Labor legislation provides for workers the possibility of transferring from one job to another, not only within the employing organization. What is hiring by transfer from another organization and how to formalize it correctly?
Transfer to another employer - a type of transfer to another job
In order to make such a transfer, the consent of three parties is required (the employee and employers - both old and new).
It can be expressed either in the drawing up of a tripartite agreement or in the exchange of letters between employers.
Transfer procedure
The beginning of the procedure for transferring an employee to permanent job to another organization is usually served by the employee receiving a written invitation to work from a potential employer. A less common situation is when a future employer himself writes a letter to the current one with a request to allow the transfer of a specific employee to work for him.
These documents can be drawn up in any form, mandatory requirements is not applied to them.
The employee approaches the employer with the invitation, submitting at the same time a written resignation letter in the order of transfer.
It is important to understand that the law does not oblige the employer to necessarily agree to the request of the employee (another employer) for a transfer, but only provides for its possibility. Therefore, the employer has the right to refuse the employee’s request.
The employer can formalize its decision either through a resolution on the employee’s application or a separate document.
In cases where the transfer is planned not at the written request of the employee, but with his consent, the actions of employers are somewhat different.
They exchange relevant documents among themselves, and written consent is taken from the employee in the form of:
- statements;
- or the inscription “I agree” and signature made by him personally on the basis document (invitation, letter, etc.).
Dismissal by transfer from the previous employer
After all approvals, dismissal by transfer is carried out according to the usual procedure established by Article 84.1 of the Labor Code of the Russian Federation.
The grounds for dismissal, which are indicated in the order and work book, are clause 5, part 1, art. 77 of the Labor Code of the Russian Federation “in connection with the transfer of an employee, at his request or with his consent, to work for another employer.”
Hiring by transfer to a new employer
For persons dismissed by transfer, Art. 64 of the Labor Code of the Russian Federation establishes a guarantee - a new employer cannot refuse to hire a person invited by way of transfer from another employer. This guarantee is valid for a month.
Also, this employee cannot be subject to a hiring test (Article 70 of the Labor Code of the Russian Federation).
The peculiarity of registering the employment of such an employee is that the condition for hiring by way of transfer is reflected both in the order of employment and in the entry in the work book (in column 3), for example: “Hired to the position of legal adviser of the contract department in procedure for transfer from the Limited Liability Company "Pravodel".
An order for employment by the employer can be issued either according to the unified form No. T-1, approved. Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1 (if the organization decided to use these forms), and in any form.
In the first case, the condition for hiring by way of transfer can be written in the line “conditions of employment, nature of work” of the T-1 form.
Sample order for employment in the order of transfer
Can an employer hire an employee as usual if there is a record in the employment record that he was dismissed as a transfer? This recommendation specifies the general procedure. When the previous employer made an entry in the work book that the employee was fired due to a transfer, and now the employee came to take a job with which the transfer was not agreed. Can she accept him, seeing that he left due to transfer?
Answer
Yes, it can.
When dismissed by transfer, the employee receives an additional guarantee; he cannot be refused employment within a month from the date of dismissal (Article 64 of the Labor Code of the Russian Federation);
When dismissal by transfer, the parties agree on the dates of dismissal and admission to new company by agreement. Upon dismissal own employee warns of dismissal two weeks in advance (Part 1 of Article 80 of the Labor Code of the Russian Federation);
When hired as a transfer from another organization, an employee cannot be given a probationary period (Article 70 of the Labor Code of the Russian Federation).
If an employee gets a job in another organization with which there is no agreement on the transfer, the employee is accepted on a general basis.
The rationale for this position is given below in the materials of the “Personnel System” .
“The general procedure for transferring an employee to another organization
In what cases can an employee be transferred to work in another organization?
Transfer of an employee to another organization is a type permanent transfer. An employee can be transferred to a permanent job in another organization by mutual decision of the current employer and the receiving organization. In this case, the initiator of the transfer can be either the employer or the employee. This is stated in Part 2 of Article 72.1 of the Labor Code of the Russian Federation.
This transfer occurs through dismissal from the previous place of work, since in another organization a new employment contract is concluded with the employee (part 4 of article 64 and part 2 of article 72.1 of the Labor Code of the Russian Federation).
