Is it legal to appoint an interim official for a vacant position?

Often in enterprises, after the dismissal of an employee, his position remains vacant. Some employers are in no hurry to adjust the staffing table and exclude vacancies from it. Instead, they assign current employees to perform the duties of vacant positions. However, such an action is not entirely legal.

Remember about the power of attorney and additional payments

Unlike ordinary employees, the general director is a public person. It is the manager who represents the interests of the company in contacts with other business entities and regulatory authorities. Therefore, an order to temporarily perform the duties of a director during vacation is not the only thing needed in this case. In addition to the order, a power of attorney is required.

When registering a temporary replacement, you need to remember that the employee replacing an absent employee can perform duties not only for different positions (professions), but also for the same ones.

When combined, an employee can perform additional duties only in another position (profession).

In addition to the order to temporarily perform the duties of the general director, you need to remember about the additional payment for replacing an absent employee.

When making a replacement, first of all, you need to obtain the consent of the person who is supposed to be entrusted with the duties of the absent employee. Since consent must be written, it is drawn up in the form of an additional agreement to the employment contract with the employee.

Therefore, when preparing an order for the temporary performance of duties as a chief accountant (sample), you need to study the employment contract with the replacement employee and decide on additional payment for the replacement. For example, if the job responsibilities of the deputy chief accountant include temporarily replacing his immediate superior, then, according to officials, there is no need to make additional payment for the replacement.

According to this principle, they issue an order to temporarily perform the duties of a personnel officer, for example, and resolve the issue of additional payment.

Our specialists have prepared a sample order especially for our readers.

The temporary absence of an employee from his place can be due to various reasons, for example, a person goes on another vacation.

But there are often cases when this happens due to illness. In such situations, the employer has the right to replace the absent employee with another. This is discussed in detail in our article.

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

Legislative framework

Employment rules, rights and obligations of the parties to an employment contract are regulated by the Labor Code of the Russian Federation.

Temporary workers are those employees who are hired for the period of absence of the main worker or to perform certain work.

The basic rules for hiring and hiring a temporary worker are the same as for main employees. The applicant provides the same package of documents. However, when concluding an employment contract with a temporary employee, there are some peculiarities. Additionally, the Labor Code establishes special benefits and guarantees for them.

In what ways can you assign responsibilities to another person?

An employee’s illness can negatively affect the activities of the entire company as a whole. This is especially true in cases where a specialist involved in very important areas, for example, finance or production technology, is ill. In such situations, it is necessary to find a temporary replacement for the missing one.

In practice, two options for replacing an employee are used:

Substitution. This method involves assigning the responsibilities of an absent specialist to another in full.
Combination. In this case, the substitute performs only some of the functions of the absent person, combining them with his main activity.

Procedure for substitution (temporary transfer)

Replacement, like any other procedure related to labor relations, is implemented in several stages. First, you need to talk with the employee to whom the manager plans to assign the duties of the sick person.

Afterwards all necessary documents are prepared. Finally, the information is sent to the accounting department, which will charge the appropriate payment.

Is it always necessary to document an order?

According to the requirements of current legislation, an employee can be entrusted with performing the functions of an absent specialist. This will require the person's consent. If the parties have reached an agreement, then the manager issues an order of the appropriate nature, which will be the basis for the calculation of additional payment in the future.

But it is not always necessary to issue an order. In some cases, an order will not be required.

Expert opinion

Mikhailov Vladislav Ivanovich

Lawyer with 6 years of experience. Specializes in family law. Knows everything about the law.

This applies to the category of employees who were initially appointed to the position with the condition of possible replacement of a temporarily absent employee, for example, deputy managers. Such a condition must be specified in the contract.

As compensation, the employee is given a cash bonus or additional days to the main vacation.

Preliminary discussion

The employee’s consent to replace a temporarily absent person is one of the conditions for the assignment of additional responsibilities. For this reason, the head of the company will need to discuss this issue with the person. During the conversation, the terms of compensation and the scope of additional responsibilities are discussed.

At the same time, Article 72.2 of the Labor Code of the Russian Federation somewhat expands the powers of the manager, granting the right to assign additional responsibilities to the employee without his consent. This is possible in the case of:

disasters;
industrial accidents;
natural Disasters.

Required documents

The procedure for assigning the duties of a sick employee to another specialist involves the preparation of a number of documents.

Report from the immediate superior of the absentee.
Application for replacement.
Leader's order.

Information about the temporary replacement of a sick person is not entered into the work book . Information is indicated only on the replacement employee’s registration card.

Service memo

The norms of the Labor Code of the Russian Federation do not directly indicate that it is necessary to draw up a memo in connection with an employee’s illness. But in practice, the local rules of most organizations provide for the preparation of such a document.

