Dismissal in case of refusal to transfer, whether it be a new structural unit or position, should be. Under the law, the employee is able to refuse duties and conditions not specified in the employment contract. But first you should seriously think about what is best for you -.
As a matter of fact, this is your right, which is clearly spelled out in the Labor Code and other acts and laws. But even under certain conditions, the employer also has the right to dismiss an employee who refuses the proposed transfer.
Regulatory regulation
The legislation clearly spells out the rules for the dismissal of various categories of people. At the same time, some of them can be fired only under special circumstances or quit for a number of reasons. Everything depends more and more on why a person does not want to go to another unit,.
The legislation contains various articles on this subject:
- According to the Labor Code of the Russian Federation, Part 3 and Part 4 of Art. 73, an employee may refuse a proposed transfer to another position for medical reasons and resign from their place of work.
- Also, according to Article 74, Part 4, an employee can refuse his job and quit if one of the parties violates or changes the contract.
- An employee may be dismissed upon transfer to another locality by the employer in accordance with Art. 72.1.
Transfer to another position, another locality, etc. also refers to changes in working conditions that are not covered by normal employment contracts. But the dismissal of an employee can also be carried out for reasons that do not depend on the will of the parties.
Often such manipulation is carried out during. In general, if the employee refuses to transfer, the employer, in accordance with part 6 of article 77, has the right to dismiss the employee.
What is the risk of rejection
An employee's refusal to transfer can be motivated by a number of reasons. At the same time, it is important to take into account the factor that sometimes there are situations when the parties simply have no choice. For example, when reducing, the employer is obliged to offer another position or place of work to the employee. But if the latter refuses, then the owner of the organization has every right to dismiss him.
On the other hand, there are certain categories of citizens to which this thesis does not apply. These are mostly single parents, people who are dependent on children under 3 years old. In such cases, the employee usually has the right to refuse the proposed transfer without consequences.
Important! The employee must be notified of the upcoming transfer in advance. This is usually done at least two months before the event.
Dismissal in case of refusal to transfer to another job
Dismissal in case of refusal to transfer can be carried out in different situations in different ways. It is important to know that when offering an employee a new job, position or other conditions that were not specified in the contract, the employer must understand that these conditions are fully consistent with the qualifications and level, experience, and salary of the employee.
To another employer
Dismissal upon refusal to transfer to another employer usually occurs when or. In this case, the employee is offered a job with the same or approximately the same position, which corresponds to his experience and qualifications, as well as wages.
But if the employee refuses such a transfer, the employer has the right to dismiss him in the standard manner under Article 77 Part 6 of the Labor Code of the Russian Federation.
When changing employer (transfer and dismissal)
For another position
In case of refusal to transfer to another position, the employer has the right to dismiss the employee, but if there are good reasons. It is important to understand that the procedure must be justified and in accordance with the law. If the position does not correspond to both the qualifications and the salary of the employee, then the decision to dismiss can be challenged in court.
To another structural unit or department
When transferring to another department or even a structural unit, it is important to consider a number of nuances:
- The position must correspond to the qualifications, education, work experience of the employee;
- The selected position must correspond to the salary of the employee;
- In the absence of the necessary education, it will be necessary to provide appropriate training, and at the expense of the organization.
If, in the process of making a transfer, the employee must change his place of work and residence, then the employer must pay the costs associated with the move, as well as the costs associated with daily transportation to the workplace (that is, travel). If the employee refuses such a transfer, the employer may dismiss him in accordance with Art. 77 of the Labor Code of the Russian Federation in the standard manner.
When reducing
With the reduction, the rules change slightly. If the employee does not belong to the category of exceptions, then the employer can offer a new position or workplace, and if they refuse, they can calmly dismiss the employee under the article with
Technological working conditions have changed in the subdivision - equipment has been automated. The employees who were accepted to monitor the instruments are no longer needed. We offer them a transfer to vacant positions in other departments and to other positions. What to do if an employee refuses to transfer?
Answer
Answer to the question:
The course of action for employees who refuse to transfer depends on whether the employees are expected to change only the division in which they work, or the position held by the employees will also change.
According to the general rules, a permanent or temporary change in 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, is a transfer of the employee, which must be executed accordingly ( Art. 72.1 of the Labor Code of the Russian Federation).
You will have no questions about employee transfer: most frequently asked questions after reading the article at the link.
