Dismissal by transfer to another employer, entry in the labor record. Judicial practice and possible controversial situations. Dismissal by way of transfer to another organization: basics of the Labor Code of the Russian Federation

Dismissal by transfer- this is the termination of an employment contract by transferring an employee to another organization. This basis for termination of labor relations between an employee and an employer is provided for in paragraph 5 of Art. 77 of the Labor Code of the Russian Federation.

Dismissal procedure

The procedure for this type of dismissal is similar to termination of an employment agreement. The difference lies in the entry in the employment record and the impossibility of withdrawing a letter of resignation in the event of a transfer.

Dismissal by transfer at the initiative of the employee is carried out on the basis of an invitation from the new employer and a personal statement from the employee. If the employer agrees, it is published. If the employer disagrees, the employee will have to terminate the employment relationship at his own request.

In case of initiative on the part of the employer, termination of the employment contract occurs by written agreement between the employers, the consent of the dismissed employee and his personal statement.

The advantages of dismissal by transfer include:

• a guarantee of employment with an employer who sent a written invitation to an employee to work by transfer within a month after dismissal;
• lack of a probationary period with the new employer;
• optional work for 2 weeks before leaving (by agreement with the employer).

On the day of dismissal, the order is reviewed, final settlement with the employee, compensation for unused vacations is paid, and a work book is issued.

It should be noted that when the employment relationship is terminated due to a transfer, the employee’s right to leave at the new workplace does not arise immediately, but in the usual manner: after six months of continuous work with the new employer. This period can be reduced by agreement with the employer.

Entry in the work book

• “dismissed due to a transfer at his request to (name of the organization - new employer), paragraph 5 of Article 77 of the Labor Code of the Russian Federation” (in the case of the employee’s initiative);
• “dismissed by transfer to (name of organization - new employer) with the consent of the employee, paragraph 5 of Article 77 of the Labor Code of the Russian Federation” (by agreement between employers).

An employee at an enterprise may be fired as a result of being transferred to a new job in another organization. This method of dismissal has some features and advantages, which can be read about in the article below.

The dismissal of transfers is regulated by clause 5 of Article 77 of the Labor Code of the Russian Federation. The procedure for dismissal depends on whose initiative the transfer is being made.

Dismissal due to transfer at the initiative of the employee

If an employee leaves for another organization on his own initiative, then it is necessary to receive an invitation to work from the new employer. Having received an invitation, the employee writes a letter of resignation by transfer and sends the documents to his current employer. The latter is considering the possibility of dismissal.

If it is not against it, then it is drawn up and the employee can be dismissed without mandatory two-week work.

If the employer does not want to part with the employee voluntarily, then the employee can resign on a general basis at his own request, by writing a statement and working for 2 weeks.

An important feature of dismissal by transfer is that the employee, having written an application, cannot withdraw it, in contrast to dismissal at his own request, in which, throughout the entire period of service, the employee can withdraw the application at any day and continue to work.

In the work book, upon dismissal by transfer to another organization, an entry is made: “Dismissed due to transfer at his request to “Name of organization”, paragraph 5 of Article 77 of the Labor Code of the Russian Federation.”

In the first case, it occurs between different departments of the same company; in the second case, the employee is transferred to another organization.

The last type of translation raises the most questions and difficulties. That is why it is worth considering this procedure and the features of its implementation in more detail.

With a transfer to another organization is a type of dismissal in which an employee terminates his employment relationship with one company and joins the staff of another. In this case, the employment contract with the previous employer is terminated, and with the new employer it is concluded again. Legal regulation and the possibility of carrying out this type of dismissal are provided for in paragraph 5 of Art. 77 Labor Code of the Russian Federation.

The need for this type of procedure can be caused by various reasons, for example:

• division of one company into several between different owners;
• the desire of the head of another company to lure valuable personnel;
• (for example, an employer can recommend an employee to a partner company);
• the employee’s own desire to change jobs.

It is worth noting that this type of dismissal is one of the most beneficial for the employee and has a number of advantages, namely:

• he is guaranteed to get a new job;
• not installed during translation;
• the employee is not required to work two weeks;
• is not interrupted.

If the initiative to dismiss comes from the employer, then the employee always has the right to refuse such an offer if the new conditions do not suit him in some way.

