Transfer of an employee with his consent to another employer. We transfer the employee at his request to another employer. Entry into the labor record: dismissal by transfer

In fact, in paragraph 5 of part 1 of Art. 77 of the Labor Code of the Russian Federation specifies two grounds for dismissing an employee.
The first is the transfer of an employee, at his request or with his consent, to work with another employer.
Secondly, this is a transfer to an elective job (position).
To dismiss by way of transfer to another employer, the consent, expressed in writing, of three persons is required: the employer, the employee and the future employer inviting the employee to work.
Initially, the future employer sends a letter to the current employer with a request to terminate the employment contract with a specific employee whom he wants to hire. When an employee is dismissed by transfer, the new employer has an obligation to hire the invited employee within one month from the date of dismissal from the previous place of work. This is stated in Art. 64 of the Labor Code of the Russian Federation. At the same time, he is prohibited from establishing a probationary period (Article 70 of the Labor Code of the Russian Federation).
The current employer may refuse the letter received. In this case, if the transfer is caused by the initiative of the employee, he can terminate the employment contract at his own request. In the same case, when the employer agrees to the transfer, it is also necessary to take into account the employee’s opinion.
If the transfer is caused by the initiative of the employee, then usually he writes an application addressed to the current employer immediately and attaches a letter requesting a transfer from the new employer.
If the transfer is not the employee’s initiative, then the current employer offers the employee the transfer, and if he agrees, he expresses this in writing. Then the dismissal procedure begins in the order of transfer on the basis of clause 5, part 1, art. 77 of the Labor Code of the Russian Federation.
Dismissal is formalized in the general manner by issuing an order in the unified form N T-8. In the column “base (document, number, date)” indicate the details of three documents:
- letters from the new employer requesting a transfer;
- consent of the current employer to the transfer;
- the employee’s statement or consent to the transfer.
As a basis for termination of an employment contract, the work book, dismissal order and personal card indicate that the employment contract was terminated due to the transfer of the employee at his request or with his consent (specified specifically) to work for another employer on the basis of clause 5 of Part 1 Art. 77 of the Labor Code of the Russian Federation.
In the same case, when an employee is selected for a certain job or position, the employment contract with the former employer is terminated in connection with the transfer to an elective job (position). Unlike the first situation, in this case the former employer’s consent to the transfer is not required. In other words, if an employee presents an act of election to an elective job (position), the employer is obliged to terminate the employment relationship with him on this basis.
An order to terminate an employment contract in Form N T-8 is drawn up indicating the details of the act on the election of an employee to a position (job), as well as the employee’s application for transfer to an elective job (position).
The wording of the grounds for termination of the employment contract in the work record book, personal card and dismissal order specifies:
- the employment contract was terminated due to transfer to an elective position on the basis of clause 5, part 1, art. 77 Labor Code of the Russian Federation;
- or the employment contract is terminated due to transfer to elective work on the basis of clause 5, part 1, art. 77 of the Labor Code of the Russian Federation.
On the last day of work of an employee dismissed by transfer to an elective job (position) or to a new employer, the former employer is obliged to issue him a work book, as well as make a full payment. According to Art. 140 of the Labor Code of the Russian Federation, if the employee did not work on the last day, then the amounts due must be paid no later than the next day after the dismissed employee submits a request for payment. In the event of a dispute about the amounts of these amounts, the employer is obliged to pay the amount not disputed by the employee.

Transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position)

Clause 5, Part 1, Art. 77 of the Labor Code, which establishes such grounds for termination of an employment contract as the transfer of an employee with his consent or at his request to another employer, is applied when there is a clearly expressed written will of three subjects: the administration of the new place of work, inviting to work, the given employee, the transferring from one place of work to another in the order of transfer, and the administration of the previous place of work releasing this employee in the order of transfer to another organization. Then the employment contract with him is terminated at his previous place of work under clause 5, part 1, art. 77. At the new place they can no longer refuse to hire him.

In accordance with paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (as amended on December 23, 2006 No. 63), structural divisions should be understood as branches, representative offices, as well as departments, workshops, sections, etc., and under another locality - an area outside the administrative-territorial boundaries of the corresponding locality.

Transfer to another job is permitted only with the written consent of the employee, except for the cases provided for in parts 2 and 3 of Art. 72.2 of the Code.

At the written request of the employee or with his written consent, he may be transferred to a permanent job with another employer. In this case, the employment contract at the previous place of work is terminated (clause 5, part 1, article 77 of the Labor Code of the Russian Federation).

Transfer to another job is divided into types:

Transfer permanent and temporary;

Transfer from a given employer, transfer to another employer;

Transfer to another location together with the employer;

Transfer at the initiative of the employee, at the initiative of the employer, at the initiative of the relevant government bodies and officials (for example, the state labor inspector).

