Transferring an employee to another job

Transfers and movements

Article 72.1 of the Labor Code states that 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, while continuing to work for the same employer, as well as transfer to work in another location along with employer.
It is important to remember that transfer to another job is carried out only with the written consent of the employee. Translation should not be confused with displacement. When an employee moves, only the workplace changes. Moreover, if a move is made from one structural unit to another, the new workplace must be located in the same area. As for labor functions, they remain the same. The employee's consent to the move is not required.

General rules

The following types of employee transfers are legally distinguished:

1. Within the enterprise (the employer remains the same), which in turn can be:

temporary;
permanent.

2. External – to another employer.

The transfer is carried out with the written consent of the citizen. The following factors are exceptions:

any circumstances that threaten the normal living conditions of the population (natural disasters, catastrophes, etc.);
cases of production downtime.

There is no need for the employee's written consent in situations where the employer transfers him to another workplace or to another structural unit (that is, the place of work as such does not change, and the terms of the employment contract remain the same).

3. Translation for medical reasons:

changing working conditions or performing other work for a period of up to 4 months;
more than 4 months or on an ongoing basis;
translation for pregnancy.

In cases where a person, if a temporary transfer is necessary for health reasons, refuses it, or the employer cannot provide proper working conditions, the employee is suspended while retaining his job. No salary is charged. If a permanent transfer is required, the employment contract will be terminated in these cases.

Important! An employee cannot be moved or transferred to another job if this is prohibited for medical reasons.

Differences between internal translation and external translation

Internal transfer can be carried out in the following ways:

the employee’s job function changes, which does not correspond to the specified position in the employment contract;
the transfer is made to another structural unit;
work activity will be carried out in a different location, provided that the employer remains the same.

If the employee shows initiative

The employee himself can ask the employer to transfer him to a new position. The employer has the right to refuse him without giving reasons. If no disagreements arise, then the company draws up an order in form No. T-8, approved by Resolution No. 1 of the State Statistics Committee of Russia dated January 5, 2004. Then the employer and employee sign an additional agreement to the employment contract, and the employee can calmly begin new duties .

Sometimes an employer does not have the right to refuse to transfer an employee. A pregnant woman who encounters hazardous production factors at work may ask to be transferred to another job, and the manager is obliged to fulfill her request (Article 254 of the Labor Code of the Russian Federation). The employee must provide a medical report.

If the employer cannot immediately provide a pregnant employee with a new position, then he is obliged to maintain her average earnings during the missed work. The salary in the new place should not be lower than the old one.

A similar rule applies to women with children under the age of one and a half years.

note
If an employee is transferred from a part-time job to his main job, he must first be fired and then rehired. Unfortunately, the legislation does not provide for other ways.

There is a case of transfer that will not inspire employees with much optimism. We are talking about transferring from a part-time job to a main job. There are no special provisions regulating this procedure. Therefore, the employer has to act in an inconvenient way: fire the employee and immediately rehire him. It would seem that there is nothing wrong with this, but the employee loses continuous work experience in the same organization. And the employer has the right to refuse him leave during the first six months after concluding a new employment contract.

Translation by decision of organizations

If the transfer of an employee is carried out by decision of the organizations (current and receiving), the hiring and dismissal procedure will be as follows. To begin with, the head of the organization where the employee is being transferred must send a letter of request to the organization where he currently works, requesting his transfer. The request must indicate the date from which the employee is expected to be hired for a new job and his new position. Having received a letter of request, the head of the organization where the employee works is obliged to agree with the subordinate on the possibility of transfer.

If the employee agrees, he writes a letter of resignation in connection with the transfer, to which is attached a letter of request. This statement will be proof that he has expressed his consent to the transfer in writing. Then the head of the organization where the employee works must send a confirmation letter to the other organization.

From this moment on, it is possible to dismiss an employee from his previous place of work and hire him for a new job.

A pregnant employee, with her written consent, can also be transferred to another organization. The legislation does not contain such a prohibition. Complete the translation in the usual manner.

Situation: is it possible to dismiss an entire department by transfer to another organization?

Yes, you can.

The Labor Code of the Russian Federation does not prohibit dismissing an entire department by way of transfer (Part 2 of Article 72.1 of the Labor Code of the Russian Federation). In this case, the desire of the new manager to hire several employees can be expressed in one letter of request addressed to the current manager. It can list all the citizens whom he is ready to employ.

Promotion and demotion

The bad employee is the one who doesn’t dream of being a boss, and sometimes those dreams come true. Promotion is a transfer that is formalized by an additional agreement. There should be no problems here, since the employee will willingly sign an agreement with the employer.

It's another matter if the steps of the career ladder lead down. An employee can be demoted only with his consent. However, few people would agree to just take a step back in their career (especially if it involves a pay cut). So management will have to show grounds for demoting the employee.

