After considering the issue, we came to the following conclusion:
When an employee is transferred to another organization that is an independent employer, the employee leaves the first organization and concludes an employment contract with a new organization. In orders for dismissal and employment, as well as in work book notes are made that the employee is dismissed and hired by a new employer in the order of transfer at his request or with his consent.
Rationale for the conclusion:
When an employee is transferred to another organization that is an independent employer (part four of article 20 of the Labor Code of the Russian Federation), the employment contract between the employee and his original employer is terminated under clause 5 of part one of article. 77 of the Labor Code of the Russian Federation: transfer of an employee at his request or with his consent to work for another employer.
If the initiative for the transfer came from the employee, then it is considered that the transfer is made at the request of the employee. If it was the initiative of employers, then the transfer is considered to be made with the consent of the employee.
Dismissal of an employee from a former employer is carried out in general order established by Art. 84.1 of the Labor Code of the Russian Federation. Termination employment contract issued by order (instruction) of the employer (form N T-8). On the day the employment contract is terminated, the employer is obliged to give the employee a work book with a record of dismissal and make settlements with him, including paying compensation for all unused vacations (part one, article 127, article 140 of the Labor Code of the Russian Federation).
The new employer employs the employee in the general manner. In accordance with Art. 67, 68 of the Labor Code of the Russian Federation, an employment contract is concluded with him and an order for employment is issued (form N T-1). This order indicates that the employee was hired in the order of transfer from another organization indicating its name (see Instructions for the use and filling out forms of primary accounting documentation for recording labor and its payment, approved by the Decree of the State Statistics Committee of the Russian Federation of 01/05/2004 N 1).
In the work book of the employee in column 3 of the section "Information about work" in the organization from which he leaves, an entry is made the following kind"Fired in the order of transfer at the request of the employee (or "with the consent of the employee" - depending on the order in which the transfer is carried out) to a company with limited liability"Vintik and Shpuntik", paragraph five of the first part of Article 77 of the Labor Code Russian Federation"(Clause 5.1, Clause 6.1 of the Instructions for filling out work books, approved by Decree of the Ministry of Labor of the Russian Federation of October 10, 2003 N 69).
In an organization hiring an employee, after the name of the organization, in column 3, an entry is made about the acceptance or appointment to the structural unit of the organization indicating its specific name (if the condition of working in a particular structural unit is included in the employment contract as essential), the name of the position ( work), specialty, profession, indicating qualifications and indicating that the employee was accepted (appointed) in the order of transfer (clause 3.1, clause 6.1 of the Instructions for filling out work books).
Prepared answer:
Legal Consulting Service Expert GARANT
Solovyov Oleg
Response quality control:
Reviewer of the Legal Consulting Service GARANT
Barseghyan Artem
The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.
Can an employer hire an employee in the usual manner if there is a record in the labor record that he was dismissed in the order of transfer? This recommendation provides a general procedure. When the previous employer made an entry in the work book that the employee was fired due to transfer, and now the employee came to get a job with which the transfer did not agree. Can she accept him, seeing that he was leaving for a transfer?
Answer
Yes maybe.
Upon dismissal by transfer, the employee receives an additional guarantee, he cannot be refused employment within a month from the date of dismissal (Article 64 of the Labor Code of the Russian Federation);
Upon dismissal by way of transfer, the parties agree on the dates of dismissal and admission to new company by agreement. Upon dismissal, own worker warns of dismissal in two weeks (part 1 of article 80 of the Labor Code of the Russian Federation);
When hiring in the order of transfer from another organization, an employee cannot be set probation(Article 70 of the Labor Code of the Russian Federation).
If an employee gets a job in another organization with which there is no agreement on the transfer, the employee is accepted on a general basis.
The rationale for this position is given below in the materials of the "Personnel System" .
General procedure for transferring an employee to another organization
In what cases can an employee be transferred to work in another organization
The transfer of an employee to another organization is a type of permanent transfer. It is possible to transfer an employee to a permanent job in another organization by mutual decision of the current employer and the host organization. In this case, the initiator of the transfer can be both the employer and 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 labor 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 spelled out in the Labor Code of the Russian Federation, * but a certain practice of its registration has developed. The transfer must be preceded by a 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.