Moving him from the same employer to another workplace, to another structural unit located in the same area, assigning him work on another mechanism or unit, if this does not entail a change in the labor conditions determined by the parties, is not considered a transfer and does not require the consent of the employee. agreement.

It is also important to take into account that a worker means a place where an employee must be or where he needs to arrive in connection with his work, which is directly or indirectly under the control of the employer (Article 209 of the Labor Code of the Russian Federation). Article: Changing the employment contract: issues of theory and practice, improving Chapter 12 of the Labor Code of the Russian Federation (Petrov A.Ya.) ("Legislation and Economics", 2009, No. 5)

Clause 5, Part 1, Art. 77 of the Labor Code contains another basis for termination of an employment contract - transfer to an elective job (position). For this basis, an act of election of this employee to an elective job (position) exempt from production work is required. The previous and this grounds for dismissal, as we see, differ significantly from each other. Therefore, in the dismissal order and in the employee’s work book there should be a reference not just to clause 5 of Art. 77 of the Labor Code, and with clarification on which of these two grounds the employee is dismissed.

Transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position)

So, according to clause 5, part 1, art. 77 of the Labor Code of the Russian Federation, the transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position) is the basis for termination of the employment contract.

In this case, the transfer is formalized by terminating the employee’s employment contract with one employer and concluding it with a new employer (or transferring to an elective position). With such a transfer, all relations with the previous employer are terminated, the employee is paid all compensation due to him, including for the remaining days of vacation. The relationship with the new employer begins anew, including the calculation of the length of service for vacation, and vacation is granted according to the rules of Part 2 of Art. 122 Labor Code of the Russian Federation. Confirmation of the above can be found in judicial practice.

Thus, the court considered that, at the written request of the employee or with his written consent, the employee can be transferred to a permanent job with another employer. In this case, the employment contract at the previous place of work is terminated (clause 5, part 1, article 77 of the Labor Code of the Russian Federation).

In another case, the court noted that the new employer to whom the employee is transferred by way of transfer is not the legal successor of the previous employer, and the responsibilities of the previous employer to pay compensation to the employee for unused vacation do not pass to him. Moreover, the design of Art. 140 of the Labor Code of the Russian Federation, which obliges the employer to pay the employee upon termination of the employment contract all amounts due to the latter upon dismissal (including compensation for unused vacation), does not allow the employer to assign this obligation to a third party.

According to the court, upon dismissal by transfer to another organization, the labor relations of employees with the employer are terminated under clause 5 of part 1 of Art. 77 of the Labor Code of the Russian Federation, in connection with which the norms of Art. 127 of the Labor Code of the Russian Federation, regulating the rights of employees to leave upon dismissal, according to which an employee can exercise his right to leave by receiving monetary compensation or by using leave with subsequent dismissal by transfer. At the same time, the new employer is not the legal successor of the previous employer, and is not responsible for the obligations of the latter, including in terms of paying compensation to employees for unused vacation.

To terminate an employment contract on the basis analyzed, the will of three subjects is required: the employer, the employee and the future employer.

Documentation of termination of an employment contract depends on who initiated the transfer: the employee or one of the employers. In the first case, the basis for termination of the employment contract will be the employee’s statement. In the second - the employee’s written consent to the transfer, stamped on the corresponding employer’s offer. But in any case, the required documents include a letter from the new employer, which will indicate that the employee will be hired. At the same time, the new employer cannot refuse to conclude an employment contract to employees invited in writing to work by way of transfer from another employer, within one month from the date of dismissal from their previous place of work (Article 64 of the Labor Code of the Russian Federation). This conclusion is confirmed by emerging judicial practice.

The court noted that in order to terminate an employment contract on the basis of transfer to another job, the request or consent of the employee is required. It does not follow from the case materials that the Education Committee of St. Petersburg was the initiator of the plaintiff’s transfer to the position of head of a department of a unified educational institution; The plaintiff did not provide evidence to support that she applied to the committee with a request to terminate the employment contract for the position of director of the lyceum in connection with the transfer to the position of head of the department to another legal entity (to another employer). On the contrary, on April 19, 2010, the plaintiff wrote a letter of resignation under Art. 80 Labor Code of the Russian Federation; calculation and payment of appropriate compensation were made in accordance with Art. 178 of the Labor Code of the Russian Federation in full and on the basis of the plaintiff’s statements.

In another case, the court considered that a legally significant circumstance in resolving the stated claims is the procedure for written agreement between the head of the organization from which the employee is transferred and the head of the organization to which he is transferred. At the same time, the mandatory requirements for a letter of request requesting the transfer of a given employee include indicating the date from which the employee is proposed to be hired for a new job and his new position.

