Features of dismissal by transfer to another organization. What is better for the employee and the manager - transfer or dismissal

Dismissal by transfer to another organization is often practiced by holding companies. Find out who benefits from it and how to draw up the procedure correctly, download samples of the necessary documents

From this article you will learn:

Dismissal by transfer: what the law says

Article 72.1 of the Labor Code of the Russian Federation allows for the possibility of dismissal by transfer to another organization by mutual agreement of the parties. This procedure can be carried out either at the request of the employee or at the initiative of the employer. In any case, written confirmation of his consent must be obtained from the employee.

If the initiative comes from the employee, then he must provide the manager with a statement and a letter from the future employer about the intention of employment. Without such a letter, the current employer may refuse. This is primarily due to the need to indicate in the order and work book the name of the legal entity to which the outgoing person is leaving.

The initiative of the employer is formalized by the proposal (notification) of the employee. The offer must be made in writing and the company must take care to confirm the fact of familiarization. Otherwise, you may receive penalties.

The procedure for dismissal by transfer to another organization

At the initiative of the worker

The first stage of this procedure is the submission of an application to the employer. Moreover, when transferring, working off is not canceled and, accordingly, the application must be submitted at least 14 calendar days before the expected date of departure. Of course, the employer can let go earlier, but this is his decision.

Together with the application, the employee provides a letter from the future employer, with a clear intention to employ. It also prescribes the period in which such employment is possible (how long the company is ready to wait for a person). The legislator defines this period as 1 month.

On the last day of work, it is necessary to prepare the necessary documents for terminating the contract and to calculate and pay the money due. Dismissal occurs according to paragraph 5 of Art. 77 of the Labor Code of the Russian Federation. This article is indicated both in the work book and in the order in the T-8 form.

The employee is entitled not only to all unpaid wages, but also to compensation for unused vacation. There are no additional benefits and compensations provided by the state for transfer through dismissal.

At the initiative of the employer

The employer can also offer dismissal with a transfer to another organization. How to do it right?

As a rule, such transfers are practiced by companies that include not one, but several legal entities. Depending on the needs of the business, employees are transferred from one legal entity to another.

First of all, the procedure must begin with the submission of a proposal.

The notice (proposal) indicates not an ultimatum statement, but an opportunity. The document should be drawn up in 2 copies, and on the company’s copy, get a person’s mark of agreement or disagreement in the translation. The Labor Code does not contain a norm obliging the employer to warn of dismissal in advance. Therefore, if agreed, it can take place on the day of notification.

It is also worth getting a corresponding statement from the departing employee in order to cut off possible claims. Otherwise, the procedure does not differ from the procedure for terminating the contract at the initiative of the employee.

Enrollment in labor

An entry in the work book is made on the last day of work after the issuance of the dismissal order. The basis for termination of the contract is paragraph 5 of Art. 77 of the Labor Code of the Russian Federation. The entry will read as follows: “Dismissed by way of transfer to Prometey LLC, clause 5 of the first part of Article 77 of the Labor Code of the Russian Federation.”

At the same time, the host organization in the employment record must indicate the company from which the new person arrived, for example: “Accepted in the order of transfer from Alpha LLC to the position of a system administrator in the information technology department.”

Calculation of payments

On the day of dismissal, the employee is paid all due wages for the time worked, as well as compensation for unused vacation. Compensation is required. The legislation does not allow the transfer of non-holiday days to a new employer.

Compensation is paid for all vacation days that were not used by the employee. Their calculation is based on the average annual income of the departing.

Who benefits from being fired by transfer?

First of all, the worker himself. After all, the law obliges the new employer to employ the candidate during the transfer within a month. With this type of termination of the contract, a person does not go anywhere, but has ways of retreat.

An employee from one organization to another or to another position in the same enterprise through dismissal is accompanied by a number of bureaucratic formalities. The process is regulated by legislative normative acts.

Internal and external transfer to another job

Transfer from work to another can be both internal and external. It depends on the movement of employees within the organization or on the release of vacancies in other enterprises.

