Replacement of a temporarily absent employee: temporary transfer. change in organizational or technological working conditions

08.05.2020

Full text of Art. 72.2 of the Labor Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice under article 72.2 of the Labor Code of the Russian Federation.

By agreement of the parties, concluded in writing, the employee may be temporarily transferred to another job with the same employer for a period of up to one year, and in the case when such a transfer is carried out to replace a temporarily absent employee, who, in accordance with the law, retains his job , - until the employee goes to work. If, at the end of the transfer period, the employee is not provided with the previous job, but he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent.

In the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic, and in any exceptional cases that endanger the life or normal living conditions of the entire population or part of it, the employee may be transferred without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer in order to prevent these cases or eliminate their consequences.

The transfer of an employee without his consent for a period of up to one month to work not stipulated by an employment contract with 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 to property, or replacement temporarily absent employee, if downtime or the need to prevent the destruction or damage of property or to replace a temporarily absent employee is caused by the emergency circumstances specified in part two of this article. At the same time, transfer to work requiring lower qualifications is allowed only with the written consent of the employee.
When transfers are made in the cases provided for in parts two and three of this article, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job.

Commentary on Article 72.2 of the Labor Code of the Russian Federation

1. The commented article deals with temporary translation. It should be considered in a systematic connection with, which establishes the possibility of concluding an agreement on changing the conditions employment contract.

In the absence of a permanent transfer condition, temporary transfers are subject to a one-year time limit. In accordance with the requirements of Art. 14 of the Labor Code of the Russian Federation, terms calculated in years expire on the corresponding date of the last year. If the last day of the term falls on a non-working day, the expiration date of the term shall be the next working day following it.

At the same time, the commented article establishes that in the case when such a transfer is carried out to replace a temporarily absent employee, for whom, in accordance with the law, the place of work is retained, the transfer period is set before this employee returns to work. In this case, the period of temporary transfer may be longer (for example, in the absence of the main employee due to parental leave). At the same time, the term of the transfer, which is considered temporary, is not specified. Its termination will actually depend on the desire and ability of the main employee to go to work.

If the term of the transfer has expired, the previous job was not provided to the employee, and he himself did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent.

Thus, the legislator, setting the transfer period at one year, emphasized the right of the employee, despite the fact that the transfer was made by his own consent, to return to his previous place of work after a year. Corresponding to this right is the duty of the employer to provide such an opportunity.

If the period of temporary transfer is limited by the period of absence of the main employee, the rights of the latter are protected, since it is expected that he will return to the performance of his labor function.

If, after a year, the parties to the employment contract did not consider it necessary to exercise the above right, as in the case if the main employee did not go to work (for example, when terminating the employment contract with him or transferring), then the temporary transfer is transformed into a permanent one.

2. Transfer to another job without the written consent of the employee is possible only in cases provided for in parts 2, 3 of the commented article.

In case of emergency, in which the normal course economic activity becomes impossible, the employee may be transferred without his consent to work not stipulated by the employment contract with the same employer, but only to prevent these cases or eliminate their consequences, and for a period of up to one month.

Similarly, in cases of downtime, as well as if it is necessary to prevent the destruction or damage to property or to replace a temporarily absent employee, but only in cases where this is caused by emergency circumstances, the transfer of an employee without his consent to work not stipulated by an employment contract with the same employer is also allowed for up to one month.

At the same time, as emphasized by the Supreme Court of the Russian Federation, the employer has the right to transfer the employee to work not stipulated by the employment contract only in extraordinary cases, specified in parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation, or to eliminate their consequences. The employer must provide evidence of the existence of emergency circumstances that necessitated the temporary transfer of the employee without his consent to work not stipulated by the employment contract (determination of the Armed Forces of the Russian Federation of April 8, 2010 N 53-B11-1).

The following case from judicial practice is indicative. By order of the chief physician, T. was temporarily transferred to the position of a cardiovascular surgeon at the employer's polyclinic without his consent. According to the employer, the transfer of T. did not contradict the provisions of Part 2 of Art. 72.2 of the Labor Code of the Russian Federation, since the absence of a cardiovascular surgeon in the clinic of a regional hospital endangers the life or normal living conditions of the entire population or part of it, which is an emergency. However, the court disagreed with these arguments. The case under consideration, according to the court, is not extraordinary.

Paragraph 17 of the resolution of the Plenum of the Supreme Court of the Russian Federation on the application by the courts of the Labor Code of the Russian Federation provides that when applying parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation, which allow the temporary transfer of an employee to another job without his consent, the courts should keep in mind that the obligation to prove the existence of circumstances with which the law associates the possibility of such a transfer rests with the employer. When considering this case, the employer did not provide evidence of the existence of emergency circumstances that necessitated the temporary transfer of the employee without his consent to work not stipulated by the employment contract. Accordingly, the employee was transferred under the pretext of operational necessity, in the absence of exceptional cases indicating the real need for such a transfer, in connection with which the said transfer was declared illegal.

Thus, the employer should not attribute his own, even if high, need to transfer the employee to another job to extraordinary circumstances.

3. The number of guarantees provided for an employee in the presence of emergency situations and his temporary transfer, according to parts 2 and 3 of the commented article, includes the following:
- even in such cases, transfer to work requiring lower qualifications can only be carried out with the written consent of the employee;
- with such transfers, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job (on the procedure for calculating the average wages and commentary).

Another commentary on Art. 72.2 of the Labor Code of the Russian Federation

1. General principle the stability of the employment relationship (see Art. 60, 72 and commentary thereto) extends its effect to cases of temporary transfers to another job. This means that, as a rule, a change in the content of the labor function and (or) the place of employment stipulated by the contract is carried out exclusively by agreement of the parties, concluded in writing (see article 72 of the Labor Code and commentary thereto).

At the same time, the legislator establishes some additional mandatory rules related to ensuring the principle of stability of the labor relationship. By virtue of part 1 of the commented article, if at the end of the transfer period the previous job was not provided to the employee, but he did not demand its provision and continues to work, then the condition on the temporary nature of the transfer becomes invalid and the transfer is considered permanent. Thus, the very fact of allowing the employee to work after the date indicated in the transfer agreement as the end of the transfer period means that the parties have reached a new agreement that the new job is permanent for the employee. With regard to a transfer to replace a temporarily absent employee, such an agreement is presumed for the case when this employee returned to work and at the same time the transferred employee is also not released from the transfer.

This rule also applies to cases where a change in the labor function has resulted in the employee being assigned to perform work in a different position, specialty or profession without being released from the previous job, i.e. in cases of combining professions, positions or expanding the service area (see article 60.2 of the Labor Code and commentary thereto).

Since part 1 of the commented article establishes the rules for temporary transfer to another job with the same employer, these rules do not apply to cases of temporary transfer of an employee to another employer. In the latter case, the law does not require the mandatory written execution of a transfer agreement (although a written form is appropriate), the terms of the transfer, including the condition of its duration, are determined solely by agreement of the parties; accordingly, the rule established by this article regarding the transformation of a temporary transfer into a permanent one is not valid. Therefore, if there is a need to transfer the employee to work with the employer at the place of transfer, such a transfer should be carried out according to the rules of dismissal in the order of transfer to another employer or by dismissing the employee according to own will with the subsequent conclusion of an employment contract with a new employer.

2. On the peculiarities of the temporary transfer to another job of pregnant women and women with children under the age of one and a half years, see Art. 254 of the Labor Code and commentary to it.

