Part I: Legal Demotion Options
In all cases of demotion, this movement is made by transferring the employee. A transfer to another job should be considered a permanent or temporary change labor function employee and (or) the structural unit in which he works (if the structural unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to work in another area together with the employer (Part 1 of Article 72.1 of the Labor Code RF).
Possibility 1: mutual consent of the parties, the desire of the employee
Suitable for situation: the employer is not satisfied with the result of the employee’s work, while the latter understands the current situation and agrees to move to a less responsible position, one of a lower rank than the one occupied.
How to use: having previously received an application for transfer from the employee, enter into an additional agreement to the employment contract and issue a corresponding order for the transfer.
Compliance with Law: complies with legal requirements.
Risk of dispute: there is a risk that the employee may challenge the transfer, either citing coercion on the part of the employer, or changing his position on this issue. However, in in this case The position of the judiciary is interesting.
One of the reasons for changing an employment contract is transfer to another job.
One of the reasons for changing an employment contract is transfer to another job. Promotion and demotion refer to transfers that require the employee's consent. Transfer to another job, according to the current labor legislation, is clearly permitted only with the written consent of the employee. This general rule, from which the legislator establishes exceptions for cases provided for in Parts 2 and 3 of Art. 72.2 Labor Code of the Russian Federation. According to paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code Russian Federation", in accordance with Art. 60 and 72.1 of the Labor Code of the Russian Federation, the employer does not have the right to require the employee to perform work not stipulated by the employment contract, except in cases provided for by the Labor Code of the Russian Federation and other federal laws, and also to transfer the employee to another job (permanent or temporary) without his written consent, except in cases , provided for in Parts 2 and 3 of Art. 72.2 Labor Code of the Russian Federation.
A transfer based on an application received from an employee complies with the procedure established by law. The fact that wages decreased significantly after the transfer cannot serve as an unconditional basis for declaring the transfer illegal, since this circumstance in itself does not indicate the forced nature of writing an application for transfer. And even the fact that the employee performed his duties improperly, and the manager was dissatisfied with such an employee and offered to take a less responsible position, does not indicate that the employee wrote the transfer application under pressure.
In practice. The employee filed a lawsuit challenging her transfer from the position of deputy head of the bureau for economic affairs to the position of an ordinary senior economist. In justification, she indicated that she first wrote, under pressure from the employer, an application for transfer to a lower position, and then withdrew this application. However, the employer still transferred her to another position, as a result of which she lost not only her official status, but also now began to earn less due to the difference in salaries. She asked that her translation be declared illegal. The court refused to satisfy her demands, recognizing the downward transfer as fully consistent with the law. Based on the data presented, the court found that the manager agreed to the transfer after receiving the plaintiff’s application - but after two weeks of work, taking into account the need to select a new candidate for this position. The company issued an order to transfer the plaintiff to the position of accounting economist, which she was familiarized with, but refused to sign, which was not disputed by anyone. The plaintiff’s argument that she &date> filed an application to withdraw her application for transfer cannot serve as a basis for declaring such a transfer illegal by analogy with Art. 80 Labor Code of the Russian Federation, because the transfer order was issued before receiving an application from her to withdraw the transfer application. The court found the argument that the plaintiff could not previously file an application for revocation because she was undergoing treatment to be unfounded, since a significant period of time had passed from the moment the application for transfer was written until the temporary loss of ability to work. The court came to the conclusion that the plaintiff’s writing of an application for transfer to a lower position due to unsatisfactory performance as deputy head of the bureau for economic affairs and refusal to perform her duties cannot be regarded as pressure from the employer and as a lack of voluntary expression of the employee’s will. Based on the above, the court recognized the downward transfer as legal (decision of the Levoberezhny District Court of the Lipetsk Region).
Possibility 2: Demotion as a result of performance appraisal
Suitable for situation: in the organization regarding individual workers certification was carried out, and some of them showed unsatisfactory results. In accordance with this, the certification commission came to the conclusion that the positions held by these certified persons were inappropriate.
How to use: strictly in accordance with the requirements of Part 3 of Art. 81 Labor Code of the Russian Federation. Thus, dismissal on the grounds provided for in clause 3, part 1, art. 81 of the Labor Code of the Russian Federation (as a result of the employee’s incompatibility with the position held or the work performed due to insufficient qualifications confirmed by the results of certification), is allowed 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 matches the employee’s qualifications, or and a vacant lower position or lower paid job) that the employee 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.