Question from practice: What is the fundamental difference between dismissal in the order of transfer and dismissal by own will and admission to a new organization. The employee plans to move from one organization to another
Admission to the organization in the order of transfer, in fact, differs from dismissal by own and standard admission only in that:
- upon dismissal by transfer, the employee receives an additional guarantee and he cannot be refused employment within a month from the moment of dismissal (Article 64 of the Labor Code of the Russian Federation). own from the previous one, where the delayed start date will be indicated. Accordingly, if there is an employment contract concluded in advance, new employer also will not be able to refuse admission after the dismissal of an employee;
- upon dismissal by way of transfer, the parties agree on the dates of dismissal and admission to a new company by agreement. When dismissed on their own, the employee, in the general case, must notify about dismissal two weeks in advance and, in fact, work them out (part 1 of article 80 of the Labor Code of the Russian Federation);
- when hiring in the order of transfer from another organization, an employee cannot be set a probationary period (Article 70 of the Labor Code of the Russian Federation). *
- dismissal by way of transfer psychologically increases the value of the employee in the eyes of future employers, because it indicates the demand for the employee.
In the registration procedure, there are fundamental differences only in two points:
- upon dismissal in the order of transfer, any document confirming consent to the transfer between organizations and the employee must be drawn up in any form,
- grounds for dismissal will differ when making entries in the work book, dismissal order, personal card.
Other fundamental differences, additional obligations for the employer or additional guarantees for the employee, these procedures do not carry.
“Question from practice: whether it is necessary to indicate in the employment contract that the employee is hired in the order of transfer from another employer
If desired, the organization may indicate such information in the employment contract, but the legislation does not contain such a requirement.
When an employee is hired by way of transfer from another organization, an employment contract is concluded in the general manner (Article 67 of the Labor Code of the Russian Federation). *
The obligation to indicate a special procedure for admission (transfer from another organization) must be observed only when filling out the employee's work book (clauses 3.1 and 6.1 of the Instruction approved by Decree of the Ministry of Labor of Russia dated October 10, 2003 No. 69) ”.
"Attention: it is impossible to refuse to conclude an employment contract to an employee invited to work in the order of transfer from another organization. This ban 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 a new manager refuses employment to a transferred employee, this will be a violation of labor laws. For him, the labor inspectorate can fine the organization or its officials.
The amount of the fine is:
- for officials of the organization, for example, the head - from 1000 to 5000 rubles. (repeated violation entails a fine in the amount 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 in the amount of 10,000 to 20,000 rubles);
- for an organization - from 30,000 to 50,000 rubles. (repeated violation entails a fine in the amount of 50,000 to 70,000 rubles).
Such measures of responsibility are provided for in parts 1 and 2 of article 5.27 of the Code of Administrative Offenses of the Russian Federation.
In addition, such a refusal can lead to problems for the former leader. 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 former place of work (Article 394 of the Labor Code of the Russian Federation). At the same time, the organization must pay the reinstated employee the time of forced absenteeism in the amount of average earnings. This is stated in paragraph 60 of the resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2.
Also, the court may oblige the organization to compensate the illegally dismissed employee for non-pecuniary damage. The amount of compensation for non-pecuniary damage is determined by the court and indicates it in its decision. At the same time, judges must take into account the nature of the harm caused to the employee and the degree of guilt of the organization (paragraph 63 of the decision of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).
If the dismissal was found to be illegal, the employee must be reinstated."
According to labor law, the employee can be hired in the order of transfer from another organization. The procedure is carried out by dismissal from the old place and subsequent admission to a new one, but in this case, the chance of being denied employment is close to zero, because. citizens are given additional guarantees.
Legislation
The most important point is to obtain the consent of the employee:
How to transfer from one organization to another: an algorithm for employees
The basis for the transfer is the receipt by the employer of a relevant application from the employee. What needs to be done last:
- Find out the availability of vacancies in the enterprise of interest, pass an interview with the manager, agree with him on hiring in the order of transfer, receive a letter with a request to transfer an employee indicating a specific date.
- Visit the current boss, apply for a transfer. Mandatory two-week working off in this case is canceled, because. the employer must be guided by the date indicated in the letter from the host.
- On the last day labor activity receive salary and compensation for unused vacation(if necessary), pick up the work book from the personnel department.
- On the appointed day, come to a new place of work to draw up an employment agreement.
Features of the translation initiated by the employer
The initiator can be not only the employee, but also his manager. Most often this happens due to a reduction in staff or by agreement with the director of another enterprise who wants to transfer a good specialist to his team. The procedure is performed like this:
- One director sends a written proposal to another, then a transfer agreement is concluded.
- They offer the employee of interest to transfer to another company, receive his consent in writing.
- The former employer issues an order, makes a full payment and issues all documents to the employee.
- From the appointed date, an employment contract is concluded with the new leader.
