We transfer the employee at his request to another employer. Current issues of dismissal of employees Guarantees of transfer to another employer

In addition to permanent transfer to another job in accordance with Art. 72.2 of the Labor Code of the Russian Federation provides for the transfer of an employee to a permanent job in another organization, carried out with the written consent (request) of the employee in agreement with the employer at the employee’s old and new place of work. Such a transfer is associated with a change in one of the parties employment contract: the employer changes and, accordingly, the employment contract is terminated on an independent basis, which is enshrined in the specified clause 5, part 1, art. 77 Labor Code of the Russian Federation.

In clause 5, part 1, art. 77 of the Labor Code of the Russian Federation contains another independent basis: “Transition to elective work (position).” By this basis it is possible to dismiss an employee if he was elected to elective position in the presence of an act of election.

Since two different grounds are enshrined in clause 5, part 1, art. 77 of the Labor Code of the Russian Federation, when dismissing an employee, a reference should be made to clause 5, part 1, art. 77 of the Labor Code of the Russian Federation with clarification of the reason for dismissal.

An employee’s refusal to continue working in connection with a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization, with a change in the type of state or municipal institution(clause 6, part 1, article 77 of the Labor Code of the Russian Federation).

Termination of an employment contract on this basis is carried out taking into account Art. 75 of the Labor Code of the Russian Federation, which establishes that the changes specified therein are not grounds for terminating an employment contract with an employee. Only if the employee refuses to continue working under changed conditions will the employment contract be terminated.

From general order The Labor Code of the Russian Federation makes an exception only in relation to the head of the organization, his deputies and the chief accountant, who can be dismissed, but on a different basis: at the initiative of the employer (new owner) under clause 4 of part 1 of Art. 81 of the Labor Code of the Russian Federation (change of owner of the organization’s property). Such termination of an employment contract with these persons may take place no later than three months from the date the employer acquired ownership rights.

An employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (clause 7, part 1, article 77 of the Labor Code of the Russian Federation). In this case, the employment contract is terminated taking into account Part 4 of Art. 74 Labor Code of the Russian Federation.

The employee’s refusal to transfer to another job, which is necessary for him in accordance with the medical report on his state of health, or the employer’s lack of appropriate work (Clause 8, Part 1, Article 77 of the Labor Code of the Russian Federation). Dismissal on this basis is made taking into account parts 3 and 4 of Art. 73 Labor Code of the Russian Federation.

An employee’s refusal to transfer due to the employer’s relocation to another location (clause 9, part 1, article 77 of the Labor Code of the Russian Federation). Termination of an employment contract on this basis is carried out in accordance with Part 1 of Art. 72.1 Labor Code of the Russian Federation.

Violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation or other federal law, if this violation excludes the possibility of continuing work (Clause 11, Part 1, Article 77 of the Labor Code of the Russian Federation). This paragraph refers to Art. 84 Labor Code of the Russian Federation, specifying the specified basis and procedure for terminating the employment contract if there is a violation of the established rules, which excludes the possibility of continuing work. An approximate list of violations that exclude the possibility of continuing work is defined in Art. 84 Labor Code of the Russian Federation. These include the following cases:

Conclusion of an employment contract in violation of a court verdict depriving a specific person of the right to occupy certain positions or activities certain activities;

Conclusion of an employment contract to perform work that is contraindicated for this employee for health reasons in accordance with a medical certificate issued in the manner established federal laws and other regulatory legal acts of the Russian Federation;

Lack of an appropriate education document if the work requires special knowledge in accordance with federal law or other regulations legal act;

Concluding an employment contract in violation of a resolution of a judge or body or official authorized to consider cases of administrative offenses, disqualification or other administrative punishment that precludes the possibility of an employee fulfilling duties under an employment contract, or concluding an employment contract in violation of the restrictions, prohibitions and requirements established by federal laws related to attracting labor activity citizens dismissed from state or municipal service;

Transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position)

So, according to clause 5, part 1, art. 77 of the Labor Code of the Russian Federation, the transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position) is the basis for termination of the employment contract.

In this case, the transfer is formalized by terminating the employee’s employment contract with one employer and concluding it with a new employer (or transferring to an elective position). With such a transfer, all relations with the previous employer are terminated, the employee is paid all compensation due to him, including for the remaining days of vacation. The relationship with the new employer begins anew, including the calculation of the length of service for vacation, and vacation is granted according to the rules of Part 2 of Art. 122 Labor Code of the Russian Federation. Confirmation of the above can be found in judicial practice.

