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

The Labor Code of the Russian Federation provides for a procedure for dismissing an employee by transferring to a third-party organization. There can be many reasons for such dismissal. The procedure itself is quite simple, but has a number of important features.

What should a laid-off employee know? What are the pros and cons of transferring to another organization?

Peculiarities

The procedure for paying employees of organizations upon dismissal is established in the Labor Code (Article 80). Transfer to another organization as part of the dismissal procedure Registration of the transfer is carried out subject to availability written invitation from third party organization. As Article 72 states, it is possible only on the basis of a written statement from the employee. After this, an appropriate order is issued.

Justification of the reasons for the transfer

According to current legislation, upon dismissal, employees are not required to provide the reason why they intend to transfer to another employer. Therefore, the application must indicate that the employee is leaving due to transfer. And if there is an invitation from a third-party organization, it must be indicated that the employee confirms his consent to the transfer.

In the order, the management of the organization must indicate the article on the basis of which the dismissal is carried out, as well as the initiator of the procedure.

Transfer procedure

Dismissal by way of transfer to another employer begins with the employee writing a statement. According to paragraph 1 of Article 84 of the Labor Code, after the application, an order is issued in the T-8 form, which is approved by the State Statistics Committee. Documents are usually prepared in the personnel department. After publication, the order is submitted to the director of the organization for signing. The employer is required to notify the dismissed person of the issuance of the order. After signing this document, if there are no comments to it, they begin to fill out the work book. All necessary data is entered into the employee’s personal card. After this, the accounting department produces and issues 2-NDFL certificates and deductions to the Pension Fund of the Russian Federation and the Social Insurance Fund. The day of dismissal is the date specified in the order.

Dismissal by transfer: application

The application must include the following information:

• Full name of the employee;
• the name of this document and its essence;
• The current date;
• employee signature.

After the application is signed by the director of the organization, it is filed in the employee’s personal file.

Order

Dismissal due to transfer cannot be carried out without an order. It should contain:

• full name of the company;
• Name;
• publication date;
• description of the method of termination of the employment relationship;
• Full name of the person being dismissed, his position, number according to the report card;
• links to documents confirming the legality of dismissal;
• signature of the general director;
• company stamp.

At the end of the order there should be a column entitled “I have read the order,” where the employee confirms the notice of dismissal with his signature. The information is entered into the employee’s personal card on the basis of this document, and a copy of the order and a receipt confirming the absence of material claims against the employee from the company are also attached to it. The order must also be numbered.

Entry into the labor record: dismissal by transfer

The work book is drawn up in accordance with the requirements of the Labor Code. The entry must contain a reference to Article 84.1. The reason for dismissal, the date of issue and the number of the relevant order must also be stated. The entry must be certified by the signature of the general director of the enterprise or the person responsible for labor documentation. After the book is filled out, the organization's seal is affixed. But when applying for a new position, a note is made about acceptance of the position in connection with the transfer.

Are there any compensation provisions?

Dismissal by way of transfer to another employer involves making a full settlement with the previous one. This means that employees are entitled to compensation:

• for hours worked;
• for unused vacations.

In accordance with Article 84 of the Labor Code, the date of calculation is considered to be the day of dismissal. However, if at that moment the employee was absent from work, calculations are made no later than the day following the submission of the application for payments. If an employee quits while he is on sick leave, the employer is obliged to pay for this leave as well.

In case of late payment former employee All compensation, the employer is required by law to pay penalties on the unpaid amount. Even if the organization does not have funds, this is not a reason for violating payment deadlines. Otherwise, the dismissed employee has the right to go to court.

Working off

According to the Labor Code of the Russian Federation, when transferring to a third-party organization, the former employer has the right to require the dismissed employee to work for 2 weeks from the date of writing the application. In fact, this is not work off, since the employee notifies the employer of dismissal exactly 14 days in advance. This period is necessary to search for another employee for a vacant position. However, by agreement with management, an employee can resign earlier.

What about vacation?

As mentioned above, dismissed employees are paid compensation for unused vacation days. However, the law does not provide for its preservation during translation. This rule applies in general cases. Thus, an employee will be able to take vacation at a new enterprise only after 6 months of work (Article 122). The transfer can also be carried out while maintaining leave under the following circumstances:

• going on maternity leave;
• the person being dismissed is a minor;
• the dismissed person adopted a child under 3 months old.

