Dismissal due to organizational changes. Dismissal due to changes in working conditions severance pay. All about severance pay on dismissal

Modification of conditions employment contract according to Art. 74 of the Labor Code of the Russian Federation is allowed on the initiative of the employer if, for reasons related to changes in organizational or technological working conditions (changes in production techniques and technology, structural reorganization of production, other reasons), the terms of the labor contract determined by the parties cannot be preserved, with the exception of changes labor function employee. Since the employer cannot voluntarily amend employment contracts, he is obliged to prove the impossibility of maintaining the previous conditions of the contract. According to clause 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 "On the application by the courts Russian Federation Labor Code Of the Russian Federation ", the employer is obliged to provide evidence confirming that the change in the terms of the employment contract determined by the parties was the result of changes in the organizational or technological conditions of work, for example, changes in technology and production technology, improvement of workplaces based on their certification, structural reorganization of production, and this is not worsened the position of the employee in comparison with the terms of the collective agreement, agreement. If there is no such evidence, then the termination of the employment contract due to a change in the terms of the employment contract determined by the parties cannot be recognized as lawful. The employer is obliged to notify the employee in writing not later than two months in advance of the upcoming changes in the terms of the employment contract determined by the parties, as well as the reasons that caused the need for such changes, unless otherwise provided by the Labor Code of the Russian Federation. This period may be shorter if it is established by federal laws. For example, according to Art. 306 of the Labor Code of the Russian Federation employer - individual notifies the employee in writing about changes in the terms and conditions of the employment contract specified by the parties 14 calendar days in advance. At the same time, an order is issued to change the terms of the employment contract, which may look like this:
If the employee does not agree to work in the new conditions, the employer is obliged in writing to offer him another job that he has (as vacant post or work corresponding to the qualifications of the employee, and a vacant lower position or lower-paid work), which the employee can perform, taking into account his state of health. The employer must do this in writing. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the area. The employer is obliged to offer the employee vacancies in other localities, if this is provided for by the collective agreement, agreements, labor contract. If the employee does not want to sign an order or notice of a change in working conditions, then the employer must draw up an act of refusal. The specified document is drawn up even if the employee completely refuses to perform work in the new conditions. An employee's statement must be attached to the act, which can be drawn up in any form, for example:

In the absence of the employer said work or the refusal of the employee from the job offered to him, the employment contract is terminated in accordance with paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation. In this case, the employee is subject to dismissal. At the same time, an order is issued (form No. T-8):


Based on the order in work book the employee makes a note: "Fired due to refusal to continue work due to changes in the terms of the employment contract determined by the parties, clause 7 of part 1 of article 77 of the Labor Code of the Russian Federation." If the reasons specified in Part 1 of Art. 74 of the Labor Code of the Russian Federation, may lead to mass dismissal of workers, the employer, in order to preserve jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner prescribed by Art. 372 of the Labor Code of the Russian Federation for the adoption of local regulations, to introduce a part-time (shift) and (or) part-time working week for up to six months. If the employee refuses to continue working part-time (shift) and (or) part-time working week, the employment contract is terminated in accordance with paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation, that is, according to the rules for reducing the number or staff of the organization's employees. In this case, the employee is provided with appropriate guarantees and compensation. The cancellation of the part-time (shift) and (or) part-time working week before the period for which they were established is carried out by the employer, taking into account the opinion of the elected body of the primary trade union organization. Changes to the terms of the employment contract determined by the parties, introduced in accordance with Art. 74 of the Labor Code of the Russian Federation, should not worsen the position of the employee in comparison with the established collective agreement, agreements. It should be noted that the employer is an individual who is an individual entrepreneur, in accordance with Art. 306 of the Labor Code of the Russian Federation also has the right to change the terms of the labor contract determined by the parties, but only if these conditions cannot be maintained for reasons related to changes in the organizational or technological working conditions (part 1 of article 74 of the Labor Code of the Russian Federation). In the event of a labor dispute, if the employee dismissed under clause 7 of Art. 77 of the Labor Code of the Russian Federation, was not warned about the change in the terms of the employment contract determined by the parties two months before the termination of the employment contract with him, the judicial authorities (based on the established judicial practice) can change the date of dismissal in such a way that the employment relationship was terminated on the day of expiry of the specified period ... In addition, if the employee was dismissed due to the introduction of new working conditions before the expiration of the two-month period, the court may also set the date of dismissal, taking into account the time remaining before the expiration of the said period. Note that the employee's refusal to continue working in connection with a change in the terms of the employment contract determined by the parties is not a violation labor discipline and does not entail any disciplinary action.

An employment or collective agreement may provide for an additional payment in the event of a reduction in the amount of three to fifteen earnings. When is it not supposed to? No allowance is provided: Calculation of severance pay upon dismissal The amount of the allowance depends on the average monthly salary, which is calculated in a certain way. Amount The amount of the allowance is calculated according to the following formula: Amount of compensation = SZ * RD, where SZ is the average salary; РД - the number of working days in the paid period. The average salary is the ratio of the total salary for the last year to the number of days worked in fact during this time. The average salary is calculated as follows: SZ = salary / OD, where salary is the salary for the billing period; OD is the number of days worked.

Severance pay and dismissal compensation

Calculation of severance pay The amount of the allowance is determined by the formula: Allowance = salary wed x D, where wage wed is the employee's average daily earnings, D is the number of working days in the month that follows the month of dismissal. Average daily earnings is the ratio of total earnings in the previous 12 months to the number of days actually worked in that period.

The monthly salary of I.I.Petrov was 15,000 rubles. The vacation has been fully utilized. So, on the day of dismissal, Petrov I.I. must be credited:

• salary for days worked in October;
• severance pay.

In October 2013, there were 23 working days.
Petrov worked 11 days, for which his salary will be: 15,000 rubles.

Severance pay

Important

The manager has the right to severance pay upon dismissal, in connection with a change in the owner of the enterprise, or for other reasons that do not depend on him. Sometimes an agreement with a manager may contain provisions that in case of early termination of the contract on the initiative of the employee himself, he does not have the right to claim all types of compensation.

Attention

And sometimes, he must also pay the company and forfeit if his actions affected the well-being of the company. The situation is different with the dismissal of employees of the prosecutor's office, police, civil service, judges.

All about severance pay on dismissal

• dismiss a disabled person by paying material assistance in the amount of two weeks' earnings.

When a disabled person writes a letter of resignation according to on their own he is deprived of the right to receive compensation. In case of dismissal in other cases, Payment in the amount of 2-week average earnings is charged to those dismissed for the following reasons:

• conscription into the armed forces of the Russian Federation;
• employment of a full-time employee;
• lack of a position suitable for the health worker;
• refusal to work in the event of a territorial relocation of the company's activities;
• disagreement with changes in working conditions;
• recognition of incapacity for work (disability).

You should know! If the employer violates the terms of the employment contract (failure to provide proper working conditions), resulting in dismissal, an allowance is assigned equal to the amount of the average monthly earnings.

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At the same time, the main reason for such termination, as a rule, is the initiative of the employer, as well as the reasons for which none of the parties to the employment contract can be responsible. At the same time, an important nuance is the reason for the termination of the employment contract.
If this disciplinary offense employee, violation of labor discipline by him, committed theft, embezzlement or official forgery, then such a "specialist" is not paid severance pay in any case. According to the law, on the day of dismissal of an employee from work, he should pay severance pay, and also carry out all mutual settlements with him.
In addition to the severance pay, the employee must receive compensation for unused vacation as well as a bag wages, for the time actually worked by him.

Severance pay upon dismissal. procedure and amount of payment

With the consent of the citizen, the contract can be terminated before the expiration of the notice period with the accrual of an additional payment in addition to the severance pay and average income. The amount of the additional payment is calculated on the basis of the average monthly earnings in proportion to the time remaining until the end of the period specified in the notice of dismissal. How are executive compensation paid? The Labor Code provides for special payments upon dismissal under Articles 181, 278 and 279:

• due to a change in the owner of the property of a legal entity - for the management and the chief accountant;
• without explaining the reasons - for the management, if there are no illegal actions on its part.

Compensation to management is paid on the day of dismissal in an amount equal to at least three average monthly earnings.