Thus, the court considered that, at the written request of the employee or with his written consent, the employee can be transferred to a permanent job with another employer. In this case, the employment contract at the previous place of work is terminated (clause 5, part 1, article 77 of the Labor Code of the Russian Federation).

In another case, the court noted that the new employer to whom the employee is transferred by way of transfer is not the legal successor of the previous employer, and the responsibilities of the previous employer to pay compensation to the employee for unused vacation do not pass to him. Moreover, the design of Art. 140 of the Labor Code of the Russian Federation, which obliges the employer to pay the employee upon termination of the employment contract all amounts due to the latter upon dismissal (including compensation for unused vacation), does not allow the employer to assign this obligation to a third party.

According to the court, upon dismissal by way of transfer to another organization labor Relations workers with the employer are terminated under clause 5, part 1, art. 77 of the Labor Code of the Russian Federation, in connection with which the norms of Art. 127 of the Labor Code of the Russian Federation, regulating the rights of employees to leave upon dismissal, according to which an employee can exercise his right to leave by receiving monetary compensation or by using vacation time subsequent dismissal in order of translation. At the same time, the new employer is not the legal successor of the previous employer, and is not responsible for the obligations of the latter, including in terms of paying compensation to employees for unused vacation.

To terminate an employment contract on the basis analyzed, the will of three subjects is required: the employer, the employee and the future employer.

Documentation of termination of an employment contract depends on who initiated the transfer: the employee or one of the employers. In the first case, the basis for termination of the employment contract will be the employee’s statement. In the second - the employee’s written consent to the transfer, stamped on the corresponding employer’s offer. But in any case, the number necessary documents includes a letter from the new employer indicating that the employee will be hired. At the same time, the new employer cannot refuse to conclude an employment contract to employees invited in writing to work by way of transfer from another employer, within one month from the date of dismissal from their previous place of work (Article 64 of the Labor Code of the Russian Federation). This conclusion is confirmed by emerging judicial practice.

The court noted that in order to terminate an employment contract on the basis of transfer to another job, the request or consent of the employee is required. It does not follow from the case materials that the Education Committee of St. Petersburg was the initiator of the plaintiff’s transfer to the position of head of the department of the united educational institution; The plaintiff did not provide evidence to support that she applied to the committee with a request to terminate the employment contract for the position of director of the lyceum in connection with the transfer to the position of head of the department to another legal entity (to another employer). On the contrary, on April 19, 2010, the plaintiff wrote a letter of resignation under Art. 80 Labor Code of the Russian Federation; calculation and payment of appropriate compensation were made in accordance with Art. 178 of the Labor Code of the Russian Federation in full and on the basis of the plaintiff’s statements.

In another case, the court considered that a legally significant circumstance in resolving the stated claims is the procedure written agreement between the head of the organization from which the employee is transferred and the head of the organization to which he is transferred. At the same time, to mandatory requirements The letter of request requesting the transfer of a given employee includes an indication of the date from which the employee is proposed to be hired. new job, and his new position.

The employee himself agreed to be dismissed by transfer, the employer who invited the employee expressed his intention to hire him in writing, and the former employer confirmed in writing his consent to dismiss the employee by transfer. Taking into account the presence of the above conditions, the judicial panel comes to the conclusion that the employers’ agreement to transfer the plaintiff to another organization is confirmed in writing. The approval was carried out by the appropriate persons, i.e. persons who have the right to hire and fire an employee.

It should be noted that the current employer is not obliged to dismiss an employee by transfer to a new employer at the request of the employee, but only has the right and he can refuse such a transfer to the employee. In this case, an employee who does not want to continue working may terminate the employment contract according to at will in compliance with all the rules established for this.

In addition, according to clause 5, part 1, art. 77 of the Labor Code of the Russian Federation, transfer to an elective job (position) is also grounds for termination of an employment contract. Accordingly, to terminate an employment contract on this basis, the employer needs a document that confirms that the employee was actually selected for such a position.

In this case, unlike a transfer to another employer, the organization is not required to agree to terminate the employment contract on this basis. Having received from the employee a corresponding application with the attachment of a document confirming his election to an elective job (position), he is obliged to terminate the employment contract. At the same time, the Labor Code of the Russian Federation does not specify the election to which elective work (position) we're talking about. In this regard, we believe that termination of an employment contract on this basis is possible when an employee is elected to any position (teacher, deputy, etc.).

It must be taken into account that in accordance with Art. 375 of the Labor Code of the Russian Federation to an employee released from work in an organization or individual entrepreneur in connection with his election to an elective position in the elective body of the primary trade union organization(released trade union employee), after the end of his term of office, the previous job (position) is provided. If there is no such job (position), then with the written consent of the employee, he may be provided with another equivalent job (position) from the same employer.