The employee himself agreed to be dismissed by transfer, the employer who invited the employee expressed his intention to hire him in writing, and the former employer confirmed in writing his consent to dismiss the employee by transfer. Taking into account the presence of the above conditions, the judicial panel comes to the conclusion that the employers’ agreement to transfer the plaintiff to another organization is confirmed in writing. The approval was carried out by the appropriate persons, i.e. persons who have the right to hire and fire an employee.

It should be noted that the current employer is not obliged to dismiss an employee by transfer to a new employer at the request of the employee, but only has the right and he can refuse such a transfer to the employee. In this case, an employee who does not want to continue working may terminate the employment contract at his own request, in compliance with all the rules established for this.

In addition, according to clause 5, part 1, art. 77 of the Labor Code of the Russian Federation, transfer to an elective job (position) is also grounds for termination of an employment contract. Accordingly, to terminate an employment contract on this basis, the employer needs a document that confirms that the employee was actually selected for such a position.

In this case, unlike a transfer to another employer, the organization is not required to agree to terminate the employment contract on this basis. Having received from the employee a corresponding application with the attachment of a document confirming his election to an elective job (position), he is obliged to terminate the employment contract. At the same time, the Labor Code of the Russian Federation does not specify what kind of elective work (position) we are talking about. In this regard, we believe that termination of an employment contract on this basis is possible when an employee is elected to any position (teacher, deputy, etc.).

It must be taken into account that in accordance with Art. 375 of the Labor Code of the Russian Federation, an employee released from work in an organization or an individual entrepreneur in connection with his election to an elective position in the elective body of a primary trade union organization (released trade union employee) is given his previous job (position) after the end of his term of office. If there is no such job (position), then with the written consent of the employee, he may be provided with another equivalent job (position) from the same employer.

If such a job (position) cannot be provided (the organization has been liquidated, the individual entrepreneur has ceased to operate, there is no such job (position), then the all-Russian (interregional) trade union retains for this employee his average earnings for the period of employment, but not more than six months, and in case of education - for a period of up to one year. If an employee refuses the proposed corresponding job (position), his average earnings for the period of employment are not retained, unless otherwise established by a decision of the all-Russian (interregional) trade union.

According to the Constitutional Court of the Russian Federation, the guarantee provided for in Part 1 of Art. 375 of the Labor Code of the Russian Federation, in the form of providing trade union workers released from work in the organization due to election to elective positions in trade union bodies, their previous work (position) after the end of their term of office is an element of the legal mechanism ensuring the implementation of the constitutional right to associate in trade unions, and also freedom of activity of trade unions. The implementation of this guarantee involves imposing on the employer, as a party to the social partnership, the obligation to provide the released trade union worker with his previous job (position) after the end of his term of office under the conditions and in the manner prescribed by the norms of the Labor Code of the Russian Federation.

Thus, in the case under consideration, the employer will have to rehire such an employee, taking into account the requirements provided for by the Labor Code of the Russian Federation for hiring.

The legislation of the Russian Federation provides similar guarantees for other categories of workers. In particular, a member of the Federation Council, a deputy of the State Duma, who worked before being elected (appointed) as a member of the Federation Council, elected as a deputy of the State Duma under an employment contract, after the termination of their powers, is provided with the previous job (position), and in its absence - another equivalent job (position ) at a previous place of work or with their consent in another organization.

Let us highlight one more point. When terminating an employment contract at the initiative of an employee, the person resigning can withdraw his application at any time before the expiration of the notice period for dismissal (Article 80 of the Labor Code of the Russian Federation). Dismissal in this case is not carried out unless another employee is invited in his place in writing, who cannot be denied an employment contract. Quite often, after submitting a resignation letter, employers invite an employee from another organization as a transfer to the resigning employee’s place and refuse their employee to withdraw the application. Meanwhile, such a refusal is legal only if the employee invited by way of transfer has already resigned from his previous job.

The courts, when reinstating employees who were dismissed at their own request, in such a situation draw attention to the fact that the obligation voluntarily assumed by the employer to hire another employee is not a basis for refusing to exercise the right to withdraw the application. If another employee was invited in writing and has already been dismissed from his previous job, the former employee does not have the right to withdraw his resignation letter.

In conclusion, it should be noted that the procedure for terminating an employment contract in connection with the transfer of an employee to another employer by the Labor Code of the Russian Federation is not sufficiently regulated, so in practice difficulties arise: in particular, what should a resignation letter look like, how to formalize an agreement with another employer to whom it is planned to transfer employee? These circumstances, in order to ensure uniform application of labor legislation, predetermine the need to introduce an additional article into the Labor Code of the Russian Federation regulating this procedure.



