Actions of the employer if the employee has not signed the dismissal order - rules and deadlines for familiarization according to the Labor Code of the Russian Federation. How to fire an employee who does not fulfill his job duties

According to the schedule, the employee must go on annual paid leave from August 15. Moreover, the vacation is “combined”: the rest of the vacation for the previous working year and the vacation for the current working year. The employee said that he only uses the rest of the vacation for the last working year and 7 days for the current one (28 days in total), and he doesn’t need more. There’s no need at all, he doesn’t want to rest, he has nothing to do at home, he’s bored. The order has been issued for all vacation days, but the employee has not yet signed it and offers to redo it. What can you do in this situation?

By general rule the employee must take 28 days off for each working year. Moreover, the vacation is established by the vacation schedule and there are no grounds for postponing it (as follows from the question).

According to Art. 122 Labor Code In the Russian Federation, paid leave must be provided to the employee annually.

According to Art. 123 of the Labor Code of the Russian Federation, the order of provision of paid leave is determined annually in accordance with vacation schedule, which is mandatory for both the employer and the employee.

If the vacation for the last working year was more than 28 days, then you can consider replacing part of last year’s vacation with cash compensation. In this case, the rules of Art. 126 Labor Code of the Russian Federation:

“Part of the annual paid leave exceeding 28 calendar days, upon the written application of the employee, can be replaced by monetary compensation.

When summing up annual paid leave or transferring annual paid leave to the next working year, monetary compensation can be replaced by a part of each annual paid leave exceeding 28 calendar days, or any number of days from this part.

It is not allowed to replace with monetary compensation annual basic paid leave and annual additional paid leave for pregnant women and employees under the age of eighteen, as well as annual additional paid leave for employees engaged in work with hazardous and (or) dangerous conditions labor, for work in appropriate conditions (except for payment monetary compensation for unused leave upon dismissal, as well as cases established by this Code).”

If the employee does not yet need leave for the current working year in its entirety, then the parties can use the provisions of Art. 125 and 124 of the Labor Code of the Russian Federation - divided this vacation into parts and transfer one part to another time. Of course, strictly in accordance with the requirements of the law.

If the employer follows the employee’s lead and does not provide him with leave, then in the event of an inspection by the State Labor Inspectorate, a fine is possible.

If the employee refuses to sign the leave order, draw up a report about this. The act is certified by the signatures of the persons present at the refusal.

Position of Rostrud

“...The employer is obliged to provide leave to the employee according to the vacation schedule, regardless of the employee’s refusal to take leave...”

(Information portal of Rostrud, October 2017, Onlineinspektsiya.rf).

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In accordance with the requirements of labor legislation, an employee has the right not to fulfill conditions not provided for in the employment agreement. But the nature and location of work can be changed due to production needs or for other reasons. How to formalize this without violating the law? In this article we will talk about dismissal if a transfer is refused, and we will consider the reasons and main mistakes of employers.

Significant changes to the employment contract

IN daily work Organizations are often faced with the need to transfer an employee for various reasons. If as a result of this the terms of the employment agreement change, then it does not matter what was the reason (production necessity, reorganization legal entity, expansion or contraction of the enterprise, certification or health status of the employee). The fact of change is important.

If they affect:

• job responsibilities,
• place of work,
• wages,
• schedule,
• other conditions specified in this document.

In this case, the transfer can only be carried out with the written consent of the employee. The legislation does not establish an exhaustive list of significant changes to the terms of the employment agreement. The degree of materiality is assessed differentially for each case.

Reasons and types of translation

If, when transferring an employee to another place of work, there were no significant changes in working conditions, then such an action can be classified as a transfer that does not require his written consent. In this case, earnings, responsibilities, position and place of work remain the same.

The movement of an employee to different branches of one business entity means a change in place of work. Consequently, if an employee, at the initiative of the employer, moves from one structural unit of the organization to another, then this should be regarded as significant changes in the employment contract and transfer, and not relocation. This is especially true in cases where the employment agreement clearly states the place of work (site, workshop, structural unit, etc.) to which the employee is hired.

