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Replacement of a temporarily absent employee: temporary transfer. When the terms of the contract are changed by the employer: reasons and grounds How to properly recall a worker from vacation

PART III. SECTION I II . LABOR CONTRACT
Chapter 12. AMENDMENT OF THE EMPLOYMENT CONTRACT

Article 72.2. Temporary transfer to another job

By agreement of the parties, concluded in writing, an employee may be temporarily transferred to another job with the same employer for a period of up to one year, and in the case when such a transfer is carried out to replace a temporarily absent employee who, in accordance with the law, retains a job, until this employee returns to work . If, at the end of the transfer period, the employee is not provided with the previous job, but he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent.
In the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic, and in any exceptional cases that endanger the life or normal living conditions of the entire population or part of it, the employee may be transferred without his consent for up to one month to an unconditional employment contract work for the same employer to prevent these cases or eliminate their consequences.
The transfer of an employee without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer is also allowed in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent the destruction or damage of property, or replacement temporarily absent employee, if downtime or the need to prevent the destruction or damage of property or to replace a temporarily absent employee is caused by the emergency circumstances specified in part two of this article. At the same time, transfer to work requiring lower qualifications is allowed only with the written consent of the employee.
When transfers are made in the cases provided for in parts two and three of this article, the employee’s remuneration is made according to the work performed, but not lower than the average earnings for the previous job..

Comment.
1. The article was introduced by Law No. 90-FZ. In contrast to the previous legal regulation, it is currently allowed temporary transfer employee to another job with the same employer for up to one year. If such a transfer is carried out to replace a temporarily absent employee, who, in accordance with the law, retains his job, the employee may be temporarily transferred for a period until this employee returns to work. Thus, if an employee retains a place of work for a period of more than one year (for example, in the case of parental leave until the child reaches the age of one and a half years), the period of temporary transfer to replace a temporarily absent employee may be more than one year. In both of the above cases, such a transfer is carried out by agreement of the parties, which is concluded in writing. The article, having provided for a deadline for transferring to another job, did not establish the number of such transfers, in connection with which it seems that these transfers can be carried out repeatedly, but within the established time limits. If, at the end of the transfer period, the employee is not provided with the previous job, but he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent. If the previous job cannot be provided to the employee at the end of the transfer period, then we believe that in this case the employer is obliged to provide the employee with a position equivalent to the previously occupied position (both in terms of fulfillment labor function as well as wage conditions).
2. Part two of the commented article gives the employer the right in the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic and in any exceptional cases that endanger life or normal living conditions of the entire population or part of it, to transfer an employee without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer in order to prevent these cases or eliminate their consequences. Thus, in these cases, an employee may be involved in work that does not correspond to his position, profession, specialty. As you can see, the list of cases in which it is allowed to transfer an employee to a job not stipulated by an employment contract is not exhaustive.
Transfer to a job not stipulated by an employment contract is also allowed in order to prevent the destruction or damage to property or replace a temporarily absent employee in case of downtime, if the downtime or the need to prevent the destruction or damage to property or replace a temporarily absent employee is caused by emergency circumstances listed in Part 2 of Art. . 722 of the Labor Code of the Russian Federation, i.e. a natural or man-made disaster, an industrial accident, etc. Downtime is understood as a temporary suspension of work for reasons of an economic, technological, technical or organizational nature. If the mentioned work requires a lower qualification than that which the employee has, then such a transfer is allowed only with his written consent.
3. For transfers made in the cases specified in paragraph 2 of the commentary, the employee’s remuneration is made according to the work performed, but not lower than the average earnings for the previous job (for payment of downtime, see also Article 157 of the Labor Code of the Russian Federation and commentary to it).

Our life does not stand still, and sometimes in the process labor activity unforeseen emergencies occur. If at this point in time you are on a well-deserved rest, then you should know that the employer has every right to recall you from vacation. This situation is called production necessity. The Labor Code of the Russian Federation of 2017 enshrines this right in Article 722.

What does section 722 say?

According to the article, the employer has the right to transfer his employees for up to one month to work that is not specified in the employment contracts concluded between them. The consent of the workers is also not required. Written consent is required if an employee is transferred to a job with a lower qualification than he has. Transfer in case of production need occurs in the following cases:

1. Disasters caused by natural or man-made causes.

2. Fires.

3. Earthquakes.

5. Epidemics.

In a word, in all those situations that endanger the health and life of the population.

During these cases, all the forces of the workers will be directed to eliminate the causes of negative influences. Employees will have to eliminate the causes of production downtime or replace other employees whose absence is caused by the above factors.

It should be noted that if the schedule is changed due to production needs, the consent of the employee is not required. Of course, if this change is associated with the occurrence of emergency situations.

What are the types of production needs?

Very often, the words "production necessity" are used by employers in all cases in which they wish to see the worker at work during periods of his vacation or after the end of working hours. However, the legislation Russian Federation establishes the following grounds for this concept:

1. Catastrophes and emergencies of a civil and military nature.

2. Man-made and natural disasters.

3. Unforeseen production downtime (causes may vary).

4. Replacement of an employee whose absence occurred due to an emergency.

5. Restoration of damaged property belonging to the organization.

In case of replacement of an absent employee, a transfer is possible not only for a period of up to one month, but also for the entire period of his absence.

In what cases can employers not call subordinates from vacation?

It is impossible to force an employee to go to work according to the production need fixed (as amended in 2017) by the Labor Code of the Russian Federation, if the fulfillment of new duties is impossible due to the health of the subordinate. It is also impossible within one calendar year to involve workers in new jobs for a period of more than one month. You can be called from vacation more than once, but only if the monthly period has not expired during the period of these calls.

