Is it possible to transfer an employee to another job without his consent. The trumpet is calling! Transfer without the consent of the employee for production needs The employer transfers to another job without consent

Hello

In accordance with Art. 72.1 Transfer to another job - 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 specified in the employment contract), while continuing to work for the same employer, as well as transfer to work to another area together with the employer. Transfer to another job is allowed 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. The employee does not require the employee's consent to transfer him from the same employer to another workplace, to another structural unit located in the same area , entrusting him with work on another mechanism or unit, if this does not entail changes in the terms of the employment contract determined by the parties.

By virtue of Art. 72.2 of the Labor Code of the Russian Federation, by agreement of the parties, concluded in writing, an employee may be temporarily transferred to another job with the same employer for up to one year, and in the case when such a transfer is carried out to replace a temporarily absent employee, for which, in accordance with the law, the place of work is retained - until this employee leaves for work. If, at the end of the transfer period, the employee is not provided with the previous job, and he did not demand it and continues to work, then the provision of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent. work for 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 of property, or replacement of a temporarily absent employee, if the simple or necessity of preventing the destruction or damage of property or replacement of a temporarily absent employee is caused by the extraordinary circumstances specified in part two of this article. At the same time, a transfer to a job requiring a lower qualification is allowed only with the written consent of the employee.When transfers are carried out in the cases provided for in parts two and three of this article, the employee is paid for the work performed, but not lower than the average earnings for the previous job.

That is, the employer has the right to transfer you to another job due to the absence of another employee without your consent for only one month. Therefore, if the employer issued an order for your transfer within the prescribed period, then his actions are legal.

By virtue of paragraph 6 of Art. 81 of the Labor Code of the Russian Federation An employment contract may be terminated by the employer in cases of a single gross violation of labor duties by the employee: absenteeism, that is, absence from the workplace without good reason during the entire working day (shift), regardless of its (her) duration, as well as in the absence at the workplace without good reason for more than four hours in a row during the working day (shift)

That is, if you do not go to work, then the employer has the right to fire you on the basis of the above norm.

Therefore, you should proceed from the above.

Sincerely F. Tamara

Situations arise when the employer needs to transfer a subordinate to another place of work. There may be many reasons for this, one of which is the opening of new branches or the closure of a branch in the village where the employee lives. The initiator of the transfer is both the head of the company and an ordinary employee.

In order to transfer an employee to another place of work, the employer must strictly follow the provisions of the law, otherwise the subordinate will be able to challenge the operation performed in court.

In what cases can an employee be transferred to another job without his consent?

The transfer of a worker to another place of work involves a change in the worker's job responsibilities for a certain or permanent time.

Grounds for transferring a worker to another place of work:

• Team changes;
• The company opens new branches or closes a branch in the settlement where their subordinate lives;
• The employee got a promotion;
• According to medical indications, the worker is not entitled to continue to work in his position.

If the translation is made within the enterprise, the director remains the same. Only responsibilities change. However, in some cases, the worker is transferred to another locality.

Term

The maximum transfer period for one employer is one year. If the transfer is made to replace a temporarily absent worker, the period is limited by the period of return of this employee to his workplace.

What are the types of transfers to another job?

The transfer of an employee from one place of work is of two types:

• External... The subordinate moves to a new workplace to a new manager and to another enterprise. To carry out such a transfer, the consent of not only the employee, but also two directors of organizations is required;
• Interior... The submitted translation is made within the framework of one enterprise. It can be permanent or temporary. The guide does not change during the transfer.

In both cases, an application is drawn up for the transfer by the employee.

Temporary

Temporary transfer. The submitted transfer is made when it is necessary to change the employee's job responsibilities for a specific period of time.

The transfer is made in the following cases:

• When the employee and manager agree to transfer. To implement the process, a document is drawn up in which it is important to indicate that the parties agree to change the position. The duration of the transfer is no more than one year;
• Based on the consent of the head of the company.

