Author of the article: Lina Smirnova Last modified: January 2021 16405
Sometimes employees are faced with circumstances where they are forced to perform duties that are different from their previous work functions, regardless of their wishes. If such a transfer to another position without the employee’s consent is carried out by the manager in violation of the laws, it can lead to his punishment in the form of fines and even legal liability.
Let's consider what is meant by transfer in the Labor Code of the Russian Federation, what types there are, in what situations the transfer is carried out legally, and when it is a violation of the employee’s labor rights.
When is it legal?
The employer does not always have the right to resort to such a step. This is done in several cases:
- a need provoked by circumstances at work;
- replacing another employee (for example, someone who is sick);
- accidents and catastrophes, natural disasters;
- epidemics;
- other incidents involving a threat to human life;
- change of company activity.
Cases when the consent of a subordinate is not necessary are specifically stipulated by law (Article 72.2 of the Labor Code of the Russian Federation). This is usually associated with emergency situations, when the health and lives of people are involved, or there is a threat of damage to valuable property. But sometimes the reason lies in production downtime.
In this case, the subordinate’s consent is not asked only when moving him to another position within the same company, with the same level of earnings . Otherwise, a citizen will be able to defend his rights by contacting the labor inspectorate or even the court.
Salaries do not have to be equal; they can be lower. The lower limit of income in a new place is the average monthly income at your previous job .
Forced transfer does not apply to employees under eighteen years of age or pregnant women.
Under no circumstances, management has the right to insist that the transferee perform activities that are contraindicated based on the results of a medical report.
Acceptable deadlines
If something extraordinary happens, the head of the institution sends the subordinate to another point, with worse working conditions, for no more than thirty days.
Translation for production needs
Of course, any enterprise puts its own interests first. When a production need arises, which represents any sudden threat to the work process, all efforts are rushed to eliminate the problem. Resources are represented not only by material support, but also by the transfer of employees to eliminate the situation that has arisen. Consent is not taken into account, since such an option is an emergency state of the enterprise, and the transfer is an attempt to stay afloat. This decision is entirely logical, because without eliminating the problem, the organization may cease to exist, and then the worker will automatically become unemployed.
Such emergency situations include: accidents, the threat of damage to the property of an enterprise, natural disasters (fire, earthquake, flood, landslide, epidemic, outbreak of especially dangerous infections), disasters of various origins (for example, man-made) and in general any situations that pose a danger to a large number of people. At the same time, the nature of the work performed may differ from the employment contract, but in this case the transfer will be legally legal. Confirms his decree issued by the manager, which indicates the reason for the change of place.
To eliminate problems in production, so to speak, production needs, an employee is appointed to a new position for a period of up to 1 month.
Also, transfers to other departments of the enterprise do not require consent: if the employer remains the same, the working conditions are identical to the previous ones and the employee’s functions do not differ from those specified in the employment contract, consent is not required either in writing or orally.
What if the employee refuses?
A logical question arises: can an employee say “no” in response to such an initiative from the boss?
Labor legislation does not give the worker such an opportunity, and if, after being transferred, he does not return to a new place, he will be subject to disciplinary action or dismissed .
It is possible to refuse further fulfillment of the obligation, but only after advance written notification to the employer with a mandatory indication of what served as the reason. Simple reluctance or poor relations with the new team, the degree of distance from home and transport difficulties in the eyes of the law are not a valid reason . It’s another matter if the earnings turned out to be lower than even the average income at the previous place, or the conditions threaten health or life.
In other cases, stubbornness is fraught with the cessation of further cooperation (Article 77 of the Labor Code of the Russian Federation). In this case, the deceased is entitled to compensation payments equivalent to the average income for two weeks (Article 178 of the Labor Code of the Russian Federation). But only in cases where the employee’s refusal is not in the form of a violation, for example, he simply did not like the change of place and he simply did not come to work. Then the head of the company regards his behavior as truancy and, accordingly, the truant cannot expect any compensation (Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of April 17, 2004).
If the refusal is legal and there are no violations in the employee’s behavior, the employer does not have the right to apply disciplinary measures for refusal of obligations.
From changing work schedule
The employer notifies the subordinate that he or she will switch to a different schedule, for example from a five-day week to a floating day off, no less than two months before the intended transfer .
If changes to the schedule are undesirable for the candidate, he has the right to refuse. In this case, the employer offers other positions, if any, in the company. If there are none or the subordinate does not like any option, cooperation is terminated (Article 77 of the Labor Code of the Russian Federation).
From moving to another area
A distinction should be made between moving to a new employer and moving to another locality or division. In the first case, consent is not needed only in emergency situations. If we are talking about moving to another branch, for example from the central to the regional, then Art. 72 of the Labor Code of the Russian Federation, which means that the company does not have the right to make such a decision alone. You can refuse, but this in turn will entail a break in cooperation, again by agreement of the parties. (Article 77 of the Labor Code of the Russian Federation)
Sample refusal
The candidate’s reluctance to comply with the director’s order must be documented in writing, with approximately the following wording: “Please do not transfer me to work in the poultry house, since they use the chlorine-containing compound “Chloramine” for disinfection and this will harm my health. I have a persistent allergy to chlorine-containing drugs, which is confirmed by a certificate from an allergist. Sincerely, Nikiforova Maria Ivanovna (signature) September 23, 2021.” The director puts the visa “I don’t object” and appoints another candidate.
