Dismissal due to transfer to another employer. Sample letter of resignation in the order of transfer. Application for dismissal by transfer: sample

In this article we will look at how to formalize a dismissal in connection with a transfer to another organization, what payments the employer is required to make upon transfer, and also find out how to make an entry in the work book of an employee who is being transferred to work in another organization.

Dismissal due to transfer to another organization: grounds under the Labor Code of the Russian Federation

The procedure for dismissing an employee in connection with a transfer to another employer is regulated by clause 5, part 1 of Art. 77 Labor Code of the Russian Federation. According to labor law, such a transfer is a general basis for termination of employment relations and requires mutual agreement of the parties.

In practice, dismissal by transfer to another organization is used in companies that are connected by common activities, but are registered as different legal entities. In particular, dismissal formalizes the transfer of an employee from a subsidiary to the parent company, provided that the former and new employers are different legal entities and not structural divisions within the same legal entity.

How to dismiss an employee due to transfer to another organization: documents, calculations, entry in the work book

When transferring an employee from one organization to another, the employer terminates the employment relationship with the employee on the basis of his written application, as well as if there are guarantees about the subsequent employment of the employee in another organization.

The procedure for dismissing an employee upon transfer to another organization is in the instructions below.

Step 1. Letter of guarantee for transfer

As a rule, at the preliminary stage, the current and future employer approve an agreement to transfer the employee to a new position in another organization. The agreement can be oral or in writing. In the latter case, the upcoming transfer of the employee is confirmed by a letter of guarantee drawn up by the new employer.

The letter is drawn up in free form, indicating the following information:

• guarantees regarding the conclusion of an employment contract;
• the nature of the work and working conditions under the new employment contract (position, salary, work schedule);
• desired date for concluding an employment contract.

The letter of guarantee is issued in the name of the head of the organization in which the employee is currently employed. The text of the letter also provides for notification and consent of the employee to the transfer (column “I have read and agree to the transfer to LLC _____ to the position ____ from _____,” Full name of the employee, date, signature),

Step #2. Resignation notices

If the employee agrees to the transfer, as well as on the basis of an agreement between the employers, the employee draws up a letter of resignation.

Since we are talking about a transfer through dismissal, the application should be drawn up with the wording “I ask you to dismiss ...”, and not “I ask you to transfer.”

The application form is not approved by law. The document can be drawn up in free form, but at the same time contain the following mandatory information:

• Full name, position of the head of the organization in whose name the application is being submitted (current employer);
• Full name, position, personnel number of the employee who submits the application;
• request for dismissal due to transfer ( “On the basis of clause 5, part 1, article 77 of the Labor Code of the Russian Federation, I ask you to dismiss me in connection with the transfer to LLC ____...”);
• the date of dismissal determined on the basis of a letter of guarantee and in accordance with an oral agreement with the employer;
• date of document preparation.

After signing, the employee submits the application to the current employer.

Step #3. Order of dismissal

Having received a statement from the employee, the current employer draws up a dismissal order in connection with a transfer to another company.

The order can be drawn up either in free form or with using a unified form. In each case, the text of the order must contain the following information:

• name of the organization (current employer);
• number, date of the dismissal order;
• Full name of the employee being dismissed due to transfer to another organization;
• date and number of the employment contract subject to termination;
• the date of dismissal, which is determined in accordance with the application;
• grounds for termination of the employment contract (clause 5, part 1, article 77 of the Labor Code of the Russian Federation);
• documentary basis for drawing up the order (employee statement dated ____);
• Full name, position of the manager approving the order (current employer).

The order signed by the manager is handed over to the employee for review (“I have read the order Full name, signature»).

Step #4. Calculations and payments

Despite the fact that we are talking about the transfer of an employee, in fact the employer terminates the employment relationship with the employee, and therefore acquires obligations for accruals and payments that are provided for in connection with dismissal in the general manner.

On the day of termination of the employment relationship in connection with the transfer, the employer is obliged to pay the employee:

• salary for the time actually worked in the current month;
• compensation for unused vacation based on the average daily earnings for each day of rest.

When paying wages and compensation, the employer withholds personal income tax at a rate of 13% (resident employee) or 30% (non-resident employee), after which the tax is transferred to the budget. The deadline for paying personal income tax to the budget is no later than the day following the day of dismissal and settlement with the employee.