For the sake of clarity, let's look at a detailed example:
Spektra LLC and Vega LLC are partner organizations. The head of Vega LLC noticed an employee from a partner who was suitable for a vacant position that he had at his enterprise, and informed him about it. The employee was first made an oral proposal, then all documents (an agreement between employers, a proposal for a transfer, consent from a transferring citizen) were drawn up in writing.
How is the transfer to work: step by step instructions
An employer who has received an application from an employee or a transfer offer from the head of another enterprise must do the following:
- Request the written consent of the employee if the initiator is not him. You will also need a letter of request from the head of the organization where you plan to transfer.
- Draw up a transfer order to another employer.
- Pay the employee in full, issue him a salary certificate and a work book.
Particular attention should be paid to the drafting of the order. It must contain the following information:
- FULL NAME. and position of the employee;
- where the employee is transferred;
- date of dismissal;
- grounds: a statement from a subordinate and a letter from another employer;
- the law on the basis of which the employment contract is terminated: clause 5, part 1, art. 77 of the Labor Code of the Russian Federation;
- the date of drawing up the order, the signature of the head and the subordinate, moving to another organization.
The letter of request includes a request to transfer the employee to a specific company, indicating the exact date, the manager's data, the name of the organization at the current place of employment.
Features of translation for a new leader
Having decided to transfer an employee from a third-party organization to his unit, the manager needs to know the following nuances:
- It is impossible to refuse employment within one month after a written invitation to work (Article 64 of the Labor Code of the Russian Federation).
- Employment is carried out only with the consent of the previous employer and is drawn up in a general manner6 a regular order is issued, a work book is filled out, the employee is issued job description for familiarization.
- It is not allowed to establish a probationary period for persons invited to work through transfer (Article 70 of the Labor Code of the Russian Federation).
- Even if an employee underwent a medical examination with a previous employer, if necessary, he must also pass it with a new one, incl. and in the presence of a valid medical certificate of professional suitability.
“All citizens applying for positions with difficult, harmful or hazardous conditions labor, as well as positions in institutions Catering, must undergo a medical examination, ”says an expert and head of the department in the comments to the Labor Code of the Russian Federation labor law State University– Higher School of Economics Yu.P. Orlovsky.
Is it possible to transfer unused vacation during the transfer?
According to Art. 127 of the Labor Code of the Russian Federation, when an employee is dismissed in connection with a transfer to another company, the former employer must do the following if the subordinate has unused vacation:
- Pay financial compensation.
- Grant leave followed by dismissal if the terms of the transfer agreement allow.
In the latter case, it is necessary to be guided by the date on which the employee must begin to perform new duties. While a citizen is on vacation, he is registered in the previous organization and cannot be accepted into another.
How to fill out a work book when transferring?
Registration of the work book is carried out in the following columns:
| First column | Second | Third - "Information about the work" | Fourth |
| The serial number of the record is set | The columns of the date of dismissal are filled in, indicating the day, month and year. The subsequent director enters the date of employment. |
The reason for dismissal is indicated - transfer at the initiative of the employee to another employer, the basis - clause 5 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The signature of the personnel officer and the seal of the organization are put. | The name of the document on the basis of which the entry is made in the labor is indicated - the order, the date of its execution and the number |
Most Common Mistakes
Mistake #1. For the transfer, a verbal agreement between all parties is sufficient - two employers and an employee.
No, all documents must be properly executed, otherwise dismissal under paragraph 5 of part 1 of Art. 77 of the Labor Code of the Russian Federation is impossible, because there will be no appropriate basis.
Mistake #2. If the employee has an unexpired medical certificate, he can provide it at a new place of work.
No, because the conclusion indicates the specific organization for which the citizen is undergoing a medical examination.
Frequently Asked Questions Rating
Question number 1. Is it necessary to indicate in the transfer request the specific date from which the employee is planned to be employed in a new organization?
Yes, it is necessary to do this so that the current employer can complete the dismissal procedure on time.
Question number 2. What to do if the employer refuses to fire the employee in the order of transfer?
By law, the manager has every right to refuse to transfer an employee, but he can quit of his own free will. In this case, he will have to work for 2 weeks, and only after that he will be able to get a new job.
Conclusion
The procedure for dismissal and hiring in the order of transfer to another enterprise requires compliance with a specific algorithm of actions and filling out the appropriate documents, which often raises questions from employers. In order to avoid mistakes, it is necessary to be guided by the norms of the Labor Code of the Russian Federation, as well as to know the obligations of all parties to labor relations.
