Transfer of an employee with his consent to another employer. We transfer the employee at his request to another employer. Record in the labor: 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 the dismissal of an employee.
The first is the transfer of an employee at his request or with his consent to work for another employer.
Second, this is a transfer to elective work (position).
For dismissal 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 is obliged 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, it is forbidden for him to establish a probationary period (Article 70 of the Labor Code of the Russian Federation).
The current employer may refuse to receive a letter. 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 opinion of the employee.
If the transfer is caused by the initiative of the employee, then he usually 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 initiative of the employee, then the current employer offers the employee a transfer, and if he agrees, he expresses this in writing. Then the dismissal procedure begins in the order of transfer on the basis of paragraph 5 of part 1 of Art. 77 of the Labor Code of the Russian Federation.
Dismissal is issued in the general manner by issuing an order in a unified form N T-8. In the column "base (document, number, date)" indicate the details of three documents:
- Letters from a new employer requesting a transfer;
- the consent of the current employer to the transfer;
- statements of the employee or his consent to the transfer.
As a basis for terminating the employment contract in the work book, dismissal order and personal card indicate that the employment contract was terminated in connection with the transfer of the employee at his request or with his consent (specified specifically) to work for another employer on the basis of paragraph 5 of part 1 Art. 77 of the Labor Code of the Russian Federation.
In the same case, when an employee has been chosen for a specific job or position, the employment contract with the former employer is terminated due to the transfer to an elective job (position). Unlike the first situation, in this case, the consent of the former employer for the transfer is not required. In other words, if an employee presents an act on his election to an elective job (position), the employer is obliged to terminate the employment relationship with him on this basis.
The order to terminate the employment contract in the form N T-8 is drawn up with the details of the act on the election of the employee to the position (job), as well as the employee's application for transfer to an elective job (position).
As the wording of the grounds for termination of the employment contract in the work book, personal card and order of dismissal indicate specifically:
- the employment contract was terminated in connection with the transfer to an elective position on the basis of clause 5, part 1, art. 77 of the Labor Code of the Russian Federation;
- or the employment contract is terminated in connection with the transfer to elective work on the basis of paragraph 5 of part 1 of Art. 77 of the Labor Code of the Russian Federation.
On the last day of work of an employee who is dismissed in the order of 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 to 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 laid-off employee submits a settlement request. In the event of a dispute over the amount of the said 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 elective work (position)

Clause 5, Part 1, Art. 77 of the Labor Code, which establishes such a basis for terminating 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 clear written will of three subjects: the administration of the new place of work, inviting to work, this employee, transferring from one place of work to another in the order of transfer, and the administration of the former place of work, releasing this employee in the order of transfer to another organization. Then the employment contract with him is terminated at the previous place of work under paragraph 5 of part 1 of Art. 77. At a new place, they can no longer refuse to hire him

In accordance with paragraph 16 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 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 N 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 settlement.

Transfer to another job is allowed only with the written consent of the employee, with the exception of 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. At the same time, 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 this employer, transfer to another employer;

Transfer to another locality together with the employer;

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

It is not considered a transfer and 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 working conditions determined by the parties. contracts.

It is also important to take into account that the worker is understood as the place where the 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 one more reason for termination of an employment contract - the transition to elective work (position). For this reason, an act of electing this employee to an elective job (position) freed 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 work book of the employee, there should be a reference not just to paragraph 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 elective work (position)

So, according to paragraph 5 of part 1 of 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 the transition to an elective job (position) is the basis for terminating the employment contract.

In the case under consideration, the transfer is formalized by terminating the employee's employment contract with one employer and concluding it with a new employer (or transfer to an elective position). With such a transfer, all relations with the previous employer are terminated, the employee is paid all the compensation due to him, including for the remaining vacation days. Relations with a new employer begin anew, including the length of service for vacation begins to be calculated anew, and vacation is granted according to the rules of Part 2 of Art. 122 of the 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 could be transferred to a permanent job with another employer. At the same time, 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 which the employee passes in the order of transfer, is not the legal successor of the previous employer, including the obligations of the former employer to pay compensation to the employee for unused vacation. Moreover, the construction 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 the amounts due to the latter upon dismissal (including compensation for unused vacation), does not allow the employer to impose this obligation on a third party.

