When a change in the scope of duties entails a change in salary, can an adjustment to the job description indicate a change in the job function and what should be remembered when notifying an employee of an upcoming dismissal: the answers to these questions are in the article.
Doing business often requires a review of certain working conditions in the company. If employees understand the need for innovation, then, as a rule, no problems arise: any provision of the employment contract can be changed by agreement of the parties. For refusal to work under new conditions, management has the right to dismiss an employee on its own initiative. Note that quite often such grounds for dismissal are used when an employee has “immunity” from dismissal at the initiative of the employer, and the company wants to part with him. But in case of a dispute, the employer will have to:
- prove that it was impossible to maintain the terms of the employment contract in their original form;
- provide evidence that these changes occurred due to organizational or technological reasons.
In addition, it is important to remember that any innovations should not affect the employee’s work function. After all, its change is possible only by mutual agreement of the parties. At the same time, in some cases, changing an employee’s job functions at the initiative of the employer is possible.
Let's consider cases when management has the right to adjust an employee's job responsibilities or reduce their volume, and, as a consequence, the official salary.
How to change the structural unit indicated in the employment contract with an employee
In practice, the organization has the right to abolish the department or other structural unit in which the employee worked, transferring his functions to another department or department or distributing them among several departments. An employee of a liquidated department can be assigned to a new department or division, which is assigned the functions previously performed by this employee. However, changing an employee’s job function at the initiative of the employer is unlawful.
Judicial practice: the question of who owns the initiative to dismiss
Thus, in one case, in connection with the reorganization of the bank, the management decided to transform the investor relations department into two departments: information and analytical and public relations. The employee, who headed this department before disbandment, was notified of changes to the contract concluded with her and was offered to take the position of head of the information and analytical department with a changed salary due to a decrease in the scope of duties. The employee did not agree with this proposal and stated that as a result of the dissolution of the department she led, her job function was changed, and the employer had no right to carry out such a transfer on its own initiative and without her consent.
The courts of first and cassation instances sided with the employer. However, the supervisory authority of the Moscow City Court supported the worker. Subsequently, the Presidium of the Supreme Court of the Russian Federation issued a resolution, according to which the dismissal of the employee was recognized as legal. The court concluded that as a result of the dissolution of the department and in accordance with the instructions for the employee’s new position, her job responsibilities were not changed, and the new position corresponded to her specialty and qualifications. The employee refused the offered position, which cannot be qualified as dismissal at the initiative of the employer (Resolution of the Presidium of the Armed Forces of the Russian Federation dated June 8, 2011 No. 12ПВ11).
Judicial practice: salary reduction
Due to the lack of planned results and low economic indicators of the retail department of the sales service, the employer decided to assign the functions of organizing retail sales and managing the retail department to the commercial director, subordinating the employees of the retail department to him. For these reasons, the functions of managing the department for organizing the sale of printed products through retail partners, conducting marketing research, developing projects for the sale of printed products, improving the sales network and other functions related to determining strategy and implementation were excluded from the job responsibilities of the director of the retail department (employee). retail sales. In the process of structural reorganization of the company, the employer approved a new staffing table, according to which the position occupied by the employee was set at a lower salary. The employee refused to work under the changed conditions and was dismissed at the initiative of management. Considering the dismissal to be unlawful, he went to court.
The court agreed with the company's actions. He found that the change in the employee’s remuneration was associated with a significant decrease in the scope of functions performed by the position of director of the retail department. The court indicated that the reduction in the scope of job responsibilities established in the employment contract was caused by a structural reorganization of the defendant and reassignment of the department. Thus, there were grounds for terminating the employment contract with the plaintiff at the initiative of the organization, taking into account compliance with other requirements provided for in Art. 74 of the Labor Code of the Russian Federation (decision of the Moscow City Court dated June 22, 2011 in case No. 33-18959).
It should be remembered that a change in job responsibilities at the initiative of the employer towards reduction, a reduction in the volume of work performed are not organizational or technological changes, but refer to the consequences of such changes. A reduction in the scope of work does not in itself indicate the possibility of applying Art. 74 of the Labor Code of the Russian Federation, if there have been no organizational or technological changes. If, when considering a legal dispute, it is established that in reality there were no such changes, the court may consider that there was a reduction in the number of employees.
Judicial practice: substitution of concepts
The employee filed a lawsuit to declare the dismissal illegal. She based her demands on the fact that as a result of the changes, the scope of her functions had increased and her salary had been reduced. Thus, the employer removed several positions from the staff, assigning their duties to other employees. The employee refused to continue working under the changed conditions, but she was not offered other positions, and then she was fired.
