home Audience 2 Temporary transfer to another job according to the Labor Code of the Russian Federation. Transfer of an employee to another position with a lower salary

Temporary transfer to another job according to the Labor Code of the Russian Federation. Transfer of an employee to another position with a lower salary

The employee showed poor performance results. However, he has been working for a long time and doing a good job. Should I break up with him right away? Maybe give him a second chance, but in a lower position?

Sometimes employers have to deal with a situation where an employee who does not “grab stars from the sky”, but is quite efficient and reliable, is still not suitable for the position he occupies. I wish we could “move it” - a little lower, where a lot of knowledge, skills, experience and relatively less responsibility are not required. But how to do that? And is it possible?

When can you use the right to demote?

The Labor Code of the Russian Federation in relation to employees whose work is mainly regulated by the norms of the Labor Code of the Russian Federation does not contain such a disciplinary sanction as demotion. In Part 1 of Art. 192 of the Labor Code of the Russian Federation lists only three types of punishment for violation of discipline:

comment;
rebuke;
dismissal for appropriate reasons.

However, Part 2 of Art. 192 of the Labor Code of the Russian Federation indicates the possibility of exceptions to this rule: federal laws, charters and regulations on discipline for certain categories of employees may provide for other disciplinary sanctions. At the same time, an analysis of disciplinary statutes and other regulations does not lead to the identification of such a punishment as “demotion.”

Even clause 3, part 1, art. 57 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” (hereinafter referred to as -) does not provide for a demotion as a punishment, but only a warning about incomplete compliance with official duties. The only exception is clause 5, part 1, art. 50 of the Federal Law of November 30, 2011 No. 342-FZ “On service in the internal affairs bodies of the Russian Federation and amendments to certain legislative acts of the Russian Federation” (hereinafter referred to as the Law on Service in the Internal Affairs Bodies), which calls the transfer of an employee of the internal affairs body as a punishment to a lower position in the Department of Internal Affairs.

As you can see, demotion is not disciplinary liability under the Labor Code of the Russian Federation. The only exception is for police officers, for whom such demotion is provided for by a special law as a punishment for disciplinary violations.

What is demotion if not punishment?

Clause 3, Part 1, Art. 81 of the Labor Code of the Russian Federation provides such grounds for dismissal as the employee’s inadequacy for the position held or the work performed due to insufficient qualifications, confirmed by certification results.

However, dismissal on this basis is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (either a vacant position or a job that corresponds to the employee’s qualifications, or vacant lower position or lower paid job), which he can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

We will find similar provisions in the Laws on Civil Service and on Service in the Department of Internal Affairs. So, according to Part 16 of Art. 48 of the Civil Service Law, within one month after the certification, based on its results, a legal act of the state body is issued stating that the civil servant:

subject to inclusion in the personnel reserve to fill a vacant position in the civil service in the order of job growth;
sent to receive additional professional education;
demoted in the civil service position and subject to exclusion from the personnel reserve if he is in it.

If a civil servant refuses to receive additional professional education or transfer to another position in the civil service, the employer’s representative has the right to release him from the position he is filling and dismiss him from the civil service in accordance with the Civil Service Law (Part 17, Article 48). The grounds for dismissal are provided for in clause 1, part 1, art. 37 of the Civil Service Law: termination of a service contract at the initiative of the employer’s representative in the event of a civil servant’s inconsistency with the civil service position being filled. In accordance with Part 2 of Art. 37 According to the Civil Service Law, dismissal from the civil service on this basis is allowed if it is impossible to transfer a civil servant with his consent to another position.

According to Part 13 of Art. 33 of the Law on Service in the Department of Internal Affairs, based on the results of certification of a police officer, the certification commission adopts one of six recommendations. One of them is that the employee does not correspond to the position being filled in the internal affairs bodies and is subject to transfer to a lower position in the internal affairs bodies.

The grounds for dismissal in this case are provided for in clause 5, part 2, art. 81 of the Law on Service in the Internal Affairs Department - “in connection with the inconsistency of the employee with the position being filled in the internal affairs bodies - based on the recommendation of the certification commission.”

Please note: the above ground should not be confused with the other one provided for in clause 14, part 2, art. 82 of the Law on Service in the Internal Affairs Department, which is applicable only “in connection with the employee’s refusal to be transferred to a lower position in the internal affairs bodies in the execution of a disciplinary sanction.”

Thus, demotion is a measure of the employer’s response to the discrepancy between the employee’s level of knowledge and the position held. The exception is police officers, for whom demotion can be both a punishment and a response measure.

The correct algorithm for implementing demotion

So, how to minimize the risks of labor conflict by demoting an employee?

When conducting certification, you must pay very close attention to:

to the list of persons submitted for certification. Both regulatory legal acts and local regulatory acts of organizations, as a rule, provide for a list of employees who are not subject to certification (temporarily, until the circumstances that served as the basis for postponing certification are eliminated);
to the certification procedure. It must be provided for by local regulations;
to the composition of the certification commission. In cases of certification of a trade union member, the certification commission must include a representative of the trade union committee;
to the order of registration of the procedure and results of certification. The conclusions of the commission must be justified, the protocol must be signed by all members of the certification commission.

For your information

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The local regulatory act must provide for the time frame for management’s response to the certification results. These time limits do not allow the employer to prolong the pleasure of holding the employee under the sword of Damocles and require him to react within a certain period, after which it is no longer possible to take any measures.

Below is the employer's procedure:

1. Conduct certification of employees without violations.

Based on the results of the certification, a protocol is drawn up, which records the conclusions of the certification commission and recommendations for employees, which the manager, who has the authority to terminate and conclude employment contracts, can take into account.

A local regulatory act may provide, in addition to the protocol, for drawing up an attestation sheet for each employee being certified.

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The official composition of the certification commission (with options in the absence of any of the members) is reflected in the local regulatory act on certification. The composition of a specific certification commission can (if provided for by a local act) be formed before each certification. Or it can be unchanged if there is no staff turnover in the organization.

