be received from the employee interested in the transfer or as a postal item. After receiving the request, you must respond with confirmation of consent to the employee's transfer.

The response is also prepared on the organization’s letterhead, indicating the outgoing number. The text of the response must contain a link to the previously received request, indicating the date and registration number. The document is certified by the signature of the head of the organization and the seal.

It is also practiced to send an invitation to a future employee, while simultaneously sending a copy to the employer, with whom the desired specialist is currently in a legal employee-employer relationship.

An invitation is issued similar to a request, and must contain an indication of the vacant position to which the employee is invited, the terms of the employment contract, the location of the workplace and working conditions. Most often, the invitation is limited in time, that is, the validity period of the invitation is indicated.

Deadlines

Often, heads of organizations and HR managers have a question about the time frame allotted by law for working with an application in these conditions. Since the regulatory documents defining labor legislation do not contain any specific deadlines, you should be guided either by the instructions for office work or by another regulatory document of the organization. The usual processing time for employee applications is from one to three days.

If the employer agrees to transfer the employee to another employer, he endorses the employee’s application and transfers it to the organization’s personnel service for further processing of documents and orders.

The transfer process ends with the payment of wages to the employee and, if there is unused leave, monetary compensation for it. Afterwards, an entry is made in the work book while simultaneously entering information into the employee’s personal card.

What do we write in the labor report?

According to the instructions for filling out work books, clause 6.1, in the event of termination of an employee’s current employment contract due to his transfer to another permanent place of work, the section on the work of the work book must contain information about the procedure for the transfer. In particular, information about the transfer procedure must be entered in column 3 of the work section: it is carried out with the consent of the employee or at his request.

In addition, according to paragraph 6.2 of the Instructions for filling out work books, the record of the employee’s transfer must contain information about the name of the organization to which the transfer is being made.

Transfer with the consent of the employee

In the case when an employee is transferred to another employer at the initiative of the employer, the procedure for document flow is somewhat different.

If the responsible persons of the interested organizations have agreed among themselves to transfer an employee of one organization to another, a prerequisite for this transfer is to obtain his written consent to such a transfer.

1. If an employee does not want to be transferred to another place of work, his refusal to transfer cannot be considered a violation of labor discipline and is not subject to any disciplinary sanctions.
2. In the case where an employee agrees to change his place of work, the responsible persons of the contracting organizations draw up an agreement, indicating in it the full name of the contracting parties and detailed working conditions after the transfer, indicating the position, salary, location of the new workplace and working hours.

When a transfer to another employer is made at the employer’s initiative, the agreement must include a phrase about the absence of a probationary period and indicate the date when the employee will have to begin performing his job duties at the new place of work.

This agreement can come into force only after receiving the written consent of the employee. This can be issued in the form of a separate statement from the employee or as an inscription at the bottom of the agreement, clearly indicating that the employee is familiar with the conditions and his consent to the transfer.

To prepare documents for a transfer with the employee’s consent to another employer, the employee must write a letter of resignation. After it is endorsed by the head of the organization, personnel officers will be able to begin processing the documents.

In contrast to the execution of a transfer at the request of the employee, when transferring with the consent of the employee, the dismissal order, in the part of the basis, indicates the agreement between the organizations and the details of the enterprise, which will be the new place of work.

The entries in the work book, which are made with different wording of the transfer, also differ. When an employee is transferred to a permanent job with another employer with the consent of the employee, an entry is made in the latter’s work book stating that the employment contract was terminated due to the transfer with the consent of the employee, indicating the full name of the organization to which the transfer is being made. It is advisable to indicate legislative confirmation of this action, namely, refer to the Labor Code of the Russian Federation, Article 77, part 1, paragraph 5.

Third party transfer

In addition to these types of transfer of an employee from one employer to another, another option is possible in which the initiator of the transfer is a third party. An example would be the transfer of an employee in alternative civil service to another employer. The basis for the transfer of such an employee is an order issued by the federal executive body of the Russian Federation.

Most often we are talking about citizens liable for military service who, in exchange for military service, undergo alternative service in civilian organizations.

Organizational issues regarding departure to a new place of work

Government Decree No. 256 of May 28, 2004 regulates the maintenance of employee labor documents. If he is transferred to another place of work, the employer terminates the existing fixed-term contract and makes a financial settlement with the employee. Next, he issues the employee an account card and a work book, with the relevant entries made in them in accordance with the procedure established by law. Against signature, the employer issues an official order to the employee to leave for the place of new duty, indicating the deadline established for this.

