Having considered the issue, we came to the following conclusion:
When an employee is transferred to another organization that is an independent employer, the employee resigns from the first organization and enters into an employment contract with the new organization. In orders for dismissal and hiring, as well as in work book notes are made that the employee is dismissed and hired by a new employer by way 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 according to 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 with 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 this was the initiative of the employers, then the transfer is considered to have been made with the consent of the employee.
The dismissal of an employee from the previous employer is carried out in general procedure, established by Art. 84.1 Labor Code of the Russian Federation. Termination employment contract executed by order (instruction) of the employer (form N T-8). On the day of termination of the employment contract, the employer is obliged to issue the employee a work book with a notice of dismissal entered and make a settlement with him, including paying compensation for all unused vacations (part one of Article 127, Article 140 of the Labor Code of the Russian Federation).
The new employer hires an employee in accordance with the general procedure. 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 as a transfer from another organization, indicating its name (see Instructions for the use and completion of forms of primary accounting documentation for recording labor and its payment, approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1).
In the employee’s work book in column 3 of the “Work Information” section in the organization from which he is resigning, an entry is made the following type“Dismissed by way 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 part one 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 dated October 10, 2003 N 69).
In an organization hiring an employee, after the name of the organization, in column 3, a record of acceptance or appointment to a structural unit of the organization is made, indicating its specific name (if the condition of working in a specific structural unit is included in the employment contract as an essential one), 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:
Expert of the Legal Consulting Service GARANT
Soloviev Oleg
Response quality control:
Reviewer of the Legal Consulting Service GARANT
Barseghyan Artem
The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.
Can an employer hire an employee as usual if there is a record in the employment record that he was dismissed as a transfer? This recommendation specifies the general procedure. When the previous employer made an entry in the work book that the employee was fired due to a transfer, and now the employee came to take a job with which the transfer was not agreed. Can she accept him, seeing that he left due to transfer?
Answer
Yes maybe.
When dismissed 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);
When dismissal by transfer, the parties agree on the dates of dismissal and admission to new company by agreement. Upon dismissal own employee warns of dismissal two weeks in advance (Part 1 of Article 80 of the Labor Code of the Russian Federation);
When hired as a transfer from another organization, the employee cannot be assigned 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” .
“The general procedure for transferring an employee to another organization
In what cases can an employee be transferred to work in another organization?
Transferring an employee to another organization is a type of permanent transfer. 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.
Question from practice: What is the fundamental difference between dismissal by transfer and dismissal by at will and admission to the new organization. An employee plans to move from one organization to another
Admission to an organization by way of transfer, in fact, differs from dismissal on one’s own and standard admission only in that:
- upon dismissal by transfer, the employee receives an additional guarantee and cannot be refused employment within a month from the date of dismissal (Article 64 of the Labor Code of the Russian Federation).* However, this issue can be resolved by drawing up an employment contract with a new organization before dismissal by 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 employment after the employee’s dismissal;
- upon dismissal by transfer, the parties agree on the dates of dismissal and employment in the new company by agreement. When dismissing on his own, the employee, in general, must give notice of dismissal two weeks in advance and, in fact, work it out (Part 1 of Article 80 of the Labor Code of the Russian Federation);
- When hired as a transfer from another organization, an employee cannot be given a probationary period (Article 70 of the Labor Code of the Russian Federation).*
- dismissal by transfer psychologically increases the employee’s value in the eyes of future employers, because it indicates the employee’s demand.
There are only two fundamental differences in the registration procedure:
- upon dismissal by transfer, any document confirming consent to the transfer between organizations and the employee must be drawn up in any form,
- The grounds for dismissal will differ when making entries in the work book, dismissal order, or personal card.
Others fundamental differences, these procedures do not carry additional responsibilities for the employer or additional guarantees for the employee.”
“Question from practice: Is it necessary to indicate in the employment contract that the employee is hired as a transfer from another employer?
If desired, the organization can indicate such information in the employment contract, but the legislation does not contain such a requirement.
When an employee is hired as a transfer from another organization, an employment contract is concluded in accordance with the general procedure (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 Instructions approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69).”
"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, 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 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 2 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 Plenum resolution Supreme Court RF 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 considered illegal, the employee must be reinstated.”