Thus, after the certification commission decides that the employee is not suitable for the position held, and the head of the enterprise decides to dismiss the employee under clause 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation, the employer must first offer him a transfer to another job and only if he refuses the transfer, dismiss him on the above grounds.
The same applies to a specific category of workers – civil servants. So, clause 3 and clause 16 of Art. 48 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” provide, as one of the possible consequences of unsatisfactory certification results, the demotion of an employee to a civil service position and exclusion from the personnel reserve if he is in it. If a civil servant refuses to be transferred to another position in the civil service, the employer's representative has the right to release the civil servant from the position being filled and dismiss him from the civil service.
A similar procedure is provided for law enforcement officers and other “specific” categories of workers whose activities are regulated by special regulations.
Compliance with Law: complies with the law if the procedure is followed.
Risk of dispute: there is a risk of dispute regarding the legality of the certification itself, as well as the validity of its results. The dismissal procedure under clause 3, part 1, art. 81 Labor Code of the Russian Federation. However, here too the court does not always find itself on the side of the employee: if the court determines that the certification was carried out in accordance with the internal local act (the legality of its content and the procedure for approval in these types of disputes is always verified by the court), the results are recorded in the commission act and comply with the assessment rules competence of employees, the court recognizes dismissal based on the results of certification (or transfer with demotion in accordance with Part 3 of Article 81 of the Labor Code of the Russian Federation) as legal and justified.
In practice. An employee who was transferred to another position with a demotion filed a lawsuit to challenge the transfer. In support of the requirements, he indicated that the basis for the transfer was the certification, which revealed his inadequacy for the position held. He was forced to agree to a downward transfer because... I didn’t want to be fired under clause 3, part 1, art. 81 Labor Code of the Russian Federation. However, he still believes that the purpose of the certification was the dismissal of undesirable employees, among whom he found himself. The court examined both the basis for the certification and the compliance of the certification with the established procedure for its implementation and found no violations in the actions of the employer. Moreover, the court also assessed the employee’s certification sheet. The fact that the plaintiff was asked 14 questions during the certification process, and the plaintiff gave incorrect answers to 11 of them, was correctly assessed by the court as evidence of the validity of the certification commission’s conclusions about the plaintiff’s unsuitability for the position held. Taking this into account, the court came to the conclusion that the results of the certification were legal, the plaintiff’s transfer was downgraded, and the plaintiff’s claim was accordingly denied (decision of the Selivanovsky District Court of the Vladimir Region dated July 12, 2011 in case No. 2-248/2011).
On the contrary, if the court establishes the illegality of the certification, its results or the procedure, then the downward transfer may be declared illegal. Moreover, the trial may generally end quite disastrously for the employer: all subsequent actions of the employer with the specified employee “along the chain” may be declared illegal, and the employee is reinstated in his previous (the one before the certification) position, in which he is calm and will continue to work... until the next certification or dismissal for suitable reasons.
In practice. The employee, who was recognized as unsuitable for her position based on the results of the certification, was transferred from the position of specialist expert to the position of senior specialist of the 1st category (with demotion) and was soon dismissed from this position due to staff reduction. By going to court, the employee demanded that the certification results be declared illegal, and that the transfer and subsequent dismissal be declared illegal as well. The court examined the procedure for conducting certification and came to the conclusion that its results were illegal due to unconfirmed circumstances indicating the low quality of the plaintiff’s work. In addition, the court came to the conclusion that the certification of the plaintiff was carried out unlawfully - without following the procedure for its conduct. Based on these findings, the court declared the certification results illegal and the demotion of the plaintiff carried out in connection with this was also illegal. Despite establishing that there were no violations in the procedure for dismissing the plaintiff due to staff reduction, the court declared the plaintiff’s dismissal on the above grounds illegal, reinstating her at work. At the same time, the court indicated that since the results of the certification and the transfer were recognized as illegal, the plaintiff was subject to reinstatement as a specialist expert. This means that she was not subject to dismissal due to staff reduction, unlike the position of senior specialist of the 1st category, which was reduced (decision of the Supreme Court of the Republic of Tatarstan dated 07/07/2011 in case No. 8430/11).
If the court recognizes the results and certification procedure as lawful, but finds only a violation of the translation procedure, it may also declare such a translation illegal.