Consequences for the employee

Dismissal by transfer to another employer has some advantages, which include:

• guaranteed employment;
• no need to go through

In accordance with the requirements of Article 64, an agreement is concluded with the new organization. In this regard, the employee should apply to the new enterprise for a conclusion no later than 1 month from the date of settlement. If a person refuses to enter into a new agreement, he faces administrative liability.

Significant disadvantages include failure to maintain previous earnings. After all, the third-party organization is in no way connected with the previous one. In addition, the law does not provide for transfer without dismissal.

Consequences for the employer

At its core, this procedure does not have negative consequences for the organization. This method of terminating an employment agreement is not very different from the familiar standard dismissal procedure. As a disadvantage, however, one can highlight the need to find another employee, especially when the person being dismissed is a qualified specialist.

Nuances

Now let's look at special cases of dismissal during transfer.

If a woman who is on maternity or child care leave is dismissed, the procedure can only be carried out with her consent or on the initiative coming from her.

Establishes the impossibility of transferring young specialists to third-party organizations for positions that are in no way related to the specialization received. An employee can lose this status only because of his actions, and this is fraught with the loss of entitlement benefits and compensation. But loss of status does not occur if the employer does not fulfill its obligations, or for medical reasons.

Dismissal through transfer to another employer is a simple and intuitive process. The basis for its registration is the employee’s application. After this, an order is issued and signed by the manager. The employee must be notified of this. After this, the accounting department of the enterprise makes the final calculation: the employee is paid all due compensation for vacation and days worked. If payments are not made on time, the employee has the right to sue the organization. The process is essentially no different from ordinary dismissal. However, in work book employers make a corresponding entry. For the employer, dismissal does not have any negative consequences. But for the employee this threatens a decrease in earnings and loss of time.

Dismissal of an employee followed by transfer to another employer is not very common in personnel practice. Therefore, HR officers should know what to do if an employee asks for a transfer to another employer.

Labor Code The Russian Federation in Article 72.1 defines a transfer to another job as a temporary or permanent change in the function or structural unit of an employee, and Part 2 of the same article provides for a transfer to another employer for a permanent job. An employment contract previously concluded by an employee, according to Article 77 of the Labor Code of the Russian Federation (part 1, paragraph 5), must be terminated, where the basis is the transfer of the employee to another employer.

An employee of the personnel service should be aware that the competent termination of an employment contract, where the basis is the transfer of an employee to a permanent job with another employer, necessarily requires the written consent of both the employee and the new employer.

Translation at the request of the employee

For example, in connection with a larger salary offered to him by another employer wages and prospects career growth, the employee wants to change jobs.

To correctly interrupt employment contract with an employee and to formalize dismissal based on a transfer, the HR department must have on hand a request from a third-party organization to transfer the employee. Such a request is written on the organization’s letterhead and must have an outgoing number. The text of the request to transfer an employee is not regulated by regulatory documents and is executed in free form. The document must contain the signature of the head of the organization that will be the new employer and a seal.

Request and response

The request can be received from an employee interested in the transfer or as mailing. After receiving the request, you must respond with confirmation of consent to the employee's transfer.

The response is also prepared on the organization’s letterhead, indicating the outgoing number. The text of the response must contain a link to the previously received request, indicating the date and registration number. The document is certified by the signature of the head of the organization and the seal.

It is also practiced to send an invitation to a future employee, while simultaneously sending a copy to the employer with whom he is currently working. the right specialist consists of a legal employee-employer relationship.

An invitation is issued similar to a request, and must contain an indication vacant position, to which the employee is invited, the terms of the employment contract, the location of the workplace and working conditions. Most often, the invitation is limited in time, that is, the validity period of the invitation is indicated.

Deadlines

Often, heads of organizations and HR managers have questions about the time limits allotted by law for working with an application in these conditions. Since the regulatory documents defining labor legislation do not contain any specific deadlines, you should be guided either by the instructions for office work or other normative document organizations. The usual processing time for employee applications is from one to three days.

