How to transfer from a temporary job to a permanent one. How to transfer an employee from temporary to permanent work

Employees of institutions can receive temporary status for a number of reasons. One of them is replacing another specialist in a position if he went on administrative leave, etc. But the former employee can. In this case, the question will certainly arise of how to transfer a previously accepted person from a temporary position to a permanent job. The procedure does not imply a complex scheme of actions. It is not necessary to draw up a statement asking to be fired, and then follow it with a demand to be hired again. However, there are some nuances that are worth considering. They are related to paperwork.

Transfer from a temporary position to a permanent one according to the Labor Code of the Russian Federation

Assumes certain requirements. A fixed-term employment contract may become invalid if neither the employee nor the employer has previously requested termination of the document due to its expired date. At the same time, the specialist continues to perform his functions after the contract has expired.

Attention

After a fixed-term employment contract has expired, it automatically becomes concluded for an indefinite period. Additional agreement will be required. It will indicate that the contract is of unlimited duration, and the work changes in nature from temporary to permanent.

Required documents

List of documents required to obtain permanent employment status within the organization:

Application from a specialist with a request to apply for a permanent position. It should be written before the temporary contract expires. The document is drawn up in the name of the first person of the company.
An order to transfer an employee from temporary to permanent work, issued on the basis of an application. It contains the following information:
-type and reasons for re-registration;
- initials of the specialist;
-previous and new places of employment;
- number, date of signing and completion of the previously concluded labor document.

New agreement. It must reflect the position, salary, rights and obligations. Drawed up in two copies. Signed by both parties and sealed with the company's seal.
Job description. You will also need a note in the work book indicating the position, date and order number.
An order stating that the employee’s staffing table and vacation schedule have changed.

For your information

There is an alternative way of registration - to terminate the temporary contract. But in this case the period of service is interrupted. A new order, card, file will be required. This procedure is a necessary measure. They resort to it only when the necessary papers for re-registration for permanent work have not been prepared before the expiration of the temporary document.

All documents require signatures of both parties and are certified by the seal of the organization.

Order to transfer an employee to permanent work

The order to transfer an employee to permanent work has a unified form No. T-5. The form, taking into account the specialist’s consent given in writing, is filled out by an employee of the HR department.

Step-by-step translation instructions

The specificity of the procedure for transferring an employee to a permanent job is that it can be carried out both within the organization and with a transfer to another employer. For internal transfer, an order and an entry in the work book are sufficient. For an external one, you will need to leave one employer and apply for employment with another.

Step-by-step instructions.

For external re-registration the new employer draws up a written application using the full name of the head of the previous institution where the employee is employed. The invitation indicates the specialist’s initials, his position, as well as the date of planned admission to the new organization. The letter is assigned a number and date, it is certified by the seal of the institution and signed by the director.
The current boss is writing a letter to the future boss. This is followed by the answer - the consent of the new manager, certified by signature and seal.
Notification of an external transfer to a permanent job is provided at least 8 weeks before the procedure. The employee's consent will be required in writing. In it, he will have to indicate that he is familiar with the text of the notification.
The dismissal-transfer order is drawn up with reference to. The document is certified by the seal and signature of the manager. In addition, the employee also signs it.
Part of the procedure ends with an entry in the labor report about dismissal and transfer to another institution. After this, the fired person receives money against payment and his personal card is closed.
The specialist who has received the book draws up an application with demands to accept him for permanent employment, and a contract is concluded with him that does not imply a probationary period. An order document on admission to a position through transfer from another institution is also generated. A new personal card is issued.
For internal re-registration The specialist is notified in writing about the procedure for transferring an employee from temporary to permanent work two months before the start of preparation. The employee confirms consent with a dated signature or statement.
An additional agreement to the contract is concluded taking into account the changed responsibilities. Based on the agreement, an order is created. The position, initials, transfer department, and salary amount are discussed.
The relevant data is recorded in the work book.

Transfer of an employee from a permanent job to a temporary one

The placement of a temporary employee occurs with reference to. According to its requirements, a fixed-term contract is drawn up with the employee, implying a certain period of validity.

Translation stages.

The applicant draws up an application letter with an assigned serial number addressed to management personnel.
Copies of the documents of the future temporary worker are taken - passport data, SNILS, INN, diploma. A driver's license and medical record may be required.
An acceptance order is issued. In the “conditions” line, “temporarily” is written with the dates indicated. Signed by both parties.
An urgent labor document is drawn up, which specifies the rights, responsibilities and nature of employment. If it is intended to temporarily fill the place of the main specialist, then the initials of the main person are indicated. The payment procedure and working hours are prescribed. In certain cases, a fixed-term contract requires additional agreements. Usually we are talking about situations where key personnel extend their vacation for various reasons.
The temporary worker’s personal file is completed and a personal card is created.