By decision of the Russian Supreme Court No. 2 of March 17, 2004, it was established that a written refusal of an employee to leave a vacation would not be a disciplinary offense, and he had no right to punish an employee for this management.

Overtime work. What does the Labor Code say about it?

Art. 99 of the Labor Code of the Russian Federation stipulates that the employer may take the initiative to leave the worker at work in excess of the duration of his working hours, if it is necessary to complete work that has already begun. At the same time, these should not be just working moments, but if, as a result of an unfinished work process, conditions may arise that lead to damage and death of production property, as well as conditions that can lead to loss of human life or health.

As Art. 99 of the Labor Code of the Russian Federation, with the consent of the employee, drawn up in writing, the head may leave him overtime if:

It is necessary to carry out temporary repairs to the equipment of the organization. Moreover, if its malfunctions lead to deprivation of working conditions a large number workers.
There is a need to replace a non-showing shift, especially if work breaks are unacceptable.
Without consent, workers are involved in work for the following reasons:

to carry out work aimed at eliminating the causes of accidents, catastrophes and other consequences of emergency situations;
during the introduction of mobilization;
to eliminate the consequences of natural disasters caused by natural and man-made impacts.

Each worker may be involved in overtime work for no more than four hours a day and 120 hours a year. It is the employer's responsibility to follow these rules.

Who is not allowed to work overtime?

The legislation of the Russian Federation has secured such privileges for the following citizens:

Pregnant.
Citizens of Russia who have not reached the age of majority (18 years).

With written consent, disabled people, women with dependent children under three years of age can be involved, of course, if they do not have contraindications for health reasons. In addition, these persons may at any time refuse to perform these duties.

The procedure for recalling an employee from vacation

Recall from the next vacation due to production needs is not an easy procedure. Sometimes the word “production necessity” is not enough in an order; inspection organizations may have questions about this.

In addition, one order will not do. The most difficult thing will be to find a worker who is on vacation. Often people prefer to spend their holidays visiting relatives or parents living in other cities and settlements, and some like to "soak up" in warm countries outside their own country. At the same time, no one is obliged to notify the authorities about their plans; this is not fixed by labor relations legislation. But it is possible that these provisions will be fixed by the employer by internal acts of the organization. At the same time, these orders and instructions are advisory in nature for employees, and employees personnel service for their awareness, they may ask for information about the whereabouts of employees going on vacation.

Before calling the vacationer, a memo is written, and after informing the worker about his early return to workplace it is necessary to wait for his written consent to this. And after that, the head has the right to issue an order indicating the reasons for the call. Types of production necessity without the consent of the employee are enshrined in Article 722.

What is a memo?

The note describes all the moments of the unforeseen situation that occurred and indicates the reasons for calling the employee to work. The text of the note is drawn up in any form. The sample could be like this:

In connection with the changes that have taken place in the established work labor collective(illness of excavator Ivanov Vladimir Ivanovich) I propose to call citizen Petrov Nikolai Anatolyevich from the next paid vacation to prevent a stop production process for the period until the full recovery of citizen Ivanov V.I.

The note is drawn up by the head of the brigade or section where the vacationer works. He submits it for resolution to the immediate supervisor of production. He, in turn, can refuse, agree or make his own changes to the text of the note, for example, call another citizen from vacation, if any.

Vacationer notification of a call

You can report the difficulties to the employee by calling him, but it is best to issue a call official letter, where to indicate in detail the reason for the production need fixed by the Labor Code of the Russian Federation. There were no changes in this regard in 2017. In order to avoid further conflicts, the citizen should explain his rights regarding the refusal of the offer.

How to recall a worker from vacation?

In order to avoid problems with labor inspection organizations in the future, the following information must be reflected in the order:

If the employee plans to go to work after the recall, then it is necessary to indicate this date, if he is going to rest further, then indicate the duration of the recall.
In case of unfinished vacation, the method of using the remaining days is indicated.
Information about the recalculation of vacation pay and wages.

Recall from vacation due to work processes

Sometimes an employee is needed to sign important documents or collect certain information. Such moments are not fixed by law. Therefore, these cases are negotiated between the employer and the worker on a contractual basis.

How to manage the remaining vacation days?

You can spend the remaining days in several ways:

Transfer of leave due to operational needs. Use free days next year or spend them during that calendar year.
Take legally fixed monetary compensation.

How is vacation pay recalculated when a worker returns to work?

These problems will fall on the accountants. After all, the calculation of vacation pay and the calculation of wages are made in different ways. These are different methods of accrual, reporting and accounting for taxation.

Sometimes a one-time monetary incentive is paid to an employee for a spoiled vacation, which, although a little, warms his soul.

A few words in conclusion

I always want the relationship in the work team and with the authorities to be on top. Harmony and mutual understanding bring a good contribution to the common cause. However, enjoy Russian legislation necessary. The fixed concept (both earlier and as amended in 2017) by the Labor Code of the Russian Federation "production necessity" will always help the manager to use this right to solve urgent work problems, and the subordinate to know his rights during a well-deserved rest.

Full text of Art. 72.2 of the Labor Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice under article 72.2 of the Labor Code of the Russian Federation.

By agreement of the parties, concluded in writing, the employee may be temporarily transferred to another job with the same employer for a period of up to one year, and in the case when such a transfer is carried out to replace a temporarily absent employee, who, in accordance with the law, retains his job , - until the employee goes to work. If, at the end of the transfer period, the employee is not provided with the previous job, but he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent.

