If the employee does not agree with the employment contract. The employee does not agree with the disciplinary penalty

A special assessment of working conditions is invented in order to shift the financial burden for compensation for "harmns" on the employers themselves who workers work in harmful and dangerous conditions. Therefore, employers are extremely interested in working conditions on workplaces more harmless. It is not beneficial to employees as they lose benefits and part of earnings.

In this article, we will answer the last question of our reader (the beginning of the article): What to do an employee, if he does not agree with the results of a special price, and believes that the method is violated?

Control during special seating

The law does not say that the measurements of harmful factors are necessarily carried out in the presence of an employee. But the employee has the right to be present in the assessment of the conditions at its workplace (clause 1. Art. 5 of Law No. 426-FZ). Do not ignore this opportunity.

Also use the right to ask questions from experts from an organization that conducts special seating. Ask about measurements about the techniques that they use, about the norm. The organization is obliged to explain to workers to assess the conditions at their workplaces (paragraph 2 of Art. 6 of Law No. 426-FZ).

Appeal of the results of South

The law has articles that give the right to employees to appeal the results of them. Article 3 of Article 5 establishes such a right, and in Article 26 it specifies that the employee needs to appeal to the State Affection of Labor or the court.

By the way, for a year and a half, there were thousands of complaints from the employees. In some cases, these complaints were unreasonable, but there were also cases of abuse from employers, and the incompetence of organizations conducted.

After receiving the complaint from the employee, Git can designate the quality of special fees. But in this case, expertise will be carried out only about the assessment of working conditions at the applicant's workplace, i.e. one employee.

Based on the conclusion of the examination, the results of the bulk can be either confirmed or canceled. If the power is canceled, the employer needs to carry out an unscheduled special fellow price (paragraph 2 of Part 1 of Article 17 of Law No. 426-FZ).

Judicial practice

Little decisions on the results of special price I found a bit. I will give one indicative example - the appeal definition of the Irkutsk Regional Court dated November 19, 2014. in case number 33-9563 / 14.

The essence of the dispute: Ambulance drivers challenged the results are in their workplace, asked to recognize the cards of special fees invalid.
When considering the case, the court established the following circumstances:

• The plaintiffs did not know about the adhesive assessment of jobs.
• The employer did not familiarize the employees with the results of a special assessment of working conditions at their workplaces under the regulation within the prescribed period. The protocol of the general meeting of the drivers of the garage and the act of refusal from the signatures of those present drivers is recognized by the court invalid evidence. Since of them, the number of those present at the meeting, who exactly from the drivers acquainted with the results of a special assessment of working conditions and which of the drivers refused to familiarize themselves.
• The court is not presented with evidence that noise levels were performed, the level of local vibration of three cars. A specialist timing of working time at these places was also not conducted.
• The presented sheet of the examination of the workplace number ... does not contain a signature of a specialist who carried out measurements, therefore it is invalid proof, and cannot be based on the results of the assessment of the working path of the driver at this workplace.
• According to the employer's calculations from 30 to 40% of the working time, drivers are carried out driving, but 58% indicated in the timing map.

Evaluating all the circumstances of the case, the court of first instance decided in favor of employees, satisfying their requirements. The employer did not agree with this decision and appealed the court decision in the regional court. Regional court left the decision of the district court in force.

If the employee does not agree with the change in the working conditions 05/24/2017

In connection with the structural reorganization of production, on the initiative of the employer, the conditions of employment contracts with employees are changing. Workers warned in writing about it. However, not all workers agree on changes. What should the employer do in this case?

According to Part 1 of Art. 74 of the Labor Code of the Russian Federation in the case when for reasons related to the change in organizational or technological conditions of labor (changes in the technique and production technology, structural reorganization of production, other reasons), determined by the parties the working contract can not be saved, allowed their change on the initiative Employer, except for changing the employment of the employee. Thus, in the case of structural reorganization of production, the employer is really entitled to unilaterally change the conditions of employment contracts.

However, pay attention to that in this case two important conditions must be observed:

The working contract defined by the parties cannot be saved,

The labor function of the employee should not be changed.

If there is a judicial dispute with an employee about changing the conditions of the employment contract, the Court may require an employer to provide evidence of compliance with these conditions. Also, in the case of a dispute, be prepared to prove that the change in the conditions of the employment contract determined by the parties was due to changes in the organizational or technological conditions of labor, for example, changes in the technique and production technology, improving jobs based on their certification, structural reorganization of production, and did not deteriorate the position of the employee Compared to the terms of the collective agreement, the Agreement (paragraph 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2), and not the priest of the employer.

According to Part 2 of Art. 74 Labor Code of the Russian Federation The employer is obliged to notify the employee in writing no later than two months, unless otherwise provided by the Code:

On the upcoming changes to the conditions defined by the parties,

About the reasons that caused the need for such changes.