In practice. The court declared the transfer of the employee to a lower position illegal and reinstated him in his previously held position. As the court found, the employee filled the position of the state civil service of the legal consultant department of the legal support department of the legal department of the apparatus of the regional Duma. Based on the results of the certification of the civil servant, the certification commission decided that the employee does not correspond to the position being filled. By notification, the employee was warned about the upcoming transfer to the lower position of the state civil service proposed for replacement - a leading specialist in the general department of the apparatus of the regional Duma with<дата>, and he was explained the right to refuse the transfer, as a result of which he would be dismissed from the state civil service. The employee was familiarized with this notice. By order from<дата>The legal consultant of the legal support department of the legal department of the regional Duma apparatus was transferred to a lower position in the state civil service - a leading specialist in the general department of the regional Duma apparatus. The court declared the transfer illegal taking into account the provisions of paragraph 1 of Art. 28 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” on the possibility of transferring a civil servant to another position in the civil service only with the written consent of the civil servant. According to the established facts, the transfer of the employee to a lower position was carried out without established by law his written consent (cassation ruling of the Volgograd Regional Court dated 06/01/2011 in case No. 33–7037/2011).
In practice, however, there are also small incidents: the results of certification are recognized as legal, the actions of the employer that followed as a reaction to unsatisfactory results of certification are also legal, but the dismissal of an employee is not.
In practice. Based on the results of the certification, the maritime pilot was deprived of his pilot’s license and then dismissed under clause 9 of Art. 83 of the Labor Code of the Russian Federation (expiration, suspension for a period of more than two months or deprivation of an employee of a special right (license, right to manage vehicle, the right to carry weapons, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility of the employee fulfilling his duties under the employment contract). The employee did not agree with the results of the certification, nor with the deprivation of his pilot’s license, nor with the dismissal and went to court. The court examined specific regulations governing the work of employees sea vessels, and came to the conclusion about the legality of the conclusions of the certification commission, as well as the legality of the employer’s subsequent order to deprive the plaintiff of his pilot’s license (which was allowed by regulations governing the work of maritime pilots). At the same time, the court considered that, despite the defendant’s compliance with the general procedure for terminating the employment contract provided for in Art. 84.1 of the Labor Code of the Russian Federation, the wording of the grounds for dismissal is incorrect due to the fact that it is impossible to recognize a pilot’s license as confirmation of the employee’s special right: a pilot’s license only certifies that the plaintiff holds the position of pilot and confirms his right to pilot ships in certain areas. Meanwhile, the plaintiff was dismissed on the grounds provided for in paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation, - due to the employee’s inadequacy for the position held due to insufficient qualifications, which is confirmed by the results of certification. Due to the incorrect application of the grounds for dismissal and the inability to change the wording of the grounds for dismissal in accordance with Art. 394 of the Labor Code of the Russian Federation and paragraph 60 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, the plaintiff was reinstated at work, even without a pilot’s license (decision of the Kirovsky District Court of St. Petersburg dated 05/04/2009 in case No. 2–971/09).
Possibility 3: Demotion as a result of penalty
Suitable for situations: demotion of law enforcement officers, for whom the law calls demotion a disciplinary sanction. This is possible in relation to, for example:
- police officers (clause 3 of article 15 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”);
- employees of the prosecutor's office - a reduction in class rank and a warning about incomplete official compliance (Article 41.7 of the Federal Law of January 17, 1992 No. 2202-1 “On the Prosecutor's Office of the Russian Federation”);
- employees of the Investigative Committee of the Russian Federation - also a reduction in special rank and a warning about incomplete official compliance (Article 28 of the Federal Law of December 28, 2010 No. 403-FZ “On the Investigative Committee of the Russian Federation”).
How to use: taking into account the norms of the Labor Code of the Russian Federation and the law specifically regulating the work of the above-mentioned employees.
Compliance with Law: complies with the law only when applied to employees from the above-mentioned specific bodies. In relation to employees of ordinary organizations, demotion as a punishment is illegal.
Risk of dispute: there is a risk that the employee will challenge the punishment applied to him in the form of demotion. The position of the court in these types of disputes is identical to the position in similar disputes with employees of any enterprises: if during the consideration of the case violations of the procedure for bringing an employee to disciplinary liability are established, the punishment cannot be considered lawful.
