Transfer to another job - permanent or temporary change in the labor function of the employee and (or) the structural unit in which the employee works (if the structural unit was indicated in the employment contract), while continuing to work with the same employer, as well as transferring to work in another locality together with the employer
What it is
A transfer to a new position is a temporary or permanent change in the employee's job functions. The employer does not change. In other words, such a process is called “displacement”. An employee can work both in one company and in its division.
The initiator of the transfer can be both the manager and the employee himself. Often, he realizes that he would have worked much more productively in a different position, and therefore the company's performance would have changed. Management should listen to the views of each of its employees.
The transfer within the company may concern not only the change of position, but also the place of work. For example, often engineers working in offices move temporarily to supervised facilities in another locality. Also, an internal transfer is considered a change of unit.
Particular attention should be paid to situations when a transfer is made from one unit to another.
There are several scenarios:
- The presence of the unit is specified in the employment contract with the employee.
- If the unit is not specified in the document, any conditions in it are changed.
- In the case where there is no mention of the unit in the employment contract, but the working conditions and functions of the employee remain the same.
Only the last case of the three can be considered as displacement. The first two should be considered by the personnel department as a process of changing the position of an employee. Design is done accordingly.
Let's talk about what the law says about relocation within one company.
The rules for transferring employees to new positions within the company are described in article 72.1 of the Labor Code of the Russian Federation. The norms of Article 72.2 are also of great importance.
So, temporary movement of an employee is possible without his consent for a period of up to 1 month in the following accidents:
- industrial accident,
- fires and other natural disasters,
In this case, exactly one month is allotted to eliminate the consequences of the accident. Without consent, the employee will be forced to perform even lower-skilled work. Everything is within the law. Wages are set at the average level from the previous one, so that the rights of a citizen are not infringed.
The law also says that the employer has the right to relocate the employee without his consent, if this does not violate any of the clauses of the previously signed labor agreement.
The location of employment should not change. An example of such a movement can be the transfer of a person from one machine in the workshop to another.
A transfer is not a transfer to work to another employer, since according to Article 77, Clause 5 of the Labor Code of the Russian Federation, labor relations will be terminated.
Particular attention should be paid to article 220 of the Labor Code of the Russian Federation. It says that the transfer can be initiated by the employee himself, if there is reason to believe that the performance of certain functions at the enterprise has become hazardous to health.
The transfer of an employee to another position within the organization is divided into two types:
Even a change of position for several weeks is considered a displacement and requires proper clearance. Let's talk about how to transfer a person to a new position temporarily.
According to the law, the employer must comply with a number of requirements:
- the maximum term for a temporary transfer must be 12 calendar months,
- the written consent of the employee to move (the exceptions described above should be taken into account).
In this case, the employee and the employer enter into an additional agreement, which stipulates both the term of the temporary transfer and the payment.
It is not required to draw up a new labor contract; moreover, a new entry in the work book should not be entered.
The employee or his employer can initiate a permanent movement. If a vacant position is vacant in a company, one of the employees may apply for it. In this case, the choice will be up to the authorities.
It happens that the employee is forced to move.
The reasons for this are:
- if an employee is deemed inappropriate to the position held,
- if another person is reinstated to his post by a court decision for unlawful dismissal,
- suspension or expiration of a special license, permits, driver’s license or other permits, which are mandatory in the performance of any functions,
- bringing a citizen to administrative responsibility (in case of disqualification).
In all these cases, a permanent transfer is made to a new position with a commensurate or reduced wage rate. A higher position is offered to an employee only by decision of the head and at his discretion.
If the work is permanent, an entry in the work book is mandatory. Other documents are subject to renewal, as we will discuss below.
The reasons for the transfer to a new position within the organization may be different.
On the initiative of the employee, this most often occurs:
- out of a desire to take a vacant post vacated in the process of working for the company,
- when it is impossible to more perform their functions, for example, due to illness.
The most likely reasons for a change of position within the organization at the initiative of management are:
- production need or staff reshuffle,
- reduction of staff and number of posts,
- poor certification of the employee (inconsistency of the position).
All reasons for the transfer must be negotiated with the employee. In most cases, the issue is decided by mutual agreement.