By further action, the employer notifies the organization that is the employee’s new place of work about the time when the employee will begin to perform his job duties related to alternative civilian service. In addition, the employer is obliged to notify the military commissariat that issued a referral for alternative civilian service to this employee and notify the territorial organization of the Federal Labor and Employment Service about the fact of transfer of the employee to another place for alternative civilian service.

Registration of documents at a new place of alternative civil service

Having arrived at the organization specified by the order, the employee performing alternative civil service presents to the new employer the labor documents provided by him for concluding an initial fixed-term contract.

In turn, the employer, in whose organization the employee will subsequently perform alternative civil service, draws up a fixed-term employment contract with this employee for the duration of his service at his enterprise.

Within no more than three days, the employer is obliged to notify the executive body in whose department the enterprise is located and the military commissariat that sent the citizen to perform alternative service, about the conclusion of a fixed-term employment contract with the citizen transferred to perform further alternative service at his enterprise.

New employer guarantees

The transfer of an employee to another place of work is associated with the execution of a new employment contract. According to the Labor Code of the Russian Federation, Article 64, the period for processing employee documents cannot exceed one month from the date of dismissal from the previous place of work. Problems that an employee has with a new organization, from delays to refusal to draw up an employment contract, are grounds for the employee to go to court.

Do not forget that the period of 1 month during which guaranteed employment occurs is an absolute value and cannot be extended either during holidays or due to temporary disability (illness). An employee who exceeds the period allowed by law to maintain job security loses the legal right to job security.

Moving to a new workplace

If the new place of work is located outside the employee’s locality, the new employer, in accordance with the Labor Code of the Russian Federation, Article 165, Part 1, is obliged to return to the employee the money spent on the move.

Reimbursable expenses related to relocation:

• relocation of the employee and his family)
• transportation of property (if the employer does not provide transport))
• settling into a new place of residence.

Termination of an employee’s employment contract due to transfer to another place of work is considered by labor law experts to be very specific. They refer to a contradiction in the wording: a transfer is an action related to a change in the employment contract, while when transferring to another employer, this contract is terminated. Personnel practice specialists even tend to consider the practice of transferring to a new employer today to be a rudiment of Soviet labor law, which is not relevant in our time.

However, this basis for dismissal is a fairly common practice today. Experts comment on this fact as adherence to traditions and reluctance to change the established order of things.

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  • Labor justice in foreign countries
• Model labor legislation of the CIS countries
  • General characteristics of model labor legislation of the CIS countries
  • Concept of the Model Labor Code
  • Model law on labor protection
  • Model Law “On Social Partnership”
  • Agreements and collective agreements
  • Participation of employees in the management of the organization
  • Recommendatory legislative act “Labor migration in the CIS countries”

Transfer of an employee at his request or with his consent to work for another employer or transfer to an elective job (position)

Dismissal by transfer. Termination of an employment contract on this basis (clause 5 of Article 77 of the Labor Code of the Russian Federation) is not uncommon, although at present, in terms of its legal consequences, it is practically no different from dismissal at will. Previously, upon dismissal by transfer, the employee was provided with a number of benefits, in particular the right to leave within the terms established by the previous employer, the right to maintain continuous work experience, maintaining a queue for an apartment, a queue for kindergarten, etc. The current legislation includes such no benefits are provided.

Termination of the contract on this basis is possible in three cases. Firstly, it may be the employee’s initiative to transfer him to a new employer. Secondly, an invitation to work from the new employer, made in writing. Thirdly, a transfer from one employer to another, initiated by a third party (for example, the transfer of an employee performing alternative civilian service).

Sometimes in the literature the opinion is expressed that a transfer at the request of an employee to work for another employer and a transfer with the consent of the employee to another employer are two different grounds for termination of an employment contract 1 See, for example: Article-by-article commentary to the Labor Code of the Russian Federation / Rep. ed. N.G. Gladkov, I.O. Snigireva. M„ 2006. P. 197. Wed, for example: Article-by-article commentary to the Labor Code of the Russian Federation / Ed. K.N. Gusova. M.. 2009. P. 219.. One can hardly agree with such an opinion, since there is not a single direct indication of a substantive difference. The difference here lies only in the subject initiating such relationships: it may be the employee himself (and then the basis will be his request); it may be a future employer (and then the basis for dismissal will be the employee’s consent); it may also be the initiative of third parties.