According to labor legislation, an employee may be hired by transfer from another organization. The procedure is carried out by dismissal from the old place and subsequent hiring to a new one, but in this case the chance of being refused employment is close to zero, because the citizen is given additional guarantees.
Legislation
The most important point is to obtain the employee's consent:
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 corresponding application from the employee. What the latter needs to do:
- Find out the availability of vacant positions in the company of interest, have an interview with the manager, agree with him on hiring by way of transfer, receive a letter requesting the transfer of the employee indicating a specific date.
- Visit your current boss and apply for a transfer. The mandatory two-week work period is canceled in this case, because the employer must be guided by the date indicated in the letter from the receiving party.
- On the last day labor activity receive salary and compensation for unused vacation(if required), pick up your work book from the HR department.
- On the appointed day, report to your new place of work to draw up an employment agreement.
Features of transfer at the initiative of the employer
The initiator can be not only the employee, but also his manager. Most often this happens due to staff reduction 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 the other, then a transfer agreement is concluded.
- They offer the employee of interest to transfer to another company and obtain written consent from him.
- 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 manager.
For greater clarity, consider a detailed example:
Spectra LLC and Vega LLC are partner organizations. The head of Vega LLC noticed a partner with an employee suitable for a vacant position available at his company, and informed him about it. The employee was first given an oral offer, then all documents (agreement between employers, proposal for transfer, consent from the transferring citizen) were drawn up in writing.
How to transfer to work: step-by-step instructions
An employer who has received an application from an employee or an offer of transfer from the head of another enterprise must do the following:
- Request the employee's written consent if he is not the initiator. You will also need a letter of request from the head of the organization where the transfer is planned.
- Draw up an order for transfer to another employer.
- Pay the employee in full, issue him a salary certificate and work book.
Particular attention should be paid to drafting the order. It must contain the following information:
- FULL NAME. and the position of the employee;
- where the employee is transferred;
- date of dismissal;
- basis: 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 Labor Code of the Russian Federation;
- date of drawing up the order, signature of the manager and subordinate transferring to another organization.
The letter of request includes a request to transfer an employee to a specific company, indicating the exact date, details of the manager, and the name of the organization at the current place of work.
Features of translation for a new manager
Having decided to transfer an employee from a third-party organization to his department, the manager needs to know the following nuances:
- You cannot refuse employment within one month after a written invitation to work (Article 64 of the Labor Code of the Russian Federation).
- Hiring is carried out only with the consent of the previous employer and is formalized in the general manner; a regular order is issued, a work book is filled out, and the employee is given job description for reference.
- It is not allowed to establish a probationary period for persons invited to work through a transfer (Article 70 of the Labor Code of the Russian Federation).
- Even if the employee underwent a medical examination at the previous employer, if necessary, he must undergo it at the new one, incl. and with a valid medical certificate of professional suitability.
“All citizens who take jobs with difficult, harmful or dangerous conditions labor, as well as positions in institutions Catering, must undergo a medical examination,” says the expert and head of the department in 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 a transfer?
According to Art. 127 of the Labor Code of the Russian Federation, when dismissing an employee in connection with a transfer to another company, the former employer must act as follows if the subordinate has unused vacation:
- Pay monetary compensation.
- Provide leave followed by dismissal if the terms of the transfer agreement allow it.
In the latter case, it is necessary to be guided by the date on which the employee must begin performing 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?
The work book is prepared in the following columns:
| First column | Second | Third – “Job information” | Fourth |
| The serial number of the entry is entered | The fields for 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 is clause 5, part 1 of Art. 77 Labor Code of the Russian Federation. The signature of the personnel officer and the seal of the organization are affixed. | Indicate the name of the document on the basis of which an entry is made into the labor record - an order, the date of its execution and number |
Most common mistakes
Mistake #1. For translation, an oral agreement between all parties – two employers and an employee – is sufficient.
No, all documents must be properly executed, otherwise dismissal under clause 5, part 1 of Art. 77 of the Labor Code of the Russian Federation is impossible, because there will be no corresponding basis.
Mistake #2. If the employee has an unexpired medical report, he can provide it at his new place of work.
No, because the conclusion indicates the specific organization for which the citizen is undergoing a medical examination.