The procedure for transfer through dismissal is not clearly stated in the Labor Code of the Russian Federation,* but a certain practice has developed in its execution. The transfer must be preceded by a written agreement between the head of the organization from which the employee is transferred and the head of the organization to which he is transferred.
Question from practice: What is the fundamental difference between dismissal by transfer and dismissal of one's own free will and admission to a new organization? An employee plans to move from one organization to another
Admission to an organization by way of transfer, in fact, differs from dismissal on one’s own and standard admission only in that:
- upon dismissal by transfer, the employee receives an additional guarantee and cannot be refused employment within a month from the date of dismissal (Article 64 of the Labor Code of the Russian Federation).* However, this issue can be resolved by formalizing employment contract with the new organization before dismissal on your own from the previous one, where a deferred start date will be indicated. Accordingly, if there is an employment contract concluded in advance, the new employer will also not be able to refuse employment after the employee’s dismissal;
- upon dismissal by transfer, the parties agree on the dates of dismissal and employment in the new company by agreement. When dismissing on his own, the employee, in general, must give notice of dismissal two weeks in advance and, in fact, work it out (Part 1 of Article 80 of the Labor Code of the Russian Federation);
- When hired as a transfer from another organization, an employee cannot be given a probationary period (Article 70 of the Labor Code of the Russian Federation).*
- dismissal by transfer psychologically increases the employee’s value in the eyes of future employers, because it indicates the employee’s demand.
There are only two fundamental differences in the registration procedure:
- upon dismissal by transfer, any document confirming consent to the transfer between organizations and the employee must be drawn up in any form,
- The grounds for dismissal will differ when making entries in the work book, dismissal order, or personal card.
Other fundamental differences additional responsibilities for the employer or additional guarantees these procedures do not apply to the employee.”
“Question from practice: Is it necessary to indicate in the employment contract that the employee is hired as a transfer from another employer?
If desired, the organization can indicate such information in the employment contract, but the legislation does not contain such a requirement.
When an employee is hired as a transfer from another organization, an employment contract is concluded in general procedure(Article 67 of the Labor Code of the Russian Federation).*
The obligation to indicate a special procedure for admission (transfer from another organization) must be observed only when filling out an employee’s work book (clauses 3.1 and 6.1 of the Instructions approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69).”
"Attention: It is impossible to refuse to conclude an employment contract for an employee invited to work as a transfer from another organization. This prohibition is valid for one month from the date of dismissal from the previous place of work. This procedure is specified in Article 64 of the Labor Code of the Russian Federation.
Thus, if new manager refuses employment to the transferred employee, this will be a violation of labor laws. For this, the labor inspectorate may fine the organization or its officials.
The fine is:
- for officials of the organization, for example, a manager - from 1000 to 5000 rubles. (repeated violation entails a fine of 10,000 to 20,000 rubles or disqualification for a period of one to three years);
- for entrepreneurs - from 1000 to 5000 rubles. (repeated violation entails a fine of 10,000 to 20,000 rubles);
- for an organization - from 30,000 to 50,000 rubles. (repeated violation entails a fine of 50,000 to 70,000 rubles).
Such measures of liability are provided for in parts 1 and 2 of Article 5.27 of the Code of the Russian Federation on Administrative Offenses.
In addition, such a refusal may cause problems for former leader. An employee who has received a refusal has the right not only to appeal this refusal in court, but also to demand reinstatement at his previous place of work (Article 394 of the Labor Code of the Russian Federation). In this case, the organization must pay the reinstated employee the time of forced absence in the amount of average earnings. This is stated in paragraph 60 of the Plenum resolution Supreme Court RF dated March 17, 2004 No. 2.
The court may also oblige the organization to compensate an illegally dismissed employee for moral damage. Amount of compensation moral damage determined by the court and indicated in its decision. In this case, judges must take into account the nature of the harm caused to the employee and the degree of guilt of the organization (clause 63 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).
If the dismissal was declared illegal, the employee must be reinstated.”
Every person dreams of a prestigious job and position, which is very difficult to simply find, so usually many people get hired in ordinary organizations, with the hope of getting more great deals through achieving high qualifications and acquiring the necessary friendships.
And if the goal is achieved, then a translation awaits, which gives a completely real one, but only in the manner prescribed by law.
