As of: 09.10.2006
Magazine: Directory of personnel officer
Year: 2006
Author: Kostyan Irina Alexandrovna
Theme: Documents personnel service, Temporary transfer to another job
Category: HR practice
In practice, situations are not uncommon in which the employer is forced to replace a temporarily absent employee. It happens in the following cases: the employee uses annual paid leave, leave without saving wages, during the period of his temporary incapacity for work, maternity leave, in other cases when the place of work is retained for the temporarily absent employee in accordance with the law.
The Labor Code of the Russian Federation provides for several options for replacing a temporarily absent employee:
– temporary transfer to another job;
– movement;
– combination of professions (positions);
– conclusion of a fixed-term employment contract during the absence of the employee.
Different types of replacement of a temporarily absent employee have much in common, which is a kind of prerequisite for legal errors made by the parties to an employment contract in practice. At the same time, the types of replacement of a temporarily absent employee listed above differ significantly from each other both in form and in content.
In addition, Federal Law No. 90-FZ of June 30, 2006 “On Amendments to the Labor Code Russian Federation recognition as not valid on the territory of the Russian Federation of certain normative legal acts of the USSR and invalidated certain legislative acts (provisions of legislative acts) of the Russian Federation” made a number of significant changes to legal regulation replacement of a temporarily absent employee.
In order to determine which of the existing forms to choose, taking into account specific circumstances, it is necessary to identify the features of each of them, which will make it possible to find the optimal, and in some cases the only acceptable way.
Today we will talk about a temporary transfer to another job to replace a temporarily absent employee.
As a rule, to replace a temporarily absent employee, in practice, a temporary transfer to another job was used due to production needs. Prior to the introduction of amendments to the Labor Code of the Russian Federation (in 2006) in accordance with Art. 74 of the Labor Code of the Russian Federation, in the event of a production need, the employer had the right, on his own initiative, to transfer the employee in the same organization to another job not stipulated by the employment contract. Production necessity was understood, in particular, as the need to replace an absent worker.
The changes made to the Labor Code of the Russian Federation in 2006 modified in some way the legal potential of both the employer and the employee in the situation under consideration. Now the norms of the Labor Code of the Russian Federation provide for the possibility of applying a temporary transfer both in case of production necessity, and in situations not related to it.
Note!
Temporary transfers can be made:
by agreement of the parties (employee and employer);
unilaterally at the initiative of the employer:
in the absence of the consent of the employee;
with the consent of the employee
IN modern conditions temporary transfers can conditionally be divided into two groups: transfers allowed by agreement of the parties (employee and employer); transfers carried out by the employer unilaterally on their own initiative.
In turn, temporary transfers at the initiative of the employer are of two types: transfers carried out by the employer in the absence of the consent of the employee, and transfers allowed with the consent of the employee.
Consider three possible options temporary transfer of an employee to replace an absent employee.
Translation by agreement of the parties
In accordance with Part 1 of Art. 722 of the Labor Code of the Russian Federation, a temporary transfer to another job with the same employer to replace a temporarily absent employee is allowed only by agreement of the parties. The previous rule under Art. 74 of the Labor Code of the Russian Federation, did not regulate the procedure for the implementation of a temporary transfer to another job by agreement of the parties, however, did not prohibit it. In practice, often to replace a temporarily absent employee, the parties to the employment contract used their right to make appropriate changes to the employment contract, including those of a temporary nature, by agreement of the parties. Therefore, in the situation under consideration, on the basis of a written agreement signed by the parties, the labor function of the employee, the structural unit in which he worked, the amount and forms of remuneration, etc., could be changed for a certain period.