In the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic, and in any exceptional cases that endanger the life or normal living conditions of the entire population or part of it, the employee may be transferred without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer in order to prevent these cases or eliminate their consequences.

The transfer of an employee without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer is also allowed in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent the destruction or damage of property, or replacement temporarily absent employee, if downtime or the need to prevent the destruction or damage of property or to replace a temporarily absent employee is caused by the emergency circumstances specified in part two of this article. At the same time, transfer to work requiring lower qualifications is allowed only with the written consent of the employee.
When transfers are made in the cases provided for in parts two and three of this article, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job.

Commentary on Article 72.2 of the Labor Code of the Russian Federation

1. The commented article deals with temporary translation. It should be considered in a systematic connection with, which establishes the possibility of concluding an agreement on changing the terms of an employment contract.

In the absence of a permanent transfer condition, temporary transfers are subject to a one-year time limit. In accordance with the requirements of Art. 14 of the Labor Code of the Russian Federation, terms calculated in years expire on the corresponding date of the last year. If the last day of the term falls on a non-working day, the expiration date of the term shall be the next working day following it.

At the same time, the commented article establishes that in the case when such a transfer is carried out to replace a temporarily absent employee, for whom, in accordance with the law, the place of work is retained, the transfer period is set before this employee returns to work. In this case, the period of temporary transfer may be longer (for example, in the absence of the main employee due to parental leave). At the same time, the term of the transfer, which is considered temporary, is not specified. Its termination will actually depend on the desire and ability of the main employee to go to work.

If the term of the transfer has expired, the previous job was not provided to the employee, and he himself did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent.

Thus, the legislator, setting the transfer period at one year, emphasized the right of the employee, despite the fact that the transfer was made by his own consent, to return to his previous place of work after a year. Corresponding to this right is the duty of the employer to provide such an opportunity.

If the period of temporary transfer is limited by the period of absence of the main employee, the rights of the latter are protected, since it is expected that he will return to the performance of his labor function.

If, after a year, the parties to the employment contract did not consider it necessary to exercise the above right, as in the case if the main employee did not go to work (for example, when terminating the employment contract with him or transferring), then the temporary transfer is transformed into a permanent one.

2. Transfer to another job without the written consent of the employee is possible only in cases provided for in parts 2, 3 of the commented article.

In case of emergency, in which the normal course economic activity becomes impossible, the employee may be transferred without his consent to work not stipulated by the employment contract with the same employer, but only to prevent these cases or eliminate their consequences, and for a period of up to one month.

Similarly, in cases of downtime, as well as if it is necessary to prevent the destruction or damage to property or to replace a temporarily absent employee, but only in cases where this is caused by emergency circumstances, the transfer of an employee without his consent to work not stipulated by an employment contract with the same employer is also allowed for up to one month.

At the same time, as emphasized by the Supreme Court of the Russian Federation, the employer has the right to transfer the employee to work not stipulated by the employment contract only in extraordinary cases, specified in parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation, or to eliminate their consequences. The employer must provide evidence of the existence of emergency circumstances that necessitated the temporary transfer of an employee without his consent to work not stipulated by an employment contract (determination of the Armed Forces of the Russian Federation of April 8, 2010 N 53-B11-1).

The following case from judicial practice is indicative. By order of the chief physician, T. was temporarily transferred to the position of a cardiovascular surgeon at the employer's polyclinic without his consent. According to the employer, the transfer of T. did not contradict the provisions of Part 2 of Art. 72.2 of the Labor Code of the Russian Federation, since the absence of a cardiovascular surgeon in the clinic regional hospital jeopardizes the life or normal living conditions of the entire population or part of it, which is an emergency. However, the court disagreed with these arguments. The case under consideration, according to the court, is not extraordinary.

Paragraph 17 of the resolution of the Plenum of the Supreme Court of the Russian Federation on the application by the courts of the Labor Code of the Russian Federation provides that when applying parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation, which allow the temporary transfer of an employee to another job without his consent, the courts should keep in mind that the obligation to prove the existence of circumstances with which the law associates the possibility of such a transfer rests with the employer. When considering this case, the employer did not provide evidence of the existence of emergency circumstances that necessitated the temporary transfer of the employee without his consent to work not stipulated by the employment contract. Accordingly, the employee was transferred under the pretext of operational necessity, in the absence of exceptional cases indicating the real need for such a transfer, in connection with which the said transfer was declared illegal.

Thus, the employer should not consider his own, even if high, need to transfer the employee to another job as an emergency.

3. The number of guarantees provided for an employee in the presence of emergency situations and his temporary transfer, according to parts 2 and 3 of the commented article, includes the following:
- even in such cases, transfer to work requiring lower qualifications can only be carried out with the written consent of the employee;
- with such transfers, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job (on the procedure for calculating the average wage and commentary on it).

Another commentary on Art. 72.2 of the Labor Code of the Russian Federation

1. The general principle of the stability of an employment relationship (see Art. 60, 72 and commentary thereto) extends to cases of temporary transfers to another job. This means that, as a rule, a change in the content of the labor function and (or) the place of employment stipulated by the contract is carried out exclusively by agreement of the parties, concluded in writing (see article 72 of the Labor Code and commentary thereto).

