Transfer of an employee to another employer. Agreement. Preparation of personnel documents

In this article, we will tell you how to arrange for the personnel officer to transfer employees to another job. Let us consider in detail the following types of transfers: temporary and permanent, at the initiative of the employee and at the initiative of the employer, with the consent of the employee and without obtaining his consent. We will also pay special attention to the procedure for transferring an employee to work in another area together with the employer.

Rules for transferring to another job

General rules

P transfer to another job - this is a permanent or temporary change in the labor function of an employee or structural unit in which the employee works (if structural subdivision was specified in the employment contract), while continuing to work for the same employer, as well as transferring to work in another locality together with the employer (Article 72.1 of the Labor Code of the Russian Federation). Transfers can be temporary and permanent, at the initiative of the employee and at the initiative of the employer, with the consent of the employee and without his consent.

Note

In this case, structural subdivisions should be understood as branches, representative offices, as well as departments, workshops, sections, etc. (Clause 16 of the decision of the Plenum of the Supreme Court dated March 17, 2004 No. 2).

Please note that transfer to another job is allowed only with the written consent of the employee (Article 72.1 of the Labor Code of the Russian Federation). The exceptions are some cases of temporary transfer, to which we will pay special attention below. At the same time, an agreement to change the conditions specified by the parties employment contract must be concluded in writing (Article 72 of the Labor Code of the Russian Federation).

Note that the consent of the employee is not required for his transfer from the same employer to another workplace, to another structural unit located in the same area, entrusting him to work on another mechanism or unit, if this does not entail a change in the terms of the employment contract determined by the parties.

In all cases, it is forbidden to transfer and move an employee to work that is contraindicated for him for health reasons.

Also, at the written request of the employee or with his written consent, it can be carried out.

Please note: if the transfer to another job is recognized as illegal, the employee must be reinstated at the previous place of activity. At the same time, the body considering an individual labor dispute makes a decision to pay such a person the difference in earnings for the entire time of performing lower-paid work. Also, the court has the right, at the request of the employee, to make a decision on the recovery from the employer monetary compensation moral damage caused by these actions (Article 394 of the Labor Code of the Russian Federation). Moreover, in the event of a delay by the employer in the execution of the decision to reinstate the employee in his previous job, the body that made the decision makes a determination on the payment of the difference in earnings to this citizen for the entire time of the delay (Article 396 of the Labor Code of the Russian Federation).

Permanent translation

In this case, we are talking about a permanent change in the labor function of the employee or the structural unit in which the employee works (if the structural unit was indicated in the employment contract) (Article 72.1 of the Labor Code of the Russian Federation).

Any employee can apply for a transfer (see Example 1).

To process the transfer, form No. T-5 or form No. T-5a (see Example 3) is used, approved by the Decree of the State Statistics Committee of the Russian Federation of 01/05/2004 No. 1 "On approval of unified forms of primary accounting documentation for accounting for labor and its payment" ( hereinafter - Decree No. 1).

Based on the order to transfer the employee to another job, marks are made in the section “Employment, transfers to another job” in the employee’s personal card (form No. T-2 or No. T-2GS (MS)) (see Example 4) and the front invoice (Form No. T-54 or No. T-54a).

• To whom: [email protected] website
• Topic: Free consultations

When issuing an order to transfer an employee to another job (form No. T-5, approved by the Decree of the State Statistics Committee of the Russian Federation dated January 05, 2004 No. 1 “On approval of unified forms of primary accounting documentation for accounting for labor and its payment”), personnel officers often have a question: “What document should be indicated in the line “Reason: change to the employment contract from ....”? Details of the employment contract itself or details of an additional agreement to the employment contract?

• Olga Maksimova,
• Head of the Human Resources Department, Burevestnik LLC, Nizhny Novgorod

Answered by Vladimir Pirogov, lawyer at Nikline LLC:

In the line "Basis: change to the employment contract from ..." the details of the supplementary agreement to the employment contract should be indicated. Let's explain our position.

