When the staff was reduced, they offered a vacancy. How to apply for withdrawal of consent to transfer to a lower paid position?

Unfortunately, labor legislation does not provide for the possibility to unilaterally withdraw from the agreement reached by the parties, including the agreement on changing the conditions employment contract(translation).

Even if you have not yet signed a separate document - an additional agreement to tr. agreement, but agreed in writing, the courts consider that the agreement has already been concluded. You can terminate it only with the consent of the employer in order to “return” back to the reduction procedure. If the employer refuses, then only quit in the general manner, according to own will.

The collective agreement states that the employer cannot fire young specialist due to staff reduction within three years from the date of conclusion of the contract. I am a young specialist for two years

in that case you need to judicial order recognize the downsizing procedure carried out in relation to you, including the transfer with your consent to a lower paid job, illegal.

Is paragraph 10.3.6 of the collective agreement a reason to defend your rights and claim that the demotion is illegal?

of course, if the CD is valid.

What do I need to withdraw an application for a transfer to another position?

At the request of the boss, she wrote and signed an application for transfer to another position with a reduction in the rate. Do I have the right to withdraw my application if I change my mind? There is no transfer order yet. What does it take to withdraw an application?

Hope, good afternoon. In accordance with Article 72 of the Labor Code of the Russian Federation, changing the terms of the employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract, with the exception of cases provided for by the Labor Code of the Russian Federation. An agreement to change the terms of an employment contract determined by the parties is concluded in writing.

Thus, if you do not agree with the transfer to another position, then do not sign the transfer agreement.

Transfer of an employee due to downsizing

Good afternoon. The company is downsizing, in connection with this, the company offers a position, but the salary for this position is lower than the one I receive at the moment. Please explain how, according to the labor code, a transfer to another position should take place due to a reduction in staff and what conditions must be met if an employee is laid off.

Good afternoon Alexandra!

In accordance with Articles 81, 180 of the Labor Code of the Russian Federation, when taking measures to reduce the number or staff of the organization's employees, the employer is obliged to offer the employee another available job (vacant position). At the same time, the employer is obliged to offer the employee another available job (both a vacant position or a job corresponding to the employee’s qualifications, as well as a vacant lower position or a lower-paid job), which the employee can perform taking into account his state of health. The employer is obliged to offer the employee all the vacancies he has in the given area. The employer is obliged to offer vacancies in another locality, if it is provided for by the collective agreement, agreements, labor contract. Dismissal on such a basis as a reduction in the number or staff of employees is possible only if the above condition is met.

In such circumstances, the transfer requires your written consent. At the same time, wages are paid according to the work performed. That is, if you agree to a transfer to a lower-paid job, then the earnings from the work that you performed before the transfer by the employer will not be saved.

In case of your refusal to transfer to another job, the employment contract with you may be terminated on the basis of paragraph 2 of Article 81 of the Labor Code of the Russian Federation (reduction in the number or staff of employees of the organization, individual entrepreneur). Upon dismissal for this reason you are subject to severance pay in accordance with Article 178 of the Labor Code of the Russian Federation, that is, in the amount of your average monthly salary, while maintaining the average monthly salary for the period of employment, but not more than two months from the date of dismissal (with offsetting the severance pay). If you work in the Far North or an area equivalent to it, then upon termination of the employment contract due to the liquidation of the organization or the reduction in the number or staff of the organization’s employees: a) the average monthly salary for the period of employment is retained, but not more than three months from the date of dismissal ( with severance pay). b) In exceptional cases, the average monthly salary is maintained for the fourth, fifth and sixth months from the date of dismissal by decision of the employment service authority, provided that you contact the employment service within a month after dismissal and will not be employed.
If you disagree with the dismissal, you have the right to challenge the latter in court. At the same time, the term for applying to the court for disputes about dismissal is, according to Article 392 of the Labor Code of the Russian Federation, 1 month from the date of delivery of a copy of the dismissal order or from the date of issuance of the work book.

Is it possible to refuse a transfer to another place of work and achieve a layoff?

good evening. the problem is I work in one locality. cashier in housing and communal services. the collection rate from payments fell. I thought they would cut me off. But the authorities issued an order due to operational necessity, they were transferred to work in another settlement 50 km away. Should I refuse and ask to be made redundant?

Lawyers Answers (3)

No, redundancy is the right of the employer and not his obligation.

another thing is that such a transfer without consent can only be within the aisles of 1 settlement (one locality) - here you need to deal with your employment contract

Have a question for a lawyer?