2. Record the results of the certification.

The certification commission submits a properly completed protocol to the manager for review. The form of the protocol in different organizations may be different - depending on what form was approved in the local regulatory act.

The presented example of a protocol (Example 1) can be used as a sample; it can also be approved as a sample form of a protocol in the regulations on certification in a specific organization.

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The protocol form, as a rule, is an appendix to the organization’s local regulatory act on the certification procedure.

Example 1

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3. Issue orders/instructions based on the results of certification.

The manager reviews the protocol of the certification commission and makes a decision (not necessarily taking into account the recommendations of the commission). It is important to understand here that it is impossible to fire an employee only on the basis of certification and recommendations of the certification commission. This decision is made by the head of the organization or an authorized person.

If the decision to dismiss is made, then the order/instruction must reflect the further action plan prescribed to the HR specialist. For example, you can oblige a human resources specialist to offer employees who are recognized as unsuitable for their positions, vacancies available at the enterprise that correspond to the qualifications of the employees, or lower-level and lower-paid ones.

4. Offer vacancies to employees recognized as unsuitable for their positions.

Further actions are taken by the organization's personnel service. They consist of analyzing the staffing table and employee qualifications in order to determine the vacancies that can and should be offered to him.

A written notice of a vacancy offer, signed by the manager, is given to the employee under his personal signature. In case of refusal to receive a notification or to put a signature on the receipt, an act is drawn up recording this fact.

5. Transfer to a lower position or dismiss the employee.

If the employee agrees to occupy a lower-level vacant position offered by the employer, the transfer is processed in the usual manner. In case of disagreement with the transfer, the employment contract with the employee is terminated according to clause 3, part 1, art. 81 of the Labor Code of the Russian Federation or on the basis provided by federal laws, if we are talking about “specific” employees (for example, police officers, civil servants, municipal employees), whose activities are regulated by separate regulatory legal acts.

Court position

Naturally, ambitions, resentment, and the current legal consciousness of employees often push them into disputes with employers. This is especially true for decisions about an employee’s inadequacy for the position held. As a rule, they almost never can come to terms with such an assessment. But in some cases they prefer not to argue, agreeing to a demotion or resigning “on their own,” while in others a dispute cannot be avoided.

However, if the employer did not make mistakes at any stage of demoting the employee and formalized everything correctly, then the court will recognize the employer’s actions as legal and justified.

Arbitrage practice

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The employee filed a lawsuit against the employer (State Unitary Enterprise) to recognize the transfer to another position due to inconsistency with the position held based on the certification results as illegal, and to challenge the certification results. In support of his demands, he indicated that he worked as a chief engineer and was transferred by order to the position of a master of the 8th category. The basis for the transfer was the certification, the results of which revealed that he did not correspond to the position held. The plaintiff agreed with the transfer, because I didn’t want to be fired under clause 3, part 1, art. 81 Labor Code of the Russian Federation. However, he does not agree with the results of the certification, since, in his opinion, the purpose of its implementation is the dismissal of unwanted employees. In addition, he was warned about this only two weeks in advance, which is not enough time to prepare for certification.

The court found that the certification of management, engineering and technical workers and other specialists of production associations (combines), enterprises and organizations of industry, construction, agriculture, transport and communications, as well as structural units of scientific and production associations engaged in production activities, was carried out in accordance with with Resolution of the Council of Ministers of the USSR dated July 26, 1973 No. 531. According to the Regulations on certification at the defendant’s enterprise, the employee must be warned about certification no later than two weeks before it is carried out. Based on the presented certification results, the certified plaintiff was asked 14 questions during the certification by members of the certification commission, 11 of which received incorrect answers. Members of the certification commission assessed the plaintiff’s performance, according to which he does not correspond to his position and was recommended for demotion. Thus, the requirement stipulated by the Certification Regulations to warn the employee about the upcoming certification was met.

In addition, the court believes that two weeks is a reasonable warning period for the employee, given that the certification is carried out to establish the employee’s ability to perform official duties in his position, that is, exclusively on issues related directly to the official duties of this employee. However, the certification, the results of which the plaintiff disputes, was extraordinary.

The court, based on the evidence presented by the defendant, concluded that the employer had grounds for carrying it out. The fact is that, based on the results of the last regular certification, recommendations were made for additional training for the plaintiff. The latter completed training, but customer complaints about the quality of work became more frequent, which gave rise to an extraordinary certification of the plaintiff. Based on the above, the court rejected the plaintiff’s claim (decision of the Selivanovsky District Court of the Vladimir Region dated July 12, 2011 in case No. 2-248/2011).

In another case, the employee rejects all vacancies, preferring to be fired and subsequently initiate a labor dispute to challenge both the certification results and the legality of his dismissal. But here, too, the court’s position is predictable: if no violations of the employee’s rights and legal requirements are revealed during the consideration of the case, the court will recognize as legal the dismissal of an employee who is not suitable for the position held, if he did not agree to a demotion.

Arbitrage practice

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The civil servant filed a lawsuit against the employer to declare the order of dismissal and reinstatement illegal. In support of the claim, she indicated that, based on the results of the certification of state civil servants, she was found not to be suitable for the position of a civil servant, and therefore the service contract with her was terminated and she was dismissed from the civil service. He considers his dismissal to be the result of a negative relationship with management.

The court found that at the time the order for certification was issued, the plaintiff had worked at the enterprise for more than a year, and therefore was subject to certification; the order was duly familiarized within the period established by law. The court determined that the certification was carried out in the form of an interview; members of the certification commission asked the plaintiff questions on topics within the scope of her job duties. However, the plaintiff was unable to correctly and competently answer the questions posed. Based on the results of the certification, the commission made a unanimous decision that the plaintiff was not suitable for the civil service position being filled. Considering that the employer complied with the terms and procedure for certification, the court came to the correct conclusion that there were no grounds for declaring the certification results illegal.