In modern conditions, the initiator of the transfer of an employee to another job is most often the employee himself. He himself looks for another job, independently negotiates with the future employer and, based on the agreement reached, will submit an application to the current employer with a request to fire him in connection with a transfer to another employer. In this case, the employee’s application is sufficient to terminate the contract; the written consent (request) of the future employer is not required to be included in the application, as was provided for in previous legislation.

In practice, the question arises: in what time frame do you need to respond to an application? The answer is not contained in labor legislation, therefore the period for consideration of applications is determined in accordance with the instructions for office work or other local act of the employer (as a rule, from one to three days are allotted for consideration of an employee’s application). If the employer agrees, then he puts a visa on the employee’s application and transfers it to the personnel service to issue an order.

It follows from the literal text of the law that an employee can “agree” to a transfer to another employer, but it is difficult to assume that the future employer made an invitation to such a transfer without the knowledge of the employee. In this case, a written document is required certifying the fact that the employee has been invited to a new job, and the employee must make an expression of will to terminate the contract not in the form of a statement of resignation of his own free will, but in the form of a statement of consent to move to work for a new employer.

The transfer procedure in this case is not prescribed by law, but, most likely, an agreement must first be reached between the two employers, and the employee will give his consent to such a transfer by noting in the letter of the future employer “agrees with the transfer” (or similar). Consent can also be expressed by the employee in the form of an independent document (the usual form accepted in personnel records management is a statement) - a statement of consent to the transfer.

Further, everything depends on the employer with whom the employee has an employment relationship. If he agrees to dismiss the employee on this basis, the contract is terminated. If, for some reason, the employer does not consider it possible to dismiss the employee (for example, due to production needs), the employment contract is not terminated. However, this does not mean that the employee will necessarily work here and further. In such a situation, he has the right to apply for dismissal of his own free will, and in two weeks he will be fired, regardless of any “production circumstances.”

Thus, the transfer of an employee to work for another employer is the basis for termination of the employment contract and is accompanied by the dismissal of the employee from his previous place of work. Moreover, upon dismissal under clause 5 of Art. 77 of the Labor Code of the Russian Federation, the employee receives a number of guarantees. First, the employee is guaranteed that the new employer who invited him to work cannot impose a hiring test on such an employee (Article 70 of the Labor Code of the Russian Federation). The second guarantee is the preservation of the opportunity to conclude an employment contract with a new employer for one month after dismissal from a previous job. The employer has no right to refuse this. However, if the employee does not approach the new employer with a proposal to conclude an employment contract within a month after dismissal, then the latter is released from the obligation to hire him. The third guarantee - if necessary, the new employer reimburses the employee for expenses associated with moving to another area (Part 1 of Article 165 of the Labor Code of the Russian Federation).

Sometimes situations arise when an employee asks to be dismissed at his own request, and the employer invites an employee from another organization to quickly fill the vacancy. In this case, it must be remembered that an employee who resigns of his own free will has the right to withdraw his application, granted by Art. 80 Labor Code of the Russian Federation. If the invited employee has not yet resigned from his previous place of work, and the present one withdraws the application of his own free will, he cannot be dismissed at his own request. The Supreme Court adheres to the same opinion in its ruling No. 48-B08-6 dated July 11, 2008: the right to withdraw a resignation letter cannot be exercised only if the employer’s obligation to hire another employee arose on the basis of the law. Consequently, the obligation voluntarily assumed by the employer to hire another employee is not a basis for refusal to exercise the right to withdraw the application.

A transfer from one employer to another can also be initiated by a third party (for example, the transfer of an employee performing alternative civilian service). In this case, the transfer is executed on the basis of the relevant order of the federal executive body of the constituent entity of the Russian Federation. The Government of the Russian Federation in Resolution No. 256 of May 28, 2004 “On approval of the Regulations on the procedure for alternative civil service” established that when an employee is transferred to another organization, the employer terminates the fixed-term employment contract with the citizen who is transferred to another organization and makes a full payment , issues a work book and registration card with entries made in the prescribed manner, and also notifies the organization to which the citizen is sent for further alternative civilian service about the date of his arrival, and the military commissariat that sent the citizen to alternative civilian service, the military commissariat for to a new place of alternative civil service and the Federal Service for Labor and Employment - on the transfer of a citizen to a new place of alternative civil service. The transfer procedure is completed by the employer issuing to the citizen, against receipt, an order to leave for a new place of duty within the prescribed period.