Satisfying the plaintiff’s demands for reinstatement, the court proceeded from the fact that in fact there was a reduction in the number of employees, and not a change in significant working conditions (determination of the Supreme Court of the Komi Republic dated 06.06.2011 No. 33-2948/2011).
The court took a similar position in another case.
The employee appealed to the State Labor Inspectorate with a complaint about the actions of her employer. She indicated that she was on maternity leave when the manager notified her about the closure of stores in her city, offering vacancies in stores located in other cities, and asked her to respond within two weeks about her consent or disagreement to continue working (the employer was an individual entrepreneur). If he did not receive a response, he reserved the right to terminate the employment relationship with the employee on his own initiative on the grounds provided for in paragraph 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation.
The labor inspectorate came to the conclusion that the closure of the store was not an organizational change in working conditions, as a result of which it obliged the employer to cancel the order to dismiss the employee. The entrepreneur went to court with a demand to declare the inspection order illegal. The court did not support the plaintiff’s demands, obliging him to comply with the order in full (ruling of the Ryazan Regional Court dated December 28, 2011 No. 33-2512). Thus, the employer should take into account that making changes to the working conditions of employees cannot be a way to optimize their costs through staff reduction procedures.
https://youtu.be/TxX71SD6Dhg
The employer has the right to change the employee’s duties without changing the job function
The employer, taking into account his production needs when carrying out a structural reorganization, has the right, without affecting the essence of the employee’s labor function, to add to him any functional job responsibilities with a simultaneous reduction, or without it, of his existing job responsibilities. As can be seen from the materials of judicial practice, a change in the scope of job responsibilities for a specific position is not a change in the labor function at the initiative of the employer (decision of the Moscow City Court dated November 14, 2011 in case No. 4g/4-9268). Article 74 of the Labor Code of the Russian Federation provides that changes in the terms of an employment contract due to changes in organizational or technological working conditions do not affect the employee’s labor function, which must remain unchanged. Under the labor function, according to Art. 15 of the Labor Code of the Russian Federation, is understood as work in a position in accordance with:
- staffing schedule;
- profession, specialty indicating qualifications;
- the specific type of work assigned to the employee.
Thus, in practice, the employer has the right to abolish the department or other structural unit in which the employee worked, transferring its functions to another department or department or distributing them among several departments. The employer can assign an employee of a liquidated department to a new department or division, which is entrusted with the functions previously performed by this specialist. However, the employer does not have the right to change the employee’s job function itself. If, for example, a person works in one specialty, the employer cannot, in accordance with Art. 74 of the Labor Code of the Russian Federation to offer him a job in another specialty. However, if the employee agrees, then there are no obstacles to this (Article 72 of the Labor Code of the Russian Federation). At the same time, the employer may have an objective need to change some of the specialist’s responsibilities without affecting the essence of his job function. For example, this may be due to the introduction of new production technologies, measures to improve organization and increase labor efficiency, etc.
A natural question arises: can an employer change an employee’s duties if this does not affect the essence of his job function?
This question should be answered positively. As indicated in paragraph 4 of the Qualification Directory of Positions of Managers, Specialists and Other Employees (approved by Resolution of the Ministry of Labor of the Russian Federation dated August 21, 1998 No. 37), in some cases it is possible to expand the range of responsibilities of employees in comparison with those established by the corresponding characteristics. In these cases, without changing the job title, the employee may be entrusted with the performance of duties provided for by the characteristics of other positions that are similar in content of work, equal in complexity, the implementation of which does not require another specialty and qualifications.
Thus, a change by the employer in the employee’s job responsibilities is not a change in his labor function in the sense of the provisions of Art. , , 72 Labor Code of the Russian Federation. It must be borne in mind that if the employer does not carry out a structural reorganization, but he simply needs to change the job responsibilities of a particular employee or group of employees, adding or adjusting existing responsibilities, it is enough for him to issue a new job description. That is, changing the job description at the initiative of the employer is permissible. The inconsistency of certain provisions of the Labor Code of the Russian Federation allows the company to abuse its rights when making personnel decisions.