In practice. An employee of the internal affairs bodies (hereinafter referred to as the Department of Internal Affairs) was reinstated at work by a court decision. The court found that the plaintiff was dismissed due to refusal to transfer to a lower position. A proposal in the form of a transfer order came from the employer after an internal audit established that the employee was improperly performing his duties. When considering the case, the court found that the employer violated the deadlines for bringing the plaintiff to disciplinary liability, as well as the procedure for conducting an internal audit. The plaintiff was not notified of the fact that an inspection was being carried out against him, an explanation for the violations job responsibilities was not taken away from the employee. Taking into account these conclusions, the court found the disciplinary action against the plaintiff illegal and reinstated the police officer in his previous position (decision of the Oktyabrsky District Court of Arkhangelsk dated May 28, 2012 in case No. 2-1562/2012).
Part II. Some important issues related to demotion
Question about salary reduction without demotion
So, the enterprise has only equivalent positions of the same profile with the same pay. Many employers are interested in whether, in this case, they have the right, without moving the employee, to only reduce wages if it is determined that his competence is not too high.
Let's figure it out.
According to Part 2 of Art. 57 of the Labor Code of the Russian Federation, the amount of remuneration must be specified in the employment contract as a separate condition.
According to Art. 72 of the Labor Code of the Russian Federation, changing the terms of the employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract, with the exception of cases provided for by the Labor Code of the Russian Federation. An agreement to change the terms of the employment contract determined by the parties is concluded in writing. Since the change in salary in this case will not be a consequence of a transfer to another job, the specified method of making changes to employment contract cannot be used.
However, there is also the possibility of changing the terms of the employment contract unilaterally - in accordance with Art. 74 Labor Code of the Russian Federation. But in this case, the employer will have no reason to use it, because there will be no necessary reasons for this - changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons).
Conclusion: If the results of the certification reveal that the employee is unsuitable for the position held, then by reducing his already established salary, the employer is acting illegally. In the same way, you cannot reduce the salary of an employee whose incompetence has been established by other means.
Demotion of an employee with a certain status
According to the requirements of the law and internal local regulations, certain categories of employees are temporarily not subject to certification, including women directly on maternity leave or parental leave. However, there is no restriction regarding the application of certification results to a pregnant woman. What measures can be taken against an employee who was recognized by the certification commission as unsuitable for her position, did not agree to the transfer, but brought a certificate of pregnancy?
Let's look into the issue.
According to Part 1 of Art. 261 of the Labor Code of the Russian Federation, termination of an employment contract at the initiative of an employer with a pregnant woman is not allowed, except in cases of liquidation of the organization or termination of activities by an individual entrepreneur. Thus, dismiss the employee under clause 3, part 1, art. 81 of the Labor Code of the Russian Federation, as a result of an employee’s inadequacy for the position held or the work performed due to insufficient qualifications confirmed by certification results, the employer has no right. At the same time, the procedure for transferring to a lower position requires the employee’s consent to the transfer. Thus, the employer in this case will not be able to:
- dismiss (clause 3, part 1, article 81 of the Labor Code of the Russian Federation and article 261 of the Labor Code of the Russian Federation);
- transfer to another job (Articles 72–74 of the Labor Code of the Russian Federation);
- suspend from work (Article 76 of the Labor Code of the Russian Federation);
- declare downtime (Article 72.2 of the Labor Code of the Russian Federation).
Conclusion: a pregnant employee, despite unsatisfactory results of certification (conducted before receiving information about her pregnancy), will legally continue to work in the same position and with the same wages due to the special protection of its status by law.
Conclusions
Based on the foregoing, the following conclusions can be drawn:
- Despite the fact that the Labor Code of the Russian Federation provides for demotion only during the dismissal procedure as a result of establishing that the employee does not correspond to the position held based on the results of certification, practice is much more varied in the decision this issue.
- The court does not always recognize a demotion as illegal if the parties have chosen the first option to resolve this issue. At the same time, the court’s position is based on the freedom of expression of the employee, who may “want” to take a less significant and less paid position due to his own conclusions, own reasons.
- In relation to employees whose activities are regulated by other laws, demotion is also possible as a disciplinary action.
- A reduction in salary is possible only in conjunction with a transfer to a lower position. The law does not provide for a reduction in the amount of pay based on negative certification results.
