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.
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.
Replacing a temporarily absent employee during illness
It is impossible and unlawful to entrust a third-party employee to perform someone else’s duties without his consent. Therefore, in case of illness of the main personnel, the temporary transfer to his position of another subject must also be formalized by order. Even in conditions where the main employee was absent for several hours due to leaving for a hospital or medical center, the order must be published. In the event of emergency incidents occurring during a given period of time due to the fault of an employee, the guilty employee will not be fairly punished unless his presence at a specific production site is documented.
The order should be drawn up in the standard version:
- General information about the company, its director and temporarily absent entity. It is also necessary to indicate the order number and the date of its execution.
- The main part, which indicates information about the replacement subject, his main position, as well as the vacancy to which he will be temporarily transferred. You should also indicate the frequency of such transfer.
- Further in the text, it is necessary to determine the document that serves as the basis for the replacement. In the case of incapacity for work of the main personnel, such paper will be a specific sick leave sheet, a memo or a statement from the employee himself.
- The final paragraph, in which the signatures of the parties must be affixed.
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.
Replacing a temporarily absent employee during vacation
If an employee goes on annual leave, such temporary replacement does not pose a problem for the company. However, if a woman takes leave under Labor and Employment, then such a period can drag on for 1.5 or even 3 years with the legal retention of the position for a specific employee.
Therefore, as practice shows, for such periods, a third party is most often hired to work under a temporary contract. However, no less common are variants of part-time work, when a full-time employee takes on additional workload during the absence of a colleague.
Also, the relevant part of the order specifies the basis for replacing or combining vacancies, which is the document assigning leave to the employee.
In circumstances when the head of the company goes on vacation, he can distribute his responsibilities between two or more subordinates by issuing an appropriate order for this. Most often, a manager's responsibilities are distributed between his immediate deputies and the chief accountant.
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.
Acting duties: appointment, work, payment
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luckyea77 ( luckyea77
) wrote, 2014-05-23 17:56:00 luckyea77
luckyea77
2014-05-23 17:56:00 Categories: In previous articles on our website, we once talked about the legal status of the head and chief accountant of an organization. But managers and chief accountants of a company are people too: they can go on vacation, get sick, or quit, in the end.
At the same time, the legal entity must continue to function as usual - documents must be signed with counterparties, employees must be hired and fired, etc. After all, if an agreement with a client is concluded by a person who does not have legal authority, or such a person fires an employee, expect trouble. Yes, documents are often signed simply “and.” O.
General Director" or by analogy "acting chief accountant" But this is fundamentally wrong, including in the case of the chief accountant - what will the tax inspector say to such a signature when submitting reports? General rules for fulfilling the duties of an absent employee
In accordance with Article 60.
2 of the Labor Code of the Russian Federation, the performance of the duties of a temporarily absent employee may be assigned to another employee without release from work specified in his employment contract.
To do this, the employee is entrusted with performing, during the established duration of the working day (shift), along with the work specified in the employment contract, additional work in a different or the same profession (position) for additional pay. It is important to emphasize that for performing additional work, the employee must be paid additionally, taking into account the content and volume of work.
Additional responsibilities can be assigned to an employee only with his written consent; the employee can refuse them.
Such additional work in another profession (position) can be carried out by combining professions (positions), and if additional work is provided for the same profession (position), then you can simply expand the service area or increase the volume of work.
To fulfill the duties of an absent employee, an additional agreement is concluded to the employment contract, which must clearly indicate the job responsibilities that the employee is entrusted with. The agreement must also stipulate the period during which the employee will perform additional work.
If the employee does not agree with such conditions, he has every right to refuse. However, the term can be changed at any time - both by the employee and the employer - it is enough to notify the other party about this in writing no later than three working days day.
Please note that such appointment of an employee as acting for a vacant position is not allowed, with the exception of hiring the head of the organization. This exception is quite logical - as we have already noted, someone must represent the organization. The acting manager is approved by a higher management body - for example, a meeting of the founders of an LLC.
If a higher management body, in accordance with the organization’s charter, also appoints other employees (deputy managers, chief accountant, etc.), then they can perform duties in a vacant position for no more than a month, during which the manager must submit documents to the higher management body for his appointment to the position, and this body will consider the issue and report to the manager about the results. This rule was established by Explanations of the State Labor Committee of the USSR No. 30 and the Secretariat of the All-Union Central Council of Trade Unions No. 39 dated December 29, 1965 No. 30/39 “On the procedure for paying temporary substitution” (hereinafter referred to as the Explanation).
Example 1. I worked as the chief specialist of the department. After the head of the department left, I was offered to become the head. I refused, but the director still issued the order. I don't want to be a boss. How long can this continue, and can I refuse to perform my duties as head of the department?
Firstly, one order from the head of the organization is not enough - you should have concluded an additional agreement to the employment contract. If you had signed an additional agreement, then the deadline would have been agreed upon, and your opinion should have been taken into account.
Secondly, you can refuse to perform your duties at any time by notifying management about this in writing three days in advance.
Example 2. I have the following situation: the general director quits. The founders tell me to write an application for his position while maintaining my responsibilities (I am the head of the department).
