Allowed only with his consent. The trumpet is calling! Transfer without the employee’s consent due to production necessity How to formalize a temporary transfer of an employee to another job

Situations arise when an employer needs to transfer a subordinate to another place of work. There can be many reasons for this, one of which is the opening of new branches or the closure of a branch in the locality where the employee lives. The initiator of the transfer is both the head of the company and an ordinary employee.

To transfer an employee to another place of work, the employer must strictly follow the provisions of the law, otherwise the subordinate will be able to protest the operation in court.

In what cases can an employee be transferred to another job without his consent?

The transfer of a worker to another place of work involves a change in the worker’s job responsibilities for a certain or permanent time.

Grounds for transferring a worker to another place of work:

• Changes in the team;
• An enterprise opens new branches or closes a branch in the locality where their subordinate lives;
• The employee received a promotion;
• According to medical indications, the worker does not have the right to continue working in his current position.

If the transfer is made within the enterprise, the director remains the same. Only the responsibilities change. However, in some cases, a worker is transferred to another locality.

Term

The maximum transfer period for one employer is one year. If the transfer is made to replace a temporarily absent worker, the period is limited to the period of return of this employee to his workplace.

What types of transfers to another job are there?

There are two types of transfer of an employee from one place of work:

• External. The subordinate moves to a new workplace, to a new manager and to another enterprise. To carry out such a transfer, the consent of not only the employee, but also two directors of the organizations is required;
• Interior. The presented translation is made within one enterprise. It may be permanent or temporary. The management does not change during the transfer.

In both cases, an application is submitted for the transfer of the employee.

Temporary

Temporary transfer. The presented transfer is made if it is necessary to change the employee’s job responsibilities for a specific period of time.

Transfer is made in the following cases:

• When the employee and manager agree to the transfer. To implement the process, a document is drawn up in which it is important to indicate that the parties agree to change the position. The duration of the transfer is no more than one year;
• Based on the consent of the head of the company.

If the transfer of a subordinate is carried out to replace a temporarily absent employee, the period is limited to the return of the employee back.

An employee may be transferred to another position without his consent for the following reasons:

• Natural disasters such as: flood, fire, earthquake;
• Suspension of production for a certain period;
• When it is necessary to replace another employee of the company.

Such a transfer can only last for one month.

An employee is also transferred to another place of work if he has health problems and does not have the opportunity to work in his current position, as well as if a subordinate is pregnant. In these situations, a mandatory condition is the need to obtain the employee’s consent, otherwise the transfer is considered illegal.

Constant

Permanent transfer. The specified transfer is unlimited. It is carried out only with the consent of the employee. If the worker does not agree, the transfer is carried out only on the basis of a decision of the labor dispute committee or the court. If the employer has not received the conclusion of the authorized body, the process cannot be carried out, otherwise it will be illegal.

Constants mean:

• Transfer without changing employer. The subordinate continues to work in the same organization, only his job responsibilities and individual clauses of the employment agreement change. Any editing must be reflected in entries in the work book;
• Transfer to another location, together with your immediate superior. In case of such a transfer, the employment contract is not subject to changes. A mandatory condition is to confirm the transfer with an entry in the work book;
• Carried out on the basis of changes in the structure of the organization. The employee continues to work in accordance with the previously concluded agreement. The employment contract and book are being edited;
• External transfer to another place of work. This involves cessation of employment at the previous enterprise and placement in a new place of work. In this case, continuous work experience is maintained, but a new work agreement is drawn up and a note is made in the work book.

For a lower paid job

If an employee does not properly perform his professional duties, the employer must conduct recertification. According to its results, the fact is recorded that the worker does not have the proper qualifications for the position he occupies. Having this conclusion, the employer has the right to offer the employee to transfer to a lower paid position. If the employee refuses, the head of the company has the right to terminate the contract in accordance with

Procedure for transfer

To transfer an employee to a new place of work, you should:

• Establish the requirements that a new employee who is replacing temporarily or permanently in the required position must meet;
• Provide conditions under which it is impossible to make a transfer;
• Notify the selected employee orally;
• Create an order;
• Familiarize the employee with the order.

The transfer of an employee will not take place only if, for health reasons, he is not suitable for the new position. This must be officially confirmed by a medical certificate.

