Dismissal by transfer: benefits and guarantees for the employee

Often, while working in one company, an employee receives a job offer from another organization. It offers a position in a new company with more attractive terms of cooperation, high pay and other positive parameters. The immediate current manager can arrange for the employee to be transferred to another organization. The procedure is that the employment relationship with the company is terminated, after which an employment contract is immediately signed with the new employer.

Translation nuances

When an employee is transferred to another organization, the current contract is terminated, after which a new agreement is concluded. The possibility of such termination of relations is provided for by the provisions of Art. 77 TK.

Typically, the need for such dismissal is due to the following reasons:

• the owners divided one enterprise into several separate companies;
• the head of one company seeks to entice an experienced specialist who is a valuable personnel to work for him;
• a citizen resigns from a company due to its closure, but with a simultaneous transfer to a new company opened by the previous employer;
• a specialist moves to another region, and at the same time finds a job in the chosen city in advance;
• the employee wishes to change his place of employment.

At the same time, it is important to correctly formalize the change in the specialist’s place of work. Since the company is changing, such a transfer is called external. If an employee is transferred within the organization to another position, then the process is called internal.

Types of transfers

The transfer of any employee can be presented in two forms:

• Interior. In this case, the specialist gets a job in another position in the same company. Such a transfer may be permanent or temporary.
• External. This method involves dismissal by transfer, so the company in which the citizen works changes. Therefore, the employment agreement with the current employer is terminated.

To apply any type of transfer, consent from the direct employee is required.

Benefits for employees

Transferring to other companies has many advantages for hired specialists. These include:

• the citizen is guaranteed to find a new place of employment;
• The employer cannot use a probationary period for a new employee, so the citizen is immediately registered as a member of the staff;
• there is no requirement to work the required two weeks at your previous job;
• there is no interruption of work experience.

If the initiator of dismissal of an employee by transfer to another organization is the current employer, then the specialist may refuse such an offer if he does not like the proposed conditions. If an employee refuses, the head of the company cannot apply any punitive measures to him.

Conditions of the procedure

The transfer of an employee to another organization must be subject to the satisfaction of certain conditions. These include:

• the employment contract drawn up with the first employer is necessarily terminated;
• Due to the formation of a new contract, working conditions may change significantly, so there are no guarantees that the salary will remain at the same level or increase;
• such dismissal is permitted only with the voluntary consent of a direct employee of the company;
• a specialist can agree in advance on working conditions and payment with the intended employer;
• In order for the employee to have additional guarantees, it is recommended to request from the company where the transfer is planned a special letter of request, which will indicate the specific position for which the citizen will be employed;
• the new manager cannot refuse to employ an employee after transmitting an official offer, since otherwise he will have to face a fine of 30 to 50 thousand rubles. and a penalty may also be applied in the form of suspension of the company's work for up to 90 days.

Before changing jobs, each person must assess their capabilities and prospects, and only after that the employee is transferred to another organization. Vacation at a new place of work is provided on general terms, so to obtain it you will have to work in the company for at least 6 months. At the previous place of work, upon termination of the employment relationship, compensation for unused vacation will be paid.

At the employee's initiative

If the employee himself plans to change his place of work, then the following actions are performed:

• a letter of resignation is drawn up in connection with the transfer;
• a free-form application is drawn up, but the reason for termination of the contract must be indicated;
• the name of the new company is given;
• An offer from a potential employer is attached to the application;
• an order is issued by the head of the company;
• on the employee’s last day of work, he is issued a work book, and the required funds are paid.

The organization's consent to transfer an employee to another organization is not mandatory. If the current manager does not agree with this process, then the employee will have to file a regular resignation letter, after which he will be forced to work the required two weeks. If he has unused vacation days, he can write an application for vacation with subsequent dismissal in order to immediately begin his job duties at a new job.

