Relocation of an employee: we process it correctly

Travel conditions

According to labor laws, the employer may not require the employee's consent in the event of a transfer if the unit to which he is transferred is located in the same area as the place from which he is transferred.
At the same time, working conditions should not be changed, and the employee retains the same job responsibilities as in the previous place. Thus, the employer can independently rearrange his subordinates during the work process. These changes may be related to the production interests of the company and are carried out in this case without taking into account the interests of employees. In such matters, the displaced employee must obey not only his employer, but also his representatives who perform administrative and organizational functions at the enterprise.

Unlike a transfer, as a result of relocation, working conditions do not change at all, just like the terms of the contract concluded when hiring. Another feature of the employee’s relocation is the fact that it is carried out without going beyond the scope of the employer with whom the employee has an employment relationship.

In addition, relocation differs from transfer in that the employee in question will eventually return to his or her original job. Thus, this process is not so much a strategic phenomenon as a tactical one and is carried out quickly. As a rule, relocation is not carried out unless it is justified for economic or production reasons. In some cases, movement without these reasons may be considered illegal, especially when it is related to the personal motives of the employer.

Workplace and employment contract

If we turn to labor legislation, we can note that there are no exact characteristics of how the workplace is determined. According to the Labor Code, the employment contract specifies:

company address,
structural subdivision,
its exact location.

It should also be noted that the location of a legal entity is also the place of its state registration.

The contract does not have to indicate such non-separate units as a workshop, department, department, faculty, etc. That is, within the boundaries of a certain area, movements between these units can occur without the consent of the employee. As a result, it is in the employer’s interest not to indicate the exact location of the departments where the employee will be required to work.

The workplace condition is not considered mandatory, so it is most often negotiated verbally and determined by the location of the structural unit (room, office). Is it in the employer’s interests to specify in the employment contract a specific workplace, down to the department or unit (mechanism) in which the employee will work?

For example, when hiring a driver, should you indicate in the employment contract the make of the car he will drive? The Murmansk Regional Court considered a case in which an employee challenged an order to move from a BelAZ-7523 car to a Ural-4320-0111-41, considering it a transfer. The employment contract specified a BelAZ car, and by order the employer “transferred” the employee to the Urals.

However, the court clarified that such a change in car brand is a relocation, not a transfer, since the labor function remained within the limits of the specialty, qualifications and position stipulated by the employment contract. Consequently, the employee’s consent was not necessary, his demands were not substantiated in any way (Appeal ruling dated 06/05/2013 N 33-1890).

From this court decision it follows that if, when changing the place of performance of a labor function, not a single condition of the employment contract changes, then this case can be qualified as a transfer, and this is possible without the consent of the employee.

Note! Part 4 of Art. 72.1 of the Labor Code of the Russian Federation establishes the only restriction on movement - an employee cannot be moved to work that is contraindicated for him for health reasons.

Here is another interesting court decision. S. was hired as a security guard, and the employment contract indicated that moving an employee from one facility to another does not constitute a change in the terms of this contract and does not require the employee’s consent.

The court found that S.’s place of work, in accordance with the order, was the post of the additional office of Rosselkhozbank OJSC at Klyavlino station. Subsequently, the employer prepared a notice to move S. to the site at the Alabinskaya metro station in Samara. S., not agreeing with the move to another area, did not go to work, and the employer brought him to disciplinary liability in the form of a reprimand for gross violation of the requirements of the job description.

The court, satisfying S.'s demands to recognize the order to apply a reprimand as illegal, said that relocation to a facility located in another area should be carried out only with the consent of the employee, since this is no longer a relocation, but a transfer. The terms of an employment contract that allow such a movement of an employee without his consent limit his rights and reduce the level of guarantees compared to what is established by labor legislation, and therefore are not subject to application (Appeal ruling of the Samara Regional Court dated October 25, 2012 in case No. 33-9858 /2012).

We invite you to familiarize yourself with How to obtain a work permit for an Armenian citizen in Russia in 2020 || What are the features of hiring Armenian citizens?

As we see, the terms of an employment contract, even if they do not specify the employee’s workplace, can play a cruel joke on the employer.

For your information. A change in a workplace or structural unit can be recognized as a relocation only if, when concluding an employment contract, this specific workplace or structural unit was not specified and is not provided for in the employment contract (Determination of the Moscow City Court dated December 8, 2011 in case No. 33-39132) .

Of course, indicating a specific workplace in the employment contract will help the employer prove, for example, the employee’s absenteeism. But if there is a possibility that an employee will be transferred from one structural unit (department, facility, etc.) to another, we believe that it is not worth specifying the workplace.

