Transfer to another position - subject to maintaining the same working conditions and salary - is quite possible and does not contradict the provisions of labor legislation. But quite often the employer (intentionally or not) violates the norms of the Labor Code, which set out the rules for such a transfer. In cases where the employee does not agree to the transfer, he can get the employer’s decision overturned: if he justifies the refusal, refers to the necessary clauses of the law and does it on time. This is a task that is difficult to solve alone; at a minimum, you need legal advice. This is better than trying to independently develop the correct position in a dispute.
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Law: the grounds for transfer and registration rules are prescribed in articles 72-74 of the Labor Code of the Russian Federation. The organization's internal rules governing changes in the terms of the employment contract - and transfer to another position without the employee's consent - must comply with the provisions of the Labor Code of the Russian Federation.
When consent is not required
There are not many legal grounds for transferring without consent. This:
- accident, natural disaster - that is, anything that can harm the health or threaten the life of an employee;
- temporary suspension of the organization's activities;
- the need to urgently perform work in another area.
That’s it - no more personnel changes involving his participation can be made without the employee’s consent.
Important: transfer to another position is always temporary. The maximum period is no more than a month. The employer is required to notify the employee 60 days in advance of the intention to organize a transfer due to the suspension of the organization’s activities; an individual entrepreneur or employer who plans to keep the employee in a new place for no more than a month must notify the employee of the transfer two weeks in advance.
Refusal of an employee to be transferred to another position
The transfer of an employee at the initiative of the employer is carried out only with his consent, formalized in writing.
BUT! Labor legislation provides for cases where the employee’s consent is not required when transferring for a period of up to one month in the event of disasters, accidents and other situations specified in Art. 72.2. Labor Code of the Russian Federation, and the employee does not have the right to refuse the transfer. If you refuse or do not show up for work, this will be considered a violation of labor discipline or absenteeism with attendant consequences.
IMPORTANT: in this case, the above transfer to a job requiring lower qualifications than that of the employee to be transferred is carried out only with the consent of the employee, executed in writing.
An employee has the right to refuse to be transferred to a job that is dangerous or harmful, and this is the right of the employee. No one is obliged to endanger their life or cause harm to their health. In addition, if an employee cannot perform some work due to health reasons, then he cannot be transferred even temporarily.
If, for medical reasons, an employee must be temporarily transferred to another job for a period of up to 4 months, but refuses such a transfer, then the employer dismisses such an employee, but retains his place of work. In this case, the employee is not paid.
Violations of labor laws during translation
The list of violations when transferring employees to other positions is impressive. This includes a transfer after the fact, without issuing an order, an “exchange” of employees between employers, transfers to a position with other responsibilities and lower wages, and an extension of the term of work in a new place not justified by production necessity.
By the way: in labor legislation there is no such thing as production necessity. Therefore, it is impossible to justify a transfer without consent, citing “production necessity” - an order with such justification is easy to challenge.
Violations related to retroactive transfers are common - without notifying the employee, as well as without proper execution (transfer order, amendments to the employment contract).
Reasons for disputes regarding the transfer of employees to another job
Disputes about transferring an employee to another job may arise when conditions change significantly and cause inconvenience to the employee. Namely:
- reductions in wages and additional payments;
- reduction of preferential charges and compensations;
- change of operating mode;
- combination of positions.
The peculiarities of consideration of disputes regarding the transfer of an employee to another job indicate that the employer often violated the rules and certain measures should be taken. HR departments and legal services are responsible for compliance with the terms of employment contracts at enterprises. The coordinated activities of the personnel and legal departments of the enterprise make it possible to prevent the occurrence of labor disputes. And, accordingly, avoid additional costs for reinstating the employee at work. The legal department is involved in the work when a dispute has already arisen and a lawsuit has been filed.
If you have any problems, enlist the support of specialists who have proven themselves to be the best. They must have extensive experience in the field of activity you are interested in and an impeccable reputation. Be sure to read reviews about the professionalism of specialists. Then you will be able to understand whether cooperation will bring the desired result or whether it is worth refusing cooperation.
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Appealing a transfer administratively
Before going to court, you should understand that the protection of the rights of an organization’s employees can also be carried out administratively using the powers vested in state bodies for the protection of labor rights.
In this case, the employee should pay attention that not every government agency will help with resolving a dispute regarding an illegal transfer, which is why a complaint against the employer to the tax office on this basis will not bring the expected result; in this case, the universal body for filing in the Russian Federation remains The prosecutor's office of the Russian Federation, one should not forget about other bodies specializing in the protection of violated labor rights.
When applying administratively, it is important to correctly draw up a document that will be sent to the government body; it must clearly state the circumstances of the rights violated, and the documents to which the applicant refers in the text of the document should be attached to the complaint.
It should be noted that a well-founded complaint from an employee is the basis for an inspection against the employer, as a result of which an order will be issued against the employer to eliminate violations committed against the employee.
Therefore, if an employee is wondering how to correctly file a claim to an employer or a complaint against an employer, it is necessary to contact our experienced specialists in resolving this issue - labor law lawyers.