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1. Internal involves a change of workplace in the same organization. The employee is entitled to transfer to another unit or change position. This is possible only in agreement with the manager, but the only exceptions are unforeseen circumstances, for example, natural disasters, emergencies and other incidents.
2. The concept of an external transfer is the complete termination of an employment contract with an employer and the conclusion of an employment agreement with another within a month.

When an employee moves to another place, but if the company remains the same and dismissal is not required.

The process of dismissal through transfer

The basis will be a letter of invitation to the employee for a new job. On the basis of a court decision, the employer is obliged to employ the citizen, and, among other things, an administrative penalty in the amount of 100,000 rubles is imposed on the former.

Another problem may be the disagreement of the employer for whom the employee is currently working. In this case, only one decision is made - dismissal of one's own free will. In the latter case, the employee loses all translation privileges.

The video will tell about the dismissal in translation order:

Question form, write your

One of the types of transfer to another job under the Labor Code of the Russian Federation is the transfer of an employee to another employer (part 2 of article 72.1). The need for it may arise in the following cases:

• decision by business owners to close one firm and open another with the retention of staff;
• sending a request by a third-party employer to transfer a specific employee to him;
• an employee's request to be transferred to another location.

Other types of transfers provided for by this article of the code do not imply a change of employer. In the situation under consideration, in fact, there is a termination of the old labor relationship and the emergence of a new one, with a different subject composition (change of employer). The result of the transfer will be a terminated employment contract for the old place of work and concluded for a new one.

As a general rule, the Labor Code of the Russian Federation allows only a transfer to another employer on a permanent basis. Temporary transfer is possible only for one category of workers - athletes (Article 348.4 of the Labor Code of the Russian Federation). It is also important to remember that establishing a probationary period for employees transferred from other organizations, in accordance with par. 7 h. 4 tbsp. 70 of the Labor Code of the Russian Federation, prohibited.

Is it necessary to transfer employees during the reorganization (both in the form of affiliation and in other forms)?

Labor Code of the Russian Federation in part 5 of Art. 75 determines that the reorganization cannot be the basis for the termination of labor contracts. However, an employee who does not want to continue the employment relationship in connection with the reorganization has the right to stop working at the current place. If the relevant application was received by the employer, the worker must be dismissed under paragraph 6 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

In order to exercise this right, an employee should be notified of the reorganization in advance (for example, 1 month before it starts). If the reorganization involves a change of employer, then with the employees, subject to their consent to continue working, appropriate additional agreements to employment contracts must be concluded. Thus, no need for transfer of an employee to another organization in the case where there is a reorganization in any form, no.

Necessary conditions for transfer to another employer

The transfer of an employee from one place of employment to another is possible only with a clear expression of the will of all interested parties:

• the employee himself;
• former employer;
• new employer.

The law does not say anything about how exactly the will should be expressed. From the content of part 2 of Art. 72.1 of the Labor Code of the Russian Federation, it is only clear that any of the parties to the employment relationship can initiate the transfer procedure.

Here are examples of the indicated subjects expressing their intention to make a transfer:

1. The employee's request may be expressed in a written statement. The consent of the employer in this case can be recorded by affixing the appropriate visa on the application.
2. If the initiator is the employer, then he needs to request the consent of the employee in writing. For example, you can hand him a document with a proposal for a transfer against his signature, on which he will express his agreement or disagreement.
3. The will of the new employer can be expressed in a letter of invitation (to work) addressed to the employee or his current employer. A copy of such a letter is attached by the employee to his application or by the employer to the transfer proposal, respectively.

A tripartite written agreement will not contradict the law, in which its parties will express their will and set the deadlines for the transfer. When the employee will have the last working day, the parties agree on their own.

Is it possible to transfer an employee to another organization without his consent, is it possible to refuse the transfer?

It is impossible to transfer an employee to another enterprise without his consent under any circumstances. The employee has the full right to refuse the translation offered to him without any consequences for himself. You can neither dismiss him for this, nor apply any other types of disciplinary sanctions to him.