How is movement different from translation?

Very often, the relocation of an employee is confused with a transfer. This is not accidental, since Art. is devoted to both movement and translation. 72.1 Labor Code of the Russian Federation. What are the main differences between displacement and translation?

When moving:

the employee remains to work for his employer;
the employee’s labor function remains the same;
working conditions do not change;
the employee remains to work in his locality;
the employee’s consent is not required;
there is no need to make an entry in the work book;
In this case, there is no need to draw up an additional agreement to the employment contract.

Is it necessary to draw up an additional agreement?

The relocation of an employee does not imply any changes to the clauses and contents of the employment contract. Therefore, there is no need to create an addendum to this document.

If a transfer to work in another region is used as a transfer, then it is advisable to fix such changes in the employment agreement. To do this, an additional contract is drawn up, which states that the specialist’s job functions do not change, but he will have to cope with his job responsibilities in another region.

Restrictions

According to current legislation, there is a ban on the movement of workers if a new place of work is contraindicated due to health conditions. But since the employer is not obliged to request from the employee a document that will confirm the fact that this work is contraindicated for the person being transferred, further concealment by this employee of the ban on performing such work may be considered an abuse of his right.

Thus, when concluding an employment contract, the following point must be taken into account - preventing the employee from concealing his possible disability at a certain workplace due to health.

Legal consequences when moving or refusing to move

Movement is always operational and tactical in nature. Refusal to move is a disciplinary offense and may result in liability for the employee. However, employers often violate the law by filing a transfer as a transfer. In this case, the employee’s working conditions and work function change.

Each employee is obliged to obey the employer's decision to relocate if it is legal. The director of the company has the right, under his own responsibility, to independently make such personnel changes that can improve the efficiency of the enterprise.

Employers often commit violations. Most often this happens in cases where the transfer is formalized as a transfer of workers. In other words, concepts are substituted, and the employee is transferred without his consent, and the working conditions change. Such actions are illegal and the employer may be subject to penalties.

As a result of an illegal transfer registered as a transfer, the injured employee may claim in court the difference in salary for performing this work. In addition, he may demand compensation for moral damage caused to him.

Illegal movement of workers requires a written warning to the employee about the temporary suspension of work. Thus, he exercises the so-called self-defense of his rights. However, the law does not address the issue of an employee leaving his workplace until the violation is eliminated.

Despite this, the Labor Code still has a clause according to which, if an employee refuses to perform his duties during illegal transfer, all his labor rights are preserved. And since his absence from the enterprise for more than four hours will be regarded as absenteeism, if the employee’s movement to another workplace occurred illegally, he will be given compensation in the form of payment for forced absenteeism.

The possibility of payment is due to the fact that the employee in this case will have a valid reason for his absence. Most often this happens in construction and other similar fields. For example, if the employer has arranged for the transfer of an employee working as a mechanic as a delimber operator.

If an employee is moved without good reason, the employer may also be held liable. Sometimes the relocation is carried out due to the desire to move an unwanted employee to a new place where the working conditions are much worse than the previous ones. In addition, the employer is obliged to pay additional payment within two months from the date of relocation if the employee’s salary is less in the new place.

We suggest you familiarize yourself with Whose side the court will take if there was no loan on the receipt as such

Reasons for performing the procedure

According to the Labor Code, the movement of an employee must be carried out by the employer, taking into account some significant requirements. Therefore, the following nuances are taken into account:

on the basis of Art. 72.1 of the Labor Code, relocation is not allowed if there are contraindications to this process due to the health of the hired specialist;
there are no other requirements or restrictions for this process;
It is not allowed to assign a citizen job responsibilities that do not correspond to his qualifications, experience and skills;
when performing this process, the nature of the work being implemented does not change;
Often, when moving, it is required that the employee undergo a medical examination, since in this case the employer will be able to make sure that the citizen is suitable for the chosen job due to health reasons.

Often, employers have to deal with the fact that employees are against relocation, so they refuse to undergo a medical examination. Under such conditions, the employee’s movement is not allowed, so he is suspended from work until the inspection is completed.

The employer must take into account certain conditions for the employee's movement. During the procedure, it is not allowed for the job responsibilities of the hired specialist or his working conditions to change. If it is planned that a citizen will work in another area, then there must be a production need for this. The employer must take into account the interests of the employee.

The most common reasons for displacement are:

the emergence of a production need, due to which it is necessary to make certain changes to the staffing table of the enterprise;
reduction or expansion of the company's activities;
Professional and even career growth of employees is ensured through the procedure.

The employee selected for travel must comply with the orders of management or other authorized persons with administrative functions.