In accordance with article 72.1 of the Labor Code of the Russian Federation:

Transfer to another job - permanent or temporary change labor function employee and/or 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 transferring to work in another area together with the employer. Transfer to another job is allowed only with the written consent of the employee, with the exception of cases provided for by parts two and three of Article 72.2 of the Labor Code of the Russian Federation, namely:

1) in the event of a natural or man-made disaster, industrial accident, accident at work, 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 an employment contract with the same employer in order to prevent these cases or eliminate their consequences.

2) 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 to property, or replacement of a temporarily absent employee, if downtime or the need to prevent the destruction or damage to property or to replace a temporarily absent employee is caused by the emergency circumstances specified in part two of this article.

If the employee refuses to be transferred to work in another locality, the employment contract may be terminated due to the employee’s refusal to be transferred to work in another locality together with the employer (clause 9, part 1, article 77 of the Labor Code of the Russian Federation), or in connection with refusal of the employee to continue work in connection with a change in the terms of the employment contract determined by the parties (clause 7, part 1, article 77 of the Labor Code of the Russian Federation).

A reduction in the number or staff of employees is an independent basis for terminating an employment contract. The decision to reduce the number or staff of employees is made by the employer.

Labor Code of the Russian Federation, Article 74. Change
the terms of the employment contract determined by the parties for reasons related to
with changes in organizational or technological working conditions

IN
when, for reasons related to changes in organizational or
technological working conditions (changes in engineering and technology
production, 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, for
with the exception of a change in the labor function of an employee.
ABOUT
forthcoming changes in the working conditions determined by the parties
agreement, as well as the reasons for the need for such changes,
The employer must notify the employee in writing no later than
than two months, unless otherwise provided by this Code.
If
the employee does not agree to work in the new conditions, the employer is obliged to
in writing to offer him another job available to the employer
(as a vacant position or a job corresponding to the qualifications
employee, and a vacant lower position or a lower paid
work) that the employee can perform, taking into account his condition
health. At the same time, the employer is obliged to offer the employee all
vacancies that meet the specified requirements, available to him in this
terrain. The employer is obliged to offer vacancies in other localities,
if it is provided for by the collective agreement, agreements, labor
contract.
At
absence said work or refusal of the employee from the proposed work
the employment contract is terminated in accordance with paragraph 7 of the first part of Article 77 of this Code.

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Can I opt out of this transfer (how do I do it)?

I am doing military service under a contract on a ship. I stand in a position with the second tariff category. I have a technical higher education. The head of the personnel department offered a position on another ship with the sixth wage category. I agreed. We sent a request to the institute to confirm the authenticity of my diploma. While the letter was coming from the institute, the commander assigned me to the ship MISTRAL, on the second tariff category. Can I opt out of this transfer (how do I do it)? Orally they said that whoever writes a refusal report will be fired. A more specific answer would be desirable, citing laws and articles.

6 answers to a question from lawyers 9111.ru

If it is impossible to perform military service in the area where he is transferred, in accordance with the conclusion of the military medical commission.

The transfer of this serviceman to a new place of military service with appointment to an equal military position is carried out without his consent, with the exception of the following cases:

"On the order of military service"

Article 15. Procedure for transfer to a new place of military service

1. A serviceman may be transferred to a new place of military service from one military unit to another (including one located in another area) within the Armed Forces Russian Federation(other troops, military formations or bodies, military units of the State Fire Service) in the following cases (the paragraph was supplemented from April 22, 2003 by Decree of the President of the Russian Federation of April 17, 2003 N 444, which applies to legal relations that arose from January 1, 2002, - see previous edition):

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.

2. A serviceman performing military service under a contract may be transferred to a new place of military service due to official necessity with appointment to an equal military position.

The transfer of this serviceman to a new place of military service with appointment to an equal military position is carried out without his consent, with the exception of the following cases:

a) if it is impossible to perform military service in the area where he is transferred, in accordance with the conclusion of the military medical commission.

Addendum to the answer.

In other cases, you can be transferred only with your consent.

about military service

IV. The procedure for the transfer, secondment of military personnel and the suspension of their military serviceTOP

Article 15. Procedure for transfer to a new place of military service

Information about changes:

By Decree of the President of the Russian Federation No. 444 of April 17, 2003, paragraph 1 was amended to apply to legal relations that arose from January 1, 2002.

