Assignment of duties: unanswered questions?

Combination of duties and transfer of an employee in personnel records management

The Labor Code of the Russian Federation does not actually mention the institution of the performance of duties, despite the abundance of information about related concepts, such as combination and translation. Despite the special attention on the part of the legislator to these categories of law, this in no way contributes to the solution of issues related to the institution of imposing duties.

Is it allowed to hire employees as acting?

As practice shows, these cases are very common, but how legitimate is this? Let's try to figure it out now. In some of the most typical cases, a person may be accepted as acting:

1) If the staffing table does not have a unit for this employee, but it is needed in fact;

2) There is a free place in the staff list, but there is no staff who is worthy to occupy this position.

There are several typical examples from life.

Situation #1 - Disappearance of an employee

According to the law, it is impossible to dismiss a truant until an explanatory note is received from the latter, or an act is drawn up on the refusal of such an employee to write an explanatory note. Both of these options are impossible until the personal contact of the first person of the organization, the head of the workshop or the personnel department with the fugitive with the participation of a witness. And the work that is the duty of a truant stands still, while someone has to do it.

Situation #2 - serious illness

If the illness is serious and requires long-term treatment, a person may be hired to do the work for the sick employee.

Situation No. 3 - it was not possible to find a worthy candidate among employees

For example, for one of the departments of the institute, a head is needed, who, according to the law, is chosen by the team. If there is no candidate among the team worthy of taking this position, the management can invite a person with a long work history, the presence of an appropriate academic degree from the outside. Since the team did not hold elections, such an employee can only be acting.

Missing place in the staffing table

This case involves hiring an employee with the conclusion of a fixed-term employment contract (STD) instead of the acting one. Such an agreement according to Art. 58 of the Labor Code can be concluded if labor relations, taking into account the conditions of work or its nature, cannot be established for an indefinite period. In the first paragraph of the next article of the Code, it is said that the initiator of the conclusion of the STD can be both the employee himself and the employer, in order to occupy the position of a temporarily absent employee. The workplace for the latter is saved.

According to the legislation, employers have the right, but not the obligation, to hire employees under STD. In this case, all the requirements established by Art. 58 of the Labor Code of the state. Therefore, employers, in order to temporarily replace an absent employee, conclude a STD without any doubt that they are right.

For example, if one of the employees went on maternity leave, the manager does not think about whether it is necessary to take a new employee as an acting employee. In most situations, it is STD. According to the law, there is no fundamental difference between replacing a pregnant woman and a sick employee. Therefore, situation No. 2, described above, involves hiring an employee under a fixed-term employment contract. The reason for this action is the known deliberately temporary nature of the work. An employee who is absent still has a job.

The legitimacy of such actions in situation No. 1 may seem controversial, because in this case the employee simply skips work. And there are no requirements in the law according to which a job must remain for a truant, therefore, according to the STD, it is impossible to hire an employee. But in reality, things are somewhat different. As long as there is no documentary evidence of absenteeism, the manager has the right to assume that there is a good reason for the absence. By law, a place for a truant must be retained until an explanatory note is received or an act is drawn up refusing to provide it.

Not matching the vacancy

In this case, it is also forbidden to hire an employee as acting. Management must do one of two things:

1) Hired for a trial period;

2) Continue searching for more suitable candidates.

From Art. 57 of the Labor Code is aware of the basic requirements for drawing up an employment contract:

1) The position of the employee must be indicated;

2) The specialty must be indicated;

3) The specific function of the new employee, a profession with a qualification or specialization.

As you know, the abbreviation "acting" may not precede the name with any of the above.

About translation and combination

The performance of duties can be either the first or the second. If an employee performs the duties of a person who has gone on vacation and his work, this is a combination. If he was released from his main activity - translation. Exception - the acting is a full-time deputy. For these cases, a different procedure for assigning duties is provided for, which may or may not require the consent of management.

If an employee is transferred for no more than 1 month, his consent is not required. In the event that a longer transfer is planned, or a new job requires a lower qualification than the one that the employee performed previously, consent will be required. If the work that will be required to be performed by the employee who is being transferred is contraindicated for him for health reasons, the execution of the transfer is prohibited.

When combining positions, the consent of the employee must be taken without fail. This requirement is in line with the Decree of the Council of Ministers adopted on December 4, 1981 No.

In the case of a full-time employee, such as a deputy director, his consent to assume the duties of a director is not required. It can be controversial when a deputy is assigned the narrowly focused responsibility of an absent worker.

Often there are situations when the CEO has a large number of deputies in narrower areas of activity. Each individually will not be able to fully cope with the functions of the director in his absence, and at the same time, all together cannot do the work for him, since 1 person should manage the enterprise. It is advisable to hire one person who is able to fully perform the functions of the director in his absence, which will require the consent of such an employee. Consent must be in writing.

Registration of combination

There are two options for registering a combination of duties by an employee:

1) According to the order of the head of the organization, an additional requisite is introduced into the unified form T-6, which indicates the person who assumes the duties of a temporarily absent employee.

2) Issuance of two orders: the first - for the vacation of an employee who will be temporarily absent, the second - for the assignment of duties.

The second option is more convenient for the case of the departure of a leading person.

For example, there is an organization that includes several restaurants at once, each of which has its own head-director. But the first person is the head of the organization. If the director of one of the restaurants has issued an annual leave, in case of verification, his deputy must confirm his authority by presenting the appropriate document.

It is much more convenient to use an order for the assignment of duties, and not a document according to which the director was granted leave, in the text of which the person to whom the duties were transferred is indicated below. An employee acting as a director must also receive an order to transfer the right to sign, since the regulatory authorities are more interested in persons who have received the right to sign financial documents.

The formalization of the assignment of duties to an employee who is the main staff member is carried out in a similar way, with the exception of the requirement to obtain consent from him.

Translation processing

The design of the translation causes more design problems than the case discussed above. It may not be entirely clear how to reflect in the order the fact that an employee is released from his duties to fulfill the duties of an absent employee.

There are only 2 design options:

1) Only one employee leave order is signed, in which there is a record that during the absence of an employee, his duties are assigned to another employee. In this case, the latter is released from his own duties.

2) Two orders are issued: to leave an employee and to transfer his duties to another with his release from his own.

In some cases, it is difficult to distinguish the actual transfer of an employee from a simple temporary assignment of duties. To understand the difference, consider two examples.

Example #1

An employee of the company with a fully staffed staff, who does not have a full-time deputy, went on annual leave. His duties were assigned to one of the subordinates, who was also relieved of his own duties. In practice, such actions are often presented as a performance of duties, drawing up one or two orders.

Example #2

An employee who recently had a baby was released for 1.5 years. Another employee of the enterprise was found to replace her. In this case, as a rule, a translation is performed instead of assigning duties.

The question arises: why in both situations, despite the fact that the employee goes on vacation, either the assignment of duties or the transfer is carried out? If it depends on the duration of the vacation, then how to determine what its duration is the limit for only the temporary assignment of duties? Unfortunately, there are no definitive answers to these questions. It turns out that there are as many as three options for formalizing the assignment of duties to an employee replacing the main one, if the latter went on vacation lasting 3 or more months:

1) Two orders: to leave an employee and to assign his duties to another;

2) One order to leave an employee, indicating the person who will temporarily perform his duties;

3) Two orders: for the vacation of the main employee and for the temporary transfer of another to the place of the one who went on vacation.

The basis for the last order is a memo written by the head of the unit, in which there is an employee’s mark of consent to this transfer.

• HR and Labor Law