How to make out
The procedure for registration depends on whether the movement is made within the organization, temporary or permanent.
In the temporary function of an employee of the personnel department are as follows:
- Acceptance of a statement from the employee about the desire to take a new position (formal consent, which is written on the basis of a memorandum from the direct manager of the employee, certified by the director of the organization or unit). A sample statement is presented below:
Transfer to another position and its main types
A transfer is a permanent or temporary change in the labor function of a specialist and (or) the structural unit to which he belongs (if indicated in the employment contract), subject to continued work at the same employer, as well as transfer to work in another locality together with the landlord ( Article 72.1 of the Labor Code of the Russian Federation).
Immediately make a reservation that the following actions do not require the consent of the employee, as they are not a translation:
- moving to another workplace at the same employer,
- transfer to another structural unit located in the same locality,
- an assignment to work on another device, provided that such changes are not related to amendments to the conditions of the contract concluded with the employee.
Also, one cannot speak of transfer when the structural unit in which the specialist is registered is not specified in the employment contract.
Such a personnel decision, such as a transfer to another position, is often used in enterprises. The fact is that companies are developing, which means that employees are in demand in new departments. Legislation provides for many options for moving. Conventionally, they can be divided according to a number of signs.
We emphasize that the procedure for transferring to another position depends on its type and has special specificity, which must be taken into account when preparing documentation.
- Translation with and without the consent of the employee.
It is necessary to obtain consent from the specialist for this procedure and fix it in writing. This rule should be strictly followed even when the manager and employee have agreed on everything, since the absence of this document can provoke questions of inspectors.
However, we note that in Art. 72 of the Labor Code of the Russian Federation indicate cases in which consent is optional. We are talking about extraordinary circumstances: eliminating the consequences or preventing fires, epidemics and epizootics, industrial accidents, accidents, hunger. When these situations threaten the life, safety, and health of people, three positions are allowed for a short-term change in the labor duties of one or several employees without obtaining consent, namely: replacing a temporarily absent employee, simple, the need to protect material assets from destruction / damage.
Transfer within one locality and beyond its borders.
According to the Labor Code of the Russian Federation, the main factors of the employment contract also include the territorial location of the workplace. When changing the latter, the management draws up a translation, which is announced to the employee in advance. Another option is possible, when the old place of work is preserved, but the person’s functional, his position, and structural unit are changed. Then it is believed that the transfer was made within the same locality.
Internal and external transfer to another position.
If the management is going to change the position of a person, without going beyond the organization, the procedure is called internal, even when the company changes its location in parallel. For example, the location of an employee’s workplace in a company may change.
If it is planned to move to another position in another organization, then the transfer is considered external and from a legal point of view is a private form of dismissal. The fact is that then relations with one manager cease and begin with another. From the position of the employee himself, this option is most advantageous for several reasons: it does not imply a probationary period at a new place of work or a termination of an employment contract if a previously dismissed specialist returns to this position. Note that for the previous employer, such completion of cooperation with the employee does not bear special restrictions and requires only a loyal attitude towards the outgoing.
Permanent and temporary translation.
Usually, a person is transferred to a new position for reasons of expediency, which means that a return to the previous version of the work is not supposed. But it happens that a temporary substitution is necessary, then the order differs from the generally accepted one.
In addition to the period, permanent and temporary transfers differ in design features. In the first case, an irreversible change in the work function is made, that is, an additional agreement is necessarily concluded on transferring the sample to another position, an entry is made in the work book. In the second case, everything is much simpler - only an order is issued.
By law, the maximum time limit for a temporary transfer is one year. It is also worthwhile to understand that movements for a limited period depend on the circumstances that led to them. The simplest example: a woman receives a special mode of work during pregnancy and returns to her usual schedule after her maternity leave ends.
Forced and proactive translation.
Consent to transfer to another position implies that the parties made this decision on their own. It is also allowed to change the position at the initiative of the employee, employer, or trade union organization. However, in a number of situations, the specialist is forced to change his or her activities as required by law, for example, qualification certification is not passed, or the medical commission insists on changing the functions of the employee.