In addition, it should be noted that the current legislation specifies the place of work as a mandatory condition of the employment contract, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of an organization located in another locality - place of work indicating a separate structural unit and its location(par. 2 hours 2 tbsp. 57 of the Labor Code of the Russian Federation). At the same time, another locality is understood as an area outside the administrative-territorial boundaries of the corresponding settlement ( p. 16 Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).
Thus, if employees are registered in a branch that is located outside the administrative-territorial boundaries of the settlement in which the organization itself is located, then this fact must be recorded in the employment contracts of employees. Therefore, if in fact these workers will change the place of work, then such a change can be formalized only through a change in the terms of the employment contract. According to the general rules, the employer has the right to change the terms of the employment contract for reasons of an organizational or technological nature, unilaterally. In this case, if any employee refuses the corresponding change, then he can be dismissed under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation ( see attachment to answer below).
However, if the branch where employees work and where they should be transferred is located in the same area as the organization itself, then in fact the employer is required to indicate only the place of work, which is understood as the name of the organization and its legal address. In this case, it is not necessary to indicate the name of the branch and its address. In this case, if when changing the address of the branch where employees work, none of the terms of the employment contract is changed and the area in which they will work does not change, then for them there will actually be a movement ( Part 3 Art. 72.1 of the Labor Code of the Russian Federation). The relocation of an employee does not require his consent and can be issued by the employer unilaterally ( see appendix to answer). When moving, an entry in the employee's work book is not made.
If, in your situation, it is also supposed to change the position of the employee, that is, his labor function, then it is supposed to change the obligatory condition of the employment contract, which cannot be changed by the employer unilaterally, including through the procedure for changing the terms of the employment contract for organizational reasons. or technological. The position of an employee can be changed only by agreement of the parties. This directly follows the general meaning of articles 57, 72, 74 of the Labor Code of the Russian Federation.
In this case, if one of the employees refuses to be transferred to another position, then the employer will have to draw up a procedure for reducing the relevant employees in the general manner ().
Details in the materials of the System Personnel:
Situation: How to make changes to the employment contract if they are caused by a change in the organizational or technological working conditions in the organization.
Changes to an employment contract for reasons related to a change in organizational or technological working conditions include, for example:
- changes in engineering and production technology, for example, the introduction of new equipment, which led to a decrease in the workload of an employee ();
- structural reorganization of production (for example, the exclusion of any stage of the production process);
- other changes in organizational or technological working conditions that led to a decrease in the employee's workload.
If the supplementary agreement is not executed in a timely manner, but the employee continues to work under the new conditions after notification of the changes, this means that the employee has actually agreed to such changes. The legality of this approach is confirmed by the courts (see, for example,).
If the employee does not agree to work in the new conditions, then the organization is obliged to offer him another job, including a lower and lower paid one, if the organization has suitable vacancies. You only need to offer the employee vacancies that the employer has in the area. It is necessary to offer vacancies in other localities only if it is provided for by the collective (labor) agreement, other agreements. This procedure is enshrined in Article 74 of the Labor Code of the Russian Federation.
If the employee refuses to work in the new conditions or there are no suitable vacancies in the organization, then the employment contract can be terminated:
- by reduction on the basis of part 1 of article 81 of the Labor Code of the Russian Federation c - if we are talking about changing the working regime, namely the introduction of an incomplete regime ();
- in connection with the refusal to continue work in the new conditions on the basis of part 1 of article 77 of the Labor Code of the Russian Federation, also with - in all other cases ().
An employer can dismiss an employee only after two months from the date of notification of a change in the terms of the employment contract. The law does not provide for the possibility of early dismissal. A similar position is reflected in and confirmed by judicial practice (see, for example,). The only option is to agree with the employee and issue the dismissal earlier, but on a different basis, for example, by paying an attractive amount of compensation.
