How to issue a dismissal by transfer to another organization with the consent of the employee. What is better for the employee and the manager - transfer or dismissal

The transfer of an employee with the execution of a dismissal is a situation that occurs infrequently, so sometimes it leads to a dead end for both the employee himself and the employee of the personnel department. Let's take a closer look at the situation and try to take into account all the details.

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Types of translation in labor law

The most important task in the transfer of an employee is the correct execution of documents. One of the following documents will be required first:

A written request from an employee to transfer him to another organization (in the event that he independently found a new position more suitable for him in another company).
Written consent of the employee to the transfer (if the employer himself dismisses him for the transfer).

The basis should be precisely the statement written by the employee himself. In this regard, it is immediately worth noting that dismissal for the purpose of transfer can be both internal and external. An internal transfer is a re-registration within one large organization, for example, from one division (branch) to another.

An external transfer is the dismissal of an employee from one legal entity for the purpose of his employment in another. The second type is absolutely excluded without the written consent of the employee. Article 72.2 of the Labor Code of the Russian Federation lists all situations in which an internal transfer can be carried out without his permission.

The employee's application is drawn up in such a way that it must contain:

date of dismissal;
the position for which the employee will be hired;
the name of the organization to which the employee is transferred;
the nature of the work (you must specify "permanent");
expected date of entry into office.

The application is made in the name of the head of the organization.

The initiative to transfer to another employer. Agreements. Guarantees

Very often, a person, having found a more suitable position in another organization, quits, works out the weeks required by law, and only then brings him to a new company. At the same time, this person will not receive any guarantees in accordance with the Labor Code of the Russian Federation. His place in the new company can simply be taken while he is busy working out and processing documents.

Guarantees for such an employee can only be provided if the dismissal is made for the purpose of transfer in accordance with all the rules provided for in the legislation.

Consider all alternative versions possible in such a situation:

Version one. The future management sends a letter to the organization where the person works, with a request to dismiss him from his position in the order of transfer. The letter is issued on official letterhead on behalf of the head of the company. It will serve as a kind of guarantee. If the new management refuses these obligations, this will entail administrative liability for violation of the legislation of the Russian Federation, as well as fines. Responsibility is determined depending on who violated the code (legal entity, official or private entrepreneur).
Version two. If there is no letter of invitation, this guide can also help a person complete one by requesting it. Such cases are not uncommon. For example, in case of forced reduction, organization "A" agrees with organization "B" to accept part of the employees for vacant positions.
Version three. Tripartite agreement between all parties. This is the best option, but the least common in practice.

The advantage of the agreements is that the employee in this case can claim according to the Labor Code of the Russian Federation (Article 169) even for relocation compensation if the new organization is located in another city. The agreement can prescribe any conditions, as long as they do not contradict the current legislation.

When and under what conditions is the transition to another employer in the order of transfer

The main condition for the transfer is the interest of the employee himself. He also has the right to ask for leave until the moment of dismissal. From here there can be two solutions (both of them are legitimate):

Provide vacation. In this option, the day of dismissal will coincide with the last day of vacation.
Refuse to provide it. Upon dismissal, you will need to pay compensation.

When you need a letter from a future job

To summarize: if guarantees are important to a person that a place is assigned to him, then a letter must be received. An employer interested in qualified personnel will certainly provide all guarantees to the one who arranged it in all respects. Such paper is also very important for the management that draws up the dismissal: during any check, the papers will be in perfect order.

The letter is attached to the application or sent directly to the head.

Documents to be issued upon dismissal

Upon dismissal, in the order of transfer, the following documents are drawn up:

Official letter from the organization accepting for employment.
Employee statement. Management must sign it.
Dismissal order (unified form T-8).
Employment history.

There is nothing complicated, do not forget to indicate the exact reason for dismissal.

The procedure for dismissing an employee in the order of transfer (step by step instructions)

Having collected the grounds for dismissal, the personnel department employee begins to draw up the procedure:

Firstly, he issues an order in the T-8 form, indicating the correct reason and the name of the article of the Labor Code (Art. 77, paragraph 5, part 1). The supporting documents must be listed. The employee reads the document and signs it.
Secondly, the personnel officer fills out a personal card. In section XI, you must correctly fill in all the columns. After giving it to the employee for signature along with the order.
Thirdly, an entry is made in the work book (according to the Instruction approved by the Decree of the Ministry of Labor of the Russian Federation of October 10, 2003 No. 69). There should be no shortcuts!
Fourthly, the calculation of funds is carried out, the payment is made, including payments for, which is described in detail above.

