home Business blog Permanent employee transfers. How to transfer an employee from a temporary job to a permanent one

Permanent employee transfers. How to transfer an employee from a temporary job to a permanent one

Transfer to another job is a fairly common personnel procedure. However, all this process clearly regulated by regulations labor law. Knowing the legal requirements for completing a transfer will help you avoid litigation with employees. It will also help minimize the risk of fines from regulatory authorities. This article discusses the reasons for the need to change labor function employees and the procedure in this case. Attention is also paid to the preparation of documents when transferring to work with another employer.

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The concept of transfer to another job

The employee's position specified in his employment contract upon its conclusion does not remain unchanged. Business needs, increased skill levels, or personnel changes may necessitate the transfer of an employee.

The difference between transfer to another job and relocation

In Art. 72.1 of the Labor Code of the Russian Federation gives the concept of transfer to another job. It can be expressed as follows:

change in labor function;
change structural unit, if it is specifically indicated in the employment contract;
moving with the employer to another locality.

That is, this procedure does not always mean a change in the position; it may remain the same. Distinctive feature the transfer will be a change in the key terms of the employment contract.

It is this fact that necessitates the need to obtain the employee’s written consent. Hiring and transfer to another job are possible only by agreement of the parties. Otherwise it will be a violation of the law.

If there is a need to assign an employee to work on another unit (machine, car, device, computer, etc.), but the duties do not change, then this is no longer a transfer, but a transfer.

The same applies to a change in structural unit, if it is not specified in the employment contract, change of workplace or location within the same area.

Transfer to another job and relocation differ from each other in their impact on the terms of the employment contract.

Let's look at examples:

1. In the employment contract A. It is said that she was accepted as a teller in branch No. 1 of Bank C. The expansion of the geography of service made it necessary to appoint her, as an experienced employee, to the newly opened branch No. 10 for the same position as a teller. This is a transfer because one of the terms of the employment contract is changing. And to carry it out, A’s consent is required.

2. Fitter B. changed workshop No. 2 to workshop No. 4, located on the next street, at the request of management, but remained in previous position specified in his employment contract. This is a displacement, since nothing has changed for B. other than his position in space. Consent for such a change is not required.

Types of transfers to another job

Changes in labor functions are usually classified on various grounds. Each variety has its own design features. It is important to take them into account when drawing up documents.

Internal and external transfers

Translation can be internal or external. In the first case, the employee remains in the same organization, even if the structural unit or locality where his workplace is located has changed. The procedure for personnel registration in this case will be general; we will consider it below.

External will be a move to another position in another organization. In fact it's private view layoffs.

Initiative and forced transfers

The basis for proactive changes in labor functions will be:

the desire of the employee himself,
employer's order
or a petition from the trade union committee.

The reason for the manifestation of initiative is the opening of vacancies, production needs, or the desire of the manager to contribute to the career growth of his subordinate.

Changes in labor functions are forced if the law insists on them. For example, in the case of medical contraindications. Or, if the result of the certification does not give the employee the right to occupy the position specified in the employment contract. In this case, both the employee and the employer are subject to the requirements of the law.

Transfers permanent and temporary

The employee's function can be changed permanently. But sometimes a temporary change in function is required due to production needs.

The difference will be not only in the time frame, but also in the order of registration. Maximum term temporary change of function - one year. After which the employee returns to his previous position.

Some changes may only be temporary. For example, for the so-called “light labor” for a pregnant woman. After the end of her maternity leave, she should be returned to her previous position.

Scheduled and emergency transfers

The decision to transfer is usually made within a certain period of time. The employer and employee weigh all its pros and cons. Moreover, the law requires the employer to provide advance warning in the event of, for example, layoffs. But there are situations when a transfer order is issued urgently.

For example, in the event of a natural or man-made emergency. Or in cases where it is necessary to urgently save the employer’s property from damage.

Transfer to another job with or without the employee’s consent

By general rule, the consent of the person, expressed in writing, is strictly mandatory. Without it, it is impossible to constantly change the employee's responsibilities.

But there are a number of exceptions when the employer does not require the consent of employees. They are set out in Art. 72.2 Labor Code of the Russian Federation. It refers to a short-term change, up to 1 month, in cases of preventing or eliminating the consequences:

natural disasters (floods, tsunamis, earthquakes, hurricanes, etc.);
man-made accidents;
accidents;
fires;
hunger;
epidemics or epizootics.

If the specified circumstances occur that threaten the life, health or safety of a large number of people, the grounds for a temporary change in job functions without the employee’s consent are:

simple;
the need to prevent damage or destruction of material assets;
replacing a temporarily absent employee.

Transfers within or outside the same area

The locality in which the employing enterprise is located also refers to the key terms of the employment contract. And his change means a transfer for the workers.

Therefore, the employer is obliged to notify employees of such changes in advance. For those who agree to move, a change of place of work is formalized. Within the same locality, the transfer is associated with a change in position, or with a change in the structural unit where the employee’s workplace is located.