If the employer agrees to transfer the employee to another employer, he endorses the employee’s application and transfers it to the organization’s personnel service for further processing of documents and orders.

The transfer process ends with payment to the employee wages and, if there is unused vacation, monetary compensation for him. Afterwards, an entry is made in the work book while simultaneously entering information into the employee’s personal card.

What do we write in the labor report?

According to the instructions for filling out work books, clause 6.1, in the event of termination of an employee’s current employment contract due to his transfer to another permanent place of work, the section on the work of the work book must contain information about the procedure for the transfer. In particular, information about the transfer procedure must be entered in column 3 of the work section: it is carried out with the consent of the employee or at his request.

In addition, according to paragraph 6.2 of the Instructions for filling out work books, the record of the employee’s transfer must contain information about the name of the organization to which the transfer is being made.

Transfer with the consent of the employee

In the case when an employee is transferred to another employer at the initiative of the employer, the procedure for document flow is somewhat different.

In the event that the responsible persons of the interested organizations have agreed among themselves to transfer an employee of one organization to another, prerequisite To carry out this transfer is to obtain his written consent to such a transfer.

1. If an employee does not want to be transferred to another place of work, his refusal to transfer cannot be considered a violation labor discipline and is not subject to any disciplinary action.
2. In the event that an employee agrees to change his place of work, the responsible persons of the contracting organizations draw up an agreement, indicating in it full name contracting parties and detailed working conditions after the transfer, indicating the position, salary, location of the new workplace and working hours.

When a transfer to another employer is made at the initiative of the employer, the agreement must include a phrase about the absence of a probationary period and indicate the date when the employee will have to begin fulfilling his duties. labor responsibilities at a new place of work.

This agreement can come into force only after receiving the written consent of the employee. This can be issued in the form of a separate statement from the employee or as an inscription at the bottom of the agreement, clearly indicating that the employee is familiar with the conditions and his consent to the transfer.

To prepare documents for a transfer with the employee’s consent to another employer, the employee must write a letter of resignation. After it is endorsed by the head of the organization, HR officers will be able to begin processing the documents.

In contrast to the execution of a transfer at the request of the employee, when transferring with the consent of the employee, the dismissal order, in the part of the basis, indicates the agreement between the organizations and the details of the enterprise, which will be the new place of work.

The entries in the work book, which are made with different wording of the transfer, also differ. When an employee is transferred to a permanent job with another employer with the consent of the employee, an entry is made in the latter’s work book stating that the employment contract was terminated due to the transfer with the consent of the employee, indicating the full name of the organization to which the transfer is being made. It is advisable to indicate legislative confirmation of this action, namely, refer to the Labor Code of the Russian Federation, Article 77, part 1, paragraph 5.

Third party transfer

In addition to these types of transfer of an employee from one employer to another, another option is possible in which the initiator of the transfer is a third party. An example would be the transfer of an employee in alternative civil service to another employer. The basis for the transfer of such an employee is an order issued by the federal executive body of the Russian Federation.

More often we're talking about about citizens liable for military service who, in exchange for military service, undergo alternative service in civilian organizations.

Organizational issues regarding departure to a new place of work

Government Decree No. 256 of May 28, 2004 regulates the maintenance of employee labor documents. In the event of his transfer to another place of work, the employer terminates the existing fixed-term contract and makes financial settlements with the employee. Next, he issues the employee an account card and a work book, with the information entered in them established by law order by the corresponding entries. Against signature, the employer issues an official order to the employee to leave for the place of new duty, indicating the deadline established for this.

By further action, the employer notifies the organization that is the employee’s new place of work about the time when the employee will begin performing his duties. job responsibilities related to alternative civil service. In addition, the employer is obliged to notify the military commissariat that issued a referral for alternative civilian service to this employee and notify territorial organization Federal service labor and employment of the population about the fact of transfer of an employee to another place to perform alternative civil service.

Registration of documents at a new place of alternative civil service

Having arrived at the organization specified by the order, the employee undergoing alternative civil service, presents to the new employer labor documents provided by him for the conclusion of the primary fixed-term contract.