In accordance with Art. 72.1 of the Labor Code of the Russian Federation transfer to another job - a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if the structural unit was indicated in the employment contract), while continuing to work for the same employer, as well as transfer to work to another area with the employer. And the place of work and the labor function of the employee are mandatory conditions of the employment contract (Article 57 of the Labor Code of the Russian Federation).

Article 72 of the Labor Code of the Russian Federation states that changing the terms of an employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract, which is concluded in writing.

Therefore, the basis for issuing a transfer order will be an amendment to the employment contract signed by both parties, namely, an additional agreement.

And in accordance with the Instructions for the application and filling out the forms of primary accounting documentation for accounting for labor and its payment, if an employment contract was not concluded with the employee (the employee was hired before 10/06/1992) and his employment is issued by order, with filling out the unified form No. T-5, the line “Reason” indicates specific documents on the basis of which the employee will be transferred to another job (application, medical report, memo, etc.), and the requisite "Change to the employment contract" is not filled.

In accordance with Art. 66 of the Labor Code of the Russian Federation, information about transfers to another permanent job is entered in the employee's work book (see Example 5). At the same time, the transfer record is drawn up no later than a week on the basis of the relevant order (instruction) of the employer (clause 10 of the Rules for maintaining and storing work books, preparing work book forms and providing employers with them, approved by Government Decree No. 225 dated April 16, 2003, hereinafter - Decree No. 225).

Temporary transfer

In this case, we will talk about a temporary change in the labor function of the employee or the structural unit in which the employee works (if the structural unit was indicated in the employment contract), while continuing to work for the same employer (Article 72.1 of the Labor Code of the Russian Federation). At the same time, temporary transfers to another job are regulated by Art. 72.2 of the Labor Code of the Russian Federation.

So, by agreement of the parties, concluded in writing, an employee can be temporarily transferred to another job with the same employer for up to one year.

Please note: if at the end of the transfer period the employee has not been provided with the previous job, and 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.

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, then it is valid until the exit this employee to work.

The procedure for temporary transfers is similar to that for permanent transfers. The exception is that during temporary transfers, an entry in the employee's work book is not made out.

When does translation become mandatory?

Employee-initiated transfer

In some cases, the employee has the right to require the employer to temporarily transfer to another job.

For example, if an employee refuses to perform work in the event of a danger to his life and health, the employer is obliged to provide such an employee with another job while the danger is eliminated (Article 220 of the Labor Code of the Russian Federation).

Pregnant women and nursing mothers cannot be involved in the following work:

In this case, pregnant women, in accordance with a medical report and at their request, are transferred to another job that excludes the impact of adverse production factors, while maintaining the average earnings in the previous job. Until a pregnant woman is given another position, she is subject to release from work with the preservation of the average earnings for all the days missed as a result of this. Meanwhile, women with children under the age of one and a half years, if it is impossible to perform their previous work, they are transferred at their request to another job with wages for the work performed, but not lower than the average earnings at the previous place of activity until the child reaches the age of one and a half years (Art. 254 of the Labor Code of the Russian Federation). Also, pregnant women and women with children under the age of three cannot be involved in work performed by on a rotational basis(Article 298 of the Labor Code of the Russian Federation).

Transfer at the initiative of the employer and due to circumstances beyond the control of the parties

In some cases, labor legislation allows the dismissal of employees only when it is impossible to transfer them to another job available to the employer, which a citizen can perform taking into account his state of health. We are talking here about both vacant positions or work corresponding to the qualifications of the employee, and vacant lower positions or lower-paid work. In this case, the consent of the employee must be obtained. Please note that the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other areas only if it is provided for by the collective agreement, agreements, labor contract (Articles 81, 83 and 84 of the Labor Code of the Russian Federation). We are talking about the dismissal of employees in the following cases:

• reduction in the number or staff of employees of the organization, individual entrepreneur(Clause 2, Article 81 of the Labor Code of the Russian Federation);
• inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification (clause 3 of article 81 of the Labor Code of the Russian Federation);
• reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court (clause 2, article 83 of the Labor Code of the Russian Federation);
• disqualification or other administrative punishment, excluding the possibility of the employee fulfilling obligations under an employment contract (clause 8, article 83 of the Labor Code of the Russian Federation);
• expiration, suspension for a period of more than two months or deprivation of an employee of a special right (license, right to manage vehicle, the right to bear arms, other special rights) in accordance with the law, if this entails the impossibility for the employee to fulfill his obligations under an employment contract (clause 9, article 83 of the Labor Code of the Russian Federation);
• termination of access to state secrets, if the work performed requires such access (clause 10, article 83 of the Labor Code of the Russian Federation);
• violation of the rules established by law for concluding an employment contract, if this violation was not committed through the fault of the employee and excludes the possibility of continuing work (clause 11, article 77 of the Labor Code of the Russian Federation).

We also remind you that an employee who needs to be transferred to another job in accordance with a medical report, with his written consent, the employer is obliged to transfer to another job he has that is not contraindicated for this citizen for health reasons. Meanwhile, if the specified person needs a temporary transfer for up to four months, refuses to transfer, or there is no corresponding job, then the employer must remove the employee from work for this period while maintaining the place of work (position). However, during the suspension wage the employee is not charged. At the same time, if an employee needs a temporary transfer for a period of more than four months or a permanent transfer, then if he refuses to transfer or if the employer does not have the appropriate job, the employment contract is terminated in accordance with paragraph 8 of the first part of Article 77 Labor Code Russian Federation (Article 73 of the Labor Code of the Russian Federation).

As a rule, in all of the above cases, the employer sends the employee an appropriate notification or proposal to transfer the employee to the available vacant positions(see Example 6).

As a rule, the consent or disagreement of the employee in the transfer is drawn up in a separate document or is prescribed in the proposal for transferring to another job (see Example 7).

We would also like to remind you that according to Art. 74 of the Labor Code of the Russian Federation, in the case when, for reasons related to changes 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. Moreover, if the employee does not agree to work in the new conditions, the employer is obliged to offer him another available job in writing. In the absence of the specified work or the refusal of the employee from the proposed work, the employment contract is terminated in accordance with paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation.

In some situations, an 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 the following cases or eliminate their consequences. We are talking about natural or man-made disasters, industrial accidents, accidents at work, fires, floods, famine, earthquakes, epidemics or epizootics, as well as any exceptional cases that endanger the life or normal living conditions of the entire population or part of it. .

The transfer of an employee without his consent for a period of up to one month to another job is also allowed in cases of downtime, the need to prevent the destruction or damage to property, or to replace a temporarily absent employee, if these situations are caused by the emergency circumstances indicated above. At the same time, transfer to work requiring lower qualifications is possible only with the written consent of the employee himself (Article 72 of the Labor Code of the Russian Federation). Please note that for temporary transfers carried out in exceptional cases, remuneration is made according to the work performed, but not lower than the average earnings at the previous place of employment.

Note

When applying Art. 72.2 of the Labor Code of the Russian Federation, allowing temporary transfer employee to another job without his consent, it should be borne 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 (paragraph 17 of the decision of the Plenum of the Supreme Court dated March 17, 2004 No. 2).

The transfer of an employee is also possible for the period of suspension of work due to the suspension of activities or a temporary ban on activities due to violation of labor protection requirements through no fault of the employee. At this time, the employee, with his consent, can be transferred by the employer to another job with wages for the work performed, but not lower than the average earnings at the previous place of activity (Article 220 of the Labor Code of the Russian Federation).

Transfer to another locality

Transfer procedure

In this case, the employer sends the employee an offer to transfer to work in another locality. Further, the consent or disagreement of the employee is drawn up in a separate document or prescribed in the transfer proposal itself.

With the consent of the employee, changes to the employment contract should be made. This is done through the signing of an additional agreement. To process the transfer, form No. T-5 or form No. T-5a, approved by Decree No. 1, is used. Then, on the basis of the order, marks are made in the employee’s personal card (form No. T-2 or No. T-2GS (MS)) and personal account ( form No. T-54 or No. T-54a).