How to calculate severance pay on dismissal

1. compensation is charged only for working days of the period for which it is issued (30 or 14 days);
2. sick leave, vacation pay, benefits, etc .; not included in the total annual earnings;
3. the rules for calculating the amount of benefits do not depend on the type of remuneration;
4. the billing period includes the month of dismissal, when the date of dismissal coincides with the last working day of the month; if the dismissal does not fall on the last day of the month, it does not fall into the billing period.

The subvention is issued on the day of dismissal by a written order (order) of the head, issued earlier to substantiate the reason for dismissal from work. Additional order not required.

Is there a severance pay on dismissal?

Severance pay is a sum of money determined by the Labor Code (hereinafter referred to as the Labor Code) of the Russian Federation or a collective agreement, which is paid to an employee on the last day of his work (the day of dismissal). The amount of severance pay depends on the basis for the employee's dismissal.

If you are dismissed on the grounds provided for in clause 1 of article 81 of the Labor Code of the Russian Federation (termination of an employment contract in connection with the liquidation of an organization), or clause 2 of the same article (termination of an employment contract due to a reduction in the number or staff of employees), you will be paid within two months after dismissal, your average earnings (for the first month in any case, and for the second, if you do not find a job by this time). In some cases, the payment of average earnings can be extended for another 1 month, for a total of three with severance pay.

After three months, the payment is made to employees registered at the employment center in the first two weeks after dismissal.

• After 4, 5 and 6 months, compensation is paid to citizens working in the Far North.

Frequently Asked Questions Are there any nuances in providing severance pay for people with disabilities? A disabled employee must submit a supporting certificate. Next, the employer chooses one of the options:

• offers another vacancy corresponding to the disability group (if refusal, the employee leaves of his own free will and loses the payment);
• if there is no suitable place or the disease does not allow him to continue to work, the citizen is dismissed and receives compensation in the amount of two weeks' income.

What are the features of payments when early dismissal? When a company is liquidated, the employer notifies employees two months in advance.

Dismissal due to change in working conditions severance pay

Based on this, it follows that the employer must pay the severance pay to the employee if he was reduced at the enterprise, as well as in the event of the termination of the firm's activities. Some employers go for tricks and fire an employee by agreement of the parties.

This is because when dismissing an employee of his own free will, or by agreement between the employee and the enterprise, he does not need to pay severance pay. Knowing this, many employees defend their rights for an extra penny, and do not follow the lead of their employers.

After all, they will not be entitled to compensation and protection from the state. Severance pay and other payments upon dismissal An employee has the right to leave on his own initiative.

At the same time, he is legally guaranteed only payments for unused vacation and for actually worked time.
Suppose that during this period Petrov actually worked 250 days and did not receive social benefits. Average earnings amounted to 15,000 rubles. x 12 months / 250 days = RUB 720.00 In November 2013, 20 working days, that is, the amount of the severance pay will be: 720 rubles. x 20 days = RUB 14,400.00 Personal income tax is not taken from the allowance. Records are made in the accounting: № p / p Contents of the operation Corresponding accounts Amount (rubles) Debit Credit 11 Accrued salary to II Petrov.
20 70 7 173.91 22 Withholding personal income tax from salary (7 173.91 × 13%) 70 68 932.61 33 Accrued contributions from accidents and occupational diseases (7 173.91 × 0.2%) 20 69.1 14.35 44 Contributions to the FSS (7,173.91 × 2.9%) 20 69.2 208.04 55 Contributions to the Pension Fund (7,173.91 × 22%) 20 69.3 1,578.26 66 Contributions to the FMS (7,173.91 × 5.1%) 20 69.4 365.87 77 Severance pay was calculated (calculation before the table) 20 70 14 400.00 88 Salary and allowance were transferred to the account of I.I.Petrov.

An employment contract may be terminated if the employee refuses to continue working in connection with a change in the terms of the employment contract determined by the parties (part 4 of article 74 of the Labor Code of the Russian Federation) (clause 7 of part 1 of article 77 of the Labor Code of the Russian Federation).

Article 74 of the Labor Code of the Russian Federation provides that in the case when, for reasons related to changes in organizational or technological working conditions (changes in technology and production technology, structural reorganization of production, other reasons), the terms of the labor contract determined by the parties cannot be preserved, they are allowed a change initiated by the employer, with the exception of a change in the employee's labor function.

The Supreme Court of the Russian Federation indicated that such changes include changes in technology and production technology, improvement of workplaces on the basis of their certification, and structural reorganization of production. At the same time, the introduced changes should not worsen the position of the employee in comparison with the terms of the collective agreement, agreement.

At the same time, courts of various levels, including the Constitutional Court of the Russian Federation, have repeatedly noted that the economic feasibility of introducing changes, their validity and necessity remain at the discretion of the employer.

The Moscow City Court indicated that the employer, in order to implement effective economic activity and rational property management has the right to independently, under its own responsibility, make the necessary personnel decisions, while ensuring the guarantees enshrined in labor legislation labor rights workers. Making a decision to change the organizational working conditions or reduce staffing belongs to the exclusive competence of the employer, who has the right to terminate the employment contract with the employee for one reason or another, depending on the path of reorganization chosen by the owner.

At the same time, the Labor Code of the Russian Federation does not prohibit the employer with the simultaneous occurrence of circumstances that require a change in the organization essential conditions an employment contract with employees and the reduction of the staff of specific persons, initiate both procedures at once. The main criterion for the legality of the employer's actions in this case will be the observance of the procedure established by law for taking measures to change the terms of the employment contract and reduce the number of staff.

Thus, the reasons for the employer to change the technological or organizational working conditions to determine the legality of the termination of the employment contract do not matter. But it should be borne in mind that a change in such working conditions should really take place.

Thus, refusing to satisfy the demands for reinstatement at work and the collection of average earnings for the time forced absenteeism, the court of first instance correctly noted that in LLC "S" there were organizational and technological changes in working conditions, which entailed changes in the working hours of the electrician, of which V. was notified. Since the latter refused to accept these changes, the employer had the right to terminate the employment contract with him under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

Due to the ambiguity of the concept of "organizational changes in working conditions" employers often try to pass off a change in organizational working conditions as a change organizational structure... At the same time, given that the name structural unit is a stumbling block for law enforcement officers, they periodically replace Art. 74 of the Labor Code of the Russian Federation, cases of movement or transfer. So, if the name of the structural unit is not agreed by the parties in the employment contract, its change is allowed without observing the conditions of Art. 74 of the Labor Code of the Russian Federation, since this event is the movement of an employee. In the same case, when the name of the structural unit is indicated in the employment contract, change it in the order of Art. 74 of the Labor Code of the Russian Federation is very risky, given the prohibition established by Art. 72.1 of the Labor Code of the Russian Federation and unresolved conflict.

A typical example, when the employer incorrectly qualified the transfer and dismissed the employee under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation, is next case: the employer had no grounds for dismissing the employee under clause 7, h. 1, Art. 77 of the Labor Code of the Russian Federation, since there was no change in the terms of the employment contract determined by the parties. The liquidation of the structural division in the form of a legal service cannot be recognized as a change in the terms of the employment contract determined by the parties, since the plaintiff's labor function has been preserved, the amount of remuneration remains the same. Moreover, a change in the name of the unit in which the employee worked and subordination cannot indicate a change in the terms of the employment contract determined by the parties.

In another case, the court noted that it follows from the staffing table that the position of the driver of a fourth-class car, which the plaintiff held, was not excluded. In the notification dated 03/23/2011, the defendant did not indicate the reasons that caused the need to change the terms of the employment contract. In this regard, the panel of judges found the conclusion of the first instance court legitimate that no changes were made in the organizational structure of production, technological working conditions at JSC "L". Consequently, the employer had no grounds for changing the terms of the employment contract with the plaintiff and terminating the employment contract with him, in connection with the refusal to continue work due to the change in the terms of the employment contract determined by the parties.

Changes structural organization of labor for the employer can be recognized as organizational changes in cases where, as a result of objective reasons, there is a real redistribution of the functionality and the order of interaction individual workers and structural divisions, not only the structure is changing, but also the system, the organization of workers' labor. It is not enough just to swap departments and reshuffle their functionality.