Dismissal upon transfer to an elective job (position). The basis for “dismissal due to transfer to an elected position” was also known to Soviet legislation. The list of elective positions was very extensive, and the transition to elective positions in a party, trade union, Soviet or Komsomol organization, and even on a collective farm or state farm was practiced quite often.

During the transition to market economic conditions, many of these positions ceased to play an important role, and many even ceased to exist, therefore it seems not entirely logical for the legislator to impose on the employer the obligation to terminate the employment contract with an employee elected to an elective position, as well as for the employee to receive certain preferences in this case (for example, if we are talking about electing an employee to any leadership position in a joint stock company).

However, when transferring to an elective position, the employee has the right to demand termination of the employment contract under clause 5, part 1, art. 77 of the Labor Code of the Russian Federation and the employer does not have the right to refuse him this. The employment contract is terminated within the period specified by the employee so that he has the opportunity to begin performing duties at his elective job (elected position) on time.

Hello! Not every manager is familiar with dismissing an employee as a result of transfer to another organization. Now we will tell you in detail about all the intricacies of this procedure and teach you how to draw up all the necessary documents.

Features of dismissal in the order of transfer to another organization

To better understand the depth of the issue, let's start with a definition.

Dismissal due to transfer– this is the termination of a contract (employment contract) of an employee with one employer and its simultaneous conclusion with another employer.

For example, an employee occupies a permanent position in one organization, but he was offered a more profitable job at another enterprise. Then he can transfer from one place of work to another. In fact, the employee quits the old enterprise and gets a job at a new one.

But before dismissing a transfer employee, the manager must have certain reasons. This is a letter of invitation from a future employer to a present one. Subject to the employee's consent and written request, the current manager may dismiss the transfer employee.

The Labor Code does not prescribe a clear algorithm for the manager’s action in this case. Mention of transfer to another organization can be found in Article 77 of this document. Therefore, when preparing documents for dismissal due to transfer, reference is made to Article 77 of the Labor Code of the Russian Federation.

In fact, business managers do not receive much benefit from this process. The same cannot be said about the employees. In case of dismissal in this way, the state protects the rights of the citizen, thanks to which he receives 100% employment.

If the manager refuses to let the employee go

If an employee has expressed a desire to resign by transfer, but his employer is against this, then the employee has no choice but to leave of his own free will. In this case, the employee is left without protection before the new manager.

That is, if dismissal occurs due to transfer, then the receiving party must employ the employee within a month, otherwise he may go to court. By a court decision, they can either reinstate him to his previous place of work, or oblige the head of the receiving enterprise to hire this employee.

If the dismissal occurs at will, then there will be no one to file a claim with.

Translation and processing

In case of dismissal due to transfer, the dismissing party may force the employee to work for a 2-week period. During this time, the manager will be able to find an employee who will replace the fired one.

It may be terminated early, by agreement of all parties. In this case, the employee will not have to work the required 2 weeks.

Types of transfers

Dismissal due to transfer can be external or internal.

Internal transfer (transfer within the company) is when the employer remains unchanged, but the employee’s position, place of work, etc. changes. Such a transfer can be either permanent or temporary.

External translation (transfer to another company) - occurs when an employee moves from one employer to another. At the same time, at the new place of work they are required to hire him only for a permanent position.

In any case, the employee’s consent is a prerequisite for the transfer.

Options for dismissal in order of transfer to another organization

There are several options for dismissing transfer employees. It all depends on who takes the initiative.

Option 1: The employee independently found the organization where he would like to work.

If the head of this organization is ready to hire an employee, then he writes a letter of invitation addressed to the current head, where he confirms that he is ready to hire his employee.

This written notice will be mailed or personally delivered to the incumbent. If he agrees with the transfer, the employee writes in order of translation, on the basis of which a dismissal order is issued, an entry is made in the work book, a personal card, the final payment is made, and documents are issued in hand (work book and certificate of income for 2 years).

With them, the employee goes to a new place of work, where he is hired.