Note

The arbitrators in paragraph 16 of the decision of the Plenum of the Supreme Court dated March 17, 2004 No. 2 noted that “other locality” should be understood as an area located outside the administrative-territorial boundaries of the relevant locality.

Please note that when an employee moves to work in another locality, the employer is obliged to reimburse him for the following expenses (Article 169 of the Labor Code of the Russian Federation):

• for the relocation of the employee, members of his family and the transportation of property (except for cases when the employer provides the employee with appropriate means of transportation);
• for settling in a new place of residence.

The specific amounts of reimbursement of expenses are determined by agreement of the parties to the employment contract. In this case compensation payments a citizen in connection with his relocation to work in another locality is not subject to personal income tax (clause 3 of article 217 of the Tax Code of the Russian Federation) and unified social tax (subclause 2 of clause 1 of article 238 of the Tax Code of the Russian Federation), and can also be included in other expenses ( subparagraph 5, paragraph 1, article 264 of the Tax Code of the Russian Federation). Financiers also agree with this position (letters of the Ministry of Finance dated July 14, 2009 No. 03-03-06 / 2/140 and dated December 17, 2008 No. 03-03-06 / 1/688). At the same time, according to officials, the amounts reimbursed by the organization to a housing worker are subject to personal income tax and unified social tax in the usual manner (letters of the Ministry of Finance of July 13, 2009 No. 03-04-06-01 / 165 and of December 17, 2008 No. 03-03-06/1/688).

Employee refusal to transfer

The refusal of an employee to transfer to work in another locality together with the employer is the basis for the termination of the employment contract (clause 9, article 77 of the Labor Code of the Russian Federation). In this case, as in the case of a regular dismissal, form No. T-8 (or form No. T-8a), approved by Resolution No. 1, is used to formalize the termination of employment relations with employees (see Example 8).

On the day of dismissal, the employee, in addition to the amounts due, is paid severance pay in the amount of a two-week average earnings (Article 178 of the Labor Code of the Russian Federation). At the same time, labor or collective agreements an increased amount of severance pay may also be established (Article 178 of the Labor Code of the Russian Federation).

In this case, we are talking about the termination of the contract in accordance with paragraph 9 of the first part of Article 77 of the Labor Code (see Example 9).

Further, upon receipt of the work book, the employee signs in a personal card, as well as in the book of accounting for the movement of work books and inserts in them (clause 41 of Resolution No. 225). At the same time, the entry made in the work book is repeated in the personal card (clause 12 of Resolution No. 225).

Footnotes

Collapse Show

Question: ... The employee, with his consent, was transferred to another position with the same employer for a certain period. He did not cope with his duties, the employer decided to transfer him to his previous position. The employee refused to transfer until the temporary transfer was completed. Can an employer unilaterally transfer an employee to a previous position? (Expert consultation, 2015)

Question: An employee, with his consent, was temporarily transferred to another position with the same employer for a certain period. Since the transferred employee could not cope with the new duties, the employer decided to transfer him to his previous position, completing the temporary transfer ahead of schedule. However, the worker refused to return to his permanent place of work before the completion of the temporary transfer. Can an employer unilaterally complete a temporary transfer? If yes, what is needed for this?

Answer: The employer is not entitled to prematurely complete the temporary transfer unilaterally. It is possible to return an employee to a permanent place of work before the completion of a temporary transfer only by agreement of the parties.

For committing a disciplinary offense, including for improper performance of labor duties, an employee can be held disciplinary liable.

Rationale: Transfer to another job is a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to work to another area with the employer. By general rule transfer to another job is possible only with the written consent of the employee (by agreement of the parties), with the exception of certain cases (see parts 2 and 3 of article 72.2 of the Labor Code of the Russian Federation). This is enshrined in Art. 72, part 1 of Art. 72.1 of the Labor Code of the Russian Federation.