Disappointing reasons in a written notice to the employee - a common mistake. Check whether you indicated the reasons that caused the need to change the conditions of the employment contract defined by the parties in a written notice directed by the employee. If not, then prepare and give the employee another notice, but already compiled as properly (indicating the reasons). When re-presenting this time, the appropriate notification, in our opinion, the two-month period should begin to flow again.

An employee may not agree to work in new conditions. What are the actions of the employer in this case?

According to Part 3 of Art. 74 Labor Code of the Russian Federation, if the employee does not agree to work in new conditions, the employer is obliged in writing to offer him another employer available to the employer (as a vacant position or work, relevant employee qualifications, and a vacant position or lower job) that worker Can perform according to its health status. At the same time, the employer is obliged to offer an employee all responsible for the specified vacancies available in this area. Offering vacancies in other locations, the employer is obliged if it is provided for by the collective agreement, agreements, an employment contract.

In the absence of the specified work 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.

The publication discloses in detail the topic of translations and movements of workers (permanent and time transfers, transfer to another job in accordance with medical conclusion, translation of the employee together with the employer to another terrain and other, features of the movement of workers). All "decomposed on the shelves." We consider the mass of practical issues, there are examples from personnel and judicial practice. The authors sought to cover the maximum of questions on the topic. Also, the manual contains numerous examples of documents on the topics under consideration.

When the change in the amount of duties entails and changes the salary, whether the update of the official instruction can indicate a change in the labor function and what should be remembered by notifying the employee about the upcoming dismissal: answers to these questions - in the article.

Business maintenance often requires revision of certain working conditions in the company. If employees understand the need for innovations, then, as a rule, no problems arise: any position of the employment contract can be changed by agreement of the parties. For refusing to work in the new conditions, management has the right to dismiss the employee on its own initiative. It should be noted that quite often a similar reason for dismissal is used when an employee has "immunity" from dismissal on the initiative of the employer, and the company wants to part with him. But in the case of a dispute, the employer will have to:

• prove that it was impossible to preserve the conditions of employment contract in original form;
• certify evidence that these changes occurred as a result of organizational or technological reasons.

In addition, it is important to remember that any innovations should not affect the employee's labor function. After all, its change is possible only by mutual consent of the parties. At the same time, in some cases, the change in the labor functions of the employee at the initiative of the employer is possible.

Consider cases where management has the right to adjust the employee's job duties or reduce their volume, and, as a result, the salary.

Reducing the salary must be caused by organizational or technological reasons

Unlike the state reduction (when the employer is not obliged to prove the expediency of the abolition of one or another unit), the change in the conditions of the employment contract must be substantiated by specific reasons. In the case of a judicial dispute, it is necessary to prove that he had the opportunity to preserve the working conditions in the same form (paragraph 21 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

As a basis for changing the conditions of the employment contract on the initiative of the employer, only two reasons are indicated in the law: organizational or technological changes.

Organizational can be recognized:

• changes in the management structure of the company;
• internal restructuring of an enterprise with a redistribution of the load on the division or specific positions and, as a result, replacing the wage system.

Technological changes may relate:

• the introduction of new production technologies, machine tools, aggregates, mechanisms;
• improving jobs;
• development of new types of products, etc.

Thus, the company can not substantiate the change of the working contract conditions for such reasons, for example, as financial difficulties, as it will contradict the Labor Code of the Russian Federation. It should also be remembered that the imposed changes should not worsen the position of the employee compared with the terms of the collective agreement (part 8 of Art. 74 of the Labor Code of the Russian Federation). For example, if the minimum wage of employees of the enterprise is installed by the collective agreement, then the salary under new working conditions cannot be less than the collective agreement. It is important to prove to the employer that it is because of the introduced changes to the conditions of the employment contract. The lack of proper evidence of reasonable change will indicate that the change in employment contracts and subsequent dismissal due to disagreement with changes in working conditions on the initiative of the management is illegal. Whereas the presence of such evidence will confirm the correctness of the company.

How to change the structural unit, which is indicated in the employment contract with an employee

In practice, the organization has the right to abolish the department or other structural unit in which the employee worked, having transferred its function to another department or managing or distributing them between several governments. The employee of the eliminated department can be defined in a new department or unit to which the functions previously implemented by this employee are assigned. However, the change in the employment of the employee at the initiative of the employer is illegally.

Judicial practice: the question of who owns the dismissal initiative

So, in one case, in connection with the reorganization of the Bank, the leadership decided to convert investor relations in two controls: informational and analyst and public relations. A worker, who, before disbanding, headed this department was notified about the changes in the contract concluded with it and were offered to take the position of head of the information and analytical management with a changed official salary due to a decrease in duties. A worker with this proposal did not agree and stated that as a result of disbanding the department to whom she managed, its labor function was changed, and the employer was not entitled to implement such a translation on their own initiative.