Step #5. Entry in the work book

When dismissing an employee due to transfer to another organization, the employer makes an entry in the work book and hands over the document to the employee.

In the work book, the employer records the termination of the employment relationship with the employee on the basis of clause 5, part 1, article 77 of the Labor Code of the Russian Federation. The record of dismissal is certified by the signature of the responsible person (manager, head of the personnel department, another employee authorized to sign such documents on the basis of a power of attorney) and sealed with the seal of the organization.

When an employee is dismissed due to transfer to another organization, the employer makes an entry in the work book on the day of dismissal. Also, on the day of termination of the employment contract, the employer is obliged to issue a work book to the employee. Transferring a work record book directly to a new employer is not permitted.

Let's look at an example . 10.30.2018 Ulyanova E.D. filed a letter of resignation from LLC "Chance" in connection with the transfer to LLC "Magnat". The date of termination of the employment relationship according to the application is November 5, 2018. According to the letter of guarantee sent by Magnat LLC to the management of Chance LLC, the new employer undertakes to employ the employee on November 6, 2018.

Based on the letter of guarantee and Ulyanova’s application, an employee of the personnel department of Chance LLC prepared an order for the dismissal of the employee on November 5, 2018 in connection with a transfer to another organization (clause 5, part 1, article 77 of the Labor Code of the Russian Federation).

On the day of dismissal, November 5, 2018, Ulyanova was paid a salary for the days actually worked in November (from November 1 to November 5 inclusive), as well as compensation for unused vacation, calculated based on average earnings.

Also on November 5, 2018, an employee of the HR department made the following entry in Ulyanova’s work book:

On November 5, 2018, the work book was issued to Ulyanova “in person.”

On November 6, 2018, Ulyanova was employed at a new place of work with the following entry reflected in her work book:

Of course, dismissal by transfer to another organization has its pros and cons. The current laws define only two advantages of transfer before voluntary dismissal(advantages of dismissal by transfer to another organization):

• the person is guaranteed employment in a new place in writing;
• the employee is released from the probationary period in any form.

In addition, the person will retain the so-called “continuity of work experience,” but this category currently means practically nothing, and most importantly, it does not affect the payment of sick leave, as it did before.

It should also be remembered that at present, a person accepted by transfer can be granted regular leave on a general basis, that is, at the end of six months from the day on which he actually started work, unless otherwise provided in the employment contract.

The main disadvantage of dismissal by transfer- this is a rather cumbersome procedure, especially if the transfer to another organization with dismissal is carried out on the initiative of the employee. In the most general case, the “old” and “new” employers are in no way connected with each other, but in order to process the transfer they must act in absolute harmony.

To do this, the employee will have to not only explain his motives to the current employer (which often do not bring any benefit to the employer), but also convince him to enter into correspondence with a possible competitor and actually help in actions to dismiss his own employee.

Another possible “minus” is that the law does not say that the employee will retain his salary at his previous place - all this remains at the discretion of the employer and his agreement with the employee.

By the way, transfer to another organization without dismissal is impossible. All legal grounds for dismissing an employee can be found.

Article 77. General grounds for termination of an employment contract

The grounds for termination of an employment contract are:

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

An employment contract may be terminated on other grounds provided for by this Code and other federal laws.

Part three is no longer valid.

Violations when processing a transfer and their consequences for the employer

There is a certain procedure for registering dismissal in the order of transfer to another organization.
It is quite obvious that transferring a person to another enterprise is actually equivalent to two legal acts - termination of the previous one and the conclusion of a new employment agreement.

These actions are related to one another mainly on a causal basis; there are practically no legal differences in the procedure for terminating an employment agreement at one’s own request.

Accordingly, the legality of dismissal is assessed according to the criteria common to this procedure.

First of all, the employer is obliged to make a full settlement with the employee, give him all the salary due and compensation for unused vacation. Failure to pay compensation for vacation on the basis that the employee is “transferred” and the vacation will be paid to him in the new place is completely illegal and far-fetched.

The employer is obliged to formalize dismissal in connection with transfer to another organization by an appropriate order, in which the reason for dismissal must be clearly indicated - transfer to a new place of work - indicating this “new place”. Also, dismissal due to transfer to another organization implies an entry in the labor record.
relevant content. It is completely unacceptable to indicate any other reason for dismissal when transferring to another place of work.

