Features of temporary transfer of an employee to perform someone else’s job duties
Based on Art. 72 of the Labor Code of the Russian Federation, an employee can be transferred, including cases of temporary replacement, with the subsequent right to return to his official duties without adjustments in the functions performed and the amount of salary. However, such replacement of employees is possible only with the written consent of the person replacing them.
However, there are circumstances where obtaining the consent of such an entity is not necessary. Such conditions include urgent need, an emergency situation in which the labor of a temporarily absent subject is required.
The period for transferring an employee without his consent cannot exceed one calendar month.
Also, transfer without consent is only possible to a position that requires the same qualification level as his main activity. If the employee agrees to the transfer, then it is legal to replace him with a position whose qualification level is lower than the employee’s level. However, even if working in a less qualified job, the employee will not receive less wages than his established position assumed.
If the transferred personnel does not return to work or commits any other disciplinary offense, this may also be grounds for disciplinary action.
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Legal advice: Temporary performance of duties in a military position
Question:
Hello! I am a reserve major and I have the following situation: on January 15, 2009, I was appointed acting head of one of the units of the FSB of Russia in the Kaliningrad region, and at the time of my dismissal on July 14, 2012, I was also acting as head, i.e. I did not receive any payments for leading the unit. Immediately after my dismissal, my former subordinate was appointed VRID and in the very first month he received a significant additional payment for leadership. The question is: have my rights been violated in connection with the appointment of me as an acting agent for 3.5 years? It turns out that if I was an acting director, then somewhere there must have been a virtual head of my department, who for some reason “resigned” along with me and the position became vacant? I would greatly appreciate clarification. Your answer will help me decide whether to contact the military prosecutor's office.
Evgeniy, 40 years old, Kaliningrad
Answer:
Evgeniy, hello. In accordance with paragraphs 1, 2 of Article 12 of the “Regulations on the procedure for military service”, approved by Decree of the President of the Russian Federation of September 16, 1999 No. 1237 “Issues of military service”, due to official necessity, a serviceman may be assigned to temporarily perform duties for the following equal or highest military position which he does not hold:
a vacant (unoccupied) military position - with his consent (temporary performance of the position - vrid);
unvacant (occupied) military position - in the event of the temporary absence of the serviceman occupying it or the removal of the serviceman occupying it from office (temporary performance of duties - interim).
In this case, the serviceman is released from performing duties in his military position, but is not released from his military position.
The continuous period of temporary performance of duties in a military position that a serviceman does not occupy must not exceed:
six months - in case of performance of duties in a vacant military position;
four months - in the case of performing duties in a non-vacant military position.
A serviceman may, with his consent, be entrusted with the performance of duties in an unvacated military position for the period that the serviceman occupying it is on maternity leave.
Evgeniy, exceeding the period of temporary performance of your duties in the specified position may be considered a violation.
Alexander Tomenko, military lawyer
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Temporary replacement of an absent employee with a newly hired employee
If an employee is absent for a long time, it is legal to hire another specialist to fill his position on a temporary basis. To do this, it is necessary to conclude a fixed-term employment agreement. Based on Art. 59 of the Labor Code of the Russian Federation, such a procedure is regulated by the general rules for formalizing labor relations.
A feature of such a fixed-term contract is the mandatory recording of the fact of temporary work, as well as the designation of a specific period for the performance of labor duties in the position in question.
Based on Art. 58 of the Labor Code of the Russian Federation, such a period is drawn up by agreement of the parties (manager, temporarily absent employee, as well as an employee who will perform someone else’s duties), but it should not be more than 5 years.
If the contract does not stipulate the period in question, the agreement is considered to be concluded for an indefinite period. Thus, when the main employee returns to work, serious legal conflicts will follow between the manager and both subordinates. This will happen due to the ban on dismissing employees without serious reasons. Therefore, it is strongly recommended to enter in advance the frequency of work of the subject replacing the main frame.
Based on Part 1 of Art. 59 of the Labor Code of the Russian Federation, it is possible not to indicate a specific date for termination of the contract, but to state the condition that the fixed-term agreement loses force when the main employee returns to work.
Is there a difference between acting and acting?
As we can see, there are regulations that allow people to be appointed to certain positions - so that they perform functions temporarily, so that the organization does not find itself without a leader. Such appointees sign with a prefix to the position, for example, acting or acting. What is the difference? For example, an acting manager is appointed due to the absence of the main employee (due to a business trip, illness, vacation, etc.), that is, he holds the position for a while. A.i.o. performs work for a position that is vacant, but a search for employees is underway, or the candidate is accepted under the condition of preliminary completion of a probationary period - this is another type of such labor relations.
Temporary assignment of duties for a vacant position
Temporary performance of third-party duties in a position for which a permanent employee is being searched is possible only with the consent of the full-time employee to combine his main job and additional responsibilities until a new entity is identified in the company.
Also, the manager and subordinates must clearly discuss such conditions and document them:
- the period during which the subject will have to combine his main responsibilities with additional work;
- amount of surcharge.