The court also found that the procedure for dismissing the plaintiff by the defendant was followed: she was offered transfers to two lower positions (demotion), but the plaintiff refused to be transferred to lower positions, which was confirmed by the acts. There were no other vacant positions, which was confirmed by the staffing table presented by the defendant. Based on the above, the court recognized the plaintiff’s dismissal as legal and dismissed the civil servant’s claim (decision of the Sovetsky District Court of Lipetsk dated 03/05/2012; appeal ruling of the Lipetsk Regional Court dated 05/21/2012 in case No. 33-1101/2012).

Similar conclusions follow from the analysis of judicial acts in cases of police officers challenging demotions. as a disciplinary sanction.

According to Art. 349 of the Labor Code of the Russian Federation, labor legislation in organizations that provide for military or equivalent service is applied with the features provided for by federal laws and other regulatory legal acts.

According to the provisions of Art. 47 of the Law on Service in the Department of Internal Affairs, service discipline is understood as compliance by a police officer with those established by the legislation of the Russian Federation, the Oath of an employee of the internal affairs bodies of the Russian Federation, the disciplinary charter of the police department, the contract, orders and instructions of the head of the federal executive body in the field of internal affairs, orders and instructions of direct and immediate superiors (superiors) on the procedure and rules for performing official duties and exercising the rights granted. A similar definition of official discipline is contained in Art. 34 of the resolution of the Supreme Council of the Russian Federation dated December 23, 1992 No. 4202-1 “On approval of the Regulations on service in the internal affairs bodies of the Russian Federation and the text of the Oath of an employee of the internal affairs bodies of the Russian Federation” (hereinafter referred to as the Regulations on service in the internal affairs bodies of the Russian Federation).

From the cumulative analysis of Part 1 of Art. 50 of the Law on Service in the Department of Internal Affairs and Art. 38 of the Regulations on Service in the Internal Affairs Department it follows that in the event of a violation of official discipline, disciplinary sanctions may be imposed on an employee of the bodies such as a reprimand, reprimand, severe reprimand, warning of incomplete official compliance, transfer to a lower position in the internal affairs bodies (demotion ), reduction in special rank by one step, deprivation of a badge, dismissal from the internal affairs bodies.

The courts, when considering cases where police officers challenge a penalty in the form of demotion, check compliance with the procedure for bringing to disciplinary liability and the compliance of the chosen punishment with the offense. And, having not found any violations, they recognize the application of punishment in the form of demotion as legitimate on the part of the employer.

Arbitrage practice

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A law enforcement officer filed a lawsuit against the defendant, the Ministry of Internal Affairs, to declare the demotion order illegal. During the consideration of the case, the court found that the basis for issuing the order was the behavior of the plaintiff, expressed in the fact that while he was on vacation, in a state of alcoholic intoxication, he started a quarrel with the director of the store on the premises of the store, and when leaving the store he damaged the windshield of a parked car. next to a car. After calling the police, the plaintiff did not present documents and was taken to a medical sobering station. The fact that the plaintiff committed an offense discrediting the honor of a police officer is confirmed by the conclusion of an internal inspection, a special message from the Internal Affairs Directorate, a statement from the store director, a statement from the owner of the car, a report from the police department on duty at the Internal Affairs Directorate, an explanation from the head of the medical sobering-up center, an explanatory statement from the plaintiff, and is actually admitted by the plaintiff himself. Taking into account the above circumstances, the court came to the conclusion that the employee committed a violation of official discipline, for which he was brought to disciplinary liability in accordance with the procedure established by law. Thus, there are no grounds for satisfying the claims to declare the order of removal from office illegal. The court rejected the law enforcement officer's claim (decision of the Khanty-Mansiysk District Court of the Khanty-Mansiysk Autonomous Okrug - Ugra dated 03/07/2012 in case No. 2-740/12).

Analyzing the above, we can conclude that demotion is controversial only at first glance. Familiarization with the procedure for such a demotion and with the practice of disputes allows each employer not only to find out the cases in which he can demote an employee, but also to study the procedure and necessary conditions of this procedure and know about the alternative to demotion.

This alternative is the dismissal of the employee on appropriate grounds based on the results of certification. Another type of penalty may also be applied to police officers.

Translation based on medical report

According to Art. 73 of the Labor Code of the Russian Federation, an employee who needs to be transferred to another job in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, the employer is obliged to transfer to another job he has that is not contraindicated for the employee for health reasons. The translation could be like temporary, so permanent and is issued after the employer receives a medical report on the need for such a transfer.
The procedure for the employer to prepare documents on the transfer of an employee to another job as follows:
1. The employee is sent a notice of the need to transfer to another job, indicating the vacancies available in the institution. It is drawn up in free form in two copies; on the employer’s copy, the employee must put a mark indicating receipt of the notification. Consent to the transfer or refusal to transfer may also be indicated on a copy of the employer's notice, or may be submitted as a separate document in simple written form addressed to the employer (see sample notice below).

Limited Liability Company "Alta"

22.02.2011
Loader Krivtsov A.E.

Notification

Dear Alexander Evgenievich!
We offer you a temporary one for a period of three months in accordance with the recommendations contained in the medical report dated February 21, 2011 No. 21.
As of February 22, 2011, Alta LLC has the following vacancy that matches your qualifications and is not contraindicated for you due to health reasons:
- watchman (salary - 10,000 rubles).

In case of refusal to transfer in accordance with Art. 73 of the Labor Code of the Russian Federation, you will be suspended from work. During the period of suspension from work, wages will not be accrued.

Director Smirnov / G.O. Smirnov /

I have read the notification.
I agree with the temporary transfer to the position of guard.
Krivtsov A.E. 02/22/2011

2. Compiled additional agreement to the employment contract, which reflects all the terms of the transfer (see sample additional agreement below).

Additional Agreement No. 1
to the employment contract dated June 30, 2010 N 56

22.02.2011
Moscow

Limited Liability Company "Alta" represented by Director Gennady Olegovich Smirnov, acting on the basis of the Charter, hereinafter referred to as the Employer, on the one hand, and Alexander Evgenievich Krivtsov, hereinafter referred to as the Employee, on the other hand, have entered into this agreement as follows:
1. The employee, in accordance with the medical report dated February 21, 2011 No. 21, was transferred on February 22, 2011 to the position of guard for a period of three months.
2. The employee is given a salary of 10,000 (ten thousand) rubles per month.
3. This additional agreement is drawn up in two copies, one for each party, and comes into force from the moment it is signed by both parties. Both copies have equal legal force.