Temporary transfer of an employee to another job

A change in an employee’s job function is possible for a short period of time. The law sets it equal to a year under normal conditions and a month in the event of various emergency circumstances.

For obvious reasons, temporary transfer to another position is possible only within one organization. As with a permanent change in job responsibilities, a person's position or place of work may change.

A change is impossible even temporarily if the new job poses a threat to the employee’s health and is prohibited by a medical certificate.

In this case, the contract will not be renewed. Instead, it is compiled additional agreement.

This means that with such a translation it is impossible to establish probation. It is only possible during initial employment. But such an agreement must include a condition regarding the duration of its validity. This can be either a specific date or a certain condition, for example, an absent employee returning to work.

As a general rule, this type of change is made by mutual agreement of the parties to the labor relationship. Moreover, the employee must express it in writing. But in extreme circumstances, written consent should only be obtained when a job is offered that requires lower qualifications and pays less.

Such a change, even if it has implications for career growth employee is not reflected in his work book. But in the future, at the request of the employee, he may be given a copy of the transfer order, confirming the fact of working in another position, albeit for a short time. The second order, about returning the employee to his previous position, is not mandatory.

If the transfer period has expired and the previous position has not been provided, and the employee himself does not express a desire to take it, he becomes permanent. The agreement on its temporary nature is considered invalid.

This gives rise to the employer’s obligation to supplement the work book with a corresponding entry. The transfer date is considered to be the one from which it was actually carried out.

Transfer to another job for medical reasons

One of the most common cases of mandatory changes in work function is the state of human health. When an employee presents a medical report, the employer immediately becomes obligated. It is necessary to immediately prevent the employee from performing work that is contraindicated for him due to health reasons.

A change in work function for medical reasons can be not only temporary, but also permanent. But in any case, this requires the consent of the employee. Presentation of a medical document is not such. Agreeing to a transfer is an employee’s right, not an obligation.

But first, the employer must decide what to do with that employee. It all depends on how long the health restrictions arose and whether there are suitable vacancies in the organization.

If there are any, the employer can immediately offer them. It is advisable to do this in writing. The employee can express his consent or refuse the offer.

In case of refusal, as well as if suitable job at the moment no, the employer has two options:

. But this is only possible if a change in the nature of the work is required for no more than 4 months. For the entire period of suspension, the employee does not appear at the workplace, and wage he is not credited, although his position is retained. The time of suspension is not included in the length of service that gives the right to leave.
Terminate the employment relationship with such an employee. Article 77 of the Labor Code of the Russian Federation provides for a similar basis for termination of a contract. Paid upon dismissal severance pay. Its size, according to Art. 178 of the Labor Code of the Russian Federation is equal to the average salary for 2 weeks.

A change in position in this case also causes a change in salary. And, as a rule, to a lesser extent.

An exception is provided for a pregnant woman or mothers whose child is under 1.5 years old. If her production standards are reduced or she works in a lower position, she retains the average earnings for her previous position (Article 254 of the Labor Code of the Russian Federation).

Transfer to another job in another organization

Dismissal by way of transfer to another job is possible either at the request of the employee himself or with his consent. The main differences from moving within an organization will be:

extremely permanent nature of job changes;
termination of the employment contract.

According to the employee, his new employer draws up an official request on company letterhead for the manager at his previous place of work. It can be sent by mail, but most often the employee attaches it to his application for transfer to another position in another organization.

With the consent of the manager, he signs the application. Based on the resolution, an order is drawn up in form T-8. The date of dismissal in it and in the employee’s application must match. After signing the order and familiarizing the employee with it, entries are made in the work book and personal card, a calculation and the necessary documents are issued.

In fact, this is no different from voluntary dismissal. Except for three small nuances:

the basis for dismissal in the work book will be indicated in clause 5 of Art. 77 of the Labor Code of the Russian Federation, which can have a beneficial effect on future employment.
an employee hired by transfer cannot be given a probationary period;
when reinstating (for example, through the court) a person who previously held this position, the employee invited in writing cannot be dismissed on the grounds of Art. 83 Labor Code of the Russian Federation.

The employer has the right to refuse a transfer if he is not satisfied with the method of dismissal or its date. This is reflected in the resolution to the application. In this case, the employee has the opportunity to resign at his own request or.

Transfer to another job in the same organization

Transfer to another job in one organization usually implies a change in position. The case when the position simply changes its name (for example, manager - manager) will not be considered a transfer.

The department specified in the employment contract may change. Sometimes it is possible to work simultaneously and at places of work.

Less common case internal translation- change legal address employer. But not any, but only if it occurs in another area, in other words, in another populated area.

The position and department do not change, but since one of the main conditions of the employment contract is affected, this is considered a translation of Art. 72.1 of the Labor Code of the Russian Federation).