What the law says
In accordance with regulatory laws, a transfer is a change in the work function of an employee by ceasing cooperation in one organization or position and concluding an employment contract in another company.
In essence, this is dismissal and hiring at the same time, but there is a guarantee that employment will be carried out in another case, since in such a situation the employee is protected by law.
- Regulatory framework
In accordance with article number 72.1 of the Labor Code of the Russian Federation, it is stated that, at the initiative of the employee, expressed in the application, the manager can transfer the worker to another manager to a permanent place of work.
IMPORTANT! This right is also given to the manager, that is, he has the right to offer the employee to transfer to another company, but only if he has the consent of his employee. That is, the negotiated norm assumes that the transfer of an employee, both on his initiative and at the request of the manager, can be carried out, but only if there is agreement from all parties.
In the event that regulation has not been received, it will be impossible to make the transition in the manner prescribed by law; the main aspect in such situations is considered to be the principle of interaction, that when transferring it is necessary to take into account the opinions of three parties - the employee and two organizations.
- Grounds
It has already been said above that the initiator of the transfer can be either an employee or one of the managers, but the initiative of the parties must be expressed not orally, but in writing.
It is necessary to take into account that only a correctly executed document can be the reason for a future dismissal operation in the transfer mode under article number 77.5 of the Labor Code of the Russian Federation and subsequent employment with another company.
Employee initiative
If the transfer was initiated by an employee, then in such cases, first of all, in general, an appeal must be submitted in writing with a desire to transfer him to a permanent place of business to another manager. The application must also be accompanied by service letter from the receiving company with a request to the current manager to approve the transfer of their employee to another company.
Naturally, in such situations, the employee could leave work on his own initiative, in fact, he represents the organizer, but the fact is that just formalizing the dismissal by transfer provides him with a number of guarantees.
These may include the following actions:
- When transferring, the so-called “working off” is not used and the employee can be transferred within the period specified in the application and letter of the receiving party.
- The company that invites him to work does not have the right to refuse employment; properly, upon dismissal, an employee is protected from refusal of employment after dismissal for another month in accordance with Article No. 64 of the Labor Code of Russia.
Leader's initiative
If the transfer was initiated by the manager, the process is slightly different.
IMPORTANT! Every manager, both current and future, can request a transfer. For example, when some positions are reduced, good employees may be offered to move to another organization in order to minimize payments upon reduction. Or in a procedure of cooperation between two organizations, third party company One of the professionals might like it and they might offer the employer to transfer him.
To begin with, the two employers of the companies, the receiving party and the transferring party, agree in writing on the relevance of the issue of transferring the employee, and if consent is received, then the next step will be to obtain consent from the employee himself.
If there is a refusal to change jobs, the agreement between the two organizations will not be valid and, accordingly, the transfer will hardly be possible.
Features of hiring by transfer from another company
It is necessary to take into account that a transfer is considered not just a dismissal and acceptance into a new work activity, there is a certain process for formalizing this type of legal relationship, because the interests of three parties must be taken into account, and also go through the approval process, according to which it is necessary to take into account all the nuances and formulate them correctly.
Step by step instructions
It was already discussed above that the translation can be made only after all the nuances have been agreed upon.
The first step in completing the transfer process will be to fill out an application from the employee, or draw up a letter from the receiving company with a request to transfer the employee to another organization, with obtaining consent to accept labor activity already from the employee himself, in writing.
How to file a dismissal from a previous job
It should be noted that hiring by way of transfer begins with dismissal from the previous job, which, before agreeing on the transfer, was considered the main place of work, everything begins with the execution of dismissal documents, the list of which has no significant difference when terminating cooperation in the usual manner.
If the employment relationship is terminated at the initiative of the employee, then the following series of documents must be generated:
- Application for transfer;
- Order of dismissal under article number 77 of the Labor Code of Russia.
And if the dismissal occurs on the initiative of the manager, then a letter from the receiving company, as well as the employee’s consent to the transfer in writing, is used as the basis.
- Statement– the basis for summarizing the application is considered to be a letter from the receiving company, and accordingly a photocopy of the letter is attached to the application and is indicated as the basis. The application itself is made in free form, since no installation format has been introduced.
- Order – Accordingly, an order is issued to terminate cooperation by way of transfer. To create this administrative form, standard T-8 order forms are usually used.