The courts of the first and cassation instances stood on the side of the employer. However, the supervisory instance of the Moscow City Court supported a worker. In the future, the Presidium of the Supreme Court of the Russian Federation issued a resolution, in accordance with which the dismissal of workers was recognized as legitimate. The court came to the conclusion that, as a result of disabling the department and in accordance with the instructions for the new post, its official duties were not changed, the new position corresponded to its specialty and qualifications. The female worker refused the proposed position, which cannot be qualified as dismissal on the initiative of the employer (Decision of the Presidium of the Armed Forces of the Russian Federation of 08.06.2011 No. 12PV11).

Judicial practice: reduction of salary

Due to the lack of planned result and low economic indicators of the Retail Department of the Implementation Service, the employer decided to impose functions on the organization of retail sales and managing the retail department on a commercial director, subordinating to him the staff of the retail department. For these reasons, the official responsibilities of the Director of the Retail Department (employee) were excluded the functions of the management department for the organization of the sale of printed products through retail partners, conducting marketing research, the development of projects for the implementation of printed products, improving the sales network and other functions related to the definition of strategy and implementation Sales of retail direction. In the process of structural reorganization of society, the employer approved a new staff schedule, according to which an employee occupied by an employee was established in a smaller amount. The employee refused to work in the changed conditions, and was fired at the initiative of the leadership. Considering the dismissal of illegal, he appealed to the court.

The court agreed with the actions of the company. He found that the change in the employee's remuneration was associated with a significant decrease in the scope of the functions of the retail director of the retail. The court indicated that the decrease in the scope of official duties established in the employment contract was caused by the structural reorganization of the defendant and the recipient of the department. Thus, there were grounds for termination with the plaintiff of the employment contract at the initiative of the Organization, taking into account compliance with other requirements provided for by Art. 74 TK RF (Definition of the Moscow City Court of June 22, 2011 in case No. 33-18959).

It should be remembered that the change in official duties on the initiative of the employer towards the reduction, the decrease in the amount of work performed by organizational or technological changes is not, but relate to the consequences of such changes. Reducing the front of work in itself does not indicate the possibility of applying Art. 74 of the Labor Code of the Russian Federation, if no organizational or technological changes occurred. If, when considering a judicial dispute, it will be established that there were not such changes in reality, the court may consider that there was a reduction in the staff of employees.

Judicial practice: substitution of concepts

The worker appealed to the court with a claim for the recognition of dismissal illegal. She founded its requirements on the fact that as a result of the changes made, the volume of its functions increased, and the salary size was reduced. Thus, the employer brought out several posts from the state by taking their duties to other employees. The worker refused to continue working in the changed conditions, but other posts were not proposed to her, then she was fired.

Satisfying the demands of the plaintiff about restoring at work, the court proceeded from the fact that there was actually a reduction in the staff of employees, and not a change in the essential working conditions (the definition of the Armed Forces of the Republic of Komi from 06.06.2011 No. 33-2948 / 2011).

A similar position took the trial and in another case.

The worker appealed to the State Labor Inspectorate with a complaint about the actions of his employer. She pointed out that he was on child care, when the head heated her about closing stores in her city, offering vacancies in stores located in other cities, and asked for a two-week time to give an answer about agreement or disagreement to continue the work (an individual was an individual entrepreneur). In case of non-receipt of the answer, he left the right to terminate labor relations with a worker on his own initiative on the grounds provided for by paragraph 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation.

Labor inspection came to the conclusion that the closure of the store is not an organizational change in working conditions, as a result of which obliged the employer to cancel the order for the dismissal of workers. The entrepreneur appealed to the court demanding the invocation of the inspection prescription. The court did not support the claimant's claims, obliging it to fulfill the order in full (definition of the Ryazan Regional Court of 28.12.2011 No. 33-2512). Thus, it should be borne by the employer that the conduct of changes in the working conditions of employees cannot be a way to optimize their costs at the expense of the state reduction procedure.

The employer has the right to change the responsibilities of the employee without changing the labor function

The employer, taking into account its production needs when carrying out structural reorganization, has the right, without affecting the essence of the employee's labor function, add it any functional job responsibilities with a simultaneous reduction, or without any official duties. As seen from the materials of judicial practice, the change in the amount of job responsibilities for a particular position is not a change in the labor function on the initiative of the employer (the definition of the Moscow City Court dated November 14, 2011 in case No. 4G / 4-9268). Article 74 of the Labor Code of the Russian Federation provides that the change in the conditions of the employment contract in connection with the change in organizational or technological conditions of labor does not concern the employment of the employee, which should remain unchanged. Under the labor function, according to Art. 15 of the Labor Code of the Russian Federation, it is understood by the work as post in accordance with:

• staff schedule;
• profession, specialty indicating qualifications;
• specific species entrusted employee work.