However, such a situation is not ruled out when the employee who previously agreed to the transfer immediately after leaving the previous place of work changed his mind and refused to write an application for employment with a new employer. The law does not contain clarifications on this point, therefore it seems that such actions of an employee will not entail any consequences for him based on the principle of freedom of labor (Article 4 of the Labor Code of the Russian Federation).

An employee's request for a transfer by the employer does not have to be approved either. He can satisfy her, but he can also refuse.

Is a new employer obligated to hire a translator?

The new employer is obliged to hire an employee in the order of transfer without any reservations within a month from the date of dismissal of that from the previous place. Even if the employee first changed his mind and did not write an application for employment, and then nevertheless decided to find a job, he cannot be refused to conclude an employment contract. Moreover, this is true even if another person has already been accepted to the place prepared for the employee who has changed his mind. The rule established by Part 4 of Art. 64 of the Labor Code of the Russian Federation, does not imply exceptions.

IMPORTANT! The Labor Code of the Russian Federation says that it is impossible to refuse employment only to persons who are invited to work in writing. This refers to any written approval by the new employer of the translation, and not just sending them a special letter of invitation.

The position to which the transfer was planned cannot be recognized as vacant and offered, for example, to downsizing employees. The courts also take this position (determination of the Moscow City Court of October 23, 2015 No. 4g / 6-10569 / 2015).

Issuance of an order for dismissal, filling out a work book of a transferee

The dismissal of the transferee is carried out on the basis of an order. You can use both the form No. T-8 approved by the State Statistics Committee (or No. T-8a in the event of the dismissal of several employees at once), and developed independently. In the order, it is important to indicate as a basis all the documents in which the will to transfer is expressed: an application / proposal for a transfer, correspondence between employers, etc.

The order must be brought to the attention of the employee, about which the latter must put an appropriate note. If the dismissed person refused to get acquainted with the order, this fact is also recorded in the order (part 2 of article 84.1 of the Labor Code of the Russian Federation).

The next step is to fill out a work book. As the basis for dismissal, it is necessary to indicate paragraph 5 of part 1 of Art. 77 of the Labor Code of the Russian Federation and use the wording indicated therein. When filling out the labor one should be guided by the general rules provided for by the instructions for filling out work books, approved by the Decree of the Ministry of Labor of the Russian Federation of October 10, 2003 No. 69.

It should also be taken into account that clause 6.1 of the above instructions requires that in column 3 "Information about the work" the following should be additionally indicated:

• the specific reason for the transfer (the consent of the employee or his request) - indicates the old employer;
• the fact of acceptance as a result of the transfer is indicated by the new employer.

Settlements with an employee dismissed in the order of transfer

As with dismissal for other reasons, in this case, on the last day of the existence of an employment relationship with a transferring employee, a final settlement must be made. However, it is not always possible to do this. If it is impossible to make a calculation on the specified day, all payments are made a maximum of the next day, after the dismissed employee applies for them (part 1 of article 140 of the Labor Code of the Russian Federation). If there is a dispute over the amounts payable, the undisputed amount must be paid.

IMPORTANT! According to paragraph 5 of part 1 of Art. 77 of the Labor Code of the Russian Federation, the transfer is the basis for the termination of labor relations, therefore it is unacceptable to transfer unused vacation days to a new place of work. Thus, upon dismissal in the order of transfer, compensation is necessarily paid for them. The transferee has the right to take a vacation in a new place on a general basis - 6 months after the start of work.

Severance pay for dismissal due to transfer of an employee to another organization are not paid, except in cases where it is provided for by an employment or collective agreement.

Issuance of a work book and notification of interested parties about dismissal

Another obligation of the employer, which cannot be ignored, is the issuance of a work book on the last day of the employment contract. It is not always possible for an employee to hand over a document, therefore, it is also possible to send it by mail with the prior consent of the dismissed employee (part 6 of article 84. 1 of the Labor Code of the Russian Federation). Also, upon receipt of a corresponding request from the employee, the former employer undertakes to hand over to him copies of documents related to work, duly certified.