- Entry in the work book - after the agreed employee documents have been completed, everything is calculated and paid due payments, and also enter into the work book: “Dismissed due to transfer at the employee’s request to work in ....” or “Dismissed due to transfer...”
Transfer to another enterprise or organization can be either temporary or permanent. An employee can be transferred within an enterprise to another position or area, as well as to another enterprise altogether, by decision of the previous employer or at the request of the employee himself. How is the change made? labor functions employee and is it necessary to write a job application as a transfer?
How to file a dismissal
Guided by Article 72.1 of the Labor Code of the Russian Federation, an employee can express in writing his request to transfer to a permanent place of work in another company or enterprise. Firstly, a letter of resignation is first written due to transfer to a specific place of work. Attached to the application is a request from the management of the new enterprise also with a request to dismiss the employee so-and-so in connection with his transfer to a permanent place of work.
If the actual employer does not object, then the employment contract with the employee is canceled, in accordance with Art. 77.1.5 Labor Code of the Russian Federation. Next, an order is issued in form No. T-8 or 8a, signed by the manager or acting officer and the employee is notified of the dismissal against signature.
The work book indicates the reason for the change of place of work - at the request or with the consent of the employee in the following form: “The employment contract was terminated due to the transfer of the employee at his request or with his consent to work in (name of enterprise)” and an indication is made of the corresponding article of the Labor Book code. You should know that the employee has the right to withdraw his application at any time, in accordance with Art. 80 of the Labor Code of the Russian Federation, if another employee has not yet been invited to take his place. After dismissal, the employee is paid unused vacation pay, wages and all other payments due to him.
Reception to a new place
Hereby Labor Code The need to write an employment application has not been approved, since the registration of a new employee occurs by signing an employment contract with him. The application has no form and is written by hand on a standard white sheet of paper; it must contain a request to accept a specific person for a specific position, indicating the date of writing.
Many organizations still require job applicants to write an application. A standard package of documents is required for employment:
- passport)
- work book)
- pension insurance certificate)
- diploma)
- military ID)
- sometimes a medical certificate is required)
- work permits for foreign workers.
New employer should be aware of some rules for employment in translation:
- since the employee is invited to transfer from another company in writing, it is impossible to refuse him employment within one month from the date of his dismissal from his previous job (Article 64 of the Labor Code of the Russian Federation))
- employees transferred by invitation do not undergo a probationary period (Article 70 of the Labor Code of the Russian Federation).
Hiring by transfer is formalized using form No. T-1 or 1-a, which indicates that the employee was transferred from another enterprise (which one should be indicated), and a dash is placed in the probationary period column.
Transfer at the initiative of the employer
It happens that due to production needs or other reasons, management considers it necessary to transfer an employee to another enterprise. In this case, it is also necessary to obtain the employee’s consent to the transfer in writing (Article 72.1 of the Labor Code of the Russian Federation). The transfer procedure is carried out by agreement and conclusion of a written agreement between the actual and future employers. The agreement must indicate:
- working conditions at the new job)
- mode)
- wages)
- place of work.
After which, the employee is sent an offer to transfer to another place of work. The employee’s consent or non-consent is documented either in a separate document or written directly on the proposal itself. Upon receipt of the employee’s consent to change his place of work, the registration of dismissal is the same as described above, but in the work book it is written not “at his request”, but “with his consent”. To apply for a new position, the employee must also write an application for employment in the order of transfer. The further procedure is already known to us.
One more point should be noted. Let's say a manager wants to transfer an employee who is a citizen of another state to another enterprise. This could also happen. How legal will his actions be? Firstly, since there is a foreigner in the company, it means that the employer has the appropriate permission to use the hired labor of foreign nationals. This permit is issued individually for each employee who needs it, and this document cannot be transferred to other organizations and, accordingly, this employee cannot be transferred to another place of work. New foreign workers must work only where their place of work is determined by the permit.
Well, if an extreme situation has arisen and you just need to get a specific employee, then you will have to fire him first in accordance with the Labor Code. The new employer must independently go through all the circles of hell to obtain permission to of this employee, and then register it at your enterprise according to the standard procedure.