The most common option is certification. If an employee does not pass certification and refuses to occupy a lower position, then the employment contract with him can be terminated due to insufficient qualifications (clause 3 of Article 81 of the Labor Code of the Russian Federation). However, often the employer allows the employee to write a letter of resignation of his own free will, so that there are no negative entries in the work book.

Important
To certify employees, their consent is not required. However, if there is no trade union representative on the certification commission, then based on the results of the test, the employee cannot be fired or demoted.

To avoid disputes with the demoted employee, certification should be carried out competently. Meanwhile, a clear procedure for certifying employees for commercial organizations has not been introduced. Therefore, we will give some tips.

The company needs to draw up a procedure for conducting certification. The more detailed it is spelled out, the better. It is also advisable to familiarize all employees with such an internal document against signature.

Remember that when conducting certification, the certification commission must include a representative of the elected body of the corresponding primary trade union organization (Article 82 of the Labor Code of the Russian Federation). It is possible to carry out certification without a trade union member, but based on its results, no one can be fired or demoted.

In addition, if several people work in the same position, then all of them must be certified. It is impossible to choose “favorites” (or rather, “dislikes”) for certification among those performing the same work. You should also take care of equal conditions and forms of certification. It is impossible, for example, to give one manager a written assignment, and ask his colleague in the same position to be certified face-to-face with the boss.

How to dispute

An employee who has been assigned to another position with violations has the right to challenge this in the following ways:

send a complaint to the labor inspectorate;
contact the labor dispute commission in the organization;
file a lawsuit.

The Plenum of the RF Armed Forces explains: the employer proves the validity of applying Parts 2, 3 of Art. 72.2 of the Labor Code of the Russian Federation, used for the forced appointment of an employee in certain circumstances. This means that when preparing such a transfer, the employer should strictly adhere to the provisions established by the legislator.

Temporary transfer and its end

If the transfer is temporary and not due to emergencies, then its duration cannot exceed one year (Article 72.2 of the Labor Code of the Russian Federation). An exception is the case when an employee replaces a temporarily absent colleague. If you are pregnant, caring for a child, or have a particularly long illness, the transfer period may be more than a year. So the employee must be aware that the exact end date of the transfer is unknown. A woman can leave maternity leave at any time, the illness may be too serious, etc.

In this case, the agreement should contain approximately the following entry: “Work in such and such a position continues until the date such and such an employee returns to work.”

A temporary transfer can turn into a permanent one. This is possible if the employee did not demand a return to his previous position, and the employer did not force him to take up his previous duties. And if the initially temporary job has become permanent, then returning to the previous place requires the consent of the employee or the employer (depending on who offers the return transfer), as if there was no transfer at all.

Procedure for transferring without consent

If it is necessary to transfer an employee to another job forcibly, step-by-step instructions for transferring an employee to another position without his consent look like this:

Step 1. Issue an order in form T-5 (T-5a), indicating the reasons and grounds for the appointment, its start and end dates.

Step 2. Attach other documents justifying it to the administrative document (in their absence, the employee has the right to refuse).

Step 3. Do not make an entry in the labor record (Article 66 of the Labor Code of the Russian Federation, temporary replacements are not recorded).

Step 4. Keep the order for at least 50 years.

IMPORTANT!

It will be useful: how to transfer an employee to another position through dismissal.

"Force majeure" translation

As we have already noted, transfer to another job is carried out only with the written consent of the employee. However, in case of a so-called “force majeure” transfer, consent is not required.

If a major natural or man-made accident or other serious disaster occurs, the employee can be forcibly transferred to work to eliminate the negative consequences of the disaster (Article 72.2 of the Labor Code of the Russian Federation). The duration of the transfer should not exceed one month.

It is also possible to transfer an employee for a similar period during downtime, the need to prevent destruction or damage to property, or to replace a temporarily absent employee, if these situations are caused by emergency circumstances. Moreover, if a new place requires lower qualifications, then the employee is given the right to choose: agree to the transfer or not. Remuneration is not lower than the average salary in the previous position.

An employee has the right to refuse a transfer only if a danger to life or health awaits him at the new place due to violation of labor protection requirements. And in emergency situations this is quite possible.

If the downtime is not caused by emergency circumstances, then the employee’s consent is required for the transfer.

Important
If the employee does not refuse the transfer and is not demoted, then he must receive a salary for work in the new place no lower than his average earnings in his previous position. Even if the new job initially offers lower pay.

What about the salary?

