This term refers to the movement of an employee to another position, to another department or location. The transfer can be carried out on an ongoing basis or for a certain period of time. It can only be carried out with the consent of the person, except for cases specifically specified in the Labor Code of the Russian Federation.
Temporary transfer to a vacant position
Transfers for a certain period of time are regulated by Article 72.2 of the Labor Code of the Russian Federation. It says that by agreement between the parties to the labor relationship, the employee can be transferred to another job, but only for a period not exceeding 12 months.
The translation procedure is as follows:
- Drawing up a written agreement, supplementing the existing employment contract, that the person will be transferred to another position temporarily;
- Registration of a transfer order. As a rule, a unified form T-5 is used for this.
If, after the end of the transfer period, the employee remains at the new job by default, that is, neither party has expressed a desire to return him to his previous position, then such a transfer becomes permanent. To do this, you need to prepare the following documents:
- Another addition to the employment contract, in the form of an agreement that the temporary transfer is changed to permanent;
- An order stating a change in the time of transfer.
Note! If the transfer was made to a vacant position with the wording “until the vacancy is filled,” the 1-year period is still valid. Therefore, in order not to contradict the provisions of Article 72.2, the employee must be transferred to his previous position after a year, and then formalize another transfer.
If a temporary worker is transferred to another temporary job, the registration procedure will not change. The only thing that the HR department must take into account is that the duration of the transfer should not exceed the termination period of the main contract, otherwise the employee may become permanent, that is, his contract is recognized as unlimited.
Temporary transfer of an employee to replace an absent employee
The case when a temporary transfer is carried out to a staff unit that already has an employee, but is temporarily absent, is stipulated separately in the legislation. In this case, the transfer period is limited not to 1 year, but to the time of absence of the main employee. Accordingly, it may exceed the specified 12 months. For example, you can make a temporary transfer for three years if the employee went on maternity leave.
The registration procedure will be the same as in the previous case.
Note! In the case of transfer to the place of an absent employee, it is better not to put a specific date as the end date, but to indicate the event that will mark the end of the transfer period. For example: “The transfer is carried out from October 1, 2017 until the end of the period of incapacity for work and the return to work of manager A.V. Yesenina.”
Temporary transfer to another job without the employee’s consent
The Labor Code of the Russian Federation provides a list of factors and conditions under which an employee can be transferred without his consent:
- in the event of natural and man-made disasters, as well as other factors that pose a risk to the life and health of surrounding people;
- in case of downtime, as well as to eliminate the risk of damage and loss of property, if these circumstances were caused by the factors given above.
Such a transfer can be carried out for a period not exceeding 1 month.
Is a temporary transfer included in the work book?
In accordance with Article 66 of the Labor Code, a temporary transfer is not included in the list of information that must be reflected in the work book.
This means that when transferring for a certain period of time, no entry is made in the work book.
But if, after the expiration of the transfer period, not one of the parties expressed a desire for the employee to return to his previous place of work, then the transfer from temporary turns into permanent, and, therefore, it must be reflected in the work book.
In this case, the actual date is indicated when the employee began performing new duties. That is, the recording will actually be made later than the specified date. But at the same time, one more point needs to be taken into account - the details of which order should be entered into the labor report? The legislation does not regulate this issue in any way. But in practice, it is recommended to enter two orders in column 4:
- order for temporary transfer (the date indicated in the document will coincide with the date of transfer);
- an order recognizing the transfer as permanent (this order will contain the date when the transfer becomes permanent).
If an entry has already been made in the work record about a temporary transfer that has not become permanent, then it is corrected in the same way as all incorrect entries in the work record book.
Conclusion
Temporary transfer involves transferring an employee to perform another job for a certain period. After completion of this period, he returns to his previous job, or the transfer becomes permanent. The transfer time should not exceed 1 year, except in cases where the transfer is made to a temporarily vacant position.
The employer's procedure for temporary transfer of an employee directly depends on who initiated it. We will tell you how to arrange such a transfer in two cases - by agreement of the parties and without the consent of the employee. Find out how to stop staff changes.
In the article:
Download current documents on the topic:
How to arrange a temporary transfer of an employee to replace an absent employee
If the employer does not have extraordinary circumstances, an employee can be briefly transferred to another job only with his written consent (Article 72.2 of the Labor Code of the Russian Federation). To do this, you need to conclude an additional agreement to the current TD (employment contract). This is important because when an employee moves to another position for a short time, the following changes:
- job position;
- salary size.
When executing a short-term employee transfer to replace an absent employee, it is impossible to predict the exact end date of the event. Therefore, a condition is included in the additional agreement that serves as the basis for ending the temporary personnel reshuffle. In this case, such a basis will be the return to work of the main employee.
The additional agreement is drawn up taking into account the general rules:
- The document is drawn up in two copies
- The amended clauses of the TD are included in it, indicating that the remaining terms of the TD remain unchanged.
- The agreement is signed by the employee and the employer. The service in the Personnel System will help you arrange a temporary transfer in various cases. Get started with master of temporary transfer registration right now.