The note is drawn up in writing and sent to the head of the company. It should indicate the following:

Manager details.
Name of the structural unit.
Information about the sick employee.
The date from which he is missing.

memo on assignment of duties during sick leave
memo on assignment of duties during sick leave

Statement

Another document that can be issued during sick leave is an application for replacement. It is drawn up by an employee who will replace the person who has gone on sick leave and will officially confirm that he is not against performing the duties of a sick colleague.

Like a memo, the application is made in writing. It indicates the start time of sick leave, as well as information about the employee who will temporarily perform duties.

Order to assign duties to another employee

Almost always, an order to assign the duties of a sick specialist to another employee must be issued. The exception is cases when a person is initially a substitute specialist and such a rule is specified in his contract. The order is issued in writing.

The order assigning the duties of a sick specialist to another employee states:

Name of company.
Information about the absent and replacement employee.
Replacement start date.

The order is signed by the head of the company. The document must be reviewed and signed by the replacement employee.

Additional agreement to the TD

An additional agreement to the employment contract may be required. It is issued if a person remains working in the company, but is completely relieved of the duties of his position for the duration of his replacement. The additional agreement, like the employment contract, is drawn up in writing, in two copies.

It indicates the period and name of the position for which the replacement will take place.

Payment Features

The procedure for paying specialists who replace sick people is established by Article 151 of the Labor Code of the Russian Federation. It states that additional payment for the assignment of additional duties must be made without fail. The amount of such payment is established by the parties to the labor relationship, taking into account the volume of workload and the deductions made.

Article 151 of the Labor Code of the Russian Federation. Remuneration for combining professions (positions), expanding service areas, increasing the volume of work or performing the duties of a temporarily absent employee without release from work specified in the employment contract

When combining professions (positions), expanding service areas, increasing the volume of work, or performing the duties of a temporarily absent employee without release from work specified in the employment contract, the employee is paid additionally.

The amount of additional payment is established by agreement of the parties to the employment contract, taking into account the content and (or) volume of additional work (Article 60.2 of this Code).

Appointment as acting for a vacant position

Article current as of: May 2021

Replacing an absent employee According to the law, the appointment of an existing employee to the position of an employee who is on a business trip, on vacation, for treatment, etc., is a transfer. Replacing an absent employee is due to production needs.

The law allows for transfer to another job without the employee’s consent. Since this is not a vacant position, the period of temporary performance of duties for it is strictly limited. It cannot exceed a month during a (calendar) year.

Difficulties in practice As in the case of a vacant position, the performance of duties at the place of work of a temporarily absent employee is possible if the appropriate qualifications are available.

If the replacement of an employee involves a lower level, the written consent of the transferred employee is required.

Fulfillment of duties for a vacant position: order, deadline

The employee is given an additional payment to his salary. Moreover, the specialist is not relieved of his labor function. You will need

— an order form developed by the company’s clerks;
— labor legislation;
— documents of the enterprise;
— seal of the organization;
- staffing;
— employee documents;
- job description of the director.

Instruction 1 The basis for drawing up an order to assign the duties of a director to another employee of the organization is an additional agreement to the employment agreement (contract) with the employee.

It specifies the conditions for replacing the manager. The agreement is certified by the signature of the sole executive body, the seal of the enterprise, as well as the signature of a specialist appointed to perform the labor function of the general director.

Is it legal to appoint an interim official for a vacant position?

According to paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 N 16, if the transfer was made without the written consent of the employee, but he voluntarily began performing other work, such a transfer can be considered legal.

It appears that an employee who is transferred to another job by being appointed acting for a vacant position and subsequently approves this transfer is considered to occupy this position from the first day of such transfer.

The establishment of a certain period when appointing an employee as acting for a vacant position has no legal significance for the implementation of legal regulation of these legal relations.

The temporary appointment of an employee as acting for a vacant position should be considered a permanent transfer of the employee to another job (if the employee agrees with such a transfer) on the basis of Article 72 of the Labor Code of the Russian Federation.

Let us turn to the explanations of the Supreme Court. Resolution No. 16 states that if an employer transferred an employee without his consent, and he, in turn, began working voluntarily, then this action can be recognized as legal.

Therefore, the employee will be considered holding the position from the 1st day of transfer. Establishing a specific deadline for fulfilling duties for a vacant position has no legal significance for regulating labor relations.

Such a temporary appointment of an employee must be considered a permanent transfer to another place (subject to his consent) in accordance with Article 72 of the Labor Code.

Is it legal to appoint an acting official?

Often in practice, situations arise when an employee is appointed acting for a position, including a position that is vacant.

A vacant position is a position available on the employer’s staff list for which an employment contract has not been concluded.

If an employee is absent due to illness, vacation or business trip, the position he occupies is not vacant.

This is important to know: Job responsibilities of a bulldozer driver

The absence of an employee from work caused by such reasons will be called temporary absence of the employee.

Conclusions The fact of voluntarily performing duties in an open position transforms the interaction between the employer and employee from the first day of appointment. Consequently, the position itself ceases to be vacant.