Opinion
Boris Lvovich Pupko, lawyer of the Technology and Investment Group of the VEGAS LEX law firm
For an employer, dismissal on the basis of Part 4 of Art. 74 and paragraph 7, part 1, art. 77 of the Labor Code of the Russian Federation is more economically profitable than dismissal due to a reduction in the number or staff of employees and in connection with the liquidation of a separate structural unit, since the amount of severance pay is much lower, and is also organizationally more convenient than a transfer, since it does not require the written consent of the employee, and can be carried out by the employer on his own initiative unilaterally at any time. In this regard, employers often, implementing the provisions of Art. 74 of the Labor Code of the Russian Federation, instead of carrying out measures to reduce the number or staff of employees and measures to liquidate separate structural divisions, or instead of transferring employees with their written consent, the provisions of Art. 74 of the Labor Code of the Russian Federation and unilaterally notify employees of the upcoming change in the conditions specified in the contract about the place of work or the conditions for clarification of the place of work: about the structural unit, its location, about the workplace. In accordance with the requirements of Art. 74 of the Labor Code of the Russian Federation, the employer informs employees that if they do not agree to work under the new conditions, then employment contracts with such employees will be terminated at the initiative of the organization on the basis of clause 7, part 1, art. 77 of the Labor Code of the Russian Federation, since the employer does not have other vacant positions or work in the area where the structural unit (jobs) is being abolished, and he is obliged to offer employees vacancies in other areas only if this is provided for by the collective agreement, agreements, employment contracts (or work not in other areas either). Such application of the provisions of Art. 74 of the Labor Code of the Russian Federation seems controversial and, in my opinion, the condition about the place of work should also be classified by the legislator as conditions that (like the employee’s labor function) cannot be changed by the employer unilaterally even if those provided for in Art. 74 of the Labor Code of the Russian Federation of circumstances and in compliance with the established procedure.
Judicial practice: approval of a new LNA does not necessarily mean a change in functions
The employee worked in the company as a leading specialist in the product supply and logistics department. In 2010, the employer approved the Regulations on the department and job descriptions of employees. The employee refused to read her instructions, believing that the employer, on his own initiative, actually changed her job function and forced her to perform work not stipulated by the employment contract. In this regard, she went to court with a demand to oblige the employer to eliminate violations of labor legislation.
The court sided with the company. He pointed out that the employer’s approval of the job description does not constitute a change in the job function and does not indicate the employee’s transfer to another job. The court indicated that the employee’s position remained the same; she performs work in the same product supply and logistics department. At the same time, the work entrusted to her is included in the range of functions and tasks of both the department as a whole and the leading specialist of this department. The court noted that the content of an employee’s specific actions may vary depending on the time, conditions and circumstances that he may encounter while performing his work duties. In this regard, the employee’s claim was rejected (ruling of the Perm Regional Court dated July 27, 2011 in case No. 33-7533).
According to the requirements of Art. 74 of the Labor Code of the Russian Federation, the employer is obliged to offer the employee all available vacant positions, both those corresponding to the employee’s qualifications, as well as lower-level and lower-paid ones, with the exception of those that he cannot fill due to health conditions. If the employee agrees to fill another position with divergent job responsibilities, the employer will be obliged to conclude an additional agreement to the employment contract in the manner prescribed by Art. 72 Labor Code of the Russian Federation. The content of an employee’s labor function may vary depending on the time, conditions and circumstances that he may encounter while performing his job duties within the framework specified by the job description or employment contract. However, an employee can be involved in work not required by his job duties only in case of a state of emergency or in the manner provided for in Art. 60.2 of the Labor Code of the Russian Federation. Thus, with the written consent of the employee, he may be entrusted with performing additional work in a different or the same profession for an additional fee during the established working day, along with the work specified in the employment contract. This could be a combination of professions, expanding service areas, or increasing the volume of work. Additional payment for combination will be established by agreement of the parties.
conclusions
So, in any case, the employee has the right to challenge the disciplinary sanction and appeal it in the manner prescribed by law.
This right is enshrined in the Labor Code (Article 193 of the Labor Code of the Russian Federation). It is important to note that only a properly completed application and other documents will help speed up the appeal process.
It is also extremely important to ensure that each copy of the application bears the signature of the director, otherwise the documents will not have legal force.
It is recommended to start appealing a reprimand if the employee is firmly convinced that he is right, and also has a good reason or other compelling arguments. Otherwise, the committee’s decision may not be at all in favor of the employee, and this may be followed by dismissal, according to Article 81 of the Labor Code of the Russian Federation.
It is worth noting that this type of disciplinary sanction, as a rule, does not have significant consequences for the employee, and also loses its legal force after a specified period. Therefore, in practice, appealing a reprimand does not happen very often.
Violation of the procedure for introducing changes entails their cancellation in court
Even with very real reasons for changing the employment contract, dismissal due to refusal to continue working under new conditions may be considered illegal due to the employer’s failure to comply with the dismissal procedure. Therefore, it is very important to pay attention to the nuances of dismissal if an employee refuses to work under changed conditions.