A temporary transfer to another job by agreement of the parties is formalized not only by drawing up an additional agreement, but also by an order. It states the fact of temporary personnel changes within the organization. In addition to the order, which can be issued using the unified form No. T-5 or No. T-5A, as well as on forms developed by the company independently, you will need to make an entry in Section III of the employee’s personal card.
Additional agreement. Temporary transfer of an employee to another position
Information about the transfer is reflected in the work book only if it is carried out permanently. There is no need to make a temporary entry. If in the future the employee needs to confirm the fact of non-permanent work, he can request in writing from the employer a certificate or a copy of the temporary transfer order.
how to temporarily transfer an employee to another job by agreement of the parties. From the article you will learn about the procedure and the features of documentation.
Temporary transfer to another position: distribution of responsibilities among several employees
The labor legislation of the Russian Federation does not oblige employers to resolve issues of replacing absent employees in a single standard way. If the scope of the absent employee’s job responsibilities is extensive, and the personnel situation allows his functions to be distributed among several employees, this can be done. In this case, we are not talking about translation. The transfer of an employee or several employees is also not possible. Everyone will perform their job responsibilities plus additional work that was previously performed by a temporarily absent specialist.
This is formalized through an additional agreement to the employment contract on the temporary replacement of an absent employee. When expanding responsibilities, the following is drawn up:
- an additional agreement, specifying the scope of new responsibilities and the amount of additional payment;
- an order that gives employees additional powers.
There is no need to enter information about the additional amount of work into employees’ personal cards and work books.
When is a temporary transfer to another job possible without the employee’s consent?
You can briefly transfer an employee to another job without his consent only if it is necessary to prevent or eliminate the consequences:
- man-made and natural disasters;
- accidents;
- earthquakes, floods, fires;
- epidemics, epizootics, famine;
- other cases that threaten normal living conditions or the lives of a large part of the population.
Additionally, two conditions must be met:
- All of these cases must be caused only by emergency circumstances: disasters, accidents, fire, floods, and so on.
- The job to which the employee transfers must correspond to his skill level or be more qualified.
If the latter condition is not met, written consent must be obtained, either by an entry on the notice provided by the employer or by a separate statement.
Types of transfers to another job under the Labor Code of the Russian Federation
Such transfers are divided into temporary and permanent. Temporary ones are made by agreement of the parties or without the consent of the employee.
The duration of performance of job duties during a short-term transfer to another job is limited by the Labor Code of the Russian Federation to one month if the transfer is made without the consent of the employee.
It is also possible to transfer while the main employee is also temporarily performing other duties.
★ The HR System expert will tell you how to arrange a temporary transfer of an employee to another job. From the article you will learn about the procedure, about transferring to another position by agreement of the parties and without the consent of the employee, the specifics of drawing up an order and documents on the basis of which the transfer is terminated.
How to justify the temporary transfer of an employee to another position b
If a dispute arises about the legality of transferring an employee without his consent, the employer must prepare documents that can be used to confirm the existence of extraordinary circumstances that caused such a transfer (clause 17 of the resolution of the Plenum of the Supreme Court dated March 17, 2004 No. 2).
The following documents are used as such documents:
- reports from emergency services specialists;
- acts on the occurrence of emergency incidents;
- order from the head of the organization on measures taken to eliminate the consequences of the accident, etc.
How to terminate the temporary transfer of an employee to another job: registration procedure
After the transfer period expires, the employer issues an order on the basis of which the employee is given his previous job. The order is drawn up in any form, since a unified form for such a document has not been approved. If, at the end of the transfer period, the employee’s previous job was not provided, and he does not insist on it and continues to work, the terms of the executed agreement lose force, the temporary position becomes permanent (Part 1 of Article 72.2 of the Labor Code of the Russian Federation).
This situation must be documented by concluding a new additional agreement. After which the employer issues an order, the personnel officer makes an entry in the employee’s personal card and work book.
Order recognizing a temporary transfer as permanent
What is the difference between the movement of an employee according to the Labor Code of the Russian Federation?
Moving an employee to another workplace is not considered a transfer if the conditions of the labor contract do not change and the labor function remains the same. The exception is such situations when the TD specifies a workplace, when it changes, the terms of the TD change, and an additional agreement is drawn up. So, for example, a permanent transfer is possible only with the written consent of the employee. The movement is carried out without obtaining such consent.
An employee can be transferred to another job for a short time only with his written consent, unless there is an emergency. An additional agreement is concluded to the current employment contract. The reason is that when moving to another position, the employee’s job position and salary temporarily changes.
In the event of emergency situations, the employer has the right to transfer the employee without his consent for some time.
TEMPORARY TRANSFER: SAMPLE STEP-BY-STEP PROCEDURE (GENERAL)
According to Part 1 of Art. 72.2 Labor Code of the Russian Federation:
“By agreement of the parties, concluded in writing, an employee may be temporarily transferred to another job with the same employer for a period of up to one year, and in the case where such a transfer is carried out to replace a temporarily absent employee, whose position is retained in accordance with the law work - until this employee goes to work."
1. One of the parties (employee or employer) comes up with the initiative to temporarily transfer the employee to another job.
The initiative can be “oral”. And the parties to the negotiations come to an agreement on a temporary transfer.
The idea of a temporary transfer may also be in writing, but this is not necessary.
