Dismissal upon refusal to transfer, be it to a new structural unit or position, must be justified and have its reasons. According to the law, an employee is able to refuse responsibilities and conditions not specified in the employment contract. But first, you should seriously think about what is better for you: quitting or transferring.
As a matter of fact, this is your right, which is clearly stated in the Labor Code and other acts and laws. But under certain conditions, the employer also has the right to dismiss an employee who refuses the proposed transfer.
Significant changes to the employment contract
Legal obligation - It is mandatory to obtain the employee's personal approval if the employment contract is to be fundamentally changed. Significant changes should be understood as clauses of the contract that oblige the citizen to perform new duties for him that were not previously performed by him.
You cannot change an employment contract without the consent of the employee
Such obligations may arise during:
- change of position due to staff reduction or change in organizational structure;
- the need to transfer to another position due to medical contraindications;
- changes in position on the citizen’s own initiative;
- transfer to another area of activity after the dismissal of an employee (or several employees) performing labor functions there;
- due to dramatic changes in working conditions after the introduction of new technologies and automation of production processes into organizations.
In order to continue to fulfill labor obligations and receive monetary remuneration for this, the employee must agree with the administration on the updated terms of the existing labor agreement (annex to the existing one). Only in this way does the employer have the right to allow him to perform labor functions.
Remember, the transfer to the updated operating conditions may be permanent or temporary. When this is carried out outside the list of conditions specified in the law that allows the employer to do this without the employee’s consent, his written consent must be present.
Dismissal for medical reasons
In this case, it is correct to formalize not a transfer, but a dismissal under Article 77 of the Labor Code of the Russian Federation with further employment in a new organization.
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.
Reasons and types of translation
The need for an employee to change his field of activity within the company is a forced measure caused by the peculiarities of ensuring the production process or the need to resolve the personal needs (physiological characteristics) of a citizen. The transfer can be permanent or temporary. The most common reasons prompting the administration to take such steps are the following:
- the employee independently wishes to change the type of activity;
- a conflict has arisen between an employee and his employer regarding violation of labor discipline;
- upon completion of the medical examination, the employee is further prohibited from performing previously assigned functional duties;
- the need to move with your family to another city or region;
- difficulties encountered at the enterprise in terms of filling positions in a certain division due to the dismissal of employees working there;
- the need to temporarily reduce the workload due to the employee’s pregnancy or immediately after the birth of the baby;
- if during the course of his/her work activity it is discovered that the employee lacks the required level of qualifications that is necessary for the full performance of the duties assigned to him/her;
- when a new organizational structure is approved at the enterprise or measures are taken to reduce the number of employees;
- if an emergency situation arises (accidents, natural disasters, the need to urgently ensure the operation of equipment and units at continuously operating enterprises).
Moving and Translating: What's the Difference?
Today in legislation you can find two concepts relating to the revision of a worker’s employment agreement:
- relocation (usually implemented within the company);
- transfer (can be carried out to another organization).
Displacement, unlike translation, is temporary
It should be noted that they are not interchangeable words. These are concepts that are different in nature and functional content and have different legal consequences.
Relocation should be understood as the need for an employee to temporarily perform work functions for a certain period of time. It is important to understand that when there is continuation of work in the same specialty, and using the same tools and equipment, but in another workshop or department, the employer may not ask the employee’s consent to perform such functions.
Here an order is simply issued, which the employee is introduced to under his signature. Refusal or ignorance of such an order is a violation of labor discipline with corresponding disciplinary consequences.
It's another matter if translation is used. Typically, the written consent of the employee is required here (usually this is his statement), formalized by a personnel order. Can be temporary or permanent.
Here the employee will have to perform labor functions that are radically or significantly different from those that were previously assigned to him. When a worker does not agree to an offer, the administration is even authorized to terminate further employment relations with him. But here it will be necessary to undergo a certain procedure.
Remember, depending on the task at hand, the employer can apply either relocation or transfer to his employee. The main thing is not to consider these concepts the same and to prepare the documents correctly.
You are transferred to another job
The work day started unexpectedly. In the morning, the boss called us into his office and said that today we can forget about our points, we will have to deal with others and at another workplace. “I’m transferring you temporarily to another job.”
Transfer to another job is a change in the labor function of the 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, as well as transfer to work in another location along with employer. If, as a result of the transfer, the terms of the employment contract change, the employer is obliged to obtain the employee’s consent, since it is prohibited to transfer or relocate the employee to a job that is contraindicated for him for health reasons.
The translation is carried out by agreement of the parties. Based on their duration, transfers can be divided into permanent and temporary.
In accordance with Part 3 of Art. 72.1 of the Labor Code of the Russian Federation does not require the consent of an employee to move him from the same employer to another workplace, to another structural unit located in the same area, to assign him work on another mechanism or unit, if this does not entail a change in the working conditions determined by the parties agreement.
Example.
The organization's economist, with his consent, was temporarily transferred to the position of accountant. The transfer period specified in the agreement of the parties was three months. However, after three months, the employee continued to work as an accountant and did not demand to be given his previous job. In this case, the transfer should be considered permanent. Thus, without the consent of the employee, the employer cannot transfer him again to the position of economist.
If an employee is transferred to work in another location, then the employer, in accordance with Art. 169 of the Labor Code of the Russian Federation is obliged to compensate him for:
— expenses for moving the employee, his family members and transporting property (except for cases where the employer provides the employee with appropriate means of transportation);
- expenses for settling into a new place of residence.