On the features of the temporary transfer to another employer of professional athletes, see Art. 348.4 of the Labor Code and commentary to it.

3. The employer has the right to transfer the employee to work not stipulated by the employment contract in order to prevent the extraordinary cases specified in parts 2 and 3 of the commented article, or to eliminate their consequences. In this regard, the Supreme Court of the Russian Federation indicates: when applying parts 2 and 3 of the commented article, which allow the temporary transfer of an employee to another job without his consent, the courts should bear in mind that the obligation to prove the existence of circumstances with which the law associates the possibility of such a transfer , is assigned to the employer (clause 17 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts Russian Federation Labor Code Russian Federation").

Transfer to another job in these cases is regulated by federal law, therefore, the right of the employer to make such a transfer, as well as the obligation of the employee to perform new job, arise directly from the law, regardless of whether it is provided as a condition of the employment contract. Work not stipulated by an employment contract is understood as work that may be outside the scope of the labor function stipulated by an employment contract.

The transfer in question belongs to the category of transfers carried out at the initiative of the employer. An employee's refusal to transfer is a disciplinary offense entailing disciplinary liability.

Translation in the order of the commented article has the following features: a) is possible in the presence of actual circumstances of an extraordinary nature; b) is temporary; c) can only be carried out with the same employer; d) is allowed if the employee retains the right to work of a certain quality.

4. The list of cases of an extraordinary nature, which are the basis for the transfer of an employee, is given in parts 2 and 3 of the commented article. If the employer carried out the transfer of an employee under the pretext of operational necessity, in the absence of exceptional cases indicating the real need for such a transfer, it is recognized as illegal.

Judicial practice proceeds from the fact that the transfer in question is possible if the employer had no other way to prevent or eliminate the circumstances indicated in the commented article. Shortcomings in the organization of labor cannot serve as a basis for such a transfer.

5. Translation in the order of the commented article is allowed for a period not exceeding one month. Since the law only limits the time limit and not the number of transfers, such a transfer can take place more than once, but whenever there is a corresponding exceptional reason.

If the action of the reason that caused the transfer in question lasts more than a month, the employee may be entrusted with performing work outside the stipulated labor function or place of work (structural unit), subject to obtaining his consent to this.

6. In accordance with the Labor Code, the transfer in question is allowed only with this employer. It does not matter that the circumstance that caused such a transfer may occur with another economic entity. Temporary transfer to another employer to eliminate these circumstances is possible only with the consent of the transferred employee.

At the same time, the legislator does not in any way limit the possibility of transferring, in connection with the circumstances specified in the commented article, to a subdivision of the employer's organization located in another locality.

7. When transferring in the order of the commented article, the employee cannot be assigned work that is contraindicated for him for health reasons.

An assignment to a transferred worker of work of a lower qualification than that stipulated by the employment contract is possible only with the written consent of the worker.

8. A transfer to replace a temporarily absent employee is a special case of temporary transfers of the type in question and is carried out on the basis of general rules set for temporary translations of the commented article.

9. Transfer to another job in the cases specified in the commented article is formalized by an order (instruction) of the employer, which must indicate the reason and term for the transfer, the work assigned to the employee and the conditions of remuneration (for the work performed, but not lower than the average earnings for the previous work).

10. The employer's order to transfer is binding on the employee, and unreasonable refusal of it is a disciplinary offense, entailing disciplinary liability.

If the employee does not return to work or returns to the previous workplace, his actions should be considered absenteeism. If the employee enters a new workplace, refusing to perform the relevant work, his actions should be interpreted as a continuing disciplinary offense, for which several disciplinary sanctions may be announced, including dismissal for repeated failure to perform labor duties (paragraph 5 of article 81 of the Labor Code) .

However, by virtue of par. 5 st. 219, part 7 of Art. 220 of the Labor Code, an employee cannot be subjected to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, with the exception of cases provided for federal laws, until such a hazard is eliminated or from performing work with harmful and (or) hazardous conditions work not covered by the employment contract. Since the Labor Code does not contain rules prohibiting an employee from exercising this right, even when the performance of such work is caused by a transfer on the grounds specified in the commented article, the employee’s refusal to temporarily transfer to another job in accordance with Art. 72.2 of the Labor Code for the above reasons is justified (paragraph 19 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2).

Consultations and comments of lawyers on Article 72.2 of the Labor Code of the Russian Federation

If you still have questions about Article 72.2 of the Labor Code of the Russian Federation and you want to be sure that the information provided is up to date, you can consult the lawyers of our website.

You can ask a question by phone or on the website. Initial consultations are free of charge from 9:00 to 21:00 daily Moscow time. Questions received between 21:00 and 09:00 will be processed the next day.

1. Article 72.2 of the Labor Code of the Russian Federation is specifically devoted to temporary transfer to another job. It provides for the possibility of temporary transfer to another job by agreement of the parties (part 1) and at the initiative of the employer without the consent of the employee in cases provided for by law (parts 2, 3).

2. In accordance with part 1 of the commented article, by agreement of the parties, concluded in writing, the employee may be temporarily transferred to another job with the same employer. The law does not name specific grounds on which such a transfer is allowed, and therefore it is possible on any basis, incl. both for a vacant position (place of work) with this employer, and for replacing a temporarily absent employee within the period established by law. As a general rule, this period should not exceed one year. An exception is established for cases of transfer to another job to replace a temporarily absent employee, for whom, in accordance with the law, the place of work is retained. In this case, the transfer period may be more than one year. It depends on the time of entry to work of the replaced worker.

Within the terms established by law, the parties determine a specific period during which the employee will perform work not stipulated at the conclusion of the employment contract.

At the end of the period of temporary transfer to another job determined by the parties, the employer may, and at the request of the employee is obliged to provide him with the previous job. However, if the term of the temporary transfer has expired, and the employee does not insist on the provision of the previous job and continues to work, then the condition on the temporary nature of the transfer becomes invalid. In this case, work in the position (profession, specialty) to which the employee was temporarily transferred is considered permanent for him and the employer is not entitled to transfer him to his previous or other job without the consent of the employee.

3. Temporary transfer to another job should be distinguished from the performance by an employee, on behalf of the employer, of the duties of a temporarily absent employee along with work stipulated by an employment contract. Unlike a temporary transfer to another job, which is allowed both to a vacant position (place of work) and to replace a temporarily absent employee who retains the position (place of work), the employee can perform the duties of a temporarily absent employee without releasing his main duties. only to replace an employee who retains the position (place of work) (for example, for the duration of a business trip, vacation, temporary disability). The performance by an employee on behalf of the employer of the duties of a temporarily absent employee along with work stipulated by an employment contract, in contrast to a temporary transfer to another job, is not limited by any period. This period is determined by agreement of the parties. The agreement of the parties on a temporary transfer to another job cannot be terminated early unilaterally by the employee or employer, as is the case when the employee, along with his work, performs the duties of a temporarily absent employee (see comments to Article 60.2).

4. Part 2 of the commented article provides for the grounds on which the employer has the right to transfer the employee temporarily to another job not stipulated by the employment contract, without his consent. The law does not establish an exhaustive list of such grounds, but clearly defines their nature - these are exceptional cases that endanger the life or normal living conditions of the entire population or part of it. These include, in particular, natural or man-made disasters, industrial accidents, accidents, floods, earthquakes, etc.