Agreement

Agreement

noun, With., used compare often

Morphology: (no) what? agreement, what? consent, (see) what? agreement, how? consent, about what? about consent

1. By consent They call a community of points of view, a mutual agreement on something.

General, mutual, complete, mutual consent. | Agreement on views on raising children. | We finally came to an agreement. | If no agreement is reached, the dispute is resolved in court.

2. Tacit consent they call the coincidence of someone’s opinions, reactions to something that is not expressed in words.

By tacit agreement this topic was not touched upon. | Beware of the indifferent - with their tacit consent, betrayal and murder exist on earth.

3. Phrase Silent means consent means that someone’s reluctance to answer or react to something is equated by the interlocutor with approval, permission.

4. By consent call someone's permission, an approving reaction to someone's actions.

Express your consent. | Give consent to the operation. | Someone's consent is required for something. | Obtain parental consent to marry someone. | Phone numbers are changed without any consent of the subscriber.

5. If anything is done with consent someone, this means that someone approves, supports someone’s actions.

Dispose of the apartment with the consent of the owner.

6. By consent are called peaceful, friendly relations between someone.

Good agreement. | Consent between husband and wife. | Live in harmony. | Peace and harmony reign in their families.

7. If someone, for example, nods their head as a sign of agreement, then this means that this person tacitly agrees with someone, approves of someone’s plans, actions, etc.

8. If anyone is in (full) agreement with someone, with something, then this means that this person does not oppose anyone, anything.

The decision is in full agreement with the law. | Act in accordance with the decision made.

Explanatory dictionary of the Russian language by Dmitriev. D. V. Dmitriev. 2003.

Synonyms:

Antonyms:

See what “consent” is in other dictionaries:

CONSENT is a specific form of interaction of objects and processes, reflecting the spontaneous and conscious combination of opposites, their correlation with each other / achieving harmony, symmetry and proportionality of the parts of the whole in... ... Philosophical Encyclopedia

- (consent) Agreement or absence of objections. More precisely, it is the application of the will of the actor to any action, proposal or result in which this person assumes (or shares) responsibility for the consequences... ... Political science. Dictionary.

Unanimity, like-mindedness, one-mindedness, strike, solidarity, unanimity, unity, peace, agreement, agreement, modus vivendi; proportionality, uniformity, correspondence, consonance, harmony, mode, symmetry, symphony, unison, ensemble, concert;… … Synonym dictionary

Agreement- Agreement ♦ Acceptance To agree means to make one’s own, to accept, to recognize, to say “yes” to what is or will be. This is the only way to live, as the ancient Greeks said, gomologoumenos, that is, in inextricable harmony with nature and reason... Sponville's Philosophical Dictionary

CONSENT, consent, cf. 1. units only An affirmative answer to a request for something. To do or ask for permission to do something. Do it, permission. Give consent to something. Express your consent to do something. "Silence is a sign... ... Ushakov's Explanatory Dictionary

- (acceptance) 1. A signature on a bill of exchange, confirming that the person to whom it is issued agrees with the terms of the bill. The following is usually written: Accepted, payable at... (name and address of the bank). (Signature) … Dictionary of business terms

Soullessness, lawlessness, theology, traitor, forerunner, conscience, consent. [...] the vast majority of literary monuments surviving from the Rus of the Kievan period reflect Byzantine-Bulgarian influence. In the Church Slavonic language there was... ... History of words

CONSENT, I, cf. 1. One of the movements within the Old Believer sense (special). 2. Permission, an affirmative response to a request. Give s. what n. With the consent of the boss (having his consent). Silence is a sign of consent (last). 3. Like-mindedness, community... ... Ozhegov's Explanatory Dictionary

Agreement- Ethical requirement, according to which all participants in the experiment or patients must agree with the upcoming procedures. In the context of experimental research, this also implies that participants may withdraw from the experiment... ... Great psychological encyclopedia

agreement- express agreement demonstration give consent action give consent action achieve agreement action, causation wait for agreement modality, expectation achieve agreement action achieve agreement action, begin to express... ... Verbal compatibility of non-objective names

Wiktionary has an entry for “consent.” Consent is a positive response to a request, like-mindedness. Agreement (interpretation) means ... Wikipedia

Books

• Consent to medical intervention is a patient’s right and a medical professional’s responsibility
• Consent to medical intervention is the right of the patient and the obligation of the medical worker (Russian legislative framework on the patient’s right to inform voluntary consent to medical IM, Filippov Yuri Nikolaevich, Abaeva Olga Petrovna, Tarychev Vladislav Vitalievich. This textbook contains an overview of the modern regulatory framework that determines the implementation procedure the patient’s rights to informed voluntary consent, algorithm for registration of this...