If such work (position) cannot be provided (the organization was liquidated, ceased activity individual entrepreneur, there is no such job (position), then the all-Russian (interregional) trade union retains this employee’s average earnings for the period of employment, but not more than six months, and in the case of education - for a period of up to one year. If an employee refuses the proposed corresponding job (position), his average earnings for the period of employment are not retained, unless otherwise established by a decision of the all-Russian (interregional) trade union.

According to the Constitutional Court of the Russian Federation, the guarantee provided for in Part 1 of Art. 375 of the Labor Code of the Russian Federation, in the form of providing trade union workers released from work in the organization due to election to elective positions in trade union bodies, their previous work (position) after the end of their term of office is an element of the legal mechanism ensuring the implementation of the constitutional right to associate in trade unions, and also freedom of activity of trade unions. The implementation of this guarantee involves imposing on the employer, as a party to the social partnership, the obligation to provide the released trade union worker with his previous job (position) after the end of his term of office under the conditions and in the manner prescribed by the norms of the Labor Code of the Russian Federation.

Thus, in the case under consideration, the employer will have to rehire such an employee, taking into account the requirements provided for by the Labor Code of the Russian Federation for hiring.

The legislation of the Russian Federation provides similar guarantees for other categories of workers. In particular, a member of the Federation Council, a deputy of the State Duma, who worked before being elected (appointed) as a member of the Federation Council, elected as a deputy of the State Duma under an employment contract, after the termination of their powers, is provided with the previous job (position), and in its absence - another equivalent job (position ) at a previous place of work or with their consent in another organization.

Let us highlight one more point. When terminating an employment contract at the initiative of an employee, the person resigning can withdraw his application at any time before the expiration of the notice period for dismissal (Article 80 of the Labor Code of the Russian Federation). Dismissal in this case is not carried out unless another employee is invited in his place in writing, who cannot be denied an employment contract. Quite often, after submitting a resignation letter, employers invite an employee from another organization as a transfer to the resigning employee’s place and refuse their employee to withdraw the application. Meanwhile, such a refusal is legal only if the employee invited by way of transfer has already resigned from his previous job.

The courts, when reinstating employees who were dismissed at their own request, in such a situation draw attention to the fact that the obligation voluntarily assumed by the employer to hire another employee is not a basis for refusing to exercise the right to withdraw the application. If another employee was invited in writing and has already been dismissed from his previous job, the former employee does not have the right to withdraw his resignation letter.

In conclusion, it should be noted that the procedure for terminating an employment contract in connection with the transfer of an employee to another employer by the Labor Code of the Russian Federation is not sufficiently regulated, so in practice difficulties arise: in particular, what should a resignation letter look like, how to formalize an agreement with another employer to whom it is planned to transfer employee? These circumstances, in order to ensure uniform application of labor legislation, predetermine the need to introduce an additional article into the Labor Code of the Russian Federation regulating this procedure.

Question: ...The employee, with his consent, was transferred to another position with the same employer for a certain period. He failed to cope with his duties, the employer decided to transfer him to his previous position. The employee refused to transfer until the temporary transfer was completed. Can an employer unilaterally transfer an employee to his previous position? (Expert consultation, 2015)

Question: An employee, with his consent, was temporarily transferred to another position with the same employer for a certain period. Since the transferred employee could not cope with the new responsibilities, the employer decided to transfer him to his previous position, completing temporary transfer ahead of schedule. However, the employee refused to return to his permanent place of work until the temporary transfer was completed. Can an employer unilaterally terminate a temporary transfer? If yes, what is needed for this?

Answer: The employer does not have the right to terminate a temporary transfer unilaterally. The employee can be returned to his permanent place of work before the temporary transfer is completed only by agreement of the parties.

For committing a disciplinary offense, including for improper execution labor responsibilities, the employee can be attracted to disciplinary liability.

Rationale: Transfer to another job is a permanent or temporary change labor function employee and (or) structural unit in which the employee works (if structural subdivision was specified in the employment contract), while continuing to work for the same employer, as well as transferring to work in another area together with the employer. By general rule transfer to another job is possible only with the written consent of the employee (by agreement of the parties), with the exception of certain cases (see parts 2 and 3 of article 72.2 Labor Code RF). This is enshrined in Art. 72, part 1 art. 72.1 Labor Code of the Russian Federation.

Article 72.2 of the Labor Code of the Russian Federation, dedicated to temporary transfer, does not provide for a legal mechanism that would allow early termination of a temporary transfer unilaterally. Therefore, when temporarily transferring to another job by agreement of the parties, such a transfer can also be completed only by agreement of the parties. The initiator of early completion of the transfer can be either the employee or the employer. In this case, it does not matter whether the transfer is issued in vacant place work or to replace a temporarily absent employee, who, in accordance with the law, retains his place of work.