The general rule states that the decision to change the employee’s functional is taken by the parties carefully, based on analysis, taking into account a number of factors. Moreover, the employee must provide advance notice of transfer to another position, if everything happens on the initiative of the employer. But the corresponding order may be issued urgently, if such actions are aimed at eliminating the risk to the employer's property or are carried out in emergency situations of a natural and / or man-made nature.
The most common reasons for transferring to another position
As we have already said, a specialist can be transferred to a new place on his initiative, the initiative of the employer, or for medical reasons.
The grounds for transferring to another permanent position in one organization are:
- promotion if a person has proved himself on the positive side, successfully passed the certification tests - he is given work with higher pay,
- demotion, if the employee has not passed the certification - then he will receive less pay,
- change in the organizational structure of the company,
- staff reduction
- transfer to a branch, territorial unit,
- the availability of vacancies in production.
It’s worth mentioning right away that with a temporary change of a post occupied by a person, the completion date is not always known. Most often, such a transfer is necessary to replace another specialist, and the latter will not work in production for an unknown period of time due to vacation, maternity leave, child care, etc. If a change of position occurs due to health reasons, the employee may be offered easier conditions labor. The same applies to employees who are transferred in connection with pregnancy.
In accordance with the norms of the Labor Code of the Russian Federation, there are a number of cases when an employee, due to health reasons, comes to a new position with a lower salary, but they keep the average salary set for his previously occupied position within a month from the date of transfer.
If the transfer is carried out due to an occupational disease, an injury received at the workplace, the specialist has the right to receive the same salary during the entire term of work in this position.
Transfer to another position: how to apply to avoid mistakes
Stage 1. Obtaining employee consent.
Recall that, by law, an employee must approve this action of the employer in writing. An application for transfer to another position is drawn up in any form, the main thing is that it expresses consent and indicates from which and to which post the transfer is taking place.
There is no established standard for this document used when transferring an employee to another position. There is only one rule: usually a statement is written by hand. However, we advise the human resources department to create a separate form for this document. After the consent is obtained, an appropriate order is issued.
Stage 2. Registration of an additional agreement to the employment contract.
After agreeing on the conditions for changing the post, it is necessary to prepare an additional agreement on the transfer to another position. It is compiled in duplicate, which from a legal point of view are equally valid. After signing, one of them remains with the employee, the second is filed in the folder of personnel documents. We recommend taking a receipt from the employee indicating the date of receipt of a copy of the supplementary agreement.
In this agreement it is necessary to prescribe:
- name of organization, last name, first name, middle name of the person to be transferred,
- date and place of conclusion of the agreement,
- the date the employee takes up new duties,
- amended clauses of the employment contract,
- new duties of the specialist, his salary, the name of the structural unit - if the latter is available.
Stage 3. Issuing an order.
As we have already said, after the transfer agreement is signed by both parties, the employer signs an order to transfer to another position. The preparation of the order itself is carried out by a specialist in the personnel department, and the head of the organization only puts his signature, after which the transferred employee signs in to familiarize himself with the document.
Very often this document is signed by the head of the personnel department, but, as the judicial practice shows, such an action is unlawful. In principle, the text of the order can be prepared by any employee: from an assistant director to a specialist in the legal department or even accounting. But only the director has the right to put a signature, otherwise the transferred employee gets the opportunity to appeal the order and its provisions, after which he will have to be reinstated and all compensations will be issued.
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Stage 4. Employee Notification.
Without notice, a change of position is not possible from the point of view of the law.
Вы видите форму предложения-уведомления для перевода на другую должность, которая включает в себя сведения относительно нового места работы: зарплату, режим, основные функции, общие условия труда — все эти характеристики могут заинтересовать сотрудника или оказаться для него решающими.
Если требуется, в уведомлении указываются статьи закона, являющиеся основанием для кадровых изменений.
Этап 5. Making a record of the transfer to the personal file of the employee and the work book.
In a labor transfer to another position, they are displayed only if it is a question of a constant change of duties (Article 66 of the Labor Code of the Russian Federation). This record, like all others, is assigned a serial number, the date of entry is set. In the column “Information about the work” it is necessary to put the date from which the employee will be registered in a new place. Column 4 is intended for registration data of the transfer order.