Nuances

The nuances of re-registering a temporary specialist for a permanent job are important for those who want to minimize the number of errors. You need to know the exact wording of the terms of the Labor Code of the Russian Federation, as well as the process of drawing up documents, the number of required samples and other information.

Transfer is an appointment to a specific position that requires consent from the employee.
The agreement on re-registration includes the main points of the procedure, is drawn up in two copies, signed by both the employee and the manager.
The transition period is the time period during which this procedure occurs. Negotiated individually with the employee.
An employment contract reflects data on rights, responsibilities, and salary.

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Can I transfer to a temporary position without being fired?

Hello. I have been working in a bank for 2 years. My permanent position is as a consultant. I want to transfer as an operator, but I was offered only a temporary position instead of a maternity leaver. And to do this, I will need to resign from my permanent job after they hire me as a temporary one. It is legal? Can I transfer to a temporary position without being fired?

Alexey Vladimirovich(04/13/2016 at 21:45:43)

Hello,

The law provides for 2 procedures for transferring employees:

a) temporary transfer;

b) permanent transfer.

For any such transfer, the employee's consent to such transfer is required. The conditions of the first transfer are regulated in Art. 72.1 Labor Code of the Russian Federation:

Transfer to another job is a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if the structural unit was indicated in), while continuing to work for the same employer, as well as transfer to work in another area along with employer. Transfer to another job is permitted only with the written consent of the employee, except for the cases provided for in parts two and three of Article 72.2 of this Code.

At the written request of the employee or with his written consent, the employee may be transferred to permanent work with another employer. In this case, the employment contract at the previous place of work is terminated (clause 5 of part one of Article 77 of this Code).

The employee’s consent is not required to move him from the same employer to another workplace, to another structural unit located in the same area, or to assign him work on another mechanism or unit, unless this entails a change in the terms of the employment contract determined by the parties.

It is prohibited to transfer or relocate an employee to a job that is contraindicated for him due to health reasons.

Since when you transfer from the position of a consultant to the position of an operator, there is a change in your job function, then for such a transfer you will need to conclude a new employment contract, or draw up an additional one. an agreement into force, in which a new job function and job responsibilities of an operator will be added to your employment contract.

If you are planning to take a temporary position, you must remember that the employer enters into an agreement with you only until the main employee returns from maternity leave. As soon as he leaves, your employment in this temporary position will be terminated. In this case, the employer can transfer you to another vacant position, based on the level of your skills or qualifications and the availability of vacancies.

Oleg Eduardovich(04/14/2016 at 05:42:23)

Good afternoon.

If you quit and then are hired to take the place of a maternity leaver, then after she returns to work you will simply be fired. In accordance with Article 256, upon application by a woman, she is granted until she reaches the age of three years. She retains her place of work (position). She can interrupt this vacation at any time and go to work. To do this, she must submit a corresponding application.

This is why you are being asked to resign.

If you need more detailed advice or assistance in this matter, please contact me by email. mail or call, contacts are listed below. I'll be glad to help.

Ivanenko Anzhelika(04/14/2016 at 08:49:55)

Hello. It would be illegal to quit your job. You and your employer have entered into an employment contract that regulates your labor relations. Dismissal involves termination of the employment contract with all the consequences of termination of the employment contract, which are provided for in Chapter 13 of the Labor Code of the Russian Federation. In your case, the employment relationship with the employer does not terminate, but the conditions of the labor functions you perform with the same employer change, therefore there is a change in the employment contract, the provisions of which are regulated by Article 72.1 of the Labor Code of the Russian Federation. Your written consent is required to change the essential terms of the employment contract. Since this occurs on your initiative, your consent can be expressed in

Transfer from a temporary position to a permanent one according to the Labor Code of the Russian Federation

Attention

Required documents

List of documents required to obtain permanent employment status within the organization:

Application from a specialist with a request to apply for a permanent position. It should be written before the temporary contract expires. The document is drawn up in the name of the first person of the company.
An order to transfer an employee from temporary to permanent work, issued on the basis of an application. It contains the following information:
-type and reasons for re-registration;
- initials of the specialist;
-previous and new places of employment;
- number, date of signing and completion of the previously concluded labor document.

New agreement. It must reflect the position, salary, rights and obligations. Drawed up in two copies. Signed by both parties and sealed with the company's seal.
Job description. You will also need a note in the work book indicating the position, date and order number.
An order stating that the employee’s staffing table and vacation schedule have changed.

For your information

All documents require signatures of both parties and are certified by the seal of the organization.

Order to transfer an employee to permanent work

Step-by-step translation instructions

Step-by-step instructions.