If an employee is sure that the employer is violating his labor rights, since a standard transfer is formalized as a transfer, then he can challenge such a decision of the manager in court. For this, the following rules are taken into account:

it is advisable to file complaints to the prosecutor’s office and labor inspectorate;
based on these documents, an audit will be carried out, the main purpose of which is to identify violations on the part of the head of the company;
if the transfer was indeed formalized as a transfer, then the director of the company will be held accountable, so he will have to pay a significant fine;
additionally, the employee can file a lawsuit to recover compensation for moral damage from the employer;
a trial is usually carried out in a situation where the director put moral pressure on an employee, wanting to send him to another region for permanent work in a branch without the consent of the specialist.

To hold an employer accountable or win in court, an employee must be sure that his manager actually violated the requirements of the law.

Relocating a worker

Transferring an employee to another job is one of the possible changes to the terms of the employment contract with him. It is carried out only by agreement of the parties, except for some cases fixed by law. The agreement must be drawn up exclusively in writing (Article 72 of the Labor Code of the Russian Federation).

The translation may look like (Article 72.1 of the Labor Code of the Russian Federation):

permanent or temporary change in the employee’s labor function;
permanent or temporary change in the structural unit in which the employee works, if it was fixed in the employment contract;
transfer together with the employer to another location.

However, the employer does not change.

However, another type of transfer is also indicated there - to a permanent job with another employer. With such a transfer, the previous employment contract is terminated and a new one is concluded with another employer.

In addition to transfer to another job, the same rules of law also regulate the movement of an employee.

The transfer of an employee can only take place with the same employer.

It is possible in the form:

moving to another workplace;
moving to another structural unit of the organization within the same area;
Instructing an employee to work on another mechanism (unit).

A prerequisite for the legality of the move is the absence of changes in the terms of the employment contract concluded between the parties. In other words, when moving, the workplace, or division (department), or mechanism (machine, car) previously fixed in the employment contract should not change.

The relocation of an employee does not require his consent to do so. Disagreement may be regarded as a violation of labor discipline and entail appropriate consequences in the form of disciplinary action.

In this case, the employee’s health status should be taken into account: the law strictly prohibits moving him to work that is contraindicated by a medical report.

Who can be appointed

In order to start the process of replacing a temporarily absent employee, you must first select the right candidate for a replacement.

This must be a person with sufficient qualifications, education and experience.

He can work in any position within the company (in this case, you will also need to obtain his written consent) or hired “from the outside” on a part-time basis.

In some situations, to replace a valuable “personnel” who has been absent for a long time, a new specialist is hired - then a separate fixed-term employment contract must be concluded with him, indicating a specific limited period of validity.

General information

The transfer is discussed in Art. 72.1 of the Labor Code of the Russian Federation: does not require the consent of the 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.

Based on this norm, we can say that when moving, the workplace, the structural unit of the employee or the unit on which he works may change. However, it is impossible to change the labor function, place of work, working hours and any other terms of the employment contract.

Refusal to perform work when moving in compliance with the law is a violation of labor discipline.

How to properly arrange a move

In order for the employer to understand whether he can carry out the move, it is necessary to study the employment contract with a specific employee. First of all, pay attention to whether the workplace is named.

Based on Art. 57 of the Labor Code of the Russian Federation, an employment contract must necessarily include a condition regarding the place of work. However, the concepts of “place of work” and “workplace” are not the same in meaning. The latter can be changed for an employee when moving without his consent.

There is no explanation in the Labor Code on how to determine the place of work. Therefore, in practice, the name of the organization and the address at which it operates are indicated as the place of work, that is, the place where the employee must come to work. If an employee is hired to work in a branch, representative office or other separate structural unit of an organization located in another area, the employment contract must indicate the place of work indicating the separate structural unit and its location.

For your information. Structural units should be understood as branches, representative offices, as well as departments, workshops, sections, etc., and other areas should be understood as areas outside the administrative-territorial boundaries of the corresponding locality (clause 16 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).

A workplace is a place where an employee must be or where he needs to arrive in connection with his work, which is directly or indirectly under the control of the employer (Article 209 of the Labor Code of the Russian Federation), that is, a specific office, machine, mechanism. From a technical point of view, a workplace is recognized as a stationary work area, equipped with technical and other means necessary for the employee to perform the work function assigned to him.

Please note that it is not necessary to indicate in the employment contract the non-separate structural unit (that is, located in the same area) into which the employee is hired (department, site, workshop, etc.), as well as to specify the workplace in any other way.