Thus, in practice, the employer has the right to abolish the department or other structural unit in which the employee worked, having transferred its function to another department or managing or distributing them between several governments. The employee of the eliminated department of the employer can determine the new department or the unit to which the functions previously implemented by this specialist are assigned. However, the employer has no right to change the worker's labor function itself. If, for example, a person works in one specialty, the employer cannot in accordance with Art. 74 TK RF offer him work on another specialty. However, if the employee agrees, there is no obstacles to this (Art. 72 of the Labor Code of the Russian Federation). At the same time, the employer may have an objective need to change some responsibilities of a specialist without affecting the essence of its labor function. For example, this may be associated with the introduction of new production technologies, carrying out measures to improve the organization and improving labor efficiency, etc.

There is a natural question: can the employer change the responsibilities of the employee if this does not affect the essence of his labor function?

This question should be answered positively. As stated in paragraph 4 of the qualifying reference book of managers, specialists and other employees (appliance. Decree of the Ministry of Labor of the Russian Federation of 21.08.1998 No. 37), in some cases it is possible to expand the circle of employee responsibilities compared to the corresponding characteristic. In these cases, without changing the official name, the employee may be entrusted with the duties stipulated by the characteristics of other positions close to the content of the work equal to complexity, the implementation of which does not require other specialty and qualifications.

Thus, a change in the employer of employee duties is not a change in its labor function in the sense of the provisions of Art. ,,, 72 TK RF. At the same time, it should be borne in mind that if the employer does not conduct a structural reorganization, and it simply has the need to change the official duties of a particular employee or a group of employees, supplementing or adjusting the existing duties, it is enough to publish a new job description. That is, the change in the job instructions on the initiative of the employer is permissible. The inconsistency of the individual provisions of the Labor Code of the Russian Federation allows the company to abuse the right when making personnel solutions.

Opinion

Boris Lvovich Pupko, Lawyer of Technology Group and Investment Law Firm Vegas Lex

For the employer, dismissal on the basis of Part 4 of Art. 74 and paragraph 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation is more costly than the dismissal due to the reduction in the number or staff of employees and due to the elimination of a separate structural unit, since the size of the output benefit is significantly lower, as well as the organizationally more convenient than the translation, because it does not require the written consent of the employee, and It can be carried out by the employer on its own initiative unilaterally at any time. In this regard, often employers, implementing the provisions of Art. 74 of the Labor Code of the Russian Federation, instead of measures to reduce the number or staff of employees and measures to eliminate separate structural units or instead of the transfer of employees with their written consent, the provisions of Art. 74 of the Labor Code of the Russian Federation and unilaterally notify employees about the upcoming change in the contract of work defined in the contract or the conditions for clarifying the place of work: on the structural unit, its location, about the workplace. In accordance with the requirements of Art. 74 TK RF Employer informs employees that if they do not agree to work in new conditions, employment contracts with such employees will be terminated on the initiative of the Organization on the basis of paragraph 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation, since the employer has no other vacancies or work in the area where the structural unit (jobs) is abolished, and it is obliged to offer vacancy workers in other areas, only if it is provided for by a collective agreement, agreements, employment contracts (or work There is no other locality too). Such application of the provisions of Art. 74 of the Labor Code of the Russian Federation seems controversial and, in my opinion, the condition about the place of work should also be attributed to the legislator to the conditions that (as well as the employee's labor function) cannot be changed by the employer unilaterally even if there are provided for in Art. 74 TK RF Circumstation and compliance with the established procedure.

Judicial practice: the approval of the new LNA does not necessarily mean changing functions

The worker worked in the company as a leading specialist in the supply department of products and logistics. In 2010, the employer approved the Regulation on the Department and job descriptions of employees. The worker refused to get acquainted with his instruction, having consisted that the employer on his own initiative actually changed its work function and makes it makes work, not caused by the employment contract. In this regard, she appealed to the court demanding to oblige the employer to eliminate violations of labor legislation.

The court rose to the side of the company. He indicated that the approval by the employer of the job instruction is not a change in the labor function and does not indicate the transfer of the employee to another job. The court indicated that the position of the employees remained the same, it performs work in the same product supply department and logistics. At the same time, the work assigned to it enters the circle of functions and tasks as a department as a whole and a leading specialist of this department. The court noted that the content of the specific actions of the employee may vary depending on the time, conditions and circumstances with which he may face, fulfilling his labor duties. In this regard, in satisfaction of the claim, the employee was denied (the definition of the Perm Regional Court of July 27, 2011 in case No. 33-7533).

According to the requirements of Art. 74 Labor Code of the Russian Federation The employer is obliged to offer an employee all available vacancies, both the relevant employee qualifications and the lower and lower paid, with the exception of those that he will not be able to replace the health status. In the event that the employee agrees to replace another position with the uncompanying job duties, the employer will be obliged to conclude an additional agreement to the employment contract in the manner prescribed by Art. 72 TK RF. The content of the employee's labor function may vary depending on the time, conditions and circumstances with which he may face, fulfilling his labor duties within the framework of the job description or employment contract. However, to attract an employee to work, not due to its official duties, it is possible only in the event of a state of emergency or in the manner prescribed by Art. 60.2 Labor Code of the Russian Federation. Thus, with the written consent of the employee, he may be assigned to fulfill the fulfillment during the established duration of the working day along with the work defined by the employment contract, additional work on another or the same profession for an additional fee. It may be combining professions, expanding service areas, an increase in the amount of work. The surcharge will be established by agreement of the parties.

