Good afternoon.
Translation is possible only with your consent. The transfer is formalized by an additional agreement to the Employment contract indicating all the conditions to be changed. The agreement is signed by the parties and is an integral part of the employment contract.
According to clause 7 of Article 77 of the Labor Code of the Russian Federation, in the event of an employee’s refusal to continue working due to a change essential conditions of an employment contract, and a change in remuneration is an essential condition of the employment contract, the employment contract is subject to termination.
Your employer offers you another job to replace the one you are doing by transferring you from one position to another.
According to part one of Art. 72.1 of the Labor Code of the Russian Federation, transfer to another job is a permanent or temporary change in the employee’s labor function. Transfer to another job is permitted only with the written consent of the employee, except for the cases provided for in parts two and three of Art. 72.2 Labor Code of the Russian Federation.
An employee can also be transferred to a lower paid job. The exceptions are the grounds specified in part four of Art. 72.1 of the Labor Code of the Russian Federation, namely, it is not allowed to transfer an employee to a job that is contraindicated for him for health reasons.
Remuneration is made according to the work performed (part one of Article 132 of the Labor Code of the Russian Federation).
The transfer, in most cases, is formalized by an additional agreement to the employment contract, which stipulates all changes made to the employment contract. The agreement must indicate the new position (profession, specialty, specific type of work assigned), as well as the date of transfer. Based on the agreement, the employer issues an order (instruction) on the transfer according to the unified form N T-5, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1.
By offering a lower paid position, the employer can explain to you the reason for the change in job function. However, the employer has no right to insist on permanent translation. You cannot be forced to sign an agreement to transfer to another job.
Based on the above, it follows that you can be transferred to another position with a lower salary, but only if you agree to this.
In the question, you also indicate that a position in your department is being reduced, which means that the employment contract with you may be terminated if the number or staff of the organization’s employees is reduced. (Article 81 of the Labor Code of the Russian Federation)
Dismissal on the basis of a reduction in numbers or staff, is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (either a vacant position or a job corresponding to the employee’s qualifications, or a vacant lower position or lower-paid work) that the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for in the collective agreement, agreements, employment contract.
Thus, in answer to your question, we can clarify that the employer does not have the right to force you to sign a transfer to another position, however, if you refuse this transfer, your employer, having fulfilled all the requirements of the law, will simply fire you due to a reduction in the number or staff . These are the risks you face.
Best regards, Sergei.
Demotion without the consent of the employee, i.e. changing working conditions is impossible. Please note that if in work book If such a recording is made without your consent, it will be made illegally.
Transfer to a lower position implies a change in job responsibilities, a change of unit (if indicated in the employment contract) on the territory of one employer.
Some laws of the Labor Code provide for cases of demotion of an employee at the initiative of a manager.
This must be done legally correctly so that later controversial situations do not arise.
Disagreements arise when an efficient and hardworking specialist does not correspond to the position he holds. His qualities are well suited for less responsible work, and a qualified specialist is applying for his place. What to do in such a situation?
Article 74 of the Labor Code of the Russian Federation
According to this law, there is a provision for demotion of an employee.
If the enterprise has undergone changes in management or technical re-equipment with the installation of the latest equipment, the employer can revise the provisions of the concluded agreement in unilaterally with the exception of the employee's employment status.
The head of the enterprise warns the employee about changes in the employment contract and the reasons for these changes 2 months in advance. This must be done in writing.
If a person does not agree with these conditions, he is offered another job. It may be at the same skill level or associated with a demotion. Possible vacancies on the employer's territory that meet the requirements are indicated.
If provided for by the concluded contract or agreement of the parties, the employer is responsible for providing work in another location.
If the employee is not satisfied with the vacancy and refuses the offered job, then the employment relationship with him is terminated.
How certification for compliance with qualifications is carried out
The procedure must be carried out in compliance with all legal subtleties, otherwise problems cannot be avoided if the employee decides to go to court to protect his rights.