The need for transfer arises due to a change of address by a legal entity, production needs, or medical indications.

Dismissal if you refuse to move to another location

Employees must be notified of a change of location by a legal entity 2 months in advance. writing. This document must contain information about the employer's new address, the timing of the move, the start date of work, guarantees and compensation payments associated with his transfer. As a rule, a transfer associated with the relocation of a company to another location entails reimbursement of costs:

• for relocation to the place of work of both the employee and his family members;
• for the transportation of his property;
• to a device in a new area.

A written message can reflect the procedure and nature of compensation, as well as set a period during which the employee is obliged to notify the employer of his decision. If a statement of consent is not received from the employee within the specified period, this is regarded as a refusal of the transfer.

If the employee disagrees, he is subject to dismissal. This applies to pregnant women, women raising children under 14 years of age, and other preferential categories. Such an action does not fall under the category of dismissals at the initiative of the employer. This is formalized by an order, in which, as the basis, a reference is made to the decision to move the company and to the employee’s refusal to transfer. The employee is introduced to him by signing.

Dismissal for medical reasons

There may be cases of serious illness of an employee, as a result of which, on the recommendation of a medical commission, he needs to be transferred to another place of work in more suitable conditions. Despite the recommendations of the commission, the employee may not agree to be transferred to a position permitted to him for health reasons.

In this situation, the employer has the right to terminate the employment agreement in accordance with Art. 77 Labor Code of the Russian Federation.

In this case, the following nuance must be observed. It concerns the case when an employee needs temporary transfer for a period not exceeding 4 months. In this case, he cannot be fired before the expiration of 4 months, even if the employee does not agree to the transfer. He may not work, the salary will not be accrued, but his place of work will remain. When the restriction period ends, the employee has the right to freely return to his place.

Dismissal by court decision

If a court decision prohibiting him from holding a certain position has entered into force in relation to an employee, the employer may offer a new position to which the restriction does not apply. The employee may not agree with the transfer proposal. In this case, the employer has the right to terminate the employment contract unilaterally.

Dismissal due to reduction in working hours

As a result of production and technological transformations at the enterprise, the employer may need to introduce a part-time working regime. As a rule, this forced measure is introduced for a period of up to six months in order to preserve jobs. Labor legislation sets only the upper limit of working hours.

The working week cannot be longer than 40 hours. Its minimum duration is not specified either in the Labor Code or in other regulations.

When a reduced working hours regime is introduced, it is necessary to notify the staff of the upcoming changes no later than 2 months in advance. Notice of this must be made in writing. Failure by the employer to comply with the established deadlines allows the employee to challenge the decision to reduce working hours in court, to recover lost earnings and compensation for moral damage. Any changes regarding this issue should be recorded in the employment agreement.

The employee may not agree to the new working conditions. In this case, the employer offers him vacant positions. If there are none, and the employee refuses to work on reduced terms working week, the employer has the right to terminate the employment agreement unilaterally.

Dismissal upon change of owner or reorganization of a legal entity

When changing employer, dismissal occurs as follows:

Dismissal when essential conditions change

In certain cases, the employer may make significant changes to the provisions of the employment contract. These include:

• place of work;
• the date on which you should begin performing your professional duties;
• name of position, profession;
• rights, obligations of the parties to the contract;
• working conditions, payment, compensation payments, social insurance.

With these changes, the employer will have to fulfill certain obligations:

• notify the employee in writing about changes in conditions in advance (2 months). Exceptions to the deadlines apply to employers who are individuals (for them the period is 2 weeks) and employers who are religious organizations (a week). The employee must answer whether he agrees to continue working under the new conditions. The reflection time is not legally limited, so the employee can give an answer by the end of the two-month period;
• if you intend to continue cooperation, draw up a new employment agreement;
• in case of refusal to work in changed conditions, offer the employee vacant positions that he can occupy, taking into account his qualifications and professionalism.

Answers to pressing questions

Question No. 1. How to correctly formalize the dismissal of an employee at will in case of reorganization of a legal entity?