1.1. If the employee himself comes up with the initiative to temporarily transfer to another job, then he can write an application for his temporary transfer to another job (position). The employee’s application is registered in the manner established by the employer, for example, in the employee applications register.
1.2. If the employer comes up with the initiative to temporarily transfer an employee to another job, then he can make a written offer to the employee for a temporary transfer to another job (position). The proposal is made in two copies. The proposal is registered in the manner established by the employer, for example, in the register of notifications and proposals to employees. One copy of it is given to the employee. On the second copy (the copy that remains with the employer), the employee writes that he has read the proposal, received one copy of it, puts the date of receipt, and signs. If the employee agrees to the transfer, then he can put an “agreement note” on the employer’s proposal or write a statement of consent to the transfer. The employee’s application is registered in the manner established by the employer, for example, in the employee applications register.
2. Familiarization of the employee with his job description(for a new position), other local regulatory legal acts directly related to his new work activity.
The procedure for familiarizing yourself with local regulations is not defined by the code; in practice, there are various options:
Familiarization sheets are attached to the local regulatory act, on which employees put signatures confirming familiarization and the dates of familiarization (such sheets are stitched together with the local regulatory act),
Maintaining logs of familiarization with local regulations, in which employees put signatures confirming familiarization and indicate the dates of familiarization.
A certain procedure for familiarizing yourself with local regulations may be enshrined in the act itself. Find out your employer's procedures for familiarizing employees with local regulations before you begin introducing them to the employee.
3. Signing a written translation agreement between the employee and the employer (to the employment contract) and, if there are grounds, signing an agreement on full financial responsibility.
The agreement and contract are drawn up in two copies (one for each party), unless more copies are provided for a given employer.
4. Registration of the transfer agreement and an agreement on full financial liability in the manner established by the employer. For example, an agreement can be registered in the register of agreements for employment contracts with employees, and an agreement on full financial liability - in the journal of registration of agreements on full financial liability with employees.
5. Handing the employee his copy of the transfer agreement.
The employee’s receipt of a copy of the agreement should be confirmed by the employee’s signature on the copy of the agreement, which remains in the custody of the employer. We recommend that you put the phrase “I have received a copy of the agreement” before your signature.
If an agreement on full financial responsibility is signed with the employee, then one copy of it is also given to the employee.
6. Issuance of an order (instruction) on the transfer of an employee to another job.
7. Registration of this order (instruction) in the order established by the employer, for example, in the log of orders (instructions).
8. Familiarization of the employee with the order (instruction) against signature.
Notes
* Information about temporary transfer is not entered into the employee’s work book. Therefore, it is recommended to resolve with the employee the issue of issuing him a copy of the temporary transfer order, duly certified, so that the employee can in the future, if necessary, confirm that he performed this work.
** The issue of entering information about a temporary transfer into a personal card is controversial in practice.
*** Upon expiration of the temporary transfer period, an order may be issued to terminate the temporary transfer period.
- Book
Sometimes an employee has to be transferred to another job for some time. Such a need can be caused by a number of reasons - medical indications, production needs, etc. However, not everything is so simple with the transfer procedure. For example, some people confuse a transfer with a transfer and do not formalize it properly or underpay wages when transferring to a lower-paid position. You will learn in what cases temporary transfers are possible, how to distinguish them from transfers, in what amount to pay the temporarily transferred employee and how to document all this by reading the article.
Instead of a preface
According to Art. 72.1 Labor Code of the Russian Federation transfer means a permanent or temporary change in the labor function of the employee and (or) the structural unit in which the employee works, while continuing to work for the same employer, as well as transfer to work in another location together with the employer.Please note that a change in a structural unit will be considered a transfer only if its name was fixed in the employment contract (for example, in the form of the phrase “The employee is hired as an accountant in the financial and economic department”).
Since today we are considering temporary transfers, it is worth noting that they can be carried out either with or without the employee’s consent.
Temporary transfer with the consent of the employee
To carry out a temporary transfer, an agreement must be concluded in writing. The employer first offers the employee a vacant position or a position where an absent employee needs to be replaced. Then, if agreed, an additional agreement is concluded on a temporary transfer to another job, position or to another structural unit.And first of all, let's talk about the timing of such a transfer. A temporary transfer to another job with the same employer is possible for a period of up to one year, and in the case where such a transfer is carried out to replace a temporarily absent employee, who, in accordance with the law, retains his place of work - until this employee returns to work.
Note that due to Part 4 Art. 72.1 Labor Code of the Russian Federation It is prohibited to transfer or relocate an employee to work that is contraindicated for him due to health reasons. That is, if there are no medical contraindications and the employee agrees, then he can be temporarily transferred to work even with harmful or dangerous working conditions.
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.
Let's talk separately about the wording of the transfer deadline. If a temporary transfer is carried out to a vacant position, you can determine a specific end date for the transfer, and if to replace a temporarily absent employee, it is better to indicate the condition upon the occurrence of which the employee returns to his workplace, because the absent employee may return to work later (for example, when extending vacation or certificate of incapacity for work). For the latter case, the wording may be as follows: “This additional agreement is valid until the date of the leading specialist E. D. Gulkina’s return to work from maternity leave.”
