Translation at the request of the employee. Technical aspects and legal implications

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.

Refusal to transfer to another job if laid off

Transfers to another permanent job always require the written consent of the employee, and the law does not establish exceptions to this rule.

Consequently, he may refuse to transfer to the proposed position. And this will be lawful and cannot cause any adverse consequences for him (imposition of penalties, deprivation of bonuses, dismissal).

If an employee refuses the offered positions, the employer dismisses him upon expiration of the notice period for dismissal due to reduction. Taking into account all due payments.

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.

Features of dismissal in the order of transfer

Dismissal by transfer may be carried out at the discretion of the employee. The employee himself makes the decision to move to another place of work upon a written invitation. The authorities may refuse to transfer. If an agreement cannot be reached, you will have to resign of your own free will.

An offer to resign by transfer may also come from the current employer, for example, a layoff is coming and in this way they are trying to find a job for the employee. Or the owner of the organization closes the company and opens a new one, maintaining the same team. The nuance of such a “reduction” is such that you will not have to spend money on additional payments provided for by law. In such a situation, the mandatory written consent of the employee is required; without it, the transfer is carried out illegally.

Dismissal by transfer is specified in Article 77 of the Labor Code of the Russian Federation. In addition to the peculiarities of documentation, all other calculations and the procedure for issuing documents are the same as for dismissal at the initiative of the employee. After receiving the work book, the employee must enter into an employment contract with the inviting party within a month.

It may happen that the employer changes his mind about registering the invited employee when he has already quit. In this case, you can legally sue the employer. An invitation letter must be attached to the claim.

It is not necessary to agree to the offer; the employee may well refuse. In this case, pressure from superiors will be illegal.

The employer has every right to refuse to transfer an employee to another organization

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.

Dismissal of employees for refusing a temporary transfer

Igor Kirillov , Leading Legal Adviser

In accordance with the Labor Code of the Russian Federation, transfer to another job is understood as a permanent or temporary change in the labor function of an 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, and also transfer to work in another area together with the employer.

Issues of temporary transfer to another job are addressed in Art. Art. 72.2, 73 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), as well as a number of other provisions of the Labor Code of the Russian Federation concerning the specifics of labor regulation of certain categories of workers.

Temporary transfer to another job is a type of transfer to another job, which, in turn, is considered from the perspective of Art. 72 of the Labor Code of the Russian Federation as one of the types of changes to the terms of the employment contract determined by the parties.

In order to better understand all possible cases of temporary transfers to another job, it seems possible to resort to the classification of temporary transfers depending on their obligation for the parties to the employment contract. So, we can highlight:

1) temporary transfers carried out by agreement of the parties;

2) temporary transfers that are mandatory for the employer (i.e., which the employer cannot avoid in the presence of certain objective circumstances);

3) temporary transfers that are mandatory for the employee (i.e., carried out without his consent).

The first group of these temporary transfers - by agreement of the parties - is regulated by Part 1 of Art. 72.2 of the Labor Code of the Russian Federation, which establishes that by agreement of the parties, concluded in writing, an employee may be temporarily transferred to another job with the same employer for a period of up to one year, and in the case where such a transfer is carried out to replace a temporarily absent employee, for who, in accordance with the law, retain their place of work - until this employee returns to work.

Judicial practice on the application of the provisions of Part 1 of Art. 72 Labor Code of the Russian Federation.

— Decision in case No. 33-3944/2015 (04/21/2015, Kemerovo Regional Court (Kemerovo Region)):

"Kkhakhalin S.N. filed a lawsuit against Sberbank of Russia OJSC, motivating the demands by the fact that ... he was hired for the position of ... the legal department in the branch ... of Sberbank of Russia OJSC, ... transferred to the staff ... of the branch ... of Sberbank of Russia OJSC for the position ... branch ... Sberbank of Russia OJSC, ... transferred to the position of head of the department for working with problem debts ... branch No. ... Sberbank of Russia OJSC...

... the employer unilaterally replaced the plaintiff with respect to the structural unit in which he was hired - the Department for working with problem debts ... branches ... OJSC "Sberbank of Russia", with another - the Department for working with problem debts ... OJSC "Sberbank of Russia" ", to which the plaintiff was not transferred.

...Khakhalin S.N. asked to declare illegal and cancel the order ... of the department ... “On the organization of the work of S.N. Khakhalin”, to recover compensation for moral damages in ..., to recover legal expenses for the representative in the amount of ...

...By the decision of the Central District Court of Novokuznetsk, Kemerovo Region, dated January 19, 2015, it was decided to recognize as illegal the order of the Manager ... of the branch ... of Sberbank of Russia OJSC dated ... No. ... “On the organization of the work of S.N. Khakhalin...”.

• Decision in case No. 33-969/2015 (04/02/2015, Tula Regional Court (Tula Region)):

"Chigirina L.A. since... worked at the Aleksinsky Chemical Plant. ... transferred to the investment projects department to the position of specialist ... category with a personal salary in the amount of ... rubles per month, which is reflected in the additional agreement to the employment contract.