Failure to comply with a decision to reinstate an employee
As already mentioned, in case of illegal dismissal or transfer, the employee is subject to reinstatement to his previous job. At the same time, according to Art. 396 of the Labor Code of the Russian Federation, the decision to reinstate an illegally dismissed or illegally transferred person is subject to immediate execution.
In accordance with Art. 36 of the Federal Law of 02.10.2007 No. 229‑FZ “On Enforcement Proceedings” (hereinafter referred to as the Law on Enforcement Proceedings ), requirements for the reinstatement of an illegally dismissed or transferred employee must be fulfilled no later than the first working day after the day the writ of execution was received by the judicial department bailiffs. According to Art. 106 of this law, this requirement is considered actually fulfilled if the employee is allowed to perform his previous job duties and the order (instruction) on his dismissal or transfer is canceled.
Thus, after receiving the bailiff’s order, the employer must issue an order on the next working day canceling the dismissal order and reinstating the employee at work. The latter should also be notified that he can begin work. Be sure to be on the safe side and provide proof of sending such notice. In addition, the employer must provide the employee with access to perform his previous duties.
However, if the employer was unable to comply with the employee’s reinstatement deadline or refused to execute the court decision at all, then in addition to earnings for the period of forced absence, he will have to compensate the employee for earnings (the difference in earnings) for the entire time of delay in execution of the court decision.
note
If the employer fails to execute the enforcement document within the period established for its voluntary execution by the bailiff, an enforcement fee will be collected from the employer, unless the employer, within this period, provides the bailiff with evidence that execution was impossible due to force majeure. The enforcement fee is set at 7% of the amount to be collected, but not less than 10 thousand rubles. from the debtor organization ( Article 112 of the Law on Enforcement Proceedings ).
It is possible that at the time the employee is reinstated, his position will be filled or even reduced. Despite these circumstances, the employer is obliged to issue an order and notify the employee within the prescribed period and carry out all relevant measures for the dismissal or transfer of persons hired to the position of an illegally dismissed person promptly.
Some employers, in order not to violate the terms of execution of the court decision, get out of this situation by sending the employee to idle time. Thus, the Supreme Court of the Chuvash Republic considered the appeal of an LLC against the court’s decision to refuse to invalidate the bailiff’s decision to collect an enforcement fee for refusing to voluntarily execute a court decision. The panel of judges overturned this court decision and declared illegal the bailiff's decision to collect an enforcement fee in the amount of 50,000 rubles.
The court found that the LLC received a request from the bailiff to reinstate the employee Ch.P. The next working day after receiving the request, the employer issued an order to cancel the order to dismiss and reinstate the employee and Ch.P. was allowed to perform his job duties. He was familiar with this order, which is confirmed by the corresponding entry on the order.
However, during the trial, the organization experienced a reduction in staff, including the position of P.E. Since the employer was unable to provide him with a workplace, Ch.P. was sent to idle time, of which he was given a notice. According to this document, he had the right to be absent from the workplace, and his downtime was paid according to Art . 157 Labor Code of the Russian Federation .
Thus, the guarantees established by labor legislation for the employee were observed, and the court decision on reinstatement was executed. As a result, the employer’s demands to cancel the bailiff’s decision were satisfied ( Appeal ruling of the Supreme Court of the Czech Republic dated October 22, 2014 in case No. 33-4015/14 ).
Well, if the restoration period is delayed, the employer cannot avoid liability.
Thus, employee T. was dismissed under paragraphs. "a" clause 6 of Art. 81 of the Labor Code of the Russian Federation for absenteeism on September 11, 2012. By a court decision dated June 20, 2013, he was reinstated at work. Moreover, the decision to reinstate the employee was actually executed by the employer on January 17, 2014.
The court found that on June 26, 2013, the employer sent a notice to the employee by mail about the need to provide explanations regarding his absence from work since June 21, 2013. In response to this notification, the employee sent an explanatory note by mail on July 13, 2013, stating that he had not received a notice to return to work. At the same time, he sent a letter of resignation.
The court came to the conclusion that until January 17, 2014, the employer did not take measures to actually allow T. to work, T. was not notified of the voluntary execution of the court decision by the employer, the appropriate conditions were not created for the employee to perform labor functions, an order the cancellation of the previously issued order to dismiss T. and reinstate him at work was not issued, that is, the court decision of June 20, 2013 was not actually executed.
The employer failed to prove otherwise. In this regard, the court recovered from him in favor of the employee the average salary for the period of delay in the execution of the court decision - from 06/21/2013 to 01/16/2014 ( Appeal ruling of the Moscow City Court dated 08/08/2014 in case No. 33‑31606 ).
As for the deadlines for fulfilling the order issued by the State Labor Inspectorate, they are not established by labor legislation. If the employer agrees that he violated labor laws and illegally fired or transferred the employee, he fulfills the inspection order within the period specified in the order. If the employer does not agree, he can appeal it within 10 days from the date of receipt of the request from the inspectorate ( Article 357 of the Labor Code of the Russian Federation ).
For your information
Decisions of state labor inspectors can be appealed to the relevant head of subordination, the chief state labor inspector of the Russian Federation and (or) to court ( Article 361 of the Labor Code of the Russian Federation ).