But at the same time they are going to pay only 50%. Can they force me to write such a statement and why should I pay only 50% extra if I have two positions?
No one can force you to fulfill someone else’s duties - you can always refuse.
Moreover, you do not need to write any application - the founders themselves must make a decision on your appointment (both permanent and temporary) and offer it to you if you agree to sign an additional agreement on performing the duties of a director.
As for the salary, it is established in this agreement. And again, with your consent.
Performing duties in a different manner
If there is no employee who can perform both his own and other people’s duties, then the issue is resolved by transferring the employee - including a temporary one - for a period of up to one year or indefinitely (Article 72.2 of the Labor Code of the Russian Federation).
With this option, this employee is released from performing his job duties in his old position.
If, for example, in one structural unit there are more employees or the workload is less than in another, then an employee can simply be moved to a similar workplace in order to replace another one in accordance with Article 72.1 of the Labor Code of the Russian Federation.
Another option is to conclude a fixed-term employment contract to perform the duties of an absent employee, who retains his place of work. You can also conclude a separate open-ended contract (internal part-time work), taking into account the restrictions provided for by the Labor Code of the Russian Federation.
Registration of performance of duties
We started the conversation by indicating signatures like “and” in documents. O. General Director" is not possible. However, in accordance with paragraph 3.22 of GOST R 6.30-2003 “Unified Documentation Systems”, the “Signature” requisite includes: the title of the position of the person who signed the document, personal signature and its transcript (initials, surname).
At the same time, such a position as “acting the duties of someone” is not provided for by law, therefore the employee who is entrusted with performing the duties of a manager, when signing the document, indicates the position that he actually occupies according to the staffing table.
The question immediately arises: how can a dismissal order or some other document be signed by, say, the head of the legal department? But the execution of duties must be complete - with the issuance of an order, an additional agreement, and the issuance of a power of attorney on behalf of the organization.
These documents will confirm his authority to sign documents. It is worth emphasizing here that these authorities must be stated in the documents very clearly - if they are not indicated, then, therefore, they have not been transferred. Take the same dismissal of employees: the acting person does not have such a right written in the power of attorney, which means he does not have this right.
It is not necessary to conclude an additional agreement if the performance of the duties of a manager is provided for in the employee’s job description, since it is a local regulatory legal act that defines the functions (responsibilities), rights and responsibilities of an employee holding a certain position.
For example, the job description of a deputy manager states that in the absence of the manager himself, he performs his duties. It is also necessary to accurately indicate the situations when it is necessary to perform duties: vacation, temporary disability, etc.
However, the transferred powers must again be clearly stated; the order for the enterprise must record the fact of the manager’s absence, the amount of additional payment for the performance of duties and the period for this performance.
You also shouldn’t forget about a power of attorney - in some situations it can be useful, especially if the procedure for replacing a manager is not specified in the charter of a legal entity. But if there is nothing in the job description about the performance of duties or it does not indicate all the powers that should be transferred, then an additional agreement is necessary.
An entry in the work book is made only when the employee is permanently transferred or a separate employment contract (fixed-term or open-ended) is concluded; in other cases, the fact of fulfillment of duties is not reflected in the work book.
Example 3. Please tell me, if the head of an organization entrusts me with the performance of his duties during his business trip, can I request that the corresponding entry be made in the work book? And can I refuse to complete them before making this entry?
No, when performing temporary duties, an entry is not made in the work book, unless a separate employment contract is concluded with you (internal part-time work).
And you can refuse to perform your duties in any case.
Example 4.
How to appoint an acting director if the director unexpectedly falls ill and cannot issue an order to appoint an acting director?
In this case, the issue of appointing an acting director of the company should be decided by the founders of the company.
If there is only one participant, he himself will appoint an acting director for the period of temporary incapacity for work of the latter.
If there are more participants in the company, then the resolution of this issue may be delayed, because it is necessary to hold an extraordinary meeting of participants. Maxim Goryachev
Source
labor legislation, jurisprudence
Source: https://luckyea77.livejournal.com/210177.html
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.
Order on assignment of duties in connection with a vacant position
At the same time, it is necessary to distinguish an increase in the volume of work from the temporary performance of duties in another position (profession, specialty), when the employee’s work function partially (or completely) changes. Such work cannot be recognized as an increase in the volume of work.
With a temporary increase in the volume of work, the employee, due to the intensity of work, increases the volume of output (services provided, work performed, etc.), and the intensive work itself is temporary.
To formalize an increase in the scope of work, it is necessary to conclude an additional agreement to the employment contract. Such an agreement determines not only the content, volume, amount of additional payment for the established increase, but also the period of future work (Articles 72, 151 of the Labor Code of the Russian Federation).
Therefore, it is necessary to draw up an additional agreement to the employment contract every time there is a need to increase the employee’s workload.
Temporary assignment of duties for a vacant position
Important The combination procedure is defined in Article 60.2 of the Labor Code of the Russian Federation. Attention, the legislation does not contain a ban on establishing a combination of jobs for part-time workers. Thus, the combination can be established for a part-time worker in a general manner.
The exception is when there is a general ban on combining positions.