When consent to transfer to another position is mandatory
Consent to transfer to another position is one of the most difficult topics of the staffing decision we are discussing. The transfer procedure is not often used by employers, however, there are a number of reasons in the labor legislation on which a specialist can refuse to move to a new place. Of course, the demotion or salary is not always caused by the malicious intent of the management, but the employee should monitor whether there are such moments in the case:
- The transfer can provoke a loss of health, which means that the employee can refuse a new post on the recommendation of doctors. Then the company can do this: if a translation is required up to 4 months, at this time the specialist is suspended from fulfilling his duties without wages, but with the preservation of the workplace. If the replacement is to occur for more than 4 months or on an ongoing basis, the refusal of another position or the absence of an appropriate place may become the basis for termination of the employment contract (Articles 73, 77 of the Labor Code of the Russian Federation).
- An alternative position has lower qualifications and / or is associated with lower salaries. The employee is subject to dismissal, which he needs to be informed at least 60 days before the appointed date of termination of the contract.
- The transfer is caused by the loss by a specialist of the right to perform professional duties. If it takes less than two months to restore them, the employer may, if desired, propose that the place be kept without maintenance. If the renewal of permits takes a period of 2 months, while the employee himself does not agree to demotion, his dismissal is allowed.
- A pregnant employee is offered a position with lighter responsibilities. According to the law, the employer is obliged to offer such an option to the expectant mother, but she has the right to refuse if labor productivity does not suffer.
- The transfer is associated with the organization moving outside the community. Then the employee leaves and receives severance pay.
- In the event of a reduction in staff, the employer must offer the employee another place - this is required by law. If this option is not possible or the employee refuses to be transferred to a vacant position, he is dismissed by prior notification in two months.
When it comes to how to transfer to another position, the law protects the rights of the employee, giving him great preferences. Note that the very idea of protecting an employee is one of the main ones in the labor legislation of the Russian Federation.
According to experts, the employer has many other, outside the legal field, instruments of influence on personnel. And since in our country gray payroll and semi-legal processing (for a short period of time, using a service agreement, etc.) are still actively practiced, the only protection of employees and a guarantee of compliance with the obligations of the employer remains a tough position to protect rights in the Labor Code of the Russian Federation .
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Requirements for an order to transfer an employee to another position
Actual legislation allows for the issuance of an order to transfer to a new position in a free form. Nevertheless, most companies adhere to the old, still actively used form No. T-5. And this choice is logical: this form contains all the necessary data, including information about the employer, employee, former and new job, reasons for the transfer, etc.
If you are closer to a more modern approach, the following information should be included in the order:
- F. I. O. of the employee in respect of whom the document is approved,
- the date from which he is transferred to a new post,
- previous place of work / position
- type of transfer (temporary / permanent),
- information about the new place of work and position,
- the basis for such a decision,
- the amount of salary, tariff rate, allowances, employee bonuses, if the latter are provided.
When a person is transferred on an ongoing basis, the column "Date" is not filled. And with a temporary transfer, its expiration date may not be known, so one of the methods is used:
- an event (words) is entered in the “Date” field, after which the employee ends his activity in a temporary position,
- the column “By” is not filled before the end of the event, but such an approach is permissible only with the consent of both parties.
The order is filled in by hand or in typewritten form. In any case, the document is prepared in one copy, after which the head signs it with a signature, and the paper is handed over to the employee for review.
When preparing an order, remember the following nuances:
- With constant movement indicate only the number of start work in a new place.
- When the post is temporarily changed, the start and end dates of the job are set - this you will see in any sample of a temporary transfer to another position. If the second one is not possible, it may not be. For example, a person is transferred for the period of absence of the main employee, and the end is not established, since the replaced employee is incapable of work for a long time. Or a pregnant worker can be transferred to another place at the insistence of doctors.
- An order to relocate an employee is not sealed.
- At the request of the employee, the employer provides him with a certified copy of the order in accordance with Art. 62 of the Labor Code of the Russian Federation.