Option 2: The initiative comes from the manager.

There are times when an organization urgently needs to reduce its workforce or fire some staff. In this case, the employer can independently find a new place of work for the employee. Managers discuss all the nuances and receive written consent to the transfer from the employee. A tripartite agreement is signed, which specifies the position, salary, working conditions, etc.

Each of these options has its own characteristics. Therefore, any manager needs to know and be able to fill out all the necessary documentation. Now we will analyze each translation option in detail so that you know all the intricacies of this procedure.

Step-by-step instructions for dismissal of a transfer initiated by an employee

1. The current employer receives a letter of invitation from an organization that is ready to hire his employee. It is drawn up in any form on the organization’s letterhead. It must indicate the position for which the employee is being hired and the approximate date of employment. Sometimes such a letter indicates the amount of the future salary, but this is not necessary.
2. An employee who wants to transfer writes a statement addressed to the head of the organization stating that he wants to resign due to the transfer.
3. After signing the application, a letter is sent to the organization that will employ the dismissed employee confirming the transfer. This item is optional, and the letter is drawn up for management’s consideration.
4. Next, the head of the enterprise creates an order, where it is necessary to indicate on whose initiative the transfer is being carried out “In the order of transfer at the request of the employee.” In addition, the order must make reference to clause 5, part 1, article 77 of the Labor Code of the Russian Federation.
5. After signing the order, it is registered in the Register of Orders for Personnel.
6. The order must be communicated to the employee in writing.
7. After this, in the employee’s personal card (T-2) on the fourth page, an entry is made about the employee’s dismissal, where a reference is also made to Art. 77 Labor Code of the Russian Federation. The employee must be familiar with all the records, after which he puts his signature on the card.
8. After this, the appropriate entry in work book employee, according to the Instructions for filling out the work book.
   There are 2 recording options:

In addition, the work book indicates the number of the dismissal order and its date. The entry must be made without abbreviations, certified by the seal and signature of the manager.

1. On the last working day, the employee is paid by issuing a settlement note (form T-61). Thus, the employee receives compensation for vacation and wages for days worked.
2. After which the former employee is given a work book. An entry about this must be made in the Book of Accounting for the Movement of Labor Books, where the employee puts his signature.
3. In addition to the work book, a certificate of salary for 2 months is issued.
4. After this, the dismissed employee is obliged to find a new job within 1 month.
5. When registering at a new location, a note is made in all relevant documents that it has been accepted for transfer.

Dismissal of an employee by his consent (the initiative comes from the manager)

This version of the transfer procedure is similar to the previous one, so we will not repeat ourselves, but will talk about the differences and features of the transfer on the initiative of the manager.

1. The heads of enterprises agree among themselves that one fires the employee, and the second hires. This can be confirmed by a letter of invitation (as in the first option).
2. After this, the employee himself must be familiarized with the upcoming transfer. He must be told in writing about the position he will hold, the working conditions, and the salary amount. If an employee does not agree to the transfer, then no one can force him to change his job.

If the employee agrees to the transfer, he can write “I agree to the transfer” on the written notice, adding a date and signature. A tripartite agreement is drawn up.

1. After which the receiving party receives a confirmation letter.
2. At an enterprise where an employee is fired, the manager issues a dismissal order, which states that the dismissal occurs with the consent of the employee. It is also necessary to refer to Article 77 of the Labor Code of the Russian Federation.
3. After which the corresponding entries are made in the work book and personal card, which also indicate that the dismissal is carried out with the consent of the employee . A sample record of dismissal in the order of transfer in the work book was discussed earlier in the first version.
4. All records and orders must be presented to the employee against his signature.
5. A settlement is made with the payment of all compensation, after which a work book and a certificate of income for 2 years are issued.

Basic documents for registration of dismissal

All letters are written in any form. The application from the employee and the order from the manager must be drawn up in accordance with all the rules. Below we provide a table with which you can correctly draw up the necessary document.

Application from an employee

1. Name of the addressee; 2. Full name of the employee; 3. Title of the document (application); 4. The essence of the statement “Please fire me...”; 6. Signature.

Dismissal order (order)

1. Name of the organization; 2. Name of the document and its number (Order No....); 3. Date of compilation; 4. Method of terminating the ore contract; 5. Full name of the dismissed employee; 6. Personnel number, position; 7. Basis for calculation; 8. Information about available documents that confirm the legality of dismissal due to transfer; 9. Date and signature of the manager; 10. The column “I have read the order,” where the resigning employee puts his signature.

