In every organization there is a need for a person to move from one place of work to another. Such a desire may come from the employee himself. You need to know how to properly formalize such a transition to another type of activity.
How to transfer an employee to another position on the initiative of the employee himself?
Such a change of workplace or position may be temporary or permanent. It is also possible to transfer within the organization to another position or to another employer.
When an employee, on his own initiative, intends to move to another place of work, he needs to write a statement. This indicates the reason why the person expressed a desire to transfer. It also indicates how long the employee needs to transfer. Because this can only be temporary, to replace another employee.
Such a statement is written in free form or on a specific form of the organization. The boss must endorse it. After which an order is issued in form T-5 or T-5A. It must be registered, assigned a number and familiarized with it to the employee.
There are situations in which an employee has the right to demand his transfer; they are provided for by law:
- If any danger arises to the life or health of an employee;
- Then, when a woman becomes pregnant, she needs to be transferred to easier work that will not pose a danger to the unborn child;
- If a woman has a child who has not reached the age of one and a half years.
In this case, the employer is obliged to transfer the employee to a position that is paid the same as the old one.
Procedure for transfer to another position
There is a certain algorithm for moving to another position:
- The first step is to write a transfer application. It must be registered, and the boss also signs here;
- Then the person must be familiarized with his new job responsibilities, which he will sign;
- Next, a care agreement is drawn up, which specifies all the working conditions, payment, and the period for which the person is hired. In cases where the transition is temporary, the end date must be clearly indicated. If the employee is not returned to his old place of work, he continues to serve on a permanent basis. Such an agreement will be an addition to the employment contract. It must be registered in a special journal. The document is printed in two copies, one is given to the employee, the other remains with the boss;
- Then an order to leave is issued. The employee must be familiarized with it;
- It is also necessary to make an entry in the work book;
- The very last step is to make changes to your personal card.
Reasons for refusal to transfer to another position from a manager
If an employee demands to move to another position, management is not obliged to immediately agree to such a transition. The employee's departure must occur with the consent of both parties. Otherwise, the employer may refuse without giving a reason.
The only exceptions are persons who are required to transfer by law:
- pregnant women - to easier work;
- women with a child under 1.5 years old;
- and when the health or life of the employee is in danger.
Then, you need to provide evidence, for example, a certificate of your position.
How to formalize the transfer of an employee at the initiative of the employer to another position?
In order to transfer an employee by decision of management, there may be several reasons:
- The company's management decided to reduce staff;
- The employee’s qualifications do not correspond to their work activity;
- Changed technological process;
- Appearance of a new vacancy;
- The presence of an administrative penalty that interferes with work;
- Lack of necessary documents.
When transferring, the order must indicate the full evidence base and the reasons why the person is being transferred to another type of production. Before you transfer an employee, you must notify him in writing, and signed. The employee must agree to such a transfer. It is necessary to make sure that no reasons prevent such a transfer to another position.
Deadline for transferring an employee to another position
It is important to understand that some translations have deadlines. There are no deadlines for permanent transfers. In case of temporary transfer, no more than a year should pass from the moment of consent of both parties. When a person replaces an employee - until he comes back. If the employee does not agree with the transfer, the process does not last more than a month.
It must be understood that transfer to another position requires the mandatory consent of both parties. This means that the employee must sign all the necessary documents. The employer, in turn, must follow the Labor Code of the Russian Federation and transfer the employee without fail.
Each party must strictly follow the law so that there is no need to resort to legal proceedings later.
Dismissal if you refuse a transfer, be it to a new structural unit or position, must be. According to the law, an employee is able to refuse responsibilities and conditions not specified in the employment contract. But first you should seriously think about what is best for you -.
As a matter of fact, this is your right, which is clearly stated in the Labor Code and other acts and laws. But under certain conditions, the employer also has the right to dismiss an employee who refuses the proposed transfer.
