Termination of an employment contract with an employee followed by his transfer to another company is organizationally one of the most difficult types of dismissal, since it involves complex triple approval procedures, which are not always beneficial for all three parties involved in this procedure.
In this review, we will consider dismissal by transfer to another organization, the pros and cons of this type of termination of an employment contract for the employee, the dismissing and receiving organizations.
Features of dismissal
The peculiarity of this form of termination of employment relations is that the employee terminates the professional contract with one employer and immediately enters into it with another. In this case, one condition must be observed: each party to such a process has no objections and agrees to the procedure.
Legislation
The main document providing for the most common and possible forms of termination of employment relationships is the Labor Code. For them, the issue of dismissal due to transfer is regulated in several articles, including as a general reason for breaking a professional contract: articles , , 72.1, 84.1, 169.
Also, the possibility of dismissal by transfer is enshrined in clause 5 of part 1 of article 33 of Federal Law No. 79-FZ of July 27, 2004 “On the State Civil Service of the Russian Federation.” This rule of law applies to state civil servants.
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Article 64. Guarantees when concluding an employment contract of the Labor Code of the Russian Federation
Article 77. General grounds for termination of an employment contract of the Labor Code of the Russian Federation
Article 72.1. Transfer to another job. Relocation of the Labor Code of the Russian Federation
Article 84.1. General procedure for registering termination of an employment contract under the Labor Code of the Russian Federation
Article 169. Reimbursement of expenses when moving to work in another area of the Labor Code of the Russian Federation
What does the Labor Code of the Russian Federation say about dismissal by transfer?
This type of termination of labor relations is referred to in clause 5 of part 1 of Art. 77 Labor Code of the Russian Federation. Permitted with the consent of the employee himself or his request. Moreover, they must be clearly expressed in writing.
“Medical” and “judicial” translations
If an employee has a medical report that contraindicates him from working in his current position, then the employer is obliged to transfer him to another job that doctors allow (Article 73 of the Labor Code of the Russian Federation).
The employee may not agree to a new “harmless” job. Then you will have to part with the employer on the basis of paragraph 8 of Article 77 of the Tax Code.
If, according to a medical report, a transfer is required for a period of up to four months, the employee will retain his position in any case. Even if he refuses the transfer, the employer is obliged to keep his job. The employee will not go to work and will not receive a salary, but will be able to return without hindrance.
In addition to “medical” translations, there are also “judicial” translations. We are talking about disqualification in court, that is, a ban on holding certain positions. In this case, the employer can transfer the employee to another position that is not prohibited. If the employee does not agree, then he has only one option - dismissal, since he has no right to remain in his position.
Dismissal by transfer
The transfer process itself does not always involve the dismissal of an employee. Let's consider these cases in more detail.
Types of translation in labor legislation
Depending on where the employee goes to work, the transfer is distinguished:
- interior;
- external.
The first type is carried out within the enterprise where the employee works. In this case, the employee’s professional responsibilities may change, but dismissal does not occur.
The second option means a complete change of the organization where the employee works. And, accordingly, it involves the termination of the old and the conclusion of a new employment contract.
Important! The initiator can be the worker himself, his old employer or a new company. Possible only with mutual agreement of the parties.
What will be the entry in the labor record?
Depending on the reason, the entry will look like this: “Dismissed (dismissed) at the request (with consent) in connection with the transfer to work (position) in such and such an organization, paragraph 5 of part 1 of Article 77 of the Labor Code of the Russian Federation.”
When the employee begins to perform duties for the new employer, it will be written in his employment record that he was accepted as a transfer.
Dismissal or transfer: which is better?
When carrying out the procedure, employers do not gain any special benefits for themselves. The same cannot be said about the employee. A resigning employee is entitled to certain guarantees. Thus, he cannot be refused employment in a new place within a month from the date of dismissal. Also, the employee is not assigned a probationary period. In addition, he will be compensated for the costs of moving to a new place of residence.
Order and step by step procedure
Like any procedure under labor law, the dismissal of an employee due to his transfer is carried out in a certain order.
Its strict observance guarantees the employee respect for his rights, and the employer - activity within the framework of the law and the absence of grounds for holding him accountable. After receiving an invitation from the company to transfer to a vacant position, the employee, if he accepts the offer, brings the information to the attention of his current employer. When the latter does not object, the process itself begins. The same procedure will apply if the employee himself has found a workplace that suits him in another organization and has secured a written invitation from that company.
In practice, it is widespread to conclude a tripartite agreement between the employee, the old employer and the new employer to reduce paperwork and simplify the dismissal procedure.
Statement
The first thing the employee does is write a statement.
Application for dismissal by transfer: nuances of drafting
It is drawn up upon dismissal by transfer in the same way as for other reasons. The employee is not required to indicate the reasons for his decision. It is imperative to write in the application a request for dismissal under clause 5, part 1, article 77 of the Labor Code of the Russian Federation and the exact date of the last day of performance of professional duties. This is done without using the prepositions “with”, “to”, “to”, in order to avoid double interpretation of what was written and misunderstandings during the dismissal procedure.