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The duration of a transfer to another job to replace an absent employee cannot exceed one month during a calendar year (from January 1 to December 31). With written consent, an employee may be transferred to a job requiring a lower qualification. |
By agreement of the parties, concluded in writing, an employee may be temporarily transferred to another job with the same employer for a period of up to one year, and if such a transfer is carried out to replace a temporarily absent employee who, in accordance with the law, retains his job, until the employee returns to work. If, at the end of the transfer period, the employee is not provided with the previous job, but he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent. In the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic, and in any exceptional cases that endanger the life or normal living conditions of the entire population or part of it, the employee may be transferred without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer in order to prevent these cases or eliminate their consequences. The transfer of an employee without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer is also allowed in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent the destruction or damage to property, or replacement of a temporarily absent employee, if downtime or the need to prevent the destruction or damage to property or to replace a temporarily absent employee caused by emergency referred to in the second part of this article. At the same time, transfer to work requiring lower qualifications is allowed only with the written consent of the employee. When transfers are made in the cases provided for in parts two and three of this article, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job. |
However, the lack of legal norms establishing the right and procedure for transferring to another job to replace a temporarily absent employee, for example, for the period of his stay on parental leave for up to three years, entailed the transformation of an employment contract concluded for indefinite term, in a fixed-term employment contract. Therefore, the basis for terminating an employment contract with an employee transferred to another job of a temporary nature was often the expiration of its validity due to the temporary absence of an employee who was retained by law by law. All this significantly reduced the legal guarantees of employees temporarily transferred by agreement of the parties to another job for a long-term replacement of a temporarily absent employee.
Currently, based on a written agreement between the parties, two types of temporary transfers are allowed:
- for up to one year;
- for the entire period of absence of the employee, for whom the law retains the place of work.
transfer to another job for up to one year is essentially unlimited. Therefore, from a formal point of view, it seems possible, by agreement of the parties, to temporarily transfer an employee both to replace a temporarily absent employee and to a vacant position. In this regard, the employer has time to solve his problems, for example, to find a suitable, in his opinion, employee for a vacant position.
Note!
Now the Labor Code of the Russian Federation allows the temporary transfer of an employee to a vacant position for up to 1 year. Required condition- agreement of the parties
Transfer to work to replace a temporarily absent employee is limited to the period of absence of the employee, for which, according to the law, the place of work is retained. In this case, the deadline for the temporary transfer is the date when the temporarily absent employee returns to work, who, in accordance with the law, retains workplace. In the second case, a temporary transfer to another job is allowed only to replace a temporarily absent employee. Obviously, this form of substitution can be used by the employer and the employee in situations where it is necessary to replace an employee who is on maternity leave, parental leave, due to temporary disability, etc. ( Application 1)
Thus, on the one hand, the legislator increased the duration of the temporary transfer of an employee to another job to replace an absent employee to one year or more, on the other hand, such a transfer is not allowed if there is no agreement between the parties.
What is meant by "agreement of the parties"? Will the signature of the employee on the transfer order be sufficient?
The consent of the employee to transfer to another job to replace the temporarily absent employee in this situation is clearly not enough. Therefore, familiarizing the employee with the employer's order to transfer him to another job for a certain period of time and obtaining his consent to such a transfer cannot be fully considered as compliance with labor laws.
It also seems unlawful to carry out a temporary transfer to another job to replace a temporarily absent employee by notifying the employee about this against receipt and obtaining written consent from him for such a transfer. The issuance of an employer's order for a temporary transfer to another job and an employee's visa on consent to work in changed conditions or a written statement from the employee in which he expresses his consent to the transfer also does not allow us to fully regard this as compliance by the employer with labor legislation. This is due to the different content of the concepts of "consent" and "agreement".
The consent of one party (the employee) implies the existence of an initiative coming from the other party to the employment contract - the employer. Meanwhile, the agreement of the parties is an opportunity for bilateral (on an equal footing) determination by the parties of working conditions. In this case, a temporary transfer to another job can be carried out as a result of the parties agreeing on all the terms of the employment contract that are subject to change: the amount of wages, working hours, etc. Therefore, the agreement of the parties on the temporary transfer of the employee to another job with the same employer is subject to conclusion in writing.
Note!
