Transfer of an employee to another, higher position and probationary period

24.06.2019

178

3 min.

In order to find responsible employees, the manager sets a trial period. During this time, you can verify the competence of the new employee. However, when an already employed person transfers, problems arise with this type of checks. The correctness of the legal registration of this period and the legality of all actions during personnel movements are discussed in this article.

Probation period according to the Labor Code of the Russian Federation

The terms of the employment contract may provide for testing the employee to determine suitability for the position held. Such a check is not considered mandatory, therefore, if it is not specified in the agreement, the applicant is hired without a probationary period (Article 57 of the Labor Code of the Russian Federation).

The test is characterized by some features for the parties to the labor relationship:

Worker	Employer
Receives the right to resign at his own request with 3 days of service	Receives an additional basis for dismissal - an unsatisfactory test result, of which the employee is notified 3 days before the termination of the contract (Article 71 of the Labor Code of the Russian Federation). The opinion of the trade union is not taken into account, severance pay is not paid

The maximum duration of the inspection is established by Art. 70 Labor Code of the Russian Federation:

for a fixed-term employment contract of up to 2 months, there is no probationary period;
for a fixed-term employment contract from 2 to 6 months - a trial period of no more than 2 weeks;
for an employment contract of 6 months - no more than 3 months, and for managers and chief accountants, their deputies - up to 6 months.

The probationary period does not include periods of employee absence from work (for example, due to illness). This means that the employee’s failure to appear postpones the end of the test to a later date.

At the end of the compliance check period, the employee is recognized as having passed it, and termination of the employment contract is allowed only on general grounds.

Is it possible to change the probationary period? Read here.

Cases where the test is not installed

Article 70 of the Labor Code of the Russian Federation also prescribes a number of cases when it is simply impossible to establish a test. And if it is specified in the employment agreement, then it can easily be challenged in court.

Such cases include:

When employees were elected through competition. Only officially registered and held competitions for filling individual positions are taken into account.
Pregnant women.
Workers whose children have not yet reached one and a half years of age.
Minor employees.
Applicants who have a diploma of education from a technical school or university, if they are employed by profession within a year after completing their studies.
Those who were chosen as a result of an organized vote, provided that the work will be paid, and not on a purely formal basis.
Persons transferred from one organization to another, with documentation of the transfer.
Temporary workers who signed an agreement for a period of less than two months.

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Cases of exceptions to the rules beyond those established in the Labor Code may be additionally specified in the collective agreement.

Probationary period when transferring to another employer

A probationary period is established only upon hiring (Article 70 of the Labor Code of the Russian Federation). That is, the employer has the right to order an inspection only upon concluding an employment contract. Some categories of workers are not subject to testing, including persons invited to work as a transfer from another employer as agreed between the employers.

It turns out that an employee transferred from another employer is not given a new test, despite signing a new employment contract. This follows from the direct prohibition of Art. 70 Labor Code of the Russian Federation.

How to transfer employees to another employer - see here.

Normative base

The current legislation in the field of labor relations, which regulates the transfer of an employee within an organization to another position, consists of several parts, namely:

Labor Code , which directly regulates the legal issues of transfer, including the timing of such transfer. Specific regulation is carried out using articles 72.1 and 72.2 of this regulatory act;
rules for drawing up work books in terms of regulating the issue of recording the transfer in this document when making a transfer, including one that is temporary. In addition, it is these Rules that talk about what to do if, for some reason, entries were made in the work book that should not be there.

Probationary period when transferring to another position with one employer

With written consent, the employee may be transferred to a new position. Transfer means a change in labor function with a possible change in the structural unit (Article 72.1 of the Labor Code of the Russian Federation). In this case, an additional agreement is concluded with the employee, making adjustments to the current employment contract. Considering that a new employment contract is not concluded, assigning a test to an employee during an internal transfer is also not allowed.

A new verification of the subordinate's suitability in this case will cause an increase in the probationary period. The following people spoke out about the inadmissibility of this:

Rostrud in letters dated 03/02/2011 No. 520-6-1, No. 1081-6-1 dated 04/25/2011;
Segezha City Court Rep. Karelia in the Decision of 01.12.2009.

Useful information from ConsultantPlus
Is the probationary period still valid if the employee was transferred to another job before its expiration? In this case, in our opinion, the test condition actually loses force. The purpose of the test is to check whether the employee complies with the assigned work (Part 1 of Article 70 of the Labor Code of the Russian Federation). Since the test condition is established exclusively at the time of hiring, the employee can be tested for compliance only with the work that was assigned when concluding the employment contract.

Entry into the work book of a temporary worker

Where is it written?

Typically, temporary work is performed by employees for their absent colleagues . The wording can be completely different, the main thing is the fact that the employee replaces someone for a certain period.

The entry is made in the work book of the temporary worker in compliance with all the rules for making entries in the work book.

Many people mistakenly believe that there is a separate column for entering data for temporary workers. This is all wrong. In fact, a temporary worker should see that a record of his work , albeit temporary, is included in the column of general data about the work performed .

Record wording

A temporary job entry should look like this: “Temporarily hired for such and such a position.” As usual, we do not forget that the HR department employee must have an order that allows the employee to take up the position temporarily.