In some cases, the law obliges the employer to notify the interested state bodies of the termination of employment:

1. The military registration and enlistment office (if the employee was liable for military service) - within 14 days after the dismissal (subparagraph “a”, paragraph 32 of the regulation on military registration, approved by Decree of the Government of the Russian Federation of November 27, 2006 No. 719).
2. The bailiff service (if deductions were made from the employee’s salary according to executive documents) - immediately (part 4 of article 98 of the law “On Enforcement Proceedings” dated 02.10.2007 No. 229-FZ). If alimony was withheld, then notify, in accordance with Art. 111 of the RF IC, it will be necessary not only to bailiffs, but also to the recipient of the money. The term in this case is clearly regulated - a maximum of 3 days.

The term during which the dismissed employee must submit documents for employment with a new employer is not established by law. This issue is resolved by agreement between the parties concerned.

As can be seen from the above, the procedure for transferring an employee to another organization is not regulated in great detail by law. Many conditions of transfer are determined by the interested parties by mutual agreement. The most important thing is a documented expression of the will to transfer from all participants in the process.

In the article, we will analyze how to issue a dismissal in connection with a transfer to another organization, what payments the employer is required to make upon transfer, and also find out how to make an entry in the work book of an employee who is transferred to work in another organization.

Dismissal due to transfer to another organization: grounds for the Labor Code of the Russian Federation

The procedure for dismissal of an employee in connection with a transfer to another employer is regulated by paragraph 5 of part 1 of Art. 77 of the Labor Code of the Russian Federation. According to labor law, such a transfer is a common ground for termination of employment and requires mutual agreement of the parties.

In practice, dismissal by transfer to another organization is used in companies that are interconnected by common activities, but at the same time registered as different legal entities. In particular, the dismissal is documented as the transfer of an employee from a subsidiary to the parent company, provided that the former and new employers are different legal entities, and not structural divisions within the same legal entity.

How to dismiss an employee in connection with a transfer to another organization: documents, calculations, entry in the work book

When an employee is transferred from one organization to another, the employer terminates the employment relationship with the employee on the basis of his written application, as well as if there are guarantees of the employee's subsequent employment in another organization.

The procedure for dismissing an employee for transfer to another organization is in the instructions below.

Step 1. Translation letter of guarantee

As a rule, at the preliminary stage, the current and future employer approve an agreement on the transfer of an employee to a new position in another organization. The agreement may be oral or in writing. In the latter case, the upcoming transfer of the employee is confirmed by a letter of guarantee drawn up by the new employer.

The letter is drawn up in free form with the following information:

• guarantees on the conclusion of an employment contract;
• the nature of the work and working conditions under the new employment contract (position, salary, work schedule);
• desired date of conclusion of the employment contract.

A letter of guarantee is issued in the name of the head of the organization in which the employee is currently employed. The text of the letter also provides for notification and consent of the employee to the transfer (column “I have read and agree to be transferred to LLC _____ to the position ____ from _____”, Full name of the employee, date, signature),

Step #2. Letters of resignation

With the consent of the employee to the transfer, as well as on the basis of an agreement between employers, the employee draws up a letter of resignation.

Since we are talking about a transfer through dismissal, the application must be drawn up with the wording “Please dismiss ...”, and not “Please transfer”.

The application form is not approved by law. The document can be issued in free form, but at the same time contain the following mandatory information:

• Full name, position of the head of the organization in whose name the application is being submitted (current employer);
• Full name, position, personnel number of the employee who submits the application;
• request for dismissal due to transfer ( “On the basis of clause 5, part 1, article 77 of the Labor Code of the Russian Federation, I ask you to dismiss me in connection with the transfer to LLC ____ ...”);
• the date of dismissal, determined on the basis of a letter of guarantee and in accordance with an oral agreement with the employer;
• date of the document.

After signing, the employee sends the application to the current employer.

Step #3 Dismissal order

Having received a statement from the employee, the current employer draws up an order for dismissal in connection with the transfer to another company.