The basis for issuing an order to transfer an employee to another job, including to replace a temporarily absent employee, is an additional agreement to the employment contract
Therefore, the basis for an order to temporarily transfer an employee to another job in this case is a written agreement of the parties to amend the employment contract. Such an agreement is drawn up, as a rule, in two copies - one for each party. (An exception is cases when an employment contract is concluded in more than two copies.) It must be signed by both parties to the employment contract. The content of the agreement may be conditions that change in connection with the ongoing activities: change of position (specialty, labor function); structural unit, as well as conditions related to this transfer, such as a change in wages, a change in working hours, the term for changes made to the employment contract by agreement of the parties.
Note!
Part 1 Art. 722 of the Labor Code of the Russian Federation provides for cases when a temporary transfer will be considered permanent
It is necessary to pay attention to the legal consequences provided for by Part 1 of Art. 722 of the Labor Code of the Russian Federation. The expiration of the term of the transfer may entail the recognition of the provision on the temporary nature of such a transfer as invalid, and the temporary transfer, therefore, will be considered permanent. This happens when two conditions are present at the same time:
- the employer did not provide the employee with the previous job;
- the employee has not stated the requirement to provide him with the previous job.
Here we can see the application of the analogy of the law that regulates the rule of transforming fixed-term labor relations into relations of a permanent nature, according to which the absence of the will of the parties (one of the parties) of the employment contract entails the recognition of a fixed-term employment contract as a contract concluded for an indefinite period. This change, which is of great importance, obliges the employer to keep track of the validity of the temporary transfer. It should be borne in mind that the employer does not always know the date of entry to work of the employee, who, according to the law, retains his place of work.
For example, a woman who is on parental leave has the right to interrupt it at her own discretion at any time convenient for her and go to work without notifying the employer.
The date of her entry to work should serve as the basis for the parties to the employment contract (employee and employer) to end the transfer to another job.
At the same time, the rules of Part 1 of Art. 722 of the Labor Code of the Russian Federation are not formulated correctly enough. Thus, the transformation of a temporary transfer into a permanent transfer is due to the lack of actions on the part of the employer to provide the previous job to the employee transferred to another job to replace the temporarily absent employee.
At the same time, the procedure for providing an employee with a previous job is not defined by law. In this regard, questions arise:
- Is it necessary to issue an order to transfer the employee to his previous place of work, and what in this case can serve as the basis for such a transfer?
- Is it necessary to notify the employee in writing about the exit to his workplace of a temporarily absent employee, and if so, in what form?
- Is it possible not to formalize in writing the fact of providing an employee temporarily transferred to another job, the former place of work (position)?
In our opinion, the rule stipulated by the labor legislation for transforming a temporary transfer into a permanent transfer obliges the employer to notify the employee (notify him) of the provision of the previous job in connection with the return to work of the employee whom he replaced in accordance with a written agreement of a temporary nature. Otherwise, a situation is possible in which two employees may be in the same position, who will be persons working under an employment contract concluded for an indefinite period. So, if on the day a temporarily absent employee enters work, the employer does not provide the previous job to the employee temporarily replacing the absent one, then two persons may be in the same position at once.
Suppose, on December 28, 2006, Ivanov Ivan Ivanovich, due to the end of temporary disability, goes to work as the chief specialist of department N in accordance with the terms of the employment contract concluded when he was hired. At the same time, on December 28, 2006, in accordance with the Internal Labor Regulations, Petrov Petr Petrovich, transferred to the same position from the position of a leading specialist of the same department in accordance with a written agreement of the parties, goes to work during the absence of Ivanov Ivan Ivanovich.
In the situation under consideration, if on December 28, 2006 the employer does not provide Petrov Petr Petrovich with the previous job he occupied before being transferred to the position of chief specialist of department N, and Petrov P.P. himself does not demand its provision, then Petrov P.P. will be working in the position of chief specialist of department N. The condition on the temporary nature of the transfer of Petrov P.P. on December 28, 2006 becomes invalid.