Since this process is forced, there are payment guarantees established by the legislator. Payment occurs in 2 options:

If the salary for the new position is higher than the average for the previous one, the employer pays the salary for the work that is being performed. In fact, this is the average salary for the previously held position and additional payment.
If the payment under the new option is lower than the average for previously performed work, you must pay in the amount of the previously paid average salary. Moreover, the manager, if desired, additionally motivates employees financially.

“Medical” and “judicial” translations

If an employee has a medical report that contraindicates him from working in his current position, then the employer is obliged to transfer him to another job that doctors allow (Article 73 of the Labor Code of the Russian Federation).

The employee may not agree to a new “harmless” job. Then you will have to part with the employer on the basis of paragraph 8 of Article 77 of the Tax Code.

If, according to a medical report, a transfer is required for a period of up to four months, the employee will retain his position in any case. Even if he refuses the transfer, the employer is obliged to keep his job. The employee will not go to work and will not receive a salary, but will be able to return without hindrance.

In addition to “medical” translations, there are also “judicial” translations. We are talking about disqualification in court, that is, a ban on holding certain positions. In this case, the employer can transfer the employee to another position that is not prohibited. If the employee does not agree, then he has only one option - dismissal, since he has no right to remain in his position.

For a lower paid job

Appointment to a job that is paid lower is possible only as a transfer at the initiative of the employee, that is, with the written consent of the employee. The reason is the inconsistency of the level of knowledge and skills with the established requirements, that is, the inadequacy of the position held due to insufficient qualifications, which is confirmed by the results of certification. In this case, the employer records a discrepancy with the qualification requirements and offers to transfer to a lower-paid position. If this option is refused, the employee will be fired.

TRANSFER TO ANOTHER POSITION

Step 1. Decide on transfer

To transfer an employee to another position, the employer needs a reason. This may be the employee’s request for a transfer or the initiative of the employee’s immediate supervisor.

The initiative to transfer can be expressed in different forms. For example, orally at a meeting or in a personal meeting. Also, an employee can write to management an application for transfer (Example 1) or the employee’s immediate supervisor can submit a memo to management (Example 2) or a petition stating that he asks to transfer the employee to another position. Choose what is more convenient for you.

Step 2. We carry out preparatory activities for translation

Let's get acquainted with the job description. It is necessary to discuss with the employee his future functionality and familiarize him with the new rules. A request from an employee or a petition from his supervisor does not mean that the employee fully understands the responsibilities and requirements of the new position.
We introduce you to local regulations (LNA). It is necessary to familiarize the employee with the LNAs who will act as part of their duties in the new position. We recommend that the employee be familiarized with all LNA against signature again. This is necessary due to the fact that previously an employee could only take into account the requirements of acts that were required to be fulfilled in his previous position. For a new position, the employee may be subject to other LNA requirements, or new acts that must be followed may appear (for example, if an employee is transferred to another department, he needs to be familiarized with the department’s regulations).
We send you for a medical examination or check for its presence. An employee who has not undergone a medical examination should not be allowed to work if such an examination is required by law (Article 212 of the Labor Code of the Russian Federation). Otherwise, the employer risks violating labor laws and being fined up to 130,000 rubles for allowing an employee to work without a mandatory medical examination. (Part 3 of Article 5.27.1 of the Code of Administrative Offenses of the Russian Federation).
Before transferring an employee to another position, the employer needs to check whether the employee is required to undergo a medical examination for this position. If it is needed, the employer must send the employee to a medical organization for a medical examination before appointing him to a position and only after receiving a positive medical report carry out the transfer.

PLEASE NOTE If the employee has undergone a medical examination previously, it is worth checking his indicators. When working in different positions, an employee may be exposed to various harmful and dangerous factors, and the results of a medical examination for one position may not always match the parameters of another position. The person in charge of medical examinations must carefully check the documents and decide whether a medical examination is necessary to work in a new position. For example, an employee worked at the location of the organization, and now they want to transfer him to work on a rotational basis. It will be necessary to undergo a medical examination in order for the employee to be allowed to work on a rotational basis, because when working on a shift, a medical certificate is required stating that there are no contraindications for such work (Article 298 of the Labor Code of the Russian Federation).

We check educational documents. All employers want the employee performing a certain function to be as qualified as possible. But for some categories of workers, special requirements are established when concluding an employment contract.

A document on education and (or) qualifications or the presence of special knowledge must be presented by those employees who enter work that requires special knowledge or special training. Such a document can be a diploma, certificate, certificate and other documents (for example, a specialist certificate).

In some cases, legislation requires that an employee have educational documents. Thus, Federal Law No. 402-FZ dated December 6, 2011 “On Accounting”1 contains requirements for the education of chief accountants of certain organizations (economic entities whose securities are admitted to trading in organized trading, etc.).

If educational requirements are not provided for by law, then the organization independently decides what requirements are required for the qualifications of an employee for a particular position.