Conditions for employee transfer

As already noted, when an employee is transferred to another company, he terminates the employment contract at the old place of work, and enters into a new one at the new one. Therefore, the conditions of his work may also change - no guarantees are provided to the employee regarding maintaining the same size or job responsibilities.

Since dismissal by transfer is a completely voluntary initiative of a subordinate, before starting this procedure he can agree on all the nuances and conditions of work with the future employer.

Often, a transition to another company occurs only in cases where the new conditions are no worse or even better than the previous ones. To obtain additional guarantees, it is worth requesting a letter of request from the new employer indicating the specific position to which the transition will be made.

The advantage is the fact that in case of dismissal by transfer, the new manager does not have the right to refuse further employment to the employee.

For such a violation he will be subject to liability under Art. 5.27 of the Administrative Code, which consists of both imposing a fine from 30 to 50 thousand rubles, and temporary suspension of work for up to 90 days.

As for the annual salary, the transferred employee will have the right to receive it, as in general cases, only after working for six months in a new place. The right to old leave is not transferred to the new company; the employee will only be able to receive it at his previous place of work.

Mandatory work for two weeks, as is the case with, is also not provided for. All terms (both dismissal and subsequent employment) are agreed upon between managers and subordinates in advance, so this issue is resolved voluntarily.

Dismissal procedure

In general, the procedure for this type of dismissal is not much different from other situations, however, there are some features associated with the preparation of documents.

It is especially similar to voluntary dismissal.

The only difference is the entry that is made in, as well as the inability of the employee to withdraw his application after submitting it. This type of dismissal may be carried out in the following cases:

On the personal initiative of the employee

In this case, he must contact the employer with a letter of resignation. This document is drawn up in free form; in the text it is only necessary to indicate:

• reason for dismissal (that is, transfer to another organization);
• name of the new employer.

Along with the application, the employee can also provide a written offer from the new employer. This condition is optional, but desirable for a more correct execution of the procedure.

With the written consent of the employee

In this case, the initiative for the transfer may come from the employer, but he must agree on this with the employee.

This is done using written proposal for translation, which is drawn up by the employer indicating the following data:

• Company name;
• location;
• new position;
• requirements for professional and qualification skills;
• proposed salary, etc.

That is, the proposal must indicate all the important conditions of the employment relationship that will be established between the subordinate and his new manager. If these conditions suit the employee and he agrees to the transfer, he can confirm his decision:

• directly in the offer made by the employer;
• on a separate document.

This option is the most beneficial for both parties, since the subordinate receives guarantees of his future working conditions, and the employer receives documentary evidence of the employee’s consent to the transfer.

Upon written request of the new employer

In this case, the future manager draws up and sends a letter of request to the former employer, which can be drawn up in free written form.

In some cases, it may be necessary to carry out all these actions in the following sequence:

• a written request from the new employer;
• obtaining consent and application from the employee.

After agreeing on all these issues, the employer’s next step is drawing up. Depending on how many employees are leaving - one or more - the following form may be used:

• T-8 - for one employee;
• T-8a - for several people.

The application also indicates on what basis the employment contract is terminated. The employee must be familiar with this order, which is confirmed by his signature.

In addition to the order, the corresponding section of the subordinate’s personal card is also filled out.

In this case, you need to make sure that his signatures are present next to all records of internal transfers (if there were any).

At the last stage, the work book is filled out. The entry that is made in this case depends on the method of carrying out the translation procedure. For example, the wording could be like this:

1. : “dismissed due to a transfer at his request.”
2. In the case of an agreement between the two companies: “dismissed due to transfer with the consent of the employee.”

In both cases, after this the name of the new employer is indicated, as well as the legal basis for the dismissal (that is, clause 5 of Article 77 of the Labor Code of the Russian Federation).

The employer will be required to issue a work book on the day of dismissal, as well as to make all necessary payments to the employee.

Settlement with the employee and necessary payments

Another obligation that arises for the employer on the day of dismissal employee - this means carrying out all calculations with him.

Their composition does not differ from the situation with dismissal at will and includes:

• wages for the period worked;
• compensation for vacation that was not used.

The last payment can be replaced by the vacation itself, however, its provision is entirely the initiative of the employer; he is not obliged to do so.

As for other additional compensation, in this case it is not provided. Along with these payments, on the last day, the accounting department must issue the employee a certificate of the amount of his salary for the last period, indicating the amount of accrued personal income tax and other deductions.