Obviously, the employer has no reason to unilaterally use other procedures provided for by law to complete a temporary transfer, acting by analogy. In particular, in this regard, it would be unlawful to resort to the legal mechanism provided for canceling an order for additional work (see Part 4 of Article 60.2 of the Labor Code of the Russian Federation). It will also be illegal to change the terms of an employment contract for reasons related to changes in organizational or technological working conditions (see Article 74 of the Labor Code of the Russian Federation). In this case, transfer is possible only by agreement of the parties by virtue of the direct instructions of the law.

Additionally, we note that for committing a disciplinary offense, including for improper performance of job duties, an employee can be brought to disciplinary liability (Article 192 of the Labor Code of the Russian Federation).

For repeated failure to perform (improper performance) without good reasons labor duties in the presence of outstanding and outstanding disciplinary action it is permissible to terminate an employment contract (clause 5, part 1, article 81 of the Labor Code of the Russian Federation; clause 35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by courts Russian Federation Labor Code of the Russian Federation").

Dismissal on this basis is also possible for a continuing disciplinary offense, that is, when failure to perform or improper performance of job duties continues despite the penalty applied to the employee (paragraph 2 of paragraph 33 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2).

To formalize the transfer of an employee from one employer to another, it is necessary to use Art. 77 part one clause 5. Labor Code of the Russian Federation.

If an employee is transferred to another employer, then according toRules for calculating continuous work experiencehis continuous service remains valid for one month from the date of dismissal. And in case of dismissal due to the transfer of the husband or wife to another locality, continuous service is maintained throughout the entire period of the break.

When making an entry in the work book, you must follow the rules established by the instructions for filling out work books.

When transferring, the new employer cannot refuse to hire such an employee.

Types of transfers.

Depending on the type they differ:

1. Algorithm for document preparation.

2. The wording of entries made in personnel documents.

3. The employer's responsibility for the successful completion of the transfer procedure.

Preparation of personnel documents.

When terminating an employment contract by transfer, the algorithm next:

Upon registration order to terminate the employment contract it is recommended to use the unified T-8 or T-8a Album form unified forms. When filling it out, the following rules must be observed:

1. Under the name of the order, a reference is made to the employment contract, its number and date, which terminates, and the date of termination of the employment contract is also recorded. In this case, the word “dismissal” itself is crossed out.

2. In the section “Grounds for termination (termination) of an employment contract (dismissal)” there is a link to a specific article of the Labor Code of the Russian Federation with a breakdown of the article - Art. 77 part one, clause 5 of the Labor Code of the Russian Federation - transfer to another employer with the consent (at the request) of the employee. It is this information that will be recorded in the employee’s work book, so it is necessary to indicate the exact and clear wording of the termination of the employment contract.

3. In the column "Base (document, number, date" a link to the specific document that served as the basis for termination of the employment contract is indicated. This can be a statement from the employee (in the case of a transfer at the initiative of the employee) or an agreement document between the employers and a statement from the employee with consent for dismissal (in case of termination of the employment contract at the initiative of the employer and with the consent of the employee). In addition, the date and number of these documents must be indicated. In the case of a reference to an application, the author of this application, that is, the name of the employee who wrote the application and its date.

4. The employee must be familiarized with the order by signature with the obligatory affixing of the date of familiarization.

Unified form No. T-8

Approved by a resolution of the State Statistics Committee of the Russian Federation

(order)
on termination (termination) of an employment contract with an employee (dismissal)

The employment contract was terminated due to the transfer of the employee, with his consent, to work for another employer (or indicate the name of the company), article 77, part one, paragraph 5 Labor Code of the Russian Federation

Motivated opinion of the elected official

trade union body in writing

Closing a personal T-2 card.

In the T-2 personal card, in section 11 “Grounds for termination of an employment contract (dismissal),” the exact wording of the entry from the order is entered, indicating the article of the Labor Code under which the employment contract is terminated and the exact wording of this article is given.

In addition, this section indicates the document that served as the basis for termination of the employment contract (order), its date, number, as well as the date itself when the employment contract terminates.

After this, the HR employee (his actual position must be indicated) signs in this section, confirming the validity of the information entered in the employee’s T-2 personal card, and the employee also certifies this information with his signature.

Only after this the T-2 card is considered closed. After this, the T-2 personal card is stored together with the personal cards of dismissed employees for 75 years according to the List of documents generated in the activities of organizations, indicating storage periods.