Key points to pay attention to:
- conducting certification to identify the level of professional knowledge;
- documentary support of certification;
- issuing an order on the results obtained;
- employees who have not passed the certification must be offered possible vacancies;
- transfer to another job with demotion or termination of employment obligations.
Before each test to determine the level of knowledge of employees, a certification commission is created. A special normative act specifies the official composition and list of commission members. If there is no staff turnover at the enterprise, then this list remains unchanged from year to year.
It is necessary to take seriously the formation of the composition of the commission. If a highly specialized employee will undergo certification, then the commission must include a specialist who is well versed in these issues.
Local normative act organization must contain information about the procedure for certification.
The commission must provide a reasoned conclusion signed by all members of the certification group. Recommendations are drawn up for each employee, which the head of the enterprise can take into account in the future. If provided for by legal act, an attestation sheet is drawn up for each employee.
Documentary support. The form of the protocol is determined by each enterprise individually and is an annex to the legal act on the certification procedure.
Issuance of an order. The decision to demote or dismiss an employee is made only by the head of the organization or the person replacing him. The employee is warned about this 2 months in advance.
Important to remember:
- The manager can demote an employee only with his consent, documented. Moreover, this must be done before the transfer order is issued.
- The employee must be familiar with the conclusion of the certification check, as well as the order of transfer or dismissal.
The duty of the company’s personnel officers is to prepare a list of vacancies for the employee, taking into account his work schedule, qualifications and health status. This document must contain the signature of the head of the enterprise. It is handed over to the employee for review.
It is necessary to draw up an act if the employee does not want to sign the document or refuses to accept it.
If the employee agrees with the proposed vacancy, the HR department issues a transfer.
The manager may terminate the concluded contract if the employee does not accept the demotion or refuses the offered job.
The reason is the employee’s inadequacy for the position held due to an insufficient level of qualifications identified and confirmed by the certification commission (Article 81 of the Labor Code of the Russian Federation, clause 3).
The above provisions apply to employees of civil services, as well as to employees of law enforcement and other specialized departments.
Article 73 of the Labor Code of the Russian Federation - transfer to another place of work for medical reasons
Produced in in the prescribed manner according to the doctors' opinion. Moreover, the working conditions of the proposed work must comply with the recommendations of doctors. In this case, written consent for translation is required.
A situation when a person does not agree with the transfer or the employer does not have vacancies.
If a medical report confirms the need for light work for a period of up to four months, then the employee is suspended from performing his duties for the entire period of restriction without retaining pay (except for specified cases). At the same time, his position is retained.
If he needs to be transferred to another place of work for a period of more than four months, then the employer has the right to terminate his employment relationship.
If translated by medical indications the management team of the enterprise needs, then the employment contract with them is terminated. By agreement of the parties, the manager may remove them from work without maintaining pay (except for specified cases). The period of suspension is determined by agreement of the parties.
It is also important to know that demotion without the employee’s consent cannot be considered a disciplinary measure.
Art. 192 of the Labor Code of the Russian Federation provides for the following types of disciplinary punishment:
- comment;
- rebuke;
- dismissal according to the law established in a particular case.
As you can see, the “demote” measure does not apply here. Part 2 of this law talks about the possibility of establishing other penalties. However, in the process of studying the regulations, it becomes clear that there is no such type of punishment as “demotion.”
The employer can only issue a warning to the employee about insufficient suitability for the position held.
A reduction in wages occurs when an employee is transferred to a lower position. A salary reduction based on the results of an attestation audit is a violation of the law.
A woman who is on maternity leave or parental leave is protected by law. The manager does not have the right to fire her, transfer her to another position, declare her idle, or suspend her from work, even if she has not passed the certification test before going on maternity leave.
Demotion as a disciplinary sanction
An exception is made for certain categories of persons for whom transfer to a lower position is used for disciplinary punishment:
- Art. 15 clause 3 of the law “On service in the internal affairs bodies of the Russian Federation”;
- Art. 41 clause 7 of the law “On the Prosecutor’s Office of the Russian Federation”;
- Art. 28 of the Law “On the Investigative Committee of the Russian Federation”.