Based on the agreement signed by the parties, a transfer order is issued in the unified form T-5 1] (T-5a). It is important to indicate in the “Type of transfer” line that the transfer is temporary. The employee must be familiarized with such an order against signature.
The next step in registering a temporary transfer will be to make an entry about it in section. III personal card “Hiring and transfers to another job” (form T-2 or T-2 GS (MS)).
But an entry about a temporary transfer is not made in the work book. This rule has been established Part 4 Art. 66 Labor Code of the Russian Federation And clause 4 of the Rules for maintaining and storing work books, according to which only entries about permanent transfers are made in the work book.
note
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 this work. In addition, you may need to conduct safety training or enter into a liability agreement.
Note that the employer should control the end of the temporary transfer, since due to Part 1 Art. 72.2 Labor Code of the Russian Federation, if at the end of the transfer period the employee’s previous job is not provided, and he did not demand its provision and continues to work, then the condition on the temporary nature of the transfer loses force and the transfer is considered permanent. In this regard, the question arises: is it necessary to somehow formalize the provision of the previous job? Labor legislation does not contain requirements for processing the return of an employee. In the meantime, we recommend doing this. Usually, for this purpose, an order (instruction) is issued to terminate the performance of duties in a temporary position and return to the performance of duties in the main position. He might look like this.
State Autonomous Institution of the Arkhangelsk Region
"Sports Training Center"
Arkhangelsk
Due to the expiration of the temporary transfer period by agreement of the parties
I ORDER:
1. Olga Viktorovna Pshenitsyna, who temporarily, by agreement of the parties dated 04/04/2014 No. 2, held the position of deputy head of the sports teams support department, to begin work stipulated by the employment contract dated 06/12/2010 No. 10-06, as the chief specialist of the sports teams support department teams, since August 21, 2014
2. The accounting department shall accrue O. V. Pshenitsyna’s wages in accordance with the staffing schedule for the position of chief specialist in the department for supporting sports teams.
Director Zlakov I. I. Zlakov
I have read the order. Pshenitsyna, 08/20/2014
It may happen that the main employee quits or the temporarily filled position is completely vacant, and the management of the organization, and even the temporary employee himself, is not against making the temporary transfer permanent. In this case, it is necessary to conclude another additional agreement, indicating in it that the temporary transfer made under the agreement from such and such a date is considered permanent. Based on the agreement signed by the parties, it is necessary to issue an order in any form, which also stipulates that the condition on the transfer period has become invalid.
Note that there is a nuance in this situation. When transforming a temporary transfer into a permanent one, it is necessary to make an entry in the work book. Moreover, the date of transfer will be considered the first day of the temporary transfer.
Example
By agreement of the parties, from February 3, 2014, the employee of the State Budgetary Institution was transferred to the position of foreman of the road maintenance section for six months. After this period, the parties signed an agreement that the transfer is considered permanent. How to make an entry in the work book?
| №
records | date | Information about hiring, transfer to another permanent job, qualifications, dismissal (indicating reasons and reference to the article, clause of the law) | Name, date and number of the document on the basis of which the entry was made | ||
| number | month | year | |||
| 1 | 2 | 3 | 4 | ||
| … | … | … | … | … | … |
| State budgetary institution | |||||
| Vladimir region "Management | |||||
| highways" | |||||
| 8 | 09 | 12 | 2012 | Hired as a leader | Order dated 12/09/2012 |
| specialist expert. | № 22 | ||||
| 9 | 03 | 02 | 2014 | Transferred to the position of chief | Order dated 02/03/2014 |
| work acceptance department | № 16* | ||||
| for repairs and maintenance | Order dated July 28, 2014 | ||||
| highways. | № 47** | ||||
*
Temporary transfer order.
**
An order to invalidate the condition on the temporary nature of the transfer.
Please note that if an employee does not start work under an employment contract, that is, wants to continue working in accordance with the order for a temporary transfer, the employer has the right to apply disciplinary measures to him: a reprimand, a reprimand, dismissal on appropriate grounds, for example, for absenteeism - pp. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation.
Temporary transfer without employee consent
As we have already understood, as a general rule, a temporary transfer, as well as a transfer on a permanent basis, is made by agreement of the parties to the labor relationship. However, the Labor Code makes an exception for some cases. So, an employee can be transferred without his consent to work not stipulated by an employment contract with the same employer in order to prevent or eliminate the consequences:- natural or man-made disasters;
- industrial accident or accident at work;
- fire, flood, famine, earthquake, epidemic or epizootic;
- any exceptional cases threatening the life or normal living conditions of the entire population or part of it.
Transfer of an employee without his consent to work not stipulated by the employment contract with the same employer is also permitted in the following cases:
- downtime (temporary suspension of work for reasons of economic, technological, technical or organizational nature);
- the need to prevent destruction or damage to property;
- replacing a temporarily absent employee.
Plenum of the RF Armed Forces in Resolution No. 2
noted that if, when transferring to another job in case of downtime, the need
to prevent destruction or damage to property or to replace a temporarily absent employee, the employee will be required to perform work of a lower qualification, then such a transfer will take effect Part 3 Art. 72.2 Labor Code of the Russian Federation is possible only with the written consent of the employee.