See the text of the paragraph in the previous edition

1. 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.

By the decision of the Supreme Court of the Supreme Court of the Russian Federation of January 21, 2005 N VKPI04-111, left unchanged by the Determination of the Cassation Board of the Supreme Court of the Russian Federation of March 29, 2005 N KAS05-69, paragraph 2 of Article 15 of this Regulation is recognized as not contradicting the current legislation

2. A serviceman performing military service under a contract may be transferred to a new place of military service due to official necessity with appointment to an equal military position.

The transfer of this serviceman to a new place of military service with appointment to an equal military position is carried out without his consent, with the exception of the following cases:

a) if it is impossible to perform military service in the area where he is transferred, in accordance with the conclusion of the military medical commission;

b) if it is impossible for members of the serviceman’s family to live (wife, husband, children under the age of 18, student children under the age of 23, children with disabilities, as well as other persons dependent on the serviceman and living together with him) in the area where he is being transferred, in accordance with the conclusion of the military medical commission;

c) if it is necessary to take constant care of a father, mother, sibling, sister, grandfather, grandmother or adoptive parent living separately, who are not fully supported by the state and who need it in accordance with the conclusion of the authority public service medical and social examination at their place of residence in permanent outside care (assistance, supervision).

3. A serviceman performing military service under a contract may be transferred to a new place of military service in the order of promotion with the appointment, with his consent, to the highest military position.

4. A conscripted military serviceman is transferred to a new place of military service without his consent.

5. The transfer of a serviceman who is doing military service under a contract to a new place of military service for family reasons is carried out in the following cases:

a) if it is impossible for members of the serviceman’s family to live (wife, husband, children under the age of 18, student children under the age of 23, children with disabilities, as well as other persons dependent on the serviceman and living together with him) in this areas in accordance with the conclusion of the military medical commission;

b) if it is necessary to take constant care of a father, mother, sibling, sister, grandfather, grandmother or adoptive parent living separately, who are not fully supported by the state and who, in accordance with the conclusion of the state service body of medical and social expertise at their place of residence, in permanent outside care (help, supervision).

6. If during the transfer of a serviceman who is doing military service under a contract to a new place of military service, the place of residence of his family changes, and the wife (husband) of this serviceman is also doing military service under a contract, then simultaneously with the decision to transfer the serviceman to a new place of military service, the issue of transferring his wife (husband) to this area is being resolved.

If it is impossible to simultaneously appoint military spouses to military positions within the same locality (garrison) and in case of refusal to dismiss one of them from military service, transfer to a new place of military service is not carried out.

7. In the event of a transfer to a new place of military service, a serviceman is sent there after the surrender of cases and release from military duty, but no later than one month from the date of receipt by the military unit of an order or a written notice of his transfer, except when the serviceman is on vacation, on a business trip or for treatment.

8. Male military personnel expelled from the military educational institutions for indiscipline, poor progress or unwillingness to study, as well as for refusing to conclude a contract if by the time of expulsion from the indicated educational institutions they have reached the age of 18, have not completed the established period of military service by conscription and are not entitled to dismissal from military service, release or deferment from conscription for military service, are sent for military service by conscription.

Dismissal upon refusal of transfer

In accordance with the requirements of labor legislation, the employee has the right not to fulfill the conditions not provided for in the employment agreement. But the nature and place of work can be changed for production needs or for other reasons. How to do this without violating the law? In the article we will talk about dismissal when refusing to transfer, consider the reasons and main mistakes of employers.

Significant changes to the employment contract

In the daily work of organizations, they often face the need to transfer an employee for various reasons. If as a result of this the terms of the employment agreement change, then it does not matter what caused it (production necessity, reorganization legal entity, expansion or reduction of the enterprise, certification or health status of the employee). The very fact of change is important.

If they affect:

• work responsibilities,
• place of work,
• wages,
• schedule,
• other conditions specified in this document.

In this case, the transfer can be carried out only with the written consent of the employee.. An exhaustive list of significant changes in the terms of the employment agreement has not been established by law. The degree of materiality is assessed differentially for each case.

Reasons and types of transfer

If during the transfer of an employee to another place of work there were no significant changes in working conditions, then such an action can be attributed to a transfer that does not require his written consent. In this case, the salary, duties, position and place of work remain the same.