The order can be drawn up both in free form and with using a standardized form. In each case, the text of the order must contain the following information:

• name of the organization (current employer);
• number, date of the dismissal order;
• Full name of the employee dismissed in connection with the transfer to another organization;
• date and number of the employment contract to be terminated;
• date of dismissal, which is determined in accordance with the application;
• grounds for termination of the employment contract (clause 5, part 1, article 77 of the Labor Code of the Russian Federation);
• documentary basis for drawing up an order (statement of an employee dated ____);
• Full name, position of the head approving the order (current employer).

The order signed by the manager is transferred to the employee for review (“I have read the order Full name, signature»).

Step #4 Settlements and payments

Despite the fact that we are talking about the transfer of an employee, in fact, the employer terminates the employment relationship with the employee, which means that it acquires obligations for accruals and payments that are provided for in connection with the dismissal in the general manner.

On the day of termination of employment in connection with the transfer, the employer is obliged to pay the employee:

• salary for the time actually worked in the current month;
• compensation for unused vacation at the rate of average daily earnings for each day of vacation.

When paying wages and compensation, the employer withholds NDF at a rate of 13% (resident employee) or 30% (non-resident employee), after which he transfers the tax to the budget. The deadline for paying personal income tax to the budget is no later than the day following the day of dismissal and settlements with the employee.

Step #5 Entry in the workbook

When dismissing an employee in connection with a transfer to another organization, the employer makes an entry in the work book and issues the document to the employee "in hand".

In the work book, the employer reflects an entry on the termination of labor relations with an employee on the basis of clause 5, part 1, article 77 of the Labor Code of the Russian Federation. The record of dismissal is certified by the signature of the responsible person (head, head of the personnel department, another employee authorized to sign such documents on the basis of a power of attorney) and sealed by the organization.

When an employee is dismissed due to transfer to another organization, the employer makes an entry in the work book on the day of dismissal. Also on the day of termination of the employment contract, the employer is obliged to issue a work book to the employee. The transfer of a work book to a new employer is not allowed directly.

Consider an example . 10/30/2018 Ulyanova E.D. filed a letter of resignation from LLC Shans in connection with the transfer to LLC Magnat. The date of termination of the employment relationship according to the application is 11/05/2018. According to the letter of guarantee sent by Magnat LLC to the management of Shans LLC, the new employer undertakes to employ the employee on 11/06/2018.

Based on the letter of guarantee and Ulyanova’s statement, an employee of the personnel department of Shans LLC prepared an order to dismiss the employee on 11/05/2018 in connection with the transfer to another organization (clause 5, part 1, article 77 of the Labor Code of the Russian Federation).

On the day of her dismissal, November 05, 2018, Ulyanova was paid a salary for the days actually worked in November (from November 1 to November 5 inclusive), as well as compensation for unused vacation, calculated on average earnings.

Also on 11/05/2018, an employee of the personnel department made the following entry in Ulyanova's work book:

On 11/05/2018, the work book was issued to Ulyanova "in hand".

On November 6, 2018, Ulyanova was employed at a new place of work with the following entry in the work book:

The transfer of an employee to another organization can be carried out due to various reasons. For example, production necessity, encouraging the work of a person and improving his qualifications, the need to fill an empty vacancy, the employee's dissatisfaction with the wishes of the employer, and many others.

Transfer to another organization can be carried out at the initiative of both the employee and the employer. The main condition is written consent of the staff for this action. An external transfer differs from other types of transfers in that labor relations with the management of the first organization are broken, and with the management of the second - they arise.

Another organization can be absolutely any form of employer: an individual or a legal entity, a public or private enterprise. These organizations may have one or different founders, one or different departments. It has no bearing on the translation procedure. It must be remembered that branches and other divisions of the enterprise are not another organization, so a transfer from one branch to another is not a transfer to another organization.

Translation procedure

The initiator of the transfer to another company can be both the employee and his employer. But in both situations, it is necessary to break one, and instead conclude a new one. In that case, no additional agreement is allowed. This is explained by the fact that not two persons are involved in this procedure, but three: an employee, current and potential employers.