...she was asked to sign an additional agreement to the employment contract, according to which she was given an official salary of ... per month. She did not sign this additional agreement, however... the employer began to charge and pay wages from the official salary in the amount... She asked the court to recover wages from the defendant in her favor...

The court decided: ...to recover from the Federal State Enterprise "Aleksinsky Chemical Plant" in favor of L.A. Chigirina. unpaid wages..., compensation for unused vacation..., compensation for moral damage in the amount... Oblige the Federal State Enterprise "Aleksinsky Chemical Plant" to recalculate what was paid upon dismissal and pay to L.A. Chigirina. the shortfall... ...To collect from the Federal State Enterprise "Aleksinsky Chemical Plant" a state duty in the amount of...

...In the appeal of the Federal State Enterprise "Aleksinsky Chemical Plant" asks the court decision to be canceled, considering it illegal and unfounded, decided in violation of the norms of substantive and procedural law...

... the judicial panel determined the decision of the Aleksinsky City Court of the Tula Region from ... to leave unchanged, the appeal of the Federal State Enterprise "Aleksinsky Chemical Plant" - without satisfaction" ...

From the literal interpretation of this provision of the law, it follows that a temporary transfer of an employee, carried out for a period of up to one year, is allowed to any position, including a vacant (vacant) position, available to a given employer.

The second option of temporary transfer, by agreement of the parties, is carried out to replace a temporarily absent employee, who retains his place of work. This happens in cases where the employee is on some kind of vacation, the employee is temporarily incapacitated, the employee performs state or public duties, and other cases. This type of transfer is carried out for the period until the temporarily absent employee returns to work, i.e. the transfer period may well exceed one year, for example in the situation of replacing an employee on parental leave.

If the employer provided the employee with the previous job after the expiration of the temporary transfer, and the employee does not want to start it and does not fulfill the duties of his previous job function, then it would be lawful to bring the employee to disciplinary liability for failure to fulfill labor duties, since the Labor Code of the Russian Federation does not provide for the possibility the employee’s refusal to return to his previous job after the expiration of the temporary transfer.

The second group of temporary transfers consists of the so-called transfers mandatory for the employer. If there are objective circumstances specified in the law, the employer does not have the right to evade the temporary transfer of the employee.

First of all, this concerns the temporary transfer of an employee to another job in accordance with a medical report (Article 73 of the Labor Code of the Russian Federation). The employer is obliged to transfer an employee who needs a transfer in accordance with a medical report to another job he has that is not contraindicated for the employee due to health reasons, but only with the written consent of the employee. But what if the employee does not agree to such a transfer or the employer does not have the appropriate work? The Labor Code of the Russian Federation provides two ways to resolve such a situation, depending on the period for which the transfer must be made. Firstly, if the period of temporary transfer does not exceed four months, then the employer is obliged to suspend the employee from work for the entire period specified in the medical report while maintaining his place of work (position) in accordance with Art. 76 Labor Code of the Russian Federation. During the period of suspension from work, the employee’s 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. Secondly, if, in accordance with a medical report, the employee needs a temporary transfer for a period of more than four months, then if he refuses the transfer or the employer does not have the appropriate work, the employment contract is terminated in accordance with clause 8 of Part 1 of Art. 77 Labor Code of the Russian Federation. Only in relation to management employees (heads of the organization, branches, representative offices or other separate structural units, their deputies, chief accountants) did the legislator not provide for differentiation of legal regulation depending on the period of temporary transfer. The employment contract with such employees who need a temporary transfer to another job in accordance with a medical report is terminated under clause 8 of Part 1 of Art. 77 of the Labor Code in case of their refusal to transfer or the employer’s lack of relevant work, regardless of the period of temporary transfer established by the medical report. But the employer has the right, with the written consent of these employees, not to terminate their employment contract, but to remove them from work for a period determined by agreement of the parties. From the formal interpretation of this provision it follows that the period of suspension from work of so-called management employees may be less than the period for which their temporary transfer is necessary in accordance with a medical report. It seems that if, after the expiration of the period of suspension from work, employees continue to refuse a temporary transfer or the employer does not have appropriate work for them, the employer has the right to terminate the employment contract with them under clause 8 of part 1 of Art. 77 Labor Code of the Russian Federation.

Options for temporarily transferring an employee to another job, which is mandatory for the employer, are also provided for by other provisions of the Labor Code of the Russian Federation, in particular the rules on the specifics of regulating the labor of certain categories of workers. So, according to Art. 254 of the Labor Code of the Russian Federation, pregnant women, in accordance with a medical report, are transferred to another job that excludes the impact of unfavorable production factors, while maintaining earnings from their previous job. Women with children under the age of one and a half years, if it is impossible to perform their previous job, are also subject to transfer at their request to another job with wages for the work performed, but not lower than the average earnings for the previous job until the child reaches the age of one and a half years. The employer has no right to refuse to carry out these temporary transfers.

Judicial practice on the application of Article 73 of the Labor Code of the Russian Federation.

