Coordination of translation
An employee can be transferred to a permanent job in another organization by mutual decision of the current employer and the receiving organization. In this case, the initiator of the transfer can be either the employer or the employee. This is stated in Part 2 of Article 72.1 of the Labor Code of the Russian Federation.
This transfer occurs through dismissal from the previous place of work, since in another organization a new employment contract is concluded with the employee (part 4 of article 64 and part 2 of article 72.1 of the Labor Code of the Russian Federation).
The procedure for transfer through dismissal is not clearly stated in the Labor Code of the Russian Federation, but a certain practice has developed in its execution. The transfer must be preceded by a written agreement procedure between the head of the organization from which the employee is transferred and the head of the organization to which he is transferred.
Rules for settlements with employees
When employees are transferred to another company, they are fired from their previous place of employment. The former employer must pay the employees the necessary funds. The procedure is performed directly on the day of dismissal. The following payments are listed:
- salary determined depending on the actual days worked in the company;
- vacation compensation.
No severance pay is awarded for such dismissal. Along with the money, the employee is provided with a 2-NDFL certificate containing information about the average earnings of a citizen at his previous place of work.
Translation by decision of organizations
If the transfer of an employee is carried out by decision of the organizations (current and receiving), the hiring and dismissal procedure will be as follows. To begin with, the head of the organization where the employee is being transferred must send a letter of request to the organization where he currently works, requesting his transfer. The request must indicate the date from which the employee is expected to be hired for a new job and his new position. Having received a letter of request, the head of the organization where the employee works is obliged to agree with the subordinate on the possibility of transfer.
If the employee agrees, he writes a letter of resignation in connection with the transfer, to which is attached a letter of request. This statement will be proof that he has expressed his consent to the transfer in writing. Then the head of the organization where the employee works must send a confirmation letter to the other organization.
From this moment on, it is possible to dismiss an employee from his previous place of work and hire him for a new job.
A pregnant employee, with her written consent, can also be transferred to another organization. The legislation does not contain such a prohibition. Complete the translation in the usual manner.
Situation: is it possible to dismiss an entire department by transfer to another organization?
Yes, you can.
The Labor Code of the Russian Federation does not prohibit dismissing an entire department by way of transfer (Part 2 of Article 72.1 of the Labor Code of the Russian Federation). In this case, the desire of the new manager to hire several employees can be expressed in one letter of request addressed to the current manager. It can list all the citizens whom he is ready to employ.
Benefits for employees
Transferring to other companies has many advantages for hired specialists. These include:
- the citizen is guaranteed to find a new place of employment;
- The employer cannot use a probationary period for a new employee, so the citizen is immediately registered as a member of the staff;
- there is no requirement to work the required two weeks at your previous job;
- there is no interruption of work experience.
If the initiator of dismissal of an employee by transfer to another organization is the current employer, then the specialist may refuse such an offer if he does not like the proposed conditions. If an employee refuses, the head of the company cannot apply any punitive measures to him.
Transfer at the initiative of the employee
If an employee himself has asked to be transferred to work in another organization, then the first link in the chain of approval of the transfer will be the employee’s application. Then the head of the organization where the employee works must inform in writing about the subordinate’s desire to the head of the organization to which the employee wants to move and obtain his consent. Further, the dismissal and hiring procedures are carried out according to general rules.
Attention: it is impossible to refuse to conclude an employment contract for an employee invited to work as a transfer from another organization. This prohibition is valid for one month from the date of dismissal from the previous place of work. This procedure is specified in Article 64 of the Labor Code of the Russian Federation.
Thus, if the new manager refuses employment to the transferred employee, this will be a violation of labor laws. For this, the labor inspectorate may fine the organization or its officials.
The fine is:
- for officials of the organization (manager) – from 1000 to 5000 rubles. (repeated violation entails a fine of 10,000 to 20,000 rubles or disqualification for a period of one to three years);
- for entrepreneurs – from 1000 to 5000 rubles. (repeated violation entails a fine of 10,000 to 20,000 rubles);
- for an organization – from 30,000 to 50,000 rubles. (repeated violation entails a fine of 50,000 to 70,000 rubles).
Such measures of liability are provided for in parts 1 and 4 of Article 5.27 of the Code of the Russian Federation on Administrative Offenses.
In addition, such a refusal could lead to problems for the former manager. An employee who has received a refusal has the right not only to appeal this refusal in court, but also to demand reinstatement at his previous place of work (Article 394 of the Labor Code of the Russian Federation). In this case, the organization must pay the reinstated employee the time of forced absence in the amount of average earnings. This is stated in paragraph 60 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.
The court may also oblige the organization to compensate an illegally dismissed employee for moral damages. The amount of compensation for moral damage is determined by the court and indicated in its decision. In this case, judges must take into account the nature of the harm caused to the employee and the degree of guilt of the organization (clause 63 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).
If the dismissal was declared illegal, the employee must be reinstated.
