as a basis for termination of the employment contract by paragraph 6 of Article 77 of the Labor Code of the Russian Federation.
It is new compared to the previously existing rules, and therefore it seems important to dwell on it in more detail.
First of all, it is necessary to clarify the following. An organization’s property changes ownership only in a few cases: 1)
when transferring a state unitary enterprise (the owner of which is the Russian Federation or one of its subjects) into municipal ownership (the municipal entity becomes the new owner, and the unitary enterprise itself is transformed into a municipal one) and vice versa, as well as when transferring a municipal unitary enterprise to another municipal entity; 2)
when there is a change in the composition of the founders (participants) of the organization financed by them as the owner in whole or in part; 3)
during the privatization of property complexes of state or municipal unitary enterprises, carried out in accordance with the Federal Law of December 21, 2001 “On the privatization of state and municipal property.”
Reorganization of legal entities, carried out in various forms (mergers, accessions, divisions, separations, transformations), is regulated by the norms of civil legislation, in particular articles 57-60 of the Civil Code of the Russian Federation.
A change in the jurisdiction (subordination) of an organization, as a rule, concerns government organizations and actually consists of replacing one government body authorized to represent the state (the Russian Federation or its subject) with another (for example, a federal educational institution is transferred from the subordination of the Ministry of Agriculture of the Russian Federation to subordination to the Ministry of Education of the Russian Federation - changes jurisdiction).
As can be seen from the content of Article 75 of the Labor Code of the Russian Federation (parts two and five), the norms on guarantees to employees of an organization when the owner of its property changes and when it is reorganized or changes in jurisdiction (subordination) are formulated by the legislator with some differences.
If in the first case the Code stipulates that a change in the owner of an organization’s property is not a basis for terminating employment contracts with employees (with the exception of the head of the organization, his deputies and the chief accountant), that is, the employer does not have the right to dismiss employees in this regard on his own initiative, then in the second - labor relations continue with the consent of the employee. Essentially, this means that both a change in the owner of the organization’s property, and a change in its jurisdiction and its reorganization in themselves cannot serve as a basis for
termination of employment relations with employees (subject to the specified exception to this general rule). Only the refusal of an employee (including the organization’s managers) to continue working precisely in connection with a change in the owner of the organization’s property, its reorganization, or a change in jurisdiction (subordination) is grounds for termination of the employment contract in accordance with paragraph 6 of Article 77 of the Labor Code of the Russian Federation. In this case, the will of the employee who refuses to continue working in this situation must be expressed definitely and in writing. This can be done, for example, in a resignation letter submitted to the employer due to refusal to continue work due to the relevant (one of those listed in paragraph 6 of Article 77 of the Labor Code of the Russian Federation) circumstance. If this is not mentioned in the resignation letter, such a statement may be considered as an expression of the employee’s desire to terminate the employment contract on his own initiative (under Article 80 of the Labor Code of the Russian Federation).
An employee’s refusal to continue working due to a change in the essential terms of the employment contract or refusal to transfer (clauses 7, 9 of Article 77 of the Labor Code of the Russian Federation)
Two more cases of employee refusal are grounds for termination of the employment contract. The reasons for such a refusal, by virtue of paragraph 7 of Article 77 of the Labor Code of the Russian Federation, are a change in the essential terms of the employment contract, and by virtue of paragraph 9 of the same article, the relocation of the employer to another location.
If the Labor Code of the Russian Federation dealt with the termination of an employment contract in the event of an employee’s refusal to continue working due to a change in essential working conditions (systems and amounts of remuneration, benefits, working hours, establishment or abolition of part-time work, combination of professions, changes in categories and titles positions and others), i.e. by changing only some essential conditions of the employment contract, then the Labor Code of the Russian Federation provides for the termination of the employment contract in connection with the employee’s refusal to continue work in connection with a change in any essential condition of the employment contract (they are listed in part two of Article 57 of the Labor Code of the Russian Federation).
It should also be noted that if an employee refuses to be transferred to work in another locality (for example, to a branch or representative office of an organization), in the event that the organization itself does not relocate to this locality, the employment contract with him is terminated on the basis provided for in paragraph 7 of Article 77 Labor Code of the Russian Federation.