The Labor Code does not limit the number of such transfers of an employee during a calendar year, since in these cases unforeseen and urgent work is performed. But if, due to emergency circumstances, it becomes necessary to transfer an employee for a period of more than one month, the transfer is still possible only with the consent of the employee.
We emphasize: if the employer cannot prove the existence of circumstances with which the law connects the possibility of a transfer without the employee’s consent, such a transfer will be considered illegal ( clause 17 of Resolution No. 2 ). Thus, T. has worked as a cardiovascular surgeon at the Pskov Regional Hospital since 1999. By order of the chief physician, he was temporarily transferred without his consent to the clinic of the regional hospital to the position of cardiovascular surgeon, citing the need to fill a vacant position and in order to prevent a threat to the life and health of the population. Believing the employer’s decision to be illegal, T. refused to perform his duties at the clinic, for which he was subjected to disciplinary action in the form of a reprimand. The court declared illegal both the order to impose a disciplinary sanction and the order of temporary transfer. The State Budgetary Institution of Health did not provide evidence of the existence of extraordinary circumstances that necessitated the temporary transfer of the employee without his consent to a job not stipulated by the employment contract. The translation was carried out under the pretext of production necessity in the absence of exceptional cases indicating the real need for such a translation, and therefore the specified translation is illegal (Appeal ruling of the Pskov Regional Court dated October 2, 2012 in case No. 33-1580).
note
Refusal to perform work during a transfer in case of emergency, carried out in compliance with the law, is recognized as a violation of labor discipline, and absenteeism is considered absenteeism ( clause 19 of Resolution No. 2 ). It should be taken into account that, due to para. 5 hours 1 tbsp. 219, part 7 art. 220 Labor Code of the Russian Federation an employee cannot be subject to disciplinary action for refusing to perform work if a danger to his life and health arises due to violation of labor protection requirements, except in cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with hazardous and ( or) dangerous working conditions not provided for in the employment contract. Since the Labor Code of the Russian Federation does not contain rules prohibiting an employee from exercising this right even when the performance of such work is caused by a transfer on the grounds specified in Art. 72.2 Labor Code of the Russian Federation, the employee’s refusal to temporarily transfer to another job for the above reasons is justified.
A temporary transfer without the employee’s consent must also be formalized. To do this, a transfer order is issued indicating the reasons (catastrophe, industrial accident, etc.). And of course, it is better to support such an order with relevant documents, otherwise the employee may refuse the transfer.
Translation or relocation?
Sometimes an employer confuses a temporary transfer with a relocation and, instead of drawing up an agreement and order for the transfer, issues a relocation order. Let us remember that due to Part 3 Art. 72.1 Labor Code of the Russian Federation moving from the same employer to another workplace, to another structural unit located in the same area, assignment of work on another mechanism or unit, unless this entails a change in the terms of the employment contract determined by the parties , does not require the employee's consent.Before moving, carefully check the terms of the employment contract - whether it indicates the workplace, structural unit, and whether the employee’s job function will change. Otherwise, labor disputes cannot be avoided. Thus, G., working at the State Unitary Enterprise as a senior accountant, was transferred to the position of accountant. The PMU believed that these positions had similar job functions. Considering the dispute about declaring the transfer order illegal, the court noted: from the employer’s order it follows that in fact there was not a transfer, but a transfer of G. to another position, which entailed a change in the employee’s labor function. These actions were carried out without the consent of G., therefore, the order to move is illegal ( Appeal ruling of the Yaroslavl Regional Court dated April 25, 2013 in case No. 33-2536/2013).
Remuneration for temporary transfer
For transfers made without the employee’s consent (in the cases mentioned in part 2, 3 tbsp. 72.2 Labor Code of the Russian Federation), wages are paid according to the work performed, but not lower than the average earnings for the previous job. That is, if the employee’s wages for the work performed are lower than his previous average earnings, then he is paid the previous average earnings, determined in the prescribed manner.
Well, if the salary for the new job exceeds the average salary of the employee, then he is given an additional payment up to the salary for the new job. Thus, the demands for recovery of lost wages were satisfied by the court: during the period of temporary transfer to another position, the plaintiff performed the duties of an employee of a higher position, therefore, the difference in salary is subject to recovery in his favor ( Ruling of the Perm Regional Court dated September 25, 2013 in case No. 33‑8092).
When a temporary transfer is carried out by agreement of the parties, wages are also determined by agreement of the parties, however, usually when transferring the employee, the salary of the new position is set. If he is transferred to a less qualified job, the parties can agree to maintain the previous salary or to assign an additional payment up to the previous salary.
Temporary transfer for medical reasons
As we found out, a temporary transfer is carried out with or without the employee’s consent. However, according to Art. 73 Labor Code of the Russian Federation the employer is obliged to transfer the employee to another job (position) if he needs it in accordance with a medical report. Moreover, other work should not be contraindicated for the employee due to health reasons.For your information
A medical report is issued in the manner established by Order of the Ministry of Health and Social Development of the Russian Federation dated May 2, 2012 No. 441 “On approval of the Procedure for issuing certificates and medical reports by medical organizations.” A certificate of temporary incapacity for work is not considered a medical report.