In this case, the initiator can be the employee himself. For example, if a position with more than high salary or more convenient schedule work. For example, if a position with a higher salary or more convenient work schedule becomes available.

In this case, a statement is written to the head of the organization. It should reflect the name desired position and the reasons why the choice should be made on the applicant.

The transfer offer may also come from the employer. Typically this is a senior position. But there are also opposite situations. For example, if, based on the results of certification, the employee did not show a very good result. Or in cases where the reason for the change is a medical report.

Any change in job functions within the organization requires written consent from the employee. With the exception of temporary transfers, which are carried out in emergency situations.

An employee’s refusal will not be a violation of discipline; it is a right that he exercised. Therefore, the employer under normal conditions has no grounds for imposing disciplinary sanctions. Although under certain conditions, refusal to transfer may ultimately lead to dismissal

Under normal conditions, termination of an employment contract, that is, dismissal, does not occur upon transfer to another job. Labor relations continue, albeit under new conditions. The registration process consists of several stages strictly regulated by law. Let's look at each of them in more detail.

The procedure for transferring an employee to another job

We offer step by step instructions how to transfer an employee to another job. If it is carried out and the documents required at each stage are carefully prepared, neither the employee nor the inspection authorities will have any complaints about the legality of the procedure.

Step 1. Showing initiative.

It can come from both the employer and the employee himself. Documenting This stage is not necessary; the parties can express their wishes orally. But, as a rule, a written proposal follows from the employer, and consent from the employee to transfer to another job comes in the form of a statement.

Step 2. Familiarize the employee with the new job descriptions and others local acts regarding his new job.

About your reading regulatory documents the employee signs in a special journal or familiarization sheets for each document.

Step 3. Signing an additional agreement.

Because the we're talking about about changes occurring at the same employer, then employment contract about transfer to another job. The contract is not terminated, which would mean dismissal.

Step 4. Issuing an order.

It is the order that will be the basis for making changes to all other documents, including accounting ones. It clearly indicates the reason for the change in labor functions and its duration.

Step 5. Familiarization of the employee with the order.

The fact that the order has been read is recorded with the employee’s personal signature. A copy can be handed over to him. If an employee refuses to read and sign the order, then a report is drawn up about this. It, together with a copy of the order, is stored in personal file.

Step 6. Making appropriate entries in the Personal Card (form T-2) and work book.

These records are made by the employee responsible for maintaining books and cards based on the order. At this point the translation can be considered complete.

Registration of transfer to another job

During this procedure, a number of documents are drawn up. Since we are talking about changes to the main document regulating the relationship between employer and employee - the employment contract, it is worth approaching the preparation of all documents with special care.

Otherwise, the employee himself or the inspection authority will have doubts about the legality of this procedure.

The main documents to be prepared personnel service, will be:

assumption of transfer if the initiative comes from the employer;
job descriptions for familiarization of the employee;
order for transfer to another position (this is the main document);
employee's personal card;
work book if the change is permanent.

Proposal for transfer and agreement to it

A formal written offer from an employer usually includes a description. Can also be attached job description. The notification receives an originating number and is logged.

The employee must express his consent in writing. This may be a “I agree” note, certified by a signature and date on the proposal itself. Or an application for transfer to another position, a sample of which can be obtained from the personnel service. The application is registered in a special journal and then stored in the employee’s personal file.

Additional agreement for transfer to another job and order

The additional agreement is an integral part of the employment contract. Transfer to another position does not terminate an employment contract or additional agreement concluded earlier; this means dismissal and has completely different grounds and legal consequences. The newly concluded agreement specifies the new position and the period for which the employee will hold it.

Additionally, the agreement is the basis for issuing an order for transfer to another position, sample 2017. Among the unified forms personnel documents, it is presented as the T-5 form.

The use of personnel document templates approved by Goskomstat for organizations is no longer mandatory. However, this will allow personnel records to be maintained in full compliance with the requirements of the law.

Entries in the work book and personal card

This procedure is completed by making entries about him in the work book and personal card. The number of the transfer order is indicated as the basis in both documents. An entry in the work book is made after the entry into employment. It includes the date, an indication of the position to which the employee was transferred or the name of the structural unit. The record is certified by the seal of the organization. There is no need to introduce it to the employee against signature.

Refusal of an employee to transfer to another job

The legal requirement to obtain written consent from a person for translation has a number of consequences. In particular, if to change your job function, unit or settlement the employee does not agree, and the employer does not have the opportunity to continue the employment relationship with him on the same terms, then most likely they will have to part ways.