Agibalov Ivan Ivanovich(01/21/2016 at 14:39:31)
Hello. What personnel documents need to be drawn up if, due to reorganization, a department is abolished, but employees remain with their functions? Due to the change organizational structure branch, the department is abolished, several groups are created, which include employees of the abolished department while retaining their labor function (the same position) and official salaries. The name of the department was included in the conditions. What personnel documents does the employer need to prepare in this situation? 12/10/2012 07:03:49 Answers 1 Expert In accordance with part one of Art. 72.1 of the Labor Code of the Russian Federation, a permanent or temporary change in the structural unit in which the employee works, while continuing to work for the same employer, is recognized as a transfer of the employee to another job if the structural unit was indicated in the employment contract. In this case, structural divisions should be understood as branches, representative offices, as well as departments, workshops, areas, etc. (clause 16 of the resolution of the Plenum of the Russian Federation dated March 17, 2004 N 2 “On the application by courts Russian Federation Russian Federation", hereinafter referred to as Resolution No. 2). Since in the situation under consideration the structural unit is indicated in the employment contracts of employees, the transfer to the newly formed structural units of the branch is a change in the terms of their employment contracts. The condition of the structural unit specified in the employment contracts of employees may be changed either by agreement of the parties (Article 72 of the Labor Code of the Russian Federation), or at the initiative of the employer (without the consent of the employee) in the manner prescribed by Article 74 of the Labor Code of the Russian Federation. However, this is allowed only if there are reasons related to changes in organizational or technological working conditions, when maintaining the previous condition on the structural unit in the employment contract is impossible (see also clause 21 of Resolution No. 2). In the absence of such reasons, the employer does not have the right to unilaterally change the terms of the employees’ employment contracts. However, if the employees agree to the relevant changes, it is enough for the parties to conclude additional agreement to the employment contract in accordance with Art. 72 of the Labor Code of the Russian Federation, which will indicate a change in place of work (indicate the structural unit to which the employee is transferred). Based on the additional agreements signed by the parties, the employer issues an order for transfer to another structural unit using the unified form N T-5a (or the unified form N T-5), approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1. Employees must be are familiarized with this order, and on its basis, a corresponding entry about the transfer is made (part four of Article 66 of the Labor Code of the Russian Federation, clause 4 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by the Decree of the Government of the Russian Federation dated 16.04. 2003 N 225, hereinafter referred to as the Rules). All entries about the work performed, transfer to another permanent job are entered into the work book on the basis of the relevant order (instruction) of the employer no later than a week (clause 10 of the Rules). Information about the transfer is also indicated in section III “and transfers to another job” of the employee’s personal card (unified form N T-2), in which he must sign the appropriate one. The answer was prepared by: Expert of the Legal Consulting Service GARANT Aleksandr Arzamastsev Quality control of the response: Reviewer of the Legal Consulting Service GARANT Kudryashov Maxim The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service GARANT. http://vvv.podborkadrov.ru/forum/ed.php?FID=80&TID=3958
Situations related to the transfer of an employee to a lower position always raise many questions from employers. From the article you will learn when such a transfer can be made, what documents will need to be completed, and how to reflect payments guaranteed to certain categories of personnel in tax accounting.
Let us remind you that, on the basis of Article 72.1 of the Labor Code of the Russian Federation, transfer to another job is a permanent or temporary change in the labor function of an employee and (or) the structural unit in which he works (if the structural unit was specified in the employment contract), as well as transfer to another job locality together with the employer. In turn, the labor function is work according to the position staffing table, profession, specialty indicating qualifications; the specific type of work entrusted to the employee (Article 15 of the Labor Code of the Russian Federation).
When you are demoted, your job function changes. This is accompanied by a number of amendments to the essential terms of the employment contract. But first things first.
When can you be demoted?
Demotion may be permanent or temporary. The transfer can be initiated by either the employer or the employee. However, it is rare to find employees who ask for a lower position. After all, this usually entails receiving lower wages.