Regulatory regulation
The legislation clearly defines the rules for dismissing various categories of people. However, some of them can be fired only under special circumstances or quit for a number of reasons. Everything depends to a greater extent on why a person does not want to go to another department.
The legislation contains various articles in this regard:
- According to the Labor Code of the Russian Federation, part 3 and part 4 of Art. 73 the employee may refuse the proposed transfer to another position for medical reasons and quit his job.
- Also, according to Article 74 Part 4, an employee can refuse his job and quit if one of the parties violates or changes the contract.
- An employee may be dismissed when transferred to another location by the employer in accordance with Art. 72.1.
Transfer to another position, another location, etc. also refers to changes in working conditions that are not covered by normal employment contracts. But the dismissal of an employee can also be carried out for reasons that do not depend on the will of the parties.
Often this manipulation is carried out during. In general, if the employee refuses to transfer, the employer, in accordance with Part 6 of Article 77, has the right to dismiss the employee.
What are the consequences of refusal?
An employee’s refusal to transfer may be motivated by a number of reasons. At the same time, it is important to take into account the factor that sometimes there are situations where the parties simply have no choice. For example, during a layoff, the employer is obliged to offer another position or place of work to the employee. But if the latter refuses, then the owner of the organization has every right to fire him.
On the other hand, there are certain categories of citizens to whom this thesis does not apply. These are mainly single parents, people who have dependent children under 3 years of age. In such cases, the employee usually has the right to refuse the proposed transfer without consequences.
Important! The employee must be notified of the upcoming transfer in advance. This is usually done at least two months before the event.
Dismissal upon refusal to transfer to another job
Dismissal upon refusal of transfer can be carried out in different ways in different situations. It is important to know that when offering an employee a new job, position or other conditions that were not specified in the contract, the employer must understand that these conditions are fully consistent with the qualifications and level, experience, and salary of the employee.
To another employer
Dismissal upon refusal to transfer to another employer usually occurs when or. In this case, the employee is offered a job with the same or approximately the same position, which corresponds to his experience and qualifications, as well as salary.
But if an employee refuses such a transfer, the employer has the right to dismiss him in the standard manner under Article 77, Part 6 of the Labor Code of the Russian Federation.
When changing employer (transfer and dismissal)
To another position
If the employer refuses to transfer to another position, he or she has the right to dismiss the employee, but only if there are compelling reasons. It is important to understand that the procedure must be justified and in accordance with the law. If the position does not correspond to both the qualifications and salary of the employee, then the decision to dismiss can be challenged in court.
To another structural unit or department
When transferring to another department or even structural unit, it is important to consider a number of nuances:
- The position must correspond to the qualifications, education, and work experience of the employee;
- The selected position must correspond to the employee’s salary;
- In the absence of the necessary education, it will be necessary to provide appropriate training, and at the expense of the organization.
If, in the process of making a transfer, an employee must change his place of work and residence, then the employer must pay the costs associated with the move, as well as expenses associated with daily transportation to the workplace (that is, travel). If the employee refuses such a transfer, the employer may dismiss him in accordance with Art. 77 of the Labor Code of the Russian Federation in the standard manner.
When contracting
When abbreviating, the rules change slightly. If the employee does not belong to the category of exceptions, then the employer can offer a new position or workplace, and if he refuses, he can calmly dismiss the employee under the article with
Labor Code of the Russian Federation, any transfer of an employee to another job (whether it is a transfer associated with a change in the employee’s labor function, the structural unit in which the employee works (if it is specified in his employment contract), or to another location together with the employer is allowed only if there is a written consent to transfer.
Thus, the employee can refuse the transfer - this is his legal right. Logically, such a refusal does not create any negative consequences for the employee - an employee who has not accepted the employer’s offer to transfer, say, to another position in another department, continues to do his usual work, in his “usual” position, in his “ native" department. This is all clear and beyond doubt. But what to do in those situations when it is no longer possible to work in a “usual” position or in the “native” department, and a transfer is offered to the employee as a forced replacement for his previous job? It's more difficult here. The employee’s refusal of the proposed transfer in such a situation entails the most negative consequences for him: termination of the employment contract.