The grounds for dismissal in such a situation may be:

mutual consent (clause 1 of article 77 of the Labor Code of the Russian Federation);
the employee’s own desire (clause 3 of Article 77 of the Labor Code of the Russian Federation);
refusal to change the terms of the contract (clause 7 of Article 77 of the Labor Code of the Russian Federation and Article 74 of the Labor Code of the Russian Federation);
refusal to transfer for medical reasons (clause 8 of article 77 of the Labor Code of the Russian Federation);
refusal to move with the organization (clause 9 of Article 77 of the Labor Code of the Russian Federation and Article 72.1 of the Labor Code of the Russian Federation);
staff reduction (clause 2 of Article 81 of the Labor Code).

Transferring an employee is an absolutely normal practice accepted all over the world. It consists of changing the initial terms of the employment contract regarding the employee’s position or place of work. The reason and type of translation largely determine how.

Failure to comply with the procedure established by labor legislation or negligence in the preparation of documents may lead to the recognition of a transfer or dismissal if it is refused as illegal. The dismissed employee will be reinstated, and the employer will pay him legal expenses, forced absenteeism and compensation for moral damage.

An exceptional case when the employer may not ask the employee’s consent would be emergency circumstances. But such a change can only be short-term, no more than a month.

All changes, regardless of the reasons and deadlines, are formalized by order. It is published on the basis of an additional agreement concluded with employees. The employment contract is not terminated in this case.

An exception is the transfer of an employee to another employer. Information about permanent changes in job functions must be entered into the personal card and work book.

I’m writing it as it is because I’m confused. We hired a specialist while she was on maternity leave, and a few months later we transferred her temporarily to the position of head of the same department. Now we want to transfer this employee permanently to the position of specialist, and leave the temporary transfer to the position of manager. Is this option possible and how to do it? And one more thing: A specialist is hired for the duration of another specialist who is in maternity leave, after some time the maternity leave ends, but we have another place where the employee is on maternity leave at a later date. Is it possible to transfer this employee to that maternity leave by additional agreement? How can everything be documented correctly without violating the Labor Code?

Answer

Answer to 1 question: I’m writing it as it is because I’m confused. We hired a specialist while she was on maternity leave, and a few months later we transferred her temporarily to the position of head of the same department. Now we want to transfer this employee permanently to the position of specialist, and leave the temporary transfer to the position of manager. Is this option possible, and how to do it?

A fixed-term employment contract can be made indefinite, since the Labor Code of the Russian Federation provides for the possibility of such a change. To do this, enter into a conclusion in which you indicate the condition that the agreement is concluded on a non- certain period, and then, based on the agreement, issue the appropriate .

Since it is necessary to make a fixed-term contract indefinite for the first position for which the employee was hired - a specialist position, and now the employee is temporarily occupying another position, we believe that you should first stop the temporary transfer and provide the employee with his previous job, enter into an agreement with him that the contract becomes indefinite, and after that (you can even the next day) again arrange a temporary transfer to the position of manager.

Answer to question 2: A specialist is hired for the duration of another specialist who is on maternity leave, after some time the maternity leave ends, but we have another place where the employee is on maternity leave at a later date. Is it possible to transfer this employee to that maternity leave by additional agreement? How to document everything correctly without violating the Labor Code?

No you can not.

A fixed-term employment contract is concluded with a temporary employee for the duration of the duties of one absent employee, who retains his place of work. That is, the newly hired employee must fulfill job responsibilities one specific employee during his absence. A fixed-term employment contract concluded with such a temporary employee is subject to termination when the absent employee returns to work. Consequently, it is impossible to immediately conclude one fixed-term contract with a temporary employee to replace several permanent employees who will alternately be on vacation.

This conclusion follows from the provisions of Part 1 of Article 59 and Article 79 Labor Code RF.

To formalize temporary work in such a situation, the employer should work with the temporary worker sequentially - first to replace one employee, then another. Moreover, after each permanent employee returns to work, the employer will need to work with a temporary employee and enter into a new one, on a new basis.

Details in the materials of the Personnel System:

1. Answer: What documents need to be drawn up if a fixed-term employment contract was not terminated at the end of its validity period and became indefinite?

Nina Kovyazina

If a fixed-term employment contract was not terminated in a timely manner - intentionally or due to oversight, then it is recognized as indefinite. That is, imprisoned for an indefinite period.*

Since the term is a mandatory condition of the contract, this fact can be documented. To do this, conclude a contract in which you indicate the condition that the contract is concluded for an indefinite period, and then, based on the agreement, issue the corresponding document. Rostrud also gives such recommendations.

Attention: if a fixed-term employment contract was not terminated in a timely manner and the employee continues to work, then such a contract will be considered unlimited-term by default, even if the employer does not draw up an additional agreement to the contract to change the term ().

Temporary transfer by written agreement

How to temporarily transfer an employee to another job by agreement of the parties

Record of temporary transfer

Is it necessary to make an entry in the work book about the temporary transfer of an employee to another job?

Do not make an entry about the temporary transfer in the work book, but it can be made in the employee (Rules, approved, instructions, approved).