- There is a category of workers with a special status – pregnant women. If it is established that such an employee does not correspond to her position, the issue will be resolved in the standard way with demotion in accordance with Part 3 of Art. 81 of the Labor Code of the Russian Federation is impossible, as is her dismissal. There is a way out of the situation, but only by using the first option, if, of course, an appropriate agreement is reached between the parties.
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 looks like this:
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).
Society with limited liability"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 has no 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: “If you refuse 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
Reduction in the number or staff of the organization's employees, 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 vacant positions or jobs available to the employer, including lower-ranking ones and lower paid. 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 it.
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. Full list possible disciplinary sanctions are 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. at will.
To illustrate, let us consider the decision of the Tatar District Court of the Novosibirsk Region dated April 27, 2010, according to which the plaintiff R. filed a lawsuit on April 15, 2010 statement of claim to the defendant - the municipal institution "Interschool Methodological Center" - for reinstatement in his previous position, recognition of 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 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 illegal, since R. knew nothing about the official inspection carried out in relation to her; the inspection was carried out by one person, not an expert in the field 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 municipal institution"Interschool Methodological Center" dated 04/01/2010 on the transfer of employee R. permanently from the position of chief accountant to the position of accountant, 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 duty 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 Blagoveshchensky MDOU kindergarten"on the restoration of violated rights. From the case materials, it is known that from May 14, 2007, she worked in the institution as a teacher at 0.65 rates without drawing up an employment contract. In August and September 2008, the plaintiff was on annual paid leave, after leaving which she was not allowed to work, her duties were performed by another teacher, who replaced Ch. during her vacation. After that, Ch. carried out the instructions of the head, not related to the educational process, namely, she worked as a general worker in the kitchen. Ch. did not give consent to change her job function. Ch. asked to recover lost earnings (since she received less wages due to the transfer), compensation for moral damages, attorney fees and transport costs related to trips to court.
The representative of the defendant T. did not admit the claims; in court she explained 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 translation carried out in compliance with the law is considered a violation labor discipline, and absenteeism is 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.
For various reasons, an employer may need to temporarily or permanently transfer an employee to another position. Is it possible to transfer to 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 agreement between 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. Required condition in this case there is no medical contraindication.
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.
In the new conditions, many enterprises are trying to reorganize unprofitable production or simply optimize the work of staff. All this is accompanied by either a reduction in the number of employees, or the reduction of a number of positions and the creation of new ones corresponding to the new profile, or a reshuffle of personnel. How should an employer transfer employees to new jobs, also with a salary reduction?
It’s worth mentioning right away that the material will not talk about cases of forced transfer provided for by Art. 170 and 178 of the Labor Code, as well as on short-term transfer due to production needs (Articles 33, 34 of the Labor Code), and transfer to another enterprise.
Depending on what exactly the employer intends to change in the employee’s work, the legislator has provided for the possibility of relocation and transfer itself. If changes concern a workplace, a structural unit in the same area, a mechanism or unit, but within the same enterprise, specialty, qualification or position, the employee’s consent is not required. This is considered a movement of the employee, carried out only on the basis of an order from the employer (preferably justified).
However, if changes in the status of an employee are associated with a change of position (specialty, place of work, etc.), this will already be a change in essential working conditions, which cannot but require the consent of the employee (Article 32 of the Labor Code). In this case, experts offer two options:
- reduce the position (staffing unit) in which the employee previously worked and offer him work in another position in another structural unit (provisions of Article 49-2 of the Labor Code);
- transfer the employee to another (probably lower-paid) position with his consent (transfer itself).
The algorithm of actions of the employer in the first case (even if we are talking about the reduction of some positions and the introduction of others) is similar to that described in the mentioned material. Therefore, the publication decided to pay attention to the translation procedure.
In essence, a transfer is a change in essential working conditions. Therefore, the employer is not bound by the will of the employee, because in case of disagreement, the employment contract is simply terminated on the basis of clause 6 of Art. 36 Labor Code. That is, the employee has little choice: either agree to the transfer or look for a new job, which is often unacceptable in a crisis.
Translation issues are regulated by Art. 32 Labor Code. The basis for optimizing the work of personnel is the fairly broadly interpreted concept of changes in the organization of production and labor, the decision to implement which is made by the employer (in agreement with the trade union, if there is one).
In order for their consequences to be legitimate, they must first be recorded, that is, an appropriate order (instruction) must be issued, which indicates the rationale and content of the changes, and also gives instructions to officials to implement such changes, including optimizing the work of personnel.
