What is the best way to leave one organization for another? The procedure for dismissal by transfer

Significant changes to the employment contract

In daily work, organizations are often faced with the need to transfer an employee for various reasons. If as a result of this the terms of the employment agreement are changed, then it does not matter what was the reason (production necessity, reorganization of a legal entity, expansion or contraction of the enterprise, certification or health status of the employee). The fact of change is important.

If they affect:

• job responsibilities,
• place of work,
• wages,
• schedule,
• other conditions specified in this document.

In this case, the transfer can only be carried out with the written consent of the employee . The legislation does not establish an exhaustive list of significant changes to the terms of the employment agreement. The degree of materiality is assessed differentially for each case.

Moving and Translating: What's the Difference?

Today in legislation you can find two concepts relating to the revision of a worker’s employment agreement:

• relocation (usually implemented within the company);
• transfer (can be carried out to another organization).

Displacement, unlike translation, is temporary

It should be noted that they are not interchangeable words. These are concepts that are different in nature and functional content and have different legal consequences.

Relocation should be understood as the need for an employee to temporarily perform work functions for a certain period of time. It is important to understand that when there is continuation of work in the same specialty, and using the same tools and equipment, but in another workshop or department, the employer may not ask the employee’s consent to perform such functions.

Here an order is simply issued, which the employee is introduced to under his signature. Refusal or ignorance of such an order is a violation of labor discipline with corresponding disciplinary consequences.

Reasons and types of translation

If, when transferring an employee to another place of work, there were no significant changes in working conditions, then such an action can be classified as a transfer that does not require his written consent. In this case, earnings, responsibilities, position and place of work remain the same.

The movement of an employee to different branches of one business entity means a change in place of work. Consequently, if an employee, at the initiative of the employer, moves from one structural unit of the organization to another, then this should be regarded as significant changes in the employment contract and transfer, and not relocation. This is especially true in cases where the employment agreement clearly states the place of work (site, workshop, structural unit, etc.) to which the employee is hired.

The need for transfer arises due to a change of address by a legal entity, production needs, or medical indications.

The employee does not always agree with the proposal. In some cases, refusal to transfer does not allow the employer to dismiss the employee. But more often, such disagreement leads to legal dismissal, even if we are talking about a pregnant employee or a single mother.

Is it possible to refuse when transferring from one organization to another?

In Art. 72.1 of the Labor Code of the Russian Federation establishes that the transfer of an employee to another organization can only be carried out with his written consent or upon request. Moreover, in case of such dismissal, the current employment contract (agreement) is automatically canceled (Part 2 of Article 72.1 of the Labor Code of the Russian Federation). However, Art. 72.1 of the Labor Code of the Russian Federation establishes the possibility, but not the obligation, of the manager to satisfy the employee’s written request.

Thus, the employer has the right to refuse to dismiss his employee by way of transfer. However, such a refusal will not be considered an infringement of labor rights.

Dismissal if you refuse to move to another location

Employees must be notified in writing of a change of location by a legal entity 2 months in advance. This document must contain information about the employer's new address, the timing of the move, the start date of work, guarantees and compensation payments associated with his transfer. As a rule, a transfer associated with the relocation of a company to another location entails reimbursement of costs:

• for relocation to the place of work of both the employee and his family members;
• for the transportation of his property;
• to a device in a new area.

A written message can reflect the procedure and nature of compensation, as well as set a period during which the employee is obliged to notify the employer of his decision . If a statement of consent is not received from the employee within the specified period, this is regarded as a refusal of the transfer.

If the employee disagrees, he is subject to dismissal. This applies to pregnant women, women raising children under 14 years of age, and other preferential categories. Such an action does not fall under the category of dismissals at the initiative of the employer. This is formalized by an order, in which, as the basis, a reference is made to the decision to move the company and to the employee’s refusal to transfer. The employee is introduced to him by signing.

The dismissed employee is entitled not only to salary, compensation payments, but also severance pay based on average earnings for two weeks. A record of dismissal is made in the work book with reference to Article 77 of the Labor Code of the Russian Federation.

How to write an application for refusal to transfer to another job

The application is written in free form, following the traditional structure: there must be a header and a main part. It should be clear from the text that the employee refuses the proposed transfer.

In the header you need to indicate the addressee (position and full name of the head of the company or enterprise) and the applicant (position and full name of the employee).

In the main part, the employee must write that the proposed vacancies do not suit him, he refuses them, knows about the consequences of refusal and is not against terminating his employment contract. Its number and date must be written down. In addition, you need to indicate the article under which the employee will be dismissed.

Next he puts his signature. The application is sent to the HR department. The HR specialist puts a mark on it accepting the document and his signature as a sign of confirmation of this action.

For your information! The application can be written by hand or typed on a computer and then printed. Often in companies, HR officers issue ready-made forms that an employee can easily fill out.

Dismissal for medical reasons

There may be cases of serious illness of an employee, as a result of which, on the recommendation of a medical commission, he needs to be transferred to another place of work in more suitable conditions. Despite the recommendations of the commission, the employee may not agree to be transferred to a position permitted to him for health reasons.