Compensation upon dismissal by transfer

On the last working day, a full payment is made to the employee. Most often this is payment for his days worked and compensation for vacation.

Let's look at how compensation is calculated using an example.

Example: Let's assume that an employee quits on June 30, 2016, but he did not go on vacation this year. If his annual leave is 24 days, then the company must pay him compensation for 12 days.

Leave on transfer

When an employee comes to work at a new place of work, his leave is not saved. He can go on vacation no earlier than in 6 months. The exceptions are:

• Going on maternity leave;
• If the dismissed employee is under 18 years of age;
• Registration of leave by an employee who is the adoptive parent of a child under 3 months.

Who can be dismissed by transfer?

Any employee can be fired in this way if they have given their consent or taken the initiative on their own. Single mothers, mothers of many children, women on maternity leave, etc. fall into this category.

Advantages and disadvantages of dismissal

We will consider all the positive and negative aspects of dismissal due to transfer in the table.

Conclusion

Dismissal due to transfer to another organization is a simple process. But, nevertheless, it requires certain knowledge from the manager and the HR department. We hope that after reading our article, you have learned a lot of new things and now you can easily file a dismissal for a transfer of any complexity.

Question: ...The employee, with his consent, was transferred to another position with the same employer for a certain period. He failed to cope with his duties, the employer decided to transfer him to his previous position. The employee refused to transfer until the temporary transfer was completed. Can an employer unilaterally transfer an employee to his previous position? (Expert consultation, 2015)

Question: An employee, with his consent, was temporarily transferred to another position with the same employer for a certain period. Since the transferred employee could not cope with the new responsibilities, the employer decided to transfer him to his previous position, completing the temporary transfer ahead of schedule. However, the employee refused to return to his permanent place of work until the temporary transfer was completed. Can an employer unilaterally terminate a temporary transfer? If yes, what is needed for this?

Answer: The employer does not have the right to terminate a temporary transfer unilaterally. The employee can be returned to his permanent place of work until the temporary transfer is completed only by agreement of the parties.

For committing a disciplinary offense, including improper performance of job duties, an employee can be subject to disciplinary liability.

Rationale: Transfer to another job is a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer, as well as a transfer to another job to another location with the employer. As a general rule, transfer to another job is possible only with the written consent of the employee (by agreement of the parties), with the exception of certain cases (see Parts 2 and 3 of Article 72.2 of the Labor Code of the Russian Federation). This is enshrined in Art. 72, part 1 art. 72.1 Labor Code of the Russian Federation.

Article 72.2 of the Labor Code of the Russian Federation, dedicated to temporary transfer, does not provide for a legal mechanism that would allow early termination of a temporary transfer unilaterally. Therefore, when temporarily transferring to another job by agreement of the parties, such a transfer can also be completed only by agreement of the parties. The initiator of early completion of the transfer can be either the employee or the employer. It does not matter whether the transfer is to a vacant job or to replace a temporarily absent employee, whose job is retained in accordance with the law.

Obviously, the employer has no reason to unilaterally use other procedures provided for by law, acting by analogy, to complete a temporary transfer. In particular, in this regard, it would be unlawful to resort to the legal mechanism provided for canceling an order for additional work (see Part 4 of Article 60.2 of the Labor Code of the Russian Federation). It will also be illegal to change the terms of an employment contract for reasons related to changes in organizational or technological working conditions (see Article 74 of the Labor Code of the Russian Federation). In this case, transfer is possible only by agreement of the parties by virtue of the direct instructions of the law.

Additionally, we note that for committing a disciplinary offense, including for improper performance of job duties, an employee can be brought to disciplinary liability (Article 192 of the Labor Code of the Russian Federation).

For repeated failure (improper performance) without valid reasons of labor duties in the presence of an outstanding and outstanding disciplinary sanction, it is permissible to terminate the employment contract (clause 5, part 1, article 81 of the Labor Code of the Russian Federation; clause 35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation").

Dismissal on this basis is also possible for a continuing disciplinary offense, that is, when failure to perform or improper performance of job duties continues despite the penalty applied to the employee (paragraph 2 of paragraph 33 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2).