In turn, the employer, in whose organization the employee will subsequently perform alternative civilian service, draws up a fixed-term employment contract with this employee for the duration of his service at his enterprise.

Within no more than three days, the employer is obliged to notify the executive body in whose department the enterprise is located and the military commissariat that sent the citizen to perform alternative service, about the conclusion of a fixed-term employment contract with the citizen transferred to perform further alternative service at his enterprise.

New employer guarantees

The transfer of an employee to another place of work is associated with the execution of a new employment contract. According to the Labor Code of the Russian Federation, Article 64, the period for processing employee documents cannot exceed one month from the date of dismissal from the previous place of work. Problems that an employee has with a new organization, from delays to refusal to draw up an employment contract, are grounds for the employee to go to court.

Do not forget that the period of 1 month during which guaranteed employment occurs is an absolute value and cannot be extended for any period of time. holidays, nor due to temporary disability (illness). An employee who exceeds the period allowed by law to maintain job security loses the legal right to job security.

Moving to a new workplace

If the new place of work is located outside the employee’s locality, the new employer, in accordance with the Labor Code of the Russian Federation, Article 165, Part 1, is obliged to return to the employee cash, spent by him on the move.

Reimbursable expenses related to relocation:

• relocation of the employee and his family;
• transportation of property (if the employer does not provide transport);
• settling into a new place of residence.

Termination of an employee’s employment contract due to transfer to another place of work by experts labor law considered very specific. They refer to a contradiction in the wording: a transfer is an action related to a change in the employment contract, while when transferring to another employer, this contract is terminated. Personnel practice specialists even tend to consider the practice of transferring to a new employer today a rudiment of Soviet labor law, which is not relevant in our time.

However this basis for dismissal is a fairly common practice today. Experts comment on this fact as adherence to traditions and reluctance to change the established order of things.

The employee may be transferred to permanent work with another employer. An employee can transfer to work in another organization either by at will, and at the initiative of one of the employers.

The transfer of an employee to work in another organization is carried out on the basis of a tripartite agreement between the following parties: the current employer, the employer interested in inviting the employee, and the employee himself.

Transfer to another job is carried out by dismissing the employee from his previous place of work and concluding an employment contract with a new employer.

An employee’s written application for dismissal due to transfer to another organization (Clause 5, Part 1, Article 77 of the Labor Code of the Russian Federation) may be considered as consent to a transfer if there is a written invitation from the new employer.

The employee must start a new job within a month from the date of dismissal. Then, in contrast to simple dismissal, when transferring, the new employer is obliged to conclude an employment contract with him (Article 64 of the Labor Code of the Russian Federation).

For an employee transferred from another organization, the new employer does not have the right to establish probation(Article 70 of the Labor Code of the Russian Federation).

By virtue of Art. 140 of the Labor Code of the Russian Federation, upon termination of an employment contract, payment of all amounts due to the employee from the employer is made on the day of the employee’s dismissal.

In this case, the employee is due wages for the time worked and compensation for all days of unused vacation.

Labor legislation does not provide for the transfer of unused vacation days and vacation amounts from the previous employer to the new one.

The length of service required to grant leave with a new employer starts from scratch.

However, not all is lost: the employee can negotiate with employers to provide leave with subsequent dismissal, that is, take a vacation “in kind” before going to work, having received the appropriate vacation pay.

By virtue of Art. 122 of the Labor Code of the Russian Federation, the right to use vacation for the first year of work arises for the employee after six months of his continuous operation at this employer. By agreement of the parties, paid leave may be granted to the employee before the expiration of six months.

Based on this, an employee, when transferring to work for a new employer, may set as one of the conditions of the transfer the possibility of providing leave in advance, that is, before six months.

In any case, to calculate the average earnings saved for the vacation period or determine the amount of compensation for unused vacation, Art. 139 of the Labor Code of the Russian Federation and Decree of the Government of the Russian Federation of December 24, 2007 N 922 “On the specifics of the procedure for calculating average wages.”

* The material was created based on the publication: Chizhov B.A., Ponomareva T.T. Current issues dismissals of workers // Economic and legal bulletin. 2016. N 9. 160 p.