If the transfer of a subordinate is carried out to replace a temporarily absent employee, the term is limited to the return of the employee back.

An employee can be transferred to another position without his consent for the following reasons:

• Natural disasters such as: flood, fire, earthquake;
• Suspension of production for a specified period;
• When it is required to replace another employee of the company.

This transfer can only last for one month.

Also, the employee is transferred to another place of work if he has health problems and does not have the opportunity to work in his position, as well as when a subordinate is pregnant. In these situations, a prerequisite is the need to obtain the employee's consent, otherwise the transfer is considered illegal.

Constant

Permanent transfer. The specified transfer is unlimited. It is performed only with the consent of the employee. If the worker does not agree, the transfer is carried out only on the basis of a decision of the labor committee or the court. If the employer has not received the opinion of the authorized body, the process cannot be carried out, otherwise it will be illegal.

Constants mean:

• Transfer without changing employer. The subordinate continues to work in the same organization, only his job responsibilities and individual clauses of the labor agreement change. Any editing must be reflected by entries in the work book;
• Transfer to another area, together with the immediate supervisor. In the event of such a transfer, the employment contract is not subject to change. A prerequisite is to confirm the transfer with an entry in the work book;
• It is carried out on the basis of changes in the structure of the organization. The employee continues to work in accordance with the previously drawn up agreement. The labor contract and the book are being edited;
• External transfer to another place of work. This presupposes the termination of labor activity at the previous enterprise and placement in a new place of work. At the same time, continuous work experience is preserved, but a new work agreement is drawn up and a note is made in the work book.

For a lower paid job

If an employee does not properly perform his professional duties, the employer must re-certification. According to its results, the fact is recorded that the worker does not have the appropriate qualifications for his position. Having this conclusion, the employer has the right to offer the employee to transfer to a less paid position. If the employee refuses, the head of the company has the right to terminate the contract in accordance with

Procedure for translation

To transfer an employee to a new place of work, you should:

• Establish the requirements that a new employee must meet, who replaces temporarily or permanently in the required position;
• Provide conditions under which the transfer is impossible;
• Notify the selected employee orally;
• Draw up an order;
• To acquaint the employee with the order.

The transfer of an employee will not take place only if, for health reasons, he is not suitable for the new position. This must be officially confirmed by a medical report.

External transfer is as follows:

• An employee of the organization draws up an application for transfer;
• The immediate boss turns to the future director of the employee with a request to accept him for a permanent job;
• Waiting for an answer.

It should be noted that the transfer of an employee is possible only with his consent.

The order to transfer an employee must contain the following information:

• Personal and contact information, as well as the position of the employee;
• The name of the department and the new position to which the employee is transferred;
• Term, date of commencement of employment;
• New professional duties of the employee, as well as payment;
• Basis for the transfer;
• The signature of the subordinate who has read it;
• The order ends with the date and signature of the head of the enterprise.

How to dispute a transfer?

Most citizens are sure that only the person himself has the right to insist on a transfer to another position. However, this is not at all the case, the employer also comes up with a similar initiative. Of course, most cases require coordination of such a step with the translator, but far from always, but only in cases specified by law.

The employer is not always entitled to take such a step. This is done in several cases:

• the need provoked by circumstances at work;
• replacement of another employee (for example, sick);
• accidents and disasters, natural disasters;
• epidemics;
• other incidents involving a threat to human life;
• change of company activity.

Cases when the consent of a subordinate is not needed are specifically stipulated by law (Article 72.2 of the Labor Code of the Russian Federation). Usually this is due to emergencies when it comes to the health and life of people, or there is a threat of damage to valuable property. But sometimes the reason lies in the production downtime.

In this case, the consent of the subordinate is not asked only when he is moved to another position within the same company, with the same level of earnings.
Otherwise, the citizen will be able to defend his rights by contacting the labor inspectorate or even the court.