Employer: Employee:

3. Compiled transfer order in form N T-5, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1 (hereinafter referred to as Resolution No. 1).
4. Information about the permanent transfer is entered in the work book no later than a week from the date of publication of the order (clause 10 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225 “On work books” (as amended on May 19. 2008)). Let us remind you that an entry about a temporary transfer is not made in the work book.
5. Information about the transfer (both temporary and permanent) is entered to the employee’s personal card.
The specified procedure is common for all cases of processing a transfer indicated below.
If the transfer was temporary, upon its completion the employee must be provided with his previous place of work. If the employer did not do this, the employee did not demand its provision and continues to work, the condition of the agreement on the temporary nature of the transfer loses force and the transfer is considered permanent (Article 72.2 of the Labor Code of the Russian Federation).
If the employee, after receiving notice of the need to transfer to another position, refuses it or the employer does not have any vacant positions, the employee must be suspended from work without pay. However, it should be remembered that this rule applies if a medical report prescribes a transfer for a period of up to four months. If a temporary transfer is established for a period of more than four months or a permanent transfer, the employer, as in the first case, must send the employee a notice of the need to transfer to another position and indicate a list of available vacancies. If the employee refuses to be transferred to the provided vacancies or there are no vacant positions in the organization, the employee should be dismissed. In this regard, we recommend indicating the legal consequences of refusal to transfer in the notification of the need for translation. The wording may be as follows: “In case of refusal of the transfer in accordance with Part 3 of Article 73 of the Labor Code of the Russian Federation, the employment contract with you will be terminated in accordance with Clause 8 of Part 1 of Article 77 of the Labor Code of the Russian Federation.” The order is drawn up in Form N T-8, after which a corresponding entry is made in the work book and a note is made in the personal card of Form N T-2.
If, in accordance with a medical report, the head of an organization (branch, representative office or other separate structural unit), his deputy or chief accountant needs a temporary or permanent transfer to another job, if the transfer is refused or the employer does not have the corresponding job, the contract is terminated on the basis of 8 hours 1 tbsp. 77 Labor Code of the Russian Federation. The employer has the right, with the written consent of these employees, not to terminate their employment contract, but to remove them from work for a period determined by agreement of the parties. During the period of suspension from work, wages are not accrued to these employees, except for cases provided for by the Labor Code of the Russian Federation, other federal laws, collective agreements, agreements, and employment contracts.

Transfer in connection with the decision of the certification commission

Clause 3, Part 1, Art. 81 of the Labor Code of the Russian Federation provides for such grounds for termination of an employment contract as the employee’s inadequacy for the position held or the work performed due to insufficient qualifications, confirmed by certification results. However, dismissal is carried out only if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid job), which the employee can perform taking into account his condition health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract. If the employee refuses to be transferred to a lower position or there are no vacancies, dismissal follows.
Let us recall that the procedure for conducting certification is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of workers. Therefore, in order to recognize the certification and subsequent transfer of employees as legal, the organization must adopt local regulations that establish the procedure for conducting certification and the employer’s actions based on its results. Employees of the organization must be familiarized with these documents against signature (Article 68 of the Labor Code of the Russian Federation).
The translation itself is completed in the same manner as discussed in Section. 1 article.

Reduction

A reduction in the number or staff of employees of an organization or individual entrepreneur may also become the reason for the termination of an employment contract with an employee (clause 2, part 1, article 81 of the Labor Code of the Russian Federation), but before this, as in the previous case, the employee must be offered the employer’s available vacant positions or jobs, including lower-ranking and lower-paid ones. When carrying out a reduction, it is important to pay attention to the correctness of the documents associated with this procedure:
1. Issue an order to reduce staff.
2. Send a written message to the elected body of the primary trade union organization about the upcoming layoff to obtain information about trade union members.
3. Create a commission to identify candidates for layoffs, as well as candidates entitled to preferential retention at work.
4. Send a written message to the employment service authorities about the decision to reduce the number or staff of the organization’s employees and the possible termination of employment contracts with employees.
5. Notify candidates for dismissal in writing about the upcoming reduction in headcount (staff) and offer vacant positions and jobs to which employees can be transferred.
If the employee agrees to the transfer, the employer draws up documents according to the scheme specified in section. 1 of this article, and in case of refusal to transfer, issues an order to terminate the employment contract (forms N T-8, N T-8a, approved by Resolution No. 1).

Translation by agreement of the parties

A transfer to a lower position can be carried out in the absence of the above grounds, but only if there is the consent of the employee. This can be either temporary (for example, to replace a temporarily absent employee - Part 1 of Article 72.2 of the Labor Code of the Russian Federation), or permanently (for example, due to family circumstances and the impossibility of continuing work in the previous position). If the transfer is carried out at the initiative of the employee, it is advisable to receive from him a written application for transfer to a lower position and enter into an additional agreement to the employment contract, which specifies new working conditions. In the case where the initiative comes from the employer and the employee is not against the transfer, only an additional agreement to the employment contract is drawn up. In both cases, it is advisable to indicate the reasons for the transfer, clearly indicating the need for its implementation.
Please note that Part 3 of Art. 72.2 of the Labor Code of the Russian Federation provides for the possibility of transferring an employee without his consent for a period of up to one month to a job not stipulated by an employment contract with the same employer in the event of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent destruction or damage to property or replacing a temporarily absent employee, if downtime or the need to prevent destruction or damage to property or replacing a temporarily absent employee is caused by emergency circumstances specified in Part 2 of Art. 72.2 Labor Code of the Russian Federation. However, if the work requires lower qualifications, then the written consent of the employee is also required.
The only grounds for transferring an employee to another job without his consent (including to work of lower qualifications) are cases of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic, and any exceptional cases that threaten the life or normal living conditions of the entire population or part of it, to prevent these cases or eliminate their consequences (Part 2 of Article 72.2 of the Labor Code of the Russian Federation).
For transfers carried out in cases provided for in Parts 2, 3 of Art. 72.2 of the Labor Code of the Russian Federation, the employee is paid according to the work performed, but not lower than the average earnings for the previous job.
Please note that in the event of a legal dispute arising in connection with the temporary transfer of an employee to another job without his consent (Parts 2, 3 of Article 72.2 of the Labor Code of the Russian Federation), the obligation to prove the existence of circumstances with which the law connects the possibility of such a transfer rests with employer (Clause 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 (as amended on December 28, 2006) “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).