When receiving a medical report from an employee, first of all you need to pay attention to the transfer period indicated in the certificate, since the employer’s further actions depend on this.
If an employee is indicated for a temporary transfer to another job for a period of up to four months, the employer must offer him another job that is suitable for health reasons. In the absence of one or the employee’s refusal, the employer is obliged to suspend him from work while maintaining his place of work (position) for the entire period specified in the medical report. To do this, the employer issues an order in any form. The order should indicate the period for which the employee is suspended; if the period is still not specified, upon admission to work, an order should be issued on the employee’s admission.
If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the corresponding job, the employment contract is terminated by clause 8, part 1, art. 77 Labor Code of the Russian Federation- the employee’s refusal to transfer to another job, necessary for him in accordance with the medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer’s lack of relevant work. Upon dismissal on this basis, the employee is paid severance pay in the amount of two weeks' average earnings ( Part 3 Art. 178 Labor Code of the Russian Federation).
For your information
According to Art. 254 Labor Code of the Russian Federation Pregnant women, in accordance with a medical report and at their request, are transferred to another job that excludes the impact of unfavorable production factors, while maintaining the average earnings for their previous job. Before being given another job, a pregnant woman is subject to release from work with the preservation of average earnings for all working days missed as a result at the expense of the employer. A similar guarantee is provided for women with children under the age of one and a half years.
Temporary transfer of an athlete
This is a special type of temporary transfer - it can be carried out to another employer. Yes, based on Art. 348.4 Labor Code of the Russian Federation in cases where the employer is not able to ensure the participation of an athlete in sports competitions, it is allowed, by agreement between employers, to temporarily transfer the athlete with his written consent to another employer for a period not exceeding one year. In this case, the employer at the place of temporary work enters into a fixed-term employment contract with the athlete in accordance with the requirements Art. 348.2 Labor Code of the Russian Federation.During the period of temporary transfer of the athlete to another employer, the validity of the initially concluded employment contract is suspended, but the validity period is not interrupted.
note
If an athlete, during a temporary transfer to another employer, wants to work part-time, permission for such work must be obtained both from the employer at the place of temporary work and from the employer with whom the employment contract was originally concluded ( part 2Art. 348.7 Labor Code of the Russian Federation).
In case of early termination of an employment contract concluded for the period of temporary transfer of an athlete to another employer, on any of the grounds provided for by the Labor Code of the Russian Federation, the initially concluded employment contract is valid in full from the next working day after the calendar date with which the termination of the employment contract concluded on period of temporary transfer.
If, after the expiration of the period of temporary transfer to another employer, the athlete continues to work for the employer at the place of temporary work and neither the athlete, nor the employer at the place of temporary work, nor the employer with whom the employment contract was originally concluded, demand termination of the employment contract concluded for the period of temporary transfer , and renewal of the initially concluded employment contract, then the latter is terminated and the validity of the employment contract concluded for the period of temporary transfer is extended for a period determined by agreement of the parties, and in the absence of such an agreement - for an indefinite period.
Finally
As you can see, there are plenty of types of temporary transfer and each has its own characteristics. Let us outline the main points again. Firstly, temporary transfers are carried out only within the organization (with the exception of athletes). Secondly, such a transfer is carried out with the consent of the employee. But the Labor Code of the Russian Federation establishes exceptions: the employer can make a temporary transfer for a period of up to one month in the event of preventing emergencies and disasters or eliminating their consequences. And thirdly, the remuneration of workers temporarily transferred without their consent cannot be lower than the average earnings for their previous job.
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 any organization, whether large or small, there may be a need to temporarily transfer an employee to another job. How to properly formalize a transfer, in which cases the employee’s consent is required, in which it is not, what are the various consequences of incorrect translation and execution - we will look into this article.
Temporary transfer of an employee to another job should not be confused with part-time and part-time work. Let's first consider the difference between temporary transfer, part-time and part-time.
Part-time job
The concept of “part-time work” is contained in Art. 282 Labor Code of the Russian Federation. Part-time work is the performance by an employee of other paid work in his free time, and the number of such part-time jobs is not limited, the main thing is not to the detriment of the main job. Part-time work is reflected in the employment contract indicating that it is not the main one. There are two types of part-time work:
- internal part-time work is working for the same employer, in the same organization;
- external part-time work is working for other employers, in other organizations.
Combination
The concept of “combination” is contained in Art. 60.2 Labor Code of the Russian Federation. Combination is the performance by an employee of a larger amount of work, for example, fulfilling the duties of an absent employee. At the same time, the employee is not released from his main job and works part-time not in his free time, but during the main working hours. In other words, the employee is under a lot of workload. At the same time, the employee can perform additional work in both one and another profession. When combining, it is not necessary to conclude a new employment contract, unlike part-time work.
Temporary transfer to another job
Temporary transfer of an employee to another job occurs by agreement of the parties, concluded in writing. The concept of temporary transfer is contained in Art. 72.2 Labor Code of the Russian Federation. An employee may be temporarily transferred to another job with the same employer for a period of up to one year. A situation may arise that a transfer is required during the absence of another employee and its duration does not fit into one year, then the deadline will be set with the wording “until the main employee returns to work.”