Features of dismissal in the order of transfer

According to Article 77 of the Labor Code of the Russian Federation, transfer to another place of work in a new organization is grounds for termination of the current employment contract. In this case, the dismissal procedure takes place in accordance with Article 80 of the Labor Code of the Russian Federation, that is, at one’s own request.

In the article “Resigning from work at your own request” you can learn more about the procedure for such dismissal.

Some differences between voluntary dismissal and transfer dismissal are:

• A note in the work book indicating that the employee was dismissed as a result of transfer;
• Inability to withdraw your application if your current employer approves your application.

At the initiative of the employer

Often, the head of a company receives proposals from contractors regarding the transfer of any employees. Also, when dividing a business, owners can initiate the transfer of different employees. In this case, it is the management that initiates the change of the employee’s place of work. How to formalize the transfer of an employee to another organization? The process is divided into stages:

• Initially, a written offer is drawn up for the employee, which indicates the possibility of moving to another company on favorable terms;
• such a proposal indicates the name of the new company, its address, the proposed position, requirements for the skills and abilities of the specialist, the size of the future salary and other information about the new job;
• the proposal must contain the basic conditions of future work;
• if an employee, after studying the document, agrees to a change of place of work, then he confirms his agreement by signing the proposal or drawing up a separate consent;
• The specialist is directly dismissed by issuing an order and entering the necessary information into the work book;
• an employment contract is immediately concluded with the new employer on the proposed terms.

Such a transfer of an employee to another organization is a beneficial process for both participants. An employee can get a really highly paid and interesting job, and the employer frees up a vacant position and builds relationships with contractors.

On whose initiative the translation can be made

If the transfer is carried out at the request of the employee himself, the basis for issuing the order will be the citizen’s application. To avoid misunderstandings, in this case it is recommended to obtain written confirmation of the upcoming employment from the future employer, otherwise - an invitation.

In this case, the specialist can be sure that he will be hired for a new position no later than in a month, and he will be paid for relocation if necessary.

In any case, you should inform the potential employer in advance about your desire to receive a transfer. The entry in the work book will contain an indication of the employee’s own desire. In case of transfer, the new employer does not have the right to refuse to hire the citizen. If there is a refusal to conclude an employment agreement, the organization will face penalties.

When transferring, the law provides another guarantee - new employees are prohibited from installing a test.

An employee who wishes to move to another organization is required, as a general rule, to work for a specified period, which is a maximum of 14 days. The reason is to respect the interests of the employer, who will need time to select a new employee to replace the departing one.

It happens that the transfer occurs within the framework of an agreement between cooperating companies. For example, an organization ceases its activities, but wants to employ its employees by transferring them to vacant positions. Then, taking into account the consent of the employees, an appropriate agreement is drawn up.

First, the administration of the closing enterprise sends a request to the second employer regarding the possibility of transferring a specific person. A request for several specialists at the same time is allowed. If the second organization agrees, it confirms this with a response letter. Then the first employer issues an order(s) regarding dismissal.

Based on a request from another company

When opening a new organization, every manager wants to attract experienced and qualified specialists. Therefore, he often requests a transfer to other companies with which he previously collaborated or in which he was employed.

The procedure for transferring an employee to another organization at the initiative of the new employer consists of the following steps:

• a request is drawn up by the new employer, in which the employee’s full name is indicated, and a specific job is offered;
• the request lists all the main conditions for future employment, which will allow the hired specialist to decide whether it is advisable for him to move to a new company;
• if the employee agrees, then he sends a written notice to the head of the new company;
• all features of future cooperation between the two companies and the employee are agreed upon;
• the current employer issues a dismissal order, which may indicate the transfer of not one employee, but several employees;
• depending on the number of employees being dismissed, the optimal form of the order is selected, since the T-8 form can be used for one specialist or T-8a for several employees;
• all specialists sign the order;
• the necessary data is entered into the personal cards and work books of employees;
• work books are handed over to citizens on the day of dismissal.