At the same time, the legislator establishes some additional mandatory rules related to ensuring the principle of stability of the labor relationship. By virtue of part 1 of the commented article, if at the end of the transfer period the previous job was not provided to the employee, but he did not demand its provision and continues to work, then the condition on the temporary nature of the transfer becomes invalid and the transfer is considered permanent. Thus, the very fact of allowing the employee to work after the date indicated in the transfer agreement as the end of the transfer period means that the parties have reached a new agreement that the new job is permanent for the employee. With regard to a transfer to replace a temporarily absent employee, such an agreement is presumed for the case when this employee returned to work and at the same time the transferred employee is also not released from the transfer.

This rule also applies to cases where a change in the labor function has resulted in the employee being assigned to perform work in a different position, specialty or profession without being released from the previous job, i.e. in cases of combining professions, positions or expanding the service area (see article 60.2 of the Labor Code and commentary thereto).

Since part 1 of the commented article establishes the rules for temporary transfer to another job with the same employer, these rules do not apply to cases of temporary transfer of an employee to another employer. In the latter case, the law does not require the mandatory written execution of a transfer agreement (although a written form is appropriate), the terms of the transfer, including the condition of its duration, are determined solely by agreement of the parties; accordingly, the rule established by this article regarding the transformation of a temporary transfer into a permanent one is not valid. Therefore, if there is a need to transfer the employee to work with the employer at the place of transfer, such a transfer should be carried out according to the rules of dismissal in the order of transfer to another employer or by dismissing the employee according to own will with the subsequent conclusion of an employment contract with a new employer.

2. On the peculiarities of the temporary transfer to another job of pregnant women and women with children under the age of one and a half years, see Art. 254 of the Labor Code and commentary to it.

On the features of the temporary transfer to another employer of professional athletes, see Art. 348.4 of the Labor Code and commentary to it.

3. The employer has the right to transfer the employee to work not stipulated by the employment contract in order to prevent the extraordinary cases specified in parts 2 and 3 of the commented article, or to eliminate their consequences. In this regard, the Supreme Court of the Russian Federation indicates: when applying parts 2 and 3 of the commented article, which allow the temporary transfer of an employee to another job without his consent, the courts should bear in mind that the obligation to prove the existence of circumstances with which the law associates the possibility of such a transfer , is assigned to the employer (clause 17 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation Labor Code Russian Federation").

Transfer to another job in these cases is regulated by federal law, therefore, the right of the employer to make such a transfer, as well as the obligation of the employee to perform new job, arise directly from the law, regardless of whether it is provided as a condition of the employment contract. Work not stipulated by an employment contract is understood as work that may be outside the scope of the labor function stipulated by an employment contract.

The transfer in question belongs to the category of transfers carried out at the initiative of the employer. An employee's refusal to transfer is a disciplinary offense entailing disciplinary liability.

Translation in the order of the commented article has the following features: a) is possible in the presence of actual circumstances of an extraordinary nature; b) is temporary; c) can only be carried out with the same employer; d) is allowed if the employee retains the right to work of a certain quality.

4. The list of cases of an extraordinary nature, which are the basis for the transfer of an employee, is given in parts 2 and 3 of the commented article. If the employer carried out the transfer of an employee under the pretext of operational necessity, in the absence of exceptional cases indicating the real need for such a transfer, it is recognized as illegal.

Judicial practice proceeds from the fact that the transfer in question is possible if the employer had no other way to prevent or eliminate the circumstances indicated in the commented article. Shortcomings in the organization of labor cannot serve as a basis for such a transfer.

5. Translation in the order of the commented article is allowed for a period not exceeding one month. Since the law only limits the time limit and not the number of transfers, such a transfer can take place more than once, but whenever there is a corresponding exceptional reason.

If the action of the reason that caused the transfer in question lasts more than a month, the employee may be assigned to perform work outside the stipulated labor function or place of work ( structural unit) subject to obtaining his consent to this.

6. In accordance with the Labor Code, the transfer in question is allowed only for this employer. It does not matter that the circumstance that caused such a transfer may occur with another economic entity. Temporary transfer to another employer to eliminate these circumstances is possible only with the consent of the transferred employee.

At the same time, the legislator does not in any way limit the possibility of transferring, in connection with the circumstances specified in the commented article, to a subdivision of the employer's organization located in another locality.

7. When transferring in the order of the commented article, the employee cannot be assigned work that is contraindicated for him for health reasons.

An assignment to a transferred worker of work of a lower qualification than that stipulated by the employment contract is possible only with the written consent of the worker.

8. A transfer to replace a temporarily absent employee is a special case of temporary transfers of the type in question and is carried out on the basis of general rules set for temporary translations of the commented article.

9. Transfer to another job in the cases specified in the commented article is formalized by an order (instruction) of the employer, which must indicate the reason and term for the transfer, the work assigned to the employee and the conditions of remuneration (for the work performed, but not lower than the average earnings for the previous work).

10. The employer's order to transfer is binding on the employee, and unreasonable refusal of it is a disciplinary offense, entailing disciplinary liability.

If the employee does not go to work or returns to his previous workplace, his actions should be considered as absenteeism. If an employee enters a new workplace, while refusing to perform the corresponding work, his actions should be interpreted as a continuing disciplinary offense, for which several disciplinary sanctions may be announced, including dismissal for repeated failure to perform job duties(Clause 5, Article 81 of the Labor Code).

However, by virtue of par. 5 st. 219, part 7 of Art. 220 of the Labor Code, an employee cannot be subjected to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, with the exception of cases provided for federal laws, until such a hazard is eliminated or from performing work with harmful and (or) hazardous conditions work not covered by the employment contract. Since the Labor Code does not contain norms prohibiting an employee from exercising this right, even when the performance of such work is caused by a transfer on the grounds specified in the commented article, the employee’s refusal to temporarily transfer to another job in accordance with Art. 72.2 of the Labor Code for the above reasons is justified (paragraph 19 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2).