For external re-registration the new employer draws up a written application using the full name of the head of the previous institution where the employee is employed. The invitation indicates the specialist’s initials, his position, as well as the date of planned admission to the new organization. The letter is assigned a number and date, it is certified by the seal of the institution and signed by the director.
The current boss is writing a letter to the future boss. This is followed by the answer - the consent of the new manager, certified by signature and seal.
Notification of an external transfer to a permanent job is provided at least 8 weeks before the procedure. The employee's consent will be required in writing. In it, he will have to indicate that he is familiar with the text of the notification.
The dismissal-transfer order is drawn up with reference to. The document is certified by the seal and signature of the manager. In addition, the employee also signs it.
Part of the procedure ends with an entry in the labor report about dismissal and transfer to another institution. After this, the fired person receives money against payment and his personal card is closed.
The specialist who has received the book draws up an application with demands to accept him for permanent employment, and a contract is concluded with him that does not imply a probationary period. An order document on admission to a position through transfer from another institution is also generated. A new personal card is issued.
For internal re-registration The specialist is notified in writing about the procedure for transferring an employee from temporary to permanent work two months before the start of preparation. The employee confirms consent with a dated signature or statement.
An additional agreement to the contract is concluded taking into account the changed responsibilities. Based on the agreement, an order is created. The position, initials, transfer department, and salary amount are discussed.
The relevant data is recorded in the work book.

Transfer of an employee from a permanent job to a temporary one

The placement of a temporary employee occurs with reference to. According to its requirements, a fixed-term contract is drawn up with the employee, implying a certain period of validity.

Translation stages.

The applicant draws up an application letter with an assigned serial number addressed to management personnel.
Copies of the documents of the future temporary worker are taken - passport data, SNILS, INN, diploma. A driver's license and medical record may be required.
An acceptance order is issued. In the “conditions” line, “temporarily” is written with the dates indicated. Signed by both parties.
An urgent labor document is drawn up, which specifies the rights, responsibilities and nature of employment. If it is intended to temporarily fill the place of the main specialist, then the initials of the main person are indicated. The payment procedure and working hours are prescribed. In certain cases, a fixed-term contract requires additional agreements. Usually we are talking about situations where key personnel extend their vacation for various reasons.
The temporary worker’s personal file is completed and a personal card is created.

Nuances

Transfer is an appointment to a specific position that requires consent from the employee.
The agreement on re-registration includes the main points of the procedure, is drawn up in two copies, signed by both the employee and the manager.
The transition period is the time period during which this procedure occurs. Negotiated individually with the employee.
An employment contract reflects data on rights, responsibilities, and salary.

Hello! The employee was hired under a fixed-term employment contract for the period of parental leave of up to 3 years of the main employee. The main employee is on vacation until 2017 and has no intention of going back. At the moment, we have a vacancy and we would like to transfer a temporary worker to a permanent basis, since the worker is a good one. How to apply correctly? Will it be enough to conclude an additional agreement to the employment contract, where to stipulate that the employment contract is considered concluded for an indefinite period? Or through dismissal? Thank you!

Answer

Answer to the question:

In this case the following are possible: options.

1. First of all, it should be noted that labor legislation does not contain the concept of “rate”.

If in this situation by the term “bet” you mean the same position, and the terms of the employment contract do not change (except for the term of the employment contract), then we cannot talk about transfer, because transfer involves a change in labor function, structural unit (if it is specified in the employment contract), transfer to another location together with the employer (Article 72.1 of the Labor Code of the Russian Federation).

The term of the employment contract is a special condition of the contract. In fact if the deadline changes, then the fixed-term contract itself changes, that is there is not a change in the concluded contract, but a formalization new agreement.

Therefore, in this case, the fixed-term employment contract should be terminated at the initiative of the employee or by agreement of the parties, and then an employment contract should be concluded for an indefinite period.

At the same time, we must not forget that an employee who is on maternity leave retains her place of work (position) and, if you again hire an employee to replace her, a fixed-term employment contract will be concluded.

If by “bet” you mean another vacant job title, then a transfer will take place (Article 72.1 of the Labor Code of the Russian Federation).

In this case, it is necessary to conclude an additional agreement on changing the employee’s labor function and other terms of the employment contract (if such a change occurs) and issue a transfer order on its basis.

In the event of a permanent transfer to another job (position), the previously concluded condition on the temporary nature of the work loses force, since in relation to the new job the previous grounds for the urgent nature of the labor relationship no longer apply (Part 2 of Article 58, Part 1 of Article 72.1 of the Labor Code of the Russian Federation ). An exception is the case when there are also grounds for concluding a fixed-term employment contract for a new job (for example, the main employee is temporarily absent, etc.). Under these circumstances, the condition of urgency of the relationship may be maintained.

2 . If the term of the employment contract has expired (in the event of the main employee’s absence from work), but neither party has demanded its termination, then the urgency condition loses force, and the employment contract is considered concluded for an indefinite period (Part 4 of Article 58 of the Labor Code of the Russian Federation) . However, if you still want to record the fact of changing the term of the employment contract (since the term is a mandatory condition of the employment contract (Article 57 of the Labor Code of the Russian Federation)), then in this case it is possible. This follows from the provisions of the Labor Code of the Russian Federation and is confirmed.