If temporary work is of a special nature and is important for confirming the employee’s preferential length of service (for example, temporary work as a doctor), then such work experience can be confirmed by a certificate from the employer about the performance of the relevant work, an additional agreement to the employment contract on temporary transfer, etc.

The courts take a similar position. See, for example,.

Example of registration of temporary transfer of an employee to another job

A.V. Lampochkin works as an electrician for the organization. In November 2008, an accident occurred - the warehouse building collapsed.

During the period of liquidation of the consequences of the accident, Lampochkin was transferred to replace a temporarily absent employee for a less qualified job (appointed as a watchman). The duration of the temporary transfer is 14 calendar days (from November 13 to November 26 inclusive). The employee agrees with the transfer. The corresponding entry was made on the transfer. The manager issued a transfer notice.

Lampochkin’s days of work as a watchman were paid based on his average earnings from his previous job - 552.60 rubles/day. During the temporary transfer, the employee worked 10 working days. Therefore, Lampochkin was accrued:

RUB 552.60/day × 10 days = 5526 rub.

Termination of temporary transfer

How to formalize the termination of a temporary transfer

After the end of the transfer period, it is advisable to issue an order to provide the employee with the previous job, since if at the end of the transfer period the employee’s previous job is not provided, and he did not demand its provision and continues to work, the condition of the agreement on the temporary nature of the transfer loses force and the transfer is considered permanent (). Such an order has no unified form, so compose it in .

If the condition of the agreement on the temporary nature of the transfer has lost force and the transfer is considered permanent, then to document this situation it is recommended to draw up a new agreement between the employee and the employer regarding the change in the nature of the transfer and issue a corresponding document. Among other things, you will need to make records of the permanent transfer to and employee (approved).

It should be taken into account that if, upon completion, it is impossible to provide him with his previous job, then he must be ().

Ivan Shklovets,

Deputy Head Federal service on labor and employment

3. Answer: Is it possible to hire an employee under a fixed-term employment contract at once to replace several employees who are alternately on vacation?

Nina Kovyazina, Deputy Director of the Department of Education and Human Resources of the Russian Ministry of Health

No you can not.

A fixed-term employment contract is concluded with a temporary employee for the duration of the duties of one absent employee, who retains his place of work. That is, a newly hired employee must perform the job duties of one specific employee during his absence. A fixed-term employment contract concluded with such a temporary employee is subject to termination when the absent employee returns to work. Consequently, it is impossible to immediately conclude one fixed-term contract with a temporary employee to replace several permanent employees who will alternately be on vacation. with a temporary worker - as the relevant main workers go on vacation. Moreover, after each permanent employee returns to work, the employer will need to
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There are often cases when personnel officers and accountants, sometimes even experienced ones, have difficulty distinguishing between the transfer of an employee and his relocation. Let's consider whether there are similarities and how these two actions differ, without which it is often unthinkable work activity employees of the organization.

Employee transfer

Transferring an employee to another job is one of the possible changes to the terms of the employment contract with him. It is carried out only by agreement of the parties, except for some cases fixed by law. The agreement must be drawn up exclusively in writing (Article 72 of the Labor Code of the Russian Federation).

permanent or temporary change in the employee’s labor function;
permanent or temporary change in the structural unit in which the employee works, if it was fixed in the employment contract;
transfer together with the employer to another location.

However, the employer does not change.

However, another type of transfer is also indicated there - to a permanent job with another employer. With such a transfer, the previous employment contract is terminated and a new one is concluded with another employer.

Relocating a worker

In addition to transfer to another job, the same rules of law also regulate the movement of an employee.

The transfer of an employee can only take place with the same employer.

It is possible in the form:

moving to another workplace;
moving to another structural unit of the organization within the same area;
Instructing an employee to work on another mechanism (unit).

A prerequisite for the legality of the move is the absence of changes in the terms of the employment contract concluded between the parties. In other words, when moving, the workplace, or division (department), or mechanism (machine, car) previously fixed in the employment contract should not change.

The relocation of an employee does not require his consent to do so. Disagreement may be considered a violation labor discipline and entail corresponding consequences in the form disciplinary action.

In this case, the employee’s health status should be taken into account: the law strictly prohibits transferring him to work that is contraindicated by a medical certificate.

Similarities and differences

Transfer to another job and movement of an employee are similar in that during such a movement the worker changes his workplace, or a structural unit in the same area, or the mechanism with which he works.

The fine line of difference is revealed when determining whether these actions change the terms of the employment contract that the parties previously agreed upon.

If they are unchanged, then there is a movement.

If they change, this is a transfer that requires the employee’s consent and written changes to the concluded employment contract.

For example, if in an employment contract with a secretary the reception room of the head of the organization is indicated as his workplace, then it is impossible to move him to another office without his consent and the conclusion of an additional agreement to the employment contract. If the employment contract does not specify the reception room as a workplace, then moving the secretary to another office without his consent is legal.