Only in the presence of these emergency circumstances is it possible to temporarily transfer an employee without his consent to another job and in case of downtime, which is understood as a temporary suspension of work for reasons of an economic, technological, technical or organizational nature, as well as if it is necessary to prevent the destruction or damage to property or to replacement of an absent employee (part 3 of article 72.2 of the Labor Code of the Russian Federation). In other words, the temporary transfer of an employee without his consent to work not stipulated by an employment contract can be recognized as justified only if this is necessary due to emergency circumstances that endanger the life or normal living conditions of the entire population or part of it. If the need for a temporary transfer of an employee to another job is caused, for example, by such reasons as equipment breakdown, untimely delivery of raw materials or materials, etc., and this is not related to the emergency circumstances provided for in part 2 of the commented article, then such a transfer is only allowed by agreement of the parties. As explained by the Plenum of the Supreme Court of the Russian Federation in Resolution No. 2 of March 17, 2004, when applying parts 2 and 3 of the commented article, which allow the temporary transfer of an employee to another job without his consent, the courts should keep in mind that the obligation to prove the existence the circumstances with which the law connects the possibility of such a transfer rests with the employer (paragraph 17).

5. The duration of one (each) transfer to another job without the consent of the employee in cases where such a transfer is necessary due to emergency circumstances that endanger the life or normal living conditions of the population, should not exceed one month. However, such a transfer may be repeated. This rule also applies to cases of temporary transfer to another job to replace an absent employee, i.e. transfer to another job to replace an absent employee due to emergency circumstances is not limited to one month during a calendar year.

The job to which the employee is transferred in connection with the above circumstances (including to replace a temporarily absent employee) must correspond to his qualifications. If in this situation it is necessary to transfer to another job that requires lower qualifications, then such a transfer is allowed only with the written consent of the employee.

6. Temporary transfer of an employee to another job in all cases provided for in Article 72.2 of the Labor Code of the Russian Federation is allowed only with the same employer with whom he has an employment relationship. At the same time, when transferring an employee to another job without his consent, i.e. in the cases provided for in parts 2 and 3 of this article, remuneration must be made according to the work performed, but not lower than the average earnings for the previous job.

In all cases, it is unacceptable to transfer to another job that is contraindicated for the employee for health reasons.

7. This article gives the employer the unconditional right to transfer employees without their consent to work not stipulated by the employment contract in exceptional cases that endanger the life or normal living conditions of the population. In this regard, the employee cannot refuse such a transfer if it is carried out in accordance with the established requirements and the employee does not have good reasons to refuse the transfer.

Refusal to perform work in a translation made in compliance with the law is recognized as a violation labor discipline, and absence from work - absenteeism.

In doing so, it should be taken into account that, by virtue of par. 5 st. 219, part 7 of Art. 220 of the Labor Code, an employee cannot be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, with the exception of cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with harmful and (or) dangerous working conditions not provided for by the employment contract. Since the Labor Code does not contain provisions prohibiting an employee from exercising this right even when the performance of such work is caused by a transfer due to emergency circumstances, the employee’s refusal to temporarily transfer to another job in accordance with Article 72.2 of the Labor Code of the Russian Federation for the above reasons is justified (see paragraph 19 Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2).

As of: 09.10.2006
Magazine: Directory of personnel officer
Year: 2006
Author: Kostyan Irina Alexandrovna
Theme: Documents personnel service, Temporary transfer to another job
Category: HR practice

In practice, situations are not uncommon in which the employer is forced to replace a temporarily absent employee. This happens in the following cases: an employee uses annual paid leave, unpaid leave, during the period of his temporary incapacity for work, maternity leave, in other cases when a temporarily absent employee, in accordance with the law, retains a place of work.

The Labor Code of the Russian Federation provides for several options for replacing a temporarily absent employee:
- temporary transfer to another job;
– movement;
– combination of professions (positions);
– conclusion of a fixed-term employment contract during the absence of the employee.

Different types of replacement of a temporarily absent employee have much in common, which is a kind of prerequisite for legal errors made by the parties to an employment contract in practice. At the same time, the types of replacement of a temporarily absent employee listed above differ significantly from each other both in form and in content.

In addition, Federal Law No. 90-FZ of June 30, 2006 “On Amendments to the Labor Code of the Russian Federation, Recognition of Certain Regulatory Legal Acts of the USSR as Invalid on the Territory of the Russian Federation and Repealed Certain Legislative Acts (Provisions of Legislative Acts) of the Russian Federation” introduced a number of significant changes in legal regulation replacement of a temporarily absent employee.

In order to determine which of the existing forms to choose, taking into account specific circumstances, it is necessary to identify the features of each of them, which will make it possible to find the optimal, and in some cases the only acceptable way.

Today we will talk about a temporary transfer to another job to replace a temporarily absent employee.

As a rule, to replace a temporarily absent employee, in practice, a temporary transfer to another job was used due to production needs. Prior to the introduction of amendments to the Labor Code of the Russian Federation (in 2006) in accordance with Art. 74 of the Labor Code of the Russian Federation, in the event of a production need, the employer had the right, on his own initiative, to transfer the employee in the same organization to another job not stipulated by the employment contract. Production necessity was understood, in particular, as the need to replace an absent worker.

The changes made to the Labor Code of the Russian Federation in 2006 modified in some way the legal potential of both the employer and the employee in the situation under consideration. Now the norms of the Labor Code of the Russian Federation provide for the possibility of applying a temporary transfer both in case of production necessity, and in situations not related to it.

Note!

Temporary transfers can be made:
by agreement of the parties (employee and employer);
unilaterally at the initiative of the employer:
in the absence of the consent of the employee;
with the consent of the employee

AT modern conditions temporary transfers can conditionally be divided into two groups: transfers allowed by agreement of the parties (employee and employer); transfers carried out by the employer unilaterally on their own initiative.

In turn, temporary transfers at the initiative of the employer are of two types: transfers carried out by the employer in the absence of the consent of the employee, and transfers allowed with the consent of the employee.

Consider three possible options for the temporary transfer of an employee to replace an absent employee.

Translation by agreement of the parties

In accordance with Part 1 of Art. 722 of the Labor Code of the Russian Federation, a temporary transfer to another job with the same employer to replace a temporarily absent employee is allowed only by agreement of the parties. The previous rule under Art. 74 of the Labor Code of the Russian Federation, did not regulate the procedure for the implementation of a temporary transfer to another job by agreement of the parties, however, did not prohibit it. In practice, often to replace a temporarily absent employee, the parties to the employment contract used their right to make appropriate changes to the employment contract, including those of a temporary nature, by agreement of the parties. Therefore, in the situation under consideration, on the basis of a written agreement signed by the parties, the labor function of the employee, the structural unit in which he worked, the amount and forms of remuneration, etc., could be changed for a certain period.

Earlier, part 2, 3 art. 74 of the Labor Code of the Russian Federation Now, art. 722 of the Labor Code of the Russian Federation

The duration of a transfer to another job to replace an absent employee cannot exceed one month during a calendar year (from January 1 to December 31).

With written consent, an employee may be transferred to a job requiring a lower qualification.

By agreement of the parties, concluded in writing, the employee may be temporarily transferred to another job with the same employer for a period of up to one year, and in the event that such a transfer is carried out to replace a temporarily absent employee who, in accordance with the law, retains his job, until the employee returns to work. If, at the end of the transfer period, the employee is not provided with the previous job, but he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent.