To avoid similar situations the employer, most likely, will have to somehow fix the fact of providing Petrov P.P. with the previous (occupied by him before the transfer) job (position).
The most optimal, in our opinion, may be the notification of Petrov P.P. about Ivanov I.I. application 2).
Such notification should be in writing. Its content can be arbitrary. It seems that the notification should be signed by a person with the right to hire and dismiss workers. It can be prepared in two copies, one of which must be handed over to the employee, and on the other, which remains with the employer, there must be a mark of delivery.
If the employee for some reason refuses to receive the notification, it is advisable for the employer to draw up an act about this.
Note!
The procedure for formalizing the provision of a former place of work to an employee of the Labor Code of the Russian Federation is not defined
In our opinion, there is no need to issue an order to transfer the employee to the previous place of work, since the transfer itself is temporary. At the same time, such an order cannot be recognized as illegal due to the fact that the procedure for formalizing the provision of a former place of work to an employee is not defined by law. Therefore, the employer, taking into account the rules for office work in force in the organization, has the right to issue an order (instruction) to transfer the employee to his former place of work in connection with the employee's return to work, for which the former place of work was retained for the period of his absence.
Such a document must contain the following information:
- last name, first name and patronymic of the employee;
- the name of the position in which he is in connection with the temporary transfer;
- the name of the position to which he should return;
- grounds (the fact of the employee's return to work, indicating his last name, first name and patronymic, the reasons for his absence);
– date of transfer.
If such an order (instruction) of the employer on the transfer to the previous place of work is issued, it is necessary to familiarize the employee with it against receipt. In case of refusal to familiarize with the order (instruction) or refusal to sign on familiarization with it, this fact should be formalized by the relevant act.
Transfer at the initiative of the employer in the absence of the consent of the employee
In the absence of the consent of the employee, as before, a temporary transfer to another job is allowed at the initiative of the employer, if necessary, to replace a temporarily absent employee for a period not exceeding one month. At the same time, the transfer of an employee is allowed for work not stipulated by the employment contract with the same employer, and the consent of the employee for such a transfer is not required. The exception is cases of transfer to work requiring lower qualifications, which are allowed only with the written consent of the employee. Just as before, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job.
Note!
The number of temporary transfers at the initiative of the employer for up to one month to replace a temporarily absent employee in the event of a production need is not limited
It should be noted that since Part 3 of Art. 722 of the Labor Code of the Russian Federation does not contain any restrictions on the number of temporary transfers allowed at the initiative of the employer, for a period of up to one month, it seems that such transfers can be repeated. The rule that was previously provided for by Parts 1 and 2 of Art. 74 of the Labor Code of the Russian Federation, limited the maximum allowable duration of a temporary transfer to replace an absent employee to one month within one calendar year (from January 1 to December 31). This made it possible to speak about the possibility of repeatedly transferring an employee to another job to replace an absent employee, but at the same time for a total period of not more than one month during a calendar year. Today, this assertion is not supported by anything.
At first glance, the innovation essentially weakened the legal guarantees of workers. The norm under consideration contradicts the principle of labor law, enshrined in Art. 2 of the Labor Code of the Russian Federation, which proclaims freedom of labor, including the right to work, which everyone freely chooses or to which he freely agrees, the right to dispose of his abilities for work, to choose a profession and type of activity. So, within the meaning of Part 3 of Art. 722 of the Labor Code of the Russian Federation, the employer, in the absence of any restrictions, has the right to repeatedly use the work of an employee at his own discretion, repeatedly demand from him to perform work not stipulated by an employment contract, for periods of up to one month. In this case, the declarative is provided by Art. 2 of the Labor Code of the Russian Federation, the principle proclaiming the obligation of the parties to an employment contract to comply with the terms of the concluded contract, including the right of employees to demand that the employer comply with his obligations towards them. In addition, it seems doubtful whether it is possible to protect the right of an employee to demand that the employer provide him with work stipulated by an employment contract.