Please note: transfer to a lower position is permitted only with the written consent of the employee. Exceptions are cases related to emergency circumstances listed in Part 2 of Article 72.2 of the Labor Code of the Russian Federation.
If the employee does not agree, the entrepreneur must have grounds for demotion. Labor legislation allows you to do this in several situations:
- by written agreement of the parties (Part 1 of Article 72.2 of the Labor Code of the Russian Federation). The purpose of such a transfer is often to replace a temporarily absent employee;
— due to downtime (part 3 of article 72.2 of the Labor Code of the Russian Federation);
— due to the employee’s refusal to work in new conditions (Article 74 of the Labor Code of the Russian Federation);
- in connection with the suspension of the employee’s special right (Article 76, clause 9, part 1 and part 2, article 83 of the Labor Code of the Russian Federation). Such rights include a work permit for a foreign citizen, a driver’s license, the right to carry a weapon for an employee of a private security company, etc.;
— due to a reduction in the number or staff of employees (clause 2, part 1 and part 3, article 81 of the Labor Code of the Russian Federation);
- based on the results of the certification (clause 3, part 1 and part 3, article 81 of the Labor Code of the Russian Federation). In this case, transfer to a lower position is an alternative to dismissal for lack of proper qualifications;
- according to a medical report (Article 73 of the Labor Code of the Russian Federation);
- to eliminate the impact of adverse production factors for a pregnant woman (Part 1 of Article 254 of the Labor Code of the Russian Federation);
- due to the impossibility of performing previous labor functions by a woman who has children under the age of one and a half years (Part 4 of Article 254 of the Labor Code of the Russian Federation);
- due to the expiration of a woman’s employment contract during her pregnancy, if this contract was concluded during the performance of the duties of an absent employee (Part 3 of Article 261 of the Labor Code of the Russian Federation);
- in connection with the termination of an employment contract due to violation of the rules for its conclusion (Article 84 of the Labor Code of the Russian Federation).
Note: some individual entrepreneurs transfer employees to lower positions for committing a disciplinary offense. However, such actions are illegal. Article 192 of the Labor Code of the Russian Federation contains a closed list of types of disciplinary sanctions: reprimand, reprimand and dismissal. As you can see, demotion of an employee is not included in this list.
For your information.The position of an employee who is on parental leave until the child reaches three years of age is not vacant (Part 4 of Article 256 of the Labor Code of the Russian Federation). During such leave, the employment contract with her continues to be valid. Thus, the entrepreneur is not obliged to offer this position to the employee for transfer based on the results of certification. A similar conclusion is contained in the Determination of the St. Petersburg City Court dated August 30, 2010 No. 33-11908.
Documentation of translation
Any change in the essential terms of the employment contract at the will of both parties must be documented. The diagram (p. 20) shows the document flow when employees are demoted.
Document flow when transferring an employee to a lower position
Application for transfer. As we noted above, sometimes a transfer to a lower position is carried out on the initiative of the employee (in particular, for family reasons). In such a case, he will be required to submit a statement in any form. An example of it is shown on the right.
Translation proposal. If the transfer initiative comes from an individual entrepreneur, he must obtain the employee’s consent to the transfer. To do this, the employee is sent a corresponding proposal drawn up in any form.
This document justifies the need for his transfer to a lower position and indicates a list of all available positions that the employee can occupy in accordance with his qualifications. The document also provides information on official salaries corresponding to vacant positions.
If an employee is temporarily or permanently transferred to a lower position on the basis of a medical report, the transfer proposal must indicate the number and date of such report.
The employee's consent to a demotion is also made in writing. For this purpose, a special column can be provided in the proposal for transfer to another job.
In addition, the employee can submit an application to the individual entrepreneur and inform him of his decision. Please note that the deadline for withdrawing an employee’s application for transfer to another job is labor legislation not installed. That is, before signing an additional agreement to the employment contract, the employee has the right to contact the individual entrepreneur with a statement indicating refusal to transfer to a lower position.