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

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 courts Russian Federation Labor Code of the Russian Federation" (as amended on December 23, 2006 N 63), structural units should be understood as branches, representative offices, departments, workshops, sections, etc., and by other locality - locality outside the administrative boundaries -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 subdivision 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. From this norm it follows 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, it is necessary to reflect the fact of the employer’s reorganization in work books and employment contracts, because the employer becomes a 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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Transfer to work in another company is permitted only with the written consent of the employee (Article 72.1 of the Labor Code of the Russian Federation). Since a new employment contract is concluded with an employee in another company, the transfer occurs through dismissal. Article 72.1 of the Labor Code expressly states that an employment contract is terminated under paragraph 5 of part one of Article 77 of the code “transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position).”

The procedure for transfer through dismissal is not clearly stated in the Labor Code of the Russian Federation, but a certain practice has developed in its execution. The transfer must be preceded by a procedure written agreement between the head of the company from which the employee is transferred and the head of the company to which he is transferred.

For employees hired by transfer, a test cannot be established (Article 70 of the Labor Code of the Russian Federation).

If you include this condition in the employment contract, it will not apply (Article 9 of the Labor Code of the Russian Federation). At the same time, the employee’s work book must contain a record of dismissal from the previous organization precisely in the order of transfer (Clause 5, Part 1, Article 77 of the Labor Code of the Russian Federation).

Can an employee's salary level when transferred to another company be lower than at the previous place of work?

Yes maybe. The Labor Code of the Russian Federation does not provide guarantees regarding the level of wages in a new company. In addition, the transfer is carried out with the consent of the employee, therefore, he does not object to the fact that his salary level in the new place will be lower than in the previous one.

You cannot refuse to hire employees who are invited in writing to work from another company (Article 64 of the Labor Code of the Russian Federation).

How to arrange a transfer to another employer

The head of the company where the employee is being transferred sends a letter of request to the company where the employee is currently working, requesting the transfer of this employee. The request must indicate the date from which the employee is expected to be hired new job, and his new position. Having received the letter of request, the head of the company where the employee works must agree with the subordinate on the possibility of transfer.

If the employee agrees, he writes a letter of resignation in connection with the transfer, to which is attached a letter of request. Then the head of the company where the employee works sends a confirmation letter to another company.

From this moment on, you can dismiss the employee and hire him for a new job. The personnel officer of the previous company issues an order to terminate the employment contract in connection with the transfer using the unified form No. T-8 (based on clause 5 of Part 1 of Article 77 of the Labor Code of the Russian Federation), closes the employee’s personal card, and makes an entry in his work book. And the personnel officer of the new company draws up an employment contract with the citizen, an order for employment, creates a personal card and makes an entry about the employment in his work book.

What to do if an employee himself asked to be transferred to work in another company?

In this case, the first link in the chain of approval of the transfer will be the employee’s application. Then the head of the company where the employee works must inform in writing about the subordinate’s desire to the head of the company to which the employee wants to move, and obtain his consent.

The hiring and dismissal procedure is carried out according to general rules. When making an entry about dismissal in the work book, note that the employee was transferred at his request (and not with his consent) (clause 6.1 of the Instructions for filling out work books).

Is it possible to dismiss an entire department by transfer to another employer?

This is not prohibited by law. But letters of request do not have to be issued for each employee separately. The desire of a new manager to hire several employees can be expressed in one letter of request addressed to the current manager, listing all citizens whom he is ready to employ.

If an employee is transferred within a holding company, still arrange the transfer to another employer, even if the companies have the same management and are located in the same premises.

Firms within the holding are different legal entities. If you arrange a regular transfer, the employee will have problems when applying for a pension, since his work book will reflect his hiring in one company, and his dismissal from a completely different one.

Do I need to pay compensation for vacation upon dismissal as a transfer to another employer?

Yes, it is necessary, because in this case the employee actually quits, dismissal by transfer(Clause 5, Part 1, Article 77 of the Labor Code of the Russian Federation). And upon dismissal, monetary compensation is paid for all unused vacations (Article 127 of the Labor Code of the Russian Federation). The length of service that gives the right to annual basic paid leave begins to flow again for the transferred employee in the new place (Article 121 of the Labor Code of the Russian Federation).

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