Consultations and comments of lawyers on Article 72.2 of the Labor Code of the Russian Federation

If you still have questions about Article 72.2 of the Labor Code of the Russian Federation and you want to be sure that the information provided is up to date, you can consult the lawyers of our website.

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When transfers are made in the cases provided for in parts two and three of this article, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job.

Comments to Art. 72.2 of the Labor Code of the Russian Federation

1. When transferring an employee without his consent for up to 1 month. for a job not stipulated by an employment contract with the same employer, the reasons for the transfer must be indicated. There can be 3 of them: 1) in order to prevent cases that endanger the life or normal living conditions of the population; 2) in order to eliminate the consequences of these cases; 3) with a combination of the first and second causes. The reasons must be indicated in the order (instruction) on the transfer.

2. A permanent transfer under part 1 of the commented article must be formalized by agreement of the parties in the form of an annex to the employment contract, despite the fact that the temporary nature of the transfer has become invalid and the transfer is considered permanent.

3. When transferring to replace a temporarily absent employee, it is necessary to have emergency circumstances specified in part 2 of the commented article. If there are none, the transfer is possible only with the consent of the employee.

4. When transferring under part 1 of the commented article, the remuneration of the transferred employee is carried out according to the work performed.

5. When resolving cases related to the transfer to another job, it must be borne in mind that the refusal to perform work during a transfer made in compliance with the law is recognized as a violation labor discipline, and absence from work - absenteeism. In doing so, it should be taken into account that, by virtue of par. 5 hours 1 art. 219, part 7 of Art. 220 of the Labor Code, an employee cannot be disciplined for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, with the exception of cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with harmful and (or) dangerous working conditions not provided for by the employment contract. Since the Labor Code does not contain norms prohibiting an employee from exercising this right even when the performance of such work is caused by a transfer on the grounds specified in Art. 72.2 of the Labor Code, refusal of an employee to temporarily transfer to another job in accordance with Art. 72.2 of the Labor Code for the above reasons is justified (clause 19 of the Resolution of the Plenum Supreme Court RF dated March 17, 2004 N 2).

6. Refusal to transfer to another job is a violation of labor discipline.

As of: 09.10.2006
Magazine: Directory of personnel officer
Year: 2006
Author: Kostyan Irina Alexandrovna
Subject: Documents of the personnel service, Temporary transfer to another job
Category: HR practice

In practice, situations are not uncommon in which the employer is forced to replace a temporarily absent employee. This happens in the following cases: an employee uses annual paid leave, leave without pay, during the period of his temporary incapacity for work, maternity leave, in other cases when a temporarily absent employee, in accordance with the law, retains a place of work.

The Labor Code of the Russian Federation provides for several options for replacing a temporarily absent employee:
- temporary transfer to another job;
– movement;
– combination of professions (positions);
– conclusion of a fixed-term employment contract during the absence of the employee.

Different types of replacement of a temporarily absent employee have much in common, which is a kind of prerequisite for legal errors made by the parties to an employment contract in practice. At the same time, the types of replacement of a temporarily absent employee listed above differ significantly from each other both in form and in content.

In addition, Federal Law No. 90-FZ of June 30, 2006 “On Amendments to the Labor Code of the Russian Federation, Recognition of Certain Regulatory Legal Acts of the USSR as Invalid on the Territory of the Russian Federation and Repealed Certain Legislative Acts (Provisions of Legislative Acts) of the Russian Federation” introduced a number of significant changes in legal regulation replacement of a temporarily absent employee.

In order to determine which of the existing forms to choose, taking into account specific circumstances, it is necessary to identify the features of each of them, which will make it possible to find the optimal, and in some cases the only acceptable way.

Today we will talk about a temporary transfer to another job to replace a temporarily absent employee.

As a rule, to replace a temporarily absent employee, in practice, a temporary transfer to another job was used due to production needs. Prior to the introduction of amendments to the Labor Code of the Russian Federation (in 2006) in accordance with Art. 74 of the Labor Code of the Russian Federation, in the event of a production need, the employer had the right, on his own initiative, to transfer the employee in the same organization to another job not stipulated by the employment contract. Production necessity was understood, in particular, as the need to replace an absent worker.

The changes made to the Labor Code of the Russian Federation in 2006 modified in some way the legal potential of both the employer and the employee in the situation under consideration. Now the norms of the Labor Code of the Russian Federation provide for the possibility of applying a temporary transfer both in case of production necessity, and in situations not related to it.

Note!

Temporary transfers can be made:
by agreement of the parties (employee and employer);
unilaterally at the initiative of the employer:
in the absence of the consent of the employee;
with the consent of the employee

AT modern conditions temporary transfers can conditionally be divided into two groups: transfers allowed by agreement of the parties (employee and employer); transfers carried out by the employer unilaterally on their own initiative.

In turn, temporary transfers at the initiative of the employer are of two types: transfers carried out by the employer in the absence of the consent of the employee, and transfers allowed with the consent of the employee.

Consider three possible options for the temporary transfer of an employee to replace an absent employee.

Translation by agreement of the parties

In accordance with Part 1 of Art. 722 of the Labor Code of the Russian Federation, a temporary transfer to another job with the same employer to replace a temporarily absent employee is allowed only by agreement of the parties. The previous rule under Art. 74 of the Labor Code of the Russian Federation, did not regulate the procedure for the implementation of a temporary transfer to another job by agreement of the parties, however, did not prohibit it. In practice, often to replace a temporarily absent employee, the parties to the employment contract used their right to make appropriate changes to the employment contract, including those of a temporary nature, by agreement of the parties. Therefore, in the situation under consideration, on the basis of a written agreement signed by the parties, there could be certain period the labor function of the employee, the structural unit in which he worked, the amount and forms of remuneration, etc. have been changed.