6.1. Making an entry in the work book.

6 Transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position)

Clause 5, Part 1, Art. 77 of the Labor Code, which establishes such grounds for termination of an employment contract as the transfer of an employee with his consent or at his request to another employer, is applied when there is a clearly expressed written will of three subjects: the administration of the new place of work, inviting to work, of this employee moving from one place of work to another by way of transfer, and the administration of the previous place of work releasing this employee by way of transfer to another organization. Then the employment contract with him is terminated at his previous place of work under clause 5, part 1, art. 77. At the new place they can no longer refuse to hire him.

In accordance with paragraph 16 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” (as amended on December 23, 2006 No. 63), structural divisions should be understood as branches, representative offices, as well as departments, workshops, sections, etc., and under another locality - an area outside the administrative-territorial boundaries of the corresponding locality.

Transfer to another job is permitted only with the written consent of the employee, except for the cases provided for in parts 2 and 3 of Art. 72.2 of the Code.

At the written request of the employee or with his written consent, he may be transferred to a permanent job with another employer. In this case, the employment contract at the previous place of work is terminated (clause 5, part 1, article 77 of the Labor Code of the Russian Federation).

Transfer to another job is divided into types:

– permanent and temporary transfer;

– transfer from a given employer, transfer to another employer;

– transfer to another location together with the employer;

– transfer at the initiative of the employee, at the initiative of the employer, at the initiative of the relevant government agencies and officials (for example, state labor inspector).

Moving the employee from the same employer to another is not considered a transfer and does not require the employee’s consent. workplace, to another structural unit located in the same area, entrusting him with work on another mechanism or unit, unless this entails a change in the terms of the employment contract determined by the parties.

It is also important to take into account that a worker means a place where an employee must be or where he needs to arrive in connection with his work, which is directly or indirectly under the control of the employer (Article 209 of the Labor Code of the Russian Federation).

Clause 5, Part 1, Art. 77 of the Labor Code contains another basis for termination of an employment contract - transfer to an elective job (position). For this basis, an act of election of this employee to an elective job (position) exempt from production work is required. The previous and this grounds for dismissal, as we see, differ significantly from each other. Therefore, in the dismissal order and in the employee’s work book there should be a reference not just to clause 5 of Art. 77 of the Labor Code, and with clarification on which of these two grounds the employee is dismissed.

7 Refusal of an employee to continue working in connection with a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization

As defined in Part 5 of Art. 75 of the Labor Code of the Russian Federation, reorganization of an organization in any form cannot be a basis for terminating employment contracts with employees. It follows from this norm that labor relations with employees continue automatically (i.e. they do not need to be fired and hired at new organization).

Employee consent to continue working for the “reorganized” employer is not required. At the same time, they have the right to refuse to continue working in connection with the reorganization.

To provide employees with the opportunity to exercise this right, the employer should notify them in writing in advance (for example, a month in advance) of the upcoming reorganization, possible changes related to it, and the right of employees to terminate their employment relationship in connection with this by submitting a written application to the employer.

If the employee refuses to continue working in connection with the reorganization, the employment contract is terminated in accordance with clause 6 of Art. 77 of the Labor Code of the Russian Federation.

If the employee does not intend to terminate the employment relationship, then obtaining written consent from him to continue working is not required. However, to reflect the fact of the employer’s reorganization in work books and employment contracts is necessary, because the employer is becoming different legal entity.

From judicial practice:

In his complaint to the Constitutional Court of the Russian Federation, T.V. Ivanova challenges the constitutionality of parts five and six of Article 75 of the Labor Code of the Russian Federation, according to which a change in the jurisdiction (subordination) of an organization or its reorganization cannot be grounds for termination of employment contracts with employees of the organization, and if the employee refuses to continue working in these cases, the employment contract is terminated in accordance with paragraph 6 of Article 77 of the Labor Code of the Russian Federation. According to the applicant, these legal provisions violate the principle of freedom of labor, deprive the employee of established guarantees and compensations and contradict Articles 2, 7, 15 (parts 1, 2 and 3), 17 (parts 1 and 3), 18, 19, 21 (part 1 ), 24 (part 2), 29 (part 4), 37 (parts 1, 2, 3 and 4), 45, 46 (parts 1 and 2), 52, 55 and 57 of the Constitution of the Russian Federation.

As follows from the materials submitted to the Constitutional Court of the Russian Federation by the applicant, she did not refuse to continue working during the reorganization of the employer and, accordingly, part six of Article 75 of the Labor Code of the Russian Federation was not applied in her case. Consequently, in this part this complaint cannot be considered admissible.

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