The salary does not have to be equal, it can be lower. The lower bound of income at the new location - average monthly income at the previous job.

Forced transfer does not apply to employees under the age of eighteen and pregnant women.

Under no circumstances, the management has the right to insist that the translator perform activities that are contraindicated based on the results of the medical report.

Acceptable dates

If something extraordinary happens, the head of the institution sends the subordinate to another point, with worse working conditions for no more than thirty days.

If the employee refuses?

A natural question arises - can an employee say “no” in response to such an initiative of the boss?

Labor legislation does not give the worker such an opportunity, and if he, being transferred, does not move to a new place, then there will be disciplined or fired.

It is possible to refuse to fulfill the obligation further, but only after the advance written notification of the employer with the obligatory indication of what was the reason. Simple reluctance or unsettled relationship with a new team, the degree of distance from home and transportation difficulties in the eyes of the law are not a good reason... It's another matter if the earnings turned out to be lower than even the average income in the same place, or the conditions threaten health or life.

In other cases, stubbornness is fraught with the termination of further cooperation (Article 77 of the Labor Code of the Russian Federation). At the same time, the deceased is entitled to compensation payments equivalent to the average income for two weeks (Article 178 of the Labor Code of the Russian Federation). But only in those cases when the employee's refusal is not clothed in the form of a violation, for example, he simply did not like the change of place and he simply did not go to work. Then the head of the company regards his behavior as absenteeism and, accordingly, the truant has nothing to expect any compensation (Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of April 17, 2004).

If the refusal is legal and there are no violations in the employee's behavior, the employer is not entitled to apply disciplinary measures for refusal of obligations.

From changing the work schedule

The fact that the subordinate is waiting for a transition to another schedule, for example, from a five-day period to a floating day off, the employer notifies at least two months before the proposed transfer.

If the schedule changes are undesirable for the candidate, he has the right to refuse. In this case, the employer offers other positions, if any in the company. If there are none or the subordinate did not like any of the options, the cooperation is broken (Article 77 of the Labor Code of the Russian Federation).

From going to another area

It is necessary to distinguish between the transition to a new employer and the transition to another locality or unit. In the first case, consent is not needed only in emergency situations. If we are talking about moving to another branch, for example from a central to a regional branch, then Art. 72 of the Labor Code of the Russian Federation, which means that the company does not have the right to single-handedly make such a decision. You can refuse, but this in turn will entail a break in cooperation, again by agreement of the parties. (Article 77 of the Labor Code of the Russian Federation)

Sample refusal

A candidate's unwillingness to comply with the director's order is formalized in writing, with approximately the following wording: “I ask you not to transfer me to work in the poultry house, as the chlorine-containing composition“ Chloramine ”is used there for disinfection and this will harm my health. I have a persistent allergy to chlorine-containing drugs, which is confirmed by a certificate from an allergist. Respectfully yours, Maria Ivanovna Nikiforova (signed) September 23, 2017. " The director puts the visa “no objection” and appoints another candidate.

Registration

The procedure for the forced transfer of a citizen to another place consists of several steps:

• decision-making;
• notification of the candidate;
• issuing an order and familiarizing a citizen with it;
• exit transferred to a new location.

The general director always introduces the order to the subordinate. Even if he is not going to sign it. No signatureif the forced displacement is lawful, the principal doesn't matter.

Documents

If the subordinate leaves the previous place, the following papers are drawn up:

• proposal from the director;
• additional agreement to the current agreement;
• order of the general director T-5 or T-5a;
• worker's personal card (T-2).

As for the work book, temporary care is not displayed in it (Decree of the Government of the Russian Federation No. 225 of April 16, 2003).