If the previous employer agrees with such termination of the relationship, then you do not even need to work 14 days. It is important to correctly draw up an order to transfer an employee to another organization. It contains information about the citizen’s full name and position. The reason for termination of the employment contract is indicated.

Legislative guarantees when transferring to another organization

If an employee asks for a transfer, everything is clear in this case. Increased wages, close location of the office and other factors may cause such a desire by the employee.

If we are talking about an employer’s offer, then the transfer may be due, say, to production needs, the need to fill a vacant workplace, or other factors.

Registration of employee transfer

According to the norms of the current labor legislation, the possibility of transferring an employee to another organization, which is an independent employer, is allowed. At the same time, the transfer scheme is similar to dismissal from the first organization and, in its essence, is such.

How to properly process an employee transfer - see here:

After this, the employee is officially employed under an employment contract with the new organization.

The personnel service draws up orders for dismissal from the previous place of work, as well as the personnel officer of the organization that hires this employee, are required to make a note on the procedure for dismissal, transfer and employment to a new employer, and indicate the presence of his consent.

Transfer at the initiative of the employer

It is worth considering separately the transfer mechanism at the employer’s suggestion. To do this, each employee who is planned to be transferred to another company is given a written proposal indicating the terms of cooperation in the new workplace.

The employee must know whether his rights have been violated, whether the payment conditions have worsened, or whether the functional responsibilities are different.

If the initiator of the transfer is the employer, then the process must begin with a proposal for transfer, which will be drawn up in writing and issued against signature to the employee or sent to him by mail to his residence address by registered mail with acknowledgment of receipt.

In such a document, the employer displays:

• name of the company that offered the translation;
• surname, first name, patronymic, position of the employee and information about the expected conditions of transfer to another employer (name, position, description of functional responsibilities, salary, etc.).

Also attached to the letter are written notices containing the agreement of both companies that they do not object to such a transfer. They also display all the above aspects regarding the employee.

After reading such a document, the employee gives his written consent (in the form of a separate document or in the form of an inscription on the transfer proposal). Therefore, the preparation of such documents must be taken with full responsibility.

Otherwise, the documentation will not reflect the employee’s consent to the transfer, which will give the employee grounds to go to court to renew him at work and invalidate the transfer. Why do you need additional legal costs, which, according to the norms of procedural legislation, will be borne by the employer as the loser in the case.

After this, a dismissal order is usually issued, the mandatory details of which are:

1. full name of the organization where the employee works;
2. grounds for dismissal due to transfer to another job in another organization;
3. date of drawing up the order;
4. signatures of the parties.

Sample dismissal order in form T-8.

With such a translation, the basis is part four of Art. 20 Labor Code of the Russian Federation. The moment of termination of the employment contract between the employee and his original employer under clause 5 of part one of Art. 77 of the Labor Code of the Russian Federation is the moment of transfer of an employee at his request.

Labor Code of the Russian Federation Article 77. General grounds for termination of an employment contract

The grounds for termination of an employment contract are: 1) agreement of the parties (Article 78 of this Code); 2) expiration of the employment contract (Article 79 of this Code), except for cases where the employment relationship actually continues and neither party has demanded its termination; 3) termination of an employment contract at the initiative of the employee (Article 80 of this Code); 4) termination of an employment contract at the initiative of the employer (Articles 71 and 81 of this Code); 5) transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position); 6) the employee’s refusal to continue working in connection with a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization, or a change in the type of state or municipal institution (Article 75 of this Code); 7) the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code); the employee’s refusal to transfer to another job, required for him in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer’s lack of relevant work (parts three and four of Article 73 of this Code); 9) the employee’s refusal to be transferred to work in another location together with the employer (part one of Article 72.1 of this Code); 10) circumstances beyond the control of the parties (Article 83 of this Code); 11) violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work (Article 84 of this Code). An employment contract may be terminated on other grounds provided for by this Code and other federal laws.