Cases of transfer that are a violation of the law

The most common case is the transfer of an employee to a lower position as a measure of responsibility for a disciplinary offense. A complete list of possible disciplinary sanctions is given in Art. 192 Labor Code of the Russian Federation. These include reprimand, reprimand and dismissal on the grounds specified in this article. Accordingly, any transfer as a disciplinary measure will be declared illegal by the court. In addition, there are cases when an employer transfers undesirable employees to a lower position, thereby wanting to force them to resign of their own free will.
To illustrate, let us consider the decision of the Tatar District Court of the Novosibirsk Region dated 04/27/2010, according to which the plaintiff R. on 04/15/2010 filed a claim with the defendant - the municipal institution "Interschool Methodological Center" - for reinstatement in her previous position, recognizing the transfer order as illegal and recovery of compensation for moral damage. From the case materials it is known that R. worked in the organization as a chief accountant. By order dated April 1, 2010, she was transferred to a lower position as an accountant. The basis for issuing the order was the conclusion of an internal audit conducted by K. (legal adviser). In particular, in her conclusion, K. proposed to bring R. to disciplinary liability - to issue a reprimand, but the management decided to transfer R. to a lower position. K. knew that the order was illegal, in connection with this, on 04/21/2010 (after R. filed a statement of claim in court), the transfer order dated 04/01/2010 was canceled and R. was reinstated in the position of chief accountant. In this regard, at the court hearing, R. waived her claims regarding reinstatement at work in her previous position, but asked to recognize this order as illegal, since R. knew nothing about the official inspection carried out against her, the inspection was carried out by one person, not a specialist in the field of accounting, there were no requests for explanations from management, R. did not consent to the transfer and believes that the reason for the transfer was the events that took place during her illness. In particular, she returned to work after the operation (03/30/2010) and they began to demand from her the execution of documents to which she had nothing to do, the execution of which she was not entrusted with. Moreover, legal adviser K. stated that R. “doesn’t care to work as a chief accountant,” since this is an instruction from the head of the education department. R. stated that she did not know why the head of the education department had such an attitude towards her.
In addition, R. believed that the illegal transfer had undermined her business reputation both at the level of the Ust-Tark and Tatar districts. After the incident, workers who had previously reported to R. began to treat her with disrespect; the experiences associated with these events affected R.’s health. In connection with the above, R. asked for compensation for moral damage in the amount of 100,000 rubles.
The court, having examined the case materials, made a decision to satisfy the claims. In particular, the order of the municipal institution "Interschool Methodological Center" dated 04/01/2010 on the permanent transfer of employee R. from the position of chief accountant to the position of accountant was declared illegal; compensation for moral damage in the amount of 6,000 rubles was recovered from the defendant in the interests of R., as well as a state fee to the federal budget in the amount of 4,000 rubles.
According to Part 1 of Art. 72.1 of the Labor Code of the Russian Federation, transfer to another job (both permanently and temporarily) can be made only with the written consent of the employee (exceptions are listed in parts 2, 3 of this article). Therefore, any transfer not agreed upon with the employee will be declared illegal by the court. A striking example is the decision of the Turinsky District Court of the Sverdlovsk Region dated December 16, 2008 N 2-245/08, according to which Ch. filed a claim with the Turinsky District Court against the Blagoveshchensk Kindergarten MDOU for the restoration of violated rights. From the case materials it is known that since May 14, 2007, she worked in the institution as a teacher at 0.65 wages without drawing up an employment contract. In August and September 2008, the plaintiff was on annual paid leave, after which she was not allowed to work; her duties were performed by another teacher, who replaced Ch. during her vacation. After this, Ch. carried out instructions from the manager that were not related to the educational process, namely, she worked as a laborer in the kitchen. Ch. did not give consent to change her labor function. Ch. asked to recover lost earnings (since she received less wages due to the transfer), compensation for moral damages, attorney fees, and travel expenses associated with trips to court.
The representative of the defendant T. did not admit the claims; she explained in court that she transferred Ch. to the position of a general worker in the kitchen due to the fact that the latter does not have the appropriate pedagogical education, but only has a certificate of completion of the one-year Turin pedagogical class, completed in 1968 d. M., who has a diploma from the Irbit Pedagogical School, was hired in Ch.’s place. There was no written statement from Ch. about his consent to be transferred to the position of a general worker in the kitchen.
The court, having examined the case materials, drew attention to the following. From May 2007 to September 2008, Ch. filled the position of teacher at the institution at 0.65 rates on a permanent basis, this is confirmed by a copy of the work book and time sheets. While Ch. was on vacation (August - September 2008), her duties were performed by M., who was hired for this position on a permanent basis, as indicated in the order dated July 1, 2008, although there were no vacant positions in the institution. After Ch. returned from vacation, on the basis of an order dated October 1, 2008, she was transferred to the position of an auxiliary worker in the kitchen at 0.5 rate, although Ch. did not give written consent to the transfer. The court indicated that this translation was carried out in violation of legal requirements.
The court decided to partially satisfy Ch.’s claim:
- reinstate Ch. in the position of teacher at the Blagoveshchensk Kindergarten at 0.65 rates;
- to recover from the defendant in favor of Ch. the average earnings for the period from September 22, 2008 to December 16, 2008 in the amount of 4,634.62 rubles. minus amounts subject to withholding in accordance with the law, compensation for moral damage in the amount of 1,000 rubles, procedural costs in the amount of 6,000 rubles;
- collect from the defendant a state duty in the amount of 400 rubles.
Summarizing the above, we recommend that employers use only the grounds provided for by law to transfer employees to lower positions, since this will allow them to avoid litigation in the future, and if such arise, to win the case in court.
Please note that refusal to perform work during a transfer carried out in compliance with the law is recognized as a violation of labor discipline, and absence from work is considered absenteeism. However, one should take into account para. 5 hours 1 tbsp. 219, part 7 art. 220 of the Labor Code of the Russian Federation, according to which an employee cannot be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, except for cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with harmful and (or) dangerous working conditions not provided for in the employment contract. Since the Labor Code of the Russian Federation does not contain rules prohibiting an employee from exercising this right even when the performance of such work is caused by a transfer on the grounds specified in Art. 72.2 of the Labor Code of the Russian Federation, an employee’s refusal to temporarily transfer to another job in the manner established by Art. 72.2 of the Labor Code of the Russian Federation, for the reasons stated above, is justified.