At parting, the employee should be given a salary certificate for the last two years and a work book. Since then, the employment relationship has been officially terminated.

What to do if the employer refuses to hire

Unfortunately, sometimes this happens. The former leadership fulfilled all obligations, and the new one went into denial. In this case, the employee can sue.

In the event that the dismissal by transfer was properly executed, the court will rule in favor of the plaintiff. A previously executed agreement or a letter of invitation from the company will play a huge role (it is better to make a copy of it even before dismissal).

If the defendant loses the case, he will be obliged to accept the plaintiff into service. In addition, he faces a fine. For legal entities, its size today ranges from 30,000 to 50,000 rubles. They can also suspend activities for up to 90 days, and this is already serious. For a repeated violation, activity is suspended for a period of one to three years.

All large and self-respecting organizations are fighting for real specialists, offering the best conditions, career opportunities and other privileges. When a better offer is received, there is no need for a standard dismissal procedure. The transfer to a new company is not complicated in any way, but it is backed up by guarantees of maintaining the place.

Often, the transition of an employee from one company to another in the order of dismissal can be convenient both for the releasing party and for the receiving party, as well as for the employee himself. Next, the main stages of such dismissal and the advantages of dismissal by transfer for the employee and employer will be considered.

When can a dismissal be carried out in the order of transfer

The current labor legislation provides for two types of such dismissals-transfers:

at the request of the employee;
with the consent of the employee.

In the first case, the employee himself acts as the initiator of the dismissal through the transfer. He can find a suitable vacancy and ask his current employer to fire him precisely on this basis (clause 5, part 1, article 77 of the Labor Code of the Russian Federation). The request must be recorded in writing (in the form of an application addressed to the current manager).

In the second case, the initiator of the transfer can be both the releasing (current employer) and the receiving (future employer) parties. However, without the consent of the transferred employee, dismissal is impossible - it must be obtained in writing (in free form).

Dismissal due to transfer: procedure

For any type of dismissal by transfer, the consent of three parties must be recorded in writing:

current employer (releasing party);
future employer (host);
the employee himself.

At the same time, it should be borne in mind that we are talking about exactly two different employers, which means that transfer through dismissal in one organization is impossible.

In practice, consent is recorded as follows:

In the event of dismissal at the request of an employee:

the employee writes a statement asking for dismissal in the order of transfer (it is necessary to indicate the article in the Labor Code - dismissal in the order of transfer, clause 5 of part 1 of article 77) addressed to the current employer;
the application is accompanied by a petition of the new employer (on consent to such a transfer-dismissal);
in case of consent to dismissal, the current employer responds in writing to the employee's application (in free form, for example, in the form of a letter).

In case of dismissal with the consent of the employee:

the future employer is preparing a "transfer letter" - a letter of request to dismiss the current employee under paragraph 5 of part 1 of Art. 77 of the Labor Code of the Russian Federation in connection with the initiative of his employment in another organization;
similarly, the current employer, in the event of his consent to the transfer in the form of a letter, responds to the proposal received;
the employee at the same time expresses his consent to the dismissal (in the form of an application).

Dismissal by transfer: pros and cons

The pros and cons of dismissal by transfer depend on the circumstances of each particular case.

A plus for the employee and a possible minus for the new employer: in case of dismissal for the specified reason, the new employer is obliged to hire an employee within one month after the dismissal from the current employer.

In addition, such an employee cannot be placed on probation (part 4 of article 70 of the Labor Code of the Russian Federation). This can be a significant disadvantage for the host.

Among other things, a disadvantage for both the releasing and receiving parties is the need for additional document management (letters of request and letters of consent).

Dismissal by transfer to another organization: personnel registration

Like any other dismissal, dismissal by transfer must be confirmed by a dismissal order. All documents drawn up (applications, letters of request, letters of response) are indicated as the basis for such an order. The employee must be familiarized with the order against signature. In addition, it is necessary to draw up a note-calculation and make an appropriate entry in the employee's work book.

Not always dismissal from a position means the loss of a job. Dismissal in the order of transfer means that the employee leaves one workplace and goes to work on another. At the same time, he does not lose wages and other benefits of the working person provided for by law. Both the employee and the employer should be aware of the procedure for removing from a post and transferring to another.