However, in reality there is no contradiction here. When applying part 3 of Art. 722 of the Labor Code of the Russian Federation, which allows the temporary transfer of an employee at the initiative of the employer to a job not stipulated by an employment contract in the same organization in case of production necessity, it is necessary to be guided by international legal acts.
Note!
The transfer of an employee without his consent for a period of up to one month, including to replace a temporarily absent employee, is allowed only in the presence of emergency circumstances specified in Part 2 of Art. 722 of the Labor Code of the Russian Federation
However, based on these provisions of the ILO Convention on Forced or Compulsory Labor, under Part 2 of Art. 722 of the Labor Code of the Russian Federation, temporary transfer of an employee without his consent to work not stipulated by an employment contract to prevent downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), destruction or damage to property, as well as to replace an absent employee may be considered justified, provided that it was caused by extraordinary circumstances (subparagraph "e" of clause 4 of the Convention, part 4 of article 4 of the Labor Code of the Russian Federation), or when failure to take these measures could lead to a catastrophe, industrial accident, natural disaster, accident, and the like.
Given the great role of international legal acts in the regulation of labor relations, one should be more attentive to the conventions ratified by our state and in force on its territory.
In the event of a legal and justified temporary transfer of an employee to another job at the initiative of the employer, the employee is not entitled to refuse to comply with the employer's order, by which he was temporarily transferred to another job for up to one month. Moreover, by virtue of paragraph 19 of the resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, refusal to perform work during a translation made in compliance with the law is recognized as a violation of labor discipline, and absence from work is recognized as absenteeism.
However, it should be noted that, by virtue of par. 5 st. 219 and part 7 of Art. 220 of the Labor Code of the Russian Federation, an employee cannot be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, with the exception of cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with harmful and (or) hazardous conditions work not covered by the employment contract.
Since the Labor Code of the Russian Federation does not contain norms prohibiting an employee from exercising this right, his refusal to temporarily transfer to another job in accordance with Art. 722 of the Labor Code of the Russian Federation for the above reasons is reasonable.
transfer to a job with a lower qualification with the consent of the employee
Transfer of an employee at the initiative of the employer to a job requiring lower qualifications for up to 1 month in case emergencies allowed only with the written consent of the employee.
The absence of the written consent of the employee to such a transfer does not allow the employer to require him to perform work not stipulated by the employment contract. In this regard, the transfer to another (temporary) job at the initiative of the employer, committed in violation of labor legislation, in particular in the absence of the written consent of the employee, is illegal. Therefore, the employee's refusal to comply with the employer's order in this case is lawful, and the employer, therefore, is not entitled to apply disciplinary measures to the employee.
The written consent of the employee implies the initiative of the employer, so it can be issued different ways. In particular, the employer has the right to issue an order (instruction) on the transfer of an employee to replace a temporarily absent employee to a job that requires lower qualifications. The basis for such an order (instruction) may be the consent of the employee, drawn up in writing ( application 3)
By the way
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By general rule, the appointment of an employee as temporarily acting in a vacant position is not allowed. So, clarifications of the USSR State Committee for Labor No. 30 and the All-Union Central Council of Trade Unions No. 39 of December 29, 1965 “On the procedure for paying for temporary replacement” determined the procedure for assigning the duties of a temporarily absent employee. In particular, in accordance with paragraph 2 of the clarifications, the appointment of an employee as acting in a vacant position is not allowed. The exception is cases of performance of duties by position, appointment |
which is made by a higher authority. In this case, the head of the organization is obliged, no later than one month from the date of hiring the employee, to submit documents to the higher management body for his appointment to the position. The governing body within a month from the date of receipt of the documents must consider this issue and inform the head of the results. If an employee accepted by a manager who is not from among the employees of this organization is not approved in the position, he must |
be offered another job, taking into account his qualifications and work experience. In the absence of relevant work or refusal of the offer, he is released from work on the grounds provided for by law, for example, by agreement of the parties. In the event that an employee promoted to a managerial position from the reserve of this organization is not approved, he must be provided with work with qualifications and pay not lower than that which he performed before being appointed to a new position. |
Thus, the basis for the transfer of an employee to replace a temporarily absent employee, depending on the period, is:
- a written agreement of the parties - a transfer for a period of up to one year, as well as for the period of absence of the employee, who, according to the law, retains his former place of work;
- a written order (instruction) of the employer - a transfer for a period of up to one month (if there are sufficient grounds for this);
- a written order and the written consent of the employee - a transfer for a period of up to one month (if there are sufficient grounds for this), subject to the performance of work of a lower qualification.