Despite the fact that in Art. 32 transfer issues are dealt with separately from changes in essential working conditions; it is generally accepted that a similar procedure must be followed when transferring. That is, two months before the implementation of changes, employees who are offered a transfer should be notified of all changes, including salary changes.
To do this, they must be familiarized with the order on changes in the organization of production and labor in person, against signature and in front of witnesses. The employee has the right to disagree with the transfer (slave labor is prohibited), but in doing so he will be fired. By the way, the employer should carefully observe all formalities, since it is quite likely that employees who disagree with the employer’s decision will go to court. This is especially true for the rationale for making a decision on a transfer, because it may be recognized by the court as untenable, as a result of which the employee will be reinstated (clause 31 of the resolution of the Plenum of the Armed Forces of Ukraine “On the practice of considering labor disputes by courts”).
Next, after 2 months, you should issue a corresponding transfer order, make changes to the employment contract and make a corresponding entry in work book. If employees do not give consent and are subject to dismissal, an order is issued for their dismissal under clause 6 of Art. 36 (with payment of severance pay) or according to paragraph 1 of Art. 36, and information is also submitted to the employment service (according to paragraph 4 of Article 20 of the Law “On Employment”).
An employee of the HR department, in a conversation with a correspondent of the publication, pointed out some of the difficulties in implementing this method. In particular, the employer cannot always justify its decision to transfer in the event of a claim from a dissatisfied employee. In this case, according to the expert, it is much easier to invite the employee to write a transfer application of his own free will (but for this it is necessary to offer him more or less acceptable conditions). Then the employer will not have to wait two months to transfer him. If the employee does not agree, any of the options described above can be applied at the employer’s discretion.
By the way, the employer should not forget about the provisions of Art. 114 of the Labor Code, which obliges to pay an employee transferred to a lower-paid job the previous salary for two weeks, and in the case of a transfer with a reduction in salary for reasons independent of the employee - for 2 months.
Conclusion
So, you can transfer an employee to another (lower paid) position either by making a change to staffing table(by reducing old positions and introducing new positions (staffing units), or by obtaining the employee’s consent to transfer to another position. The employee’s refusal in both cases entails termination of the employment contract.
The best option for the latter is for the employee to write a transfer application at his own request, which does not require a two-month wait to make changes.
In general, if the employer decides to carry out a reorganization (optimization of personnel work, rationalization of jobs, re-profiling, etc.), the only decision that depends on the employee is whether to continue labor relations with him in a new status or stop them altogether.
1. Transfer of an employee of internal affairs bodies in the cases established by this Federal law, to a higher, equivalent or lower position in the internal affairs bodies, to another locality, or in connection with his enrollment in an educational organization higher education federal body executive branch in the field of internal affairs is permitted with the consent of the employee, expressed in writing, unless otherwise provided by this Federal Law.
(as amended by Federal Law dated July 2, 2013 N 185-FZ)
2. A position in internal affairs bodies is considered superior if it has a higher special rank than the special rank for the previous position in internal affairs bodies, and if the special ranks are equal, a higher official salary.
3. The transfer of an employee of internal affairs bodies to a higher position of rank and file, junior, middle or senior management is carried out based on the results of certification and (or) competition, except for cases where the appointment of an employee to a higher position in internal affairs bodies is carried out from the personnel reserve, in which he was in accordance with Article 78 of this Federal Law.
4. A position in internal affairs bodies is considered equivalent if it is provided with a special rank and official salary equal to the special rank and official salary for the previous position in internal affairs bodies.
5. The transfer of an employee of internal affairs bodies to an equivalent position in internal affairs bodies is carried out:
1) due to the need to fill another position in the interests of the service or by rotation in accordance with Part 12 of this article;
2) for health reasons in accordance with the conclusion of the military medical commission;
3) for personal or family circumstances;
4) in connection with the reduction of the position being filled by the employee;
5) in connection with the restoration of an employee to the position that he previously filled, if this position is filled by another employee;
6) in connection with the termination of a fixed-term contract;
7) in connection with the termination of access to information necessary for the performance of official duties
8) in order to eliminate circumstances related to the direct subordination or control of employees who are in relationships of close kinship or affinity, in accordance with the legislation of the Russian Federation.
6. A position in internal affairs bodies is considered inferior if a lower special rank is provided for it than the special rank for the previous position in internal affairs bodies, and if the special ranks are equal, a lower official salary.