Moving an employee to different branches of one economic entity means changing the place of work. Therefore, if an employee, at the initiative of the employer, moves from one structural unit of the organization to another, then this should be regarded as significant changes in the employment contract and a transfer, and not a transfer. This is especially true in cases where the employment agreement clearly states the place of work (section, workshop, structural unit, etc.) for which the employee is hired.

The need for translation arises due to a change of address by a legal entity, operational necessity, medical indications.

The employee does not always agree with the proposal. In some cases, the refusal to transfer does not allow the employer to fire the employee. But more often, such disagreement leads to legal dismissal, even if it is a pregnant employee or a single mother. Read also the article: → "Transfer of an employee to another job (temporary and permanent transfer)".

Dismissal in case of refusal to move to another area

Employees must be informed about a change of location by a legal entity 2 months in advance in writing. This document should contain information about the new address of the employer, the timing of the move, the start date of work, guarantees and compensation payments associated with his transfer. As a rule, a transfer associated with the relocation of a company to another location entails reimbursement of costs:

• to move to the place of work of both the employee and his family members;
• for the transportation of his property;
• to a device in a new location.

In a written message, you can reflect the procedure and nature of compensation, as well as set the period during which the employee is obliged to notify the employer of his decision. If within the specified period the employee does not receive a statement of consent, then this is regarded as a refusal to transfer.

If the employee disagrees, he is subject to dismissal. This applies to pregnant women, and to women raising children under 14, and to other preferential categories. Such an action does not fall under the category of layoffs at the initiative of the employer. This is formalized by an order, in which, as a basis, a reference is made to the decision to relocate the company and to the employee's refusal to transfer. The employee is introduced to him against signature.

The dismissed employee is entitled not only to salary, compensation payments, but also severance pay based on the average earnings for two weeks. In the work book, an entry is made about the dismissal with reference to Article 77 of the Labor Code of the Russian Federation. Read also the article: → "Dismissal in connection with the transfer of an employee."

Dismissal for medical reasons

There may be cases of a serious illness of an employee, as a result of which, on the recommendation of the medical commission, he needs to be transferred to another place of work in more suitable conditions. Despite the recommendations of the commission, the employee may not agree with the transfer to a position allowed to him for health reasons.

In this situation, the employer has the right to terminate contract of employment in accordance with Art. 77 of the Labor Code of the Russian Federation.

In this case, the following nuance must be observed. It concerns the case when an employee needs a temporary transfer for a period not exceeding 4 months. In this case, he cannot be dismissed before the expiration of 4 months, even if the employee does not agree to the transfer. He may not work, the salary will not be accrued, but the place of work for him will remain. When the restriction period ends, the employee has the right to freely return to his place.

Dismissal by court order

If a court decision on a ban on holding a certain position has entered into force with respect to an employee, the employer may offer a new position to which the restriction does not apply. The employee may not agree to the transfer proposal. In this case, the employer has the right to terminate the employment contract unilaterally.

Dismissal with a reduction in working hours

As a result of production and technological transformations at the enterprise, the employer may need to introduce a part-time regime. As a rule, this forced measure is introduced for up to six months in order to save jobs. Labor legislation establishes only an upper limit on the duration of working hours.

Work week cannot be longer than 40 hours. Its minimum duration is not prescribed either in the Labor Code or in other regulations.

When a reduced working time regime is introduced, it is necessary to inform the staff about the upcoming changes no later than 2 months in advance. This notice must be made in writing. Employer non-compliance deadlines allows the employee to challenge the decision to reduce work time in court, recover lost earnings and compensation for moral damage. Any changes regarding this issue should be recorded in the employment agreement.

The employee may not agree to the new working conditions. In this case, the employer offers him vacancies. If there are none, and the employee refuses to work on the terms of a reduced working week, the employer has the right to terminate the employment agreement unilaterally.

Dismissal upon change of ownership or reorganization of a legal entity

When changing employers, dismissal occurs as follows:

Dismissal upon change of essential conditions

In certain cases, the employer may make significant changes to the provisions of the employment contract. These include:

• place of work;
• the date when you should start performing your professional duties;
• job title, profession;
• rights, obligations of the parties to the contract;
• working conditions, payment, compensation payments, social insurance.

With these changes, the employer will have to fulfill certain obligations:

• notify the employee in writing about the change in conditions in advance (2 months in advance). Exceptions to the deadlines apply to employers-individuals (for them, the period is 2 weeks) and employers-religious organizations (a week). The employee must answer whether he agrees to continue working in the new conditions. The reflection time is not limited by law, so the employee can give an answer by the end of the two-month period;
• with the intention of further cooperation, draw up a new labor agreement;
• in case of refusal to work in the changed conditions, offer the employee vacancies that he can occupy, taking into account his qualifications and professionalism.