Rating of frequently asked questions
Question No. 1. Is it necessary to indicate in the transfer request the specific date from which the employee is planned to be employed in the new organization?
Yes, this must be done so that the current employer can complete the dismissal procedure on time.
Question No. 2. What to do if an employer refuses to dismiss an employee by way of transfer?
According to the law, the manager has every right to refuse to transfer an employee, but he can resign 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 as a result of transfer to another enterprise requires compliance with a specific algorithm of actions and filling out the appropriate documents, which often raises questions among employers. In order to avoid mistakes, it is necessary to be guided by the norms of the Labor Code of the Russian Federation, and also to know the responsibilities of all parties to the labor relationship.
When issuing an order for admission as a transfer, it is important to take into account the requirements of the law and the correctness of the dismissal documents. You can accept someone by transfer only if he is dismissed in the same manner. Otherwise, the usual procedure is used, unrelated to the transfer from one organization to another.
From the article you will learn:
- how dismissal should be formalized;
- how to receive a transfer;
- what needs to be taken into account when preparing an order for admission in the transfer order
- how to fill out a work book.
Dismissal by transfer
This is where the transfer hiring procedure begins. If your dismissal from your current job is incorrectly completed, it will be impossible to register a transfer to a new place.
Don't miss: the main material of the month from leading specialists of the Ministry of Labor and Rostrud
Encyclopedia of personnel orders from the Personnel System.
So, the transfer can be issued on the basis of Art. 72.1 Labor Code of the Russian Federation. This may be the desire of the employee or the initiative of the employer.
Initiator - employee
In this case, in the resignation letter, the employee indicates transfer to permanent work in another organization as the reason. The application is accompanied by a request from the new organization requesting that the transfer employee be dismissed.
In the absence of objections, based on Art. 77.1.5 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 the person performing his duties;
- introduces the employee to by order for painting.
It is important that if a new person has not yet been invited to the position, then the employee, based on Art. 80 of the Labor Code of the Russian Federation, can withdraw his application at any time.
Initiator - employer
Transfers at the initiative of the employer are caused by production needs and are more often temporary than permanent. It all starts with an agreement between actual and potential employers. The agreement reflects:
- new place of work;
- working conditions and regime;
- salary amount.
When the contract is signed, the employer sends the employee a transfer offer. The employee’s agreement with the proposal can be reflected on the same document, or can be executed separately.
Reception by transfer
The hiring of an employee in this case is based on the entry in his employment record and/or the concluded agreement with the previous employer.
In this case, the employee will need the same documents as usual:
- diploma, if the position requires such qualifications;
- passport;
- pension certificate;
- employment history;
- military ID;
- a health record if the work is related to food, teaching children and in some other cases.
The Labor Code of the Russian Federation establishes specifics for those who begin translation work. Art. 64 of the Labor Code of the Russian Federation states that within a month from the date of dismissal, such an employee cannot be denied employment. Art. 70 prohibits establishing a probationary period for transferred employees.
The rest of the procedure is standard: an order is issued, an employment contract is concluded, and an entry is made in the work book.
How to fill out a work book, an order for admission by 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 approval forms are used. Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1.
Upon dismissal:
- No. T-8 - in case of transfer of one employee.
- N T-8a – in case of transfer of several employees.
When hiring:
- No. T-1 – in case of transfer of one employee.
- N T-1a – in case of transfer of several employees.
Based on these standard forms an order or instruction is created for the dismissal/hiring of transferred employees. When preparing a document, it should be taken into account that the text of the order or order must contain:
- Information that the employee is leaving or being hired as a transfer.
- Name of the organization from/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 transferring several employees.
Filling out work books
Here, too, there are nuances established in clause 6.1 “Instructions for filling out work books” approved. Ministry of Labor 10.10.2003 No. 69, namely:
- When dismissal or termination of an employment contract is associated with the transfer of an employee to another permanent place of work, the details of the transfer are indicated in column 3 of the “Work Information” section. 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 has been appointed (accepted) to the organization by transfer. All other nuances about making this entry in the work book are specified in clause 3.1 “Instructions for filling out work books” approved. Ministry of Labor 10.10.2003 No. 69.
It says that translation can be both external and internal. Dismissal 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 a company moves its activities to another locality or even another country. Geographical movement will also be considered a translation.