Thus, the court emphasized that the change in the terms of the employment contract determined by the parties was the result of organizational changes in the management structure with the redistribution of the workload to divisions or to specific positions, and the dismissal of the plaintiff by the defendant was made in full accordance with the requirements of the law. The decrease in the scope of the employee's job duties specified in the employment contract was caused by the structural reorganization of the defendant and the reassignment of the department, the employer had grounds for terminating the employment contract with the employee, taking into account compliance with other requirements provided for in Art. 74 of the Labor Code of the Russian Federation. As a result of changes in the terms of the employment contract determined by the parties, there have been changes in the management structure with a redistribution of workload. A change in the scope of duties for a specific position is not a change in the employee's job function.

In another case, the court indicated that the mere fact of structural reorganization of divisions with the transfer of functions of one of them to another cannot be regarded as a change in organizational or technological working conditions (change in technology and production technology, improvement of workplaces based on their certification, structural reorganization of production).

It is necessary to pay attention to the fact that, as rightly noted by E.G. Sitnikova and N.V. Senatorova, the deterioration financial situation the employer is not a reason for changing the terms of employment contracts with employees in accordance with Art. 74 of the Labor Code of the Russian Federation. Indirectly, such reasons can serve as a basis for subsequent structural reorganization, re-profiling of the company's activities, etc. But the deterioration of the financial position of the organization in itself cannot be a reason for changing the terms of employment contracts and their subsequent termination.

It should also be borne in mind that temporary absence of work due to any temporary reasons not caused by organizational or technological changes is downtime, and not a change in the terms of the employment contract and is subject to appropriate qualifications. Apply in this case Art. 74 of the Labor Code of the Russian Federation is completely incorrect.

For example, according to the order of the employer, due to the lack of a sufficient volume of work and the impossibility of full funding, working days from June 29, 2009, it was indicated to be considered idle time due to the fault of the employer. The employer paid for this time in the amount of 2/3 of the average wage. The plaintiff was notified of a reduction in the size of the salary in connection with the above order, she was warned that in case of disagreement she would be dismissed under clause 7, part 1 of Art. 77 of the Labor Code of the Russian Federation. The court concluded that the dismissal of the plaintiff was not related to changes in the organizational or technological working conditions, changes in technology and production technology, or to the improvement of jobs based on their certification, but with a decrease in the volume of work and a worsening financial situation. Under such circumstances, the dismissal of the plaintiff under clause 7, h. 1, Art. 77 of the Labor Code of the Russian Federation was recognized as illegal, since it contradicts the requirements of Art. 74 of the Labor Code of the Russian Federation.

A change in the terms of an employment contract should also be distinguished from a translation. In particular, Art. 74 of the Labor Code of the Russian Federation stipulates that it is permissible to change any conditions of the employment contract except for the labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; the specific type of work entrusted to the employee, article 15 of the Labor Code of the Russian Federation). This conclusion is confirmed by the emerging judicial practice.

So, the employer excluded from the state the position of the chief legal adviser of the apparatus under the leadership and included in staffing table the position of the General Counsel of the business support group of the branch. This confirms that with the approval of the new staffing table, the position of the chief legal adviser of the apparatus was not retained under the leadership. Without denying the exclusive right of the employer to carry out organizational and staff activities, the exclusion and introduction established posts, the court concluded that in this case the employer had grounds for terminating the employment contract with the employees on the grounds of staff reduction under paragraph 2 of Part 1 of Art. 81 of the Labor Code of the Russian Federation. The grounds for applying the provisions of Art. 74 of the Labor Code of the Russian Federation, even if we proceed from the position of the employer that by the day of dismissal the plaintiff held the position of the chief legal adviser of the apparatus under the leadership, there is no legal relationship to the arisen legal relations, since as a result of the approval of the new staffing table, the position of the chief legal adviser of the apparatus was not preserved under the management. Taking into account the foregoing, the court concluded that the dismissal of the plaintiff under paragraph 7 h. 1 of Art. 77 of the Labor Code of the Russian Federation was made illegally.

In another case, the court considered that changes in the staffing table and the removal of the position of an employee from the energy-mechanical department were connected with the improvement of the organizational structure of the plant. At the same time, the functional responsibilities employee. As a result of improving the organizational structure of the plant, there was a change in the employee's labor function. This contradicts the norms of the labor legislation of the Russian Federation. Also, in violation of clause 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2, the employee's position deteriorated in comparison with the previously existing conditions of the contract, in addition, the employee's wages were reduced. The employer did not provide evidence to the contrary, as well as that the employee was offered other available vacancies, including an electrical engineer. Taking into account the foregoing, the court satisfied the employee's claims to declare the dismissal illegal and to reinstate him at work in the previously held position of the head of the power engineering department - chief power engineer.

If the change by the employer of certain conditions of the employment contract is due to objective reasons, namely, a change in the organization of work, the labor function of the employee has not been changed, then the court may recognize as legitimate the notification of employees about the upcoming changes and possible termination of the employment contract on the analyzed basis.

Thus, the court indicated that the content of the specific actions of the employee may vary depending on the time, conditions and circumstances that he may face while fulfilling his labor duties... In the process of organizational, technical and economic development, the development of modern management technologies, the introduction of the latest technical means, the implementation of measures to improve the organization and increase the efficiency of labor, it is possible to change the range of duties of employees in comparison with the established corresponding characteristics, as a result of which the change by the employer of the employee's job duties does not constitute a change in his labor function in the sense of the provisions of Art. Art. 57, 60, 72 of the Labor Code of the Russian Federation. The job description is a local normative act that is adopted and changed by the employer within its competence (Articles 8, 12 of the Labor Code of the Russian Federation).

Under such circumstances, the court concluded that the change by the employer of certain conditions of the employment contract in this case was due to objective reasons, namely, a change in the organization of work, the employee's labor function was not changed, the change in the conditions of the employment contract did not worsen the employee's position in comparison with the terms of the collective agreement or agreement ...

For the correct termination of the employment contract on the analyzed basis, it is necessary to clearly understand which changes in the organization of the labor process are changes in the terms of the employment contract, giving rise to the termination of the employment contract on the analyzed basis, and which are not. In particular, the removal of additional payments from the employee in accordance with Art. 151 of the Labor Code of the Russian Federation or changing the work schedule without changing the working time regime will not change the terms of the employment contract.

The court considered the following situation. As follows from the explanations of the plaintiff, earlier she had a work schedule: five working days, two days off, from March 2009 she worked in a new regime; the new work schedule provided for work: three days of workers, three days off. Thus, the change in the work schedule with the new schedule in May 2009 does not in itself constitute a change in the essential working conditions; it took place without changing the working time regime, i.e. without changing the essential working conditions. The absence of the plaintiff to work in connection with the drawing up of a new work schedule for May 2009 cannot be recognized as legitimate, accordingly, there was absenteeism without good reason, which was a legal basis for the dismissal of the plaintiff on the grounds of paragraphs. "A" clause 6, part 1 of Art. 81 of the Labor Code of the Russian Federation.

Analysis of the provisions of Art. 74 and clause 7, part 1 of Art. 77 of the Labor Code of the Russian Federation allows us to conclude that the employer is obliged to notify the employee of upcoming changes in the terms of the employment contract determined by the parties, as well as of the reasons that caused the need for such changes, in writing no later than two months. The notice period is not restrictive. Given the wording of Art. 74 of the Labor Code of the Russian Federation, notification can be made earlier. The notice is made in writing, in mandatory the notification indicates: the reason for the changes that occurred, the changes themselves, the timeframe for their introduction, the employee's right to refuse to continue working in the changed conditions, an explanation of the consequences of refusing to continue working. If the employee refuses to continue working in the new conditions, he should be offered available vacancies that correspond to the qualifications and experience of the employee, as well as those that are not contraindicated for him for health reasons. It is permissible for an employer to request from an employee documents on his education (in the event that he did not provide them during admission or has a different education), as well as on the state of health to ensure a more complete offer of vacancies. In the event that the employee refuses to provide such documents, the employer is relieved of responsibility for failure to submit vacancies, the employee's compliance with which the employer has not been notified. The practice proceeds from the obligation of the employer to repeatedly offer the employee available vacancies, at least upon notification and before dismissal. The Labor Code of the Russian Federation does not contain such a requirement, although it can be recognized as justified in the case when the list of vacancies for the employer has changed by the time the employee's notice of changes in the terms of the employment contract expires.