Transfer of an employee to another job with the same employer is permitted without the employee’s consent only in the following cases (parts 2 and 3 of Article 72.2 of the Labor Code of the Russian Federation):
- disasters of a natural or man-made nature, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic and in any exceptional cases threatening the life or normal living conditions of the entire population or part of it, if necessary, to prevent these cases or eliminate their consequences;
- downtime (temporary suspension of work for reasons of economic, technological, technical or organizational nature), the need to prevent destruction or damage to property or to replace a temporarily absent employee, if the downtime or the need to prevent destruction or damage to property or to replace a temporarily absent employee is caused by the emergency circumstances specified above , and the need to prevent them or eliminate their consequences.
The transfer period cannot be more than one month. Even if the circumstances specified in parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation, continue after one month, the employer must provide the employee with the same job for at least one day.
An employee can be transferred without his consent only to a job of corresponding or higher qualifications. Transfer to a job of lower qualification requires the consent of the employee.
An employee’s work during a temporary mandatory transfer is paid based on the salary for the corresponding job, but not lower than the average earnings for the previous job (Part 4 of Article 72.2 of the Labor Code of the Russian Federation).
It is mandatory for the employer to transfer the employee to another job in accordance with a medical report (Article 73 of the Labor Code of the Russian Federation) (transfer for health reasons) and transfer to another job in case of suspension of the employee’s special right (license, right to drive a vehicle, right to carrying weapons, other special rights).
A medical report on the need to transfer to another job is issued by attending physicians of the state, municipal and private healthcare systems (see Article 49 of the Fundamentals of the Legislation of the Russian Federation on the protection of the health of citizens dated July 22, 1993 N 5487-1).
If an employee needs a temporary transfer to another job in accordance with a medical report, then the employer is obliged to transfer him to another job that is not contraindicated for this employee due to health reasons. Transfer is permitted with the consent of the employee.
The employee is paid according to the work performed (Part 1 of Article 132 of the Labor Code of the Russian Federation). However, if the new job is paid lower, then for a certain time after the transfer the employee retains the average earnings for the previous job.
If the employee does not agree to the transfer, then the employer is obliged to remove the employee from work (Part 1 of Article 76 of the Labor Code of the Russian Federation). In case of dismissal from work, the employee is not paid wages, but he retains his place of work for the entire duration of the transfer. However, the Labor Code of the Russian Federation, other federal laws, agreements, a collective agreement or an employment contract may provide for the payment of wages to a suspended employee.
If, according to a medical report, the employee should be temporarily transferred to another job for a period of more than four months, or if the employer does not have a job suitable for the employee, then the employee is dismissed under clause 8 of Art. 77 Labor Code of the Russian Federation.
An employee’s refusal to be transferred to another job should be recorded in writing.
The employer is obliged to offer the employee any available vacant position or work that the employee can perform taking into account his state of health. At the same time, positions and jobs that correspond to the employee’s qualifications are always offered first, and then all the others.
An employee’s refusal to be transferred to another job should be recorded in writing.
Suspension of a special right for a period of more than 2 months or deprivation of a special right is grounds for dismissal of an employee, clause 9 of Art. 83 Labor Code of the Russian Federation.
A special procedure for transfer in accordance with a medical report is established for heads of organizations (branches, representative offices or other separate structural units), their deputies and chief accountants. These employees are either transferred to another job with their consent, or dismissed under clause 8 of Art. 77 Labor Code of the Russian Federation. During the period of suspension from work, 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.
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Features of temporary transfer
Typically, full-time employees are transferred to other areas of work temporarily, for the purpose of a one-time solution to an emergency situation that has arisen. It is important to note that the legislator has provided for the possibility of transferring citizens to areas of work that are different from existing ones, without the need to obtain their consent. This is allowed:
- During an industrial accident or disaster. It doesn’t matter here whether it is man-made or natural. The employee is involved in eliminating the consequences. The involved citizen can be obliged to perform even tasks that are not typical for him.
- When an accident occurred at work.
- In case of fire, flood, natural disaster, the need to eliminate the consequences of an earthquake, fight hunger, and various infectious diseases.
When is a transfer possible without consent?
The legislator determined that before transferring an employee to perform work functions to another area of work, it is necessary to obtain written confirmation. If this document is available, the procedure for regulatory registration of such actions is launched, unless the employer is forced by circumstances to act differently.
An emergency situation may serve as a basis for transferring an employee without his consent
But sometimes in the course of work, emergency situations arise, after which the decision to change the place of activity has to be made literally “on the fly.” Usually this is the need to eliminate some consequences of accidents, catastrophes, natural disasters, and other non-standard or emergency situations. The procedure for attracting a citizen to work that is not typical for him will be as follows:
An order is issued to transfer employees to perform functions that are not typical for them. Here it is important to outline the reasons provided for by law that allow the employer to do this, indicate the place of future work, the responsible manager, the beginning and end of such engagement, and how this period of work will be paid. It is also necessary to list all involved employees by name.
The order must be agreed upon with the trade union, or prompt notification of such a document must be ensured.
The employees listed in the order familiarize themselves with the document against signature. The employee is considered to have been duly notified of the need to perform other work after signing the order.
Dismissal if you refuse to move to another location
Dismissal upon refusal of transfer
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.