When an employee is dismissed due to refusal to work under new conditions, the employer, in the event of a dispute with the employee, must have evidence that confirms that the change in the terms of the employment contract was the result of changes in organizational or technological working conditions. This is stated in the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2. If the employer cannot provide such evidence and link one with the other, then the change in the terms of the employment contract, and hence the dismissal of employees who refused to continue working in new conditions may be illegal. This is also indicated by the courts, see, for example, Actual personnel changes
-
Inspectors from GIT are already working according to the new regulations. Find out in the Kadrovoe Delo magazine what rights employers and personnel officers have had since October 22 and for which mistakes they will no longer be able to punish you. -
There is not a single mention of the job description in the Labor Code. But personnel officers need this optional document. In the magazine "Personnel Business" you will find an up-to-date job description for a personnel officer, taking into account the requirements of the professional standard. -
Check your PVR for relevance. Due to changes in 2019, the provisions of your document may violate the law. If the GIT finds outdated wording, it will fine. What rules to remove from the PVTR, and what to add - read in the magazine "Personnel Business". -
In the magazine "Personnel Business" you will find an up-to-date plan on how to create a safe vacation schedule for 2020. The article contains all the innovations in laws and practice that must now be taken into account. For you - ready-made solutions to situations that four out of five companies face when preparing a schedule. -
Get ready, the Ministry of Labor is changing the Labor Code again. There are six amendments in total. Find out how the amendments will affect your work and what to do now so that the changes are not taken by surprise, you will learn from the article.
Looking for an answer? Ask a lawyer!
9942 Lawyers are waiting for you Fast response!
Ask a Question
How to refuse a temporary transfer to a position?
Hello. How to refuse a temporary transfer to a position, provided that before that there was an accident at work under the current leadership, and after that it abruptly went on vacation.
Lawyers Answers
Iskibaeva Elena Yurievna(01/09/2017 at 16:36:19)
Hello Yaroslav! 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), while continuing to work with the same employer, as well as transfer to work in another locality with the employer. Transfer to another job is allowed only with the written consent of the employee, except for the cases provided for by parts two and three of Article 72.2 of this Code. (and this is in the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic and in any exceptional cases that endanger the life or normal living conditions of the entire population or part of it , the employee may be transferred without his consent for a period of up to one month to work not stipulated by the employment contract with the same employer in order to prevent these cases or eliminate their consequences.
The transfer of an employee without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer is also allowed in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent the destruction or damage of property, or replacement temporarily absent employee, if downtime or the need to prevent the destruction or damage of property or to replace a temporarily absent employee is caused by the emergency circumstances specified in part two of this article. At the same time, transfer to work requiring lower qualifications is allowed only with the written consent of the employee.)
At the written request of the employee or with his written consent, the employee may be transferred to a permanent job with another employer. In this case, the employment contract at the previous place of work is terminated.
It 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 terms of the employment contract determined by the parties.
It is forbidden to transfer and move an employee to work that is contraindicated for him for health reasons.
Zaika Igor Vladimirovich(01/09/2017 at 16:46:58)
Good day!
Yaroslav, you can simply refuse the temporary transfer and that's it. The transfer of an employee to another job (position) is possible only with the written consent of the employee.
From Art. 72.1.paragraph 1 of the Labor Code of the Russian Federation follows: “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 indicated in the employment contract), while continuing to work for the same employer, as well as transfer to work in another locality together with the employer ... is allowed only with the written consent of the employee.
The law does not require obtaining the consent of an employee for such a transfer if it is necessary to eliminate the consequences of catastrophes, accidents and other emergencies (fire, flood, explosion, etc.), if the consequences of such an event threaten the normal living conditions of a population group. (i.e. only in emergency situations where delay can lead to serious consequences for citizens).
Article 72.2 paragraph 2 of the Labor Code of the Russian Federation: In the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic and in any exceptional cases that endanger the life or normal living conditions of the entire population or part of it, the employee may be transferred without his consent for a period of up to one month to work not stipulated by the employment contract with the same employer in order to prevent these cases or eliminate their consequences.
Good luck and all the best!
______________________________
I would be grateful for your feedback. [email protected]
Degtyareva A.G.(01/09/2017 at 16:51:28)
Hello!
Temporary transfer of an employee to another job occurs by agreement of the parties, concluded in writing.
The concept of temporary transfer is contained in Art. 72.2 of the Labor Code of the Russian Federation.
An employee may be temporarily transferred to another job with the same employer for up to one year.
In your situation, the transfer is required for the duration of the absence of another employee, if its duration does not fit into one year, then the period will be set with the wording "until the main employee returns to work."
It is up to you to decide whether or not to agree to such a transfer, taking into account the actual circumstances. Refusal in writing.