Registration When appointing an employee to a vacant position, the standard hiring or transfer procedure is applied.

Procedure for appointment as acting for a vacant position

It should be remembered that the work of an employee temporarily transferred to another job (including in cases where the temporary transfer was carried out in violation of labor legislation - our situation) is paid for the work performed, but not lower than the average earnings for the previous job (Articles 74, 132 Labor Code of the Russian Federation, p.

2 clarifications of the State Committee for Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions dated December 29, 1965 N 30/39). The average salary of an employee is calculated on the basis of Article 139 of the Labor Code of the Russian Federation in accordance with Decree of the Government of the Russian Federation of April 11, 2003 N 213 “On the specifics of the procedure for calculating average wages.”

Thus, the employer is obliged to calculate the employee’s wages for the new job and the average earnings for the previous job and compare these values.

Combination order

Combining professions or positions is one of the forms of temporarily replacing an absent employee. It is somewhat different from substitution. The features of this procedure are:

Mandatory consent of the employee. It must be in writing.
Clear deadlines for combining. They are established by the manager with the written consent of the employee.
A person has the opportunity to cancel the combination unilaterally. But he will have to notify the manager about this in writing three working days in advance.

Order

The order for combination must be executed , since it is documentary evidence of the mutual agreement of the parties. It is drawn up in writing and delivered to the employee against signature.

Expert opinion

Mikhailov Vladislav Ivanovich

Lawyer with 6 years of experience. Specializes in family law. Knows everything about the law.

In addition to general mandatory information, the order must also contain specific wording. The text must indicate that the specialist will perform the duties of the position in a combination manner.

Additional agreement to TD

An additional agreement to the employment contract will be required if the content of the latter undergoes changes. For example, a person worked for a company for some time, but then he was offered to combine positions.

In this case, you will need to draw up an additional agreement to the contract. It should indicate that the duties will be performed in a combination manner.

Payment nuances

Payment for combination is made according to the same rules as replacement. The amount is determined by agreement of the parties, taking into account the volume of workload and deductions from earnings. In practice, the combination is compensated in the form of a salary supplement.

Combination of positions

If the employer decides to assign additional responsibilities to an employee, then in addition to his own work during the day, he will also have to perform the work of a sick specialist. In this case, for the combination, an amount will be paid in addition to his basic salary, the amount of which is determined by an agreement signed by the parties. Then the employer issues an order to combine positions. The worker must familiarize himself with the order by signing it, after which he can begin to perform new duties. An entry about the combination is not made in the work book.

Is it possible to hire a new employee during this period?

During a person’s illness, the manager has the right to hire another specialist to work. This is not about substitution or combination. In this case, you can conclude a new employment contract. Labor relations with this category of workers have distinctive features.

The basis for hiring a person to replace an absent specialist is the latter’s illness. It gives the manager the right to hire another employee for the position.

Such employment relationships will be temporary. They will be limited only to the illness of the primary specialist.

The applicant himself must meet general criteria - health status and special education, if required for appointment to the position.

How to apply?

The procedure for receiving a primary specialist during illness does not have any distinctive features:

the applicant submits an application to the head of the company, who considers it;
after this, an order for employment is issued and an employment contract is drawn up;
Finally, a corresponding entry is made in the person’s work book.

In any case, the basis for starting the hiring procedure is the application of the applicant. It is drawn up in writing and sent to the head of the organization. It indicates the details of the organization, the employee, and also that the person wishes to enter into an employment contract for the duration of the treatment of the absent specialist.

In case of a positive result, a fixed-term employment contract is concluded with the person under Article 59 of the Labor Code of the Russian Federation. It is drawn up according to the general rules in writing, one copy for each of the parties.

In addition to the mandatory conditions, the contract must contain information about the validity period. In this case, they are conditioned by the occurrence of certain circumstances, namely, the departure of the main employee.

The contract term is not tied to a specific date.

After the conclusion of the contract, an order must be issued, signed by the manager. It indicates all the required details, as well as the fact that the person is hired only for the duration of the illness of the main employee.

The hiring procedure to replace a sick employee involves filling out some personnel documents:

First of all, this is a work book. It must contain a record of employment for the period of illness of the main specialist.
It is also necessary to fill out a personal card for the person.

How to fire?

The day of dismissal will be the date the sick leave ends. The rest of the procedure is standard.

On the day of dismissal, the employee is given a work book and final payment. Funds are transferred against signature or transferred to a bank account.

At the request of the person, other documents must be drawn up, for example, a certificate of salary or time worked.

Current legislation provides for several options for replacing a sick employee - combining, replacing and hiring another person. The manager can choose each of them at his own discretion. The employee himself can also initiate a temporary replacement.

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Fulfilling the duties of a temporarily absent employee is a fairly common practice in the labor sphere. To assign such an obligation to an employee, the employer must issue an appropriate order.