In this situation there is a risk that your employee, who is on maternity leave, changes her mind about terminating her employment, and then, in connection with her return to work, you will have to terminate the employment contract with the temporary employee, if by this time it is not possible to transfer her to another position .

3. Also, if the decision to extend the relationship is made before the expiration of the employment contract, then it can be recommended to conclude an additional agreement recognizing the contract as indefinite, but indicate that this agreement comes into force on the day following the day of expiration of the term under the originally concluded contract. And then, upon the continuation of the employment relationship (i.e., on the date of entry into force of the additional agreement), issue an order stating that the employment contract in connection with the continuation of the employee’s work is of an indefinite nature. Here, too, there is a risk that the main employee will return to work, and the agreement on the open-ended nature of the employment contract will not be valid.

Details in the materials of the Personnel System:

1. Answer: Question from practice: is it possible to change the term of a concluded employment contract?

No.

The term of the employment contract is a special condition of the contract. In fact, if the term changes, then the fixed-term contract itself changes, that is, it is not a change in the concluded contract, but a new contract is drawn up. The legislation does not provide for the possibility of extending or shortening the term of an employment contract. The exception applies only to individual cases. For example, if, at the end of a fixed-term contract, none of the parties demanded its termination, and the employee continues to work, then the contract becomes indefinite and can be extended by. This follows from the provisions of the Labor Code of the Russian Federation and is confirmed.

If the decision to extend the relationship is made before the expiration of the employment contract, then it can be recommended to conclude an additional agreement recognizing the contract as indefinite, but indicate that this agreement comes into force on the day following the day of expiration of the term under the originally concluded contract. And then, upon the continuation of the employment relationship (i.e., on the date of entry into force of the additional agreement), issue an order stating that the employment contract in connection with the continuation of the employee’s work is of an indefinite nature.

A question from practice: is it possible to extend a fixed-term employment contract without terminating it, or do you need to fire an employee and then hire him again. The contract is coming to an end, but the work is not yet completed

The answer to this question depends on how long the employer wants to extend the contract with the employee.

If an organization intends to extend the employment relationship with an employee for a certain period, this can only be done through dismissal and hiring under a new fixed-term contract.

This is due to the fact that a fixed-term employment contract is concluded for a certain period, but not more than five years (Article , and Labor Code of the Russian Federation). There is no possibility or procedure for extending a fixed-term employment contract. Therefore, in general, the extension of the term of an employment contract is the basis for recognizing it as indefinite. The exception is situations when:

The fixed-term employment contract expires during the woman’s pregnancy. Then the employer, upon a written application from the employee, can extend the term of the employment contract until the end of pregnancy (). In some cases, a fixed-term employment contract with a pregnant employee;
An employee is elected through a competition to fill the position of a scientific and pedagogical worker previously held by him under a fixed-term employment contract ().

Thus, in the general case, an organization does not have the right to draw up an additional agreement to a fixed-term employment contract to change its validity period for a certain period. An organization can only conclude a new employment contract after dismissing an employee. The legitimacy of this position is confirmed by the Supreme Court of the Russian Federation.

If the employer, with the consent of the employee, intends to extend the employment relationship indefinitely, then this can be done without going through the dismissal procedure. To do this, at the end of the fixed-term contract, neither party should demand its termination; the employee must continue to work. Then the contract becomes indefinite and can be extended. This follows from the Labor Code of the Russian Federation and is confirmed.

An exception to this procedure applies to heads of organizations for which the validity period of the employment contract is established by the constituent documents of the organization and the norms of federal legislation (). In any case, they need to be fired and accepted for a new term, defined in the statutory documents.

Nina Kovyazina,

2. Answer: When does a fixed-term employment contract expire?

A fixed-term employment contract is terminated in connection with, that is, with the onset of a certain date or event specified in the contract. This is stated in the Labor Code of the Russian Federation.

Advice: Keep a log of the end of fixed-term employment contracts. This will give you the opportunity to fulfill the requirement of the Labor Code of the Russian Federation, that is, about the upcoming dismissal, if the employer does not plan to continue the employment relationship with him.

If the organization at the time or during the work process has available vacancies that are suitable for the employee, including vacancies of the same name, then the employer should offer them to the temporary employee.

Question from practice: is an employer obliged to offer an employee hired under a fixed-term employment contract during the absence of the main employee a position of the same name that was vacated by another main employee?

There is no obligation to offer a vacant seat. In this case, the employee himself can come up with such an initiative and send a resume to the open vacancy.