When they talk about the procedure for transferring from one employer to another, they mean the termination of employment on the basis of Article 77 of the Labor Code of the Russian Federation in paragraph 5, part 1. There are three parties involved in the agreement: the employee, the current employer and the new employer. At the same time, the agreement states that the latter is guaranteed to accept an employee for the vacancy.

Dismissal through transfer is classified into two types:

External. Dismissal is carried out by transfer to another organization to the main place of work.
Interior. The process takes place within a single firm. The decision is made by both the employer and the employee. This may be a change of position, finding a new job. Also, a new post is offered both on a permanent basis and on a temporary basis.

Any decisions should be made only with the consent of the employee himself.

Depending on who is the initiator of the transfer, there are several types of dismissal:

the employee independently found another company to continue his seniority. In this case, the new management is obliged to send a written invitation. The notification is sent by registered mail or handed over personally to the current manager. With the consent of the current employer, an application is required from the employee. The document becomes the basis for the order, the entry in the labor, in the personal card and for the full calculation;
The decision to transfer is made by the head of the enterprise. It may be necessary to lay off all employees as soon as possible. In this case, the employer independently, if desired, finds another place of work for the dismissed worker. Employers reach an agreement among themselves, discuss all the details of a future agreement. After receiving confirmation from the employee, an agreement is drawn up with the participation of three parties, signed and enters into force.

The rules for the dismissal and the procedure for the procedure are fixed in the Labor Code of the Russian Federation, in article number 77, paragraph 7. There are many nuances and features in this process, therefore the correct filling in of all necessary documents is a guarantee that no claims will arise from each of the parties.

In the internal transfer of a worker, another article of the labor law No. 72.1 part 3 is used.

Procedure and procedure for the employer

For any type of transition from one position to another, the following documents are required:

a completed application form from a retiring employee;
a written invitation from a new employer;
an agreement drawn up in the form of a letter concluded between two leaders. This document is drawn up if the decision was made by the current employer.

All documents indicate the full name of the new company, vacancy, job responsibilities, department or division, salary, work and rest hours.

What to do if the employee does not agree with the place provided? In this case, the employer can dismiss the employee without transfer. If the worker agrees to move to another position, then this is reported in writing. For the personnel department, the dismissal procedure does not change and occurs in the same way as with the usual departure of an employee.

There are small transition nuances with external and internal types.

The transfer of an employee through dismissal in one organization requires written approval of this process. The personnel department is preparing an order to complete the procedure. The document is signed and enters into force.

An internal transfer is properly executed if an additional agreement has been concluded with the employee. The document prescribes the conditions for the transition, the amount of wages, the future position.

The head of the enterprise from which the translation employee plans to leave must have sufficient grounds for dismissal. If an invitation came from the new company and the current employer agrees, then it is legal to use the translation article.

If the employer refuses to release the employee, the latter has to write a statement of his own free will and indicate the relevant article.

It is important to understand that when a citizen leaves the company due to a transfer to a new position, the new management is obliged to accept the employee. Otherwise, the latter has every right to apply to the judicial authorities to protect his right to employment.

At the same time, the worker is not released from the obligation to work for 14 days at the old place of work, after submitting an application.

Today, the law has become strict in relation to the terms in the documents. In particular, this applies to letters of invitation, dismissal from and the conclusion of a new employment contract. If earlier in the labor code it was stated that a new employer cannot refuse an employee to draw up an employment agreement, even if he appeared after three months. It was article 16, these conditions were prescribed in paragraph 2.

Changes were made later. In 2019, upon receipt of a letter inviting to a new position, the employee must come to another enterprise within 30 days from the date indicated in the document. If this does not happen, then the further conclusion of the employment contract remains at the discretion of the new employer.

Cancellation of an invitation unilaterally is not possible. Otherwise, the new applicant applies to the judicial authorities and restores his rights.

There are positives and negatives to every dismissal process. In this case, the consequences are reflected in both parties to the contract.

For an employee who is about to leave for another enterprise:

pros. Getting a new job is guaranteed within 30 days. There is no probationary period for taking up a new position resulting from a transfer;
minuses. If a decision was made and an application was written, then there is no way back and it is impossible to pick up the paper.

For an employer leaving an employee:

pros. With a reduction in staff, this is a more economical way out financially. There is no need to pay an employee a severance pay upon dismissal;
minuses. You need to know the nuances of the procedure, the correctness of paperwork.