In case of internal transfer may change as functional responsibilities employee and his structural unit.
Internal transfer can be either permanent or temporary.
Reasons
An employer can transfer an employee to another position because he experienced downtime in his previous position.
There are force majeure circumstances related to eliminating the consequences of disasters, fires, destruction, accidents and accidents, and then there is a need to relocate valuable personnel.
The same situation can be imagined when a company or enterprise opens a new branch and transfers some of its employees there.
For an external transfer to another employer, legal entity or individual entrepreneur, the employee's consent is required. Often the basis for a transfer is his request.
For an internal job change or structural unit in some cases the employee’s consent not necessary.
Procedure for registration at the initiative of employers
Sometimes a situation occurs when an enterprise reduces production volumes and minimizes staff, and in order to reduce the costs associated with the reduction, management negotiates with other employers to hire their employees. Such a transfer occurs with the consent of the employees.
Documents required for translation
To dismiss by transfer in this case, you need the necessary set of documents.
Written approval between heads of organizations. The will of employers must be recorded in writing.
The ideal option would be to make tripartite agreement. In addition, you can write a bilateral agreement between employers and add to it the employee’s statement of dismissal and application for a new job.
In the contract, employers must first of all specify the terms of its validity, as well as the date the employee enters the new position, its name, mode, place, nature of work, working conditions, payment.
The employee must receive written notice of a transfer to another location.
It can be compiled according to the following model.
“We notify you of the possibility of dismissal due to transfer to (name of company or organization) to (name of position) on the basis of a tripartite agreement.”
If the employee signs the agreement in this case, this will mean his agreement with the terms of the tripartite agreement.
Application for resignation from previous position
Among the documents there should be a statement written according to the following sample.
“I ask you to dismiss me on (specify date) by transfer to (name of company or organization) to the position of (specify position).”
A job application is written according to a similar pattern.
“I ask you to hire me in the order of transfer to the position (name of position), date.”
Employment contract
The employment contract must specify the arrangement of work through transfer. In addition, it is important to initially stipulate in the document all significant details: functional responsibilities, mode and nature of work, working conditions and payment. Employment contract drawn up according to the standard scheme.
Drawing up an order
Order for employment by transfer drawn up according to 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).”
It is then given to the employee for signature.
It should be remembered that since 2013, primary personnel documentation does not necessarily have to be filled out according to a unified form.
Below is a sample order for employment in the order of transfer from another organization: 
Transfer at the initiative of the employee
Most often, it is the employee himself who initiates dismissal due to transfer. The reason will be to find 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 is guaranteed only by dismissal by transfer.
Documents for registration with another employer
To formalize a transfer to another employer, an application (or consent if the agreement is signed by the employers), a tripartite agreement, and an invitation from the new employer are required.
In addition, standard documents such as:
- passport;
- diploma;
- military ID;
- employment history;
- medical certificate (not always);
- certificate of pension insurance;
- work permit for foreign citizens.
The employee’s work book must contain a note about dismissal due to transfer. Recording is performed according to instructions for filling out work books, approved by the Ministry of Labor of the Russian Federation (resolution No. 69 dated October 10, 2003).
Below is a sample entry in the work book about employment in the order of transfer:
Guarantees
According to Article 169 of the Labor Code, if an employee moves to work in another locality, he may qualify for moving expenses for himself and his family.
You can receive payment if the new employer writes an invitation letter to his company address.
The invitation must be written on company letterhead and signed by the manager.
It should contain information about the new position.
When correct design of all documents, the new employer is obliged to hire the employee for the agreed position within a month after dismissal.
Refusal of employment
If the employer backs down, he nevertheless guarantees employment with 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.
For this you will need all the above documents. Great value will have a copy of the invitation. It is better to take it before leaving your previous job.
If you win the case, the new employer will enter into 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 hefty fine.
Probation
Is there a probationary period established for admission to another organization as a transfer? In this case not installed.
Conclusion
So, if you have found another, promising job, or the employers have agreed among themselves, it makes sense to formalize your dismissal by transfer.
It guarantees placement in a new position, even if the employer finds another, more suitable employee.
Employment in a new position is guaranteed only within a month after dismissal, and therefore there is no point in delaying.
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 through transfer is carried out correctly in the presented video:
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