The transfer of an employee without his consent for a period of up to one month to work not stipulated by an employment contract with 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 to property, or replacement of a temporarily absent employee, if downtime or the need to prevent the destruction or damage to property or to replace a temporarily absent employee caused by emergency referred to in the second part of this article. At the same time, transfer to work requiring lower qualifications is allowed only with the written consent of the employee.

When transfers are made in the cases provided for in parts two and three of this article, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job.

However, the lack of legal norms establishing the right and procedure for transferring to another job to replace a temporarily absent employee, for example, for the period of his stay on parental leave for up to three years, entailed the transformation of an employment contract concluded for an indefinite period into a fixed-term employment contract . Therefore, the basis for terminating an employment contract with an employee transferred to another job of a temporary nature was often the expiration of its validity due to the temporary absence of an employee who was retained by law by law. All this significantly reduced the legal guarantees of employees temporarily transferred by agreement of the parties to another job for a long-term replacement of a temporarily absent employee.

Currently, based on a written agreement between the parties, two types of temporary transfers are allowed:
- for up to one year;
- for the entire period of absence of the employee, for whom the law retains the place of work.

transfer to another job for up to one year is essentially unlimited. Therefore, from a formal point of view, it seems possible, by agreement of the parties, to temporarily transfer an employee both to replace a temporarily absent employee and to a vacant position. In this regard, the employer has time to solve his problems, for example, to find a suitable, in his opinion, employee for a vacant position.

Note!

Now the Labor Code of the Russian Federation allows the temporary transfer of an employee to a vacant position for up to 1 year. A prerequisite is the agreement of the parties

Transfer to work to replace a temporarily absent employee is limited to the period of absence of the employee, for which, according to the law, the place of work is retained. In this case, the end date of the temporary transfer is the date when the temporarily absent employee enters work, for whom, in accordance with the law, the job is retained. In the second case, a temporary transfer to another job is allowed only to replace a temporarily absent employee. Obviously, this form of substitution can be used by the employer and the employee in situations where it is necessary to replace an employee who is on maternity leave, parental leave, due to temporary disability, etc. ( Application 1)

Thus, on the one hand, the legislator increased the duration of the temporary transfer of an employee to another job to replace an absent employee to one year or more, on the other hand, such a transfer is not allowed if there is no agreement between the parties.

What is meant by "agreement of the parties"? Will the signature of the employee on the transfer order be sufficient?

The consent of the employee to transfer to another job to replace the temporarily absent employee in this situation is clearly not enough. Therefore, familiarizing the employee with the employer's order to transfer him to another job for a certain period and obtaining his consent to such a transfer cannot be fully considered as compliance with labor law.

It also seems unlawful to carry out a temporary transfer to another job to replace a temporarily absent employee by notifying the employee about this against receipt and obtaining written consent from him for such a transfer. The issuance of an employer’s order for a temporary transfer to another job and an employee’s visa on consent to work in changed conditions or a written statement from the employee in which he expresses his consent to the transfer also does not allow us to fully regard this as compliance by the employer with labor laws. This is due to the different content of the concepts of "consent" and "agreement".

The consent of one party (the employee) implies the existence of an initiative coming from the other party to the employment contract - the employer. Meanwhile, the agreement of the parties is an opportunity for bilateral (on an equal footing) determination by the parties of working conditions. In this case, a temporary transfer to another job can be carried out as a result of the parties agreeing on all the terms of the employment contract that are subject to change: the amount of wages, working hours, etc. Therefore, the agreement of the parties on the temporary transfer of an employee to another job with the same employer is subject to conclusion in writing.

Note!

The basis for issuing an order to transfer an employee to another job, including to replace a temporarily absent employee, is an additional agreement to the employment contract

Therefore, the basis for an order to temporarily transfer an employee to another job in this case is a written agreement of the parties to amend the employment contract. Such an agreement is drawn up, as a rule, in two copies - one for each party. (An exception is cases when an employment contract is concluded in more than two copies.) It must be signed by both parties to the employment contract. The content of the agreement may be conditions that change in connection with the ongoing activities: change of position (specialty, labor function); structural subdivision, as well as conditions related to this transfer, such as a change in wages, a change in the working hours, the term of changes made to the employment contract by agreement of the parties.

Note!

Part 1 Art. 722 of the Labor Code of the Russian Federation provides for cases when a temporary transfer will be considered permanent

It is necessary to pay attention to the legal consequences provided for by Part 1 of Art. 722 of the Labor Code of the Russian Federation. The expiration of the term of the transfer may entail the recognition of the provision on the temporary nature of such a transfer as invalid, and the temporary transfer, therefore, will be considered permanent. This happens when two conditions are present at the same time:
- the employer did not provide the employee with the previous job;
- the employee has not stated the requirement to provide him with the previous job.

Here one can see the application of the analogy of the law regulating the rule for transforming fixed-term labor relations into relations of a permanent nature, according to which the absence of the will of the parties (one of the parties) of the employment contract entails the recognition of a fixed-term employment contract as a contract concluded for an indefinite period. This change, which is of great importance, obliges the employer to keep track of the validity of the temporary transfer. It should be borne in mind that the employer does not always know the date of entry to work of the employee, who, according to the law, retains his place of work.

For example, a woman who is on parental leave has the right to interrupt it at her own discretion at any time convenient for her and go to work without notifying the employer.

The date of her entry to work should serve as the basis for the parties to the employment contract (employee and employer) to end the transfer to another job.

At the same time, the rules of Part 1 of Art. 722 of the Labor Code of the Russian Federation are not formulated correctly enough. Thus, the transformation of a temporary transfer into a permanent transfer is due to the lack of actions on the part of the employer to provide the previous job to the employee transferred to another job to replace the temporarily absent employee.

At the same time, the procedure for providing an employee with a previous job is not defined by law. In this regard, questions arise:
- Is it necessary to issue an order to transfer the employee to his previous place of work, and what in this case can serve as the basis for such a transfer?
- Is it necessary to notify the employee in writing about the exit to his workplace of a temporarily absent employee, and if so, in what form?
- Is it possible not to formalize in writing the fact of providing an employee temporarily transferred to another job, the former place of work (position)?

In our opinion, the rule stipulated by the labor legislation for transforming a temporary transfer into a permanent transfer obliges the employer to notify the employee (notify him) of the provision of the previous job in connection with the return to work of the employee whom he replaced in accordance with a written agreement of a temporary nature. Otherwise, a situation is possible in which two employees may be in the same position, who will be persons working under an employment contract concluded for an indefinite period. So, if on the day a temporarily absent employee enters work, the employer does not provide the previous job to the employee temporarily replacing the absent one, then two persons may be in the same position at once.

Suppose, on December 28, 2006, Ivanov Ivan Ivanovich, due to the end of temporary disability, goes to work as the chief specialist of department N in accordance with the terms of the employment contract concluded when he was hired. At the same time, on December 28, 2006, in accordance with the Internal Labor Regulations, Petrov Petr Petrovich, transferred to the same position from the position of a leading specialist of the same department in accordance with a written agreement of the parties, goes to work during the absence of Ivanov Ivan Ivanovich.

In the situation under consideration, if on December 28, 2006 the employer does not provide Petrov Petr Petrovich with the previous job occupied by him before being transferred to the position of chief specialist of department N, and Petrov P.P. himself does not demand its provision, then Petrov P.P. will be working in the position of chief specialist of department N. The condition on the temporary nature of the transfer of Petrov P.P. on December 28, 2006 becomes invalid.