If an employee believes that his dismissal was not properly formalized and his rights were violated, he must submit a written statement to the labor inspection authorities. This must be done as soon as possible, because the law sets the statute of limitations for consideration of such cases at 30 calendar days from the date of violation.

Upon receipt of the application, the current employer can make a corresponding request to the future one, and, having received from him a written notification of consent to accept the employee as a transfer, draws up a dismissal order.

The dismissal order must contain:

• legally accurate name of the organization;
• order number and its name (essence);
• the reason for termination of the employment agreement (transfer to work in another company);
• information about the person being dismissed (last name, position);
• data for calculating wages and compensation;
• details of the document confirming the reason for dismissal (notification of a request for transfer);
• date and signature of the manager, as well as the seal of the organization.

After which the employee draws up an agreement with the new employer in the usual manner, indicating in the application a request to hire him in connection with a transfer from his previous place of work.

Watch the video: dismissal of an employee by transfer.

Dismissal by way of transfer to another organization can be formalized when there is agreement:

director of the company in which the citizen is invited to work;

invited employee;

employer from the previous place of work.

In this case, it is possible to terminate the employment contract at the previous place of work. Transfer to another organization without dismissal is not permitted.

How is an invitation from a company issued?

It is no secret that the managers of many companies are looking closely at the employees of competing companies or their business partners. In any case, the director of each enterprise would be glad to see an intelligent and experienced employee in his organization. They are often ready to offer citizens working for other employers a more attractive position and a decent salary. Dismissal due to transfer to another organization is possible if the employer has received a written request from another company, and the employee has nothing against such a transfer. It is carried out if the director is ready to part with the employee. If the manager is against him leaving his company, the invited employee can leave it on his own initiative.

Letter of dismissal by transfer, sample

Dismissal by way of transfer can only be made with the consent of the employee. Therefore, he must document his positive response to the transfer in writing. The wording “I agree to the transfer” is indicated on the invitation from another employer. After receiving the document, the director issues an order to terminate the contract.

How is an application made?

Dismissal by transfer to another organization can be a good option for an employee who has decided to leave the company and has already found a new job. Dismissal due to transfer is a guarantee that within a month from the date of departure the new employer will sign a contract with him. Also, an advantage can be considered the absence of mandatory two-week work (by agreement of employers) and the absence of a probationary period at the new place of work. A citizen can ask the head of the company where he wants to find a job to send a request to his current employer. He must also write a letter of resignation in order of transfer.

Sample application:

The application must be accompanied by an invitation from the future employer with a request to terminate the contract with the specified employee for employment in his company.

Issuing a transfer order

The manager issues a dismissal order drawn up according to. The following documents are indicated as the basis for leaving:

invitation to a future employer;

consent of the current employer;

statement or consent of the worker.

The person leaving is introduced to the order and signed. On the day of departure, the payment is transferred to him and the book is returned with an entry about the termination of the contract made in it.

What does a contract termination record sound like?

The information is entered into the personal card and work book on the last working day. The wording may be as follows: “Dismissed due to transfer at the request of the employee (or with the consent) to (name of enterprise), paragraph 5 of Article 77 of the Labor Code of the Russian Federation.” Transfer through dismissal in one organization is not allowed.

Can a new employer refuse to hire?

Article 64 of the Labor Code of the Russian Federation guarantees a citizen employment. The employer who sent the invitation cannot back down and refuse the citizen to sign the contract. The documents guaranteeing employment in the new organization are an invitation to transfer and the consent of the citizen. If the employer decides to refuse employment to the invited employee, he can file a complaint with the labor inspectorate or sue him in court. If the court decides in favor of the plaintiff, it will oblige the new employer to sign a contract with him from the day following the day he left his previous job.

The legislation also provides for administrative liability for such violations. According to Part 3 of Art. 5.27 of the Administrative Code, a fine of 10 to 20 thousand rubles may be imposed. per official, from 50 to 100 thousand rubles. to the organization.

The transition of a citizen from one employer to another, or a change of workplace within one company, are procedures related to the implementation of certain bureaucratic rules regulated by Art. 72.1 of the Labor Code (LC) of the Russian Federation. Let us consider in detail how a transfer is carried out through the dismissal procedure.