Answers to current questions

Question number 1. How to formalize the dismissal of an employee of his own free will in the event of a reorganization of a legal entity?

First of all, an employee who has expressed a desire to terminate the employment agreement must write a statement about this. Based on the application, a dismissal order is issued. As a basis, the following wording can be proposed: "... the employment contract was terminated in accordance with Article 77, clause 6 of the Labor Code of the Russian Federation due to refusal to work due to a change in departmental subordination." Read also the article: → "The procedure for the dismissal of employees during the reorganization of the enterprise."

Question number 2. As a result of the reorganization (merger), the employee moves from one enterprise, which is part of the holding, to another. How to make such a transfer?

In this case, it is correct to draw up not a transfer, but a dismissal under Article 77 of the Labor Code of the Russian Federation with further employment in a new organization.

Question number 3. The employer, referring to the emergency situation, transferred the employee to new position for a period of a month. The position is not covered by the labor agreement. The employee did not sign the consent to the transfer. Is the employer's actions legal?

Yes, the employer's actions are justified labor law. If he has evidence of the emergency of events (accident, catastrophe, etc.), then transfer to another position without the consent of the employee for up to a month is allowed.

Question number 4. What compensation payments can an employee who refuses to transfer to another place expect upon dismissal?

To compensate for unused vacation and an allowance based on the average two-week salary.

Question number 5. When drawing up a new staffing table, the position was abolished. The person who occupied it was offered a vacancy, but with a lower salary. What payments are due to the employee if he does not agree with the new working conditions. Can an employee count on a new position for the previous salary?

When reducing the position, the employee must be provided with vacancies in the organization. In the absence of a position of equal pay, all vacant positions are offered to him. When an employee agreed to a lower salary option according to staffing, then he will not be able to demand an increase in payment to the previous level. If an employee refuses the offered vacancies, then he is entitled to the payments provided for upon dismissal due to staff reduction.

Can I refuse a temporary transfer to another position?

I work as a teacher-psychologist in a preschool educational institution. The manager threatens to transfer me to educators without my consent by order. I do not lose in salary, but for personal reasons I cannot agree! Does she have the right to do so, and if so, for how long?

Can I refuse?

No one can transfer you to another job without your consent, for any period of time.

Labor Code Russia - Article 72.1. Transfer to another job. moving

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.

Article 72.2. Temporary transfer to another job

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.

the actions of the manager (employer) are not legal.

if this happens, you have the right to file a complaint with the Department of Labor. to the prosecutor's office and the court

Can an employee refuse to be transferred to another position

Can an employee refuse to be transferred to another position

You ask: "How to refuse this position and stay in the same one?"

It's very simple - to refuse and that's it.

The transfer of an employee to a job (position) is possible only with the written consent of the employee. I quote you for greater persuasiveness of Art. 72.1. TC RF:

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Transfer to another position - LEGAL ADVICE

Good evening Anna Nikolaevna. On the basis of Article 72.1 of the Labor Code of the Russian Federation, transfer to another job is allowed only with the written consent of the employee, with the exception of cases provided for by parts two and three of Article 72.2 of this Code.

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.

Consequences of the employee's refusal to transfer to another permanent job or the absence of a suitable job for the employer

So, in particular, dismissal due to redundancy (clause 2, part 1, article 81 of the Labor Code of the Russian Federation) or due to the employee’s inconsistency with the position held (work performed)

If there is no such job, then a vacant lower-level or lower-paid job is proposed in writing, which the employee can perform, taking into account his qualifications and state of health. The worker again refuses the vacant subordinate offered to him and lower paid position, then now you can, in accordance with paragraph 7 of Article 77 of the Labor Code of the Russian Federation, terminate the employment contract with the employee.

The article was written based on materials from sites: pravo21vek.ru, pravoved.ru, www.9111.ru, online-buhuchet.ru, propuskspb.ru.

Hello Irina.

In accordance with Article 57 of the Labor Code of the Russian Federation, an employment contract must necessarily indicate the place of work, 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 area, the place of work indicating a separate structural unit and its location.

Based on this, the wording mentioned in your question "the city of Kazan, as well as retail outlets where official duties employee", from which it follows that your work must be performed not only in Kazan, but also in other settlements, is void, i.e. invalid, or it can only be understood as an opportunity to perform work in outlets located outside Kazan during business trips.