How is an order issued to perform the duties of a temporarily absent employee? How does the work of a subordinate change when he is assigned the responsibility of performing the duties of another employee? What other additional documents need to be prepared to issue an order? Read in this article.

Payment nuances

An example of determining the amount of payment

When replacing an employee during a period of sick leave, additional payment can be calculated in two ways:

additional payment up to the salary for the position being replaced;
making an additional payment expressed in a certain amount to the basic salary.

Let's look at an example of calculating surcharges:

the head of the purchasing department was on sick leave from November 1 to November 30;
during the absence of a person who holds the position of head of a department, all functions performed by him in accordance with the existing instructions for this position were assigned to the manager of the same department;
the salary of the head of the department is 38 thousand rubles;
The manager's salary is around 27 thousand rubles.

Due to the execution of the corresponding order from the employer, the replacement manager must make an additional charge in the amount of the difference between their salaries. Thus, the additional payment that the manager will receive will be: 38,000 – 27,000 = 11,000 rubles, and the total amount received will be equal to the boss’s salary.

Personnel auditor Elena Ponomareva talks about the peculiarities of registering the replacement of an employee during his stay on sick leave in this video:

What does the Law say?

The labor rights and obligations of the employee and the employer are regulated by the norms of the Labor Code of the Russian Federation. Thus, according to Article 60.2 of the Labor Code of the Russian Federation, an employer may assign one of the following forms of additional work to his subordinate :

Combining several positions;

In this case, the employee performs duties for several job positions at once. An employer can assign such additional work to his subordinate if there is currently a vacant position in the organization from which the employee has been fired, but has not yet hired a new one.

So, for example, a journalist can combine the work of an editor until the employer finds a person for this position.

Increasing the volume of work;

An increase in work means an increase in work responsibilities for the position of the employee in which he works. So, for example, a journalist must write at least twelve news stories a day, and after increasing the volume of work, the daily norm increased to fifteen news stories and one photo report.

When assigning additional work to an employee, the employer must “soberly” assess the employee’s capabilities and the likelihood of performing such a volume of work.

Performing the duties of a temporarily absent employee;

Temporary performance of the duties of another employee differs from combining the duties of another employee in that the documented position is not vacant and belongs to an employee who, due to some circumstances, is temporarily absent (vacation, illness, maternity leave, etc.). In this case, the employee who is entrusted with performing the duties of a temporarily absent employee must perform not only his own work (his position), but also someone else’s (partially or completely).

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.

How is the performance of the duties of an absent employee formalized?

Documentation of the performance of the duties of another employee depends on how long the employee will be absent . So:

If the main employee is absent for a long time, then a fixed-term employment contract will be concluded with the employee who will perform his duties . It will indicate a list of duties for temporary performance, as well as the end date of their performance;

Read about the procedure for concluding an employment contract here.

In addition, when duties are temporarily transferred to another employee, an order is issued to perform the duties of the temporarily absent employee . The employee who will perform the duties of the absentee must familiarize himself with the order. The employee can also document his consent;

Expert opinion

Mikhailov Vladislav Ivanovich

Lawyer with 6 years of experience. Specializes in family law. Knows everything about the law.

The order must specify the details of the absent and replacement employees, their position, as well as the amount of additional payment for performing duties in another position.

Read about why you need to record the employee’s consent in the next section.

Difficulties in practice

As in the case of a vacant position, the performance of duties at the place of work of a temporarily absent employee is possible if the appropriate qualifications are available. If the replacement of an employee involves a lower level, the written consent of the transferred employee is required.

The implementation of this rule may cause some problems in practice. The fact is that the Labor Code does not establish criteria for comparing the qualifications of different specialties, positions and professions. This means that the employer must develop such an assessment system himself. Of course, all criteria must be officially established by local acts, and staff must be familiar with them.

The employer must act very carefully, without violating the interests and rights of employees. All decisions must be made exclusively within the framework of the law. Otherwise, a labor dispute may arise.

Why is it necessary to record the employee’s consent?

When drawing up an order to perform the duties of a temporarily absent employee, the employer must familiarize the employee with it, after which he must record his consent on the appropriate document. Such a document can be an application or other document drawn up in any form.

Such a statement will be considered a document confirming the employee’s consent to perform the duties of the absent employee. The validity period of such a document should not exceed one calendar month. If the employee performs duties longer, then, if necessary, the consent can be extended up to twelve months.

Read about the types of agreement here.

The agreement must include the following information:

the name of the position for which you will need to perform duties;
list of duties to be performed;
amount of work;
the time during which the work of the absent employee must be performed;

If at the time of conclusion of the agreement it is not known when the absent employee will return, it is marked “upon the return of the absent employee.”

The conclusion of an additional agreement is a mandatory procedure when temporarily transferring the duties of an absent employee.

Drawing up an order. Sample

After obtaining the employee’s consent and recording this consent in the agreement, a corresponding order is issued on the temporary transfer of the duties of the absent employee to another employee.