Record of transfer to another position in the work book
Unfortunately, human resources employees often make mistakes, as a result of which the specialist receives an inaccurate wording. Next, we show a sample record of a transfer to another position.
First of all, the personnel officer must make sure that there is an appropriate order. Then he opens the personal file of the employee, where his work book is kept. Now the most important thing is the recording step:
- Open the labor spread, which shows the most recent data on the work of a citizen and step back one line from the last record.
- Put the Arabic numeral corresponding to the numbering on the page, then enter the date in the next column.
- Remember that you set the date when the transfer is recorded. It is affixed in a single format: 05/11/2015. In no case is a substitution of the number allowed, otherwise an administrative fine will be waiting for you.
- We begin to enter information in the column with information about hiring. No need to re-indicate the name of the company, because it is already clear that translation is allowed only within the framework of one production. The record should be short, concise, not take up too much space. Ideally, it looks like this: "Transferred to the position ...". Sometimes employees of the personnel department indicate the reasons: "Transferred to a certain position in connection with the promotion." This postscript is not required, since it does not contain useful information, therefore, we recommend that you restrict yourself to the first option.
- The third column is filled with information about the date the order was issued for the organization and its serial number: “Order No. 123 of 05/10/2015.” And at the last step, the record is sealed with the seal of the organization and the signature of the head.
Transfer to another position at the initiative of the employer without the consent of the employee
The term of transfer to another position not agreed with the specialist, in other words, made at the initiative of the employer, should not be more than a month.
We also note that such an action is considered legal in a limited number of cases listed in h. 3 tbsp. 72.2 of the Labor Code of the Russian Federation:
- natural / man-made disasters, accidents and industrial accidents, fire, floods, famines, earthquakes, epidemics / epizootics, any situations that threaten the life / normal conditions of existence of a certain part or the whole population (Part 2),
- simple, that is, a temporary shutdown of production processes caused by economic, technological, technical or organizational factors,
- the need to protect property from destruction / damage,
- replacement of a specialist temporarily unable to fulfill his duties (part 3).
These situations are the result of extraordinary circumstances specified in Part 2 of Art. 72.2 of the Labor Code of the Russian Federation. All of them threaten the life or normal living conditions of the population or part of it. It is highly undesirable to appoint an employee to a new place upon his refusal, and similar actions are considered unlawful when emergency circumstances cannot be detected.
To appoint a specialist for a new job, the employer must prepare an order in which the reasons for this action will be formulated. Sometimes a person is offered a place that does not require as high qualifications as before. In this case, you must ask the employee for written consent. We emphasize that his work should be paid no lower than the average earnings in the same place.
What to do if the transfer of an employee to another position is mandatory
With the obligatory change of position by an employee, two possible scenarios are possible: transfer to another position at the initiative of the employee (that is, at the request of the citizen) or in connection with the initiative of the head (regardless of the will of the parties). Note, it is allowed to change the post, working functional both on a permanent and temporary basis. Suppose a specialist can abandon his duties if they are dangerous to his life and health. Then the company must offer him another job until the danger is eliminated (Article 220 of the Labor Code of the Russian Federation).
Management cannot refuse to request an employee to be responsible for other activities in such circumstances:
- there is a conclusion from doctors
- staff reductions
- suspended special law,
- a woman is pregnant or her child is under one and a half years old.
It is important to understand that each of these cases has special design subtleties:
- The employee submitted to the management a document from a medical organization issued in the manner approved by Order of the Ministry of Health and Social Development of the Russian Federation dated 02.05.2012 No. 441n.
So, you have a document confirming that the employee needs to provide a different position. Then you, as an employer, are obliged to choose another job among the available ones, provided that it does not threaten his health. As in other cases, you need to get the written consent of the employee (part 1 of article 73 of the Labor Code of the Russian Federation).
But one nuance should be taken into account: when a specialist who needs to provide a new position for a period of up to four months is not ready for a job change or the company does not have the necessary vacancy, he is removed from his duties for this period, retaining his place in the company. Remember that no salary is accrued during this period. Another option is also possible when it is necessary to temporarily transfer a person for more than four months or do it on an ongoing basis. Then his refusal / absence of the necessary work ends with the termination of the employment relationship, under paragraph 8 of Part 1 of Art. 77 of the Labor Code of the Russian Federation (Article 73 of the Labor Code of the Russian Federation).