If, after the expiration of the temporary transfer period, the employee does not demand to be returned to his previous job, the “old” job is not provided by the employer and the employee continues to work, then the transfer is automatically considered permanent.
That is, in contrast to part-time and part-time work, with a temporary transfer there is no additional burden beyond the main job (neither from your employer nor from another), it does not bring additional income to the employee and, accordingly, is often simply not interesting to him.
Let's consider three cases of temporary transfer: by agreement with the employer, by production necessity and forced transfer.
Temporary transfer by agreement of the parties
Temporary transfer by agreement of the parties is probably the simplest transfer. It seems like nothing complicated, but the employer needs to pay attention to the correct execution of such a transfer.
Let's consider a situation where the main employee either got sick, or went on a business trip for a couple of months, or went on a long vacation, or on a regular vacation, and there was a need to replace such an employee. Here it is possible to temporarily transfer an employee to an absentee position, since, for example, there are urgent unfinished issues, production will stop without signing any documents, or the employee has quit altogether, and while a replacement is found, certain work needs to be done.
Unlike part-time work, the temporary transfer of an employee is not displayed in the work book; everything happens solely by agreement of the parties. Although, on the other hand, it is necessary to display the temporary transfer in personnel documents, namely in the employee’s personal card in the T-2 form (clause 4 of the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225).
Before transferring a temporary employee to another job, you must inform him about this. For what period is not established by law, so there is no need to wait certain days or weeks. Such a message (notification) can be either in writing or orally, the main thing is to obtain the employee’s consent that he is not against it.
After obtaining consent, an additional agreement to the employment contract is concluded between the employer and the employee, in which it is necessary to indicate the basis for the transfer, for how long the transfer is being carried out, the level of wages, if it is subject to change, and working hours, if it is different from the present. The level of wages is also not determined by law and remains at the discretion of the employer and employee, i.e. by agreement.
It is advisable to clearly indicate the time of temporary transfer in such an additional agreement. For example, if this is a business trip for another employee or a production need, you can specify a certain date by which the transfer will be made; if before a certain event, this event is indicated, for example, an employee returning from vacation, accepting a new employee for this position, etc.
After completing the additional agreement, the manager issues an order for the temporary transfer of the employee in form No. T-5 or T-5a (these forms are approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1). In such an order, the employer should indicate the reasons for the temporary transfer, the work performed, the period and wages.
The employer should not forget that this order, like others, must be familiarized to the employee against signature. This familiarization and signing of the order by the employee will constitute the official receipt of his consent to the temporary transfer.
Employers should also take note of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, which clearly states that an employee can be temporarily transferred to another job only with the same employer with whom he has an employment relationship, and the work should not be contraindicated for health reasons. It is also stipulated that if, when transferring to another job in the event of downtime, the need to prevent destruction or damage to property, or replacing a temporarily absent employee, the employee will have to perform work of a lower qualification, then such a transfer by virtue of Part 3 of Art. 72.2 of the Labor Code of the Russian Federation is possible only with the written consent of the employee (clause 18 of this Resolution).
An error would also be the action of the employer if, for example, an employee was temporarily transferred to another job and then fired because the employer took another employee to take his previous place. Do not forget that during a temporary transfer, the employee retains his job and he can safely return after the agreed period. This situation was considered by the Constitutional Court of the Russian Federation, and this conclusion is contained in the Determination of the Constitutional Court of the Russian Federation dated December 24, 2013 No. 1912-O: “The court explained that Art. 72.2 of the Labor Code of the Russian Federation provides for cases of temporary transfer to another job, and by written agreement of the parties, an employee can replace a temporarily absent employee, who, in accordance with the law, retains his place of work until this employee returns to work. At the end of the transfer period, the employee is guaranteed the provision of the previous job, but if the employee is not provided with the previous job, he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer loses force and the transfer is considered permanent. Such regulation also cannot be considered as violating the constitutional rights of citizens.”
Temporary transfer due to production needs
The concept of temporary transfer in case of production necessity is also contained in Art. 72.2 Labor Code of the Russian Federation. Two cases are considered:
- in the event of a natural or man-made disaster, 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, the employee may be transferred without his consent for a period of up to one month to work not stipulated by the employment contract with the same employer to prevent these cases or eliminate their consequences;
- transfer of an employee without his consent for a period of up to one month to a job not stipulated by an employment contract with the same employer is also permitted in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent destruction or damage to property or temporary replacement absent employee, if downtime or the need to prevent destruction or damage to property or to replace a temporarily absent employee is caused by emergency circumstances.
It is also clarified that temporary transfer to a job requiring lower qualifications is permitted only with the written consent of the employee. And also in case of temporary transfers on the above grounds, the level of wages is determined according to the work performed, but not lower than the average earnings for the previous job.
When making such a transfer in the event of a production necessity, the employer should take into account that if disputes arise with employees, he will be required to prove the existence of circumstances that led to a temporary transfer due to these circumstances. This is directly stated in paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.