Question No. 2. As a result of reorganization (merger), an employee moves from one enterprise that is part of the holding to another. How to arrange such a transfer?

In this case, it is correct to formalize not a transfer, but a dismissal under Article 77 of the Labor Code of the Russian Federation with further employment in a new organization.

Question No. 3. The employer, referring to emergency, transferred the employee to a new position for a month. The position is not covered by the employment agreement. The employee did not sign consent to the transfer. Are the employer's actions legal?

Yes, the employer’s actions are justified by labor legislation. If he has evidence of extreme events (accident, catastrophe, etc.), then transfer to another position without the employee’s consent for a period of up to a month is allowed.

Question No. 4. What compensation payments can an employee who refuses to be transferred to another location expect upon dismissal?

For compensation of unused vacation and benefits based on the average two-week salary.

Question No. 5. When drawing up a new staffing table, the position was abolished. The person who occupied it was offered a vacancy, but with a lower salary. What payments are due to an employee if he does not agree with the new working conditions? Can an employee count on the previous salary in a new position?

" № 9/2017

What document is the main one for granting employees leave? What to consider when creating a vacation schedule? What are the features of transferring vacation and for how long can it be postponed? How long are employees entitled not to take annual leave? In what order are vacation days used? What should an employer do if an employee refuses vacation? What documents should I fill out? Can an employee be subject to disciplinary action?

All permanent employees without exception have the right to rest for at least 28 calendar days. And while some people don’t even have that many days, others don’t go on vacation for years. But this is not only inconvenient for the employer and, in particular, for personnel officers, but also fraught with administrative liability. We will talk about how many years an employee may not go on vacation and what an employer should do if some employees do not use their annual vacation, we will talk in the article.

Reason for vacation.

According to Art. 123 of the Labor Code of the Russian Federation, the priority for the provision of paid vacations is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than 2 weeks before the start of the calendar year in the manner prescribed by Art. 372 Labor Code of the Russian Federation.

At the same time, it is mandatory for both the employer and the employee.

Drawing up a vacation schedule is quite a responsible matter, especially if the organization has a large staff of employees. In such cases, first, as a rule, schedules are drawn up in structural units, and then a consolidated schedule is formed. Drawing up a draft vacation schedule for a unit can be entrusted to the heads of these units. Based on the schedules they submit, the HR department draws up a consolidated vacation schedule. Moreover, the responsibility of department heads to draw up a draft schedule is better fixed in the appropriate order.

If such powers are not granted to managers, they can simply collect their wishes from employees, on the basis of which and taking into account the requirements of labor legislation personnel worker will already draw up a unified vacation schedule.

Note:

When drawing up a vacation schedule, the right of certain categories of employees to vacation at any time and the length of service required to provide such vacation should be taken into account. Don’t forget to include unused vacations from previous years in your schedule.

In addition, when drawing up a schedule, you will have to take into account the wishes of other employees, the order of vacations in the previous year, the intensity of the labor process during the year, and the specifics of the organization’s activities. We will have to try to ensure that neither the interests of employees nor the interests of the employer are infringed. To avoid disputes, you can prescribe the procedure for granting vacations in a local regulation and familiarize employees with it.

After drawing up, the schedule is signed by the head of the personnel service and approved by the head of the organization or an authorized person (signed). If there is a trade union at the enterprise, then the schedule must be agreed upon with it. Despite the absence of an obligation to familiarize employees with the approved schedule against their signature, this must be done.

We repeat that all these activities must be completed no later than 2 weeks before the start of the new calendar year.

Let us remind you that in accordance with Art. 693 of the List of standard management archival documents generated in the course of the activities of state bodies, local governments and organizations, indicating storage periods, approved by Order of the Ministry of Culture of the Russian Federation dated August 25, 2010 No. 558, the vacation schedule must be stored in the organization for 1 year. Moreover, the calculation of the period is carried out from January 1 of the year following the year of completion of office work. That is, the vacation schedule for 2017, approved in December 2016, ends on December 31, 2017. Therefore, it needs to be stored throughout 2017.

Transfer of vacation to next year.