Under these circumstances, the only legal basis for transferring you to permanent job in another, besides Kazan, a settlement can only be article 74 of the Labor Code of the Russian Federation:

Article 74

In the event that, for reasons related to 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 work function of the employee.

The employer is obliged to notify the employee in writing about upcoming changes in the terms of the employment contract determined by the parties, as well as about the reasons that necessitated such changes, at least two months in advance, unless otherwise provided by this Code.

If the employee does not agree to work in the new conditions, the employer is obliged in writing to offer him another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job), which the employee can perform taking into account his health status. 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 localities, if it is provided for by the collective agreement, agreements, labor contract.

In the absence of the specified work or the refusal of the employee from the proposed work, the employment contract is terminated in accordance with paragraph 7 of the first part of Article 77 of this Code.

In the event that the reasons specified in part one of this article may lead to the mass dismissal of employees, the employer, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner prescribed by Article 372 of this Code, to adopt local regulations , introduce a part-time (shift) and (or) part-time working week for up to six months.

If the employee refuses to continue working part-time (shift) and (or) part-time working week, then the employment contract is terminated in accordance with clause 2 of part one of Article 81 of this Code. At the same time, the employee is provided with appropriate guarantees and compensation.

Cancellation of the part-time (shift) and (or) part-time working week regime earlier than the period for which they were established is carried out by the employer, taking into account the opinion of the elected body of the primary trade union organization.

Changes in the terms of the employment contract determined by the parties, introduced in accordance with this article, should not worsen the position of the employee in comparison with the established collective agreement, agreements.

Article 77. General grounds for termination of an employment contract

The grounds for termination of an employment contract are:

... 7) the employee's refusal to continue working in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code).

In this regard, we recommend that you apply for a legal assessment of the actions of the employer named in your question to the prosecutor's office and the State Labor Inspectorate. If they confirm the legitimacy of these actions, you can refuse the transfer offered to you, and in this case, the employer will have the right to terminate the employment contract concluded with you in accordance with paragraph 7 of part one of Article 77 of the Labor Code of the Russian Federation, paying you a severance pay upon dismissal in the amount of two weeks of average earnings (Article 178 of the Labor Code of the Russian Federation).

If the vacation date comes after the announced reduction date, then the employee can be dismissed on a general basis. Is it possible to lay off an employee who is hired on parental leave of the main employee No, it is not possible. When carrying out redundancy measures, the employer reduces the position (staff), and not the specific employee who occupies it (clause 2, part 1, article 81 of the Labor Code of the Russian Federation). An employee who is on leave to care for a child under three years of age retains a workplace (position) (part 4 of article 256 of the Labor Code of the Russian Federation). At the same time, the adoption of an employee who is on parental leave, a new, temporary employee, the number of jobs at this employer does not increase and does not entail the emergence of new jobs (paragraph 2, part 1, article 59 of the Labor Code of the Russian Federation). At the same time, a ban was established on the reduction of the position of women with children under the age of three (Article 261 of the Labor Code of the Russian Federation).

Dismissal upon refusal of transfer

However, the dismissal of a disabled employee is possible if the percentage of the quota for hiring disabled people is maintained, that is, when reducing a disabled person, it is necessary to maintain the total number of jobs for them by introducing new quota places.

Important

In addition, the employer must take into account guarantees, in particular preemptive right to leave at work, with the reduction of employees who received a disability as a result of an accident at work or occupational disease.

How to refuse a transfer to another position?

And only according to the medical report, after the employee refuses to transfer, any termination of the employment agreement with him will be required or even followed.
Pay Special attention that the termination of any employment agreement, but not for the refusal to carry out the transfer, but in consequence of this any such refusal.
And in accordance with any formal basis for terminating the employment agreement, it will be the reduction in the number approved in the legislation, as well as the staff, in accordance with the necessary record and only through the payment of severance pay.

Attention

In this article, you learned about .

Refusal to transfer to another position

The procedure for dismissing an employee on the basis of a reduction in headcount or staff is carried out as follows.

Necessary:

• issue an order to reduce the number or staff and prepare a new staffing table;
• determine whether any of the employees has a preferential right to remain at work;
• create a list of reduced employees (positions);
• notify the employee of the upcoming dismissal (p.