Or a driver hired under an employment contract “to work for passenger car Renault brand license plate A 111 TL 77 RUS” cannot be transferred to a KIA brand car, but can be transferred with his written consent.

Or a salesperson hired to work in chain store in one area of the city, it is illegal to move for work to a store in another city area. It can only be translated.

The procedures for transferring to another permanent job and relocation also vary.

In the first case, an additional agreement to the employment contract is concluded, an order is issued on its basis, then an entry is made in the employee’s work book.

In the second case, only the manager’s order to move the employee is issued.

Hello! The employee was hired under a fixed-term employment contract for the period of parental leave of up to 3 years of the main employee. The main employee is on vacation until 2017 and has no intention of going back. On this moment We have a vacancy and we would like to transfer a temporary employee to a permanent basis, since the employee is a good one. How to apply correctly? Will it be enough to conclude an additional agreement to the employment contract, where to stipulate that the employment contract is considered concluded for an indefinite period? Or through dismissal? Thank you!

Answer

Answer to the question:

In this case the following are possible: options.

1. First of all, it should be noted that labor legislation does not contain the concept of “bet”.

If in this situation by the term “bet” you mean the same position, and the terms of the employment contract do not change (except for the term of the employment contract), then we cannot talk about transfer, because transfer involves a change in labor function, structural unit (if it is specified in the employment contract), transfer to another location together with the employer (Article 72.1 of the Labor Code of the Russian Federation).

The term of the employment contract is a special condition of the contract. In fact if the deadline changes, then the fixed-term contract itself changes, that is there is not a change in the concluded contract, but a formalization new agreement.

Therefore, in this case, the fixed-term employment contract should be terminated at the initiative of the employee or by agreement of the parties, and then an employment contract should be concluded for an indefinite period.

At the same time, we must not forget that an employee who is on maternity leave retains her place of work (position) and, if you again hire an employee to replace her, a fixed-term employment contract will be concluded.

If by “bet” you mean another vacant job title, then a transfer will take place (Article 72.1 of the Labor Code of the Russian Federation).

In this case, it is necessary to conclude an additional agreement on changing the employee’s labor function and other terms of the employment contract (if such a change occurs) and issue a transfer order on its basis.

In the event of a permanent transfer to another job (position), the previously concluded condition on the temporary nature of the work loses force, since in relation to the new job the previous grounds for the urgent nature of the labor relationship no longer apply (Part 2 of Article 58, Part 1 of Article 72.1 of the Labor Code of the Russian Federation ). An exception is the case when there are also grounds for concluding a fixed-term employment contract for a new job (for example, the main employee is temporarily absent, etc.). Under these circumstances, the condition of urgency of the relationship may be maintained.

2 . If the term of the employment contract has expired (in the event of the main employee’s absence from work), but neither party has demanded its termination, then the urgency condition loses force, and the employment contract is considered concluded for an indefinite period (Part 4 of Article 58 of the Labor Code of the Russian Federation) . However, if you still want to record the fact of changing the term of the employment contract (since the term is required condition employment contract (Article 57 of the Labor Code of the Russian Federation)), then in this case it is possible. This follows from the provisions of the Labor Code of the Russian Federation and is confirmed.

In this situation there is a risk that your employee, who is on maternity leave, changes her mind about terminating her employment, and then, in connection with her return to work, you will have to terminate the employment contract with the temporary employee, if by this time it is not possible to transfer her to another position .

3. Also, if the decision to extend the relationship is made before the expiration of the employment contract, then it can be recommended to conclude an additional agreement recognizing the contract as indefinite, but indicate that this agreement comes into force on the day following the day of expiration of the term under the originally concluded contract. And then, upon the continuation of the employment relationship (i.e., on the date of entry into force of the additional agreement), issue an order stating that the employment contract in connection with the continuation of the employee’s work is of an indefinite nature. Here, too, there is a risk that the main employee will return to work, and the agreement on the open-ended nature of the employment contract will not be valid.

Details in the materials of the Personnel System:

1. Answer: Question from practice: is it possible to change the term of a concluded employment contract?

No.

The term of the employment contract is a special condition of the contract. In fact, if the term changes, then the fixed-term contract itself changes, that is, it is not a change in the concluded contract, but a new contract is drawn up. The legislation does not provide for the possibility of extending or shortening the term of an employment contract. The exception applies only to individual cases. For example, if, at the end of a fixed-term contract, none of the parties demanded its termination, and the employee continues to work, then the contract becomes indefinite and can be extended by. This follows from the provisions of the Labor Code of the Russian Federation and is confirmed.

If the decision to extend the relationship is made before the expiration of the employment contract, then it can be recommended to conclude an additional agreement recognizing the contract as indefinite, but indicate that this agreement comes into force on the day following the day of expiration of the term under the originally concluded contract. And then, upon the continuation of the employment relationship (i.e., on the date of entry into force of the additional agreement), issue an order stating that the employment contract in connection with the continuation of the employee’s work is of an indefinite nature.