— Decision in case No. 33-3934/2015 (04/15/2015, Samara Regional Court (Samara Region))

“... the employer, in violation of the individual rehabilitation program, without having special knowledge in the field of medicine... concluded that it was necessary to transfer L.A. Saidova. to another job due to health reasons. Saidova L.A. believes that the defendant unreasonably decided that she could not perform the functions assigned to her by the employment contract.

... the court, having assessed the evidence collected in the case, rightfully came to the conclusion that L.A. Saidova had refused. in satisfying the stated requirements, since the defendant had grounds for her dismissal under paragraph 8 of Part 1 of Art. 77 Labor Code of the Russian Federation. The procedure for dismissal on this basis was followed, since the plaintiff was diagnosed with a third disability group, which prevented her from continuing professional activities in her position, which was recorded in the relevant medical report; in the process of employment, the plaintiff was offered positions that were not contraindicated for her for health reasons, which she refused , and she did not express her will to occupy one of the proposed positions”...

The next group of temporary transfers outlined in this article includes transfers that are mandatory for the employee and, therefore, can be carried out without his consent. The Labor Code of the Russian Federation provides for two cases of such temporary transfers to another job. These are temporary transfers in accordance with Part 2 of Art. 72.2 of the Labor Code of the Russian Federation and Part 3 of Art. 72.2 Labor Code of the Russian Federation.

Changes in the procedure for regulating temporary transfer to another job without the employee’s consent were a consequence of the ratification of the ILO Convention No. 29 of 1930 “On Forced or Compulsory Labour,” which, among other things, established that any work or service required is not forced labor. in emergency situations.

Cases of temporary transfer to another job without the employee’s consent, indicated in Part 3 of Art. 72.2 of the Labor Code of the Russian Federation, echo the concept of “production necessity” that existed in the previous edition of the Labor Code of the Russian Federation. However, now the possibility of transferring an employee to a job not stipulated by the employment contract without his consent in the above situations is significantly limited. A temporary transfer is permissible only when adverse consequences for the employer (downtime, etc.) are caused by extraordinary circumstances. The list of these emergency circumstances is not exhaustively defined by the legislator; they may include any exceptional cases that threaten the life or normal living conditions of the entire population or part of it. The essence of these circumstances has some similarities with the concept of force majeure in civil law. So, in Art. 202 of the Civil Code of the Russian Federation, force majeure is defined as extraordinary and unavoidable circumstances under given conditions. However, it seems that when applying parts 2, 3 of Art. 72.2 of the Labor Code of the Russian Federation, it is more appropriate not to use by analogy the concept of “force majeure” from civil law, but to operate with the wording fixed in the Labor Code of the Russian Federation, “exceptional cases that jeopardize the life or normal living conditions of the entire population or part of it.”

A temporary transfer to another job without the employee’s consent is considered legal if the following conditions are simultaneously met:

- the need for a temporary transfer must be associated with exceptional cases that threaten the life or normal living conditions of the entire population or part of it (in this case, the obligation to prove the existence of circumstances with which the law connects the possibility of such a transfer rests with the employer);

— the duration of one temporary transfer of an employee to another job without his consent should not exceed one month (during the calendar year, such transfers can be carried out by the employer more than once, subject to all the requirements imposed on them by the Labor Code of the Russian Federation);

- an employee can be transferred without his consent to a job not stipulated by the employment contract only with the same employer;

— the job to which the employee is transferred must correspond to his qualifications; transfer to a job requiring lower qualifications is permitted only with the written consent of the employee (this requirement applies only to Part 3 of Article 72.2 of the Labor Code of the Russian Federation);

— the employee must be paid according to the work performed, but not lower than the average earnings for the previous job;

- an employee cannot be transferred to a job that is contraindicated for him due to health reasons.

If all the specified conditions are met, the temporary transfer of an employee to another job without his consent is legal and the employee does not have the right to refuse it. As the Plenum of the Supreme Court of the Russian Federation indicated in paragraph 19 of Resolution No. 2 of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” refusal to perform work during a transfer carried out in compliance with the law is recognized as a violation of labor discipline, and absence from work is considered a violation of labor discipline. truancy.

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.

What to do in this case

If an employee does not want to be hired for a transfer, the employer is obliged to notify the person in advance about the likely transfer. In this case, the employee must be notified and given the opportunity to familiarize himself with the documentation against signature. The process then proceeds as usual. In case of illegal dismissal, for example, of a pregnant woman or a single mother, the employee has the right to appeal to the State Labor Inspectorate.

Also, an employee may come to a similar solution to the problem if he believes that the position or conditions that are offered to him do not correspond to his qualifications, experience, wages or the costs incurred. In this case, an appeal is also made to the State Tax Inspectorate. You can then challenge the dismissal in court.

Sample application for refusal

The video below will tell you more about the transfer of an employee:

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.

Reduction of headcount and staff: step-by-step procedure

According to clause 2, part 1, art. 81 of the Labor Code of the Russian Federation, an employment contract may be terminated by the employer in cases of reduction in the number or staff of employees of an organization or individual entrepreneur.

Dismissal upon change of owner or reorganization of a legal entity

When changing employer, dismissal occurs as follows:

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.