- First of all, the employer decides to change the terms of the employment contract with a specific employee or group of employees. It is formalized by an order or direction of the company signed by the general director or another person whose competence includes making such decisions.
- Based on this order, the personnel service prepares a notification to the employee about upcoming changes to the terms of the employment contract determined by the parties. The employee must be notified no later than two months in advance (Part 2 of Article 74 of the Labor Code of the Russian Federation). For an employer who is an individual, this period is two weeks (Article 306 of the Labor Code of the Russian Federation).
- The employee must be familiarized with the notification against signature. Let us note once again that it should contain information not only about the nature of the changes, but also about their reasons. It is advisable to set a period in the notice during which the employee needs to make his decision about working under the new conditions.
Often in practice the question arises about the start time of the two-month period. The problem is that it is unclear from what date this period begins to be calculated - from the day the employee is given the notice or the next day after its receipt. We believe that Art. 14 of the Labor Code of the Russian Federation, according to which the period begins the next day after the calendar date that determines the occurrence of a legally significant event.
If the employee does not agree to work under the new conditions, the employer in writing offers him another vacant position or work that corresponds to the employee’s qualifications, or a vacant lower position or lower-paid work that he can perform taking into account his state of health (Part 3 of Article 74 Labor Code of the Russian Federation). In this case, the employer should offer all available vacancies in the area during the entire two-month notice period. Written proposals must indicate not only the names of positions, but also working conditions, wages, as well as other mandatory conditions provided for in Art. 57 of the Labor Code of the Russian Federation. Otherwise, the procedure may be considered to have been carried out in violation.
Judicial practice: non-compliance with the dismissal procedure
The workers went to court with a demand to recognize the dismissals under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation is illegal. In their opinion, the termination of employment contracts was accompanied by violations of the law.
The courts of first and cassation instances sided with the employer, but the Supreme Court of the Russian Federation overturned these decisions, citing the following. Since the notification of employees about organizational changes was made before the publication of the corresponding resolution of the head of the administration of the municipal district on the structural reorganization of the hospital where the dismissed employees worked, the two-month period for notifying employees about the upcoming dismissal was violated. The court also found that when offering another job, the employer did not stipulate all essential working conditions. In addition, after the order to introduce changes was issued, employees continued to perform their previous duties to the same extent for two months. The court indicated that the positions offered by the employer and the nature of the work in these positions are identical and correspond to the work of the plaintiffs before the change in the structure of the organization. No evidence was presented to confirm that the change in the terms of the employment contract determined by the parties, which was a consequence of changes in organizational working conditions, and also that this did not worsen the situation of the employees. Thus, the decisions of the lower courts were canceled, and the case was sent for a new consideration (decision of the Supreme Court of the Russian Federation of October 31, 2008 No. 25-B08-9).
It is important for the employer to prove that organizational innovations were sufficient reasons for changing working conditions.
Opinion
Ivan Viktorovich Berdinskikh, lawyer at the Moscow office of the international law firm Baker & McKenzie
Established judicial practice allows us to conclude that the most common reason for reinstatement of employees dismissed under Part 4 of Art. 74 of the Labor Code of the Russian Federation with reference to clause 7, part 1, art. 77 of the Labor Code of the Russian Federation, is the recognition of organizational or technological changes in working conditions as insufficient to justify changes in the terms of the employment contract determined by the parties and the implementation of the procedures provided for in Art. 74 Code. It is all the more interesting to analyze what organizational changes are recognized by the courts as sufficient and not violating the rights of workers, as well as how these changes should be documented. Changing the operating mode. The Moscow City Court recognized the legality of the dismissal of an employee who refused to work according to the new work schedule (ruling dated March 2, 2012 in case No. 33-6543). The change in the work schedule of the department in which the employee was employed was caused by the need to serve visitors to the organization on weekends and was documented by an order on a new work schedule for this department. At the same time, the possibility of establishing an appropriate work schedule was also provided for by the employer in the Internal Labor Regulations. Reorganization of the employer, resulting in a change in the employee’s job responsibilities. The Astrakhan Regional Court recognized as legal the dismissal of an employee who refused to work with changed job responsibilities (appeal ruling dated June 27, 2012 in case No. 33-1932). The change in job responsibilities without the employee’s consent was due to the employer’s decision to reorganize the structural unit in which the employee worked. The reorganization was formalized as follows: an order was issued to revise the existing regulations on the structural unit; new regulations and new job descriptions for department employees were approved; Changes have been made to the organization's staffing table. It should be remembered that a collective agreement, agreements and employment contracts may also provide for the mandatory offer of vacancies in other areas (Part 3 of Article 74 of the Labor Code of the Russian Federation). It is also important to take into account that when offering another job, the employer does not have the right to conduct interviews to test the employee’s business qualities or set a probationary period, since the proposed vacancies must initially correspond to the specialist’s qualifications.