Article 72.2 of the Labor Code of the Russian Federation, devoted to temporary transfer, does not provide for a legal mechanism that would allow early termination of a temporary transfer unilaterally. Therefore, in case of a temporary transfer to another job by agreement of the parties, such a transfer can also be completed only by agreement of the parties. The initiator of the early completion of the transfer can be both the employee and the employer. It does not matter if the transfer is in vacancy work or to replace a temporarily absent employee, for whom, in accordance with the law, the place of work is retained.

It is obvious that the employer has no grounds to use other procedures provided for by law to complete the temporary transfer unilaterally, acting by analogy. In particular, it would be unlawful in this regard to resort to the legal mechanism provided for the cancellation of an order for additional work(see part 4 of article 60.2 of the Labor Code of the Russian Federation). It will also be illegal to change the terms of an employment contract for reasons related to changes in organizational or technological working conditions (see Article 74 of the Labor Code of the Russian Federation). In this case, the transfer is possible only by agreement of the parties by virtue of a direct indication of the law.

Additionally, we note that for committing a disciplinary offense, including for improper performance of labor duties, an employee can be held disciplinary liable (Article 192 of the Labor Code of the Russian Federation).

For repeated failure to perform (improper performance) without good reason of labor duties in the presence of unwithdrawn and outstanding disciplinary action it is permissible to terminate the employment contract (clause 5, part 1, article 81 of the Labor Code of the Russian Federation; clause 35 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application by the courts Russian Federation Labor Code of the Russian Federation).

Dismissal on this basis is also possible for a continuing disciplinary offense, that is, when non-performance or improper performance of labor duties continues despite the penalty applied to the employee (paragraph 2, clause 33 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 2).

An employee can be transferred to a permanent job with another employer. An employee can transfer to work in another organization as own will, and at the initiative of one of the employers.

The transfer of an employee to work in another organization is carried out on the basis of a tripartite agreement between the following parties: the current employer, the employer interested in inviting the employee, and the employee himself.

Transfer to another job is carried out by dismissing the employee from the previous place of work and concluding an employment contract with a new employer.

As consent to the transfer, a written application of the employee for dismissal in connection with the transfer to another organization (clause 5 of part 1 of article 77 of the Labor Code of the Russian Federation) can be considered if there is a written invitation from the new employer.

The employee needs to start new job within a month from the date of dismissal. Then, unlike a simple dismissal, when transferring, the new employer is obliged to conclude an employment contract with him (Article 64 of the Labor Code of the Russian Federation).

For an employee transferred from another organization, the new employer does not have the right to establish probation(Article 70 of the Labor Code of the Russian Federation).

By virtue of Art. 140 of the Labor Code of the Russian Federation upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed.

In this case, the employee is entitled to wages for the hours worked and compensation for all days of unused vacation.

The transfer of days of unused vacation and vacation amounts from the previous employer is not provided for by the new labor legislation.

The length of service required to grant leave to a new employer starts from scratch.

However, not everything is lost: the employee can negotiate with employers on the provision of leave with subsequent dismissal, that is, take a vacation "in kind" before going to work, having received the appropriate vacation pay.

By virtue of Art. 122 of the Labor Code of the Russian Federation, the right to use leave for the first year of work arises for the employee after six months of his continuous work for this employer. By agreement of the parties, an employee may be granted paid leave before the expiration of six months.

Based on this, an employee, when transferring to work with a new employer, can put the possibility of granting leave in advance, that is, earlier than six months, as one of the conditions for the transfer.

In any case, in order to calculate the average earnings retained for the period of vacation or to determine the amount of compensation for unused vacation, Art. 139 of the Labor Code of the Russian Federation and Decree of the Government of the Russian Federation of December 24, 2007 N 922 "On the peculiarities of the procedure for calculating the average wage."

* The material was created on the basis of the publication: Chizhov B.A., Ponomareva T.T. Actual issues of dismissal of workers // Economic and legal bulletin. 2016. No. 9. 160 p.

To process the transfer of an employee from one employer to another, you must use Art. 77 part one p.5. Labor Code of the Russian Federation.