Obviously, when transferred to another organization, an employee receives certain benefits that distinguish this type of dismissal from others.

To carry out the procedure correctly, the participation and execution of necessary documents will be required from all parties to the process: the dismissed employee, as well as the current and future employer. At the new workplace, a different employment contract is concluded, the terms of which may differ from the previous ones.

Dismissal through transfer to a new employer is the most “painless” form of job change for an employee. This transfer gives him some guarantees and advantages in his new job. If we talk about employers, then the transfer of an employee entails significant legal consequences only for those of them who invited the employee - it will no longer be possible to refuse the stated intentions. For an employer dismissing a citizen, the peculiarity of dismissal by transfer consists only in the preparation of documentation.

Dismissal by way of transfer to another organization: basics of the Labor Code of the Russian Federation

Labor legislation provides for a method of changing jobs that is beneficial for an employee in terms of guarantees - dismissal by transfer

Dismissal through transfer to a new employer is the termination of the employment agreement on the basis provided for in paragraph 5 of Part 1 of Art. 77 of the Labor Code of the Russian Federation, conditioned by a tripartite agreement between a citizen, his current employer and a new employer on guaranteed employment with the latter.

The possibility of terminating an employment agreement with a subsequent transition to a new employer is provided for in Part 2 of Article 72.1 of the Labor Code of the Russian Federation. This norm describes two possible situations when the decision to change jobs can be decided in this way:

1. Transfer between employers at the initiative of the employee himself. As a rule, an employee who has found a new, more attractive job option agrees on the transfer with both employers. If all parties agree, the matter remains only with documentation.
2. Transfer at the will of both employers. Situations with this option of dismissal-transfer can be varied: one of the employers is reducing its staff and wants to employ its workers, including for reasons of economy (you won’t have to pay severance pay), the owner of the company plans to liquidate the existing company and open a new one without losing employees, etc.

It should be noted that a transfer to a new employer, in contrast to a change of position within one organization, in all cases is carried out only with the consent of the worker.

When transferring from one employer (without dismissal), the citizen’s approval of this action is not required in a number of cases listed in parts 2–3 of Art. 72.2 Labor Code (for example, a man-made disaster or downtime for technical reasons).

Table: advantages and disadvantages of dismissal by transfer for both parties

Features of the procedure and algorithm of actions for the employer

Depending on whose initiative the dismissal through transfer occurs, the following documents may be the reason for launching the appropriate procedure:

• an employee statement written on the basis of his receipt of an invitation letter from a new employer;
• notice of intent to transfer an employee to another employer based on receipt of a letter of offer from the new employer.

It must be remembered that in any case, the consent of both parties to the employment relationship for dismissal and transfer to another employer must be expressed in writing:

1. The employer puts the appropriate resolution on the application. Without his approval, dismissal by transfer cannot take place; the working citizen will have to rewrite the application, indicating another reason for dismissal (for example, at his own request), while observing the formalities required in this case (for example, working the required two weeks). Of course, in this situation you can no longer count on legally guaranteed benefits when concluding a new employment agreement.
2. On the notice of transfer, the dismissed citizen makes a note indicating his consent or disagreement. In the latter case, the employer does not have the right to dismiss him on the grounds in question.

Once the basis for dismissal by transfer is documented (by drawing up an application or notice), the date of the last working day is agreed upon, the procedure for the employer is no different from ordinary dismissal. The entire procedure can be represented as the following sequence of steps:

1. Issuance of an administrative document on dismissal (order) indicating the appropriate grounds for termination of labor relations - transfer to another employer (clause 5, part 1, article 77 of the Labor Code).
2. Familiarization of the dismissed person with the order.
3. Making required payments to the employee.
4. Making a record of termination of employment in the company in the work book, personal card and employee file.
5. Issuance of a work book to a citizen against signature.
6. Notifying the concerned services and bodies - the military commissariat and the bailiff service - if necessary.

Invitation from a new employer

The invitation letter is the primary reason for launching the dismissal procedure by transfer in any case - the initiative comes from the employer or the employee. As a rule, such a letter becomes the result of a preliminary oral agreement. The document is drawn up in any form and must contain the following information:

• name of the new employer;
• the position offered to the employee (it is better if the letter describes in general terms the terms of the employment contract to be concluded: salary, working hours, etc.);
• Full name of the employee to whom the transfer is proposed;
• the date from which the new employer plans to hire a new employee.