More on the topic: Refusal of an employee to continue working due to a number of circumstances (Clause 6, Article 77 of the Labor Code of the Russian Federation):
- § 7. Termination of an employment contract due to the employee’s refusal to continue working when the owner of the organization’s property changes or changes in jurisdiction
- § 8. Termination of an employment contract due to the employee’s refusal to continue working due to a change in the essential terms of the employment contract
- § 9. Termination of an employment contract due to the employee’s refusal to be transferred to another job due to health conditions
SALARY AND PERSONNEL | PERSONNEL RESPONSE
practicing accountant
Employee refusal to continue working
due to changing conditions
employment contract
In practice, there are often cases in which it is necessary to change working conditions. Accepting new conditions or refusing them is the right of every employee, because forced labor is prohibited by the Constitution of the Russian Federation. However, the procedure itself is not as simple as it seems, because any mistake in the employer’s actions can serve as grounds for the employee to go to court.
Changing the terms of an employment contract is allowed only by agreement between the employee and the employer, with the exception of cases provided for by the Labor Code of the Russian Federation (Article 72 of the Labor Code of the Russian Federation). Such exceptional situations are described in Art. 74 Labor Code of the Russian Federation. In accordance with the provisions of Art. 74 of the Labor Code of the Russian Federation, the employer has the right to initiate changes to the terms of the employment contract (including in terms of the scope of job responsibilities, the amount of remuneration), if they cannot remain in their previous form due to organizational or technological changes in the organization. A deviation from this rule is the condition on the labor function, which cannot be changed in the manner regulated by Art. 74 Labor Code of the Russian Federation. And the labor function represents the work of an employee corresponding to his position, according to the staffing table, profession, specialty, indicating qualifications, i.e., it designates a specific type of work entrusted to the employee. Therefore, any changes in job responsibilities can only be of a clarifying nature within the framework of the labor function stipulated by the employment contract, and its change in accordance with Art. 72.1 of the Labor Code of the Russian Federation will already be a transfer to another job. That is, if the labor function changes, dismiss workers for refusing to work under new conditions under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation is impossible, since the procedure established by Art. 74 of the Labor Code of the Russian Federation, in this case it does not apply to them. In this situation, it is necessary to formalize the transfer of employees.
So, the employer is given the right to change the terms of the employment contract (with the exception of changes in the employee’s labor function) on his own initiative in the case when, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons) , the terms of the employment contract determined by the parties cannot be preserved.
IMPORTANT IN WORK
An employee’s refusal to sign an additional agreement is essentially a refusal to continue working under new conditions.
At the same time, the employer is obliged to notify the employee in writing no later than two months in advance about upcoming changes to the terms of the employment contract determined by the parties, as well as about the reasons that necessitated such changes, unless otherwise provided by the Labor Code of the Russian Federation (part two of Article 74 of the Labor Code of the Russian Federation) . After the expiration of the notice period, the new conditions of employment contracts determined by the employer come into force.
If the employee does not agree to work under the new conditions, then the employer is obliged to offer him in writing another job available to the employer, which the employee can perform taking into account his state of health (part three of Article 74 of the Labor Code of the Russian Federation).
In accordance with part four of Art. 74 of the Labor Code of the Russian Federation, in the absence of the specified work or the employee’s refusal of the proposed work, the employment contract is terminated in accordance with clause 7 of part one of Art. 77 of the Labor Code of the Russian Federation – an employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties.
POSITION OF THE COURT
Dismissal under clause 7 of part one of Art. 77 of the Labor Code of the Russian Federation is not a dismissal at the initiative of the employer, and therefore the temporary disability of an employee is not an obstacle to registering a dismissal.
Appeal rulings of the Moscow City Court dated October 31, 2013 No. 11-35710/13 and dated June 20, 2013 No. 11-19001/13.
An employee’s disagreement to work under changed conditions can be evidenced by a separate document drawn up and signed by him or her, or a refusal note made by the employee on the employer’s notification of upcoming changes to the terms of the contract. In judicial practice, an employee’s refusal to sign an additional agreement to an employment contract (including when such a refusal was recorded by the employer by drawing up an act) is also regarded as the employee’s refusal to continue working in connection with a change in certain conditions of the employment contract (determination of the Moscow City Court dated 26.01. 2012 No. 4g/9-207, rulings of the Investigative Committee for civil cases of the Moscow City Court dated 06.06.2011 No. 33-17164 and dated 08.11.2010 No. 33-34199).
We note that the obligation to prove the circumstances surrounding the change in the terms of the employment contract in the manner provided for in Art. 74 of the Labor Code of the Russian Federation, is entrusted to the employer (clause 21 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).
GOOD TO KNOW
Read more about the justification for reducing an employee’s wages in the material of the same name, “Reducing wages” (Bortnikov V.V., “Simplified Accounting,” No. 2, February 2015).