Violation of the procedure for introducing changes entails them cancellation in court

Even having quite real reasons for changing the employment contract, dismissal due to the refusal to continue work in new conditions can be recognized illegal due to non-compliance with the employer of the dismissal procedure. Therefore, it is very important to pay attention to the nuances of dismissal in the event of a refusal of the employee from work in the changed conditions.

1. First of all, the employer decides to change the conditions of employment contract with a particular employee or a group of employees. It is issued by order or order of the company signed by the Director General or other person, whose competence includes the adoption of such solutions.
2. Based on this order, the personnel service is preparing a notification to the employee on the upcoming changes to the working contract defined by the parties. Notify employees need no later than two months (part 2 of Art. 74 of the Labor Code of the Russian Federation). For the employer - an individual, this period is two weeks (Article 306 of the Labor Code of the Russian Federation).
3. With the notice of the employee, you need to get acquainted with the painting. Once again, we note that it should contain information not only about the nature of changes, but also on their causes. In notification, it is advisable to establish a period during which the employee needs to decide on its decision on work in new conditions.

Often in practice the question arises about the time of the beginning of the two-month period. The problem is that it is unclear, from what date this period begins to be calculated - from the date of delivery, the employee is notified or the next day after it is received. We believe that Article should be guided here. 14 of the Labor Code of the Russian Federation, according to which the course of deadlines begins the day after the calendar date, which is determined by the offensive of a legally significant event.

If the employee does not agree to work in the new conditions, the employer in writing offers him another vacant position or work, relevant to the qualifications of the employee, or a vacant position or the lower job, which it can carry out, taking into account his health status (part 3 of Art. 74 TK RF). At the same time, the employer should offer all the vacancies available in this locality during the entire two-month warning period. In written proposals, it is necessary to indicate not only the names of posts, but also working conditions, the amount of wages, as well as other mandatory conditions provided for by Art. 57 of the Labor Code of the Russian Federation. Otherwise, the procedure can be recognized as conducted in violation.

Judicial practice: non-compliance of the dismissal procedure

Employees appealed to the court with the requirement to recognize the dismissal of paragraph 7 of Part 1 of Art. 77 TC RF illegal. In their opinion, the termination of employment contracts was accompanied by violations of legislation.

The courts of the first and cassation instances fell on the side of the employer, but the Supreme Court of the Russian Federation overturned these decisions, referring to the following. Since the notice of employees about organizational changes was made earlier than the publication of the appropriate resolution of the head of the administration of the municipal district on the structural reorganization of the hospital, where dismissed workers worked, it was violated a two-month term for notifying employees about the upcoming dismissal. The court also established that offering another job, the employer did not comply with all the essential working conditions. In addition, after the publication of an order about the introduction of changes, employees have continued to fulfill the previous responsibilities in the same amount. The court indicated that the position proposed by the employer and the nature of the work in these positions are identical and correspond to the work of the plaintiffs before changing the structure of the organization. Evidence confirming that the change in the conditions determined by the parties of the employment contract, which was a consequence of changes in the organizational working conditions, as well as that this did not worsened the situation of employees, was not presented. Thus, the decisions of the lower courts were canceled, and the case was aimed at a new consideration (the definition of the Armed Forces of the Russian Federation of October 31, 2008 No. 25-B08-9).

It is important to prove the employer that innovations of an organizational nature were sufficient reasons for changing the working conditions.

Opinion

Ivan Viktorovich Berdinsky, Lawyer of the Moscow Office of the International Law Firm Baker & McKenzie

The current judicial practice makes it possible to conclude that the most common cause of recovery at the work of employees dismissed in the order of Part 4 of Art. 74 of the Labor Code of the Russian Federation with reference to paragraph 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation, the recognition of organizational or technological changes in labor conditions is insufficient to substantiate the change in the conditions of employment contracts determined by the parties and the procedures provided for by Art. 74 Code. Especially it is interesting to analyze which organizational changes are recognized by the courts as sufficient and non-violating the rights of employees, as well as how these changes should be documenting documented. Changing the mode of operation. The Moscow City Court recognized the legitimate dismissal of the employee who refused to work on a new schedule of work (definition of 02.03.2012 in case No. 33-6543). Changes in the work schedule of the department in which the employee was employed was caused by the need to service visitors to the organization on weekends and was documented by the order on the new schedule of the work of this department. In this case, the possibility of establishing the relevant work schedule was also provided for by the employer in the rules of the internal labor regulation. Reorganization of the employer, which caused the change in the official duties of the employee. The Astrakhan Regional Court recognized the legitimate dismissal of the employee who refused to work with the modified official duties (the appellate definition of 27.06.2012 in case No. 33-1932). Changing official duties without the consent of the employee was due to the decision of the employer on the reorganization of the structural unit in which the employee worked. Reorganization was drawn up as follows: issued an order to revise the existing regulations on the structural unit; Approved a new position and new job descriptions for employees of the division; Amendments made to the staff schedule of the organization. It should be remembered that a collective agreement, agreements and employment contracts may also provide for the obligation of vacancies in other localities (part 3 of Art. 74 of the Labor Code of the Russian Federation). It is also important to take into account that offering another job, the employer is not entitled to conduct interviews to verify the employee's business qualities or to establish a trial period, since the proposed vacancies should initially comply with the skillful skills.