Letter of consent for transfer

As a response to the invitation, a letter expressing the consent of the previous employer and employee to the transfer may be sent to the new employer, but this document is not mandatory in the procedure.

Employee's application for dismissal by transfer

An application for dismissal by transfer must contain:

• request for dismissal by transfer;
• date of dismissal;
• the name of the employer to whom you plan to transfer;
• link to the invitation letter (optional).

Employee Notification

Notifying an employee of dismissal by transfer to another employer is used in cases where the initiative comes from the employer. The legislation does not provide for any notice periods. The document must contain:

• the name of the new employer and the proposed position (if possible, with a description of the main conditions of the proposed employment agreement);
• link to the invitation letter;
• a note indicating the employee’s agreement or disagreement with the transfer.

Limited Liability Company "Freight Transportation"
Freight Transportation LLC

Kanareikina Tatyana Anatolyevna
payroll accountant
accounting department

NOTIFICATION

No. 25 from 11/18/2016

About an invitation to work in another organization

We notify you that you have been invited to work at Passenger Transportation LLC for the position of deputy head of the enterprise.

We ask you to make a note about your consent (disagreement) to dismissal in the order of transfer from Freight Transportation LLC to Passenger Transportation LLC.

General Director, signature, transcript

I have become familiar with the notice of transfer to Passenger Transportation LLC.

I agree to the translation.

T.A. Kanareikina

Drawing up a dismissal order

An order for termination of a contract with subsequent transfer to a new employer is drawn up on a unified form T-8 or T-8a indicating the basis for dismissal (transfer to a new employer) and a reference to clause 5, part 1, article 77 of the Labor Code.

Sample entry in a work book

What payments are due to an employee?

Upon dismissal by transfer, the employee is accrued a standard set of payments, the composition of which depends on the specific situation. There are just a few things to note:

• contrary to a common misconception, the working period for calculating the length of service giving the right to leave at a new place of work is not transferred, which means compensation must be paid for unused leave, if any;
• dismissal by transfer does not entitle the employee to receive severance pay.

Table: composition and examples of payment calculations

Judicial practice and possible controversial situations

Judicial practice in labor disputes is not replete with examples of workers being reinstated at work after dismissal through transfer to another employer.

As a rule, most violations are caused either by a discrepancy between the real intentions of employers (both the former and the inviting employee to work) with reality, or by non-compliance with the procedure for confirming a citizen’s consent to a transfer.

The employer asked the employees to write a letter of resignation, saying that this was the only way out - to transfer to another employer, who, in turn, would hire them. As a result, the new employer does not hire everyone. Taking advantage of the workers' ignorance of labor legislation, the former employer misled them about the consequences of the decision. The court reinstated the workers and declared the dismissal illegal. (Determination of the Nizhny Novgorod Regional Court dated July 14, 2009 N 33–5168 on the cassation appeal against the decision of the Pavlovsk City Court to satisfy the employee’s demands).

http://labour-contracts.rf/article/341

An important feature of registration of dismissal by transfer for the employer dismissing the employee is the need to follow the procedure for written confirmation by the employee and the employer inviting him of their intentions. To do this, you will need several additional documents: a letter of invitation, an application from the employee, or a notice to the employer of dismissal by transfer with a note of the employee’s consent. Otherwise, the procedure for terminating an employment relationship is no different from the general one.

Transferring an employee with formal dismissal is a situation that occurs infrequently, so sometimes it leads to a dead end for both the employee and the HR department employee. Let's take a closer look at the situation and try to take into account all the details.

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Types of translation in labor legislation

The most important task when transferring an employee is the correct execution of documents. You will primarily need one of the following documents:

• A written request from an employee to transfer him to another organization (if he independently found a new, more suitable position in another company).
• Written consent of the employee to the transfer (if the employer himself dismisses him for the transfer).

The basis should be a statement written by the employee himself. In this regard, it is immediately worth noting that dismissal for the purpose of transfer can be both internal and external. Internal transfer is a re-registration within one large organization, for example, from one division (branch) to another.

An external transfer is the dismissal of an employee from one legal entity for the purpose of employment in another. The second type is absolutely excluded without the written consent of the employee. Article 72.2 of the Labor Code of the Russian Federation lists all situations in which an internal transfer can be carried out without its permission.