Additional agreement. If the employee does not object to being transferred to a lower position, an additional agreement to the employment contract is concluded with him. It specifies all the conditions for the transfer: the employee’s new job function, the structural unit in which he will work, the terms of remuneration and the deadline for the transfer.
When an employee is temporarily transferred to another job, the terms of the employment contract are changed for a certain period. The duration of temporary transfer to a lower position is established by agreement of the parties. For example, if an individual entrepreneur temporarily demotes an employee due to deprivation of a special right, the document must reflect the exact date of the employee’s return to his previous place of work. If it is unknown, you can make a note: “Until the day of restoration of special rights.”
Please note: an employee can be temporarily transferred to another position for a period of up to one year (Part 1, Article 72.2 of the Labor Code of the Russian Federation). If the transfer was carried out while replacing an absent employee whose job is retained, its term ends on the day the employee returns to work. That is, in such a situation, the period of transfer to a lower position may exceed a year.
There are cases when an employee is transferred to a lower position temporarily, but as a result, work in the new place becomes permanent for him. This is possible if, at the end of the transfer period, the employee is not given his previous job, and he himself does not require it and continues to work.
Please note that an additional agreement to the employment contract, which implies a demotion, must be signed by both the employer and the employee. If the employee refuses to sign it and does not return to work in a new position, in the event judicial trial the servants of Themis will take his side (Determination of the Moscow City Court dated 08/03/2010 N 33-23228).
Order. Based on the additional agreement, an order is prepared for the employment contract using one of the unified forms - N T-5 or T-5a (approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1). The individual entrepreneur must familiarize the employee with this order against signature.
Marks on your personal card. The fact of transfer to a lower position for an individual entrepreneur must be reflected in the employee’s personal card (form N T-2, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1). In Section III “Hiring and transfers to another job” the following should be indicated:
— date of transfer;
- structural subdivision;
— position (specialty, profession), rank, class (category) of qualifications;
— tariff rate (salary) and bonus;
- basis for translation.
Please note: the individual entrepreneur is obliged to familiarize the employee with each entry made on the basis of an order to transfer to another job, against signature.
Sample filling Personal card
Entries in the work book. Information about transfers to another permanent job must be entered in the work book. About this - Article 66 of the Labor Code of the Russian Federation and paragraph 4 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers (approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225). In this case, the temporary transfer is not reflected in the work book.
An entry about a transfer to a lower position is made on the basis of an order (instruction) of an individual entrepreneur no later than a week.
Note that if the transfer of an employee to a lower position is not confirmed by relevant documents and records, and the employee’s salary remains the same, then in court it will be difficult to prove the fact of such a transfer (Determination of the Moscow City Court dated October 18, 2010 N 4g/8-8373 /2010).
Finally, I would like to note the following. Before an employee starts a new job, the merchant needs to familiarize him with signature job description. Also, an individual entrepreneur may need to conclude a liability agreement with him and conduct safety training.
Sample filling Work book
| N | date | Information about hiring, transfer to another permanent job, qualifications, dismissal (indicating reasons and reference to the article, clause of the law) | Name, date and number of the document on the basis of which the entry was made | ||
| Number | Month | Year | |||
| 1 | 2 | 3 | 4 | ||
| 7 | 26 | 02 | 2013 | Transferred to position | Order |
| Seller, | From 06/26/2011 N 8-k | ||||
| Part 3 of Article 81 of Labor | |||||
| Code of the Russian | |||||
| Federation |
Salary
Labor legislation provides guarantees to employees who, due to a medical report, need to be transferred to another job (including to a lower position). Yes, they keep it average earnings in the previous position within a month from the date of transfer to a lower paid job.
When transferring due to a work injury, occupational disease or other work-related health damage - until a permanent loss of professional ability to work is established or until the employee recovers (Article 182 of the Labor Code of the Russian Federation).