Also note the following:
according to Art. 72.2. The Labor Code of the Russian Federation transfers an employee without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer is allowed if it is necessary to replace a temporarily absent employee, if the replacement of a temporarily absent employee is caused by
emergency circumstances specified in part two of this article (In the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic and in any exceptional cases that endanger life or normal life the conditions of the entire population or part of it).
At the same time, transfer to work requiring lower qualifications is allowed only with the written consent of the employee.
If you have any other questions - please contact. Good luck!
Please leave your feedback for the answer.
Sincerely, [email protected]
How to cancel a transfer?
More than 1,000 military personnel and their families received answers from the military lawyer of the Mil.Press media group. If your question is related to pay, pensions, housing, or separation from service, please select a topic from the drop-down list below. You can also check out list of most frequently asked questions.New appeals to the legal consultation are temporarily not accepted.
Hello! The situation is as follows: he wrote a report for transfer to another military unit to a higher position, on 12/15/2013, the NOC said that the decision of com. parts positive. 28.01.2014 it turned out that the report did not go through and on the same day I wrote a letter of resignation at the end of the contract on February 26, 2014. There are 18 days left and they still want to transfer me, but to an equivalent position. Can I refuse the transfer and quit my unit? If yes, according to which NLA? Thank you in advance!
Yuri Alexandrovich Ivanov,
Topic: Dismissal from active service
Location: Baltiysk
According to the Federal Law "On military duty and military service".
Article 51 Thus, if you have these grounds and you filed a report, then, accordingly, you should be fired from this military unit, i.e. at the last place of service. A serviceman may be transferred to a new place of military service from one military unit to another (including one located in another locality) within the Armed Forces of the Russian Federation (other troops, military formations or bodies, military units of the State Fire Service) in the following cases:
(a) out of necessity;
b) in order of promotion;
c) for health reasons in accordance with the conclusion of the military medical commission;
d) for family reasons at a personal request (for military personnel undergoing military service under a contract);
e) at a personal request (for military personnel undergoing military service under a contract);
f) in connection with organizational and staff activities;
g) in connection with a planned replacement (for military personnel undergoing military service under a contract);
h) in connection with enrollment in a military educational institution, postgraduate course, military doctoral studies;
i) in connection with expulsion from a military educational institution, postgraduate studies, military doctoral studies;
j) if, taking into account the nature of the crime committed, a serviceman who has been sentenced to a restriction in military service cannot be retained in a position related to the leadership of subordinates.
A serviceman performing military service under a contract may be transferred to a new place of military service due to official needs with an appointment to an equal military position without the consent of the serviceman. But you filed a report in which you are asking to be fired at the end of the contract, so the transfer for official necessity to an equivalent position will be illegal, since you have decided on the further service. For greater confidence, submit a report to the personnel department, indicate all the circumstances in the report, attach copies of all reports and ask for dismissal at the end of the contract in the prescribed manner, as well as inform the terms and process of dismissal. If they appoint and transfer, file a lawsuit in court and challenge the transfer order.
Ryazantseva Anna Sergeevna(11/14/2014 at 4:40:34 pm)
Good afternoon! In accordance with Article 72.1 of the Russian Federation (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 the employee works (if the structural unit was indicated in), while continuing to work at the same employer, as well as transfer to work in another locality together with the employer.
At the written request of the employee or with his written consent can be done transfer of an employee to a permanent job with another employer. At the same time, the employment contract at the previous place of work is terminated (paragraph 5 of the first part of Article 77 of the Labor Code of the Russian Federation).
Thus, the employer is not entitled to transfer you without your written consent. However, in accordance with Article 74 of the Labor Code of the Russian Federation, in the case when, for reasons associated with changes in organizational or technological working conditions(changes in engineering and production technology, structural reorganization of production, other reasons), 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 changes in the labor function of the employee.
The employer is obliged to notify the employee in writing of upcoming changes in the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes. not later than two months.
If the employee does not agree to work in the new conditions, then the employer is obliged in writing to offer him another job available to the employer(both a vacant position or job corresponding to the qualifications of the employee, and a vacant lower position or lower-paid job) that the employee can perform taking into account his state of health. At the same time, 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, if it is provided for by agreements, an employment contract.
In the absence of the specified work or the employee's refusal 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 - the employee's refusal to continue working due to a change in the terms of the employment contract determined by the parties.
Thus, you are reliably protected in this situation by law. Act knowing your rights and do not succumb to possible provocations of the employer.
Good luck to you!
Please leave a review!