When issuing an admission order in the order of transfer, it is important to take into account the requirements of the law and the correctness of the dismissal documents. You can accept someone in the order of transfer only if he is fired in the same order. Otherwise, the usual procedure is used, unrelated to the transfer from one organization to another.
From the article you will learn:
- How should a dismissal be processed?
- how to make a reception in the order of transfer;
- what to consider when preparing an admission order in the order of transfer
- how to fill out a workbook.
Dismissal in the order of transfer
It is with this that the procedure for hiring in the order of transfer begins. In case of incorrectly issued dismissal from the current job, it will be impossible to issue a transfer at a new place.
Don't miss: the main article of the month from leading specialists of the Ministry of Labor and Rostrud
Encyclopedia of personnel orders from the Kadra System.
So, the transfer can be made on the basis of Art. 72.1 of the Labor Code of the Russian Federation. This may be the desire of the employee or the initiative of the employer.
Initiator - worker
In this case, in the application for dismissal, the employee indicates the transfer to a permanent job in another organization as the reason. Attached to the application is a request from the new organization asking them to fire the translation officer.
In the absence of objections, based on Art. 77.1.5 of the Labor Code of the Russian Federation, employer:
- cancels the employment contract;
- issues a dismissal order, which is signed by the head of the organization or a person acting in his capacity;
- introduces the employee to by order under painting.
It is important that if a new person has not yet been invited to the position, then the employee, starting from Art. 80 of the Labor Code of the Russian Federation, can withdraw his application at any time.
Initiator - employer
Employer-initiated transfers are caused by operational necessity and are more often temporary than permanent. It all starts with a contract between the actual and potential employers. The agreement reflects:
- new place of work;
- working conditions and mode of work;
- salary.
When the contract is signed, the employer sends the employee a transfer proposal. The employee's consent to the proposal can be reflected on the same document, or it can be drawn up separately.
Reception in order of transfer
The acceptance of an employee in this case is based on an entry in his employment and / or concluded contract with a previous employer.
In this case, the employee will need the same documents as usual:
- diploma, if the position requires such qualification;
- the passport;
- pension certificate;
- employment history;
- military ID;
- health book if the work is related to food, teaching children and in some other cases.
The Labor Code of the Russian Federation establishes features for those who begin translation work. Art. 64 of the Labor Code of the Russian Federation states that within a month from the moment of dismissal, such an employee cannot be denied employment. Art. 70 prohibits establishing a probationary period for transferred employees.
Otherwise, the procedure is standard: an order is issued, an employment contract is concluded, an entry is made in the work book.
How to fill out a work book, an order for admission in the order of transfer and an order for dismissal
Information about the transfer must be reflected in the administrative documents of both organizations.
Preparing orders
When preparing orders or instructions, unified forms of approval are used. Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1.
Upon dismissal:
- No. T-8 - in the case of the transfer of one employee.
- N T-8a - in case of transfer of several employees.
When applying for a job:
- No. T-1 - in the case of the transfer of one employee.
- N T-1a - in case of transfer of several employees.
Based on these standard forms an order or order is created on the dismissal / on the hiring of transferring employees. When preparing a document, it should be borne in mind that the text of the order or order must contain:
- Information that the employee is leaving or being hired in the order of transfer.
- The name of the organization from which / to which the employee is transferred.
- Words about the absence of a probationary period in the case of hiring one employee or a dash in the corresponding column when several employees are transferred.
Filling out work books
Here, too, there are nuances established in clause 6.1 of the "Instructions for filling out work books" approved. Ministry of Labor 10.10.2003 No. 69, namely:
- When the dismissal or termination of an employment contract is associated with the transfer of an employee to another permanent place of work, in column 3 of the section "Information about work" indicate the details of the transfer. Those. whether the procedure is carried out at the request of the employee or with his consent.
- The employment record also reflects information that the employee was appointed (accepted) to the organization in the order of transfer. All other nuances about making this entry in the work book are specified in clause 3.1 of the "Instructions for filling out work books" approved. Ministry of Labor 10.10.2003 No. 69.
He says that translation can be both external and internal. Leaving to move to another position in your company or to move to another employer allows the employee to receive a number of guarantees.
It happens that the company moves its activities to another locality or even another country. Geographic movement will also count as a translation.
In case of internal transfer can change like functional responsibilities employee and his structural unit.
Internal transfer can be both permanent and temporary.
Foundations
An employer can transfer an employee to another position, because he had downtime at the same place.
There are force majeure circumstances associated with the elimination of the consequences of disasters, fires, destruction, accidents and accidents, and then there is a need to move valuable personnel.