Conditions of the procedure
The transfer of an employee to another organization must be subject to the satisfaction of certain conditions. These include:
- the employment contract drawn up with the first employer is necessarily terminated;
- Due to the formation of a new contract, working conditions may change significantly, so there are no guarantees that the salary will remain at the same level or increase;
- such dismissal is permitted only with the voluntary consent of a direct employee of the company;
- a specialist can agree in advance on working conditions and payment with the intended employer;
- In order for the employee to have additional guarantees, it is recommended to request from the company where the transfer is planned a special letter of request, which will indicate the specific position for which the citizen will be employed;
- the new manager cannot refuse to employ an employee after transmitting an official offer, since otherwise he will have to face a fine of 30 to 50 thousand rubles. and a penalty may also be applied in the form of suspension of the company's work for up to 90 days.
Before changing jobs, each person must assess their capabilities and prospects, and only after that the employee is transferred to another organization. Vacation at a new place of work is provided on general terms, so to obtain it you will have to work in the company for at least 6 months. At the previous place of work, upon termination of the employment relationship, compensation for unused vacation will be paid.
Dismissal from a previous employer
When transferring an employee to work in another organization, the previous organization must:
- issue an order to terminate the employment contract in connection with the transfer using the unified form No. T-8 or an independently developed form (Part 4 of Article 9 of the Law of December 6, 2011 No. 402-FZ, letter of Rostrud of February 14, 2013 No. PG/1487-6-1);
- close the employee’s personal card;
- make an entry in the employee’s work book. “Dismissed by transfer to (name of organization) with the consent of the employee, paragraph 5 of part 1 of Article 77 of the Labor Code of the Russian Federation,” if the employee was transferred by decision of the organization. If the employee was transferred on his own initiative, you need to make an entry: “Dismissed by transfer to (name of organization) at his request, paragraph 5 of part 1 of Article 77 of the Labor Code of the Russian Federation.” This follows from part 5 of article 84.1 and part 2 of article 72.1 of the Labor Code of the Russian Federation, paragraph 6.1 of the Instructions approved by Resolution of the Ministry of Labor of Russia of October 10, 2003 No. 69, paragraph 15 of the Rules approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225.
How to make an application?
If the initiator is a direct employee, then he submits to the employer an application to transfer the employee to another organization. This document includes information:
- date of formation;
- Full name and position held in the company;
- the reason for dismissal represented by a change of place of work;
- please complete the transfer according to the Labor Code, which will not require work from the company employee.
The application must be accompanied by an offer from the new company. Usually, in such conditions, employers accommodate employees halfway and therefore do not require them to work off.
Reception by a new employer
If an employee is transferred to work from another organization, the receiving organization must:
- draw up an employment contract with a citizen (Article 67 of the Labor Code of the Russian Federation);
- issue an order for employment using a unified form No. T-1 (No. T-1a) or an independently developed form (Article 68 of the Labor Code of the Russian Federation, Part 4, Article 9 of the Law of December 6, 2011 No. 402-FZ, letter Rostruda dated February 14, 2013 No. PG/1487-6-1);
- create a personal card;
- make an entry about hiring in the employee’s work book: “Accepted to (name of structural unit) for position (name) in the order of transfer from (name of organization)” (clauses 3.1 and 6.1 of the Instructions approved by the resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69).
An example of a transfer to a permanent job in another organization
The head of the Alpha organization invited economist A.S. as a transfer from the Hermes organization. Kondratieva (request letter). The head of Hermes agreed, and the employee himself was not against it. Kondratyev wrote a letter of resignation, about which the head of Hermes sent a confirmation letter.
The head of Hermes issued a dismissal order in connection with the transfer in form No. T-8. A record of dismissal due to the transfer was entered into the work book.
The head of Alpha issued an order to hire Kondratiev. A record of employment in connection with the transfer was made in the work book.
Situation: is it possible to establish a probationary period when transferring an employee to a permanent job in another organization?
No you can not.
This is directly stated in Article 70 of the Labor Code of the Russian Federation. If you include this condition in the employment contract, it will not apply (Article 9 of the Labor Code of the Russian Federation).
Attention: if, when transferring an employee to a permanent job in another organization, a probationary period is established for him, labor laws will be violated.
For this violation, the labor inspectorate may fine the organization or its officials. The fine is:
- for officials of the organization (for example, a manager) - from 1000 to 5000 rubles. (repeated violation entails a fine of 10,000 to 20,000 rubles or disqualification for a period of one to three years);
- for an entrepreneur – a fine in the amount of 1,000 to 5,000 rubles. (repeated violation entails a fine of 10,000 to 20,000 rubles);
- for an organization – from 30,000 to 50,000 rubles. (repeated violation entails a fine of 50,000 to 70,000 rubles).
Such measures of liability are provided for in parts 1 and 4 of Article 5.27 of the Code of the Russian Federation on Administrative Offenses.