In addition, pregnant women, in accordance with a medical report and upon their application, are transferred to another job that excludes the impact of adverse production factors, while maintaining the average earnings for their previous job (Part 1 of Article 254 of the Labor Code of the Russian Federation).
According to Part 1 of Article 129 of the Labor Code of the Russian Federation, the accrued average earnings are wages employee. That is, remuneration for work, payment for which is made in accordance with a special norm.
Please note: in case of temporary transfer by agreement of the parties, payment is made by agreement between the employee and the individual entrepreneur.
If, with the consent of the employee, he is transferred to a less qualified job, the parties may agree to maintain the previous salary or to assign an additional payment up to the previous salary.
Personal income tax and insurance premiums on employee income
The income of employees in the form of average earnings is included by an individual entrepreneur in the tax base for personal income tax (subclause 6, clause 1, article 208 and clause 1, article 210 of the Tax Code of the Russian Federation).
Tax calculation by an individual entrepreneur is carried out at a rate of 13% (clause 1 of Article 224 of the Tax Code of the Russian Federation).
In accordance with Article 226 of the Tax Code of the Russian Federation, an individual entrepreneur withholds the amount of personal income tax at the time of payment of income to an employee.
In addition, the amount of saved average earnings is accrued insurance premiums for mandatory pension insurance, for compulsory social insurance in case of temporary disability and in connection with maternity, for compulsory health insurance, for compulsory social insurance against accidents at work and occupational diseases. About this - articles 7 and 8 Federal Law dated July 24, 2009 N 212-FZ and Article 20.1 of the Federal Law dated July 24, 2009 N 125-FZ.
How to deal with personal income tax for the businessman himself
As you know, individual entrepreneurs determine the composition of expenses in the manner established by Chapter 25 of the Tax Code of the Russian Federation. Based on Article 255 of the Tax Code of the Russian Federation, labor costs include any accruals to employees in cash and (or) in kind, incentive accruals and allowances, compensation accruals related to working hours or working conditions, bonuses and one-time incentive accruals, expenses associated with maintenance of these employees, provided for by the legislation of the Russian Federation, employment agreements (contracts) and (or) collective agreements.
These expenses include, in particular, labor costs during the performance of lower-paid work in cases provided for by the legislation of the Russian Federation. About this - clause 14 of part 2 of article 255 of the Tax Code of the Russian Federation.
Thus, if an employee for medical reasons is transferred to a lower position, the salary for which is lower than the previous one, then the entrepreneur has the right to calculate the tax base for personal income tax to take into account the costs associated with maintaining the employee’s average salary as part of labor costs for the entire period determined for the appropriate case.
Taxation of "simplified" farmers and agricultural producers
The closed list of expenses for which individual entrepreneurs applying the simplified tax system with an object of income minus expenses or paying the Unified Agricultural Tax have the right to reduce the income received includes expenses for wages, payment of compensation, temporary disability benefits in accordance with the legislation of the Russian Federation (subclause 6 p. 1 article 346.16 and subparagraph 6 paragraph 2 article 346.5 of the Tax Code of the Russian Federation).
In accordance with paragraph 2 of Article 346.16 and paragraph 3 of Article 346.5 of the Tax Code of the Russian Federation, individual entrepreneurs determine the composition of labor costs on the basis of Article 255 of the Tax Code of the Russian Federation.
Based on the provisions of this article, the accrued average earnings are remuneration for certain categories of workers who have been demoted.
That is, individual entrepreneurs have the right to take its amount into account in expenses that reduce the tax base for the single tax or Unified Agricultural Tax. Based on paragraph 2 of Article 346.17 and subparagraph 2 of paragraph 5 of Article 346.5 of the Tax Code of the Russian Federation, entrepreneurs can do this after actually paying the average salary to the employee.