If an employee is transferred to another employer, then according toRules for calculating continuous work experiencehis continuous service is maintained for one month from the date of dismissal. And upon dismissal due to the transfer of a husband or wife to another locality, continuous experience is maintained throughout the entire period of the break.

When making an entry in the work book, it is necessary to follow the rules established by the instructions for filling out work books.

When transferring, a new employer cannot refuse to hire such an employee.

Types of transfers.

The transfer can be either at the initiative of the employer or at the initiative of the employee himself.

Depending on the type, they differ:

1. Algorithm for paperwork.

2. The wording of entries made in personnel documents.

3. Responsibility of the employer for the successful completion of the transfer procedure.

Index
The initiator of the translation is.	Employer	Employee.
Documents - the basis for the transfer.	A document between two employers: from which the employee is transferred and where he is transferred. The document should contain agreements between these employers describing the terms of the transfer and guarantees for the acceptance of the employee by the transfer procedure. After agreement between the employers, the employee can be both verbally and in writing notified (informed) about possible transfer.	There is no written agreement between the two employers.
The essence of the employee's statement.	"I agree with the transfer to the company (specify name)."	“I ask you to fire me by transferring to another company (or specify the exact name of the organization)”
The wording of the entry in the work book and other personnel documents.	with his consent	Employment contract terminated due to employee transferat his requestto work for another employer (or indicate the name of the company), article 77, part one, paragraph 5 of the Labor Code of the Russian Federation.
Responsibility of the employer from which the employee is dismissed by transfer to another employer.	Since the transfer takes place at the initiative of the employer and with the consent of the employee, the employer is responsible for the success of this transfer. If the employee fulfilled his obligations and was ready to start working with a new employer within a month, but the transfer did not take place (the new employer did not provide the employee with a job), then the employee has the right to return to his former employer with claims (and possibly restoration to the previous work).	Since the initiator of the transfer is the employee himself, the responsibility for the success of this transfer is assumed by the employee himself. And, if for some reason, the transfer did not take place within a month, then the employee will not have the opportunity to return to the previous employer and demand that he be reinstated at work.

Preparation of personnel documents.

When terminating an employment contract by transfer, the algorithm next:

Employer-initiated transfer	Transfer initiated by the employee.
Document - agreement between employers.	Application of the employee with the employee's request for a transfer.
Notification (information) of the employee about a possible transfer (may be written, may be oral. In addition, this notice can be both individual for each employee and collective).
An employee's statement expressing consent to the transfer.
The order to terminate the employment contract is a unified form T-8.
Making a note - calculation (for the payment of the final calculation to the employee, including compensation for unused vacation).
Making an entry in the employee's workbook and the issuance of a work book to the employee.

Below are samplespreparation of personnel documents .

When making an order to terminate an employment contract it is recommended to use the unified form T-8 or T-8a of the Album of unified forms. When filling it out, the following rules must be observed:

1. Under the name of the order, a reference is made to the employment contract, its number and date, which terminates, and the date of termination of the employment contract is also fixed. At the same time, the very word "dismissal" is crossed out.

2. In the section “The basis for termination (termination) of the employment contract (dismissal)”, a reference is made to a specific article of the Labor Code of the Russian Federation with a decoding of the article - art. 77 part one, clause 5 of the Labor Code of the Russian Federation - transfer to another employer with the consent (at the request) of the employee. It is this information that will be recorded in the work book of the employee, therefore it is necessary to indicate the exact and clear wording of the termination of the employment contract.

3. The column "Reason (document, number, date)" indicates a link to a specific document that served as the basis for terminating the employment contract. This may be an employee's statement (in the case of a transfer at the employee's initiative) or an agreement document between employers and an employee's statement with consent for dismissal (in case of termination of the employment contract at the initiative of the employer and with the consent of the employee).In addition, the date and number of these documents must be indicated.In the case of a reference to the application, the author of this application, that is, the names of the employee who wrote the application and its date.

4. The employee must be familiarized with the order under the signature with the obligatory affixing of the date of familiarization.