It is also necessary to conclude an additional agreement to the employment contract. Upon completion of this paper, the manager issues a corresponding order to assign temporary duties to a specific person.
Based on Part 4 of Art. 60 of the Labor Code of the Russian Federation, an employee temporarily performing such duties has the right to refuse them before the expiration of the period established by the fixed-term employment agreement. To do this, the person must notify the company manager in writing at least three days before the planned termination of his work activity in an additional position. At the same time, the employee also has the right to refuse to perform additional duties until he immediately starts work.
How to translate
The procedure for transferring an employee from a temporary job to a permanent one is regulated by Article 58 of the Labor Code of the Russian Federation. According to it, a fixed-term employment contract concluded with a citizen when hiring on a temporary basis automatically acquires the status of “indefinite” after the expiration of the validity period specified in it if there is no initiative from either party (employee, employer) to end the employment cooperation.
In order for a fixed-term employment contract to officially accept the status of an open-ended one, it will be necessary to conclude a corresponding additional agreement in which this will be indicated.
The peculiarity of transferring a subordinate from a temporary job to a permanent one is that it can take place both inside and outside the organization. To carry out an internal transfer, you will need to draw up an order and make a corresponding entry in the work book. For an external transfer, you will first have to remove the employee from his position with one employer and then apply for a job with another.
The step-by-step translation procedure is as follows:
- When transferring externally, the new boss fills out an application in the name of the previous employer where the transferred employee currently works. The document specifies the employee’s details, his position, as well as the date of his potential assumption of a new position. Afterwards, the petition is numbered, sealed and signed by the authorities;
- Next, the current employer issues an appeal to the subordinate’s future boss. There is an exchange of consent responses, certified by the seal and signature of the organizations;
Info
An application for an external transfer from a temporary to a permanent job must be made at least 8 weeks before the transfer itself. This will require obtaining written consent from the subordinate.
- Next, a dismissal-transfer order is drawn up (in accordance with Article 77 of the Labor Code of the Russian Federation). The document is also certified by the seal and signature of the employer. The employee himself puts his personal signature on it;
- A record of dismissal due to transfer to another organization is entered in the work book. The dismissed employee receives a paycheck;
- Afterwards, the employee submits an application for employment in a new institution and enters into a permanent employment contract. An employment order for a new position is also drawn up in connection with a transfer from another organization. A new personal employee card is opened.
If we are talking about internal transfer within one company, it is carried out as follows:
- The previously transferred employee is notified of the potential transfer at least two months in writing;
- If he agrees, the employee puts a date and personal signature on the notice;
- Afterwards, an additional agreement is drawn up, which indicates the fact of a change in the nature of the duties, from temporary to permanent;
- Next, an order is drawn up. A position is assigned, the salary amount, place of work and other nuances are negotiated;
- At the end of the internal transfer procedure, a corresponding entry is made in the work book.
basic information
Temporary workers are hired through a fixed-term employment contract. There are several options for creating temporary positions, including replacing a key employee who is on any type of leave or sick leave. Also, temporary positions are introduced by the staffing table for a certain period, for which a temporary worker is hired. The duration of the contract or contract may vary.
Important! The conditions of labor relations are prescribed in labor legislation, labor and collective agreements, as well as in various additional agreements. A contract of any type, as well as an additional agreement, may contain a number of clauses on the terms of reduction, for example, on compensation or payments that go to the main ones due to the employee under the Labor Code of the Russian Federation.
According to the legislation, when reducing staffing positions in the form of positions, you cannot reduce those occupied by a temporary employee replacing the main one under the following facts:
- maternity leave;
- sick leave;
- vacation of any nature.
In this case, it will not be possible to reduce the position and the temporary worker until the main employee leaves. It is worth considering that under this condition, the temporary employee will not be laid off, since his contract ends when the main employee, who is already being laid off, leaves.
For example, a woman will be laid off after maternity leave, as her position is eliminated. A notice is sent to her, but the temporary worker does not receive it, since in this option he will not be laid off, but will be fired at the end of the fixed-term contract.
Important! In all other cases, the law states that the layoff of a temporary employee is carried out on general grounds. But here you will also have to take into account the duration of the contract and other features of the procedure.
Possible difficulties
Transferring to another position is always accompanied by some difficulties for the employee. In the same case, if we are talking about changing a position from temporary to permanent or transferring a part-time worker from a combined position to the main job, such difficulties will include:
- violation of the time used to calculate the period of annual paid leave (if the transfer is made through dismissal);
- making additional entries in the work book, which can seriously have a negative impact on the calculation of the employee’s final length of service upon retirement (especially in cases where there is a special length of service, and retirement is carried out upon reaching it);
- if an employee is going to make some large purchases, including using borrowed funds, then a transfer to another position (especially if we are talking about such a transfer through dismissal) may negatively affect the possibility of making such a purchase ( if there is in the work book there are records of dismissal and hiring, even if such records were made in the same organization and in the same date, the bank may refuse to approve the loan).
If we are talking about the transfer of a part-time worker, then an additional difficulty may be a break in the registration of work experience, which subsequently affects the calculation of the insurance period for long-service and old-age pensions.