I agree to another position
Often, employers prefer to “forget” that an employee can be transferred to work in another profession, specialty, position, or qualification only with his consent (Article 72 of the Labor Code). And this does not depend on whether the new job will be permanent or temporary. In addition, when an employee is transferred to a lower paid job Labor Code requires him to maintain his previous average earnings for one month from the date of transfer (Article 182 of the Labor Code). And vice versa. If at a new place of work wage higher, then the employee’s salary must be given based on the new conditions. “If an employee’s rights are violated, he has every right not to start work in a new position and go to court with a demand to reinstate him in his previous job and pay the average salary for the entire period of downtime,” explains lawyer Gennady Velekhov.
To avoid such troubles, the transfer of an employee to another job must be formalized in accordance with all the rules. Thus, the employee must be notified in writing about upcoming changes at least two months in advance. For two months after this, the employee can continue to perform his duties under the employment contract. And after this period, he must announce either his agreement with the transfer and changes in working conditions, or his refusal of the offer made to him.
If the employee accepts the new terms, put this in writing. Confirmation of consent can be the employee’s application for transfer, as well as the employee’s handwritten signature on the transfer order: “I agree with the transfer.” If, after two months, the employee declares that he is not satisfied with the new position, the employer has the right to dismiss him under paragraph 7 of Article 77 of the Labor Code (the employee’s refusal to continue working due to a change in the essential terms of the employment contract). Upon dismissal, in addition to compensation for unused vacation the employee will have to pay severance pay(Article 73, paragraph 2 of Article 81 of the Labor Code).
The same rules apply when transferring an employee to new job in another area. But in this case, one more nuance must be taken into account. “Article 169 of the Labor Code obliges the employer to pay the costs of moving and transporting property to both the employee and his family members,” says Gennady Velekhov. - However, the Labor Code allows specific amounts of reimbursement to be determined by agreement. So the moving employee will have to fight on his own for the amount of compensation that suits him. However, instead of paying for relocation, the employer has the right to provide the employee with appropriate means of transportation. This frees him from having to compensate the employee for travel expenses.”
By necessity
Without the consent of the employee, transferring him to another job is allowed only in exceptional cases (Article 74 of the Labor Code). These include the transfer of an employee:
- to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, accident or natural disaster;
- to prevent accidents, downtime (temporary suspension of work for reasons of economic, technological, technical or organizational nature), destruction or damage to property;
- to replace an absent employee.
In these cases, the employee may be transferred to a job not stipulated by the employment contract with him. The employee's specialty or qualifications are not taken into account.
However, there are some peculiarities here too. The fact is that an employee can be transferred to another position in case of production necessity for no more than one month (Article 74 of the Labor Code). Moreover, if we're talking about to replace a temporarily absent employee, this is allowed to be done no more than once a calendar year (from January 1 to December 31). You can temporarily transfer an employee for other reasons several times a year (but each time for no more than a month).
In addition, if the job to which the employee is temporarily transferred pays higher than his permanent job, the employer is obliged to pay him a salary based on the conditions at the new place of work.
Please note: an employee can only be transferred to a job of lower qualifications with his consent. Moreover, if temporary work is paid lower, then the employee needs to maintain the average earnings at his previous place of work.
"Lightweight" work
Some employees have the right to demand that they be transferred to another, easier job. These include:
workers in need of more easy work for health;
pregnant women and women with children under the age of one and a half years;
employees who were injured or otherwise damaged at work.
If they wish to get easier work, such employees must provide the employer with an application, as well as a corresponding medical report.
Please note: an employee who has been transferred to easier work due to health reasons must be paid the same average salary for the first month of work (Article 182 of the Labor Code). When an employee is transferred to another job due to injury, occupational disease or other work-related health damage, his previous average earnings are retained until a permanent loss of professional ability to work is established or until recovery (Article 182 of the Labor Code).
A pregnant woman and a woman with a child under the age of one and a half years have the right to receive the same average earnings during the entire period of work in a new place. If the employer is unable to provide a pregnant woman with easier work (for example, due to the lack of a corresponding vacancy), he will have to release her from work altogether and pay the average salary until a corresponding vacancy appears. In extreme cases, the employer will be forced to pay the employee average salary until the day she goes on maternity leave (Article 254 of the Labor Code).