Annex 1
An example of an additional agreement to an employment contract
Annex 2
Legal basis : Labor Code of the Russian Federation, art. 72.2.
Cases of temporary absence from work of a permanent employee
Annual leave (Article 114 of the Labor Code of the Russian Federation)
Study leave (art. 173 - 177 of the Labor Code of the Russian Federation)
Maternity leave (Article 255 of the Labor Code of the Russian Federation)
Leave to care for a child (Article 256 of the Labor Code of the Russian Federation)
Leave without pay (Article 128 of the Labor Code of the Russian Federation)
Business trip (Article 167 of the Labor Code of the Russian Federation)
Temporary disability
Time of performance of state or public duties (Article 170 of the Labor Code of the Russian Federation)
Advanced training with a break from work (Article 187 of the Labor Code of the Russian Federation)
1. Initiating a temporary transfer.
The initiative can be shown both by the employee in the form of writing a transfer application, and by the employer in the form of a written proposal.
5. Registration of an order (instruction) on transfer to another job.
The transfer to another job is formalized by the order (instruction) of the employer, issued on the basis of the concluded additional agreement to the employment contract.
The order (instruction) on the transfer to another job has a unified form - No. T-5 (on the transfer of an employee to another job) or No. T-5a (on the transfer of employees to another job), approved by the Decree of the State Statistics Committee of the Russian Federation No. 1 of 01/05/2004.
An order to transfer an employee (employees) to another job is signed by the head of the organization.
6. Order registration in the order register
7. Familiarization of the employee with the order against signature
The order (instruction) of the employer on the transfer is announced to the employee against signature.
At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order (instruction).
It should be remembered: an entry about a temporary transfer is not made in the work book.
9. Registration of an order (instruction) on the transfer to the previous job.
At the end of the temporary transfer period, an order is issued to transfer to the previous job.
The Labor Code of the Russian Federation provides for several options for replacing a temporarily absent employee:
- temporary transfer to another job;
– movement;
– combination of professions (positions);
– conclusion of a fixed-term employment contract during the absence of the employee.
Different types of replacement of a temporarily absent employee have much in common, which is a kind of prerequisite for legal errors made by the parties to an employment contract in practice. At the same time, the types of replacement of a temporarily absent employee listed above differ significantly from each other both in form and in content.
However, in reality there is no contradiction here. When applying part 3 of Art. 72 2 of the Labor Code of the Russian Federation, which allows the temporary transfer of an employee at the initiative of the employer to a job not stipulated by an employment contract in the same organization in case of production necessity, it is necessary to be guided by international legal acts.
Note! The transfer of an employee without his consent for a period of up to one month, including to replace a temporarily absent employee, is allowed only in the presence of emergency circumstances specified in Part 2 of Art. 72 2 of the Labor Code of the Russian Federation
However, based on these provisions of the ILO Convention on Forced or Compulsory Labor, under Part 2 of Art. 72 2 of the Labor Code of the Russian Federation, temporary transfer of an employee without his consent to work not stipulated by an employment contract to prevent downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), destruction or damage to property, as well as to replace an absent employee may be considered justified, provided that it was caused by extraordinary circumstances (subparagraph "e" of paragraph 4 of the Convention, part 4 of article 4 of the Labor Code of the Russian Federation), or when failure to take these measures could lead to a catastrophe, industrial accident, natural disaster, accident and the like.