Situations related to the transfer of an employee to a lower position always raise many questions from employers. From the article you will learn when such a transfer can be made, what documents will need to be prepared and how to reflect in tax accounting payments guaranteed to certain categories of personnel.

Let us remind you that, on the basis of Article 72.1 of the Labor Code of the Russian Federation, transfer to another job is a permanent or temporary change in the labor function of an employee and (or) the structural unit in which he works (if the structural unit was specified in the employment contract), as well as transfer to another job locality together with the employer. In turn, the labor function is to work according to the position according to the staffing table, profession, specialty, indicating qualifications; the specific type of work entrusted to the employee (Article 15 of the Labor Code of the Russian Federation).

When you are demoted, your job function changes. This is accompanied by a number of amendments to the essential terms of the employment contract. But first things first.

When can you be demoted?

Demotion may be permanent or temporary. The transfer can be initiated by either the employer or the employee. However, it is rare to find employees who ask for a lower position. After all, this usually entails receiving lower wages.

Please note: transfer to a lower position is permitted only with the written consent of the employee. Exceptions are cases related to emergency circumstances listed in Part 2 of Article 72.2 of the Labor Code of the Russian Federation.

If the employee does not agree, the entrepreneur must have grounds for demotion. Labor legislation allows you to do this in several situations:

- by written agreement of the parties (Part 1 of Article 72.2 of the Labor Code of the Russian Federation). The purpose of such a transfer is often to replace a temporarily absent employee;

— due to downtime (part 3 of article 72.2 of the Labor Code of the Russian Federation);

— due to the employee’s refusal to work in new conditions (Article 74 of the Labor Code of the Russian Federation);

- in connection with the suspension of the employee’s special right (Article 76, clause 9, part 1 and part 2, article 83 of the Labor Code of the Russian Federation). Such rights include a work permit for a foreign citizen, a driver’s license, the right to carry a weapon for an employee of a private security company, etc.;

— due to a reduction in the number or staff of employees (clause 2, part 1 and part 3, article 81 of the Labor Code of the Russian Federation);

- based on the results of the certification (clause 3, part 1 and part 3, article 81 of the Labor Code of the Russian Federation). In this case, transfer to a lower position is an alternative to dismissal for lack of proper qualifications;

- according to a medical report (Article 73 of the Labor Code of the Russian Federation);

— to eliminate the impact of adverse production factors on a pregnant woman (Part 1 of Article 254 of the Labor Code of the Russian Federation);

- due to the impossibility of performing previous labor functions by a woman who has children under the age of one and a half years (Part 4 of Article 254 of the Labor Code of the Russian Federation);

- due to the expiration of a woman’s employment contract during her pregnancy, if this contract was concluded during the performance of the duties of an absent employee (Part 3 of Article 261 of the Labor Code of the Russian Federation);

- in connection with the termination of an employment contract due to violation of the rules for its conclusion (Article 84 of the Labor Code of the Russian Federation).

Please note: some individual entrepreneurs transfer employees to lower positions for committing a disciplinary offense. However, such actions are illegal. Article 192 of the Labor Code of the Russian Federation contains a closed list of types of disciplinary sanctions: reprimand, reprimand and dismissal. As you can see, demotion of an employee is not included in this list.

For your information.The position of an employee who is on parental leave until the child reaches three years of age is not vacant (Part 4 of Article 256 of the Labor Code of the Russian Federation). During such leave, the employment contract with her continues to be valid. Thus, the entrepreneur is not obliged to offer this position to the employee for transfer based on the results of certification. A similar conclusion is contained in the Determination of the St. Petersburg City Court dated August 30, 2010 No. 33-11908.

Documentation of translation

Any change in the essential terms of the employment contract at the will of both parties must be documented. The diagram (p. 20) shows the document flow when employees are demoted.

Document flow when transferring an employee to a lower position

Application for transfer. As we noted above, sometimes a transfer to a lower position is carried out on the initiative of the employee (in particular, for family reasons). In such a case, he will be required to submit a statement in any form. An example of it is shown on the right.

Translation proposal. If the transfer initiative comes from an individual entrepreneur, he must obtain the employee’s consent to the transfer. To do this, the employee is sent a corresponding proposal drawn up in any form.

This document justifies the need for his transfer to a lower position and indicates a list of all available positions that the employee can occupy in accordance with his qualifications. The document also provides information on official salaries corresponding to vacant positions.

If an employee is temporarily or permanently transferred to a lower position on the basis of a medical report, the transfer proposal must indicate the number and date of such report.

The employee's consent to a demotion is also made in writing. For this purpose, a special column can be provided in the proposal for transfer to another job.

In addition, the employee can submit an application to the individual entrepreneur and inform him of his decision. Please note that the labor legislation does not establish a deadline for withdrawing an employee’s application for transfer to another job. That is, before signing an additional agreement to the employment contract, the employee has the right to contact the individual entrepreneur with a statement indicating refusal to transfer to a lower position.

Additional agreement. If the employee does not object to being transferred to a lower position, an additional agreement to the employment contract is concluded with him. It specifies all the conditions for the transfer: the employee’s new job function, the structural unit in which he will work, the terms of remuneration and the deadline for the transfer.