External transfer occurs as follows:

• An employee of the organization fills out an application for transfer;
• The immediate supervisor approaches the employee’s future director with a request to hire him for a permanent job;
• Waiting for a response.

It should be noted that the transfer of an employee is possible only with his consent.

An employee transfer order must contain the following information:

• Personal and contact information, as well as the position of the employee;
• The name of the department and the new position where the employee is moving;
• Term, start date of employment;
• New professional responsibilities of the employee, as well as payment;
• Reason for transfer;
• Signature of the reviewed subordinate;
• The order ends with the date and signature of the head of the enterprise.

How to challenge a transfer?

Hello

In accordance with Art. 72. 1 Transfer to another job - 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. Transfer to another job is permitted only with the written consent of the employee, except for the cases provided for in parts two and three of Article 72.2 of this Code. The employee’s consent is not required to move him from the same employer to another workplace, to another structural unit located in the same area , entrusting him with work on another mechanism or unit, if this does not entail a change in the terms of the employment contract determined by the parties.

By virtue of Art. 72.2 of the Labor Code of the Russian Federation, by agreement of the parties, concluded in writing, an employee may be temporarily transferred to another job with the same employer for a period of up to one year, and in the case where such a transfer is carried out to replace a temporarily absent employee, who, in accordance with the law, retains his place of work - until this employee returns to work. 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. Transfer of an employee without his consent for a period of up to one month to a position not stipulated by the employment contract work for the same employer is also permitted in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent destruction or damage to property, or replacing a temporarily absent employee, if downtime or the need to prevent destruction or damage to property or to replace a temporarily absent employee is caused by emergency circumstances specified in part two of this article. In this case, transfer to a job requiring lower qualifications is allowed only with the written consent of the employee. For transfers carried out in cases provided for in parts two and three of this article, the employee is paid according to the work performed, but not lower than the average earnings for the previous job.

That is, the employer has the right to transfer you to another job due to the absence of another employee without your consent for only one month. Therefore, if the employer issued an order for your transfer within the established period, then his actions are legal.

By virtue of clause 6 of Art. 81 of the Labor Code of the Russian Federation An employment contract can be terminated by the employer in cases of a single gross violation of labor duties by the employee: absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the event of absence at the workplace without good reason for more than four hours in a row during a working day (shift)

That is, if you do not show up for work, the employer has the right to fire you based on the above norm.

Thus, you should proceed from the above.

Sincerely, F. Tamara

31.08.2019

Almost every employee has experienced being asked to work overtime.

This is forced by large layoffs or the absence of a designated employee at the enterprise, for example, for a period of sick leave or vacation.

Does the employer have the right to involve employees in overtime work, what rules of the Labor Code need to be taken into account?

What hours are considered overtime worked according to the Labor Code of the Russian Federation?

What does the concept of “working overtime” mean, what kind of work is considered such from the point of view of the Labor Code of the Russian Federation?

Today, taking into account the labor code of the Russian Federation, overtime is considered to be work performed as a punishment or at the request of the head of the company, in excess of the norm established by law.

That is, the employee does not have the right to be at the workplace for more hours than is established in one working day.

This does not apply to those who have .

40 hours a week is the standard currently established by Russian labor legislation.

The peculiarity of overtime work is that it goes beyond what is required under the employment contract. Also considered additional is the processing of working time for a certain period.

Overtime and overtime - what's the difference?

Overtime and overtime are not the same thing; there are differences between these definitions. Although these concepts are very similar to each other.

Overtime work, in simple words, is those labor tasks that are performed at the initiative of the employer beyond the established number of hours per day.

That is, if an enterprise has an 8-hour working day, and an employee, on the initiative of his boss, stays an extra couple of hours to complete his work, then this is called overtime.

Overtime is considered additional time worked on another day, for example, on a calendar day off, a holiday, a non-working day.

If an employee has irregular working hours, then the concepts of overtime and overtime do not apply. There will be no payment for additional hours worked, as they are included in the concept of “irregular hours”.

If working hours are strictly determined by the staffing schedule, then if you are required to work overtime or overtime, you can demand compensation from the employer in the form of additional pay or time off.

How to attract at the initiative of the employer - procedure

Involvement in overtime work is possible only at the initiative of the employer. If an employee, on his own initiative, stays late after work, then this is not considered overtime.