A question from practice: is it possible to extend a fixed-term employment contract without terminating it, or do you need to fire an employee and then hire him again. The contract is coming to an end, but the work is not yet completed

The answer to this question depends on how long the employer wants to extend the contract with the employee.

If an organization intends to extend the employment relationship with an employee for a certain period, this can only be done through dismissal and hiring under a new fixed-term contract.

This is due to the fact that a fixed-term employment contract is concluded for a certain period, but not more than five years (Article , and Labor Code of the Russian Federation). There is no possibility or procedure for extending a fixed-term employment contract. Therefore, in general, the extension of the term of an employment contract is the basis for recognizing it as indefinite. The exception is situations when:

The fixed-term employment contract expires during the woman’s pregnancy. Then the employer, upon a written application from the employee, can extend the term of the employment contract until the end of pregnancy (). In some cases, a fixed-term employment contract with a pregnant employee;
An employee is elected through a competition to fill the position of a scientific and pedagogical worker previously held by him under a fixed-term employment contract ().

Thus, in the general case, an organization does not have the right to draw up an additional agreement to a fixed-term employment contract to change its validity period for a certain period. An organization can only conclude a new employment contract after dismissing an employee. The legitimacy of this position is confirmed by Supreme Court RF in .

If the employer, with the consent of the employee, intends to extend the employment relationship indefinitely, then this can be done without going through the dismissal procedure. To do this, at the end of the fixed-term contract, neither party should demand its termination; the employee must continue to work. Then the contract becomes indefinite and can be extended. This follows from the Labor Code of the Russian Federation and is confirmed.

An exception to this procedure applies to heads of organizations for which the validity period of the employment contract is established by the organization’s constituent documents and regulations federal legislation(). In any case, they need to be fired and hired new term, defined in the statutory documents.

Nina Kovyazina,

2. Answer: When does a fixed-term employment contract expire?

A fixed-term employment contract is terminated in connection with, that is, with the onset of a certain date or event specified in the contract. This is stated in the Labor Code of the Russian Federation.

Advice: Keep a log of the end of fixed-term employment contracts. This will give you the opportunity to fulfill the requirement of the Labor Code of the Russian Federation, that is, about the upcoming dismissal, if the employer does not plan to continue the employment relationship with him.

If the organization at the time or during the work process has available vacancies that are suitable for the employee, including vacancies of the same name, then the employer should offer them to the temporary employee.

Question from practice: is an employer obliged to offer an employee hired under a fixed-term employment contract during the absence of the main employee a position of the same name that was vacated by another main employee?

There is no obligation to offer a vacant seat. In this case, the employee himself can come up with such an initiative and send a resume to the open vacancy.

The conclusion of a fixed-term employment contract is possible only if there are provisions established by law. One of these grounds is the temporary absence of a key employee. This basis is specified when hiring and must be recorded in the text of the employment contract. This follows from the provisions of articles of the Labor Code of the Russian Federation.

A temporary employee can become a core employee only in two cases:

if a fixed-term employment contract was made by mistake or intentionally when the main employee returned to work, during whose absence a temporary one was accepted ();
if the employer own initiative will offer the conscript employee to take any position as a main employee, including the one he occupies temporarily (). For example, if the main employee, in whose place a temporary conscript was hired, decides to leave the organization or is transferred to another position.

Thus, the legislation does not contain an obligation to offer a conscript employee hired during the absence of the main employee a position of the same name that was vacated by another main employee. Such an offer is possible only if the employer wishes.

At the same time, the employee has the right to come up with such an initiative and send a resume to an open vacancy. In this case, the employer will be obliged to either register the employee for the vacated position, or provide evidence confirming why the temporary employee cannot apply for the position of the same name as a main employee (). In the absence of a justified refusal to admit vacant position for the employer may occur.

Nina Kovyazina,

Deputy Director of the Department medical education And personnel policy in healthcare of the Russian Ministry of Health

3. Legal framework:

LETTER ROSTRUD dated November 20, 2006 No. 1904-6-1

[About a fixed-term employment contract]

IN Legal Department The Federal Service for Labor and Employment has reviewed the appeal.

Nina Kovyazina,

Deputy Director of the Department of Medical Education and Personnel Policy in Healthcare of the Russian Ministry of Health

5. Question from practice: what to do with a temporary employee who was hired during the absence of the main employee, if the latter plans to quit

The employer's actions will depend on whether he plans to continue the employment relationship with the temporary employee or not.

1. The employer is not interested in the work of a temporary employee.

In order for an organization to fire a temporary employee, the main employee must return to work for at least one day after the end of the period of absence. Including on this day, the main employee may have a vacation at his own expense if he is not able to work it for some reason. The fact is that, according to the law, a fixed-term contract concluded to fulfill the duties of a temporarily absent main employee is terminated when he returns to work (). See more about this). The legality of this approach is also confirmed by the courts (see).