When an employee is temporarily transferred to another job, the terms of the employment contract are changed for a certain period. The duration of temporary transfer to a lower position is established by agreement of the parties. For example, if an individual entrepreneur temporarily demotes an employee due to deprivation of a special right, the document must reflect the exact date of the employee’s return to his previous place of work. If it is unknown, you can make a note: “Until the day of restoration of special rights.”

Please note: an employee can be temporarily transferred to another position for a period of up to one year (Part 1, Article 72.2 of the Labor Code of the Russian Federation). If the transfer was carried out while replacing an absent employee whose job is retained, its term ends on the day the employee returns to work. That is, in such a situation, the period of transfer to a lower position may exceed a year.

There are cases when an employee is transferred to a lower position temporarily, but as a result, work in the new place becomes permanent for him. This is possible if, at the end of the transfer period, the employee is not given his previous job, and he himself does not require it and continues to work.

Please note that an additional agreement to the employment contract, which implies a demotion, must be signed by both the employer and the employee. If an employee refuses to sign it and does not return to work in a new position, in the event of a trial, the servants of Themis will take his side (Determination of the Moscow City Court dated 08/03/2010 N 33-23228).

Order. Based on the additional agreement, an order is prepared for the employment contract using one of the unified forms - N T-5 or T-5a (approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1). The individual entrepreneur must familiarize the employee with this order against signature.

Marks on your personal card. The fact of transfer to a lower position for an individual entrepreneur must be reflected in the employee’s personal card (form N T-2, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1). In Section III “Hiring and transfers to another job” the following should be indicated:

— date of transfer;

- structural subdivision;

— position (specialty, profession), rank, class (category) of qualifications;

— tariff rate (salary) and bonus;

- basis for translation.

Please note: the individual entrepreneur is obliged to familiarize the employee with each entry made on the basis of an order to transfer to another job, against signature.

Sample filling Personal card

Entries in the work book. Information about transfers to another permanent job must be entered in the work book. About this - Article 66 of the Labor Code of the Russian Federation and paragraph 4 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers (approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225). In this case, the temporary transfer is not reflected in the work book.

An entry about a transfer to a lower position is made on the basis of an order (instruction) of an individual entrepreneur no later than a week.

Note that if the transfer of an employee to a lower position is not confirmed by relevant documents and records, and the employee’s salary remains the same, then in court it will be difficult to prove the fact of such a transfer (Determination of the Moscow City Court dated October 18, 2010 N 4g/8-8373 /2010).

Finally, I would like to note the following. Before an employee starts a new job, the merchant needs to familiarize him with the job description against signature. Also, an individual entrepreneur may need to conclude a liability agreement with him and conduct safety training.

Sample filling Work book

N	date	Information about hiring, transfer to another permanent job, qualifications, dismissal (indicating reasons and reference to the article, clause of the law)	Name, date and number of the document on the basis of which the entry was made
Number	Month	Year
1	2	3	4
7	26	02	2013	Transferred to position	Order
				Seller,	From 06/26/2011 N 8-k
				Part 3 of Article 81 of Labor
				Code of the Russian
				Federation

Salary

Labor legislation provides guarantees to employees who, due to a medical report, need to be transferred to another job (including to a lower position). Thus, they retain the average salary for their previous position for a month from the date of transfer to a lower-paid job.

When transferring due to a work injury, occupational disease or other work-related health damage - until a permanent loss of professional ability to work is established or until the employee recovers (Article 182 of the Labor Code of the Russian Federation).

In addition, pregnant women, in accordance with a medical report and upon their application, are transferred to another job that excludes the impact of adverse production factors, while maintaining the average earnings for their previous job (Part 1 of Article 254 of the Labor Code of the Russian Federation).

According to Part 1 of Article 129 of the Labor Code of the Russian Federation, the accrued average earnings are the employee’s wages. That is, remuneration for work, payment for which is made in accordance with a special norm.

Please note: in case of temporary transfer by agreement of the parties, payment is made by agreement between the employee and the individual entrepreneur.

If, with the consent of the employee, he is transferred to a less qualified job, the parties may agree to maintain the previous salary or to assign an additional payment up to the previous salary.

Personal income tax and insurance premiums on employee income

The income of employees in the form of average earnings is included by an individual entrepreneur in the tax base for personal income tax (subclause 6, clause 1, article 208 and clause 1, article 210 of the Tax Code of the Russian Federation).

Tax calculation by an individual entrepreneur is carried out at a rate of 13% (clause 1 of Article 224 of the Tax Code of the Russian Federation).

In accordance with Article 226 of the Tax Code of the Russian Federation, an individual entrepreneur withholds the amount of personal income tax at the time of payment of income to an employee.

In addition, insurance contributions for compulsory pension insurance, compulsory social insurance in case of temporary disability and in connection with maternity, compulsory medical insurance, compulsory social insurance against industrial accidents and occupational diseases are calculated on the amount of the average earnings maintained. About this - Articles 7 and 8 of the Federal Law of July 24, 2009 N 212-FZ and Article 20.1 of the Federal Law of July 24, 2009 N 125-FZ.

How to deal with personal income tax for the businessman himself

As you know, individual entrepreneurs determine the composition of expenses in the manner established by Chapter 25 of the Tax Code of the Russian Federation. Based on Article 255 of the Tax Code of the Russian Federation, labor costs include any accruals to employees in cash and (or) in kind, incentive accruals and allowances, compensation accruals related to working hours or working conditions, bonuses and one-time incentive accruals, expenses associated with maintenance of these employees, provided for by the legislation of the Russian Federation, employment agreements (contracts) and (or) collective agreements.

These expenses include, in particular, labor costs during the performance of lower-paid work in cases provided for by the legislation of the Russian Federation. About this - clause 14 of part 2 of article 255 of the Tax Code of the Russian Federation.

Thus, if an employee for medical reasons is transferred to a lower position, the salary for which is lower than the previous one, then the entrepreneur has the right to calculate the tax base for personal income tax to take into account the costs associated with maintaining the employee’s average salary as part of labor costs for the entire period determined for the appropriate case.