So, in order to make a transfer, the written consent of such participants is necessary:

• employee
• the employer for whom he currently works;
• an employer who wants to hire this person.

Translation stages:

• The first stage prior to translation is correspondence. It passes between the organization in which the person works, and the company that wants to host this employee. The second enterprise asks the first one to transfer the person to them. At this stage, the most important document is the letter of invitation, in which there is a request for a transfer. This document shows that the inviting party agrees to host the worker.
• At the second stage, it is necessary to obtain the consent of the frame itself. Here the main factor is who initiated the transfer - the employer or the employee. If the employer, then it is imperative that the employee writes a written agreement. Consent can be expressed in the following ways:
  • The inscription on the employer's proposal for the transfer: "I agree to the transfer";
  • Separate agreement.

  Also, as consent, a letter of resignation, the reason for which is a transfer to another organization, can be considered. This application can be accompanied by an invitation letter from the new company. A general agreement between the employer and the employee on the transfer, which is confirmed by the termination of the employment contract, is also considered consent.

• The third stage is obtaining consent for the transfer from the current employer. The organization in which the person works may give consent, but it has the right not to give it. The employer may not let go of a valuable staff, thereby preventing him from going to work for competitors.
  But in practice, the company that gives a job at the moment is not able to change a person’s decision to transfer. Employees simply write a letter of resignation on their own initiative or take a two-week sick leave. If the organization nevertheless gives consent, then it must be confirmed by the order of dismissal.
• This stage implies familiarization of the employee with this order and his signature that he has read this document.
• After that, the dismissal order must be registered with.
• Further, the employee who is being transferred is made a corresponding entry in the work book.
• The last step is the calculation and issuance of a work book.

The employee must receive monetary compensation in the form of wages for the time of work, as well. Settling with him on the day of the actual dismissal. If for some reason a person could not receive the money within the time period established by law, then he can come for the calculation no later than the next day after declaring his desire to receive the necessary compensation.

If dismissal by transfer occurs at the time of illness, then the management of the organization must pay the person the entire amount due to him as sick leave. If the company does not have money, then this is not a reason for not paying him material compensation.

On whose initiative the transfer can be made

• If the initiator of the transfer is worker, then a written statement is required from him. In order to have some guarantees, he may require a letter of invitation from a potential employer. This will give him the opportunity to conclude a new employment contract within a month, and he can also count on payment for his relocation to an organization that is located in another area.
  The desire of the employee must be reported to the authorities of the company where he wants to get a job. The work book will note that the transfer was made at the request of the employee. The new company does not have the right to refuse to conclude an employment contract with the transferred person. If this condition is violated, a fine will be imposed. It is also impossible to establish a probationary period for a transferred person.
  In this version of the transfer, the current management may require the staff to work out the period established by law, which cannot exceed two weeks. This is necessary in order for the management to be able to find the appropriate specialist for the vacant position.
• Could be the reason for the transfer agreement between two organizations. This happens when one enterprise is about to close, and in order to provide its employees with new jobs, it negotiates with other companies to provide vacancies.
  Such a transfer requires the agreement of three parties. First of all, the head of the company in which the person who is to be transferred works sends a request letter to another company with a request to hire a new specialist. In one letter, you can ask for the translation of one or several people. After receiving and reading this letter, the management of the new company writes its resolution. If consent is obtained, then the former management draws up a dismissal order.

You can learn more about moving to another job in this video:

Advantages and disadvantages of the procedure

The advantages of transferring for an employee are:

• Guaranteed employment;
• No probationary period.

The main thing is that in order for these guarantees to work, you need to contact the employer no later than a month after the dismissal from the previous job.

Disadvantages of translation:

• The new employer can set his own salary, which will be lower than the previous one.

It can be concluded that the transfer to a new job should be a well-considered decision. It is necessary to weigh all the advantages and disadvantages of working in a new place, so as not to regret your decision later. After all, a new employer can not only set his salary, but also fire his new employee.