The order contains the following information:

The nature of the duties that are temporarily transferred from one employee to another;
The period of time during which they will be executed;
Additional payment for additional work;

After the order is drawn up, it is handed over to the employee for review. After reviewing it, the employee signs it.

Service memo

There are no clear requirements for the preparation of this document, but you should still take the sample presented below as a basis.

With it, drawing up a memo will become easier, which will provide an opportunity to record the decision made by management.

An official memo, which will talk about the transfer of the job responsibilities of an employee going on vacation to another employee replacing him, should reflect the following information:

where the note being drawn up is sent, for example, gene. the director of the company (his full name is indicated);
when it was issued (date);
full name reflecting the content, for example - a memo on the transfer of responsibilities for the vacation period;
for what reason is the employee being replaced (going on vacation);
which employee will temporarily occupy the position (take on job responsibilities) of a vacationer;
who is the writer of the note (his position with signature and initials).

Watch the video. Replacing an employee on vacation:

Payment for the duties of an absent employee

The Labor Code does not say how the duties of a temporarily absent employee should be paid, or what the minimum and maximum amount of additional payment should be.

Since this issue is not regulated in any way by law, the responsibility for resolving it falls on the shoulders of the employer himself.

The amount of the additional payment may depend on the amount of additional work transferred to the employee.

Payment for the performance of additional labor duties can be made in the form of an amount or a percentage of the basic salary.

The employer has the right not to pay for the performance of additional duties only if the employee’s employment contract contains a clause according to which a specific position provides for additional work.

Conclusions: if one of the employees leaves a position for a certain/indefinite period (for example: goes on vacation, takes sick leave, goes on maternity leave), the employer can, during his absence, transfer the responsibility for performing his job duties to another employee for additional pay.

The transfer of duties is recorded in two documents - the corresponding agreement and the order on the performance of the duties of the temporarily absent employee. Without the preparation of these documents, the employee’s additional work will not be paid in any way.

Graduated from the Russian State University of Justice (RSUP). Postgraduate student at the Moscow Institute of Public Administration and Law (MGIUP). Since the beginning of 2007, judicial practice, specialization Labor law and labor disputes.

An order to replace an employee during sick leave is an organizational and administrative document that is drawn up to temporarily transfer the duties of an ill employee to another employee.

Fulfillment of duties for a vacant position: order, deadline

Features of definitions

A vacant position is a vacant position provided for in the staffing table, for which there is no employee. If an employee is absent due to illness or a business trip, then his job is retained. Accordingly, this is no longer a vacant position. The temporary performance of duties under it is regulated by Article 74 of the Labor Code.

Replacing an absent employee

According to the law, the appointment of an existing employee to the position of an employee who is on a business trip, on vacation, for treatment, etc., is a transfer. Replacing an absent employee is due to production needs. The law allows for transfer to another job without the employee’s consent.

Since this is not a vacant position, the period of temporary performance of duties for it is strictly limited. It cannot exceed a month during a (calendar) year.

The implementation of this rule may cause some problems in practice. The fact is that the Labor Code does not establish criteria for comparing the qualifications of different specialties, positions and professions. This means that the employer must develop such an assessment system himself. Of course, all criteria must be officially established by local acts, and staff must be familiar with them.

Combination

An employee can simultaneously perform the duties of his main position and replace an absent employee. In such cases they talk about combination.

It should be taken into account that the employer does not have the right to transfer the employee to another job without his consent and release from his main activity.

If an employee wishes to combine work responsibilities, he must give written permission to do so.

An employee who has agreed to combine, in accordance with Article 151 of the Labor Code, has the right to additional payments. The amount of additional payment is established by agreement of the parties. According to current regulations, additional payments may be received by a full-time deputy of an employee who is temporarily absent from work.

Clarifications of the Supreme Court

Previously, a provision was applied according to which the amount of additional payment was determined as the difference between the official salaries of employees if the replacement employee is not a full-time assistant (deputy) of the absentee.

However, by the decision of the Supreme Court Collegium, this rule was recognized as violating the labor rights of employees. As a result, full-time assistants (deputies), Ch. engineers, etc.

Nuances

If the position of an absent employee is filled by an employee with a release from his main activity, he can count on receiving a salary in an amount no less than the average salary he received at his workplace.

The general rules for determining the average salary are established by the Government in Decree No. 213 of 2003.

Performing duties for a vacant position

It has already been said above that the appointment of an employee to replace an absent employee is a transfer. This situation is possible if the employee is absent temporarily, i.e. he is not dismissed from the enterprise. The courts adhere to the same position.

In particular, you can pay attention to Resolution of the Plenum of the Supreme Court No. 16 of 1992. Paragraph 12 of this document provides an interpretation of the provisions of Article 26 of the Labor Code of the RSFSR. Despite the fact that this Code has not been in force for a long time, many of its rules can be applied today.