Taxation of "simplified" farmers and agricultural producers

The closed list of expenses for which individual entrepreneurs applying the simplified tax system with an object of income minus expenses or paying the Unified Agricultural Tax have the right to reduce the income received includes expenses for wages, payment of compensation, temporary disability benefits in accordance with the legislation of the Russian Federation (subclause 6 p. 1 article 346.16 and subparagraph 6 paragraph 2 article 346.5 of the Tax Code of the Russian Federation).

In accordance with paragraph 2 of Article 346.16 and paragraph 3 of Article 346.5 of the Tax Code of the Russian Federation, individual entrepreneurs determine the composition of labor costs on the basis of Article 255 of the Tax Code of the Russian Federation.

Based on the provisions of this article, the accrued average earnings are remuneration for certain categories of workers who have been demoted.

That is, individual entrepreneurs have the right to take its amount into account in expenses that reduce the tax base for the single tax or Unified Agricultural Tax. Based on paragraph 2 of Article 346.17 and subparagraph 2 of paragraph 5 of Article 346.5 of the Tax Code of the Russian Federation, entrepreneurs can do this after actually paying the average salary to the employee.

Good afternoon.

Translation is possible only with your consent. The transfer is formalized by an additional agreement to the Employment contract indicating all the conditions to be changed. The agreement is signed by the parties and is an integral part of the employment contract.

According to clause 7 of Article 77 of the Labor Code of the Russian Federation, if an employee refuses to continue working due to a change in the essential terms of the employment contract, and a change in remuneration is an essential condition of the employment contract, the employment contract is subject to termination.

Your employer offers you another job to replace the one you are doing by transferring you from one position to another.

According to part one of Art. 72.1 of the Labor Code of the Russian Federation, transfer to another job is a permanent or temporary change in the employee’s labor function. Transfer to another job is permitted only with the written consent of the employee, except for the cases provided for in parts two and three of Art. 72.2 Labor Code of the Russian Federation.

An employee can also be transferred to a lower paid job. The exceptions are the grounds specified in part four of Art. 72.1 of the Labor Code of the Russian Federation, namely, it is not allowed to transfer an employee to a job that is contraindicated for him for health reasons.

Remuneration is made according to the work performed (part one of Article 132 of the Labor Code of the Russian Federation).

The transfer, in most cases, is formalized by an additional agreement to the employment contract, which stipulates all changes made to the employment contract. The agreement must indicate the new position (profession, specialty, specific type of work assigned), as well as the date of transfer. Based on the agreement, the employer issues an order (instruction) on the transfer according to the unified form N T-5, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1.

By offering a lower paid position, the employer can explain to you the reason for the change in job function. However, the employer does not have the right to insist on a permanent transfer. You cannot be forced to sign an agreement to transfer to another job.

Based on the above, it follows that you can be transferred to another position with a lower salary, but only if you agree to this.

In the question, you also indicate that a position in your department is being reduced, which means that the employment contract with you may be terminated if the number or staff of the organization’s employees is reduced. (Article 81 of the Labor Code of the Russian Federation)

Dismissal on the basis of a reduction in numbers or staff, is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid job), which the employee can perform with taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

Thus, in answer to your question, we can clarify that the employer does not have the right to force you to sign a transfer to another position, however, if you refuse this transfer, your employer, having fulfilled all the requirements of the law, will simply fire you due to a reduction in the number or staff . These are the risks you face.

Best regards, Sergei.

For various reasons, an employer may need to temporarily or permanently transfer an employee to another position. Is it possible to transfer to a lower-paid position at the initiative of the employer? Is it necessary to obtain consent in this case? Let's figure it out.

Changing the terms of the employment contract

Changing working conditions, including transfer to another position, is possible with the agreement of the employer and employee. However, there are some exceptions.

You can transfer an employee to another job without obtaining his consent. An important clarification: this can only be done temporarily and in emergency circumstances. That is, if a catastrophe, emergency event, or industrial accident occurs, the employee can be transferred to another job, but temporarily, for no more than a month. But even in this case, if the transfer to a lower-paid position is without the employee’s consent, according to labor legislation, during this transfer the specific transferred employee will have to pay no less than the average earnings in his previous position.

Transfer of an employee to another job may be necessary due to health problems - in accordance with the conclusion of doctors. Is it possible in this case to transfer the employee to a lower-paid position?

If the transfer of an employee is necessary temporarily (a transfer for a period of less than 4 months is considered temporary), but the employee does not agree or there are no suitable jobs in the company, then it is necessary to remove the employee from performing job duties, but maintaining the position. That is, a transfer to a lower-paid position at the initiative of the employer cannot be carried out without the consent of the employee. If a longer or permanent transfer is necessary, if the employee refuses or there is no suitable job in the company, the employment contract is terminated.

Transfer to a lower paid position upon layoff

During the staff reduction procedure, before dismissal, the employer must offer employees a transfer to other jobs. This may be a job that matches the employee’s qualifications, but it may also be a job that requires less qualifications and a job with a salary lower than what the employee received. A prerequisite in this case is the absence of medical contraindications.

In free form, the employer draws up a document in which he offers vacant positions. Transfer to a lower-paid position is carried out with the consent of the employee. So that the employee can mark his agreement or disagreement, the document should include a special line for this. This document is drawn up by the employer in two copies, one is sent to the employee, and the other remains with the employer with the employee’s signature. This copy, in case of questions, will be proof that the employer offered the employee a transfer. If an employee does not accept a transfer to another job, his refusal must be formalized in writing. Confirmation of refusal can be a mark in the document with the vacancy offer received from the employer.

Thus, it is possible to transfer an employee to a position with a lower salary if he agrees to the transfer, even if his position is reduced.

In addition, a situation may arise in the company in which some of the working conditions reflected in the employment contract may change. The employer must notify the employee of the changes and the reasons for them at least 2 months in advance. If the employee does not agree with these changes, then the employer is obliged to offer him a transfer, possibly to a position with a lower salary. If the employer has nothing to offer the employee or the employee refuses the transfer, the employment contract is terminated.