The same situation can be imagined when a company or enterprise opens a new branch and transfers part of the workers there.
For an external transfer to another employer, legal entity or individual entrepreneur the consent of the employee is required. Often the basis for the transfer is his request.
For an internal job change or structural unit in some cases, the consent of the employee not necessary.
The procedure for registration at the initiative of employers
Sometimes there is a situation when the company reduces production volumes and minimizes staff, and in order to reduce the costs associated with layoffs, management negotiates with other employers to hire their employees. Such a transfer takes place with the consent of the employees.
Documents required for translation
In this case, the necessary set of documents is required for dismissal by transfer.
Written agreement between leaders of organizations. The will of employers must be recorded in writing.
The ideal would be to make tripartite agreement. In addition, you can write a bilateral agreement between employers and add an employee's statement of resignation and employment to a new job.
In the contract, employers, first of all, must prescribe the terms of its validity, as well as the date the employee enters into new position, its name, mode, place, nature of work, working conditions, payment.
The employee must receive a written notice of the transfer to another place.
It can be made according to the following pattern.
“We notify you of the possibility of dismissal by transfer to (name of company or organization) to (name of position) on the basis of a tripartite agreement.”
If the employee in this case signs the agreement, this will mean his acceptance of the terms of the tripartite agreement.
Letter of resignation from previous job
Among the documents must be a statement written according to the following model.
“I ask you to fire (indicate the date) in the order of transfer to (name of the company or organization) to the position of (indicate the position).”
An application for employment is written in a similar way.
“I ask you to hire me in the order of transfer to the position (name of position), date.”
Labor contract
In the employment contract, it is necessary to prescribe about the arrangement of work through translation. In addition, it is important to initially specify in the document all significant details: functional duties, mode and nature of work, working conditions and remuneration. Labor contract drawn up according to the standard scheme.
Drawing up an order
Order of employment in the order of transfer compiled in a unified form with the wording "in the order of transfer at the request of the employee (or with the consent of the employee - depending on the specific situation)".
After it is given to the signature of the employee.
It should be remembered that since 2013, primary personnel documentation does not have to be filled out in a unified form.
Below is a sample order for employment in the order of transfer from another organization: 
Employee-initiated transfer
Most often, it is the employee himself who initiates the dismissal on transfer. The reason will be finding a new, more suitable job.
You can quit on your own initiative, but such a step does not guarantee that within a month the new employer will conclude an employment contract with the employee.
This guarantees only the dismissal of the transfer.
Documents for registration to another employer
To process a transfer to another employer, you need an application (or consent if the agreement is signed by employers), a tripartite agreement, and an invitation to a new employer.
In addition, the following standard documents are required:
- the passport;
- diploma;
- military ID;
- employment history;
- medical certificate (not always);
- certificate of pension insurance;
- work permit for foreign citizens.
In the work book of the employee, a note should be made about the dismissal of the transfer. Recording is done according to instructions for filling out work books, approved by the Ministry of Labor of the Russian Federation (Decree of 10.10.2003 No. 69).
Below is a sample entry in the work book about hiring in the order of transfer:
Guarantees
According to Article 169 of the Labor Code, if an employee moves to work in another locality, he can claim relocation fees for himself and his family.
You can get paid if the new employer writes an invitation letter to the address of his company.
The invitation must be written on the letterhead of the company and signed by the head.
It should contain information about the new position.
When correct design of all documents, the new employer is obliged to accept the employee for the agreed position within a month after the dismissal.
Denial of employment
If the employer backs down, then, nevertheless, guarantees employment in the inviting organization.
In a situation where the new employer refuses to conclude an employment contract, the failed employee will be forced to go to court.
All of the above documents will be required for this. Great value will have a copy of the invitation. It is better to take it even before the dismissal from the previous place of work.
If you win the court, the new employer will conclude an employment contract with you, starting from the day following the day of dismissal from your previous job. In addition, the violator will pay a fairly decent fine.
Probation
Is there a probationary period for admission to another organization in the order of transfer? In this case not installed.
Conclusion
So, if you have found another, promising job, or if the employers have agreed among themselves, it makes sense to issue a dismissal due to transfer.
It guarantees a job in a new place, even if the employer finds another employee more suitable for him.
Employment in a new place is guaranteed only within a month after leaving, and therefore it is not worth pulling.
If the new employer acts illegally, it is worth going to court.
When concluding a tripartite agreement and an employment contract it is important to specify in detail all the desired conditions.
Useful video
You will learn about how employment is correctly carried out in the order of transfer in the presented video:
Loading...