In this situation, the employer has the right to terminate the employment agreement in accordance with Art. 77 Labor Code of the Russian Federation.

In this case, the following nuance must be observed. It concerns the case when an employee needs a temporary transfer for a period not exceeding 4 months. In this case, he cannot be fired before the expiration of 4 months, even if the employee does not agree to the transfer. He may not work, the salary will not be accrued, but his place of work will remain. When the restriction period ends, the employee has the right to freely return to his place.

You are transferred to another job

The work day started unexpectedly. In the morning, the boss called us into his office and said that today we can forget about our points, we will have to deal with others and at another workplace. “I’m transferring you temporarily to another job.”

Transfer to another job is a change in the labor function of the 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 work in another location along with employer. If, as a result of the transfer, the terms of the employment contract change, the employer is obliged to obtain the employee’s consent, since it is prohibited to transfer or relocate the employee to a job that is contraindicated for him for health reasons.

The translation is carried out by agreement of the parties. Based on their duration, transfers can be divided into permanent and temporary.

In accordance with Part 3 of Art. 72.1 of the Labor Code of the Russian Federation does not require the consent of an employee to move him from the same employer to another workplace, to another structural unit located in the same area, to assign him work on another mechanism or unit, if this does not entail a change in the working conditions determined by the parties agreement.

Example.

The organization's economist, with his consent, was temporarily transferred to the position of accountant. The transfer period specified in the agreement of the parties was three months. However, after three months, the employee continued to work as an accountant and did not demand to be given his previous job. In this case, the transfer should be considered permanent. Thus, without the consent of the employee, the employer cannot transfer him again to the position of economist.

If an employee is transferred to work in another location, then the employer, in accordance with Art. 169 of the Labor Code of the Russian Federation is obliged to compensate him for:

— expenses for moving the employee, his family members and transporting property (except for cases where the employer provides the employee with appropriate means of transportation);

- expenses for settling into a new place of residence.

Transfer of an employee to another job with the same employer is permitted without the employee’s consent only in the following cases (parts 2 and 3 of Article 72.2 of the Labor Code of the Russian Federation):

- disasters of a natural or man-made nature, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic and in any exceptional cases threatening the life or normal living conditions of the entire population or part of it, if necessary, to prevent these cases or eliminate their consequences;

- downtime (temporary suspension of work for reasons of economic, technological, technical or organizational nature), the need to prevent destruction or damage to property or to replace a temporarily absent employee, if the downtime or the need to prevent destruction or damage to property or to replace a temporarily absent employee is caused by the emergency circumstances specified above , and the need to prevent them or eliminate their consequences.

The transfer period cannot be more than one month. Even if the circumstances specified in parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation, continue after one month, the employer must provide the employee with the same job for at least one day.

An employee can be transferred without his consent only to a job of corresponding or higher qualifications. Transfer to a job of lower qualification requires the consent of the employee.

An employee’s work during a temporary mandatory transfer is paid based on the salary for the corresponding job, but not lower than the average earnings for the previous job (Part 4 of Article 72.2 of the Labor Code of the Russian Federation).

It is mandatory for the employer to transfer the employee to another job in accordance with a medical report (Article 73 of the Labor Code of the Russian Federation) (transfer for health reasons) and transfer to another job in case of suspension of the employee’s special right (license, right to drive a vehicle, right to carrying weapons, other special rights).

A medical report on the need to transfer to another job is issued by attending physicians of the state, municipal and private healthcare systems (see Article 49 of the Fundamentals of the Legislation of the Russian Federation on the protection of the health of citizens dated July 22, 1993 N 5487-1).

If an employee needs a temporary transfer to another job in accordance with a medical report, then the employer is obliged to transfer him to another job that is not contraindicated for this employee due to health reasons. Transfer is permitted with the consent of the employee.

The employee is paid according to the work performed (Part 1 of Article 132 of the Labor Code of the Russian Federation). However, if the new job is paid lower, then for a certain time after the transfer the employee retains the average earnings for the previous job.

If the employee does not agree to the transfer, then the employer is obliged to remove the employee from work (Part 1 of Article 76 of the Labor Code of the Russian Federation). In case of dismissal from work, the employee is not paid wages, but he retains his place of work for the entire duration of the transfer. However, the Labor Code of the Russian Federation, other federal laws, agreements, a collective agreement or an employment contract may provide for the payment of wages to a suspended employee.

If, according to a medical report, the employee should be temporarily transferred to another job for a period of more than four months, or if the employer does not have a job suitable for the employee, then the employee is dismissed under clause 8 of Art. 77 Labor Code of the Russian Federation.

An employee’s refusal to be transferred to another job should be recorded in writing.

The employer is obliged to offer the employee any available vacant position or work that the employee can perform taking into account his state of health. At the same time, positions and jobs that correspond to the employee’s qualifications are always offered first, and then all the others.

An employee’s refusal to be transferred to another job should be recorded in writing.

Suspension of a special right for a period of more than 2 months or deprivation of a special right is grounds for dismissal of an employee, clause 9 of Art. 83 Labor Code of the Russian Federation.