Given the great role of international legal acts in the regulation of labor relations, one should be more attentive to the conventions ratified by our state and in force on its territory.
In the event of a legal and justified temporary transfer of an employee to another job at the initiative of the employer, the employee is not entitled to refuse to comply with the employer's order, by which he was temporarily transferred to another job for up to one month. Moreover, by virtue of clause 19 of Resolution No. 2 of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, refusal to perform work in a translation made in compliance with the law is recognized as a violation of labor discipline, and absence from work work - absenteeism.
However, it should be noted that, by virtue of par. 5 st. 219 and part 7 of Art. 220 of the Labor Code of the Russian Federation, an employee cannot be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, with the exception of cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with harmful and (or) dangerous working conditions not provided for by the employment contract.
Since the Labor Code of the Russian Federation does not contain norms prohibiting an employee from exercising this right, his refusal to temporarily transfer to another job in accordance with Art. 72 2 of the Labor Code of the Russian Federation for the above reasons is reasonable.
transfer to a job with a lower qualification with the consent of the employee
The transfer of an employee at the initiative of the employer to a job requiring lower qualifications for up to 1 month in case of emergency is allowed only with the written consent of the employee.
The absence of the written consent of the employee to such a transfer does not allow the employer to require him to perform work not stipulated by the employment contract. In this regard, the transfer to another (temporary) job at the initiative of the employer, committed in violation of labor legislation, in particular in the absence of the written consent of the employee, is illegal. Therefore, the employee's refusal to comply with the employer's order in this case is lawful, and the employer, therefore, is not entitled to apply disciplinary measures to the employee.
The written consent of the employee implies the initiative of the employer, so it can be issued in various ways. In particular, the employer has the right to issue an order (instruction) on the transfer of an employee to replace a temporarily absent employee to a job that requires lower qualifications. The basis for such an order (instruction) may be the consent of the employee, drawn up in writing ( application 3)
By the way
|
As a general rule, the appointment of an employee as temporarily acting in a vacant position is not allowed. So, clarifications of the USSR State Committee for Labor No. 30 and the All-Union Central Council of Trade Unions No. 39 of December 29, 1965 “On the procedure for paying for temporary replacement” determined the procedure for assigning the duties of a temporarily absent employee. In particular, in accordance with paragraph 2 of the clarifications, the appointment of an employee as acting in a vacant position is not allowed. The exception is cases of performance of duties by position, appointment |
which is made by a higher authority. In this case, the head of the organization is obliged, no later than one month from the date of hiring the employee, to submit documents to the higher management body for his appointment to the position. The governing body within a month from the date of receipt of the documents must consider this issue and inform the head of the results. If an employee accepted by a manager who is not from among the employees of this organization is not approved in the position, he must |
be offered another job, taking into account his qualifications and work experience. In the absence of relevant work or refusal of the offer, he is released from work on the grounds provided for by law, for example, by agreement of the parties. In the event that an employee promoted to a managerial position from the reserve of this organization is not approved, he must be provided with work with qualifications and pay not lower than that which he performed before being appointed to a new position. |
Thus, the basis for the transfer of an employee to replace a temporarily absent employee, depending on the period, is:
- a written agreement of the parties - a transfer for a period of up to one year, as well as for the period of absence of the employee, who, according to the law, retains his former place of work;
- a written order (instruction) of the employer - a transfer for a period of up to one month (if there are sufficient grounds for this);
- a written order and the written consent of the employee - a transfer for a period of up to one month (if there are sufficient grounds for this), subject to the performance of work of a lower qualification.
Annex 1
An example of an additional agreement to an employment contract
Annex 2
An example of notifying an employee about the provision of his former place of work in connection with the return to work of a temporarily absent employee
Appendix 3
An example of obtaining the consent of an employee to transfer to replace a temporarily absent employee for up to 1 month to a job requiring lower qualifications