Consider, for example, the following situation: some kind of disaster (accident) occurred at work, the employer issued an order for the temporary transfer of workers to eliminate the consequences of the disaster (accident) and did not indicate the reason for the transfer, and the employee did not agree to transfer, even temporarily, to work to eliminate a disaster (accident). Subsequently, due to the fact that the employee refused to temporarily transfer to another job, the employer fired him. Is it legal in this situation to dismiss an employee because of his refusal to temporarily transfer?
To resolve this issue, let us turn to the Determination of the Kemerovo Regional Court dated February 29, 2012 No. 33-1817: “...When considering the case, the court came to the conclusion that the employer had grounds for transferring the employee, that is, circumstances that jeopardize life and normal living conditions population or part thereof. The court included the deformation of the support, which can lead to rock collapse and death, as well as the piling of the conveyor belt, which can lead to smoke, fire and fire, as such circumstances.
However, when considering the case, the defendant (employer) did not provide evidence of the existence of extraordinary circumstances that necessitated the temporary transfer of the employee without consent to work not stipulated by the employment contract.
About the presence of any emergency circumstances that allow the transfer of workers in accordance with Part 2 of Art. 72.2 of the Labor Code of the Russian Federation, not mentioned in the order.
In addition, such involvement of an employee in work by the employer was not properly formalized, since the order applies to miners, and he worked as a mining machine operator, and therefore an order must be issued in form No. T-5 indicating the reason for his transfer. In this case, the basis for the transfer is of fundamental importance; the order must be supported by relevant documents, otherwise the employee may refuse the transfer.
Russian legislation does not establish an employee’s obligation to be at the workplace in the event of an illegal transfer. Under such circumstances, his refusal to transfer illegally could not be considered a violation of labor discipline, and therefore imposing a disciplinary sanction in the form of dismissal on him was illegal.
In paragraph 40 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” it is prescribed that when considering a case on the reinstatement of a person transferred to another job and dismissed for absenteeism due to refusal to begin it, the employer is obliged to provide evidence demonstrating the legality of the transfer itself (Articles 72.1, 72.2 of the Labor Code of the Russian Federation). If the transfer is declared illegal, dismissal for absenteeism cannot be considered justified and the employee must be reinstated at his previous job.
Taking into account the above circumstances of the case and the requirements of the law, what is significant for resolving the case is whether the employer complied with the law when transferring the employee to a job not stipulated by the employment contract.
Having established these circumstances, the court of first instance came to the conclusion that there was a case provided for in Part 2 of Art. 72.2 of the Labor Code of the Russian Federation, endangering the life or normal living conditions of the entire population or part of it, and therefore considered that the employer had the right to transfer workers without their consent to work not stipulated by the employment contract in order to prevent this incident.”
Based on the analysis of this case, employers should think about the fact that for a correct temporary transfer in case of production necessity, they should either obtain the employee’s consent to the temporary transfer, or independently issue an order for the temporary transfer of the employee/employees with a mandatory indication of the reason for such transfer. If the temporary transfer order is correctly executed, indicating the reason, timing or specific event, the employer will be able to avoid misunderstandings on the part of employees, as well as protect itself from litigation.
It should also be taken into account that the employee has the right to refuse the transfer if it is dangerous to his life and health. An employee’s unreasonable refusal of a temporary transfer in these situations will be regarded as a disciplinary offense, and absence from work will be regarded as absenteeism. This is clearly stated in paragraph 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.”
However, by virtue of para. 5 hours 1 tbsp. 219, part 7 art. 220 of the Labor Code of the Russian Federation, an employee cannot be subject to disciplinary action for refusing to perform work if a danger to his life and health arises due to violation of labor protection requirements, except in cases established by federal laws, until such a danger is eliminated, or from performing work with harmful and ( or) dangerous working conditions not provided for in the employment contract. Since the Labor Code of the Russian Federation does not contain rules prohibiting an employee from refusing to perform such work even when they are caused by a transfer on the above grounds, the employee’s refusal to temporarily transfer in accordance with Art. 72.2 of the Labor Code of the Russian Federation for the reasons mentioned above is justified.
Temporary transfer in the cases specified above is allowed only for a period of up to one month and should serve the purpose of preventing these cases or eliminating their consequences.
Conclusion
In conclusion, I would like to note that temporary transfer is carried out by agreement of the parties, but this is at best. Then you just need to formalize it correctly so that there are no future claims against each other.
When temporarily transferring an employee in case of production necessity, it is necessary to indicate in the order itself why such a temporary transfer is necessary. We should not forget that if the functions of the employment contract do not provide for the conditions for preventing the consequences of any disasters or the transfer to work is in no way related to the skills, knowledge, skills of the employee and the transfer will actually threaten his life and health, only in this case the employee will be able to refuse the transfer. I repeat, an employee’s unreasonable refusal of a temporary transfer due to production necessity if there is a real need for it in the organization is not allowed.
Accordingly, by taking into account all the necessary written documentation and understanding when it is possible or necessary to temporarily transfer an employee to another job, the employer will protect itself from disputes with employees.
Irina Chuchkina - legal consultant at IC U-Soft LLC, Regional Information Center of the ConsultantPlus Network. Editorial staff of the magazine "Kadrovik"
- Corporate culture