Annual paid leave can be carried forward to the next working year. If such a transfer is carried out at the initiative of the employer in accordance with Part 3 of Art. 124 of the Labor Code of the Russian Federation, two conditions must be met:

Providing an employee with leave in the current working year may adversely affect the normal course of work of the organization;

the employee agreed to transfer the vacation to the next working year.

The employee himself can apply to reschedule his vacation for another period, including next year. If the employer does not object, an order should be issued for such a transfer and changes should be made to the vacation schedule.

Leave transferred at the initiative of the employer must be used no later than 12 months after the end of the working year for which it was granted.

By virtue of Part 1 of Art. 125 of the Labor Code of the Russian Federation, by agreement between the employee and the employer, annual paid leave can be divided into parts, one of which must be at least 14 calendar days. The question arises: how many such parts should there be in the next working year if the vacation was completely transferred to this year? That is, should the employee use two vacations of 14 days, and the remaining 28 days in parts, or one vacation of 14 days, and the remaining 42 days in parts?

From the provisions of Art. 125 of the Labor Code of the Russian Federation, regardless of how many vacation days the employee uses during the year, we can conclude that one part of the vacation must be at least 2 weeks continuously, and the rest of the vacation time for both years can be divided into parts by agreement between the employee and the employer.

Note:

The employer must take into account unused days of annual paid leave for previous periods when drawing up each new vacation schedule.

How many years can vacations not be used?

In accordance with Art. 124 of the Labor Code of the Russian Federation prohibits the failure to provide annual paid leave for 2 years in a row, as well as the failure to provide annual paid leave to employees under the age of 18 and persons employed in work with harmful and (or) dangerous working conditions.

That is, if, as a general rule, employees may not take at least 2 years, then employees under the age of 18 and employed in jobs with harmful and (or) dangerous working conditions must use vacation every year.

Note:

Failure to provide annual paid leave for more than 2 years in a row, as well as failure to provide the unused part of annual leave when it is transferred within 12 months after the end of the working year for which it is provided, is a violation of labor legislation and in the event of an audit labor inspectorate a fine may be imposed on the organization in accordance with Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.

If it turns out that the employee has not used vacation for 2 years and has accumulated 56 calendar days of vacation, should the employer next year give him 84 days or will they “burn out”? Of course, nothing “burns out”; there is no such concept in labor legislation. You will have to either provide the employee with 84 days of vacation, or pay compensation for these days upon dismissal.

According to Letter of Rostrud dated 06/08/2007 No. 1921-6, if an employee has unused annual leave for previous working periods, then he retains the right to use all due annual paid leave. Annual leave for previous working periods can be provided either as part of the leave schedule for the next calendar year, or by agreement between the employee and the employer.

For your information:

Previously, doubts on this issue arose in connection with the ratification of the Convention International organization Labor No. 132 “On paid holidays” (hereinafter referred to as the Convention) in accordance with Art. 9 in which a continuous part of the annual paid leave (at least 2 working weeks) is granted and used no later than within a year, and the remainder of the annual paid leave - no later than 18 months after the end of the year for which the leave is granted.

On the basis of the Convention, some courts refused to recover compensation for unused vacations to those who resigned. True, the reason for the refusal was that the employee missed a deadline limitation period. So, Supreme Court of the Republic of Karelia in the Appeal ruling dated March 27, 2015 in case No. 33-1227/2015 noted that the period for claims for compensation for unused vacations is 21 months after the end of the year for which the vacation is granted (18 months (the period during which the vacation must be vacation granted) + 3 months (period for the employee to go to court)). About the fact that vacation in calendar year not provided in full size and compensation was not paid, it should have been known after each year of work, as a result of which the required leave was not granted.

The situation is simpler if the employee used the main part of the vacation in the amount of 14 days every year, and the remaining unused parts of the vacation were accumulated. Here the Convention establishes that any part of annual leave in excess of the established minimum duration may be deferred with the consent of the employee for a period exceeding 18 months, but not exceeding separately established limits (clause 2 of Article 9).