Moreover, the wording of Articles 26 of the Labor Code and 74 of the Labor Code in the part regulating the transfer of an employee to the place of a temporarily absent employee at the initiative of the employer is the same.

Accordingly, there is no doubt that the judicial authorities, when considering labor disputes, will take into account the explanations given in the said Resolution.

Paragraph 12 of the document stipulates that the performance of duties in a vacant position for a certain period is possible with the written consent of the employee.

It follows from this that the Supreme Court, in fact, introduced a new type of transfer of employees to another job. Meanwhile, according to labor legislation, performing duties in a vacant position is not allowed.

Consequently, the provision present in the Resolution of the Plenum cannot be applied.

The above means that the order to perform duties for a vacant position can be considered invalid. The local document must use completely different wording. Many leaders, taking advantage of citizens' ignorance and their legal illiteracy, issue clearly illegal orders. It should be remembered that any decision of the employer can be challenged.

Questions about timing

Many ignorant citizens are interested in what period of performance of duties for a vacant position can be established by order of the manager? The Labor Code says nothing about this.

There are no explanations in labor legislation because this form of employee transfer is not provided for at all. Consequently, it is not entirely correct to talk about any (including continuous) period of performance of duties for a vacant position.

In such cases, the employee should be considered to have been transferred permanently. This, in turn, requires the consent of the employee. Let us turn to the explanations of the Supreme Court.

Resolution No. 16 states that if an employer transferred an employee without his consent, and he, in turn, began working voluntarily, then this action can be recognized as legal. Therefore, the employee will be considered holding the position from the 1st day of transfer.

Establishing a specific deadline for fulfilling duties for a vacant position has no legal significance for regulating labor relations. Such a temporary appointment of an employee must be considered a permanent transfer to another place (subject to his consent) in accordance with Article 72 of the Labor Code.

conclusions

The fact of voluntarily fulfilling the duties of an open position transforms the interaction between employer and employee from the first day of appointment. Consequently, the position itself ceases to be vacant.

When an employee is appointed to a vacant position, the standard hiring or transfer procedure is applied. In the first case, the candidate provides all the necessary documents and writes an application. The employer and the citizen enter into an agreement.

Before signing, the candidate must carefully read the contents of the document. The fact is that some employers use incorrect language. Signing the contract means voluntary agreement with the terms of employment.

Often, employers take advantage of employees’ legal illiteracy and appoint them to act in vacant positions. And the employees, in turn, voluntarily agree to this.

In practice, it turns out that employees do both their own and others’ work. Remuneration, in turn, as a rule, in such cases does not correspond to the volume of work activity.

It is quite difficult to challenge such situations, since employers take written consent from employees. Quitting is often the only option.

Nevertheless, if such contradictory situations arise, it is advisable to contact the labor inspectorate.

Essentially, the employee can refuse to perform additional duties. To do this, he needs to contact the employer directly and write a statement.

It is worth saying that many employees consciously agree with the employer’s proposal. This is usually associated with the employer's promises to pay high remuneration. But in reality, the employee does not always receive the expected amount. It is in such situations that problems begin. On the one hand, the employer’s actions are illegal, on the other hand, the employee himself agreed to the conditions.

Conclusion

To avoid problems with any personnel changes, employees should carefully read the documents issued by the employer. If you are unsure of the legality of certain conditions, it is advisable to consult an independent lawyer. Ignorance of the law often leads to very negative consequences.

The employer's orders must use only the language provided for by labor standards. In the Labor Code, the appointment of an employee as acting in a vacant position is prohibited. If it does take place, it should be recognized as a transfer to permanent work. Accordingly, the position will no longer be vacant, and it is impossible to hire another person for it.

The appointment of an employee as acting for a particular position is permitted if the corresponding employee is absent for any reason, but remains on the company’s staff.

Source: https://FB.ru/article/363100/ispolnenie-obyazannostey-po-vakantnoy-doljnosti-prikaz-srok-ispolneniya

Who issues the order and when?

Expert opinion

Mikhailov Vladislav Ivanovich

Lawyer with 6 years of experience. Specializes in family law. Knows everything about the law.

If the performance of the duties of an employee who has gone on sick leave does not tolerate downtime, then the employer involves another person to do this. For this purpose, a replacement is issued (Art.

72.2 of the Labor Code of the Russian Federation) or combination (Article 60.2.

Labor Code of the Russian Federation). In case of replacement, an authorized person (for example, a personnel inspector, secretary) draws up an order for replacement based on an official or memo from the immediate superior of the sick person and a written agreement of the parties.

In the second case, an order is drawn up on combining positions based on the signed consent of the part-time worker. In addition, during sick leave, the employer has the right to enter into a fixed-term employment contract with another employee (Art.

59 of the Labor Code of the Russian Federation), accepting him for this position both as a main position and part-time. In this case, a job application is issued.

Unified or accepted forms within the organization are used. The reason for issuing the order is indicated as justification.