An employee can be involved in overtime work only if the documentation is correct.

The employer is obliged, according to the labor code, to perform the following actions:

• Step 1. Make sure that the employee does not have a medical contraindication or other restrictions under the Labor Code of the Russian Federation for performing overtime duties.
• Step 2. Prepare a notice for the employee about the need to stay late at the workplace.
• Step 3. Receive written permission from the employee to perform additional work where necessary ().
• Step 4. Complete and...

About how to register overtime work.

Who can refuse processing:

• Women who have children under three years of age,
• Single mothers or fathers raising their children under 5 years of age on their own,
• Employees who care for a sick family member who have provided the appropriate certificate,
• Employees with children with disabilities
• Guardians of minor children.

Involving employees in overtime work, according to the labor code, is permitted in the following cases:

• If there is written consent of the employee to perform additional work;
• If there is a need to complete unfinished work, which may result in damage to property or pose a threat to the life and health of people.
• Finish production work if necessary.

Is it permissible to engage an employee without his consent?

There is a possibility that an employer has every right to require its employees to work overtime without their consent.

It is not necessary to obtain the employee’s consent when performing work that:

• do not allow interruptions in their production;
• necessary to prevent emergencies, disasters, accidents, or eliminate the consequences;
• necessary to correct unforeseen situations: breakdown of water and gas supply, lighting, heating and other vital works;
• cannot be postponed due to a threat to the life of the population.

In other cases, the employer is allowed to involve the employee in overtime work only strictly with his written consent.

Which employees are subject to the ban?

• pregnant women on the basis of a certificate from a gynecologist (all this is strictly prescribed in the Labor Code, Article 99, Part 5);
• minors under the age of 18 (exclude here those who perform creative work, for example, media workers, theatrical work, etc.).

Restrictions for disabled people

If we talk about employees with disabilities, they can also be involved in overtime work, but only with a medical certificate that contains no contraindications.

Before involving a disabled person in overtime, he must be informed that he has the right to refuse additional work in writing, that is, sign that the employee is familiar with such a document.

To hire a disabled person, you must have the employee’s written consent.

Can I compensate with additional rest?

Overtime work performed by an employee is compensated in two ways:

• providing additional rest time – .

Thus, in the Labor Code of the Russian Federation, Article 152 clearly states that overtime may well be compensated for by an additional day off.

But in this case, the provision of time off must be documented. It is imperative that the employer draws up a document in which the worker must put his signature.

At the initiative of the employee

Overtime work is possible only at the initiative of the employer.

If the employee himself wants to stay at the workplace at the end of the day or wants to go out another day to complete any duties, then the management is not obliged to register this as overtime and pay for such work at an increased rate.

Such manifestations of employee initiative can be regarded as an inability to cope with one’s job responsibilities within the allotted working time.

Useful video

The procedure for inviting employees to work overtime is described in detail in this video:

Conclusions

But if there is still a need, then a certain procedure must be followed. The level of health of the employee, his category.

It's fast and free!

Transferring an employee to another job, to another position, to another unit with a change in work address can be legal only if the norms of the Labor Code are observed. Often, an employee is transferred to another job without his consent and even with a lower salary, and is forced to travel to work in another area.

When is the transfer of an employee considered legal? Is it possible to refuse a transfer at the initiative of the employer? Is it possible to transfer an employee without his consent?

Translation in accordance with the Labor Code of the Russian Federation.

Employee transfer- this is a change in his labor function, i.e. change of position, specialty, specific type of assigned work. The labor function is one of the mandatory conditions of the employment contract (Article 57 of the Labor Code of the Russian Federation).

If your employment contract states structural unit(branch, representative office, department, workshop area), then its change is also recognized as a transfer in accordance with Art. 72.1 Labor Code of the Russian Federation.

When the employer changes the place of business, the transfer together with the employer to another area is also transfer to another job.

Permanent translation to another job (position, structural unit, to another location) is only possible by your consent .

Is it possible to transfer an employee without his consent?