IMPORTANT! Before concluding an additional agreement with an employee, the employer must pay attention to the legal requirements for qualifications for the position in order to avoid prosecution under Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation in the form of a warning or the imposition of an administrative fine on officials and individual entrepreneurs in the amount of up to 5,000 rubles, on legal entities - 50,000 rubles. Also, following the letter of the law in this matter will avoid transferring an unsuitable candidate to the job.

Documenting

The procedure for processing a transfer depends on whether the personnel event is permanent or temporary.

For a certain period

In this case, the first step is to obtain the written consent of the person who intends to transfer (if such consent is required by law). If the subordinate does not object to temporarily performing duties not provided for by his employment contract, then the director issues an order to transfer the person to another job.

When preparing an order, you must use the unified form T-5. The form must include:

information about the employee who is being transferred;
information about the old and new positions;
information regarding the reason for the transfer.

The order also specifies the type of transition to a new job, which in this situation is temporary. In addition, boundary dates must be set - the first and last day of performing new duties. If it is difficult to predict the completion date of the transfer in advance, you need to provide a reference to the relevant event, for example, before the main employee returns to work.

The manager signs the completed order and provides it to the employee for review.

A temporary transfer is not reflected in the employee’s work book.

If an employee is involuntarily transferred due to emergency circumstances, he must be given a corresponding notice indicating the period of transfer and its basis.

Permanently

If a new position is provided on a permanent basis, the application procedure becomes a little more complicated. As in the case of a temporary transfer, it is first necessary to obtain the consent of the person whose working conditions are planned to be changed. If the latter does not object to new responsibilities, the employer and the hired person enter into an additional agreement, which is an integral part of the employment contract.

This document records all the conditions for the transition to a new position, in particular, a description of the new job function, as well as all changes regarding:

places of work;
work and rest schedule;
the amount of remuneration and other important conditions.

Next, a transfer order is issued. The same single approved form T-5 is used. The order must state that the transition to a new job is permanent.

In this case, the order is the basis for making appropriate entries in the work book and personal card of the subordinate.

Let us remind you that in the case of a temporary transfer, an entry is not made in the work book.

In practice, there are cases when the initiator of a transfer to another position can be the employee himself or his immediate superior. If an employee intends to transfer to the same organization of his own free will, he should write an application with a corresponding request addressed to the manager.

The application must indicate the reasons for the personnel reshuffle, for example, “Please transfer me to the position of deputy manager due to the presence of an open vacancy and the availability of the necessary experience and knowledge to fill it.”

If the initiator of the transfer is the immediate manager, he must prepare a proposal for the transfer of his specialist to the general director. The submission must indicate the following:

Translation proposal.
Description of the vacant position.
Information about the candidate for the position, including characteristics of his professional qualities, education, work experience.

Place of work in the employment contract

Speaking about structural units, it is necessary to decide on such a condition of the employment contract as the place of work. In accordance with Art. 57 of the Labor Code of the Russian Federation, the employment contract must indicate the place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another area, the place of work indicating the separate unit and its location.

It is not specified what is meant by the term “place of work”. Therefore, someone indicates the name of the organization, someone a city or other locality, and someone the exact address.

The Presidium of the Armed Forces of the Russian Federation in the Review of the practice of consideration by courts of cases related to the implementation of labor activities by citizens in the regions of the Far North and equivalent areas (approved on February 26, 2014), in this regard, explained that in the theory of labor law, a place of work is understood as located in a certain locality (settlement) a specific organization, its representative office, branch, other separate structural unit. If the organization and its separate structural unit are located in different areas, based on Part 2 of Art. 57 of the Labor Code of the Russian Federation, the employee’s place of work is specified in relation to this unit.

If we turn to clause 2 of Art. 54 of the Civil Code of the Russian Federation - the location of a legal entity is determined by the place of its state registration on the territory of the Russian Federation by indicating the name of the locality (municipal entity).

And based on the Letter of the Ministry of Labor of the Russian Federation dated November 17, 2017 No. 14 2/B-1012, as a condition on the place of work, the name of the employing organization is prescribed in the employment contract, containing an indication of the organizational and legal form.

We can conclude that it is necessary to include in the employment contract the address where the employees are located not in the condition of the place of work, but in the condition of the workplace, since the workplace is the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer (Part 6 of Article 209 of the Labor Code of the Russian Federation). Since the workplace is an additional condition of the employment contract, it may or may not be included in it.

As a place of work, the employment contract should indicate the name of the employer and an indication of its location (location in a specific locality). For example: “The Employee’s place of work is the State Budgetary Healthcare Institution “Central Regional Hospital No. 1” (GBUZ Central District Hospital No. 1), Kstovo, Nizhny Novgorod Region.”