If there is no other work in the organization or the employee has refused it, the employment contract is subject to termination in accordance with clause 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation. In this case, the employee is warned two months in advance about changing the employment contract, and not about terminating it, since the employer may have vacancies that he is obliged to offer to the employee. In addition, despite the absence of such a norm in the Labor Code of the Russian Federation, we believe that the employee also has the right to withdraw his refusal to continue working in the changed conditions.

Thus, the court concluded that there was no need to notify the employee in writing about the termination labor relations two months in advance, but only about the existence of the employer's obligation to notify the employee two months in advance of the upcoming changes in the employment contract.

In another case, the court considered that the employer had complied with the provisions of Art. 74 of the Labor Code of the Russian Federation, the obligation to offer an employee in writing a vacant position if the latter does not agree to work in new conditions. Since the employee refused to work in the new conditions and the offered vacancies, and also did not provide evidence of the deterioration of his position in connection with the change in the working hours, the court considered that the employee was dismissed legally in accordance with paragraph 7 of part 1 of Art. ... 77 of the Labor Code of the Russian Federation, as a result of which there are no grounds for recognizing the order as illegal and restoring the plaintiff at work.

"HR service and enterprise personnel management ", 2008, N 9

General Provisions

An employment contract is an agreement between an employee and an employer and is a mandatory document on the basis of which labor relations arise (Article 16 of the Labor Code of the Russian Federation).

The Labor Code establishes the basic requirements for the procedure for concluding, changing and terminating an employment contract (chap. 11-13 of the Labor Code of the Russian Federation), which are binding on both the employer and the employee.

The version of the Labor Code of the Russian Federation, which was in force until September 30, 2006, provided for such a concept as "essential conditions of an employment contract", which were subject to mandatory inclusion in an employment contract.

Fragment of the document. Part 2 of Article 57 of the Labor Code of the Russian Federation (as amended on July 24, 25, 2002, June 30, 2003, April 27, August 22, December 29, 2004 and May 9, 2005)

The essential terms of the employment contract are:

• place of work (indicating the structural unit);
• start date of work;
• the name of the position, specialty, profession with an indication of qualifications in accordance with the staffing table of the organization or a specific job function. If, in accordance with federal laws, the provision of benefits or the presence of restrictions is associated with the performance of work in certain positions, specialties or professions, then the name of these positions, specialties or professions and qualification requirements for them must comply with the names and requirements specified in qualification reference books approved in accordance with the procedure established by the Government of the Russian Federation;
• the rights and obligations of the employee;
• the rights and obligations of the employer;
• characteristics of working conditions, compensation and benefits to employees for work in difficult, harmful and (or) dangerous conditions;
• the mode of work and rest (if it is in relation to this employee differs from the general rules established in the organization);
• terms of remuneration (including the size of the wage rate or the official salary of the employee, additional payments, allowances and incentive payments);
• types and conditions of social insurance directly related to work.

Federal Law of June 30, 2006 N 90-FZ, which entered into force on September 30, 2006, excluded the concept of "essential conditions of an employment contract" from the Labor Code of the Russian Federation. Instead, the concept of "terms of an employment contract determined by the parties" appeared.

Thus, from the specified date, any conditions provided for in the employment contract acquire the same for the employer and for the employee. legal force and the significance that was previously provided only for the essential terms of the employment contract.

This innovation quite strongly influenced the legal nature of the employment contract and primarily affected the legal relationship associated with its revision. Therefore, Ch. 12 of the Labor Code of the Russian Federation, dedicated to changing the employment contract, was supplemented by several articles, and also more specific.

Within the framework of our article, by changes in an employment contract, we mean a change in any conditions specified in it, regardless of the degree of their importance for the parties to the employment contract.

Based general principles labor legislation, a change in an employment contract can be made on the following grounds:

1. At the initiative of the employer.

In this case, the employer insists on changing the employment contract, but the employee may disagree with these changes. Based on the presumption of the priority of the employee's rights established by labor legislation, these changes must be preceded by a certain procedure established by the Labor Code of the Russian Federation. Moreover, such changes can be made only in cases directly provided for by the Labor Code of the Russian Federation.

If the employee agrees with the employer's initiative, the change in the employment contract is made by agreement of the parties.

Example 1... The employer, wishing to optimize the staffing table, as well as reduce the cost of paying cash remuneration to his employees, decided to reduce the amount of bonuses and wage supplements. The employees did not agree with this state of affairs, and the employer had to carry out the change procedure in the manner specified in Art. 74 of the Labor Code of the Russian Federation.

1. At the initiative of the employee.

In this situation, the employee insists on changes, and the employer, in turn, has the right to satisfy the employee's request (in this case, we will talk about changing the employment contract by agreement of the parties) or leave the employment contract unchanged. An example of such a change would be an employee's request for a wage increase.

1. By circumstances beyond the control of the parties.

In this case, the change in the employment contract is preceded by the onset of any objective circumstances, after which the continuation of work on the previous conditions becomes impossible. Such circumstances may be an employee's illness, professional development, unsatisfactory certification results, changes in legislation, changes in working conditions, etc.

Example 2... After changing the legislation on municipal service persons holding municipal positions ceased to receive additional payments for the qualification category, which led to changes in the labor contract in the part concerning the establishment of additional payments and allowances.

1. By mutual agreement of the parties.

This is the easiest way to change an employment contract. It must necessarily be preceded by the initiative of one of the parties (employer or employee). Moreover, it does not matter on whose initiative this is happening. The main thing is that both the employer and the employee agree with the changes. That is, it should be expressed good will parties to the employment contract.

The above gradation is conditional, since neither the Labor Code of the Russian Federation, nor other regulatory legal acts of the current labor legislation provide for it. Quite often the above bases can "intertwine" or one of them can "flow" into the other.

Example 3... After the surgery, according to the medical report, the worker was transferred to an easier job. This entailed a change in his labor function (and, consequently, a change in the employment contract) without changing the profession (position) due to circumstances beyond the control of the parties.

Wanting to support the employee, the employer raised his wages and added several extra days to leave, with which the employee, of course, agreed. Here you can already see changes to the employment contract at the initiative of the employer, which led to an agreement between the parties.

Thus, the employment contract underwent a number of changes at the same time, but for several reasons.

The Labor Code of the Russian Federation offers the following classification of ways to change an employment contract, which is currently the only established and normatively fixed:

• changing the terms of the employment contract determined by the parties (Article 72 of the Labor Code of the Russian Federation);
• transfer to another job. Moving (Article 72.1 of the Labor Code of the Russian Federation);
• temporary transfer to another job (Article 72.2 of the Labor Code of the Russian Federation);
• transfer of an employee to another job in accordance with a medical certificate (Article 73 of the Labor Code of the Russian Federation);
• changes in the terms of the employment contract determined by the parties for reasons related to changes in the organizational or technological working conditions (Article 74 of the Labor Code of the Russian Federation);
• change in the employment contract when the owner of the organization's property changes, changes in the jurisdiction of the organization, its reorganization (Article 75 of the Labor Code of the Russian Federation);
• change in the employment contract upon suspension from work (Article 76 of the Labor Code of the Russian Federation).

However, whatever the grounds for changing the employment contract, one rule for the employer should remain unshakable: changes to the employment contract are drawn up in the same manner as the employment contract itself, that is, in writing. This is evidenced by the provisions of Art. 72 of the Labor Code of the Russian Federation, according to which a change in the terms of an employment contract determined by the parties is formalized through an agreement concluded in writing. Failure to comply with the mandatory written form of such an agreement entails its invalidity, and with it the invalidity of any amendments to the employment contract. There are no exceptions to this rule.

The very same agreement on changing the employment contract can be formalized as an additional agreement to the employment contract, which after signing by the parties will be considered an integral part of it. Just as in the case of an employment contract, one copy of the supplementary agreement is given to the employee, one to the employer. The basis for amending the employment contract will be a special act of the employer (order, decree, order, etc.), providing for a change in the terms of the employment contract determined by the parties, with which the employee must be familiarized with signature (in some cases, determined by the Labor Code of the Russian Federation, early).

V individual cases stipulated by the current legislation, a record of changes in the terms of the employment contract is entered in the employee's work book.

Fragment of the document. Review of judicial practice of the Supreme Court of the Russian Federation for the III quarter of 2005, approved at a meeting of the Presidium of the Supreme Court of the Russian Federation on November 23, 2005 No.