If the initiator of the transfer was the employee himself, the transfer is considered to have been made on his initiative, if the reason was the desire of the employers - with the consent of the employee.

Application for transfer to another organization.

In any case, it is impossible to formalize the transfer using an additional agreement to the employment contract. This will be a new agreement and new legal relations.

Many HR specialists make a grave mistake - they confuse the transfer of an employee to another position in the same enterprise when there are no grounds for terminating the contract. Here it is necessary to strictly follow the letter of the law in order to prevent such a mistake, because it is fraught with penalties.

At the time of termination of the employment contract, the employer must take the following measures:

1. Issues a work book with a corresponding record of dismissal due to transfer. Here you will learn how to fill out a work book upon dismissal;
2. Pays wages with compensation for unused vacation (based on Part 1, Article 127, Article 140 of the Labor Code of the Russian Federation).

When recording dismissal in the work book, it is necessary to apply clause 5, part 1, art. 77 of the Labor Code of the Russian Federation”, clause 5.1, clause 6.1 Instructions for filling out work books dated 10.10.2003 N 69.

Rules for settlements with employees

When employees are transferred to another company, they are fired from their previous place of employment. The former employer must pay the employees the necessary funds. The procedure is performed directly on the day of dismissal. The following payments are listed:

• salary determined depending on the actual days worked in the company;
• vacation compensation.

No severance pay is awarded for such dismissal. Along with the money, the employee is provided with a 2-NDFL certificate containing information about the average earnings of a citizen at his previous place of work.

How to make an application?

If the initiator is a direct employee, then he submits to the employer an application to transfer the employee to another organization. This document includes information:

• date of formation;
• Full name and position held in the company;
• the reason for dismissal represented by a change of place of work;
• please complete the transfer according to the Labor Code, which will not require work from the company employee.

The application must be accompanied by an offer from the new company. Usually, in such conditions, employers accommodate employees halfway and therefore do not require them to work off.

About vacation

The law does not provide for the continuation of leave when an employee moves to another organization. In this regard, having found a new job, an employee can count on vacation only after six months (in accordance with Article 122 of the Labor Code of the Russian Federation).

However, there are some exceptions:

• Pregnant women;
• Minor employees;
• Employees who adopted a child under 3 months of age.

Translation nuances

The features of dismissal through the transfer of a specialist to another company include:

• if a woman is on maternity leave when the company where she was employed closes, she is usually offered the opportunity to transfer to another organization;
• young specialists cannot be transferred to a job that does not correspond to their education and qualifications, so changing their place of work will be illegal;
• If such an opportunity is offered to people on a probationary period, then the new company immediately places them on staff, so they usually react positively to the offer.

In any case, the procedure can only be performed with the consent of the hired specialist. It is impossible to force him to transfer. Under such conditions, you can challenge the process in court.

Temporary transfer rules

Temporary transfer of an employee to another organization is carried out on the basis of an agreement of the parties, drawn up in writing. The nuances of using temporary transfer are given in Art. 72.2 TK. The period cannot exceed one year.

Typically, the procedure is performed when another company needs to replace an absent specialist for a short period of time. The transferred employee retains his place of work. Such a transfer may become permanent if the employee, for various reasons, does not return to his previous place of employment.

During a temporary transfer, the workload on the employee does not increase, so this procedure is not a part-time job.

Necessary conditions for transfer to another employer

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:

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

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

Here are examples of the expression by these subjects of intention to make a transfer:

1. The employee's request may be expressed in a written statement. In this case, the employer’s consent can be recorded by affixing the appropriate visa to the application.
2. If the initiator is the employer, then he needs to request the employee’s consent in writing. For example, you can hand him a document with a transfer proposal 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) sent 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 proposal for transfer, respectively.

A tripartite written agreement in which its parties express their will and set deadlines for the transfer will not contradict the law. The parties independently agree on when the employee’s last working day will be.