How to assign responsibilities to a temporarily absent employee under the Labor Code of the Russian Federation

The company's management uses a choice of one of the most convenient methods to replace employees who have gone on vacation.

Here is a list of possible methods for replacing employees during their annual leave:

two positions are combined. The replacement employee acquires an additional workload - in addition to the duties provided for by his position, he also performs the work of his colleague who is on vacation;
the use of part-time work. A person is obliged to devote additional, outside of the main schedule, free time to complete the tasks of a vacationer. Usually the employee does this after finishing his work day or on the weekend. Additional payment is provided for such work;
translation on time. The employee is temporarily transferred to the position of a person who has gone on vacation, the performance of whose work tasks is of primary importance. The employee is temporarily relieved of duties in his main position;
temporary engagement of an outside specialist. During the period that the employee is on vacation, the employer engages another specialist (freelance) to perform his duties, with whom he signs a fixed-term contract.

Remember! Whatever method of exiting the situation is chosen in the organization, the fact of replacement is officially documented in accordance with all the rules provided for by law.

For this purpose, special preparation is required. documents, they will be discussed further.

Sample order for recall from vacation

Is it possible to resign of your own free will during vacation? Read here.

What to do if your boss yells and humiliates you, read the link:

How to write an order for a new main employee

If the main employee goes on sick leave for a deliberately long period, then during his absence the organization has the right to hire a new employee in his place under a fixed-term contract. It does not indicate a specific period, but an event on the occasion of which the contract ends - the departure of the main employee.

This condition is indicated in the order for hiring a deputy. The document is drawn up according to the standard T-1 form.

An approximate example of an order for employment under a fixed-term employment contract during sick leave:

Decor

Often, employers take advantage of employees’ legal illiteracy and appoint them to act in vacant positions. And the employees, in turn, voluntarily agree to this. In practice, it turns out that employees do both their own and others’ work. Remuneration, in turn, as a rule, in such cases does not correspond to the volume of work activity. It is quite difficult to challenge such situations, since employers take written consent from employees. Quitting is often the only option.

Nevertheless, if such contradictory situations arise, it is advisable to contact the labor inspectorate.

Essentially, the employee can refuse to perform additional duties. To do this, he needs to contact the employer directly and write a statement.

How to draw up an order for an old employee on temporary transfer

To arrange a full replacement, i.e.

To assign the duties of an absent employee in full to another employee of the organization, you must first obtain his written consent. Based on this, a transfer is prepared in form T-5.

The temporary nature of the transfer and its reason are indicated. Before issuing a replacement order, an additional agreement to the employment contract is concluded.

The employee is relieved of his previous duties.

An approximate sample of an order for replacement during sick leave

How to draw up an order for an old part-time employee

If it is possible to assign to another employee only part of the functions of the person who went on sick leave or to divide them among several employees, then not a full replacement is formalized, but a combination of positions. In this case, the employee performs both his previous duties and the work of the sick person.

To do this, you must obtain his written consent. On its basis, an order and an additional agreement are drawn up.

There is no standard form for it, so it is drawn up in the free form accepted by the organization.

An approximate sample of an order on combining positions during sick leave:

Moscow June 11, 2021

About combining positions

In accordance with Art. 60.2 of the Labor Code of the Russian Federation and on the basis of the sick leave of sales manager Ivanova A.A. dated June 10, 2020, memo from the head of the sales department, A.A. Grinko. dated 06/11/2020 and an additional agreement to the employment contract of Petrova A.A. from 06/11/2020

An organization must carry out its activities in a certain mode in order to have a stable financial position in the market. But in accordance with the Labor Code of the Russian Federation, the company must periodically provide its employees with the vacation time they are entitled to.

The company's management can balance these requirements either by hiring new employees or by assigning some responsibilities to existing ones.

Questions about timing

Many ignorant citizens are interested in what period of performance of duties for a vacant position can be established by order of the manager? The Labor Code says nothing about this. There are no explanations in labor legislation because this form of employee transfer is not provided for at all. Consequently, it is not entirely correct to talk about any (including continuous) period of performance of duties for a vacant position. In such cases, the employee should be considered to have been transferred permanently. This, in turn, requires the consent of the employee. Let us turn to the explanations of the Supreme Court.

Resolution No. 16 states that if an employer transferred an employee without his consent, and he, in turn, began working voluntarily, then this action can be recognized as legal. Therefore, the employee will be considered holding the position from the 1st day of transfer.

In what cases are responsibilities assigned?

The assignment of certain duties represents the performance by an employee for a fee, in addition to his own labor functions, and additional ones for a temporarily absent employee.

The need for this may arise due to periods of illness of the company’s employees, their presence on business trips, vacations, and also if, within the specified time, the administration did not have time to select a candidate for the vacant position.

The possibility of establishing a combination is determined by labor law norms, and there are no restrictions on categories of workers. Only the level of education, if necessary, competence should be taken into account, and the employee involved in this task has all the necessary documentation (licenses, health records, etc.)