In accordance with the Decree of the Government of the Russian Federation of April 16, 2003 N 225 "On work books", information on hiring, transfer to another permanent job, qualifications, dismissal (indicating the reasons and reference to the article, paragraph law).

Thus, the work book should contain information about changes in the employee's labor function and essential working conditions.<1>.

<1>Insofar as this Review was prepared during the period of validity of the old edition of the Labor Code of the Russian Federation, the text of the document uses the concept of "essential conditions of an employment contract." Currently, these provisions of the Review in full retain their legal force, only under the specified concept it is necessary to mean "the terms of the employment contract determined by the parties."

Since the correctness of the employer's actions (in terms of paperwork, as well as compliance with the procedures established by law) largely depends on legal position employee, his social protection and guarantees, when making changes to the employment contract, the employer should strictly follow the requirements of the Labor Code of the Russian Federation, as well as other regulatory legal acts governing these legal relations. Otherwise, the person exercising the powers of the employer may be subject to disciplinary liability provided for by law (up to and including dismissal).

Transfer to another job. Moving

According to Art. 72.1 of the Labor Code of the Russian Federation, a transfer to another job means a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee is listed (if the structural unit was specified in the employment contract), while continuing to work for the same employer. Also, a transfer is considered to be a transfer to work in another locality together with the employer.

According to clause 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 (hereinafter referred to as Resolution N 2), structural subdivisions should be understood as branches, representative offices, as well as departments, workshops, sections, etc. Another locality is considered to be an area outside the administrative-territorial boundaries of the corresponding settlement.

Transfer to another job is allowed only with the written consent of the employee. However, h. 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation provides for cases when transfer to another job is possible at the initiative of the employer, without the consent of the employee. It:

• transfer of an employee to a job not stipulated by an employment contract with the same employer in the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, hunger, earthquake, epidemic or epizootic and in any exceptional cases that endanger life or normal living conditions of the entire population or part of it. In this case, the employee can be transferred to another job solely to prevent these cases or eliminate their consequences and for a period not exceeding one month;
• transfer of an employee 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 the destruction or damage of property or replacement of a temporarily absent employee. Moreover, all these cases must be caused by extraordinary circumstances. Please note that transfer to work requiring lower qualifications is allowed only with the written consent of the employee, which is also confirmed by the provision of clause 18 of Resolution No. 2.

Arbitrage practice. Review of cassation practice for 2007 in civil cases, approved at a meeting of the Presidium of the Kirov Regional Court on March 12, 2008

Citizen D. worked as a shop assistant at the FGUP UOKh "Chistye Prudy" All-Union State Agricultural Academy. On the basis of a court decision and an order for the enterprise, the activities of the store were suspended for 90 days due to violation of the rules fire safety... By order of the employer, D. was transferred to another job as a manager. In connection with the refusal to transfer, she was dismissed by order of 04/19/2007 according to pp. "a" clause 6, part 1 of Art. 81 of the Labor Code of the Russian Federation.

Disagreeing with the dismissal, D. went to court with a claim to declare the transfer illegal, reinstate her at work, pay for the forced absence and compensation for moral damage.

By the decision of the Leninsky District Court of 03.09.2007, the claim was rejected.

The Judicial Collegium for Civil Cases of the Regional Court overturned the decision and made a new decision to reinstate D. at work in his previous position, and collected compensation for moral damage in the amount of 1,000 rubles. As regards the payment of the forced absence from the case, the case was returned for a new trial to the district court.

According to paragraphs. "a" clause 6, part 1 of Art. 81 of the Labor Code of the Russian Federation, an employment contract can be terminated by the employer in the event of a single gross violation of labor duties by the employee, in particular, truancy.

Transfer to another job in accordance with Art. 72.1 of the Labor Code of the Russian Federation is allowed only with the written consent of the employee, with the exception of cases provided for in parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation.

The Leninsky District Court, initially refusing to satisfy D.'s claims, violated the norms substantive law, referring to Art. 72.2 of the Labor Code of the Russian Federation. Recall that, according to this article, an employee can be transferred 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 a natural or man-made disaster. Since these circumstances did not exist, then refer to Art. 72.2 of the Labor Code of the Russian Federation in this case is illegal.

However, in any case, judicial practice obliges the employer to justify the need to transfer the employee to another job without his consent.

Arbitrage practice. Clause 17 of Resolution No. 2 says that when an employee is temporarily transferred to another job without his consent, the employer must prove the existence of circumstances with which the law connects the possibility of such a transfer.

Another important point is that the transfer of an employee without his consent is only possible to work that is not contraindicated for him for health reasons (paragraph 18 of Resolution No. 2).

At the same time, judicial practice allows for disciplinary proceedings against an employee for refusing to work.

Arbitrage practice. In paragraph 19 of Resolution No. 2, the judges concluded that refusal to perform work during a transfer made in compliance with the law is considered a violation of labor discipline, and absenteeism is absenteeism.

However, an employee cannot be punished for refusing to perform work in the following cases:

• 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;
• if it is necessary to perform heavy work and work with harmful and (or) dangerous conditions labor not provided for by the employment contract.

This conclusion is based on the provisions of par. 5 h. 1 tbsp. 219 and part 7 of Art. 220 of the Labor Code of the Russian Federation.

According to Art. 72.1 of the Labor Code of the Russian Federation, relocation means the transfer of an employee from the same employer to another workplace, to another structural unit located in the same area, entrusting him with work on another mechanism or unit, if this does not entail changes in the terms of the employment contract determined by the parties.

Example 4... In the garage of the company there are two service passenger cars, one of which is designed to transport the head of the company. For the period of illness of the driver of this car, the driver of the second car was transferred (moved) to his place in order to provide the manager with the opportunity to use the official transport at any time.

Please note: if the driver is transferred to a vehicle of a different category (bus, truck, etc.), in this case, there is no question of any movement, since the employee's job function changes (an appropriate qualification of the driver is required).

Unlike a transfer, a transfer does not require the consent of the employee, since it does not entail a change in the terms of the employment contract specified by the parties. For this reason, no agreement with the employee is required. It is enough to draw up an administrative document of the employer and familiarize the employee with it against signature (see example 5).

Please note: the Labor Code of the Russian Federation prohibits the transfer of an employee to work that is contraindicated for him for health reasons.

Example 5.

Limited Liability Company "Rainbow mood" (LLC "Rainbow mood") Order

Ussuriysk

On the movement of the driver Petrova ON

Due to business need

I order

For the duration of the illness of the driver Nikolai Olegovich Ivanov, move the driver Oleg Nikolayevich Petrov from work on a VAZ-2107 vehicle, registration numberА 111 ТТ 25 RUS for work on a vehicle of the GAZ-311055 brand, registration number Х 023 СМ 25 RUS.

Reason: Art. 72.1 of the Labor Code of the Russian Federation, memo of the executive director M.T. Kuzkin.

General Director Zhukov A.M. Zhukov
Petrov O.N. is familiarized with the order. Petrov
01.09.2008

Transfer of an employee to another job in accordance with a 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, the employer is obliged to transfer to another job that he has that is not contraindicated for the employee for health reasons. In this case, the following conditions must be met:

• availability of a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation;
• availability of the employee's written consent to the transfer;
• the employer has a job that is not contraindicated for the employee for health reasons.

The absence of at least one of these requirements does not give grounds for transferring the employee to another job on medical indications.

Fragment of the document. Article 49 of the Fundamentals of the Legislation of the Russian Federation on the Protection of the Health of Citizens of 22.07.1993 N 5487-1

The examination of temporary disability is carried out by the healers of the state, municipal and private health care systems, who single-handedly issue certificates of incapacity for work to citizens for a period of up to 30 days, and for a longer period, certificates of incapacity for work are issued by a medical commission appointed by the head of a medical institution.

When drawing up a certificate of incapacity for work, information about the diagnosis of the disease in order to comply with medical confidentiality is entered with the consent of the patient, and in case of his disagreement, only the reason for the incapacity for work (illness, injury or other reason) is indicated.

At the same time, the Labor Code of the Russian Federation provides for special guarantees for employees who are subject to transfer to another job on the basis of a medical certificate, if as a result of such a transfer the size of their wages changes downward. So, according to Art. 182 of the Labor Code of the Russian Federation, when an employee is transferred to another lower-paid job for medical reasons, his previous average earnings are retained for him within one month from the date of transfer. And when transferring in connection with work injury, occupational disease or other damage to health associated with work - until the establishment of a permanent loss of professional ability to work or until the employee recovers.