Order

The employer issues an order in the form of T-5 (Resolution of the State Statistics Committee of the Russian Federation No. 1 dated January 5, 2004). The document is drawn up on a standard A4 sheet of paper (if there is a letterhead, then use it) in the first person and must contain:

• date and place of compilation;
• full company name;
• personnel Number;
• details OKUD, OKPO;
• the nature of the transfer - temporary or permanent;
• data transferred, position, department;
• to what place, where he goes, in connection with what (necessarily begins with the word "translate")
• references to legislation;
• signatures.

The paper is drawn up in a single copy, issued for review on receipt. In a new office or subdivision or workshop, a citizen must be introduced to the job description, safety standards and other internal documents (Article 225 of the Labor Code of the Russian Federation).

Transfer of a soldier

What a forced transition to a new duty station looks like depends on two factors: whether we are talking about a conscript, or the person serves under a contract. Both have the right to move in the event of:

• business necessity;
• admission to study on a military profile, the same applies to expulsion;
• deterioration in health, stated by a medical report;
• increase;
• organizational and staff activities.

As for situations when it is necessary to ask the consent of a conscript, there are almost none. The contract servicemen have more freedom in this regard, but the command has enough to say the cherished words "service need" and there will be no need for any explanations. The translator has no right to refuse.

When you can't translate

Not a single serviceman, whether he is a contract soldier or serves on conscription, can be sent to another point if:

• he arrested or serving a sentence;
• members of his household - dependents will not be able to live with him in a new place;
• health status of close dependent relatives requires constant presence, while they are not given over to the care of the state.

This list is comprehensive. It is widely believed that the number of good reasons includes admission to a civil university, who is about to give birth or has just given birth to a wife, but it is wrong.

The procedure for servicemen is the same: first, the command makes a decision, then a transfer order is issued. After that, the translated person is given maximum thirty days to complete all cases that were in the same place... After this period, he is leaving for a new location. If both spouses are serving in the family, then the departure of one automatically means the transfer of the other to a new place.

So, it turns out that an entrepreneur can still forcibly transfer personnel to a new position. However, this is possible on strictly defined grounds and in compliance with all the rules, including those related to registration. All participants in labor relations are obliged to know them in order to avoid omissions, conflicts, arbitrariness and, as a result, proceedings in the courtroom.

In contact with

Does the employer have the right to transfer an employee to another position without the employee's consent? What is the procedure? The salary will be what: how in the previous position?

Answer

As a general rule, transfer to another job is carried out only with the written consent of the employee, because the job function of the employee, as well as the place of work, are essential conditions of the employment contract. At the same time, labor legislation allows, in strictly defined cases, to transfer an employee without his consent. Let's consider them.

Cases when translation is allowed without the written consent of the employee are defined in article 72.2 of the Labor Code of the Russian Federation. An employee can be transferred without his consent to a job not stipulated by an employment contract with the same employer to prevent or eliminate the consequences:

• natural or man-made disasters
• industrial accidents
• industrial accidents
• fires, floods, famines, earthquakes, epidemics or epizootics
• any exceptional cases endangering the life or normal living conditions of the entire population or its part

It is also allowed without obtaining the employee's consent to transfer him to another job with the same employer in the following cases:

• downtime (that is, temporary suspension of work for reasons of an economic, technological, technical or organizational nature)
• the need to prevent destruction or damage to property
• replacement of a temporarily absent employee

It should be noted that the above situations must be caused by extraordinary circumstances. At the same time, transfer to a job requiring a lower qualification is allowed only with the written consent of the employee.

For how long is it allowed to transfer an employee to another job without his consent?

The employer has the right to transfer the employee without his consent to work not stipulated by the employment contract for a period of up to one month.

Can an employee refuse to transfer in the above situations?

The refusal of an employee from such a transfer is not provided for by the Labor Code of the Russian Federation. Therefore, if an employee refuses to perform work under new conditions or, in general, did not go to work, he can be brought to disciplinary responsibility.

How is work paid for a transfer made without the consent of the employee?

In the case of temporary transfers carried out without the consent of the employee, his labor is paid for the work performed, but not lower than the average earnings for the previous job.