According to the court, upon dismissal by way of transfer to another organization, the labor relations of employees with the employer are terminated under paragraph 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, which regulate 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 way of 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 the employment contract on the analyzed grounds, the will of three subjects is necessary: ​​the employer, the employee and the future employer.

Documentation of the termination of the employment contract depends on who is the initiator of the transfer: the employee or one of the employers. In the first case, the basis for terminating the employment contract will be the application of the employee. In the second - the written consent of the employee to the transfer, affixed to the corresponding offer of the employer. But in any case, among the required documents is 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 for employees invited in writing to work by 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 the emerging jurisprudence.

The court noted that in order to terminate the employment contract on the basis of transfer to another job, the request or consent of the employee is necessary. It does not follow from the materials of the case that the Committee on Education of St. Petersburg was the initiator of the transfer of the plaintiff to the position of the head of the department of the unified educational institution; the plaintiff did not provide evidence to confirm that she applied to the committee with a request to terminate the employment contract as the director of the lyceum in connection with the transfer to the position of the 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 of the Labor Code of the Russian Federation; calculation and payment of appropriate compensations 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 approval 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 with a request to transfer this employee include an indication of the date from which the employee is proposed to be hired for a new job and his new position.

The employee himself agreed to the dismissal by way of 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 the dismissal of the employee by way of transfer. Taking into account the existence of the above conditions, the panel of judges comes to the conclusion that the achievement by the employers of an agreement on the transfer of the plaintiff to another organization is confirmed in writing. The coordination was carried out by the appropriate persons, i.e. persons with the right to hire and dismiss an employee.

It should be noted that the current employer is not obliged to dismiss the employee in the order of 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 can terminate the employment contract at his own request, in compliance with all the rules established for this.

In addition, according to paragraph 5 of part 1 of Art. 77 of the Labor Code of the Russian Federation, the transition to elective work (position) is also the basis for the termination of an employment contract. Accordingly, in order to terminate the employment contract on this basis, the employer needs a document that confirms that the employee was indeed chosen for such a position.

In this case, unlike a transfer to another employer, the organization does not require consent to terminate the employment contract on this basis. Having received from the employee a relevant application with the document on 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 elective work (position) is being elected. 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 should be noted that, in accordance with Art. 375 of the Labor Code of the Russian Federation, an employee released from work in an organization or with an individual entrepreneur in connection with his election to an elective position in the elective body of the primary trade union organization (released trade union worker), after the expiration of his term of office, is given the previous job (position). If there is no such job (position), then with the written consent of the employee, he may be given another equivalent job (position) with the same employer.

If such a job (position) cannot be provided (an organization has been liquidated, an individual entrepreneur has ceased operations, 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 the case of education - for a period of up to one year. If the employee refuses the proposed relevant job (position), the average salary for him for the period of employment is not saved, unless otherwise established by the decision of the all-Russian (interregional) trade union.

According to the Constitutional Court of the Russian Federation, the guarantee provided for by 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 as a result of being elected to elective positions in trade union bodies, the former work (position) after the end of their term of office is an element of the legal mechanism that ensures the exercise of the constitutional right to unite in trade unions, and as well as freedom of activity of trade unions. The implementation of this guarantee involves imposing on the employer, as a party to social partnership, the obligation to provide the released trade union worker with the previous job (position) after the expiration of his term of office on the conditions and in the manner provided for by the norms of the Labor Code of the Russian Federation.

Thus, in the case under consideration, the employer will have to hire such an employee again, 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 given the previous job (position), and in its absence - other equivalent work (position ) at the previous place of work or with their consent in another organization .