Judicial practice: assessing an employee’s competencies when laying off workers and offering other positions is illegal
The employee filed a lawsuit to recognize the dismissal order under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation is illegal, reinstatement at work, recovery of wages for forced absence, compensation for moral damage. The company decided to introduce changes as a result of a sharp deterioration in financial performance. At the same time, individual employees, by decision of the head of the enterprise, could be set salaries in the amount of 10 thousand rubles. up to the minimum wage. The specialist was notified that his position had been reduced and he was offered other positions. He agreed to fill one of the proposed positions, the head of the relevant department interviewed him, after which the invitation was not made. As a result, the employer fired him on the grounds provided for in clause 7, part 1, art. 77 Labor Code of the Russian Federation.
The court did not support the employer’s position, since conducting an interview contradicts the meaning of Art. 74 Labor Code of the Russian Federation. The employee was reinstated at work, he was paid wages for the period of forced absence, compensation for moral damage (decision of the Moscow City Court dated July 1, 2010 in case No. 33-19700).
Labor Code of the Russian Federation, Article 74
In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract. If there is no specified work or the employee refuses the offered work, the employment contract is terminated in accordance with paragraph 7 of part one of Article 77 of this Code. In the event that the reasons specified in part one of this article may lead to mass dismissal of workers, the employer, in order to preserve jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner established by Article 372 of this Code, to adopt local regulations , introduce a part-time working day (shift) and (or) part-time working week for up to six months. If an employee refuses to continue working part-time (shift) and (or) part-time work week, then the employment contract is terminated in accordance with paragraph 2 of part one of Article 81 of this Code.
How to correctly change an employee's job description
Changes to the job description may be associated with changes in the terms of the employment contract. In this case, the requirements for advance written notification of this to the employee must be met. And only after the employee has agreed to continue the employment relationship, the job description changes:
- if the instruction is an annex to the employment contract, it is advisable to simultaneously make changes to the employment contract and job description by preparing an additional agreement;
- if the job description was approved as a separate document and changes to it do not entail the need to change the terms of the employment contract, it is most convenient to approve the job description in the new edition by familiarizing the employee with it in writing (letter of Rostrud dated October 31, 2007 No. 4412-b ).
The absence of vacant positions or the employee’s refusal of an offered job may serve as grounds for termination of the employment contract in accordance with clause 7 of Part 1 of Art. 77 Labor Code of the Russian Federation. In this case, there is no need to obtain a reasoned opinion from a representative body of employees.
When dismissing employees on this basis, the employer must pay them, in addition to the final payment and compensation for unused vacation, severance pay in the amount of two weeks' average earnings (Part 3 of Article 178 of the Labor Code of the Russian Federation).
If organizational or technological changes may lead to massive layoffs, Art. 74 of the Labor Code of the Russian Federation gives the employer the right to unilaterally introduce a part-time working regime. When introducing such a regime, the opinion of the trade union must be taken into account. Criteria for mass layoffs are set by industry agreements and generally depend on the timing of the release of workers and the percentage of the total number of workers.
It is important to take into account that Art. 74 of the Labor Code of the Russian Federation provides for the right, and not the obligation, of the employer to dismiss under clause 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation for an employee who does not agree to work in new, changed conditions. Even if a specialist does not agree to work under new conditions, the employer has the right to keep him at work. However, this employee must work under the same conditions, and the employer is obliged to provide such working conditions.
General information
An employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work for a specified job function, provide working conditions, and pay the employee wages on time and in full.
The employee undertakes to personally perform the labor function determined by this agreement in the interests, under the management and control of the employer, and to comply with the internal labor regulations in force for this employer.
An employment contract records the agreement of the parties on key issues, including: place of work, working hours, labor function (position), working conditions, wages, rights and obligations of participants in the employment contract, etc.
These main points in the employment contract are essential terms of the employment contract and are indicated in Part 2 of Art. 57 Labor Code of the Russian Federation.
It must also be remembered that changes in the terms of the employment contract should not worsen working conditions, reduce guarantees, or limit the rights of employees in accordance with the current labor legislation, otherwise such conditions are considered invalid (Part 2 of Article 9 of the Labor Code of the Russian Federation).