In cases where an employee refuses to transfer to another job available to the employer on the basis of a medical certificate, or if the employer does not have such a vacancy, the Labor Code of the Russian Federation provides for the following opportunities for the employer:

1. If an employee needs a temporary transfer to another job for up to four months, the employer is obliged to suspend the employee from work for the entire period specified in the medical certificate, while retaining the place of work (position). At the same time, the employee's wages are not charged, with the exception of cases provided for by the Labor Code of the Russian Federation, other federal laws, collective agreements, agreements, labor contracts. Note that at present neither the Labor Code of the Russian Federation, nor other federal laws provide for grounds for maintaining wages for an employee during the period of suspension. However, this does not prevent the parties to the employment contract from providing such a guarantee in the collective or employment contract.
2. If the employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, the employment contract is terminated in accordance with clause 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation. Namely, in connection with the employee's refusal to transfer to another job, which he needs in accordance with the medical report, or the employer's lack of appropriate work.

In this case, the following entries are made in the employee's work book (depending on the grounds for dismissal):

• "Dismissed in connection with the refusal to transfer to another job, necessary for him in accordance with the medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation, paragraph 8 of the first part of Article 77 of the Labor Code of the Russian Federation";
• "Dismissed due to the employer's lack of appropriate work provided for the employee in accordance with the medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation, paragraph 8 of the first part of Article 77 of the Labor Code of the Russian Federation."

Additional provisions related to the transfer to another job for medical reasons of executives are provided for by Art. 73 of the Labor Code of the Russian Federation. These norms apply, in particular, to the heads of organizations (branches, representative offices or other separate structural divisions), their deputies and chief accountants. With these workers who, in accordance with a medical certificate, are temporarily or permanently transferred to another job, if the transfer is refused or the employer does not have the appropriate work, the employment contract is terminated in accordance with clause 8, part 1 of Art. 77 of the Labor Code of the Russian Federation. At the same time, the period for which the managerial employee needs to be transferred to another job does not matter in this case.

However, the employer has the right, with the written consent of executives, not to terminate the employment contract with them, but to suspend them from work for a period determined by the agreement of the parties. In this case, the agreement can be drawn up in the form of an order (resolution, order) of the employer to remove the manager from work for a certain period. In turn, the executive officer, having familiarized himself with the order, puts a conciliatory signature on its form: "I have read the order" __ "___________ 200__, I agree with the suspension from work for the specified period." Also, the law does not prohibit the execution of an agreement in the form of an additional agreement to the employment contract, which will be its integral part. The main thing is that the document contains the will of both parties to the employment contract.

During the period of suspension from work, the wages of these employees are also not charged, except for cases stipulated by the collective agreement, agreements, labor contracts.

Change in organizational or technological working conditions

This basis gives rise to the largest number of labor disputes and conflict situations, often resolved only in court.

Arbitrage practice. In connection with the end of the next academic year, the school director, together with the head teacher, redistributed the teaching load of individual teachers for the next academic year and announced this to the teachers only in August, after the latter left their vacation. Pedagogical workers, whose workload has decreased as a result, went to court. And although the school administration was able to prove the objectivity of the reasons for changing the load, the procedure for notifying employees about this, provided for in Art. 74 of the Labor Code of the Russian Federation. The workers were warned about the reduction of the load not two months in advance, but after the issuance of an order to establish the load for the new academic year. Thus, the court ordered the headmaster of the school to cancel the issued order and reconsider the teaching load again. Therefore, for this academic year, the teachers who applied to the court were restored to their previous workload.

According to Art. 74 of the Labor Code of the Russian Federation, in the case when, for reasons related to changes in organizational or technological working conditions (changes in technology and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be preserved, their change is allowed at the initiative of the employer ... Please note: this should not change the employee's labor function (that is, his profession, specialty, the specific type of work he performs). Otherwise, it will be a question of transferring to another job.

Thus, in the manner prescribed by Art. 74 of the Labor Code of the Russian Federation, the following conditions of the employment contract may be changed:

• place of work;
• terms of remuneration;
• working hours and rest hours;
• compensation for hard work and work with harmful and (or) dangerous working conditions;
• conditions that determine the nature of work (mobile, traveling, on the road, other nature of work);
• other conditions contained in the employment contract, but not related to the employee's labor function.

Since in this case the most essential terms of the employment contract for the employee, on which his material well-being directly depends, as well as other guarantees provided by law (the amount of wages, the duration of the additional annual paid leave, etc.), may be subject to change, the legislator has provided for a special the procedure for changing the terms of the employment contract determined by the parties.

According to Art. 74 of the Labor Code of the Russian Federation, the employer is obliged to notify the employee in writing not later than two months in advance of the upcoming changes in the terms of the employment contract determined by the parties, as well as on the reasons that caused the need for such changes. An employer who is an individual must do this in at least 14 calendar days (Article 306 of the Labor Code of the Russian Federation), and a religious organization - at least 7 calendar days (Article 344 of the Labor Code of the Russian Federation).

The Labor Code of the Russian Federation does not provide for the form of such a notification: it may be a written request from the employer to the employee, or it may be the employer's act (order, order, resolution, etc.), which the employee acquaints with against signature. Most importantly, the above two-month period starts from the moment when the employee was actually notified in writing by the employer. Therefore, together with the notification signature, the employee must necessarily put the date when he was warned in writing. If the employee refuses to set the date, an act should be drawn up, signed in the presence of witnesses, confirming the date of the actual notification of the employee.

It is necessary to once again draw attention to the fact that the employer is obliged to warn the employee not only about the upcoming changes in the terms of the employment contract, but also about the reasons that caused the need for such changes.

Arbitrage practice. When resolving the case for the reinstatement of persons at work, the employment contract with whom was terminated under paragraph 7 of part 1 of Art. 77 of the Code (refusal to continue work in connection with a change in the terms of the employment contract determined by the parties), or on the recognition of illegal changes in the terms of the employment contract determined by the parties when the employee continues to work without changing the labor function (Article 74 of the Labor Code of the Russian Federation), the judges made the following conclusion. According to Art. 56 of the Code of Civil Procedure of the Russian Federation, the employer is obliged to provide evidence confirming that the change in the terms of the employment contract determined by the parties was the result of changes in organizational or technological working conditions (for example, changes in technology and production technology, improvement of jobs based on their certification, structural reorganization of production, etc. .). This is stated in paragraph 21 of Resolution No. 2.

In addition, the Labor Code of the Russian Federation and Resolution No. 2 provide that the change in the terms of the employment contract determined by the parties, carried out in the manner prescribed by Art. 74 of the Labor Code of the Russian Federation, should not worsen the position of the employee in comparison with the terms of the employment contract (agreement).

If the employee does not agree to work in the new conditions, then the employer is obliged to offer him in writing another job available to the employer (both a vacant position or a job corresponding to the qualifications of the employee, and a vacant lower position or lower-paid job), which the employee can perform taking into account his health conditions. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the area. The employer is obliged to offer vacancies in other localities if it is provided for by the collective agreement, agreements or labor contract.

With absence suitable job or the refusal of the employee from the proposed work, the employment contract is terminated in accordance with paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation, that is, based on the employee's refusal to continue working in connection with a change in the terms of the employment contract determined by the parties.

In this case, the following entry is made in the employee's work book: "Fired due to refusal to continue work in connection with a change in the terms of the employment contract determined by the parties, paragraph 7 of part one of Article 77 of the Labor Code of the Russian Federation."

In the event that changes in technological or organizational working conditions may lead to mass layoffs of employees, the employer, in order to preserve jobs, has the right to introduce a part-time (shift) and (or) part-time working week for up to six months. This should take into account the opinion of the elected body of the primary trade union organization (if it exists).

The criteria for the mass dismissal of employees are determined by the current legislation.

Fragment of the document. Clause 1 of the Regulation on the organization of work to promote employment in conditions of mass layoff, approved by the Resolution of the Council of Ministers - the Government of the Russian Federation of 05.02.1993 N 99

If the employee refuses to continue working part-time (shift) and (or) part-time work week, then the employment contract with him is terminated in accordance with paragraph 2 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, that is, to reduce the number or staff of employees. In this case, the employee is provided with appropriate guarantees and compensations provided for in Art. Art. 179 and 180 of the Labor Code of the Russian Federation.