In general, the employer can offer the employee a transfer to another job as much as he likes, and only in two cases, if the employee refuses the transfer, formally it is for such a refusal that he can terminate the employment contract with him: in accordance with clause 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation - if he refuses to transfer to another job, which is necessary for him in accordance with a medical report issued in the prescribed manner and on the basis of clause 9, part 1, art. 77 of the Labor Code of the Russian Federation - in case of refusal to transfer to work in another area together with the employer. Naturally, we are not talking about those transfers that are made due to exceptional circumstances (temporary transfer to eliminate production accidents or their consequences, etc.) - such transfers do not require the consent of employees at all; their temporary performance of work not stipulated by their employment contracts is their direct responsibility. As for clauses 8 and 9 of Part 1 of Art. 77 of the Labor Code of the Russian Federation, then upon termination of the employment contract for one of the above reasons, the employee upon dismissal is paid severance pay in the amount of two weeks’ average earnings (Article 178 of the Labor Code of the Russian Federation).
dismissal due to layoff (clause 2, part 1, article 81 of the Labor Code of the Russian Federation) or due to the employee’s inadequacy for the position held (work performed) due to insufficient qualifications confirmed by certification results (clause 3, part 1, article 81 of the Labor Code of the Russian Federation) is allowed only if if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job), which the employee can perform taking into account his state of health. by reinstating the employee at work, previously performed this work, by decision of the state labor inspectorate or court, etc. The employer is obliged to offer the employee all vacancies that meet the specified requirements, available to him in the given locality and in other localities (if this is provided for by the collective agreement, agreements, employment contract). And here we are talking about essentially the same thing as in the case of refusal to be transferred to another locality together with the employer or to be transferred to another job, in accordance with a medical report - following the employee’s refusal to transfer, the employment contract with him or her is terminated. But, pay attention! Termination of the employment contract is not for refusal of the transfer, but as a consequence of such refusal. Whereas the formal basis for termination of an employment contract will be, for example, the above-mentioned reduction in the number or staff of employees with a corresponding entry in the work book and with the payment of the corresponding severance pay.
Problem
My husband works at a factory, hot production. Wants to move from one workshop to another to the same position as now. Only the immediate superior changes. I must say that this boss is a son of a bitch. People are running from the workshop. So he doesn’t sign the transfer for his husband. He says: “I don’t have people. Let them give in return!” He himself understands perfectly well that no one will come to him. It turns out to be some kind of slavery. Does the boss have the right not to let the husband go with a transfer? Don't sign the application?
Solution
Good afternoon
You know, as an HR manager with 20 years of experience and a specialist who knows office work well, I’ll tell you this.
In any organization, in accordance with the Charter of the organization, the decision on transfers, punishments, incentives, dismissals, admissions, etc. As a rule, it is accepted by one single person and this is the director or general director, his resolution on the application is the most important and final verdict.
All major resolutions are a statement of the opinions of those parties to which the employee reports or will report; the general director can either take into account the opinions of the parties, or not take them into account and make his own decision, which will be final.
At any plant, there is a very complex subordination structure. Your husband works in a workshop, he has a foreman or a foreman, so the first person who expresses his opinion on your husband’s application is these immediate supervisors, they write whether they agree or not, then comes just the foreman of the workshop, who also expresses his opinion and agrees he or not.
In addition, on your husband’s application, the head of the workshop where your husband is going must write his consent or not, there may also be a production manager who can support one or another head of the workshop, and only after that the transfer application goes to the director or general manager , in general, it doesn’t matter what his position is called, but his resolution is the final and irrevocable verdict.
So, the head of your husband’s workshop expressed his opinion and praise to him, just your husband takes this statement and moves further along the chain that I described to you.