Without your consent, only a temporary transfer for a period of time is possible up to 1 month , which is mentioned in Art. 72.2 Labor Code of the Russian Federation. Such a transfer is possible in exceptional cases (Part 2 of Article 72.2 of the Labor Code of the Russian Federation):

A catastrophe, accident, industrial accident, fire, epidemic and other cases have occurred that threaten the life or normal living conditions of the entire population or part of it. In this case transfer of an employee to another job carried out in order to prevent these cases and eliminate their consequences.

Temporary transfer of an employee for a period up to 1 month without the employee’s consent will also be considered legal in the following cases:

Downtime

— preventing destruction or damage to property,

— replacing a temporarily absent employee.

However, it should be taken into account that all this must be caused by emergency circumstances specified in Part 2 of Art. 72.2 Labor Code of the Russian Federation.

If there are no such circumstances, then transfer without employee consent impossible.

If a transfer to a position of lower qualification is required, the employee’s consent is required even under the specified circumstances.

Thus, if the transfer is not temporary for up to 1 month, and also in the absence of the circumstances specified above, then such a change in the employment contract without your consent is not allowed.

Is it possible for an employee to refuse a transfer at the initiative of the employer?

An employee may refuse a transfer and not perform duties in another position in another department in the following cases:

- if downtime, prevention of destruction or damage to property, replacement of a temporarily absent employee is not caused by emergency circumstances exceeded in Part 2 of Art. 72.2 of the Labor Code of the Russian Federation (catastrophe, accident, etc.);

- if the transfer is due to downtime, prevention of destruction or damage to property, the replacement of a temporarily absent employee is not temporary or for more than 1 month;

- if work in another position is contraindicated for the employee due to health reasons;

- if a transfer to a position of lower qualification is proposed;

- if the structural unit (branch, department, etc.) is indicated in the employment contract, since this is a change in the terms of the employment contract.

We recommend contacting our labor dispute lawyer Valentina Yuryevna Rumyantseva (follow the linksreviews, lawyer).

You can make an appointment for a consultation by phone +7-981-746-76-21 from 10 to 18 on weekdays (St. Petersburg)

Can't fire

There are cases when an employer decides to transfer an employee to a position whose pay is lower than the previous one. Is it possible to transfer to a lower-paid position without the employee’s consent? Let's try to figure it out.

Transfer to another job

• labor function (change in the type of assigned work);
• a structural unit within the same employer (if such a unit was specified in the employment contract);
• locality together with the employer (moving beyond the administrative boundaries of the previous locality).

The transfer can be temporary or permanent. According to the general rules, the transfer of an employee requires his consent. But the legislation also provides for cases when an employee can be transferred without his consent.

Labor legislation prohibits transferring an employee to work if the new job is contraindicated for medical reasons.

Transfer to another job without the employee’s consent

Without the consent of the employee, he can be transferred only in the event of dangerous circumstances that threaten the lives of the population.

Such circumstances include:

• natural or man-made disasters;
• industrial accidents;
• industrial accident;
• earthquake, fire, famine, flood, epizootic or epidemic and other exceptional cases that threaten normal living conditions or the life of the population.

In addition, a temporary transfer without the employee’s consent is possible if the above situations caused:

• downtime (temporary suspension of work for reasons of organizational, technological, economic or technical nature);
• the need to prevent property damage;
• replacing an employee who is temporarily absent.

Transfer in all these cases can be carried out only for the purpose of eliminating or preventing the consequences of emergency circumstances. The period of transfer without the employee’s consent cannot be more than one month.

But even in such exceptional situations, a transfer in which the employee must work in a job requiring lower qualifications is possible only with the written consent of the employee.

Transfer due to production necessity: without the employee’s consent?

The Labor Code does not define the term “production necessity”. As a rule, in practice it means changes in technological or organizational working conditions. They are mentioned in Art. 74 Labor Code of the Russian Federation. In such cases, changes in working conditions are possible without the consent of the employee. But only if they do not relate to the employee’s labor functions.

Therefore, if there is a production need (caused by technological or organizational changes in working conditions), it is possible to transfer an employee without his consent:

• from one structural unit to another within the same company;
• from one locality to another together with the employer.

The employer must notify the employee of such changes in advance - two months in advance. If the employee does not agree with such changes, the employer must offer him another job that he can perform taking into account his state of health.

If there is no such work or if the employee does not agree with the employer’s proposals, then the employment contract with him is terminated.