Responsibility of the employer in case of unlawful assignment of a test

An employee who has been placed on a probationary period in violation of the provisions of the Labor Code of the Russian Federation has the right to apply to the State Labor Inspectorate. In this case, the employer faces sanctions under Art. 5.27 Code of Administrative Offenses of the Russian Federation:

Violation of the Labor Code of the Russian Federation	Officials	IP	Organizations
Primary	Warning or fine 1,000-5,000 rubles.	Fine 1,000-5,000 rubles.	Fine 30,000 -50,000 rubles.
Repeated	Fine 10,000-20,000 rubles. or disqualification from 1 year to 3 years	Fine 10,000-20,000 rubles.	Fine 50,000-70,000 rubles.

See the GIT inspection plan for 2021 here.

What to do if an employee’s suitability for a new position needs to be checked?

The provision for verification during transfer cannot be fixed in an agreement, even if the employee agrees to it. If the test is nevertheless stated in the agreement, such a clause is not enforced as it worsens the employee’s position by virtue of Art. 9 Labor Code of the Russian Federation.

If an employer needs to make sure a subordinate’s suitability for a new position, he has the right to use one of the options:

issue a temporary transfer (Article 72.2 of the Labor Code of the Russian Federation), and if the employee successfully performs new duties, a permanent transfer. All this is possible only with the consent of the employee;
dismiss the subordinate by agreement of the parties, and then rehire him with the establishment of a probationary period.

What if the transfer is required before the end of the trial period?

With the transfer, the labor function changes: verification was assigned in relation to the first, but in relation to the second it is no longer allowed.

It all depends on the nature of the translation:

Permanent (Article 72.1 of the Labor Code of the Russian Federation)

Temporary (Article 72.2 of the Labor Code of the Russian Federation)

A permanent transfer ends the probationary period for the previous position automatically.
An employee is transferred to a new position without testing

A temporary transfer preserves the condition of probation for the previous position, since the employee will return to it, and the original terms of the employment agreement will become valid again.
It is important to issue a temporary transfer for a period not exceeding the verification period. Otherwise, when returning to their previous position, the employee will be recognized as having passed the test.
If the subordinate copes with the new responsibilities, the employer arranges a permanent transfer. The test ends and is considered successfully completed.

Is it possible to transfer an employee to another position without his consent? Read the material.

Registration of temporary transfer

So, if an employer wants to replace a temporarily absent employee and transfer another to his place, he sends the latter a proposal for a temporary transfer. The offer can also be made orally, since there are no special requirements for it. And if the employee agrees, an agreement to the employment contract is drawn up in writing in two copies.

If the transfer deadline is known in advance, it must be indicated in the agreement. However, if an employee is transferred to replace a temporarily absent employee, it is better to define the period as “until N returns to work.” When concluding a transfer agreement, fix in it the basis for the transfer, its duration, the employee’s new responsibilities, as well as other conditions that differ from those established by the employment contract.

Here is a sample of such an agreement.

Additional Agreement No. 2
to the employment contract dated May 23, 2015 No. 23/05-td

Yaroslavl May 13, 2021

Municipal budgetary institution "Department of Improvement" (MBU "Department of Improvement"), hereinafter referred to as the "Employer", represented by the director Viktor Ivanovich Kolesnikov, acting on the basis of the Charter, on the one hand, and Marina Vladimirovna Kopeikina, hereinafter referred to as the "Employee", on the other hand, collectively referred to as the “Parties”, have entered into this additional agreement to the employment contract dated May 23, 2015 No. 23/05-td as follows:

1. Due to the temporary absence due to temporary disability of the chief accountant, the Employee, with his consent, from the position of “accountant” is temporarily transferred to the position of “chief accountant”.

2. Transfer period: from May 14, 2021 until L.V. Babkina returns to work.

3. During the specified period, the Employee performs work in accordance with the job description for the above position.

4. For the period of temporary transfer, the employee is set the official salary provided for in the staffing table for the position of chief accountant in the amount of 70,000 rubles. per month, as well as bonuses, additional payments and bonuses provided for in the Regulations on remuneration and bonuses.

5. In all other respects that are not provided for in this additional agreement, the terms of the employment contract remain in effect.

6. This additional agreement is drawn up in two copies, one for each Party, and comes into force from the moment of signing.

EMPLOYER: EMPLOYEE:

Director

Kolesnikov/V. I. Kolesnikov/Kopeikina/M. V. Kopeikina/

13.05.2019 13.05.2019

A copy of the additional agreement has been received. 05/13/2019, Kopeikina

Based on the agreement, a transfer order is drawn up in the unified form T-5 (approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1 “On approval of unified forms of primary accounting documentation for labor accounting and payment”). In the line “Type of transfer” it is necessary to indicate that the transfer is temporary, and the employee must be familiarized with the order against signature.

Then you should make an entry about the transfer in section. III personal card “Hiring and transfers to another job” (f. T-2).

But an entry about a temporary transfer is not made in the work book (part 4 of article 66 of the Labor Code of the Russian Federation and clause 4 of the Rules for maintaining and storing work books [1]).

If an employee is transferred to another job or position, he must be familiarized with the job description and other local regulations relevant to the performance of work for this position, and, possibly, undergo safety training and conclude a liability agreement.

Source:

Ayudar Info

Heading:

Labor Relations

transfer of an employee appointment to a position temporary transfer labor relations

E. V. Davydova, expert of the magazine Remuneration in a state (municipal) institution: accounting and taxation

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