In such a situation, the employer can:

negotiate with the temporary employee about dismissal;
and if such an agreement is not reached, fire him for, for example, in connection with.

2. The employer is interested in a temporary employee.

If the organization plans to continue the employment relationship with a temporary employee, then at the end of his contract:

neither party should demand its termination;
and the employee is obliged to continue to perform his job functions.

Nina Kovyazina,

Deputy Director of the Department of Medical Education and Personnel Policy in Healthcare of the Russian Ministry of Health

With respect and wishes for comfortable work, Natalya Nikonova,

HR System expert

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Transfer to another place of work is a temporary or permanent change in the duties that an employee performs at the workplace.

When transferred to another workplace, the employee does not leave his employer, only his type of activity changes.

In some cases, transfer involves redistribution to a neighboring locality.

When is transfer to another job allowed?

Transfer of an employee to new job allowed in the following cases:

Carried out by whom?

Transfer of employees is the responsibility of the employer.

The employee who is about to be transferred must be notified in advance. If an employee decides to transfer to another job, he needs to contact his employer.

Conditions and grounds

The Labor Code of the Russian Federation prohibits the transfer of an employee to another job if the employee does not agree to this.

In Art. 72 Labor Code of the Russian Federation the reasons why an employee can be transferred to another workplace without his consent are regulated.

An employee cannot be transferred to a job that doctors prohibit him from performing.

A new job can be either temporary or permanent for an employee.

Employees move from one job to another with the knowledge or order of the employer.

The employee himself may also express a desire to be transferred to another job.

Classification of translations

Transfers from place to place can be internal or external.

Internal transfer involves a temporary or permanent change in the employee’s field of activity. When transferred to another workplace, the employee continues to work for his employer.

External translation— transfer of an employee to a new employer.

For external translation the consent of the employee and his current and future employers is required.

The rules for transferring to another job are standard:

writing by an employee writes statements;
an employee’s employer’s appeal to his future employer with a request to hire this employee;
receiving a response from a future employer;
transfer of an employee to a new employer if he agrees.

As the basis for such dismissal, the employee’s statement is recorded in the work book, as well as the serial number with the date of the summons letter.

Kinds

Transfers from one job to another are also divided into permanent and temporary.

Permanent translation– unlimited. This translation is carried out with the employee's consent.

If the employee does not agree, then the labor commission or court must confirm the transfer. Without confirmation the transfer will be illegal.

Permanent transfers are divided into separate types:

An external transfer is the dismissal of an employee from one job and transfer to another without a break in seniority.

In this case, the employee’s old employment contract becomes invalid, and another employment contract is concluded with the employee at the new place.

The dismissal of an employee and starting a new job must be reflected in his work book.

Temporary transfers to another job is a change in the scope of his activity for a while.

Temporary transfers are:

by mutual agreement;
produced without the consent of the employee;
produced if necessary for the employer.

Transfer by mutual consent requires written consent to the transfer of the employee. The term of such a transfer is no more than a year.

If an employee was transferred to replace him, then until the employee he replaces leaves, he will work in his position.

Without consent, an employee may be transferred to another job in the following cases:

The deadline for such transfers is one month.

An employer can transfer an employee to another job if the employee has health problems, as well as in the event of pregnancy.

The employee must agree to the transfer. If the employee does not agree, the transfer will not be legal.

The employer will have to release the employee from work (if for medical reasons this period does not exceed four months) and retain his job, or (if the period is more than four months) dismiss the employee.

Procedure for transferring to another job

Transferring to another job can be both a way to solve the company’s problems and the employee’s personal desire.

If the employee decided to transfer to another job, the transfer procedure is as follows:

the employee fills out an application stating the reason for the transfer and the desired position;
the employer signs the application;
an accompanying entry is made in the employment contract;
the employer issues an order;
related entries are made in the employee’s work book, personal card, account, work schedule, etc. documents.

If the transfer was suggested by the employer, then the translation process is as follows:

You can submit a form for transfer to a new position. You can also provide a sample application for transfer to another job.

Transfer deadlines

Permanent transfers from one job to another are indefinite.

Temporary transfers with the consent of the employee and employer should not exceed one year.

If an employee is transferred to replace another, then new position he will work until the employee he replaces returns to work.

Registration of transfer of employees to another job, without their consent, can last no more than one month.

Is it possible to quit by transferring to another job?

An employee has the right to resign by moving to another job if when does external transfer take place?.

An employee quits his job former employer and concludes a new employment contract with the new employer.

In this case, an accompanying entry is made in the employee’s work book.

Transferring an employee to another workplace may be a result of a need in the organization or the personal desire of the employee.

Only the employee’s consent, supported by an appropriate statement, allows the employer to transfer him to another job.

The Labor Code of the Russian Federation regulates a number of situations when an employee is transferred to another job without his consent.