The next thing you need to focus on is the labor function. By virtue of Art. 15 of the Labor Code of the Russian Federation, this means performing work according to the position in accordance with the staffing table, profession, specialty, indicating qualifications; the specific type of work assigned to the employee. Based on this definition, we can say that the labor function is a certain list of works assigned to an employee, which are determined by the employer based on the Unified Labor Code, Unified Labor Code and the characteristics of production, enshrined in the employment contract or job description.

Now let's turn to structural divisions, which can also be changed for the purpose of moving. The Labor Code does not contain a definition of such a concept, however, the Plenum of the Armed Forces of the Russian Federation in the above-mentioned Resolution No. 2 explained that not only departments, workshops, sections, but also branches and representative offices can be considered structural units.

Taking into account the fact that Part 3 of Art. 72.1 of the Labor Code of the Russian Federation operates with the concept of “moving to another structural unit of this organization in the same area”; the relocation of an employee from one separate unit (branch or representative office) to another such unit will always be a transfer. An exception is cases when a branch has been created in one locality (settlement), and the representation and reshuffle of employees does not extend beyond their boundaries.

Let's say a few words about non-separate structural units - departments, departments, services, workshops, bureaus, etc. They are the result of the structuring of the organization, and if there are no questions about indicating a separate structural unit in the employment contract (it should be there by virtue of the direct prescription of Art.

57 of the Labor Code of the Russian Federation), then the indication of the internal structural unit of the organization where the employee works in the employment contract remains at the discretion of the employer. Consequently, an employer can move an employee to any structural unit without changing the job function of the person being moved. This is confirmed by judicial practice.

In particular, the Leningrad Regional Court indicated: if, when concluding an employment contract, the structural unit in which the employee must perform labor duties is not determined by the parties, the employer’s actions to move this employee to another structural unit without his written consent are legal (Determination dated January 30, 2013 N 33-43/2013).

Well, the main thing to remember is that the employer should not unilaterally change the terms of the employment contract, otherwise the change in the employee’s labor status will not be considered a transfer. (The list of mandatory conditions to be included in an employment contract is established by Article 57 of the Labor Code of the Russian Federation.)

Features of application according to the Labor Code of the Russian Federation

The employment contract is required to regulate the specialist’s place of work. The place of work is understood as the organization in which the employee works.

The workplace is the area where the employee and the means of applying his labor are located, which is determined on the basis of technical and ergonomic standards and is equipped with technical and other means necessary for the employee to perform the specific tasks assigned to him. Such a place is an office, device or machine (it can also be an entire enterprise and (or) a specific locality).

If the organization has several branches within the city, the locality itself must be indicated in the employment contract as the place of work. In this case, the employee can be transferred from one branch to another in order of movement (only within the city).

Relocation within an enterprise is possible if the employment contract does not contain any mention of the structural unit of the company in which the employee works. In this case, structural decisions can be made without delay. Along with drawing up the order, a mention of the movement is entered into the employee’s personal card.

We invite you to familiarize yourself with a sample statement to the police about theft and the purchase of stolen goods by pawnshops

In accordance with Article 72.1 of the Labor Code of the Russian Federation, the movement of an employee can be carried out without the consent of the employee.

Registration of movement

Labor legislation does not regulate the procedure for registering the transfer of an employee, so we offer the following options for the employer.

1. A movement order is drawn up. The basis for issuing such an order is usually a memo from the head of the structural unit indicating the reason why the move should be formalized. Since there is no unified form for the movement order, it is drawn up in any form (see sample below). For convenience, the unified form of an order for transfer to another job T-5 can be taken as a basis

2. Instead of an order, a notice of relocation may be drawn up, which is signed by the employee’s immediate supervisor and is mandatory for the employee.

3. A written order from the immediate supervisor or other authorized person is also used. In order for the head of a department, workshop, laboratory or other managerial employee to be able to issue such orders, this authority must be enshrined in a local regulatory act, for example, in internal labor regulations.

4. The instruction to move is given orally. But this option is suitable when moving an employee to another mechanism or unit - if the employee follows such an instruction, the movement is considered completed.

Please note that an additional agreement to the employment contract on relocation is not drawn up. Entries in the work book and personal card are not made.

Implementation procedure

The employer issues a relocation order. After this, the authorized person familiarizes the employee with the document. The employee signs the document.

If an employee refuses to sign an order, then this fact is recorded by the employer and certified by three witnesses mentioning this circumstance. As a result, the employee may be subject to disciplinary action .

There may be a dispute between the employer and employee regarding the admissibility of such an action. In such a situation, the employer needs to prove that the action he performed did not lead to a change in the conditions specified in the agreement.