In order to avoid such situations, the employer, most likely, will have to somehow record the fact that Petrov was provided with the former (occupied by him before the transfer) job (position).

The most optimal, in our opinion, may be the notification of Petrov P.P. about Ivanov I.I. Appendix 2).

Such notification should be in writing. Its content can be arbitrary. It seems that the notification should be signed by a person with the right to hire and dismiss workers. It can be prepared in two copies, one of which must be handed over to the employee, and on the other, which remains with the employer, there must be a mark of delivery.

If the employee for some reason refuses to receive the notification, it is advisable for the employer to draw up an act about this.

Note!

The procedure for formalizing the provision of a former place of work to an employee of the Labor Code of the Russian Federation is not defined

In our opinion, there is no need to issue an order to transfer the employee to the previous place of work, since the transfer itself is temporary. At the same time, such an order cannot be recognized as illegal due to the fact that the procedure for formalizing the provision of a former place of work to an employee is not defined by law. Therefore, the employer, taking into account the rules for office work in force in the organization, has the right to issue an order (instruction) to transfer the employee to his previous place of work in connection with the employee's return to work, for which the former place of work was retained for the period of his absence.

Such a document must contain the following information:
- last name, first name and patronymic of the employee;
- the name of the position in which he is in connection with the temporary transfer;
- the name of the position to which he should return;
- grounds (the fact of the employee's return to work, indicating his last name, first name and patronymic, the reasons for his absence);
– date of transfer.

If such an order (instruction) of the employer on the transfer to the previous place of work is issued, it is necessary to familiarize the employee with it against receipt. In case of refusal to familiarize with the order (instruction) or refusal to sign on familiarization with it, this fact should be formalized by the relevant act.

Transfer at the initiative of the employer in the absence of the consent of the employee

In the absence of the consent of the employee, as before, a temporary transfer to another job is allowed at the initiative of the employer, if necessary, to replace a temporarily absent employee for a period not exceeding one month. At the same time, the transfer of an employee is allowed for work not stipulated by the employment contract with the same employer, and the consent of the employee for such a transfer is not required. The exception is cases of transfer to work requiring lower qualifications, which are allowed only with the written consent of the employee. Just as before, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job.

Note!

The number of temporary transfers at the initiative of the employer for up to one month to replace a temporarily absent employee in the event of a production need is not limited

It should be noted that since Part 3 of Art. 722 of the Labor Code of the Russian Federation does not contain any restrictions on the number of temporary transfers allowed at the initiative of the employer, for a period of up to one month, it seems that such transfers can be repeated. The rule that was previously provided for by Parts 1 and 2 of Art. 74 of the Labor Code of the Russian Federation, limited the maximum allowable duration of a temporary transfer to replace an absent employee to one month within one calendar year (from January 1 to December 31). This made it possible to talk about the possibility of repeatedly transferring an employee to another job to replace an absent employee, but at the same time general term no more than one month during a calendar year. Today, this assertion is not supported by anything.

At first glance, the innovation essentially weakened the legal guarantees of workers. The rule under consideration is contrary to the principle labor law enshrined in Art. 2 of the Labor Code of the Russian Federation, which proclaims freedom of labor, including the right to work, which everyone freely chooses or freely agrees to, the right to dispose of their abilities for work, to choose a profession and type of activity. So, within the meaning of Part 3 of Art. 722 of the Labor Code of the Russian Federation, the employer, in the absence of any restrictions, has the right to repeatedly use the work of an employee at his discretion, repeatedly demand that he perform work not stipulated by an employment contract, for periods of up to one month. In this case, the declarative is provided by Art. 2 of the Labor Code of the Russian Federation, the principle proclaiming the obligation of the parties to an employment contract to comply with the terms of the concluded contract, including the right of employees to demand that the employer comply with his obligations towards them. In addition, it seems doubtful whether it is possible to protect the right of an employee to demand that the employer provide him with work stipulated by an employment contract.

However, in reality there is no contradiction here. When applying part 3 of Art. 722 of the Labor Code of the Russian Federation, which allows the temporary transfer of an employee at the initiative of the employer to a job not stipulated by an employment contract in the same organization in case of production necessity, it is necessary to be guided by international legal acts.

Note!

The transfer of an employee without his consent for a period of up to one month, including to replace a temporarily absent employee, is allowed only in the presence of emergency circumstances specified in Part 2 of Art. 722 of the Labor Code of the Russian Federation

However, based on these provisions of the ILO Convention on forced or compulsory labor, provided h. 2 Article. 722 of the Labor Code of the Russian Federation, temporary transfer of an employee without his consent to work not stipulated by an employment contract to prevent downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), destruction or damage to property, as well as to replace an absent employee may be considered justified, provided that it was caused by extraordinary circumstances (subparagraph “e”, paragraph 4 of the Convention, part 4 of article 4 of the Labor Code of the Russian Federation), or when failure to take these measures could lead to a catastrophe, industrial accident, natural disaster, accident and the like.

Given the great role of international legal acts in the regulation of labor relations, one should be more attentive to the conventions ratified by our state and in force on its territory.

In the event of a lawful and justified temporary transfer of an employee to another job at the initiative of the employer, the employee is not entitled to refuse to comply with the employer's order, by which he was temporarily transferred to another job for up to one month. Moreover, by virtue of clause 19 of Resolution No. 2 of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, refusal to perform work in a translation made in compliance with the law is recognized as a violation of labor discipline, and absence from work work - absenteeism.

However, it should be noted that, by virtue of par. 5 st. 219 and part 7 of Art. 220 of the Labor Code of the Russian Federation, an employee cannot be disciplined for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, with the exception of cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with harmful and (or) dangerous working conditions not provided for by the employment contract.

Since the Labor Code of the Russian Federation does not contain norms prohibiting an employee from exercising this right, his refusal to temporarily transfer to another job in accordance with Art. 722 of the Labor Code of the Russian Federation for the above reasons is reasonable.

transfer to a job with a lower qualification with the consent of the employee

The transfer of an employee at the initiative of the employer to a job requiring lower qualifications for up to 1 month in case of emergency is allowed only with the written consent of the employee.

The absence of the written consent of the employee to such a transfer does not allow the employer to require him to perform work not stipulated by the employment contract. In this regard, the transfer to another (temporary) job at the initiative of the employer, committed in violation of labor legislation, in particular in the absence of the written consent of the employee, is illegal. Therefore, the employee's refusal to comply with the employer's order in this case is lawful, and the employer, therefore, is not entitled to apply disciplinary measures to the employee.

The written consent of the employee implies the initiative of the employer, so it can be issued in various ways. In particular, the employer has the right to issue an order (instruction) on the transfer of an employee to replace a temporarily absent employee to a job that requires lower qualifications. The basis for such an order (instruction) may be the consent of the employee, drawn up in writing ( Appendix 3)

By the way

By general rule appointment of an employee as a temporary acting vacant position not allowed. So, clarifications of the USSR State Committee for Labor No. 30 and the All-Union Central Council of Trade Unions No. 39 of December 29, 1965 “On the procedure for paying for temporary replacement” determined the procedure for assigning the duties of a temporarily absent employee. In particular, in accordance with paragraph 2 of the clarifications, the appointment of an employee as acting in a vacant position is not allowed. The exception is cases of performance of duties by position, appointment

which is made by a higher authority. In this case, the head of the organization is obliged, no later than one month from the date of hiring the employee, to submit documents to the higher management body for his appointment to the position. The governing body within a month from the date of receipt of the documents must consider this issue and inform the head of the results. If an employee accepted by a manager who is not from among the employees of this organization is not approved in the position, he must

be offered another job, taking into account his qualifications and work experience. In the absence of relevant work or refusal of the offer, he is released from work on the grounds provided for by law, for example, by agreement of the parties. In the event that an employee nominated for leadership position from the reserve of this organization, he must be provided with work with qualifications and pay not lower than that which he performed before being appointed to a new position.