Let's make one more point. Upon termination of the employment contract at the initiative of the employee, the resigning person may withdraw his application at any time before the expiration of the notice of dismissal (Article 80 of the Labor Code of the Russian Federation). Dismissal in this case is not carried out if another employee is not invited in his place in writing, who cannot be refused to conclude an employment contract. Quite often, employers, after submitting a letter of resignation, invite an employee from another organization in order to transfer to the place of the person leaving and refuse to withdraw the application to their employee. Meanwhile, such a refusal is lawful only if the employee invited by way of transfer has already quit his previous job.

The courts, when reinstating employees dismissed of their own free will, in such a situation, pay attention to the fact that the obligation voluntarily assumed by the employer to take on 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 the previous job, the former employee does not have the right to withdraw his letter of resignation.

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 is not sufficiently regulated by the Labor Code of the Russian Federation, therefore, in practice, difficulties arise: in particular, how a letter of resignation should look like, how to draw up an agreement with another employer to which it is planned to transfer employee? These circumstances, in order to uniformly apply the norms of labor legislation, predetermine the need to introduce an additional article regulating this procedure into the Labor Code of the Russian Federation.



Agreement

Agreement

noun, from., use comp. often

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

1. Consent they call a commonality of points of view, a mutual agreement in something.

General, mutual, complete, mutual consent. | Consensus in views on the upbringing of children. | We finally came to an agreement. | In case of failure to reach an agreement, the dispute is resolved in court.

2. By tacit consent 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. | Fear the indifferent - with their tacit consent, there is betrayal and murder on earth.

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

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

State your consent. | Give consent to the operation. | Someone's consent is required for anything. | Get parental consent to marry someone. | Without any consent of the subscriber, the phone number is changed.

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

Dispose of the apartment with the consent of the owner.

6. Consent call 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 his head in agreement, then this means that this person tacitly agrees with someone, approves someone's plans, actions, etc.

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

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

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

Synonyms:

Antonyms:

See what "consent" is in other dictionaries:

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

- (consent) Agreement or no objection. More precisely, such an application of the will of the actor to any action, proposal or result, in which this person accepts (or shares) responsibility for the consequences ... ... Political science. Dictionary.

Unanimity, unanimity, unanimity, strike, solidarity, unanimity, unity, peace, agreement, agreement, modus vivendi; proportionality, uniformity, conformity, consonance, harmony, harmony, symmetry, symphony, unison, ensemble, concert; ... ... Synonym dictionary

Agreement- Consent ♦ Acceptation To agree means to make one's own, to accept, to acknowledge, 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 inseparable harmony with nature and reason ... Philosophical Dictionary of Sponville

CONSENT, agreement, cf. 1. only units An affirmative answer to a request for something. Do or ask for permission to do something. Make permission. Give consent to something. Give consent to do something. "Silence is a sign ... ... Explanatory Dictionary of Ushakov

- (acceptance) 1. 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) … Glossary of business terms

Soullessness, lawlessness, theology, traitor, forerunner, conscience, consent. [...] the vast majority of literary monuments that have survived from Rus' of the Kievan period reflects the Byzantine-Bulgarian influence. In the Church Slavonic language there was ... ... The history of words

CONSENT, I, cf. 1. One of the currents within the Old Believer persuasion (special). 2. Permission, an affirmative answer to a request. Give with. what n. With the consent of the chief (having his consent). Silence is a sign of consent (last). 3. Unanimity, community ... ... Explanatory dictionary of Ozhegov

Agreement- Ethical requirement, according to which all participants in the experiment or patients must agree with the forthcoming procedures. In the context of experimental studies, this also implies that participants can withdraw from the experiment... ... Great Psychological Encyclopedia

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

Wiktionary has an article on consent Consent (interpretation) designation ... Wikipedia

Books

• Consent to medical intervention - the right of the patient and the duty of the medical worker
• Consent to medical intervention - the right of the patient and the duty of the medical worker (Russian legislative framework on the patient's right to inform voluntary consent to medical VM, Filippov Yuri Nikolaevich, Abaeva Olga Petrovna, Tarychev Vladislav Vitalievich. This training manual contains an overview of the modern regulatory framework that determines the implementation procedure the patient's right to informed voluntary consent, the algorithm for processing this ...