Application for dismissal by transfer: sample
The following document can be used as a sample application for dismissal of an employee due to transfer:
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Sample letter of resignation by transfer
Order
When an employer receives an application from an employee with a request to dismiss him on this basis, if there are no objections on his part, he prepares a corresponding order. He can use the ready-made document form given below, or one he has developed himself.
The process of terminating an employment relationship on this basis is discussed in the video.
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Sample dismissal order
Registration of a work book
In accordance with the Instructions for filling out work books for such dismissal, the reference will be to paragraph 5 of part 1 of Article 77 of the Labor Code of the Russian Federation. When an employee changes employer, the reason is noted in the column dedicated to job information: with the consent of the employee or at his request.
Payments and compensations
The types of payments for this type of termination of employment are standard:
- wage;
- compensation for vacation days that the employee did not have time to take off;
- other amounts stipulated by the contract or collective agreement, local documents.
Important! Payments of wages, unused rest time, bonuses, and compensation under an employment contract must be made on the last day the employee is at work in the old company. Or no later than the day he applied for them, if he was not at the enterprise.
Working off
With this form of dismissal, the employee does not need to work the 14 days normally required under the Labor Code of the Russian Federation. This is only possible if an agreement is reached with the employer.
Final procedures
On the last day of work at the old enterprise, the employee will receive not only all the required amounts, but also documents: a work book, a copy of the order on termination of professional relations, a salary certificate.
Attention! If the quitter used the allotted vacation days ahead of schedule (got ahead), the employer can make deductions from his wages (Article 137 of the Labor Code of the Russian Federation).
Is vacation saved?
When an employee moves to a new place of work, he will receive the right to annual leave after six months of work. Exception: a minor employee or an employee in a position who can take vacation early.
Temporary transfer and its end
If the transfer is temporary and not due to emergencies, then its duration cannot exceed one year (Article 72.2 of the Labor Code of the Russian Federation). An exception is the case when an employee replaces a temporarily absent colleague. If you are pregnant, caring for a child, or have a particularly long illness, the transfer period may be more than a year. So the employee must be aware that the exact end date of the transfer is unknown. A woman can leave maternity leave at any time, the illness may be too serious, etc.
In this case, the agreement should contain approximately the following entry: “Work in such and such a position continues until the date such and such an employee returns to work.”
A temporary transfer can turn into a permanent one. This is possible if the employee did not demand a return to his previous position, and the employer did not force him to take up his previous duties. And if the initially temporary job has become permanent, then returning to the previous place requires the consent of the employee or the employer (depending on who offers the return transfer), as if there was no transfer at all.
Dismissal by transfer to another organization
The legislator has provided some guarantees for a worker who is resigning by transfer to another company.
Dismissal by transfer to another employer
Among them:
- in the new organization they cannot refuse to hire him and are obliged to register the newly hired employee within a month;
- no probationary period is assigned;
- the proposal for transfer and the employee’s consent itself must be drawn up in writing.
These measures are designed to protect the rights and interests of the transferred employee.
Transfers and movements
Article 72.1 of the Labor Code states that 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, while continuing to work for the same employer, as well as transfer to work in another location along with employer.
It is important to remember that transfer to another job is carried out only with the written consent of the employee. Translation should not be confused with displacement. When an employee moves, only the workplace changes. Moreover, if a move is made from one structural unit to another, the new workplace must be located in the same area. As for labor functions, they remain the same. The employee's consent to the move is not required.
Consequences for the employer
If the terms of payment of amounts earned by an employee are violated, the employer may be held liable, both material (Article 234, Article 394 of the Labor Code of the Russian Federation) and administrative (Parts 1, 2 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation).
If his actions are perceived as selfish and the delay exceeds two months, he may be punished under a criminal article. If the employer follows the procedure, such dismissal of the worker does not entail any consequences for him. The only negative: searching for a new employee to fill a vacant position.
If the transfer is found to be illegal (during an inspection, upon receipt of a complaint), then the employee can be reinstated and he is entitled to be paid the average salary and other amounts, including moral damages (Article 394 of the Labor Code).
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Article 394 of the Labor Code of the Russian Federation “Making decisions on labor disputes regarding dismissal and transfer to another job”
"Force majeure" translation
As we have already noted, transfer to another job is carried out only with the written consent of the employee. However, in case of a so-called “force majeure” transfer, consent is not required.
If a major natural or man-made accident or other serious disaster occurs, the employee can be forcibly transferred to work to eliminate the negative consequences of the disaster (Article 72.2 of the Labor Code of the Russian Federation). The duration of the transfer should not exceed one month.
It is also possible to transfer an employee for a similar period during downtime, the need to prevent destruction or damage to property, or to replace a temporarily absent employee, if these situations are caused by emergency circumstances. Moreover, if a new place requires lower qualifications, then the employee is given the right to choose: agree to the transfer or not. Remuneration is not lower than the average salary in the previous position.
An employee has the right to refuse a transfer only if a danger to life or health awaits him at the new place due to violation of labor protection requirements. And in emergency situations this is quite possible.
If the downtime is not caused by emergency circumstances, then the employee’s consent is required for the transfer.
Important
If the employee does not refuse the transfer and is not demoted, then he must receive a salary for work in the new place no lower than his average earnings in his previous position. Even if the new job initially offers lower pay.