Thus, the basis for the transfer of an employee to replace a temporarily absent employee, depending on the period, is:
- a written agreement of the parties - a transfer for a period of up to one year, as well as for the period of absence of the employee, who, according to the law, retains his former place of work;
- a written order (instruction) of the employer - a transfer for a period of up to one month (if there are sufficient grounds for this);
- a written order and the written consent of the employee - a transfer for a period of up to one month (if there are sufficient grounds for this), subject to the performance of work of a lower qualification.

Attachment 1

Example additional agreement to an employment contract

Appendix 2

Order

1 -1

New edition Art. 72.2 of the Labor Code of the Russian Federation

Commentary on Article 72.2 of the Labor Code of the Russian Federation

To change the terms of the employment contract that determines the place of work, a written consent to the transfer must be obtained from the employee. However, for a temporary transfer on the grounds provided for in parts 2 and 3 of Article 72.2 of the Labor Code of the Russian Federation, obtaining such consent is not required, provided that the employee is offered a job that does not require lower qualifications.

Thus, if the employer sees the need to change the above terms of the employment contract and this is not related to the circumstances provided for in parts two and three of Article 72.2 of the Labor Code of the Russian Federation, then he, first of all, should notify the relevant employee about this. For this purpose, the employer must send the employee a proposal, the essence of which is the employer's motivated intention to change the content of the work (labor function) previously assigned to the employee or to transfer the employee to a permanent job at another enterprise (to another locality together with the enterprise). In the proposal, the form of which can be both written and oral, it is advisable, in addition, to state the motives that guide the employer. In addition, the proposal, apparently, should contain information about the expected timing of changes in the terms of the employment contract, as well as the time available to the employee to express his opinion on this matter.

The basis for changing the terms of the employment contract in the above situations is an agreement between the employee and the employer, concluded in addition to the employment contract and further considered by the parties to the employment relationship as its integral part. In the event that the employee, for one reason or another (which, however, he is not obliged to name), expresses his disagreement with the proposal of the employer, the terms of the employment contract remain in effect in their original form.

In necessary cases, the opinion of the employee may be brought to the attention of the employer in writing (for example, in a statement). At the same time, we emphasize that the employer is not entitled to exert any pressure on the employee who expressed disagreement with the proposal to change the terms of the employment contract.

As mentioned above, the transfer of an employee to another workplace (to another structural unit) located in the same area does not require consent, if none of the previously defined terms of the employment contract is changed.

At the same time, we note that changing the terms of the employment contract, which determines the place of work, is impossible if the employee is supposed to be transferred (relocated) to work that is contraindicated for him for health reasons. In this case, the circumstances that make the transfer (relocation) unacceptable must be documented.

Another commentary on Art. 72.2 of the Labor Code of the Russian Federation

1. The general principle of the stability of an employment relationship (see Art. 60, 72 and commentary thereto) extends to cases of temporary transfers to another job. This means that, as a rule, a change in the content of the labor function and (or) the place of employment stipulated by the contract is carried out exclusively by agreement of the parties, concluded in writing (for the form of the agreement when translating, see paragraph 4 of the commentary to Article 72 of the Labor Code of the Russian Federation) .

At the same time, the legislator establishes some additional mandatory rules related to ensuring the principle of stability of the labor relationship. By virtue of h. 1 Article. 72.2 if at the end of the transfer period the previous job is not provided to the employee, but he did not demand its provision and continues to work, then the provision on the temporary nature of the transfer becomes invalid and the transfer is considered permanent. Thus, the very fact of allowing the employee to work after the date indicated in the transfer agreement as the end of the transfer period means that the parties have reached a new agreement that the new job is permanent for the employee. With regard to a transfer to replace a temporarily absent employee, such an agreement is presumed for the case when this employee returned to work and at the same time the transferred employee is also not released from the transfer.

It should be noted that this rule also applies to those cases where the change in the labor function was expressed in the assignment to the employee to perform work in a different position, specialty or profession without being released from the previous job, i.e. in cases of combining professions, positions or expanding the service area (see article 60.2 of the Labor Code of the Russian Federation and commentary thereto).

Since in Part 1 of Art. 72.2 establishes the rules for temporary transfer to another job with the same employer, these rules do not apply to cases of temporary transfer of an employee to another employer. Consequently, in the latter case, the law does not require the mandatory written execution of a transfer agreement (although a written form is appropriate), the terms of the transfer, including the condition of its duration, are determined solely by agreement of the parties; accordingly, the rule established by this article regarding the transformation of a temporary transfer into a permanent one does not apply. If there is a need to transfer the employee to work with the employer at the place of transfer, such a transfer should be carried out according to the rules for dismissal in the order of transfer to another employer or by dismissing the employee of his own free will, followed by the conclusion of an employment contract with a new employer.

2. The employer has the right to transfer the employee to work not stipulated by the employment contract in order to prevent the extraordinary cases specified in parts 2 and 3 of Art. 72.2, or elimination of their consequences. In this regard, the Supreme Court of the Russian Federation indicates (clause 17 of the Decree of the Plenum of March 17, 2004 N 2) that when applying parts 2 and 3 of Art. 72.2 of the Code, allowing the temporary transfer of an employee to another job without his consent, the courts should keep in mind that the obligation to prove the existence of circumstances with which the law associates the possibility of such a transfer rests with the employer.

Transfer to another job in these cases is regulated by federal law, therefore, the right of the employer to carry out such a transfer, as well as the obligation of the employee to perform a new job, follows directly from the law, regardless of whether this is provided as a condition of the employment contract. At the same time, work not stipulated by an employment contract is understood as work that may be outside the scope of the labor function stipulated by an employment contract.

The transfer in question belongs to the category of transfers carried out at the initiative of the employer (see paragraph 6 of the commentary to Article 72.1 of the Labor Code of the Russian Federation). An employee's refusal to transfer is a disciplinary offense entailing disciplinary liability.

Since this non-contractual obligation is fraught with the emergence of the phenomenon of forced labor, the legislator furnishes its implementation with a number of non-contractual organizational and legal conditions.

Translation in accordance with Art. 72.2 of the Labor Code: a) is possible in the presence of actual circumstances of an extraordinary nature; b) is temporary; c) can only be carried out with the same employer; d) is allowed if the employee retains the right to work of a certain quality.

3. The list of cases of an extraordinary nature, which are the basis for the transfer of an employee, is given in parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation. If the employer carried out the transfer of an employee under the pretext of operational necessity, in the absence of exceptional cases indicating the real need for such a transfer, it is recognized as illegal.

Judicial practice proceeds from the fact that the transfer in question is possible if the employer did not have the opportunity to otherwise prevent or eliminate the specified in Art. 72.2 reasons. Shortcomings in the organization of labor cannot serve as a basis for such a transfer.

4. Translation in accordance with Art. 72.2 of the Labor Code of the Russian Federation is allowed for a period of not more than one month. Since the law only limits the time limit and not the number of transfers, such a transfer can take place more than once, but whenever there is a corresponding exceptional reason.