Word of the law
The Labor Code of the Russian Federation considers in detail issues of labor relations, in particular, the issue of transferring an employee to another position:
- The first paragraph 72 of Article 72 of the Labor Code of the Russian Federation speaks of the need for mutual consent of the parties to the employment contract to change its clauses, which is required when transferring an employee.
- Article 71 of the Labor Code of the Russian Federation reveals the concept of transferring an employee to another job. In addition, it indicates the possibility of transferring an employee to another organization on his initiative or with his official consent.
- The possibility of temporary transfer of an employee is considered in Article 72.3 of the Labor Code of the Russian Federation. Here are cases that involve transfer on a temporary basis, as well as the possible conversion of temporary changes into permanent ones.
- Article 73 of the Labor Code of the Russian Federation speaks of medical indications as a reason for transfer to another job.
Decor
The procedure for forcibly moving a citizen to another place consists of several steps:
- decision-making;
- notification to the candidate;
- issuing an order and familiarizing the citizen with it;
- exit of the transferred person to a new place.
The general director always familiarizes his subordinate with the order. Even if he is not going to sign it. The absence of a signature , if the forced movement is legal, is not of fundamental importance .
Documentation
If a subordinate leaves his previous place, the following papers are drawn up:
- proposal from the director;
- additional agreement to the current contract;
- order of the general director T-5 or T-5a;
- worker's personal card (T-2).
As for the work book, temporary care is not reflected in it in any way (Resolution of the Government of the Russian Federation No. 225 of April 16, 2003).
Order
The employer issues an order in form T-5 (Resolution of the State Statistics Committee of the Russian Federation No. 1 of January 5, 2004). The document is drawn up on a standard sheet of A4 paper (if you have a letterhead, use it) in the first person and must contain:
- date and place of compilation;
- full name of the company;
- Personnel Number;
- OKUD, OKPO details;
- the nature of the transfer – temporary or permanent;
- data being translatedgo, position, department;
- to what place, where does it go, in connection with what (begins with the word “translate”)
- references to legislation;
- signatures.
The paper is drawn up in a single copy and issued for review against signature. In a new office or department or workshop, a citizen must be introduced to the job description, safety standards and other internal documents (Article 225 of the Labor Code of the Russian Federation).
Procedure for transfer without employee consent
The need to temporarily transfer an employee without obtaining his consent usually arises in emergency situations when it is necessary to act quickly. The employer will urgently have to:
- issue an order to the enterprise indicating the reason for the transfer and its period (start and end dates);
- prepare and attach to the order documents and certificates confirming the accuracy of the grounds for the employee’s transfer;
- familiarize the employee with the order against his personal signature;
- Unlike a permanent transfer, there is no need to make an entry in the work book about a temporary transfer without the employee’s consent (Article 66 of the Labor Code of the Russian Federation);
- The order is transferred to the OK of the enterprise, where it is stored for 50 years.
Transfer of a military man
What a forced transition to a new duty station looks like depends on two factors: whether we are talking about a conscript or a person serving under a contract. Both of them have the right to move in the following cases:
- business necessity;
- admission to study in a military field, the same applies to expulsion;
- deterioration of health ascertained by a medical report;
- promotion;
- organizational and staffing activities.
As for situations when it is necessary to ask the conscript’s consent, there are almost none. Contract soldiers have more freedom in this regard, but it is enough for the command to utter the cherished words “need of service” and there will be no need for any explanations. The person being transferred has no right to refuse.
When you can't translate
Not a single serviceman, whether he is a contract soldier or serving on conscription, can be sent to another point if:
- he is arrested or serving a sentence ;
- members of his household will not be able to live with him in the new place ;
- the health status of close dependent relatives requires constant presence, and they are not placed under the care of the state.
This list is exhaustive. There is a widespread belief that valid reasons include admission to a civilian university, a wife who is about to give birth, or a wife who has just given birth, but this is wrong.
The procedure for dealing with servicemen is the same: first the command makes a decision, then an order for transfer is issued. After this, the transferred person is given a maximum of thirty days to complete all the cases that were in the previous place . After this period, he leaves for a new place. If both spouses are serving in a family, then the departure of one automatically means the transfer of the other to a new place.
So, it turns out that an entrepreneur can still forcibly transfer a personnel to a new place.
However, this is possible on strictly defined grounds and in compliance with all rules, including those related to registration. All participants in labor relations are required to know them in order to avoid omissions, conflicts, arbitrariness and, as a result, proceedings in the courtroom. In contact with
What to do if a transfer is refused
It is quite difficult to change the status of land. Various legal difficulties may arise. A refusal can be obtained in the following cases:
- filing a petition by a person who does not have the right to perform this action;
- presence of errors in the text of the petition;
- submission of documents containing false information;
- not providing a complete package of documents;
- appeals to the wrong authority;
- receiving negative results after an environmental assessment;
- the occurrence of circumstances that impede or make the transfer procedure impossible;
- extending the ban to this category of land.
Often, representatives of authorized bodies have to accept requests for the transfer of agricultural lands to the status of plots for individual housing construction, despite their location outside the boundaries of populated areas. They refuse precisely because of the remoteness of the sites and the lack of opportunity to carry out communications.