Thus, the remaining vacations can be used by the employee within the terms (periods) agreed with the employer. And in case of dismissal, the employer will be obliged to pay compensation for all unused (accumulated) vacations (Article 127 of the Labor Code of the Russian Federation).

Nevertheless, the employer should not allow employees to pay arrears for vacations - primarily because working without vacations affects both the physical and psychological state of the employee, as a result, labor productivity and immunity decrease, and the employee more often goes on sick leave. Problems are possible, even to the point that an industrial accident may occur.

In addition, when paying compensation upon dismissal, the employer may overpay if Last year the employee’s salary was increased, since compensation for unused vacation is calculated based on average earnings for 12 months (Regulation on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922).

For your information:

To avoid problems with unused vacation and payment of compensation, some employers, after 2 years without vacation, formalize the dismissal of the employee with payment of compensation, and then rehire him. From a legal point of view, there seem to be no violations. But if this option is used constantly, then inspectors may see a violation of the rights of employees: firstly, their length of service for the next annual paid leave is interrupted, and secondly, the employee may lose the rights to guarantees or payments established in the organization, for example, for continuous work experience.

Actions of the employer if the employee refuses leave.

So, what to do if an employee does not use vacation or does not use it in full, accumulating the remaining parts with the permission of the employer, and what liability may arise for, we figured it out. But what if an employee doesn’t want to leave either this year or next year, and he has one reason or another? Of course, you can get into a situation once or twice, but then the problems will have to be solved directly by both the personnel officer and the employer. Therefore, you shouldn’t let everything take its course. The employee should be subject to disciplinary action, for example, first a reprimand, then a reprimand.

But for such punishment to be legal, certain requirements must be met.

1. There must be a vacation schedule signed by the head of the personnel department, approved by the head of the organization and agreed upon with the trade union, if there is one. It is also advisable to have the employee’s signature confirming his familiarity with the schedule.

2. 2 weeks before the start of the vacation according to the schedule, the employee must be notified of the start time of the vacation. Receipt of the notice must be confirmed by the employee's signature. If an employee refuses to sign a document, a report should be drawn up about this.

3. An order is needed for the provision of annual leave, which the employee is familiar with. If he refuses, this fact must be recorded.

4. No later than 3 days before the start of the vacation, it is necessary to pay the employee vacation pay (Article 136 of the Labor Code of the Russian Federation).

Note:

Do not forget that if the employee was not paid in a timely manner for the duration of the annual paid leave or the employee was warned about the start time of this leave later than 2 weeks before it began, then the employer, upon the written application of the employee, is obliged to postpone the leave to another date agreed with the employee .

5. An employee’s return to work during vacation must be documented.

6. Disciplinary action is carried out in accordance with Art. 192 and 193 of the Labor Code of the Russian Federation.

Well, if the employee still continues to go to work during his vacation, give him written notice that the time he is at work is not subject to payment, since he is on vacation. annual leave according to the approved vacation schedule.

It is clear that bringing administrative liability for refusal to go on vacation is an extreme measure intended for those who “maliciously” evade their right to rest, creating problems for the employer. In ordinary cases, you can accommodate an employee who asks to reschedule his vacation, if there is any good reasons. Then the employee must write a statement and indicate these reasons in it.

If it is no longer possible to postpone the vacation, and the employee’s refusal to rest suits the employer, then it is possible, by sending the employee on vacation, to conclude a civil contract with him for this period.

Summarize. If your employees flatly refuse to go on vacation, you can:

postpone vacation, except for the case when the employee did not go on vacation at all for 2 years;

dismiss the employee, pay him compensation, and then hire him (we do not recommend abusing this method);

arrange a vacation, and enter into a civil agreement with the employee or for the provision of services;

issue leave, and bring the employee to disciplinary action.

Some employers provide employees with weekend leave. This, in principle, does not contradict the law, but it will provide unnecessary questions from inspectors.

We also remind employers that you cannot refuse to provide scheduled leave, except in cases of production necessity and with the written consent of the employee. And if an employer illegally denies an employee leave and he goes on leave without permission, he cannot be fired for absenteeism (subclause “d”, paragraph 39 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code of the Russian Federation").