5. In accordance with the current Code, the transfer in question is allowed only with this employer. At the same time, it does not matter that the circumstance that caused such a transfer may occur with another economic entity.

Temporary transfer to another employer to eliminate these circumstances is possible only with the consent of the transferred employee.

At the same time, attention should be paid to the fact that the legislator does not in any way limit the possibility of transferring, due to the circumstances specified in the commented article, to a subdivision of the employer's organization located in another locality, including to a separate structural subdivision.

6. When transferring in accordance with Art. 72.2 of the Labor Code of the Russian Federation, an employee cannot be entrusted with work that is contraindicated for him for health reasons.

An assignment to a transferred worker of work of a lower qualification than that stipulated by the employment contract is possible only with the written consent of the worker.

7. Transfer to replace a temporarily absent employee is a special case of temporary transfers of the type in question. Unlike the previously existing procedure, it is currently carried out on the basis of the general rules established for temporary transfers of Art. 72.2 of the Labor Code of the Russian Federation.

8. Transfer to another job in the cases specified in Art. 72.2 of the Labor Code, is drawn up by the order (instruction) of the employer, which must indicate the reason and term for the transfer, the work assigned to the employee and the conditions of remuneration (for the work performed, but not lower than the average earnings for the previous job).

9. The employer's order to transfer is binding on the employee, and unreasonable refusal of it is a disciplinary offense, entailing disciplinary liability.

In the event that an employee does not go to work or goes to the previous workplace, such actions should be considered as absenteeism. If the employee enters a new workplace, while refusing to perform the relevant work, such actions should be interpreted as a continuing disciplinary offense for which several disciplinary sanctions may be announced, including dismissal for repeated failure to perform labor duties ().

However, it should be noted that, by virtue of par. 5 st. 219, part 7 of Art. 220 of the Labor Code of the Russian Federation, an employee cannot be disciplined for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, with the exception of cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with harmful and (or) dangerous working conditions not provided for by the employment contract. Since the Code does not contain norms prohibiting an employee from exercising this right even when the performance of such work is caused by a transfer on the grounds specified in Art. 72.2 of the Code, the employee's refusal to temporarily transfer to another job in accordance with Art. 72.2 of the Code for the above reasons is reasonable (clause 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

It is rare that the terms of the concluded employment contract remain unchanged throughout the entire period of labor relations. The contract can be changed if both parties wish to do so. But such events can also occur, after which the preservation of the previous conditions becomes impossible. In these situations, the opinion of the employee is not taken into account, and consent to change the conditions is not required. The consequences are known to all: either the employee agrees to continue working in the new conditions, or labor Relations stop. Today we will talk in more detail about the nature of such extraordinary circumstances and how they can affect the contractual relationship.

Article 60 of the Labor Code of the Russian Federation prohibits requiring an employee to perform work not stipulated by an employment contract, with the exception of cases provided for by the Labor Code of the Russian Federation and other federal laws.

All factors that may affect the terms of an employment contract are listed in Chapter 12 of the Labor Code of the Russian Federation. In this article, we will only talk about those circumstances that allow the employer to change the terms of the employment contract without coordinating their actions with employees. They are listed in Art. 72 2 and Art. 74 of the Labor Code of the Russian Federation and entail certain legal consequences for the parties (see table).

cases of emergency

According to parts 2 and 3 of Art. 72 2 of the Labor Code of the Russian Federation, emergency circumstances include: natural or man-made disaster, industrial accident, special case at work, fire, flood, famine, earthquakes, epidemics, epizootics, any other exceptional cases that endanger the life or normal living conditions of the entire population or part of it.

The situations under Art. 72 2 and 74 of the Labor Code of the Russian Federation, and the consequences for the parties to the employment contract

HR Dictionary Simple- temporary suspension of work for economic, technological, technical or organizational reasons

Also, exceptional circumstances are those caused by the above circumstances: downtime, the need to prevent the destruction or damage to property, the need to replace a temporarily absent employee.

All these events give the employer the right to temporarily transfer the employee to another job, that is, change his labor function for a certain period. Extraordinary circumstances that necessitated a temporary transfer to another job, as a rule, are recorded in the documents of the employer. For example, the basis for issuing an order on personnel to transfer an employee to another job can be an order for the main activity on measures to eliminate a production accident ( Attachment 1).

At the same time, the law does not require advance notice to the employee about the transfer. However, the following requirements must be observed.

Requirement 1. The maximum duration of such a transfer is limited to one month.

Requirement 2. Temporary transfer is carried out strictly for the purpose of preventing circumstances of an exceptional nature or eliminating their consequences.

One of the employees went on vacation on 28 calendar days. The director, as it was necessary, issued an order for the temporary transfer of another employee to his place (qualification corresponds). I read that order and refused to transfer, in connection with which he was reprimanded. The employee contacted the GIT, a check will come soon. We do not understand his position, because we did everything right.

Alas, it is not. Part 3 Art. 72 2 of the Labor Code of the Russian Federation does provide for the right of the employer to replace a temporarily absent employee with another employee. But pay attention: the absence of the main employee must be caused by the emergency circumstances specified in Part 2 of Art. 72 2 of the Labor Code of the Russian Federation.

And the next vacation is not an extraordinary event. The employee in such a situation had the right to refuse temporary transfer to another job and was unlawfully brought to disciplinary responsibility.

By virtue of the provisions of h. 2 Article. 72 2 of the Labor Code of the Russian Federation, an employee can be transferred without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer in any exceptional cases that endanger the life or normal living conditions of the entire population or part of it, to prevent these cases or eliminate their consequences.

Under this definition, or rather, under the evaluative wording of the norm, employers often try to bring any temporary transfer that, in fact, does not meet the stated requirements.

T. filed a lawsuit against the Pskov Regional Hospital (hereinafter referred to as the Hospital) to declare illegal and cancel the employer's orders to temporarily transfer him to another job and bring him to disciplinary liability.

Since 1999, T. has been holding the position of a cardiovascular surgeon at the Hospital. By order of the head physician, he was temporarily transferred without his consent to another structural unit - the hospital's polyclinic. The employer justified such a transfer by the need to fill a vacant position in order to prevent a threat to the life and health of the population. T. refused to perform duties in the polyclinic, for which he was reprimanded.

The representative of the Hospital in court pointed out that the transfer of T. did not contradict the provisions of Part 2 of Art. 72 2 of the Labor Code of the Russian Federation, since the absence of a doctor - a cardiovascular surgeon in the clinic of the Hospital endangered the life or normal living conditions of the entire population or part of it, and therefore is an emergency. In addition, the transfer of the plaintiff was carried out in order to replace a temporarily absent employee, which also does not contradict the Labor Code of the Russian Federation.

The court concluded that the employer had no extraordinary grounds for transferring T. to the hospital polyclinic, indicating that the employer has the right to transfer the employee to work not stipulated by the employment contract only in extraordinary cases prescribed by law, or to eliminate their consequences.

Clause 17 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter - Decree No. 2) provides that when applying parts 2 and 3 of Art. 72 2 of the Labor Code of the Russian Federation, which allow the temporary transfer of an employee to another job without his consent, the courts should keep in mind that the obligation to prove the existence of circumstances with which the law associates the possibility of such a transfer rests with the employer.

When considering this case, the employer did not provide evidence of the existence of emergency circumstances that necessitated the temporary transfer of the employee without his consent to work not stipulated by the employment contract.