Earlier, part 2, 3 art. 74 of the Labor Code of the Russian Federation Now, art. 722 of the Labor Code of the Russian Federation

The duration of a transfer to another job to replace an absent employee cannot exceed one month during a calendar year (from January 1 to December 31).

With written consent, an employee may be transferred to a job requiring a lower qualification.

By agreement of the parties, concluded in writing, an employee may be temporarily transferred to another job with the same employer for a period of up to one year, and if such a transfer is carried out to replace a temporarily absent employee who, in accordance with the law, retains his job, until the employee returns to work. If, at the end of the transfer period, the employee is not provided with the previous job, but he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent.

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

However, the lack of legal norms establishing the right and procedure for transferring to another job to replace a temporarily absent employee, for example, for the period of his stay on parental leave for up to three years, entailed the transformation of an employment contract concluded for an indefinite period into a fixed-term employment contract . Therefore, the basis for terminating an employment contract with an employee transferred to another job of a temporary nature was often the expiration of its validity due to the temporary absence of an employee who was retained by law by law. All this significantly reduced the legal guarantees of employees temporarily transferred by agreement of the parties to another job for a long-term replacement of a temporarily absent employee.

Currently, based on a written agreement between the parties, two types of temporary transfers are allowed:
- for up to one year;
- for the entire period of absence of the employee, for whom the law retains the place of work.

transfer to another job for up to one year is essentially unlimited. Therefore, from a formal point of view, it seems possible, by agreement of the parties, to temporarily transfer an employee both to replace a temporarily absent employee and to a vacant position. In this regard, the employer has time to solve his problems, for example, to find a suitable, in his opinion, employee for a vacant position.

Note!

Now the Labor Code of the Russian Federation allows the temporary transfer of an employee to a vacant position for up to 1 year. Required condition- agreement of the parties

Transfer to work to replace a temporarily absent employee is limited to the period of absence of the employee, for which, according to the law, the place of work is retained. In this case, the end date of the temporary transfer is the date when the temporarily absent employee enters work, for whom, in accordance with the law, the job is retained. In the second case, a temporary transfer to another job is allowed only to replace a temporarily absent employee. Obviously, this form of substitution can be used by the employer and the employee in situations where it is necessary to replace an employee who is on maternity leave, parental leave, due to temporary disability, etc. ( Application 1)

Thus, on the one hand, the legislator increased the duration of the temporary transfer of an employee to another job to replace an absent employee to one year or more, on the other hand, such a transfer is not allowed if there is no agreement between the parties.

What is meant by "agreement of the parties"? Will the signature of the employee on the transfer order be sufficient?

The consent of the employee to transfer to another job to replace the temporarily absent employee in this situation is clearly not enough. Therefore, familiarizing the employee with the employer's order to transfer him to another job for a certain period and obtaining his consent to such a transfer cannot be fully considered as compliance with labor law.

It also seems unlawful to carry out a temporary transfer to another job to replace a temporarily absent employee by notifying the employee about this against receipt and obtaining written consent from him for such a transfer. The issuance of an employer's order for a temporary transfer to another job and an employee's visa on consent to work in changed conditions or a written statement from the employee in which he expresses his consent to the transfer also does not allow us to fully regard this as compliance by the employer with labor legislation. This is due to the different content of the concepts of "consent" and "agreement".

The consent of one party (the employee) implies the existence of an initiative coming from the other party to the employment contract - the employer. Meanwhile, the agreement of the parties is an opportunity for bilateral (on an equal footing) determination by the parties of working conditions. In this case, a temporary transfer to another job can be carried out as a result of the parties agreeing on all the terms of the employment contract that are subject to change: the amount of wages, working hours, etc. Therefore, the agreement of the parties on the temporary transfer of the employee to another job with the same employer is subject to conclusion in writing.

Note!

The basis for issuing an order to transfer an employee to another job, including to replace a temporarily absent employee, is an additional agreement to the employment contract

Therefore, the basis for an order to temporarily transfer an employee to another job in this case is written agreement parties to amend the employment contract. Such an agreement is drawn up, as a rule, in two copies - one for each party. (An exception is cases when an employment contract is concluded in more than two copies.) It must be signed by both parties to the employment contract. The content of the agreement may be conditions that change in connection with the ongoing activities: change of position (specialty, labor function); structural unit, as well as conditions related to this transfer, such as a change in wages, a change in working hours, the term for changes made to the employment contract by agreement of the parties.

Note!

Part 1 Art. 722 of the Labor Code of the Russian Federation provides for cases when a temporary transfer will be considered permanent

It is necessary to pay attention to the legal consequences provided for by Part 1 of Art. 722 of the Labor Code of the Russian Federation. The expiration of the term of the transfer may entail the recognition of the provision on the temporary nature of such a transfer as invalid, and the temporary transfer, therefore, will be considered permanent. This happens when two conditions are present at the same time:
- the employer did not provide the employee with the previous job;
- the employee has not stated the requirement to provide him with the previous job.