The duration of the assignment is established in each specific case, and is determined by the period of absence of the missing employee.

You can also submit a memorandum on your behalf to the head of the department where a temporarily vacant workplace has arisen and attach to it a statement from an employee who has expressed a desire to carry out such a combination.

In any case, if the HR department makes a positive decision, an additional agreement is concluded with this employee to his employment contract and an order is issued on the temporary assignment of duties.

According to current legislation, the order to perform duties must be communicated to the employee within three days. If it is impossible to determine the duration of the combination, it must be carried out until a special order from management about this.

How to assign the duties of an employee going on maternity leave to another employee

The state initially provides all the necessary conditions to protect the future generation, creates everything possible to respect the interests of the mother and her labor rights, starting from the moment of pregnancy.

The Labor Code of the Russian Federation (Article 255) defines the right of the expectant mother to count on maintaining her job and position during pregnancy and after it.

Shortly before giving birth (70 days), when the woman receives a certificate of her incapacity for work at the medical center. institution (including antenatal clinic), she can go on maternity leave. Subsequently, such leave is extended, since the woman needs to restore her health after childbirth.

The duration of such a vacation period varies and primarily depends on the number of children born and the presence of complications. Taking these factors into account, 140 to 194 days are given for recovery.

Note! As soon as the sick leave expires, the employee who gave birth to a child has the right to take additional leave to care for her baby until he turns 3 years old (Article 256 of the Labor Code of the Russian Federation).

When an employee goes on maternity leave, it is impossible to know with certainty how long she will be away from work, because circumstances always develop differently, and under certain conditions plans change.

For this reason, upon preparation of an order for an employee to go on maternity leave before giving birth, management has the right to transfer her responsibilities to her other colleagues. As an option, a fixed-term contract is drawn up - it is signed either with an outside specialist or with a staff member.

The norm of Article 60.2 of the Labor Code of the Russian Federation is used - an internal order on combination is issued for an employee working on staff.

At the same time, management must understand that in this case the scope of the employee’s responsibilities will significantly increase, and this means an increase in the amount of work due to the fulfillment of the duties of a colleague who has gone on maternity leave.

Labor legislation requires consent from the employee who is involved in such additional work. According to the increase in workload, salary calculations are made - the employee is paid for the combination.

How to correctly draw up an order assigning duties

Expert opinion

Mikhailov Vladislav Ivanovich

Lawyer with 6 years of experience. Specializes in family law. Knows everything about the law.

There is no single set form for creating this document. It can be made in any form on the company’s letterhead, or developed independently in the style of other personnel orders of the company.

At the top of the form you need to indicate the name of the organization, its tax identification number and checkpoint codes, and the address of the activity.

Then comes the word “Order”, next to which its date of compilation and serial number are indicated.

Below on a new line is the title of the document. Here you can write the general phrase “On temporary performance of duties,” or specifically indicate for what position he was created. The following is the reason why this document was issued.

Then comes the word “I order”, after which the steps that need to be taken to execute the order are outlined point by point:

Which employee (his position and full name) is assigned new responsibilities, what functions and for what exact period of time;
To what extent will it be necessary to perform these duties;
The amount of remuneration for performing the above work;
Who will control the implementation of this order?

Below, after the word “Bases”, you need to indicate on the basis of which the duties are assigned. This is usually an additional agreement to the employment contract.

The order is signed by the head of the company. After this, in the section “We have read the order,” the persons listed in the document leave their personal signatures.

Results

The order assigning duties during vacation does not have a legally established form and is drawn up in any form. In addition to the mandatory details of any internal document (number and date), the replacement order must provide for the timing of replacement and clarify additional responsibilities of the employee. The order is completed with the signatures of the manager and employee.

Sources

https://nalog-nalog.ru/otpusk_i_vremya_otdyha/prikaz_na_zamewenie_na_vremya_otpuska_blank_i_obrazec/
https://zakonguru.com/trudovoe/otpusk/zameshenije-sotrudnika.html
https://o-kadrah.ru/dokumenty/obrazets-prikaza-o-vremennom-perevode
https://moyaidea.ru/zameshhenie-sotrudnika-na-vremya-bolnichnogo.html
https://TrudGid.ru/otpusk/prikaz-o-zameshhenii-na-vremja-otpuska-obrazec-2021-goda.html
https://clubtk.ru/forms/bolnichnie/prikaz-o-zameshchenii-na-vremya-bolnichnogo
https://urexpert.online/trudovoe-pravo/bolnichnye/zameschenie-rabotnika.html
https://assistentus.ru/forma/prikaz-o-zameshchenii-vremenno-otsutstvuyushchego-rabotnika/
https://gosuchetnik.ru/shablony-i-formy/instruktsiya-sostavlyaem-prikaz-o-zameshchenii-na-vremya-bolnichnogo