The conclusion of a fixed-term employment contract is possible only if there are provisions established by law. One of these grounds is the temporary absence of a key employee. This basis is specified when hiring and must be recorded in the text of the employment contract. This follows from the provisions of articles of the Labor Code of the Russian Federation.

A temporary employee can become a core employee only in two cases:

if a fixed-term employment contract was made by mistake or intentionally when the main employee returned to work, during whose absence a temporary one was accepted ();
if the employer, on its own initiative, invites the conscript employee to take any position as a main employee, including the one he occupies temporarily (). For example, if the main employee, in whose place a temporary conscript was hired, decides to leave the organization or is transferred to another position.

Thus, the legislation does not contain an obligation to offer a conscript employee hired during the absence of the main employee a position of the same name that was vacated by another main employee. Such an offer is possible only if the employer wishes.

At the same time, the employee has the right to come up with such an initiative and send a resume to an open vacancy. In this case, the employer will be obliged to either register the employee for the vacated position, or provide evidence confirming why the temporary employee cannot apply for the position of the same name as a main employee (). In the absence of a justified refusal to hire a vacant position, the employer may suffer.

Nina Kovyazina,

Deputy Director of the Department of Medical Education and Personnel Policy in Healthcare of the Russian Ministry of Health

3. Legal framework:

LETTER ROSTRUD dated November 20, 2006 No. 1904-6-1

[About a fixed-term employment contract]

The Legal Department of the Federal Service for Labor and Employment reviewed the appeal.

Attention: if a fixed-term employment contract was not terminated in a timely manner and the employee continues to work, then such a contract will be considered unlimited-term by default, even if the employer does not draw up an additional agreement to the contract to change the term ().

Nina Kovyazina,

Deputy Director of the Department of Medical Education and Personnel Policy in Healthcare of the Russian Ministry of Health

5. Question from practice: what to do with a temporary employee who was hired during the absence of the main employee, if the latter plans to quit

The employer's actions will depend on whether he plans to continue the employment relationship with the temporary employee or not.

1. The employer is not interested in the work of a temporary employee.

In order for an organization to fire a temporary employee, the main employee must return to work for at least one day after the end of the period of absence. Including on this day, the main employee may have a vacation at his own expense, if for some reason he is not able to work it. The fact is that, according to the law, a fixed-term contract concluded to fulfill the duties of a temporarily absent main employee is terminated when he returns to work (). See more about this). The legality of this approach is also confirmed by the courts (see).

In such a situation, the employer can:

negotiate with the temporary employee about dismissal;
and if such an agreement is not reached, fire him for, for example, in connection with.

2. The employer is interested in a temporary employee.

If the organization plans to continue the employment relationship with a temporary employee, then at the end of his contract:

neither party should demand its termination;
and the employee is obliged to continue to perform his job functions.

Nina Kovyazina,

Deputy Director of the Department of Medical Education and Personnel Policy in Healthcare of the Russian Ministry of Health

With respect and wishes for comfortable work, Natalya Nikonova,

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Transfer is a permanent or temporary change in the labor function of an employee and (or) the structural unit in which he works (if the unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to work in another location together with the employer (Article 72.1 of the Labor Code of the Russian Federation).

The following is not considered a transfer and does not require the employee’s consent:

moving him from the same employer to another workplace,
moving it to another structural unit located in the same area,
assigning him work on another mechanism or unit, unless this entails a change in the terms of the employment contract.

A transfer is not considered to be the case if the structural unit in which the employee works is not specified in the employment contract.

All translations are divided into:

temporary,
permanent,
mandatory translations.

In turn, temporary transfers can be divided into those carried out with the consent of the employee and transfers without consent. Let's look at all types of translations in order.

Permanent transfers of an employee to another job

A permanent transfer is issued in the following cases (Article 72.1 of the Labor Code of the Russian Federation):

the employee’s job function changes (for example, an engineer becomes a chief engineer);
the structural unit specified in the employee’s employment contract changes (for example, the manager of the purchasing department is transferred to the sales department);
the employee is transferred to work in another locality (settlement) due to the relocation of the employer.

A permanent transfer is possible both at the initiative of the employee and at the initiative of the employer, but is allowed only after reaching an agreement between the employee and the employer. It is mandatory to obtain the written consent of the employee. If the employee does not object to the transfer, he expresses his consent either at the employer’s proposal or in a separate document (application).

What an employer needs to do:

Enter into an additional agreement to the employment contract with the employee. In it, write down the name of the new position, the amount of remuneration and other conditions that have changed due to the transfer. The agreement is drawn up in two copies for each party; on the employer’s copy, the employee marks the receipt of his own. Give one copy to the employee, the second copy remains with you, on which the employee must sign that he received his copy of the agreement.
Issue an order for transfer to another position and to another unit (Form N T-5 or arbitrary).
Make an entry about the transfer to another job in your work book. In column 4 of the work book you must indicate the details of the transfer order. The entry must be made within a week from the date of publication of the order (clause 10 of the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”, hereinafter referred to as the Rules).
Enter information about the transfer in section. III of the employee’s personal card and familiarize him with this entry against signature.