Unified form No. T-8

Approved by the resolution of the State Statistics Committee of the Russian Federation

				The code
Open Joint Stock Company "SMU-13"		OKUD form		0301006
		according to OKPO
name of company
		Document Number	Date of preparation
	ORDER	52	02.02.2009

(order)
on termination (cancellation) of an employment contract with an employee (dismissal)

Terminate an employment contract from "

12

”

May

02

G.

108

,

fire

05

”

February

20

09

G.

(strike out unnecessary)

personnel room

Sidorov Oleg Ivanovich

92

Full Name

Logistics Department

structural subdivision

Office Manager

position (specialty, profession), category, class (category) of qualification

The employment contract was terminated due to the transfer of the employee with his consent to work for another employer (or indicate the name of the company), article 77 part one paragraph 5 Labor Code of the Russian Federation

grounds for termination (cancellation) of the employment contract (dismissal)

Base (document, number, date):

Letter of agreement dated 15.01.2005 No. 12 between the Open joint stock company"SMU-13" and the Limited Liability Company "Construction Technologies", a statement by Sidorov O.V. with consent to the transfer dated 31.01.2005

employee statement, memo, medical report, etc.

Supervisor organizations

CEO

Ivanov

V.D. Ivanov

(job title)

(personal signature)

(decoding signatures)

With an order (instruction) an employee familiarized:

Sidorov

5

”

February

20 09

Motivated opinion of the elected

trade union body in writing

(from “

”

No.

) reviewed

Closing personal card T-2.

In the personal card T-2 in section 11 "Grounds for termination of the employment contract (dismissal)" is entered exact wording an entry from the order indicating the article of the Labor Code under which the termination of the employment contract is made and the exact wording of this article is given.

In addition, this section indicates the document that served as the basis for the termination of the employment contract (order), its date, number, and the date itself when the employment contract terminates.

After that, the worker personnel service(his actual position must be indicated) signs in this section, confirming the validity of the information entered in the personal card of the T-2 employee and the employee with his signature, also certifies this information.

Only after that the T-2 card is considered closed. After that, the T-2 personal card is stored together with the personal cards of dismissed employees for 75 years according to the List of documents generated in the activities of organizations, indicating the retention periods.

6. Making an entry in the work book of the employee and issuing the work book to the employee in his hands.

6.1. Making an entry in the work book.

6 Transfer of an employee at his request or with his consent to work with another employer or transfer to elective work(job title)

Clause 5, Part 1, Art. 77 of the Labor Code, which establishes such a basis for terminating an employment contract as the transfer of an employee with his consent or at his request to another employer, is applied when there is a clear written will of three subjects: the administration of the new place of work, inviting to work, this employee, moving from one place of work to another in the order of transfer, and the administration of the former place of work, releasing this employee in the order of transfer to another organization. Then the employment contract with him is terminated at the previous place of work under paragraph 5 of part 1 of Art. 77. At a new place, they can no longer refuse to hire him

In accordance with paragraph 16 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" (as amended on December 23, 2006 N 63), structural divisions should be understood as branches, representative offices, as well as departments, workshops, sections, etc., and under another locality - an area outside the administrative-territorial boundaries of the corresponding settlement.

Transfer to another job is allowed only with the written consent of the employee, with the exception of cases provided for in parts 2 and 3 of Art. 72.2 of the Code.

At the written request of the employee or with his written consent, he may be transferred to a permanent job with another employer. At the same time, the employment contract at the previous place of work is terminated (clause 5, part 1, article 77 of the Labor Code of the Russian Federation).

Transfer to another job is divided into types:

- permanent and temporary transfer;

– transfer from this employer, transfer to another employer;

– transfer to another locality together with the employer;

– transfer at the initiative of the employee, at the initiative of the employer, at the initiative of the relevant government agencies and officials(for example, a state labor inspector).

It is not considered a transfer and does not require the consent of the employee to move him from the same employer to another workplace, to another structural unit located in the same area, entrusting him to work on another mechanism or unit, if this does not entail a change in the working conditions determined by the parties. contracts.