If, as you write, his shop manager is a bastard, for example, he tears up the application and does not give it a go, the application can be registered in the personnel or personnel department, and for example, so that it is not your husband with the application who goes through the entire chain, but an employee of the secretariat or The HR department carried out this statement, in this case it will not go anywhere.
Also, as you write, she’s still a bastard. If suddenly he’s completely stubborn and doesn’t even care about the general director, there are plenty of tyrants, then it’s also worth thinking about the text of the application, you’re asking for a transfer, that’s great, but formulate the reasons for this so that it becomes clear to the management that the transfer was provoked by and the fact that the head of the workshop is a bastard (though there is no need to write such a statement in the text), you just need to indicate that the transfer is due to the fact that the staff turnover in the workshop is too high, that it affects the psychological climate in the workshop, on labor productivity, which decreases because due to turnover, you have to constantly either recruit employees and devote a lot of time to training, or take on the responsibilities of those who have been laid off, so that due to the increased workload and the fact that the work is not easy, the body does not have time to rest and rebuild , labor productivity falls, the quality of work falls, again this affects, for example, bonuses and wages, and most importantly, on profit.
In general, on the one hand, such a text will lead to the fact that this workshop manager himself will want to quickly give a translation to your husband, because... He will understand that before this everyone was silent, although they were not happy, they were silent, and now, such statements, even in writing, may force the authorities to take care of his person.
And yes, you will say, everyone knows, and even the higher authorities know that he is a bastard, but I will tell you for sure, it’s one thing to know and just sit and not take action, because... for now it’s quiet and good, or you’ll already receive a written notification from the employees and understand that you don’t just need to know and sit quietly, you already need to do something. And you know, because... this is production, then, as a rule, it is worth firing the boss, the bastard, than firing the entire workshop, because It is not possible to replace all employees, all hard workers.
And in the statement you can even cite specific figures that in January 2012 5 employees quit, in February only 3 employees were hired in their place, their training takes 2-4 weeks, and of these 3 employees, for example, two ran away after two weeks, those. without even going through full training.
This is your case.
Article 180. Guarantees and compensation to employees in the event of liquidation of an organization, reduction of the number or staff of employees of the organization
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 (vacant position) in accordance with part three of Article 81 of this Code.
Employees are notified by the employer personally and against signature of the upcoming dismissal due to the liquidation of the organization, reduction in the number or staff of the organization's employees, at least two months before the dismissal.
The employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the period specified in part two of this article, paying him additional compensation in the amount of the employee’s average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal.
This is what they are frightening you with.
Article 74. Changes in the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions
In the event that, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be preserved, they may be changed at the initiative of the employer, with the exception of changes in the employee’s labor function.
The employer must notify the employee in writing of the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, in writing no later than two months in advance, unless otherwise provided by this Code.
If the employee does not agree to work under the new conditions, then the employer is obliged to offer him in writing another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid job), which the employee can perform taking into account his health status. In this case, the employer is obliged to offer the employee all vacancies available in the given 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.
In the absence of the specified work or the employee’s refusal of the offered work, the employment contract is terminated in accordance with paragraph 7 of part one of Article 77 of this Code.
These are the material consequences of both options. Compare:
Article 178. Severance pay
Upon termination of an employment contract due to the liquidation of an organization (clause 1 of part one of Article 81 of this Code) or a reduction in the number or staff of the organization’s employees (clause 2 of part one of Article 81 of this Code), the dismissed employee is paid severance pay in the amount of the average monthly salary, as well as for he retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).
In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it.
Severance pay in the amount of two weeks' average earnings is paid to the employee upon termination of the employment contract due to:
refusal of the employee to continue working in connection with a change in the terms of the employment contract determined by the parties (clause 7 of part one of Article 77 of this Code).
There are bad dismissal records: for drunkenness, absenteeism, repeated failure to fulfill job duties, due to unsatisfactory test results, etc.
There are no good termination records. Which of the two evils is the lesser depends not on advice on the forum, but on the specific practice of “parting” with an unnecessary employee of each individual employer.
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