If an employee is transferred to a position that requires the conclusion of a fixed-term employment contract. To ensure that the reclassification of an open-ended contract into a fixed-term one is not regarded as an infringement of the employee’s rights, it is better to terminate the previously concluded employment contract and enter into a new fixed-term one.

5 situations when the employer is wrong

Situation 1: The organization has free bets. The employee asked her boss to transfer her to one of them, but he refused. Are the boss's actions legal?

Answer: according to Art. 72 of the Labor Code of the Russian Federation, changes in the terms of the employment contract determined by the parties, including transfer to another job, are allowed only by agreement of the parties to the employment contract, with the exception of cases provided for by the Labor Code of the Russian Federation. Thus, yes, the boss has the right to refuse an employee.

Situation 2: The employee was transferred to another department for the same position and with the same amount of work performed, but the salary was reduced without the employee’s consent. Is this legal?

Answer: Changing the terms of an employment contract, in particular wages, is allowed, as a general rule, only with the consent of the employee and is formalized by an additional agreement to the employment contract. Therefore, the employer acted unlawfully.

It is not uncommon for an employer to transfer an employee to a higher position and, in order to check the employee, sets him a probationary period:

Situation 3: The employee holds the position of chief specialist. The position of department head has become vacant in the department. The employer wants to offer this position to the chief specialist, but he is not sure whether the employee will be able to cope with the assigned responsibilities. Can an employer set a probationary period for an already employed employee? Can an employer enter into a three-month fixed-term employment contract?

Answer: There is no provision for establishing a probationary period for an employee working in an organization. The test is established only upon concluding an employment contract, that is, for a new employee (Article 70 of the Labor Code of the Russian Federation). Concluding a fixed-term employment contract when transferring to another position will also be unlawful. In this case, the employer can arrange a temporary transfer of the employee to another position.

Situation 4: The employer hired a foreign citizen for a position in accordance with the permit. However, due to operational necessity, this employee was transferred to another position not specified in the permit. Is the employer right?

Answer: It is legal to engage a foreign citizen to work in a specialty other than that specified in the work permit. This situation, when the work actually performed by a foreigner does not correspond to the type of activity specified in the permit, is equated by the Federal Migration Service and the courts to work without a permit (Decision of the Moscow City Court dated December 12, 2011 N 7-2678; Resolutions of the Federal Antimonopoly Service of the North Caucasus District dated May 21, 2012 N A53 -16050/2011, Supreme Court of the Russian Federation dated September 23, 2011 N 18-AD11-15). And entails the imposition of significant penalties or suspension of the organization’s activities, which in any case is an unjustified risk for the employer.

Situation 5: the employer demanded that the employee, who was on maternity leave, go to work for one day to familiarize herself with the order to transfer her to a lower position and reduce her salary. Is the employer acting legally when he motivates this transfer by the need to reduce the organization’s expenses?

Answer: The employer is acting unlawfully. An employee cannot be recalled from vacation without her consent and transferred (Article 125 of the Labor Code of the Russian Federation). A transfer without the consent of the employee is permissible only on the basis of a medical report. Thus, her previous position must be retained (Article 256 of the Labor Code of the Russian Federation). Thus, the order issued by the employer will worsen the position of the employee in comparison with the established labor legislation and will be unlawful. In accordance with Part 4 of Art. 8 of the Labor Code of the Russian Federation it cannot be applied. If the employer nevertheless carries out the transfer without such consent and applies an order that worsens the employee’s rights, then she can resort to protecting her labor rights by legally established means and appeal the employer’s actions, thereby being reinstated in her previous position.

Temporary transfers to another job

Temporary transfer to another job is made for a certain period. In this case, the employee’s job function and (or) structural unit temporarily changes, if it was specified in the employment contract. Temporary transfers include (Article 72.2 of the Labor Code of the Russian Federation):

transfer to another job, carried out by agreement of the parties for a period of no more than one year;
transfer to another job, carried out by agreement of the parties to replace an absent employee for the period until he returns to work;
transfer to another job due to objective reasons (for example, for a period of up to 4 months in accordance with a medical report).

The procedure for obtaining a temporary transfer is similar to that for permanent transfers. The exception is that during temporary transfers, an entry in the employee’s work book is not made, regardless of the reason and period of such transfer. If the deadline is not known, write “until the temporarily absent employee leaves.” And based on the agreement, an order for temporary transfer is issued.

When such a transfer is carried out to replace a temporarily absent employee, whose place of work is retained in accordance with the law, it is valid until this employee returns to work. As a general rule, at the end of the period the transfer is terminated and the employee is given the work provided for in the employment contract.