  2 tbsp. 180, part 2 of Art. 292, part 2 of Art. 296 of the Labor Code of the Russian Federation);

• offer the employee another vacant position (part 3 of article 81, part 1 of article 180
• arrange the transfer of those employees who agreed to take other positions (Art.

  72.1 Labor Code of the Russian Federation);

• notify about upcoming reduction trade union (if it exists in the organization) and report it to the employment service (part
  1 st. 82 of the Labor Code of the Russian Federation, paragraph 2 of Art. 25 of the Law of April 19, 1991

How to apply for a transfer to another position

The reflection time is not limited by law, so the employee can give an answer by the end of the two-month period;

• with the intention of further cooperation, draw up a new labor agreement;
• in case of refusal to work in the changed conditions, offer the employee vacancies that he can occupy, taking into account his qualifications and professionalism.

Answers to current questions Question №1.

How to formalize the dismissal of an employee of his own free will in the event of a reorganization of a legal entity? First of all, an employee who has expressed a desire to terminate the employment agreement must write a statement about this.

Based on the application, a dismissal order is issued. As a basis, the following wording can be proposed: "... the employment contract was terminated in accordance with Article 77, clause 6 of the Labor Code of the Russian Federation due to refusal to work due to a change in departmental subordination."

not found

At the same time, it is forbidden to change the labor function of an employee.

This is stated in part 1 of article 74 of the Labor Code of the Russian Federation. The difference between a transfer and a transfer When transferring, there is a change in the terms of the employment contract and the employee's job function.

An employee is considered transferred to a new position in the same organization (without changing location) if at least one of the following conditions is met:

• change of the labor function provided for by the employment contract.

  At the same time, the place of work may change or remain the same;

• change in the structural unit in which the employee works. In the case when the structural unit as the place of work was indicated in the employment contract with the employee.

Translation is allowed only with the written consent of the employee. It is forbidden to transfer an employee to work that is contraindicated for him for health reasons.

Transfer to another position

Its minimum duration is not prescribed either in the Labor Code or in other regulatory acts. When a reduced working time regime is introduced, it is necessary to inform the staff about the upcoming changes no later than 2 months in advance. This notice must be made in writing. Non-observance by the employer of the established deadlines allows the employee to challenge the decision to reduce the working time in court, recover lost earnings and compensation for moral damage.

Any changes regarding this issue should be recorded in the employment agreement.

The employee may not agree to the new working conditions.

In this case, the employer offers him vacancies.

If there are none, and the employee refuses to work on the terms of a reduced working week, the employer has the right to terminate the employment agreement unilaterally.

How to refuse a transfer to another position

No 77 of the Labor Code of Russia, then in case of any termination of this employment agreement on one of the general grounds, the employee during dismissal actions will be paid a certain severance pay in the amount of two weeks of earnings.

The same is provided for in stat. No. 178 of the Labor Code of Russia.

Another thing may be the moment when the employee himself quits for one reason or another, which were also provided for in accordance with the Labor Code of Russia, including the grounds that the employee owns during employment.

Before you completely terminate the main labor agreement with an employee, you can try to subsequently transfer him to a completely different work activity.

Refusal to transfer to another position

Dismissal by a court decision If a court decision on a ban on holding a certain position has entered into force with respect to an employee, the employer can offer a new place to which the restriction does not apply.

The employee may not agree to the transfer proposal.

In this case, the employer has the right to terminate the employment contract unilaterally. Dismissal due to reduction of working time As a result of production and technological transformations at the enterprise, the employer may need to introduce a part-time regime.

As a rule, this forced measure is introduced for up to six months in order to save jobs.

Labor legislation establishes only an upper limit on the duration of working hours. The working week cannot be longer than 40 hours.

Refusal to transfer to another position in case of reduction

• family, which contain two or more disabled family members who are fully supported by them (for example, an employee has two minor children);
• employees in whose family there are no other people with independent earnings;
• employees who have received an industrial injury or occupational disease in this organization;
• disabled people of the Great Patriotic War and invalids of military operations for the defense of the Fatherland;
• employees who improve their skills in the direction of the employer on the job;
• employees affected by the Chernobyl accident;
• employees exposed to radiation due to nuclear tests at the Semipalatinsk test site;
• employees discharged from military service, provided that they first got a job.

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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 normal conditions life of a group of the population. (i.e. only in emergency situations, when 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 thereof, 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]

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 translation into vacant positions in other departments and positions. What to do if an employee refuses to transfer?

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