Judicial practice: an assessment of the competencies of an employee in reducing and offering other positions illegal

The worker appealed to the court with a claim for the recognition of the order of dismissal under paragraph 7 of Part 1 of Art. 77 TC RF illegal, restoration at work, recovery of wages during the forced absenteeism, compensation for moral damage. The company decided to introduce changes as a result of a sharp deterioration of financial indicators. At the same time, individual officers by decision of the head of the enterprise could establish salaries in the amount of 10 thousand rubles. Until the minimum wage. The specialist was notified of reducing his position, he was offered other positions. He agreed to replace one of the proposed posts, the head of the relevant division spent the interview with him, after which the invitation was not done. As a result, the employer fired him on the grounds provided for by paragraph 7 of Part 1 of Art. 77 TK RF.

The court did not support the position of the employer, since the interview is contrary to the meaning of Art. 74 TK RF. The employee was restored at work, he paid wages during the forced absenteeism, compensation of moral damage (the definition of the Moscow City Court dated July 01, 2010 in case No. 33-19700).

How to correctly change employee instructions

Amendments to the job description may be associated with a change in the terms of the employment contract. In this case, the requirements for the advanced written notice of the employee should be followed. And only after the employee agreed to the continuation of labor relations, the job instruction changes:

• if the instruction is an application to the employment contract, it is advisable to make simultaneously amendments to an employment contract and job description by preparing an additional agreement;
• if the job instruction has been approved as a separate document and, at the same time, changes in it does not entail the need to change the conditions of the employment contract, the most convenient to approve the job description in the new edition, in writing his employee in writing (a letter of Rostrude from 10/31/2007 No. 4412-B ).

The lack of vacancies or the refusal of the employee from the proposed work can serve as a basis for the termination of the employment contract in accordance with paragraph 7 of Part 1 of Art. 77 TK RF. At the same time, there is no need to obtain a motivated opinion of the representative body of workers.

Firing employees on this basis, the employer must pay them, in addition to the final settlement and compensation for unused vacation, the day off of the two-week average earnings (part 3 of Article 178 of the Labor Code of the Russian Federation).

If organizational or technological changes can lead to a massive reduction, Art. 74 Labor Code of the Russian Federation provides the employer right to unilaterally enter part-time mode. With the introduction of such a regime, the union's opinion should be taken into account. The criteria of mass dismissal are established by industry agreements and, as a rule, depend on the deadlines, which are released by employees, and the percentage of the total number of employees.

It is important to take into account that Art. 74 of the Labor Code of the Russian Federation provides for the right, and not the obligation of the employer to dismiss under paragraph 7 of Part 1 of Art. 77 TC RF employee who disagrees to work in new, altered conditions. Even if a specialist does not agree to work in new conditions, the employer has the right to leave it at work. However, this employee must work on the previous conditions, and the employer is obliged to provide such working conditions.

Basic errors that allow employers when dismissing workers

• do not comply with a two-month term notice of changes,
• the reasons for conducting changes are not specified
• all vacant positions available at the enterprise are not offered.

The procedure for the dismissal of the employee in connection with the refusal to continue working in the changed conditions

Employer actions	What to pay special attention to
Issue an order for the introduction of changes to organizational or technological working conditions	It is important that the changes input do not touch the employee's labor function. If the organization has a collective agreement, new conditions should not worsen the position of the employee compared with the collective agreement
Notify workers about changing working conditions	It is necessary to notify employees 2 months before the introduction of changes (for IP in 2 weeks). The notification must be in writing and handed over to painting. The notification needs to indicate the date of change, their reasons, a description of the new conditions of employment contract, including all essential conditions: duties, work schedule, wage level, etc.
Suggest all the vacancies in the event of an employee's refusal from work in the changed terms	In a proposal, it is necessary to indicate not only the names of the proposed posts, but also working conditions, the size of the salary, as well as other mandatory conditions provided for by the Labor Code of the Russian Federation. Please note that in the case of the consent of the employee to replace any of the proposed posts, the employer is not entitled to conduct an interview or establish a trial period.
If the employee agrees to change the conditions of employment contract
Conclude an additional agreement to the employment contract	If an employee agrees to continue working in the changed conditions, the employer concludes an additional agreement with him. It is necessary to indicate a description of new conditions, the time of entry into force of an additional agreement, but not earlier than 2 months from the moment of notice
If the employee does not agree to the change in the terms of the employment contract, but agree on the translation
Translate an employee to another position	In case of refusal of an employee from continuing to work in the previous position in the changed conditions and consent to replace another vacant position, the employer issues an order for the transfer of such a specialist and concludes an agreement on its translation with the indication of the new position and other mandatory conditions.
If the employee does not agree to the change in conditions or transfer
Make dismissal according to paragraph 7 of Part 1 of Art. 77 TC RF	If an employee does not agree to work in the changed conditions, after 2 months, the employer has the right to terminate the employment contract with him. The formulation of dismissal should be indicated in accordance with paragraph 7 of Part 1 of Art. 77 TC RF
Pay a day off	In the case of the dismissal of the employee, the employer needs to pay him a day off a manual in the amount of a two-week average earnings (Article 178 of the Labor Code of the Russian Federation).