But it may well be that the transfer period has expired, and the employee’s previous job has not been provided and he has not demanded its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer loses force and the transfer is considered permanent. In such a situation, it is advisable for the parties to record these agreements in writing by drawing up an additional agreement to the employment contract. Next, the employer, on the basis of such an agreement, issues an order for personnel, which states the fact that the transfer, which was initially formalized as temporary, is now considered permanent. And in this case, it becomes necessary to make an entry in the employee’s work book.

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Transfers with the consent of the employee

The employer can also temporarily transfer an employee, with his consent, for the duration of the suspension of work in connection with an administrative suspension of activities or a temporary ban on activities in accordance with the legislation of the Russian Federation due to a violation of state regulatory labor protection requirements through no fault of the employee. At the same time, he retains his place of work (position) and average earnings (Article 220 of the Labor Code of the Russian Federation).

Transfers without employee consent

The period of temporary transfer at the initiative of the employer, that is, without the consent of the employee, cannot exceed one month.

In addition, this can be done only in certain cases, which are specified in Part 3 of Art. 72.2 Labor Code of the Russian Federation:

disasters of a natural or man-made nature, industrial accidents, industrial accidents, fire, flood, famine, earthquake, epidemics or epizootics and any exceptional cases threatening the life or normal living conditions of the entire population or part of it (Part 2);
downtime (temporary suspension of work for reasons of economic, technological, technical or organizational nature);
the need to prevent destruction or damage to property;
the need to replace a temporarily absent employee (Part 3).

All of the above cases must be caused by emergency circumstances specified in Part 2 of Art. 72.2 Labor Code of the Russian Federation. These include any circumstances that threaten the life or normal living conditions of the population or part of it. It is strictly not recommended to transfer an idle employee to another job if he does not agree to this. If no extraordinary circumstances are identified, the transfer of the employee will be considered illegal.

A transfer without the employee’s consent is formalized by an order from the employer indicating the circumstances that led to such a transfer. If an employee is transferred to a position requiring lower qualifications, written consent should be sought from him. Payment in this case is made in an amount not lower than the average earnings for the previous job.

Transfer to another location

A transfer to another location together with the employer, that is, a change in the location of the organization, is considered a permanent transfer. It does not occur very often, however, there are nuances and the employer needs to be aware of it.

The execution of such a translation should take place in the following sequence:

The employer must notify all employees about such a transfer in advance. Since the terms of such warning are not established, one should be guided by Art. 74 of the Labor Code of the Russian Federation and apply a two-month notice period,
Offer employees a transfer. It is not necessary to send a transfer proposal to each employee, but it is enough to issue one order and bring it to the attention of each employee against signature.
It is necessary to obtain the consent of employees,

In a situation where the organization’s legal address has changed and the executive body has changed its location, but the actual place of work of the employees remains the same, there is no need to complete a transfer.

Employees who refuse to be transferred to another location must be dismissed under clause 9, part 1, art. 77 of the Labor Code of the Russian Federation - refusal to transfer to another location together with the employer. The employee is paid severance pay in the amount of two weeks' earnings (Article 178 of the Labor Code of the Russian Federation). As with regular dismissal, to formalize the termination of employment relations with employees, Form No. T-8 (or Form No. T-8a), approved by Resolution No. 1, is used.

Relations with employees who have expressed a desire to continue working with this employer in another location are formalized as follows:

an additional agreement is concluded to the employment contract on transfer to another location,
an order is issued based on an agreement with the employee,
a record of transfer to another location is made, even if the employee remains in the same position and in the same structural unit,
An entry is made in the employee’s personal card.

The employer should not forget about this important point: if the employee agrees to move to work in another area, he will have to compensate:

expenses for moving the employee himself, his family members and transporting property (except for cases where the employer provides the employee with appropriate means of transportation);
expenses for settling into a new place of residence.
The specific amounts of reimbursement of expenses are determined by agreement of the parties to the employment contract (Article 169 of the Labor Code of the Russian Federation).

Transfer to another job is mandatory

Situations in which a transfer is mandatory occur both at the initiative of the employee (when he has the right to demand that the employer transfer him to another job) and at the initiative of the employer (due to circumstances beyond the control of the parties). In this case, an employee can be transferred either on a permanent or temporary basis. For example, if an employee refuses to perform work in the event of a danger to his life and health, the employer is obliged to provide such an employee with another job while the danger is eliminated (Article 220 of the Labor Code of the Russian Federation).

The employer is obliged to satisfy the employee’s request to transfer him to another job in the following situations:

a medical report has been provided;
reduction in the number or staff of employees in the organization;
in case of suspension of a special right;
the woman is pregnant or has children under the age of one and a half years.

Moreover, each of these situations has its own design features.