It is also important to take into account that the worker is understood as the place where the employee must be or where he needs to arrive in connection with his work, which is directly or indirectly under the control of the employer (Article 209 of the Labor Code of the Russian Federation).

Clause 5, Part 1, Art. 77 of the Labor Code contains one more reason for termination of an employment contract - the transition to elective work (position). For this reason, an act of electing this employee to the exemption from production work elective work (position). The previous and this grounds for dismissal, as we see, differ significantly from each other. Therefore, in the dismissal order and in the work book of the employee, there should be a reference not just to paragraph 5 of Art. 77 of the Labor Code, and with clarification on which of these two grounds the employee is dismissed.

7 Refusal of an employee to continue working due to a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization

As defined in Part 5 of Art. 75 of the Labor Code of the Russian Federation, the reorganization of an organization in any form cannot be a basis for terminating employment contracts with employees. It follows from this rule that labor Relations with workers continue automatically (i.e. they do not need to be fired and hired in new organization).

The consent of employees to continue working for the "reorganized" employer is not required. At the same time, they have the right to refuse to continue work in connection with the reorganization.

In order to provide employees with the opportunity to exercise this right, the employer should notify them in advance (for example, a month in advance) in writing about the upcoming reorganization, possible changes associated with it, and about the right of employees to terminate the employment relationship in connection with this by submitting a written application to the employer.

If the employee refuses to continue working in connection with the reorganization, the employment contract is terminated in accordance with paragraph 6 of Art. 77 of the Labor Code of the Russian Federation.

If the employee does not intend to terminate the employment relationship, then obtaining written consent from him to continue working is not required. However, to reflect the fact of the reorganization of the employer in work books and employment contracts is necessary, because the employer is already different legal entity.

From judicial practice:

In his complaint to the Constitutional Court of the Russian Federation, T.V. Ivanova disputes the constitutionality of parts five and six of Article 75 of the Labor Code of the Russian Federation, according to which a change in the jurisdiction (subordination) of an organization or its reorganization cannot be grounds for terminating employment contracts with employees of the organization, and if the employee refuses to continue working in these cases, the employment contract is terminated in accordance with paragraph 6 of Article 77 of the Labor Code of the Russian Federation. According to the applicant, these legal provisions violate the principle of freedom of labor, deprive the employee of the established guarantees and compensations and contradict Articles 2, 7, 15 (parts 1, 2 and 3), 17 (parts 1 and 3), 18, 19, 21 (part 1 ), 24 (part 2), 29 (part 4), 37 (parts 1, 2, 3 and 4), 45, 46 (parts 1 and 2), 52, 55 and 57 of the Constitution of the Russian Federation.

As follows from the materials submitted to the Constitutional Court of the Russian Federation by the applicant, she did not refuse to continue working during the reorganization of the employer and, accordingly, part six of Article 75 of the Labor Code of the Russian Federation was not applied in her case. Therefore, this part of the complaint cannot be considered admissible.

Competition for the position of a scientific and pedagogical worker or the expiration of the term for election by competition (part seven of Article 332 of the Labor Code of the Russian Federation). Thus, the legislator associates additional grounds for termination of an employment contract at the initiative of the employer with separate categories workers (employees). Additional grounds for termination of an employment contract at the initiative of the employer may be ...

20 2.2 Termination of the employment contract due to personal qualities employee In paragraph 3 of Art. 81 of the Labor Code of the Russian Federation, there are currently two independent grounds for terminating an employment contract at the initiative of the employer. In sub. and paragraph 3 of Art. 81 of the Labor Code of the Russian Federation refers to the possibility of dismissal of an employee if the position held or the work performed is inconsistent due to the state of health in ...

Art. 34 Labor Code, and the employee was dismissed without taking into account his priority right left at work, then he is subject to reinstatement at work. Article 35

Labor law for this misconduct, an employee can be fired, and not just removed. This is indicated by paragraph 6 of Art. 81 TK. 2.2. The procedure for terminating the employment contract at the initiative of the employee their dismissal of their own free will is a legal guarantee of freedom of labor, their right to choose the place and type of work. AT...