Disputes over relocation

Most often, labor disputes related to relocation arise when employees do not agree to comply with the employer’s order to move to another workplace, to another structural unit, or to perform work on another mechanism or unit. Naturally, the employer applies disciplinary measures to the employee for this, and the latter, in turn, goes to court to recognize the employer’s actions as a transfer made without the written consent of the employee, as well as to restore the previous position.

The courts first of all check whether the labor function and other essential terms of the employment contract have changed as a result of the reshuffle, and to check they most often request an order for employment, an employment contract, a job description, an order or other administrative act on relocation, as well as a description a new workplace or structural unit in which the employee will work, and his new responsibilities.

Any deviation from the conditions of movement set out in Part 3 of Art. 72.1 of the Labor Code of the Russian Federation, transforms the movement into a transfer, for which the employer must obtain the written consent of the employee.

“Human Resources Department of a Commercial Organization”, 2013, N 12

Personnel orders

An order is a legal act issued by the head of a management body (enterprise, organization), acting on the basis of unity of command, to solve the main and operational tasks facing this body.
ORDERS FOR PERSONNEL

Personnel orders document the labor relations between employer and employee, which are regulated by the Labor Code of the Russian Federation.

In accordance with part three of the Labor Code of the Russian Federation, which establishes the logic of regulating labor relations, as well as taking into account the significance of management action from the point of view of current legislation and the value of the document, which is expressed in its storage period, orders for personnel are classified quite simply.

The first group is orders formalizing labor relations and essential facts of the implementation of the employee’s labor function (concerning the terms of the employment contract) and having a shelf life of 75 years:

about hiring (conclusion of an employment contract);
on transfer to another job (permanent transfer with the consent of the employee, i.e. changing the employment contract);
about dismissal (termination of employment contract);
on the establishment of wages (changes in wages as a change in the essential terms of the employment contract);
about sending on a business trip (long-term foreign);
about encouragement (bonus, declaration of gratitude, awarding a valuable gift, certificate of honor, etc.).

It should only be noted that orders for the appointment of the first persons of the enterprise, those officials who are mentioned in the charter (for example, the general director, his deputies, chief accountant, head of the internal control service), are orders for the main activity, and not for personal composition.

The second group is orders that promptly regulate the performance of a labor function by an employee and have a shelf life of 5 years:

on granting leave;
about sending on a business trip (short-term);
on the application of a disciplinary sanction (remark, reprimand, etc.);
on referral to training (seminar) as part of professional training, retraining and advanced training.

This classification of orders is reflected in the structure of Article 6 of the “List of standard management documents generated in the activities of organizations, indicating storage periods.”

REGISTRATION OF ORDERS

Registration is the transfer of document details into a specific registration form (magazine, book, card index, database) and affixing a number (or index) and date to the document.

All types of orders for personnel must be registered. Registration in journal form provides a good solution for the protection and recording of documents. The last entry shows the total number of registered documents.

All registration data is compactly grouped in one or more journals, which are subject to special storage. It is impossible to remove entered data from the journal or register a document retroactively.

The obligation to maintain accounting forms in journal form is established by regulatory documents (List of standard management documents generated in the activities of organizations, indicating storage periods; Inter-industry integrated time standards for staffing and accounting work).

The “Personnel in Order” company has developed convenient logbooks for recording orders. Depending on the volume of personnel document flow, various types of journals can be used.

All registration logs (books) are kept until they are completely filled.

On the cover of each registration book, you should write the name of the organization (institution) and put the date of establishment of the journal, and after the book is completely filled out, the end date.

If during the maintenance of the journal the name of the organization (or its legal form) changes, then clarifications should be made on the cover of the journal.

More information about the rules for registering orders can be found in the article by L. Sankina “Journals of registration of personnel documentation.”

EXAMPLES OF ORDERS

RECEPTION

Form T-1. Unified form of admission order
Form T-1a. Unified form of admission order (several people)
T-1. Order for permanent employment
T-1. Order for admission to permanent employment, without testing
T-1. Order for admission to seasonal work
T-1. Order for part-time admission
T-1. An order for admission, temporarily, for the period that another employee is on parental leave
T-1. Order for acceptance, temporarily, for the period of work
T-1. Order for admission, urgent, for medical reasons
T-1. Order of admission, age up to 18 years, shortened working hours
T-1. Order of admission, part-time
T-1. Order of admission, part-time work week
T-1. Order of admission, part-time work
T-1. Order of acceptance, with full financial responsibility
T-1. Admission order, manager and deputies, 6 month trial
T-1a Order for permanent employment (several employees)
Order on cancellation of an employment contract

TRANSLATION

WORKING AND REST TIME