Transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position). Dismissal by transfer to another organization: registration procedure and documents Transfer of an employee at his request or with his consent

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 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 a termination order employment contract in connection with the transfer according to the unified form No. T-8 (grounds - clause 5 of part one of Article 77 of the Labor Code of the Russian Federation), closes the employee’s personal card, 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 the 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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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 switching to 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 confirm 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 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 for 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 this employee includes an indication of the date from which the employee is proposed to be hired for a 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 what kind of elective work (position) we are 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.

Agreement

Agreement

noun, With., used compare often

Morphology: (no) what? agreement, what? consent, (see) what? agreement, how? consent, about what? about consent

1. By consent They call a community of points of view, a mutual agreement on something.

General, mutual, complete, mutual consent. | Agreement on views on raising children. | We finally came to an agreement. | If no agreement is reached, the dispute is resolved in court.

2. Tacit consent they call the coincidence of someone’s opinions, reactions to something that is not expressed in words.

By tacit agreement this topic was not touched upon. | Beware of the indifferent - with their tacit consent, betrayal and murder exist on earth.

3. Phrase Silent means consent means that someone’s reluctance to answer or react to something is equated by the interlocutor with approval, permission.

4. By consent call someone's permission, an approving reaction to someone's actions.

Express your consent. | Give consent to the operation. | Someone's consent is required for something. | Obtain parental consent to marry someone. | Phone numbers are changed without any consent of the subscriber.

5. If anything is done with consent someone, this means that someone approves, supports someone’s actions.

Dispose of the apartment with the consent of the owner.

6. By consent are called peaceful, friendly relations between someone.

Good agreement. | Consent between husband and wife. | Live in harmony. | Peace and harmony reign in their families.

7. If someone, for example, nods their head as a sign of agreement, then this means that this person tacitly agrees with someone, approves of someone’s plans, actions, etc.

8. If anyone is in (full) agreement with someone, with something, then this means that this person does not oppose anyone, anything.

The decision is in full agreement with the law. | Act in accordance with the decision made.

Explanatory dictionary of the Russian language by Dmitriev. D. V. Dmitriev. 2003.

Antonyms:

See what “consent” is in other dictionaries:

CONSENT is a specific form of interaction of objects and processes, reflecting the spontaneous and conscious combination of opposites, their correlation with each other / achieving harmony, symmetry and proportionality of the parts of the whole in... ... Philosophical Encyclopedia

- (consent) Agreement or absence of objections. More precisely, it is the application of the will of the actor to any action, proposal or result in which this person assumes (or shares) responsibility for the consequences... ... Political science. Dictionary.

Unanimity, like-mindedness, one-mindedness, strike, solidarity, unanimity, unity, peace, agreement, agreement, modus vivendi; proportionality, uniformity, correspondence, consonance, harmony, mode, symmetry, symphony, unison, ensemble, concert;… … Synonym dictionary

Agreement- Agreement ♦ Acceptance To agree means to make one’s own, to accept, to recognize, to say “yes” to what is or will be. This is the only way to live, as the ancient Greeks said, gomologoumenos, that is, in inextricable harmony with nature and reason... Sponville's Philosophical Dictionary

CONSENT, consent, cf. 1. units only An affirmative answer to a request for something. To do or ask for permission to do something. Do it, permission. Give consent to something. Express your consent to do something. "Silence is a sign... ... Ushakov's Explanatory Dictionary

- (acceptance) 1. A signature on a bill of exchange, confirming that the person to whom it is issued agrees with the terms of the bill. The following is usually written: Accepted, payable at... (name and address of the bank). (Signature) … Dictionary of business terms

Soullessness, lawlessness, theology, traitor, forerunner, conscience, consent. [...] the vast majority of literary monuments surviving from the Rus of the Kievan period reflect Byzantine-Bulgarian influence. In the Church Slavonic language there was... ... History of words

CONSENT, I, cf. 1. One of the movements within the Old Believer sense (special). 2. Permission, an affirmative response to a request. Give s. what n. With the consent of the boss (having his consent). Silence is a sign of consent (last). 3. Like-mindedness, community... ... Ozhegov's Explanatory Dictionary

Agreement- Ethical requirement, according to which all participants in the experiment or patients must agree with the upcoming procedures. In the context of experimental research, this also implies that participants may withdraw from the experiment... ... Great psychological encyclopedia

agreement- express agreement demonstration give consent action give consent action achieve agreement action, causation wait for agreement modality, expectation achieve agreement action achieve agreement action, begin to express... ... Verbal compatibility of non-objective names

Wiktionary has an entry for “consent.” Consent is a positive response to a request, like-mindedness. Agreement (interpretation) means ... Wikipedia

Books

• Consent to medical intervention is a patient’s right and a medical professional’s responsibility
• Consent to medical intervention is the right of the patient and the obligation of the medical worker (Russian legislative framework on the patient’s right to inform voluntary consent to medical IM, Filippov Yuri Nikolaevich, Abaeva Olga Petrovna, Tarychev Vladislav Vitalievich. Present tutorial provides an overview of modern regulatory framework, which determines the procedure for exercising the patient’s right to informed voluntary consent, the algorithm for processing this...

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.

The Labor Code of the Russian Federation in Article 72.1 defines transfer to another job as a temporary or permanent change in function or structural unit 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.

In order to correctly terminate an employment contract with an employee and formalize a dismissal based on a transfer, the HR department must have a request on hand third party organization for the transfer of an 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 the payment of wages to the employee and, if there is unused leave, monetary compensation for it. 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 of labor discipline and is not subject to any disciplinary sanctions.
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 drawn up at the employer’s initiative, the agreement must include a phrase about absence probationary period and indicates the date when the employee will have to begin performing his 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 federal body executive power 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 the referral for alternative civilian service. to this employee and notify territorial organization Federal Labor and Employment Service 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. Respectively Labor Code RF, Article 64, the period for processing employee documents cannot exceed one month from the date of dismissal from the previous place of work. Arising from an employee's new organization problems, ranging 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.

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