7. The transfer of an employee of the internal affairs bodies to a lower position in the internal affairs bodies is carried out:
1) for health reasons in accordance with the conclusion of the military medical commission;
2) for personal or family reasons;
3) in connection with the reduction of the position being filled by the employee;
4) in order to impose a disciplinary sanction;
5) in connection with the restoration of an employee to the position that he previously filled, if this position is replaced by another employee and there is no equivalent position;
6) in connection with the termination of access to information constituting state and other secrets protected by law, necessary for the performance of official duties;
7) in connection with refusal to transfer to an equivalent position in the order of rotation in accordance with Part 12 of this article;
8) due to the employee’s inadequacy for the position being filled (taking into account the recommendation of the certification commission);
9) in order to eliminate circumstances related to the direct subordination or control of employees who are in relationships of close kinship or affinity, in accordance with the legislation of the Russian Federation.
8. The transfer of an employee of the internal affairs bodies to a lower position in the internal affairs bodies on the basis provided for in paragraph 1, , or 6 of part 7 of this article is permitted if it is impossible to transfer him to an equivalent position. In this case, an employee transferred to a lower position in the internal affairs bodies on the basis provided for in paragraph 1 or 5 of part 7 of this article is retained an official salary in the amount established for the last position that he filled before appointment to a lower position. Payment of the retained official salary is made until the employee has the right to receive a higher official salary due to his increase in in the prescribed manner or appointing an employee to a position in the internal affairs bodies with a higher salary.
9. The transfer of an employee of the internal affairs bodies is carried out upon his enrollment in an educational organization of higher education of the federal executive body in the field of internal affairs for full-time study or for the preparation and defense of a dissertation for the degree of Doctor of Science in educational organization or scientific organization federal executive body in the field of internal affairs.
(Part 9 as amended by Federal Law dated July 2, 2013 N 185-FZ)
(see text in the previous edition)
10. If it is impossible to transfer an employee of the internal affairs bodies to another position in the internal affairs bodies or his refusal to such a transfer, the employee is subject to dismissal from service in the internal affairs bodies, except for cases of refusal to transfer on the grounds provided for in Part 3, paragraphs 1, and 6 Part 5, paragraph 2 of Part 7 and Part 9 of this article. In this case, the contract with the employee is terminated due to the impossibility of transfer or the employee’s refusal to transfer to another position in the internal affairs bodies, unless otherwise provided by this Federal Law. On the impossibility of transferring an employee, the personnel division of the federal executive body in the field of internal affairs, its territorial body or division shall prepare a corresponding conclusion. The employee’s refusal to transfer is documented in a report. If an employee refuses to submit a report, a corresponding report is drawn up.
11. The performance of equivalent functions in another position in the internal affairs bodies in the same unit and in the same area, which does not entail a change in the terms of the contract, is not a transfer and does not require the consent of an employee of the internal affairs bodies.
11.1. An employee of the internal affairs bodies, transferred to a higher, equivalent or lower position in the internal affairs bodies, corresponding to a different functional purpose or area of activity, along with the performance of official duties, undergoes individual training at the place of duty under the guidance of an immediate supervisor (supervisor) and a mentor from among experienced employees internal affairs bodies, appointed by order of the authorized head. Organization procedure individual training employee of internal affairs bodies is established by the federal executive body in the field of internal affairs.
12. An employee of the internal affairs bodies who continuously fills the same position of the head of a territorial body of the federal executive body in the field of internal affairs for six years may be transferred by rotation by decision of the President of the Russian Federation, the head of the federal executive body in the field of internal affairs. affairs or an authorized manager to another equivalent position in the same locality, and if such a transfer is impossible - to another equivalent position in another locality. In case of refusal without good reasons from a rotation transfer, an employee, with his consent, can be transferred to a lower position in the same area, and in case of refusal, he can be dismissed from service in the internal affairs bodies.
13. The transfer of an employee of the internal affairs bodies to another position in the internal affairs bodies is carried out by decision of the President of the Russian Federation, the head of the federal executive body in the field of internal affairs or an authorized head and is formalized by a corresponding act, which is brought to the attention of the employee against receipt. Until an employee is appointed to a position in the internal affairs bodies at a new place of duty, formalized by the relevant act, service relations with him or her at the previous place of duty are maintained.
Open full text document