The employee provided a medical report issued in accordance with the procedure for issuing certificates and medical reports, approved by Order of the Ministry of Health and Social Development of the Russian Federation dated May 2, 2012 N 441n. According to the document, the employee needs to be transferred to another job. In this case, the employer is obliged to transfer to another existing job that is not contraindicated for the given citizen due to health reasons. The transfer of an employee to another position, where work is not contraindicated for him due to health reasons, is carried out with his written consent (Part 1 of Article 73 of the Labor Code of the Russian Federation).

True, there is one “but” - if an employee who needs a temporary transfer for a period of up to four months refuses the transfer (or the corresponding job is not available), then the employer must remove the employee from work for this period while maintaining his place of work (position). However, during the period of suspension, the employee’s wages are not accrued. At the same time, if an employee needs a temporary transfer for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the appropriate work, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of the Labor Code of the Russian Federation (Article 73 Labor Code of the Russian Federation).

The situation is different with managers (and their deputies) who need to be transferred for medical reasons. In their case, the employment contract with them may not be terminated, and the period of suspension from work is determined by agreement of the parties.

It is not uncommon for an employee to be transferred to a lower-paid job. The employer is obliged to maintain the average salary for the previous job for one month from the date of transfer. If the transfer is associated with a work injury, occupational disease or other work-related health damage - until a permanent loss of professional ability to work is established or until the employee recovers (Article 182 of the Labor Code of the Russian Federation). Judicial practice confirms this. The judges ruled that the employer’s obligation to maintain the employee’s average earnings arises from the moment the employee is transferred to a lower-paid position and terminates with the establishment of permanent loss of professional ability to work (Appeal ruling of the Vologda Regional Court dated September 13, 2013 N 33-4301/2013).

When carrying out measures to reduce the number or staff of an organization's employees, the employer is obliged to offer the employee another available job (both a vacant position or a job that meets the qualifications, and a vacant lower-level position or lower-paid job). If the transfer cannot be made, the employee will have to be dismissed on the basis of clause 2, part 1, art. 81 Labor Code of the Russian Federation. Employees are notified by the employer personally and against signature of an upcoming dismissal due to a reduction in the number or staff of the organization's employees at least two months before the dismissal (Article 180 of the Labor Code of the Russian Federation).
If an employee has lost the ability to perform duties under an employment contract in the event of suspension of the employee’s special right (license, right to drive a vehicle, right to carry a weapon, etc.) for a period of up to two months, the employer is obliged to transfer the employee to another available job (as a vacant one). position or work that meets the qualifications, as well as a vacant lower position or lower paid job) that the employee can perform taking into account his state of health. Of course, in this case the employer must obtain the written consent of the employee. In addition, the employer is obliged to offer all vacancies available in the local area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract. If the employee refuses or there is no vacant position, he is suspended from work without saving his salary (Article 76 of the Labor Code of the Russian Federation). If the period of suspension of a special right exceeds two months or the employee is deprived of this right, the employment contract with him is subject to termination in accordance with clause 9 of Part 1 of Art. 83 Labor Code of the Russian Federation.
In accordance with a medical report, the employer must transfer a pregnant employee to another job that excludes exposure to adverse production factors, while maintaining the average earnings for her previous job. A statement is required from the employee. Until another job is provided, a pregnant woman is released from work. She retains the average earnings for all working days missed as a result at the expense of the employer (Article 254 of the Labor Code of the Russian Federation).

Meanwhile, women with children under the age of one and a half years, if it is impossible to perform the previous job, are transferred at their request to another job with wages for the work performed, but not lower than the average earnings at the previous place of activity until the child reaches the age of one and a half years (Art. 254 Labor Code of the Russian Federation). Also, pregnant women and women with children under three years of age cannot be involved in work performed on a rotational basis (Article 298 of the Labor Code of the Russian Federation).

In this situation, transfer to another job is carried out as follows:

The parties enter into an additional agreement to the employment contract
The manager issues an order to transfer to another job
The personnel officer makes entries about the transfer in the work book and personal card in form No. T-2

A situation may arise when an employee does not want to interrupt her vacation or go part-time. In this case, there is no need to force her to interrupt her vacation. It is enough to invite her to come to work to draw up an additional agreement to the employment contract or send a courier to her. However, it is recommended to familiarize the employee with the new job description upon signature in order to avoid refusal to perform duties that may be a surprise for her. This must be done before signing an additional agreement to the employment contract.

Procedure for drawing up an additional agreement:

Date of change in job function—we indicate the date from which the employee will perform a new job function (work in a new position or in another department). This may be the current date (in the case where the company structure is changing) or the actual date of her return to work from maternity leave.
In the additional agreement, you can indicate (optional) that the employee began her new duties after returning from maternity leave.
If, when transferring to another position (department), the employee’s salary changes, then these changes should also be made in the additional agreement.