The defendant carried out the transfer of the employee under the pretext of operational necessity in the absence of exceptional circumstances, in connection with which the specified transfer is illegal.

Requirement 3. Part 4 Art. 721 of the Labor Code of the Russian Federation prohibits the transfer of an employee to work that is contraindicated for him for health reasons.

Therefore, neither a catastrophe, nor a fire, nor a flood, nor other extraordinary circumstances give the employer the right to temporarily transfer an employee to work related to their prevention or elimination of their consequences, if it is contraindicated for the employee for health reasons.

Requirement 4. For transfers carried out in cases provided for in Part 2 and Part 3 of Art. 72 2 of the Labor Code of the Russian Federation, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job.

Requirement 5. In the cases listed in Part 3 of Art. 72 2 of the Labor Code of the Russian Federation, transfer to work requiring lower qualifications is allowed only with the written consent of the employee.

In emergency situations, you need to act fast enough. This does not mean that you can do without proper documents, but it is desirable to reduce the time for their execution. The written consent of the employee to the transfer can be obtained, for example, as follows. The head of the unit in which the production accident occurred shall inform the head of the organization in writing about the existence of emergency circumstances. An employee who needs to be temporarily transferred to a job requiring lower qualifications can record his consent to the transfer in a memorandum ( application 2). Then the head, when deciding on organizational measures, will have all the necessary information about who can be transferred to temporary work without violating the requirements of labor legislation.

change in organizational or technological working conditions

In the event that, for reasons related to a change in organizational or technological working conditions, the terms of the employment contract determined by the parties cannot be saved, they can be changed at the initiative of the employer, with the exception of changing the labor function of the employee (part 1 of article 74 of the Labor Code of the Russian Federation). It is necessary to notify each employee in writing about upcoming changes in the terms of the employment contract determined by the parties, as well as about the reasons that necessitated such changes, as required by Part 2 of Art. 74 of the Labor Code of the Russian Federation.

The Labor Code of the Russian Federation refers to such reasons: changes in equipment and production technology, structural reorganization of production and other reasons.

The Plenum of the Supreme Court of the Russian Federation in Decree No. 2 supplements this not too long list with the position “improvement of jobs based on their certification”.

So, the list of reasons associated with changes in organizational or technological working conditions is open. This means that any reason that will be offered by the employer to justify the legality of their actions must be assessed on an individual basis.

We believe that other reasons include:

mode change company work,
introduction of a new form of labor organization,
introducing new or changing technical regulations,
introduction, replacement and revision of labor standards.

In the event of a change in the terms of the employment contract determined by the parties on the basis of Art. 74 of the Labor Code of the Russian Federation, the main goal of the employer is not to change these conditions, but to technical or organizational improvement of production. Such transformations are almost always driven by the organization's performance objectives and are designed to improve its performance. economic indicators. The change in working conditions becomes a consequence of ongoing activities and is permanent.

Meanwhile, employers often abuse the right and artificially bring under organizational or technological transformation processes that are not really such in order to unilaterally change the terms of employment contracts determined by the parties.

As a result of the change in the structure of the organization, one of the positions was eliminated. The employee was offered a transfer to another position, but the salary there is lower than in the previous job. If an employee refuses to transfer, is it possible to dismiss him under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation with the payment of a two-week allowance?

In this case, there was a reduction in the staff of the organization's employees, and bring it under the norms of Art. 74 of the Labor Code of the Russian Federation is illegal. In addition, it should not be forgotten that organizational or technological processes referred to in Art. 74 of the Labor Code of the Russian Federation, may entail changes in any terms of the employment contract, with the exception of a change in the labor function of the employee.

Note that the identification of changes in the staffing table with structural reorganization - typical mistake allowed by employers.

Shch. filed a lawsuit against LLC “K” for reinstatement, recovery of wages for the time of forced absenteeism and compensation for non-pecuniary damage.

The employee was dismissed under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The reason for this was the change in the staffing table of K LLC, as a result of which some positions were excluded from it. The court of first instance, recognizing the dismissal of the plaintiff under paragraph 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation was legal, based on the fact that the change in the terms of the employment contract determined by the parties occurred in connection with the approval of a new staffing table in the organization. The plaintiff refused to continue working in the new conditions, as well as from other work offered to him, and was reasonably dismissed on the indicated grounds.

The Court of Second Instance disagreed with this conclusion. According to paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation, the basis for dismissal is the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions. However, in the present case, the defendant did not provide evidence to support that staffing changed due to changes in the organization of labor or production.

In such cases, dismiss the employee under paragraph 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation is illegal. If only the staffing table changes, the basis for the dismissal of an employee should be different: a reduction in the number or staff of the organization's employees (clause 2, part 1, article 81 of the Labor Code of the Russian Federation). At the same time, the employee is provided with appropriate guarantees and compensation.

Part 5 Art. 74 of the Labor Code of the Russian Federation reveals a special case when, as a result of innovations, not any conditions of the employment contract are changed, but only the duration of working hours.

Note! Part-time or part-time work week introduced for a period not exceeding six months

The employer has the right to decide on the introduction of part-time work only if it is a threat of mass dismissal of employees.

The procedure for changing the terms of an employment contract is quite complicated and is regulated in detail by law.

As shows arbitrage practice, in the event of a dispute, the courts find out whether there are changes in the organization or technology of labor, their validity and, most importantly, whether the “restructuring” that took place at the enterprise inevitably entailed a change in the terms of labor contracts determined by the parties, or the previous conditions could be retained.

In paragraph 21 of Resolution No. 2, the Plenum of the Supreme Court of the Russian Federation indicated to the courts that when resolving cases on the reinstatement of persons whose employment contract was terminated under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation, or on the recognition of illegal changes in the terms of the employment contract determined by the parties when the employee continues to work without changing the labor function (Article 74 of the Labor Code of the Russian Federation), it must be taken into account that, based on Art. 56 of the Code of Civil Procedure of the Russian Federation, the employer is obliged, in particular, to provide evidence confirming that the change in the terms of the employment contract determined by the parties was the result of changes in organizational or technological working conditions - for example, changes in equipment and production technology, improvement of jobs based on their certification, structural reorganization production - and did not worsen the position of the worker in comparison with the conditions collective agreement, agreements. In the absence of such evidence, the termination of the employment contract under paragraph 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation or a change in the terms of an employment contract determined by the parties cannot be recognized as legal.

Thus, termination of an employment contract with an employee on the specified basis is possible only if there are objective and subjective reasons that have led to the inevitability of changing the terms of the employment contract determined by the parties, as well as if the employer observes the procedure for dismissal on this basis.

Objective reasons should be recognized as changes in organizational or technological conditions that inevitably lead to a change in the terms of the employment contract, as well as the employer’s lack of another job to which he could transfer the employee with his written consent. Subjective reasons are obstacles to the continuation of the employment contract, due to the will and consciousness of the employee, his refusal to continue working on conditions not provided for by the employment contract, or to transfer to another job in the order of transfer.

By the way

In the event of a dispute, it is necessary that the reasons for changing the terms of the employment contract determined by the parties be recognized as objective, and the dismissal of an employee who refused to continue working is justified. To do this, the employer is obliged to provide convincing evidence and explain to the court the reasons that inevitably led to a change in the terms of the employment contract and the subsequent dismissal of the employee.

Attachment 1

An example of drawing up an order on measures to eliminate a production accident ( fragment)

Appendix 2

An example of a memorandum on the need for a temporary translation