An entry is made in the employee's work book: "Fired due to the reduction in the number of employees of the organization (or individual entrepreneur), paragraph 2 of the first part of Article 81 of the Labor Code of the Russian Federation."

The cancellation of the part-time (shift) and (or) part-time working week before the period for which they were established is made by the employer, taking into account the opinion of the elected body of the primary trade union organization.

Article 372 of the Labor Code of the Russian Federation establishes the following procedure for the employer to obtain the opinion of the elected body of the primary trade union organization in order to introduce and cancel a part-time working day (shift) and (or) part-time working week:

1. The employer, before making a decision on the introduction or cancellation of part-time work (shift) and (or) part-time work week, sends a draft local normative act providing for such an introduction or cancellation, and the justification for it to the elected body of the primary trade union organization, representing the interests of all or the majority of employees ...
2. The elected body of the primary trade union organization, no later than five working days from the date of receipt of the draft of the specified local normative act, sends the employer a reasoned opinion on the draft in writing.
3. If the reasoned opinion of the elected body of the primary trade union organization does not contain agreement with the draft local normative act or contains proposals for its improvement, the employer may agree with it or, within three days after receiving a reasoned opinion, it is obliged to conduct additional consultations with the elected body of the primary trade union organization of workers in order to achieving a mutually acceptable solution.
4. If no agreement is reached, the disagreements that have arisen are formalized in a protocol, after which the employer has the right to adopt a local normative act, which can be appealed by the elected body of the primary trade union organization to the relevant state labor inspectorate or to the court. The elected body of the primary trade union organization also has the right to initiate a collective labor dispute procedure in accordance with the procedure established by the Labor Code of the Russian Federation.

Change of ownership of the organization's property. Changing the jurisdiction of the organization. Reorganization

A change in the ownership of an organization's property, a change in the jurisdiction of an organization, or a reorganization of an organization has practically no effect on the employment contracts of ordinary employees.

Arbitrage practice. In the Ruling of the Primorsky Regional Court dated November 29, 2004 N 33-6296, the judges considered the following situation. In connection with the change of the owner of the company, the employee was dismissed under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation (that is, on staff reduction). However, the court ruled to reinstate the employee in his previous position, since in accordance with Art. 75 of the Labor Code of the Russian Federation, a change in the owner of an organization's property is not a basis for terminating employment contracts with other employees of the organization.

It should be remembered that, according to clause 32 of Resolution No. 2, a change in the ownership of a legal entity's property is not a change in the composition of its founders (participants), if this does not entail changes in the form of ownership of the property.

For the head of the organization, his deputy and the chief accountant, such a change can become the basis for terminating the employment contract on the initiative of the new owner of the organization, while the rest of the employees will not be affected (Article 75 of the Labor Code of the Russian Federation).

The only thing that can change the content of labor contracts with employees is information about the new employer, which appeared as a result of the alienation of the organization's property by the previous owner or the reorganization.

Example 6... The citizen worked as a lawyer in a municipal unitary enterprise. After reorganization in the form of transformation, he continued his activities already in an open joint stock company. Thus, earlier the employer for this employee was a unitary enterprise, then, after reorganization, - joint-stock company.

In this case, a new employment contract must be concluded with the employee, in which the employer will already be a joint-stock company, and the director of this company will be the employer's representative. This reorganization and the new employment contract will not affect the employment relationship with the employee.

In this case, the following entry is made in the employee's work book: "The municipal unitary enterprise" ___________ "was reorganized into an open joint-stock company" ___________ ", and the fourth column indicates the date and number of the normative act on the basis of which the reorganization was carried out.

However, the Labor Code of the Russian Federation provides for cases when an employee refuses to work in a new organization. Then the employment contract with such an employee is terminated under clause 6 of part 1 of Art. 77 of the Labor Code of the Russian Federation, that is, in connection with the employee's refusal to continue working in connection with a change in the owner of the organization's property, with a change in the jurisdiction (subordination) of the organization or its reorganization.

Other changes to the employment contract in connection with a change in the owner of the organization's property, a change in the jurisdiction of the organization, its reorganization (except for a change in the name of the organization) must be made in the manner prescribed by Art. Art. 72 - 74 of the Labor Code of the Russian Federation.

Change of an employment contract upon suspension from work

The essence of suspension from work is that the employer, for a number of reasons, does not allow the employee to perform his job duties or, if the employee has already begun to perform them, does not allow him to continue such performance.

Article 76 of the Labor Code of the Russian Federation contains a fairly voluminous list of grounds for dismissing an employee from work, which is not exhaustive and can be expanded by federal laws and other regulatory legal acts of the Russian Federation. As a rule, suspension from work does not entail a change in the employment contract: the employee is simply deprived of the right to work until the circumstances that became the reasons for his suspension are eliminated.

However, the specified article of the Labor Code of the Russian Federation still provides for the reason why the suspension from work may entail a change in the terms of the employment contract. This reason (by the way, new for the Labor Code of the Russian Federation) is the suspension of the special right of the employee (license, the right to drive a vehicle, the right to carry weapons, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation for up to two months. Federation, if this entails the impossibility of the employee to fulfill his obligations under the employment contract.

In this case, the employer is obliged to transfer the employee, with his written consent, to another job available to the employer (both a vacant position or job corresponding to the qualifications of the employee, and a vacant lower position or lower-paid job), which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

In the case of the employee's consent to the transfer, the relations of the parties to the employment contract are regulated in accordance with the procedure provided for in Art. 72.1 of the Labor Code of the Russian Federation (transfer to another job).

Otherwise, the employment contract with the employee is not terminated, but for the entire period of suspension from work (until the restoration of special rights), he is deprived of his pay (wages) (Article 76 of the Labor Code of the Russian Federation).

Suspension from work is carried out on the basis of a written act of the employer (order, order, resolution, etc.), with which the employee must be familiarized with signature.

Summing up

Summing up, we recall that when resolving any labor disputes related to legal relations in the field of changing the labor contract (changing the terms of the labor contract determined by the parties), the courts in most cases take the side of the employee, which creates additional difficulties for the employer in defending their interests. To prevent this from happening, each authorized person acting as an employer in relations with employees must remember and strictly observe the norms of the Labor Code of the Russian Federation, which prescribe certain behavior in regulating these legal relations.

Indeed, in practice, there are often cases when violations committed by the employer in the process of changing the employment contract lead to very serious violations of the rights of employees, including a decrease in the size of wages, a significant change in the labor function against the will of the employee, imposing onerous duties on the employee, not stipulated by the employment contract, etc.

In the best case (for the employer), the case is resolved in court at the employee's claim. In the worst case, representatives of the state labor inspectorate intervene, who not only force the employer to eliminate violations of the Labor Code of the Russian Federation committed against the employee, but also bring the employer, as well as his representatives, to administrative responsibility provided for by the current legislation, in particular Art. 5.27 of the Administrative Code of the Russian Federation. This threatens the employer with a fine of up to 5,000 rubles. (if the employer is individual entrepreneur) or up to 50,000 rubles. (if the employer is entity). In addition, in some cases, the activities of the employer may be temporarily suspended administratively for up to ninety days. Naturally, during these three months the employer has every chance of losing a significant part of his profits, especially if such a suspension coincides with the "peak" period of the activity of the organization (entrepreneur) engaged in seasonal work.

In addition, an official who was previously subjected to administrative responsibility for violations committed when changing the employment contract, by virtue of Part 2 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation can be disqualified (that is, deprived of the right to hold any position) for a period of one to three years.

We believe that all of the above will be able to convince the employer that acting according to the law (even with some damage to one's own interests) is still better than being held accountable. After all, this can entail much greater losses.

At the beginning of this article, we have already talked about the presumption of the priority of employee rights in the system of labor relations. This does not mean at all that the employer has absolutely no rights in these relations. It's just that he, as a person endowed with special duties in building and regulating these relations, will have to pay more attention to their so-called formal side, including in matters of changing the employment contract.