A completely different situation arises when it comes to changing a post by the head or his deputy on the recommendation of doctors. The employment contract may remain valid, and the time during which the manager will not perform his duties is determined by the parties themselves.
It often happens that in connection with the transfer to another position, his salary is reduced. Then, for one month from the date of the new appointment of the employee, the average earnings from the previous post are maintained. If the reason for the change of job is a work injury, occupational disease, other health problems caused by labor activity, the average salary is maintained until a permanent disability is established or until the specialist recovers (Article 182 of the Labor Code of the Russian Federation).
This statement is reinforced by judicial practice. According to court orders, the employer does not have the right to change the average earnings from the moment the specialist moves to a lower-paid position. The employee begins to receive a salary corresponding to his functional after establishing his permanent loss of professional ability to work (Appeal ruling of the Vologda Regional Court of September 13, 2013 No. 33-4301 / 2013).
In the event of a reduction in staffing, it is the employer's responsibility to provide the employee with another available vacancy (that is, a vacant place suitable for his qualification, or free, but lower / lower paid).
If all of the above is not possible, according to paragraph 2 of Part 1 of Art. 81 of the Labor Code of the Russian Federation resort to dismissal. The manager is obliged to personally warn employees of the impending dismissal due to a reduction in the number of employees in at least two months and to receive their signatures (Article 180 of the Labor Code of the Russian Federation).
If the employee is not able to fulfill his duties under the TD due to the suspension of his special right for no more than two months (licenses, the right to drive a vehicle, carry weapons, etc.), the employer must give him other available work. This can be a vacant place of the appropriate qualification, or free, but lower / lower paid, most importantly, that the state of health allows the specialist to perform new functions.
Of course, the employer will have to obtain the written consent of his subordinate. He is obliged to offer all available posts in the region that meet the specified requirements. The employer also offers options in other areas, if such a clause is in the collective agreement, agreement, employment contract. In the absence of a vacant seat or refusal of an employee, the latter shall be suspended from duties without pay (article 76 of the Labor Code of the Russian Federation). As stated in paragraph 9 of Part 1 of Art. 83 of the Labor Code of the Russian Federation, a TD can be considered invalid if the special right is suspended for more than two months, or the employee is completely deprived of this right.
To change the post, the employee must write a statement, after which she is relieved of work until she is provided with another. For all the production days missed at this time, the average salary at the expense of the company is maintained (Article 254 of the Labor Code of the Russian Federation).
Also, pregnant women and women with children under three years of age cannot work on a rotational basis (Article 298 of the Labor Code of the Russian Federation).
The transfer within the organization to another position is as follows:
- supervisor and employee sign additional agreement
Does the employee need the consent of the transfer? The first stage is preparatory
- The immediate supervisor of the employee draws up memorandum or presentation, which will set out the basis for the transfer of the employee, his data (name, position, name of the structural unit, business and professional qualities).
- The head of the organization imposes on this document resolution.
- Free Employee offer in writing take a new position.
- Employee writes statement of consent to the proposed work addressed to the director with a request to transfer from one post to another. This application shall indicate the name of the employing organization, employee data, the name of the new and old position, as well as the signature and date of writing of the application. An employee’s application is a prerequisite for transferring to a new position, even if the employee’s working conditions improve (transfer to a higher position, salary increase, etc.).
How to fill out the form of order No. T-5 on transferring an employee to a new job?
- Type of transfer - constantly.
- The reason is on the initiative of the employer and the consent of the employee or another (specific) reason: the introduction of a new position, the replacement of an absent employee, the creation of a new structural unit, etc.
- Basis - statement of the immediate supervisor, date and number of the supplementary agreement to the employment contract.
- An order to transfer an employee to a new position is notified to him within three days under signature (in accordance with article 68 of the Labor Code of the Russian Federation). Signature and date are put by the employee in the order itself. Since this order is an internal document of the organization, it is not stamped.
A photo: Ekaterina Pashkova.
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