Conclusions
So, what actions does an employee take when moving to another place of work on his initiative:
- receipt from the host employer of a letter of request for the current management with a request to transfer the employee)
- writing a letter of resignation due to transfer to another company. This application is considered as an example of an application for employment in the order of transfer to another enterprise)
- going through the standard dismissal procedure)
- registration for a new place in accordance with the Labor Code.
The actions of a manager who transfers an employee to another place of work by his own decision.
When issuing an order for admission as a transfer, it is important to take into account the requirements of the law and the correctness of the dismissal documents. You can accept someone by transfer only if he is dismissed in the same manner. Otherwise, the usual procedure is used, unrelated to the transfer from one organization to another.
From the article you will learn:
- how dismissal should be formalized;
- how to receive a transfer;
- what you need to consider when preparing an order for admission in the transfer order
- how to fill out a work book.
Dismissal by transfer
This is where the transfer hiring procedure begins. If your dismissal from your current job is incorrectly completed, it will be impossible to register a transfer to a new place.
Don't miss: the main material of the month from leading specialists of the Ministry of Labor and Rostrud
Encyclopedia of personnel orders from the Personnel System.
So, the transfer can be issued on the basis of Art. 72.1 Labor Code of the Russian Federation. This may be the desire of the employee or the initiative of the employer.
Initiator - employee
In this case, in the resignation letter, the employee indicates transfer to permanent work in another organization as the reason. A request is attached to the application new organization requesting the dismissal of the transfer employee.
In the absence of objections, based on Art. 77.1.5 Labor Code of the Russian Federation, employer:
- cancels the employment contract;
- issues a dismissal order, which is signed by the head of the organization or the person performing his duties;
- introduces the employee to by order for painting.
It is important that if a new person has not yet been invited to the position, then the employee, based on Art. 80 of the Labor Code of the Russian Federation, can withdraw his application at any time.
Initiator - employer
Transfers at the initiative of the employer are caused by production needs and are more often temporary than permanent. It all starts with a contract between the actual and potential employers. The agreement reflects:
- new place of work;
- working conditions and regime;
- salary amount.
When the contract is signed, the employer sends the employee a transfer offer. The employee’s agreement with the proposal can be reflected on the same document, or can be executed separately.
Reception by transfer
The hiring of an employee in this case is based on the entry in his employment record and/or the concluded agreement with the previous employer.
In this case, the employee will need the same documents as usual:
- diploma, if the position requires such qualifications;
- passport;
- pension certificate;
- work book;
- military ID;
- a health record if the work is related to food, teaching children and in some other cases.
The Labor Code of the Russian Federation establishes specifics for those who begin translation work. Art. 64 of the Labor Code of the Russian Federation states that within a month from the date of dismissal, such an employee cannot be denied employment. Art. 70 prohibits establishing a probationary period for transferred employees.
The rest of the procedure is standard: an order is issued, an employment contract is concluded, and an entry is made in the work book.
How to fill out a work book, an order for admission by transfer and an order for dismissal
Information about the transfer must be reflected in the administrative documents of both organizations.
Preparing orders
When preparing orders or instructions, use unified forms approved Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1.
Upon dismissal:
- No. T-8 - in case of transfer of one employee.
- N T-8a – in case of transfer of several employees.
When hiring:
- No. T-1 – in case of transfer of one employee.
- N T-1a – in case of transfer of several employees.
Based on these standard forms, an order or instruction on the dismissal / hiring of transferred employees is created. When preparing a document, it should be taken into account that the text of the order or order must contain:
- Information that the employee is leaving or being hired as a transfer.
- Name of the organization from/to which the employee is transferred.
- Words about absence probationary period in case of hiring one employee or a dash in the corresponding column when transferring several employees.
Filling out work books
Here, too, there are nuances established in clause 6.1 “Instructions for filling out work records» approved Ministry of Labor 10.10.2003 No. 69, namely:
- When dismissal or termination of an employment contract is associated with the transfer of an employee to another permanent place of work, details of the transfer are indicated in column 3 of the “Work Information” section. Those. whether the procedure is carried out at the request of the employee or with his consent.
- The employment record also reflects information that the employee has been appointed (accepted) to the organization by transfer. All other nuances about making this entry in the work book are specified in clause 3.1 “Instructions for filling out work books” approved. Ministry of Labor 10.10.2003 No. 69.
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