A special procedure for transfer in accordance with a medical report is established for heads of organizations (branches, representative offices or other separate structural units), their deputies and chief accountants. These employees are either transferred to another job with their consent, or dismissed under clause 8 of Art. 77 Labor Code of the Russian Federation. During the period of suspension from work, wages are not accrued, except in cases provided for by the Labor Code of the Russian Federation, other federal laws, collective agreements, agreements, and employment contracts.

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Dismissal due to reduction in working hours

As a result of production and technological transformations at the enterprise, the employer may need to introduce a part-time working regime. As a rule, this forced measure is introduced for a period of up to six months in order to preserve jobs. Labor legislation sets only the upper limit of working hours.

The working week cannot be longer than 40 hours. Its minimum duration is not specified either in the Labor Code or in other regulations.

When a reduced working hours regime is introduced, it is necessary to notify the staff of the upcoming changes no later than 2 months in advance. Notice of this must be made in writing. Failure by the employer to comply with the established deadlines allows the employee to challenge the decision to reduce working hours in court, to recover lost earnings and compensation for moral damage. Any changes regarding this issue should be recorded in the employment agreement.

The employee may not agree to the new working conditions. In this case, the employer offers him vacant positions. If there are none, and the employee refuses to work under the terms of a shortened working week, the employer has the right to terminate the employment agreement unilaterally.

How to challenge a refusal to hire after an invitation?

Former or future employers do not always act in good faith, which leads to controversial situations considered in court. In the event of an unsuccessful transfer to another job, citizens most often file claims against the inviting party to impose the obligation to conclude an employment contract, enter a record of employment in the work book, collect wages and compensate for moral damages. It is believed that a potential employer, by inviting a person to work, undertakes to provide the employee with a particular position. But if it was proposed to conclude a work contract rather than an employment contract, the court will determine whether the citizen applied to the employer for a job and whether he provided the documents required by Article 65 of the Labor Code of the Russian Federation to conclude an employment contract. Otherwise, the employer may claim that the employee himself refused to conclude an employment contract (see, for example, the Appeal Determination of the Murmansk Regional Court dated April 29, 2014 N 33-1228).

Other common demands are demands to recognize as illegal the refusal to accept a transfer to a job, to force a person to enter into an employment contract, to collect wages from the moment of refusal to hire, and to compensate for moral damages. Thus, when renting equipment from one company from another, they agreed that the personnel servicing this equipment would also go to work for the company leasing it, but in violation of the agreement, it hired other persons (see Appeal Determination No. 33-3292/ 2015 in case No. 33-3292/2015 Supreme Court of the Republic of Dagestan). In this case, the court rejected the plaintiffs because the contract was not concluded with them due to the absence on their part of a written request or application to the defendant for employment as a transfer. In addition, no orders for their dismissal were issued.

Dismissal upon change of owner or reorganization of a legal entity

When changing employer, dismissal occurs as follows:

How to properly register an employee's transfer to another job?

Verbal notification

Transfer to another job is permissible only if there is agreement on this action between the parties, i.e. voluntarily for the employee. This step is not carried out orally - consent must be provided only in writing.

After this, based on the consent provided, an additional agreement to the employment contract is drawn up. It is necessary to indicate the name of the new position, the location of the new workplace, etc. The additional agreement is drawn up in two copies for each of the parties.

Drawing up an order

After this, you need to issue a transfer order. For this purpose, use a standard form in T-5 format, or a company letterhead with free-form text.

Based on the executed order, it is necessary to make a new entry in the work book and personal card. In each case, the order details must be indicated as the basis for the transaction.

Transfer deadlines at the initiative of the employer

The transfer can be made for a specific period or for an indefinite period.

A temporary transfer with the agreement of the parties can be made for a period of up to 1 year. If this event is carried out to replace a temporarily absent employee, then the transfer period may exceed 1 year and last until the replacement employee appears.

A temporary transfer at the initiative of the employer can be made for a period of up to 1 month strictly in certain situations: industrial accidents, fires, floods, etc.

Attention! If there are medical indications, transfer to another position may be required. The deadline for transfer in this case is determined by a medical report. A transfer on a permanent basis has no expiration date.

Dismissal when essential conditions change

In certain cases, the employer may make significant changes to the provisions of the employment contract. These include:

• place of work;
• the date on which you should begin performing your professional duties;
• name of position, profession;
• rights, obligations of the parties to the contract;
• working conditions, payment, compensation payments, social insurance.

With these changes, the employer will have to fulfill certain obligations:

• notify the employee in writing about changes in conditions in advance (2 months). Exceptions to the deadlines apply to employers who are individuals (for them the period is 2 weeks) and employers who are religious organizations (a week). The employee must answer whether he agrees to continue working under the new conditions. The reflection time is not legally limited, so the employee can give an answer by the end of the two-month period;
• if you intend to continue cooperation, draw up a new employment agreement;
• in case of refusal to work in changed conditions, offer the employee vacant positions that he can occupy, taking into account his qualifications and professionalism.

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