In accordance with the second part of Art. 57 of the Labor Code of the Russian Federation in the employment contract must be indicated by the work function of the employee. At the same time, under the labor function it is understood as work as a position in accordance with the staff schedule, profession, specialty, indicating the qualifications or a specific type of charged work. The circle of responsibilities that make up the content of the labor function can be specified directly in the employment contract, and can be enshrined in the official instructions or other local regulatory acts of the employer. Since the procedure for drawing up the job instructions with regulatory legal acts is not resolved, the employer independently decides how to arrange it and how to make changes to it. The job instruction may be an annex to the employment contract, as well as to be approved as an independent document (see also a letter of Rostrud from 31.10.2007 N 4412-6).
In the situation under consideration, the parties in the labor contract agreed that the employee executes job duties defined by the instructions. Consequently, changing the content of these duties (a change in the official instruction) will be a change in the conditions of the employment contract.
The job instruction is a local regulatory act. By virtue of Art. 8 TK RF Employers are entitled to independently, as necessary, to take local regulations, as well as make changes to the previously adopted acts, as well as approve new instead of the previous ones. Employees must be familiar with the painting with local regulatory acts that are associated with their labor activity (part of the second Art. 22, part of the third Art. 68 of the Labor Code of the Russian Federation).
As a general rule according to Art. 72 of the Labor Code of the Russian Federation Changes in the Terms of Labor Conditions defined by the parties is allowed only by agreement of the parties to the employment contract. At the same time, the legislation allows the employer to be changed by the work contract defined by the parties, with the exception of the condition on the employment of the employee, for reasons related to the change in organizational or technological working conditions, without the consent of the employee (part of the first Art. 74 of the Labor Code of the Russian Federation).
Thus, the solution to the permissibility of a change in the official instructions (increasing the scope of official duties) without the consent of the employee depends on whether a change in the employment of the employee or not occurs in such an increase in the scope of official duties.
With this position, when by virtue of Art. The 15th Tk of the Russian Federation under labor function is understood, in particular, the work on office in accordance with the staffing schedule, the courts, comparing the previous and new job descriptions of the employee, proceed from the fact that it cannot indicate a change in the employee's labor function to impart him Responsibilities, which, in principle, are peculiar to the positions occupied by him, correspond to the goals and objectives of the structural unit in which the employee is busy, as well as the employee will be able to fulfill due to its qualifications and education. For example, the imposition of the Organization's judicial deeds not previously not fulfilled on the legal entity (i.e. duties directly arising from his position, education and qualifications) is not a change in its labor function, while the charges of accounting responsibilities Accounting will be such.
If an increase in the scope of official duties does not indicate a change in the employment of the employee and is caused by the reasons associated with the change in organizational or technological conditions of labor, the employer has the right to change the official instruction of the employee without its consent in the manner prescribed by Art. 74 TK RF. In this regard, we suggest you familiarize yourself with the numerous judicial practice: by the decision of the Birobidzan district court of the Jewish Autonomous Region of January 11, 2012 in case No. 2-87 / 2012 (http://www.gcourts.ru/case/3596398) and the appeal definition of judicial Colleges in civil cases of the court of the Jewish Autonomous Region dated 03/16/2012 in case No. 33-94 / 2012 (http://os.brb.sudrf.ru/modules.php?name\u003dbsr&op\u003dshow_text&srv_num\u003d1&id\u003d79 400001203200932192421000205521); Cassation definition of the judicial board on civil cases of the Volgograd Regional Court of 08.09.2010 in case No. 33-9453 / 2010 (http://oblsud.vol.sudrf.ru/modules.php?name\u003dbsr&op\u003dshow_text&srv_num\u003d1&i d \u003d406077) ; the definition of the judicial board on civil cases of the Lipetsk Regional Court (http://oblsud.lpk.sudrf.ru/modules.php?name\u003ddocum_sud_id\u003d730); By the decision of the Tagillestroevsky District Court of N. Tagil Sverdlovsk region of 09.12.2008 (http://tagilstroevsky.svd.sudrf.ru/modules.php?name\u003ddocum_sud_id\u003d85); By the decision of the Bredensky District Court of the Chelyabinsk Region (http://bred.chel.sudrf.ru/modules.php?name\u003ddocum_sud_id\u003d427); By the decision of the Dzerzhinsky District Court of Perm from 13.07.2012 in case No. 2-1249 / 2012 (http://www.gcourts.ru/case/9430435); Cassation definition of the judicial board on civil cases of the Khabarovsk regional court of 01.12.2010 in case No. 33-7751 / 2010 (http://www.gcourts.ru/case/320333); Definition of the judicial board on civil cases of the Kemerovo Regional Court of 13.07.2011 in case No. 33-7629 / 2011 (http://www.gcourts.ru/case/1296397); By the decision of the Petrozavodsk city court of the Republic of Karelia dated 02.27.2012 in case No. 2-368 / 29-2012 (http://www.gcourts.ru/case/7842397).
If, according to the new job instruction, the employee is entrusted with the responsibilities that change its labor function, such an increase in the scope of employee duties should occur solely on the basis of the agreement of the parties to the employment contract. In this regard, see, for example, the decision of the Leninsky District Court of Vladivostok Primorsky Krai from 05.08.2011 in case No. 2-1638 / 2011 (http://www.gcourts.ru/case/1568357), paragraph 3 of judicial practice According to civil cases of the Supreme Court of the Republic of Karelia for the first half of 2007, the "Supervisory Practice" section. At the same time, if the employee does not agree to changes in the working conditions in accordance with Art. 72 of the Labor Code of the Russian Federation, then he must work on the previous conditions, that is, to fulfill the former duties provided for by the job description.
We draw your attention to the fact that before the expiration of the provided Art. 74 TK RF term notice of a change in the terms of the employment contract in the first case, as well as without obtaining the consent of the employee to increase job duties in the second case (in accordance with Art. 72 of the Labor Code of the Russian Federation), the employer is not entitled to demand from the employee of the implementation of new official duties.