What to do if an employee refuses to sign job description?

If an employee refuses to sign a job description, the employer has several options further actions, which we will talk about in our article. We will also look at some important related issues. For example, is it possible to hold an employee accountable for refusing to sign a job description, etc.

If an employee refuses to sign a job description, can he be held accountable?

The situation when an employee refuses to sign a job description (hereinafter - DI), including in which some changes have been made, is quite common in practice. It should be taken into account that any measures of liability in relation to such an employee are not regulated by law.

If the employee has expressed his disagreement to sign the DI, a special act on this is drawn up. An employee’s refusal to sign the DI, which has been amended, is not a basis for dismissing such an employee or subjecting him to other disciplinary measures, since the obligation to familiarize the employee with the documentation relating to his work activity rests with the employer (para. 10, part 2, article 22 of the Labor Code of the Russian Federation), while workers have no counter-obligation. We will discuss below what job function will be performed by an employee who refuses to sign the DI.

Refusal of an employee to sign a job description upon employment

The law does not establish the employer’s obligation to introduce DI in principle, therefore the employer himself determines the need for this document in the company, as well as the regulations for amending it (see letter of Rostrud dated October 31, 2007 No. 4412-6). The labor function, according to Art. 57 Labor Code of the Russian Federation, refers to mandatory conditions of the employment contract (hereinafter referred to as TD), accordingly, must be set out in it.

At the same time, the legislator does not indicate exactly how the agreement of the parties on the range of job responsibilities should be fixed. That is, they can be either directly listed in the TD or recorded in the DI, which is in this case will act as an application and an integral part of the TD.

Thus, if an employee refuses to sign a DI upon employment, then in the future his work function will be regulated depending on the form in which the DI is drawn up.

So, if an employee refuses to sign the DI and she:

• approved as a separate act, then the labor function is regulated by the provisions of the TD;
• is an integral part of the TD, then when signing the TD, all its essential conditions (including the labor function indicated in the appendix) are considered agreed upon (see the appeal ruling of the Supreme Court of the Republic of Tatarstan dated April 27, 2015 in case No. 33-6229/2-15 ).

If the employee does not sign the amended job description: consequences for the employee

As for the consequences for the employee himself, the following situations are possible:

• Adjustments to the DI affect the mandatory conditions of the TD, and the DI itself acts as an annex to the TD. In this situation, an additional agreement to the TD is drawn up, which sets out such changes. If the additional agreement is signed by both parties, then the employee’s signature on the DI becomes optional.
• Changes in the DI relate to the mandatory conditions of the TD, but the employee’s job function does not change, the DI is an integral part of the TD, and the employee does not sign an additional agreement. In this situation, the employer notifies the employee in writing 2 months in advance of changes in working conditions (Article 74 of the Labor Code of the Russian Federation). If the latter refuses to work under the changed conditions, the employer is obliged to offer the employee a different position. If there is no suitable vacancy or the employee refuses the existing ones, then the TD with him is terminated according to clause 7, part 1, art. 77 Labor Code of the Russian Federation.
• The adjustments to the DI do not concern the mandatory conditions of the TD, and the DI was compiled separately from the TD. The new edition of the DI must be approved and the employee must be familiarized with the order. A report is drawn up regarding the employee’s refusal to sign the DI. In the future, the employee may be held liable for failure to comply labor responsibilities, provided for by DI.
• Changes in DI relate to the mandatory conditions of the TD, but not to labor function, The DI is compiled as a separate document. In this case, the DI is considered agreed upon with the employee either after signing an additional agreement with him or by way of unilateral notification according to the rules of Art. 74 Labor Code of the Russian Federation.
• The adjustments made to the DI relate to the employee’s labor function. In this case, changing the DI is possible only after signing an additional agreement to the TD.

So, the presence of an employee’s signature on a DI does not mean his agreement or disagreement with its contents, but only indicates familiarization with such a DI. Refusal to sign the DI in itself is not grounds for dismissal or holding the employee liable.