Here one can see the application of the analogy of the law governing the rule for the transformation of urgent labor relations into relations of a permanent nature, according to which the absence of the will of the parties (one of the parties) of the employment contract entails the recognition of a fixed-term employment contract as a contract concluded for an indefinite period. This is a change that has great importance, obliges the employer to monitor the validity of the temporary transfer. It should be borne in mind that the employer does not always know the date of entry to work of the employee, who, according to the law, retains his place of work.

For example, a woman who is on parental leave has the right to interrupt it at her own discretion at any time convenient for her and go to work without notifying the employer.

The date of her entry to work should serve as the basis for the parties to the employment contract (employee and employer) to end the transfer to another job.

At the same time, the rules of Part 1 of Art. 722 of the Labor Code of the Russian Federation are not formulated correctly enough. Thus, the transformation of a temporary transfer into a permanent transfer is due to the lack of actions on the part of the employer to provide the previous job to the employee transferred to another job to replace the temporarily absent employee.

At the same time, the procedure for providing an employee with a previous job is not defined by law. In this regard, questions arise:
- Is it necessary to issue an order to transfer the employee to his previous place of work, and what in this case can serve as the basis for such a transfer?
- Is it necessary to notify the employee in writing about the exit to his workplace of a temporarily absent employee, and if so, in what form?
- Is it possible not to formalize in writing the fact of providing an employee temporarily transferred to another job, the former place of work (position)?

In our opinion, the rule stipulated by the labor legislation for transforming a temporary transfer into a permanent transfer obliges the employer to notify the employee (notify him) of the provision of the previous job in connection with the return to work of the employee whom he replaced in accordance with a written agreement of a temporary nature. Otherwise, a situation is possible in which two employees may be in the same position, who will be persons working under an employment contract concluded for an indefinite period. So, if on the day a temporarily absent employee enters work, the employer does not provide the previous job to the employee temporarily replacing the absent one, then two persons may be in the same position at once.

Suppose, on December 28, 2006, Ivanov Ivan Ivanovich, due to the end of temporary disability, goes to work as the chief specialist of department N in accordance with the terms of the employment contract concluded when he was hired. At the same time, on December 28, 2006, in accordance with the Internal Labor Regulations, Petrov Petr Petrovich, transferred to the same position from the position of a leading specialist of the same department in accordance with a written agreement of the parties, goes to work during the absence of Ivanov Ivan Ivanovich.

In the situation under consideration, if on December 28, 2006 the employer does not provide Petrov Petr Petrovich with the previous job he occupied before being transferred to the position of chief specialist of department N, and Petrov P.P. himself does not demand its provision, then Petrov P.P. will be working in the position of chief specialist of department N. The condition on the temporary nature of the transfer of Petrov P.P. on December 28, 2006 becomes invalid.

In order to avoid such situations, the employer, most likely, will have to somehow record the fact that Petrov was provided with the former (occupied by him before the transfer) job (position).

The most optimal, in our opinion, may be the notification of Petrov P.P. about Ivanov I.I. Appendix 2).

Such notification should be in writing. Its content can be arbitrary. It seems that the notification should be signed by a person with the right to hire and dismiss workers. It can be prepared in two copies, one of which must be handed over to the employee, and on the other, which remains with the employer, there must be a mark of delivery.

If the employee for some reason refuses to receive the notification, it is advisable for the employer to draw up an act about this.

Note!

The procedure for formalizing the provision of a former place of work to an employee of the Labor Code of the Russian Federation is not defined

In our opinion, there is no need to issue an order to transfer the employee to the previous place of work, since the transfer itself is temporary. At the same time, such an order cannot be recognized as illegal due to the fact that the procedure for formalizing the provision of a former place of work to an employee is not defined by law. Therefore, the employer, taking into account the rules for office work in force in the organization, has the right to issue an order (instruction) to transfer the employee to his former place of work in connection with the employee's return to work, for which the former place of work was retained for the period of his absence.

Such a document must contain the following information:
- last name, first name and patronymic of the employee;
- the name of the position in which he is in connection with the temporary transfer;
- the name of the position to which he should return;
- grounds (the fact of the employee's return to work, indicating his last name, first name and patronymic, the reasons for his absence);
– date of transfer.

If such an order (instruction) of the employer on the transfer to the previous place of work is issued, it is necessary to familiarize the employee with it against receipt. In case of refusal to familiarize with the order (instruction) or refusal to sign on familiarization with it, this fact should be formalized by the relevant act.

Transfer at the initiative of the employer in the absence of the consent of the employee

In the absence of the consent of the employee, as before, a temporary transfer to another job is allowed at the initiative of the employer, if necessary, to replace a temporarily absent employee for a period not exceeding one month. At the same time, the transfer of an employee is allowed for work not stipulated by the employment contract with the same employer, and the consent of the employee for such a transfer is not required. The exception is cases of transfer to work requiring lower qualifications, which are allowed only with the written consent of the employee. Just as before, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job.

Note!

The number of temporary transfers at the initiative of the employer for up to one month to replace a temporarily absent employee in the event of a production need is not limited

It should be noted that since Part 3 of Art. 722 of the Labor Code of the Russian Federation does not contain any restrictions on the number of temporary transfers allowed at the initiative of the employer, for a period of up to one month, it seems that such transfers can be repeated. The rule that was previously provided for by Parts 1 and 2 of Art. 74 of the Labor Code of the Russian Federation, limited the maximum allowable duration of a temporary transfer to replace an absent employee to one month within one calendar year (from January 1 to December 31). This made it possible to speak about the possibility of repeatedly transferring an employee to another job to replace an absent employee, but at the same time for a total period of not more than one month during a calendar year. Today, this assertion is not supported by anything.