General concepts

The transfer of an employee to a new workplace can be external or internal. The transfer option depends on where the rotation of labor takes place: within one organization or the employee moves to another organization.

An internal transfer of an employee implies that a citizen changes his workplace in a company with his employer, that is, he moves to another structural unit or his job responsibilities change. Such a move within the company can be temporary or permanent (learn more about temporary transfer of an employee to another position). An internal transfer can only be made with the consent of the employee, with the exception of force majeure circumstances (natural and man-made disasters, liquidation of their consequences, etc.). These conditions are specified in Article 72.2 of the Labor Code of the Russian Federation.

Note: when an employee needs to move to work in another city, but does not change the employer (for example, an employee goes to work at a subsidiary), then such a transfer cannot be considered external. It is not formalized by dismissal. An external transfer involves a change of employer.

An external transfer assumes that an employee terminates an employment contract with one employer and enters into it with another within 1 month. This procedure can only be carried out with the consent of the citizen.

Dismissal through transfer to another employer

A transfer to another organization through a dismissal procedure can be initiated by the employee himself or by his employer (present or future). This form of transition, according to Art. 169 of the Labor Code of the Russian Federation, provides the following benefits:

• guaranteed execution of an employment contract with a new employer;
• payment of expenses associated with moving to another location for the employee and his family members.

When dismissed by transfer at the request of an employee, he needs to ask his future employer to issue a special letter of invitation to work in his organization (read how a transfer to another job within the company occurs at the employee’s initiative).

This letter must contain specific information:

• last name, first name, patronymic of the employee invited to work;
• the position to which the employee is transferred;
• date of intended transfer;
• employer's signature and company details.

In addition to providing this letter, the citizen needs to write a letter of resignation with mandatory wording that would indicate that the dismissal is being made for the purpose of moving to another organization. You must also indicate its full name.

Additionally

When dismissing an employee, the employer is obliged to issue him a certificate confirming his salary for the last two years. This is due to changes in the rules for paying benefits on sick leave since 2011 (by order of the Ministry of Health and Social Development of Russia No. 4n dated January 17, 2011).

The option in which the employer initiates the transfer procedure is slightly different in its design. Such a transfer is carried out on the basis of a formalized tripartite agreement, the parties to which are the current and future employers, as well as the employee himself.

The agreement fixes:

• duties of the parties;
• translation deadlines;
• position, pay, working conditions of the workplace where the employee is transferred.

Translation procedure algorithm

After submitting the above documents to the HR department, employees of this unit must perform a number of protocol actions. For greater clarity, let us present the algorithm for the procedure for external transfer through dismissal using a table.

Possible problems

How to fire a woman on maternity leave

There are situations (for example, liquidation of a company) when it is necessary to transfer a woman who is on maternity leave to work in another organization. If the initiative comes from the employee herself or she agreed to the employer’s proposed dismissal through transfer, then this happens in accordance with the procedure established by law.

Sometimes it happens that a potential employer changes his mind about employing an employee in his company. There is only one way out of such a situation - an appeal to the courts. The employee must, in addition to the statement of claim, provide the court with a letter of invitation signed by the employer. This document is the main evidentiary argument to protect the interests of the employee.

Another problem with dismissal followed by transfer may be the current employer’s disagreement with this operation. In this case, there is only one way out - dismissal using the standard option with the wording “At your own request”. Obviously, in this case, the employee is deprived of the benefits of transfer through dismissal.

Advantages of dismissal by transfer

With this form of transition to a new job, the employee has a number of advantages:

• guaranteed employment in a new organization within 1 month from the date of dismissal from the previous place of employment;
• lack of a probationary period at a new job.

More information about dismissal by transfer in the next video

Transfer through dismissal in one organization

When transferred to another workplace in the same organization, the employee must give his written consent to this procedure. After this, the organization issues an order to complete the transfer. It is mandatory to draw up an additional agreement to the existing employment contract between the employer and employee.

The option of moving to another workplace in one organization through dismissal is not clear-cut. This option is legal and can be implemented, but if there is dishonest intent on the part of the employer, the employee may lose his job. It is then impossible to challenge this dismissal even if you go to court, because it is formalized in compliance with all the necessary formalities.

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