The employee’s application must be drawn up in such a way that it must contain:

• date of dismissal;
• the position for which the employee will be hired;
• name of the organization to which the employee is transferred;
• nature of the work (you must indicate “permanent”);
• expected date of entry into office.

The application is submitted to the head of the organization.

Initiative to move to another employer. Agreements. Guarantees

Very often, a person, having found a more suitable position in another organization, quits, works the weeks required by law, and only then brings him to a new company. At the same time, this person will not receive any guarantees according to the Labor Code of the Russian Federation. His place in the new company may simply be taken while he is busy with work and paperwork.

Guarantees to such an employee can only be provided if the dismissal is made for the purpose of transfer in accordance with all the rules provided for by law.

Let's consider all the alternative versions possible in this situation:

• Version one. The future management sends a letter to the organization where the person works, with a request to dismiss him from his position by way of transfer. The letter is drawn up on official letterhead on behalf of the head of the company. It will serve as a kind of guarantee. If the new management refuses these obligations, this will entail administrative liability for violation of the legislation of the Russian Federation, as well as fines. Responsibility is determined depending on who violated the code (a legal entity, an official or a private entrepreneur).
• Version two. If there is no letter of invitation, this guide can also help a person to issue one through a request. Such cases are not uncommon. For example, during a forced layoff, organization “A” agrees with organization “B” to hire some employees for vacant positions.
• Version three. Tripartite agreement between all parties. This is the best option, but at the same time the least common in practice.

The advantage of the agreements is that the employee in this case can claim, in accordance with the Labor Code of the Russian Federation (Article 169), even compensation for relocation if the new organization is located in another city. Any conditions can be specified in the agreement, as long as they do not contradict current legislation.

When and under what conditions is a transfer to another employer carried out?

The main condition for transfer is the interest of the employee himself. He also has the right to ask for leave until his dismissal. From here there can be two solutions (both of them are legal):

1. Provide leave. In this option, the day of dismissal will coincide with the last day of vacation.
2. Refuse to provide it. Upon dismissal, compensation will need to be paid.

When you need a letter from your future place of work

To summarize: if a person is interested in guarantees that a place is assigned to him, then the letter must be received. An employer interested in qualified personnel will certainly provide all guarantees to the one who has satisfied him in all respects. Such paper is also very important for the management formalizing the dismissal: during any check, the papers will be in perfect order.

The letter is attached to the application or sent directly to the manager.

Documents that need to be completed upon dismissal

Upon dismissal, the following documents are drawn up in the order of transfer:

• An official letter from the hiring organization.
• Employee statement. Management must sign it.
• Order of dismissal (unified form T-8).
• Employment history.

There is nothing complicated, do not forget to indicate the exact reason for dismissal.

The procedure for dismissing an employee by transfer (step-by-step instructions)

Having collected the grounds for dismissal, the HR department employee begins to complete the procedure:

• Firstly, he draws up an order in form T-8, indicating the correct reason and the name of the article of the Labor Code (Article 77, paragraph 5, part 1). Documents serving as the basis must be listed. The employee reads the document and signs it.
• Secondly, the personnel officer fills out a personal card. In Section XI, all fields must be filled out correctly. Then give it to the employee for signature along with the order.
• Thirdly, an entry is made in the work book (according to the Instructions approved by Resolution of the Ministry of Labor of the Russian Federation dated October 10, 2003, number 69). There should be no cuts!
• Fourthly, funds are calculated, payments are made, including payments for, which is described in detail above.

At parting, the employee should be given a salary certificate for the last two years and a work book. From this moment on, the employment relationship was officially terminated.

What to do if the employer refuses to hire you

Unfortunately, sometimes this happens. The former management fulfilled all its obligations, but the new management refused. In this case, the employee can sue.

If the dismissal by transfer was properly formalized, the court will rule in favor of the plaintiff. A previously executed agreement or letter of invitation from the company will play a huge role (it is better to make a copy of it before leaving).

If the defendant loses the case, he will be forced to hire the plaintiff. In addition, he faces a fine. For legal entities, its size today ranges from 30,000 to 50,000 rubles. They can also suspend activities for up to 90 days, and this is already serious. For repeated violations, activities are suspended for a period of one to three years.

All large and self-respecting organizations are fighting for real specialists, offering the best conditions, opportunities for career growth and other privileges. If a more favorable offer is received, there is no need for the standard dismissal procedure. Transferring to a new company is not complicated in any way, but is backed by guarantees of retaining your place.