Popular questions It should be remembered that a part-time worker will perform part-time work for the period of time specified in his employment contract.
And the work time of a part-time worker can be no more than four hours a day and no more than half of the monthly standard working time for one month (another accounting period) (Article 284 of the Labor Code of the Russian Federation).
How to formalize the assignment of responsibilities for a vacant civil service position?
In any organization, people go on vacation, sick leave, go on business trips or for training. Therefore, there is often a need to replace one specialist with another.
Which replacement method should the employer choose: combining positions, increasing the volume of work or temporary replacement? How to formalize the completion of such work and establish additional payment for it? Is it possible not to pay for it at all? Step 1.
Deciding on the method of temporary performance of duties The Labor Code provides for three ways for an employee to perform additional work without being released from the main one: combining positions (professions), increasing the volume of work (expanding service areas), as well as performing the duties of a temporarily absent employee (Art.
60.2 of the Labor Code of the Russian Federation).
Fulfillment of duties for a vacant position: order, deadline
Fulfilling the duties of a temporarily absent employee is the performance by an employee of additional work in the same profession or in another (part two of Article 60.2 of the Labor Code of the Russian Federation).
In this case, it is assumed that the replaced employee continues to be registered in the organization, but for some reason is not able to fulfill his duties.
In other words, temporary replacement is allowed only for occupied positions and is not allowed for vacant ones. So, an engineer can temporarily perform the duties of a supply manager while he is on sick leave.
Attention! If the position that the employee will temporarily fill involves the direct maintenance of material assets, enter into an agreement with him on full financial responsibility (Article 244
Labor Code of the Russian Federation, resolution of the Ministry of Labor of Russia dated December 31, 2002.
In connection with a vacant position, assign the performance of duties to an order
For example: RUSSIAN FEDERATION LIMITED LIABILITY COMPANY “VETER” ORDER “06” March 2015 No. 17-P Samara city On assigning the duties of a mechanic Due to the absence of the position of chief mechanic in the staffing table of the enterprise, I order:
- Assign the duties of the chief mechanic to the chief engineer Timofeev
A.V. - I reserve control over the execution of this order.
Director of Veter LLC Karpov I.
I. The order has been read by: Chief Engineer Timofeev A.V. Date Signature If a certain additional payment is established for the performance of duties, then this fact is reflected in the order as a separate paragraph.
Responsibilities of a cashier If there is no cashier on staff, then the order may look like this.
But there are often situations when there is a vacant position, but management is in no hurry to hire an individual employee for it.
Performing duties for a vacant position
Details in the materials of the Personnel System: From the answer: How to register a combination of professions (positions) Under what conditions can an employee combine professions or positions in an organization? The combination of professions (positions) is characterized by the following:
- the employee must agree to the combination;
- The period during which the employee will combine other work is established by agreement of the parties. For example, before a newcomer is found for a vacant position;
- An employee must combine different positions (professions) in the same organization. Otherwise, it will be an external part-time job;
- The employee will perform both his main and his additional work within the established working hours - as a rule, eight hours a day. Otherwise it will be an internal part-time job.
This is stated in articles 151 and 60.2 of the Labor Code of the Russian Federation.
Sample order on assignment of duties
It must indicate: the name of the position for which additional work will be performed, its content and volume; the amount of additional payment for combining positions (increasing the volume of work, temporary replacement); the period during which the employee will perform additional work.
If the combination of professions is due to the presence of a vacant position in the organization, then the term of work in the additional agreement can be formulated as follows: “The employee is entrusted with performing the duties of an accountant in the order of combining positions with an additional payment of 40 percent of the salary for the combined position from April 7, 2014 until the closure vacant position."
Order on assignment of duties: subtleties of the issue
There are three completely different options:
- You can temporarily transfer one of your colleagues to the position of a currently absent employee.
- Assign his duties to another employee, and he must also do his job.
- Invite someone from outside.
He will temporarily replace the main employee.
The choice must be made by the management of the enterprise, and only after that an order on the assignment of responsibilities must be drawn up.
Only two factors can influence the decision: labor resources (availability of employees who can perform additional functions) and material capabilities (make partial or full payment).
Vote:
Angelina Russia, Ufa #8 [275892] December 9, 2011, 14:40 Thank you very much for your answers... I will prepare the following option: “On the assignment of additional work in order to combine positions” Based on Art. 60.2, art.
Decor
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.
The employee performs the duties of a manager
The procedure for replacing the head of an organization can be prescribed in the organization’s charter, and the condition for replacing the head is included in the employment contract and job description of the replacement employee who will perform the duties of the head during his absence. In this case, it is enough for the director to issue an appropriate order and issue a power of attorney to represent the interests of the organization before third parties (Article 185 of the Civil Code of the Russian Federation).
If the director being replaced falls ill and cannot issue the appropriate order, the issue of appointing an acting director must be decided by the company's participants, since it is the company's participants who appoint the acting director for the period of his temporary incapacity. In this case, it is necessary to hold an extraordinary meeting of the company’s participants (Article 55 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies”, Article 35 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”).
A.A. Berdinskikh State Labor Inspectorate in the Kirov region.