P.V. Gulidov

Private practice lawyer,

founder

"Legal office of Pavel Gulidov"

An employment contract is not a static contract; changes and amendments can be made to it. If these are technical amendments, then you will not have to coordinate them with the employee. However, if the changes are significant, then the consent of the employee is mandatory. If the employee does not want to continue working, taking into account the new conditions, it is possible to fire him on the basis of clause 5 of part 1 of article 77 of the Labor Code of the Russian Federation. But such dismissal and the very change in essential working conditions can be appealed in court. Consider real cases when the court sided with the employer.

The employer has correctly carried out the termination procedure when changing the address

In order to save on rental and labor costs, many companies are currently moving from Moscow to the regions. And of course, not all employees are willing to follow their employer. If the employer complied with the dismissal of such employees, notified at least 2 months in advance of the upcoming changes and offered all available vacancies, then the court recognizes the dismissal as legitimate in the absence of the employee's consent to move to another locality.

As an example, it is possible to cite the Appellate ruling of the Moscow City Court dated 04/08/2016 in case N 33-12401 / 2016. The court found the dismissal procedure followed. In resolving the dispute and refusing to satisfy the claims for reinstatement at work, recovery of average earnings during the forced absence and compensation for moral damage, the first instance court reasonably proceeded from the fact that the change in the working conditions of the plaintiff was a consequence of the structural reorganization of production, which in turn was the basis to change the essential terms of the employment contract in terms of changing the place of work of the plaintiff, which did not entail an actual change in the job functions of the plaintiff.

The employer changed the workload correctly

Talking about educational institutions, as well as about medical institutions, then the remuneration in such institutions depends on the workload of the employee. Accordingly, the risk of litigation arises when the workload changes, especially if we talk about an extremely high workload on the teacher or a significant decrease in the teaching load.

As an example, confirming the possibility of an employer reducing the workload, we can name the decision of the Kushvinsky g / s (Sverdlovsk region) dated January 17, 2017 in case No. 2-60 / 2017. The plaintiff was hired for the teaching position with a workload of 28 hours, but later the workload was reduced to 24 hours. The employee considered that this violates the requirements of labor legislation. In violation of the provisions of Article 74 of the Labor Code of the Russian Federation, the plaintiff was not notified by the employer about the change in essential working conditions and specific reasons that led to the removal of teaching hours.

However, the court concluded that the employee was effective contract, according to which the working conditions were changed. In addition, the employee was familiarized with the order. Upon leaving the unpaid leave, the employee started to work with a load of 24 academic hours a week, the payment was made based on this load.

The employer changed wages correctly and fired an employee who did not agree to a wage cut

No employee will be against a wage increase. However, the pay cut is an unpleasant surprise, and of course not all employees agree to a pay cut. Some employers do it more cunningly and introduce a variable part of the salary, which is subsequently not paid, since the bonus is a right, not an obligation of the employer. In the event of a change in wages, it is necessary to sign an additional agreement to the employment contract. Also, the employer must issue an order and make changes to the staffing table.

If the employer complies with the dismissal procedure, then in this case the court will recognize the legality of the dismissal. As an example, we can cite the Appellate ruling of the Nizhny Novgorod Regional Court dated January 31, 2017 in case N 33-1126 / 2017, in which the court refused to change the basis for terminating the employment contract.

The employer rightfully fired a pregnant woman

Changes in the terms of the employment contract at the initiative of the employer (with the exception of the condition on the labor function of the employee) is allowed in the case when they cannot be saved for reasons related to changes in the organizational or technological working conditions. But what if the structural unit is liquidated, and a pregnant woman works in it?

If a woman does not agree to work in the new conditions, then she can be fired. The legality of such dismissal is confirmed by the Appellate ruling of the Chelyabinsk Regional Court dated February 24, 2016 in case N 11-2006 / 2016. The employer made a decision to terminate the activity of the structural unit.
Part four of Article 81 of the Labor Code of the Russian Federation stipulates that in the event of the termination of the activities of a branch or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of the organization.

At the same time, according to the legal position of the Constitutional Court of the Russian Federation, contained in the Decision of April 21, 2005 N 144-O "On refusal to accept for consideration the complaint of citizen P. for violation of her constitutional rights by part four of Article 81 of the Labor Code of the Russian Federation", termination of the labor agreements with employees working in a separate structural unit of an organization located in another locality are carried out according to the rules provided for cases of liquidation of an organization, only when the employer decides to terminate the activities of such a structural unit, since this actually means the termination of the organization itself in this area and, accordingly, makes it impossible to transfer workers with their consent to another job in the same organization within the same locality.

Thus, if the employee refuses to transfer during the liquidation of the unit, the dismissal due to refusal to change the essential working conditions will be lawful.

The employer has lawfully changed the workplace

The workplace is an essential condition of the employment contract. According to Art. 74 of the Labor Code of the Russian Federation, in the case when, for reasons related to changes in organizational or technological working conditions (changes in technology and production technology, structural reorganization of production, other reasons), the terms of the labor contract determined by the parties cannot be preserved, their change is allowed at the initiative of the employer , except for a change in the employee's labor function. The employer is obliged to notify the employee in writing not later than two months in advance of the forthcoming changes in the terms of the employment contract determined by the parties, as well as the reasons that caused the need for such changes. Within the meaning of this provision, the employee must notify of his disagreement to continue working, taking into account the change in the workplace. If the employee does not agree to an additional agreement, but has actually taken up duties at the new address, this is considered consent to work under the new conditions.

This conclusion was made in the decision of the Voroshilovsky District Court of Volgograd dated December 28, 2016 in case No. 2-215 / 2017. Despite the employee's refusal to sign an additional agreement to the employment contract on changing the workplace, after two months from the moment she was notified of the change in working conditions, she actually started working at the new address, taking into account that, after the specified period, the employer did not have the stipulated art. 74 of the Labor Code of the Russian Federation, the obligation to offer the plaintiff another job.

But at the same time, a change in essential working conditions does not prohibit the dismissal of an employee on another basis, for example, in the absence of a job, for absenteeism.

The employer lawfully dismissed the employee upon refusal to continue work in the presence of new job duties

The issue of changing work responsibilities is quite "delicate". For example, the employer only specified job responsibilities in job description whether it is a change in job description. Or imagine another situation when an employee is entrusted with work that is completely unrelated to his job responsibilities... Should the employee continue to work or has the right to refuse such work?

In the appellate ruling of the Rostov Regional Court dated May 26, 2016 in case N 33-8683 / 2016, the court came to the correct conclusion about the presence legal grounds for the dismissal of the plaintiff under paragraph 7 h. 1 Article. 77 of the Labor Code of the Russian Federation (in connection with the employee's refusal to continue work in connection with a change in the terms of the employment contract determined by the parties), since the defendant actually had a change in the organizational working conditions that give the employer grounds for dismissing the employee in case of his disagreement with the continuation of work in new working conditions and the employer's compliance with the procedure and the term for his dismissal, in connection with which, he rightfully refused to satisfy the requirements for recognizing the dismissal as illegal and collecting wages during the forced absence.

The employer lawfully did not make additional payments that are not provided for by law and local acts

The goals of labor legislation are to establish state guarantees of labor rights and freedoms of citizens, to create favorable working conditions, to protect the rights and interests of employees and employers (Article 1 of the Labor Code of the Russian Federation). Guarantees of working conditions and payments upon termination of the contract may be established by local acts.

So, in the decision of the Leninsky District Court of Smolensk dated 20.12.2016 case No. 2-4671 / 2016, the court recognized lawful actions employer who admitted that the employer did not correctly make additional payments that are not established by law and local acts. Installed in the organization by local regulations the fixed amount of remuneration is based on the norms of direct action, since they serve as a direct basis for the corresponding payment to an employee who has fully completed the norm of working hours and fulfilled labor duties in normal working conditions.

The payment over which the dispute has arisen is not provided for either by law or by the Regulations on Remuneration of Labor and Bonuses to Employees, does not apply to guarantees and compensations to be realized upon dismissal of an employee due to own initiative, since it does not pursue its aim to compensate for the employee's losses in connection with the termination of the employment contract, and therefore is essentially arbitrary, reflecting the abuse of the right when such a condition is included in the employment contract.

Thus, employers have a good chance of proving in court the right to change essential working conditions, as well as the correctness of dismissal of an employee if they do not agree to continue working when such conditions change.

Ekaterina Shestakova

specialist in tax audits and tax planners