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If the employee does not agree with the amendments to the job description of the organization. The organization is small, in connection with this, it is necessary to increase non-work, but a change in the distribution of work (inside the unit). Official instruction is not tied to the employment contract.

Answer

The answer to the question:

The change in the labor function (including in the case of the redistribution of work between employees) is possible only by agreement of the parties to the employment contract.

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Therefore, if you expand the responsibilities of the employee, new (expanded) duties are stacked in that functionality that is enshrined in the employment contract (instructions), then the change of labor function does not occur.

If the new responsibilities go beyond the limits established, and changes in the employment contract (instruction), the expansion will be a change in labor function, even if these responsibilities increase within the same position (profession). It does not matter the fact that your instruction is not an application to the employment contract.

You have the changes in question lead to a change in the employee's labor function, and therefore the application of Art. 74 TK RF in this case is illegally.

In a situation where the employee is not ready to change the labor function, a new position is introduced to the staffing schedule with the required set of functions, and the position of the employee is reduced (paragraph 2 of part 1, Article 81, 178, 181 of the Labor Code of the Russian Federation).

At the same time, note that as it follows from the definition of the Supreme Court of the Russian Federation of 03.12.2007 N 19-B07-34, the employer is not entitled to arbitrarily change the staffing and dismiss workers, and the court must verify the validity of the decision taken by the employer to reduce employees. When considering cases of this category in court, the employer is obliged to submit evidence confirming that the decision of the employer on the reduction of employees and, as a result, is a unilateral change in the employer of the working contract conditions in the most acute form that violates the constitutional right of an employee to work in the form of termination of labor Agreement is unacceptable in arbitrary form and should be proven by the employer with references to the impact on the production process of economic, technical, organizational and other factors.

In addition, an employee can "part" by agreement of the parties (when achieving such), for example, suggesting the attractive amount of the output benefit.

Details in the framework of the personnel system:

1. Situation:Is a change in labor function to expand duties within the framework of the employee

The answer to this question depends on whether new responsibilities are included in the amount of employee's previously fixed functional duties or not.

Labor function is a job in accordance with the staff schedule, profession, specialty, indicating the qualifications or a specific type of entrusted work employee (). Labor function is determined either or employee (). The degree of specification of duties and reflect the labor function of employees does not establish legislation. This issue of the employer decides at its discretion.

Therefore, if you expand the responsibilities of the employee, new (expanded) duties are stacked in that functionality that is enshrined in the employment contract (instructions), then the change of labor function does not occur. If new responsibilities go beyond the framework of the established, and changes in the employment contract (instruction), the expansion will be a change in labor function, even if these responsibilities increase within the same position (profession).

If the expansion of responsibilities leads to a change in labor function, then the employer needs to receive the written consent of the employee to perform additional work, revise the job salary or to establish additional charge.

Such conclusions follow from the set of provisions of articles, the Labor Code of the Russian Federation and is confirmed by judicial practice (see, for example,).

Ivan Shklovets,

deputy Head of the Federal Service for Labor and Employment