At first glance, the innovation essentially weakened the legal guarantees of workers. The rule under consideration is contrary to the principle labor law enshrined in Art. 2 of the Labor Code of the Russian Federation, which proclaims freedom of labor, including the right to work, which everyone freely chooses or to which he freely agrees, the right to dispose of his abilities for work, to choose a profession and type of activity. So, within the meaning of Part 3 of Art. 722 of the Labor Code of the Russian Federation, the employer, in the absence of any restrictions, has the right to repeatedly use the work of an employee at his own discretion, repeatedly demand from him to perform work not stipulated by an employment contract, for periods of up to one month. In this case, the declarative is provided by Art. 2 of the Labor Code of the Russian Federation, the principle proclaiming the obligation of the parties to an employment contract to comply with the terms of the concluded contract, including the right of employees to demand that the employer comply with his obligations towards them. In addition, it seems doubtful whether it is possible to protect the right of an employee to demand that the employer provide him with work stipulated by an employment contract.

However, in reality there is no contradiction here. When applying part 3 of Art. 722 of the Labor Code of the Russian Federation, which allows the temporary transfer of an employee at the initiative of the employer to a job not stipulated by an employment contract in the same organization in case of production necessity, it is necessary to be guided by international legal acts.

Note!

The transfer of an employee without his consent for a period of up to one month, including to replace a temporarily absent employee, is allowed only in the presence of emergency circumstances specified in Part 2 of Art. 722 of the Labor Code of the Russian Federation

However, based on these provisions of the ILO Convention on Forced or Compulsory Labor, under Part 2 of Art. 722 of the Labor Code of the Russian Federation, temporary transfer of an employee without his consent to work not stipulated by an employment contract to prevent downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), destruction or damage to property, as well as to replace an absent employee may be considered justified, provided that it was caused by extraordinary circumstances (subparagraph "e" of clause 4 of the Convention, part 4 of article 4 of the Labor Code of the Russian Federation), or when failure to take these measures could lead to a catastrophe, industrial accident, natural disaster, accident, and the like.

Given the great role of international legal acts in the regulation of labor relations, one should be more attentive to the conventions ratified by our state and in force on its territory.

In the event of a legal and justified temporary transfer of an employee to another job at the initiative of the employer, the employee is not entitled to refuse to comply with the employer's order, by which he was temporarily transferred to another job for up to one month. Moreover, by virtue of clause 19 of Resolution No. 2 of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, refusal to perform work in a translation made in compliance with the law is recognized as a violation of labor discipline, and absence from work work - absenteeism.

However, it should be noted that, by virtue of par. 5 st. 219 and part 7 of Art. 220 of the Labor Code of the Russian Federation, an employee cannot be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, with the exception of cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with harmful and (or) dangerous working conditions not provided for by the employment contract.

Since the Labor Code of the Russian Federation does not contain norms prohibiting an employee from exercising this right, his refusal to temporarily transfer to another job in accordance with Art. 722 of the Labor Code of the Russian Federation for the above reasons is reasonable.

transfer to a job with a lower qualification with the consent of the employee

The transfer of an employee at the initiative of the employer to a job requiring lower qualifications for up to 1 month in case of emergency is allowed only with the written consent of the employee.

The absence of the written consent of the employee to such a transfer does not allow the employer to require him to perform work not stipulated by the employment contract. In this regard, the transfer to another (temporary) job at the initiative of the employer, committed in violation of labor legislation, in particular in the absence of the written consent of the employee, is illegal. Therefore, the employee's refusal to comply with the employer's order in this case is lawful, and the employer, therefore, is not entitled to apply disciplinary measures to the employee.

The written consent of the employee implies the initiative of the employer, so it can be issued different ways. In particular, the employer has the right to issue an order (instruction) on the transfer of an employee to replace a temporarily absent employee to a job that requires lower qualifications. The basis for such an order (instruction) may be the consent of the employee, drawn up in writing ( Appendix 3)

By the way

By general rule appointment of an employee as a temporary acting vacant position not allowed. So, clarifications of the USSR State Committee for Labor No. 30 and the All-Union Central Council of Trade Unions No. 39 of December 29, 1965 “On the procedure for paying for temporary replacement” determined the procedure for assigning the duties of a temporarily absent employee. In particular, in accordance with paragraph 2 of the clarifications, the appointment of an employee as acting in a vacant position is not allowed. The exception is cases of performance of duties by position, appointment

which is made by a higher authority. In this case, the head of the organization is obliged, no later than one month from the date of hiring the employee, to submit documents to the higher management body for his appointment to the position. The governing body within a month from the date of receipt of the documents must consider this issue and inform the head of the results. If an employee accepted by a manager who is not from among the employees of this organization is not approved in the position, he must

be offered another job, taking into account his qualifications and work experience. In the absence of relevant work or refusal of the offer, he is released from work on the grounds provided for by law, for example, by agreement of the parties. In the event that an employee nominated for leadership position from the reserve of this organization, he must be provided with work with qualifications and pay not lower than that which he performed before being appointed to a new position.

Thus, the basis for the transfer of an employee to replace a temporarily absent employee, depending on the period, is:
- a written agreement of the parties - a transfer for a period of up to one year, as well as for the period of absence of the employee, who, according to the law, retains his former place of work;
- a written order (instruction) of the employer - a transfer for a period of up to one month (if there are sufficient grounds for this);
- a written order and the written consent of the employee - a transfer for a period of up to one month (if there are sufficient grounds for this), subject to the performance of work of a lower qualification.

Attachment 1

Example additional agreement to an employment contract

Appendix 2

Order

1 -1

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