Two documents start the process of dismissing an employee in connection with the transfer:

Statement of decision to transfer to another job received from an employee.
Notification from the manager about the need to transfer to a new position or a new enterprise.

All intentions are made exclusively in writing.

When receiving an application from his employee, the employer must put his visa in the corner of the document. Without the consent of the current manager, the dismissal process cannot be formalized. The employee must submit a new application with a different reason. More often they put an article of their own free will and work out 14 days. It should be noted that leaving the enterprise on the basis of Art. 80 of the Labor Code of the Russian Federation, provides that a new employment will be with the passage of a probationary period. Also, a new employer may refuse to accept a job.

The law does not provide for an article that allows transfer to another organization without dismissal. The work book must contain a record of dismissal from one position, indicate the article and acceptance to another place of work.

When the company has employees who are on maternity leave, then any actions in relation to them are of a special nature and have nuances.

Dismissal and transfer to a new job takes place only with the consent of the citizen. Article 72.1 of the labor law does not clarify the issue of pregnant women and child care. The process is accompanied by a release from official duties at the old enterprise and official registration at the new one.

Article 84.1 regulates the documents to be submitted and the procedure for:

an application form is filled out with a request to dismiss in connection with the transfer;
an order is being prepared for the enterprise. The basis is the statement;
the employee familiarizes himself with this document and puts his signature;
labor is issued on hand.

There is no single application form, therefore the paper is filled out arbitrarily, but indicating the required details:

personal data of the employee, position held;
indicate the day, month and year when the transfer is scheduled;
the full name of the new company is written, what position is planned to be held.

The new job must be accepted within 30 days. If the deadline is missed, the new employer may refuse to accept the employee for the vacancy. This is regulated in article 64 of the Labor Code.

An employer, having a young mother or expectant mother on staff, must know the features of dismissal:

the release of the workplace occurs only at the request of the maternity leave. The tenant does not have the right to carry out this procedure at his own discretion. Article 77, paragraph 5 in the first part is prescribed in the labor;
an early call from maternity leave, if the baby is under three years old, is not possible. Even if it is necessary for paperwork. A date is agreed with the woman when it will be convenient to come to the personnel department or an appointment is made at home;
before starting the dismissal procedure, the maternity mother must give written consent;
if a woman is on leave to care for a baby, then the leave is interrupted at the old place of work and resumed at a new one, after submitting an appropriate application.

In order for the transfer not to violate Article 72.1, which stipulates a ban on providing a workplace that is contraindicated for medical reasons, you need to make sure that an employee can work in a new position, this will not threaten her health.

Otherwise, the procedure for the procedure and documents correspond to the standard dismissal for the transfer of an ordinary employee.

Translation of a part-time job

The procedure for transferring a part-time worker has two types:

internally. When the transfer takes place within the enterprise, an additional agreement is signed with the employee. At the same time, the existing position is retained by the employee, only the load is added, fulfilling additional job obligations;
external. This type of transfer involves dismissal from the main position in this company and transfer to another enterprise for the main position, but the employee continues to perform certain duties in the previous post.

Upon dismissal through a part-time transfer, the old employment contract is terminated and a new one is concluded, which indicates the working conditions, wages, number of working hours, vacation.

An employee at an enterprise may be fired as a result of a transfer to a new job in another organization. This method of dismissal has some features and advantages, which can be read in the article below.

The dismissal of translations is regulated by clause 5 of article 77 of the Labor Code of the Russian Federation. The procedure for dismissal depends on whose initiative the transfer is being made.

Dismissal in connection with the transfer at the initiative of the employee

If an employee leaves for another organization on his own initiative, then it is necessary to receive an invitation to work from a new employer. Having secured an invitation, the employee writes a letter of resignation by translation and sends the documents to his current employer. The latter is considered the possibility of dismissal.

If he does not mind, then it is drawn up and the employee can be fired without the obligatory two-week working off.

If the employer does not want to part with the employee voluntarily, then the employee can quit on a general basis of his own free will by writing an application and working for 2 weeks.

An important feature of dismissal by transfer is that the employee, having written an application, cannot withdraw it, in contrast to dismissal of his own free will, in which, throughout the entire period of working out, the employee can withdraw the application on any day and continue working.

In the work book, upon dismissal by transfer to another organization, an entry is made: “Dismissed in connection with the transfer at his request in the “Name of the organization”, clause 5 of article 77 of the Labor Code of the Russian Federation.