A difficult financial situation in itself cannot be considered as a reason for changing the terms of the employment contract (paragraph “d”, paragraph 2 of the Generalization of the practice of consideration by the courts of the Chelyabinsk region of civil cases in labor disputes, 2003, Chelyabinsk). To change the terms of employment contracts with employees, the employer must have evidence that there have been changes in organizational or technological working conditions, for example, structural reorganization of production (clause 21 of Resolution No. 2), refusal of certain areas of activity (Cassation ruling of the Investigative Committee for Civil Cases of the Saratov Regional court dated December 24, 2009), etc.
Due to organizational and technological changes, it is theoretically possible to change such a condition of the employment contract as the salary amount. However, in practice, in our opinion, it is quite difficult to justify that any changes in organizational and technological working conditions lead to the need to change only the salary, while the remaining terms of the employment contract remain the same. According to part three of Art. 129 of the Labor Code of the Russian Federation, salary is a fixed amount of remuneration for an employee for the performance of labor (official) duties of a certain complexity for a calendar month. Accordingly, if after a change in organizational or technological conditions the complexity of labor remains the same, a reduction in salaries is impossible.
GOOD TO KNOW
When resolving disputes, judges proceed from the clarifications of the Supreme Court of the Russian Federation (Resolution No. 2), as well as from the fact that the question of the presence of organizational or technological changes in working conditions that entailed the need to change the terms of the employment contract must be assessed by the court based on the specifics of the activities of each organization.
In their decisions, courts often refer to the position of the Constitutional Court of the Russian Federation, namely to the Determination of May 11, 2012 No. 694-O, which states that part one of Art. 74 of the Labor Code of the Russian Federation, providing for an exception to the general rule on changing the terms of an employment contract determined by the parties only by agreement of the parties (Article 72 of the Labor Code of the Russian Federation) and the possibility of unilateral change of such conditions by the employer, at the same time limits this right to cases of impossibility of maintaining the previous conditions due to changes in organizational or technological working conditions. At the same time, the legislator in the same article of the Labor Code of the Russian Federation established guarantees provided to the employee in the event of a unilateral change by the employer of the terms of the employment contract: prohibition of changing the employee’s labor function (part one); determining the minimum two-month period (unless another period is provided by law) for notifying an employee about upcoming changes and the reasons that caused them (part two); the obligation of the employer, if the employee does not agree to work under the new conditions, to offer him in writing another available job that the employee can perform taking into account his state of health (part three); prohibition of worsening the employee’s position in comparison with the established collective agreement, agreement when changing the terms of the employment contract (part eight).
Such legal regulation is intended to provide the employee with the opportunity to continue working with the same employer or to provide the employee with time sufficient to make a decision on dismissal and search for a new job, and cannot be considered as violating the rights of citizens (Determination of the Constitutional Court of the Russian Federation dated September 29, 2011 No. 1165 -O-O).
POSITION OF THE COURT
The dismissal due to the employee’s refusal to continue working under the new conditions in terms of content and procedure was carried out in violation of labor legislation, since all the documents underlying the dismissal contained information that the employee’s previous position was excluded from the staffing table.
Determination of the Vologda Regional Court dated October 16, 2013 No. 33-4560/2013.
The Constitutional Court of the Russian Federation has repeatedly noted that, implementing the rights enshrined in the Constitution of the Russian Federation, the employer, in order to carry out effective economic activity and rational property management, has the right to independently, under his own responsibility, make the necessary personnel decisions, while ensuring in accordance with the requirements of Art. 37 of the Constitution of the Russian Federation enshrined in labor legislation guarantees the labor rights of workers.
According to the legal position expressed by the Constitutional Court of the Russian Federation in the Determination of May 11, 2012 No. 694-O, part four of Art. 74 of the Labor Code of the Russian Federation, which stipulates that if the employer does not have the appropriate work or the employee refuses the offered work, the employment contract is terminated, in systematic connection with clause 7 of part one of Art. 77 of the Labor Code of the Russian Federation is aimed at preventing situations where an employee, while formally maintaining an employment relationship, cannot be involved in the performance of labor duties, takes into account the need to maintain a balance of interests of the employee and the employer, and therefore cannot be regarded as violating the rights of employees.
GOOD TO KNOW
When checking whether an employee’s labor function is preserved under new conditions, courts usually check both the formal characteristics and the essence of future work: whether the name of the position in the staffing table changes, whether and to what extent the scope and content of job responsibilities change. If there are signs of transfer to another position, the employer’s actions to unilaterally change the terms of the employment contract are considered unlawful. As a result, the dismissal of an employee under clause 7 of part one of Art. 77 Labor Code of the Russian Federation.
Quite often, employers do not legally change the scope of their subordinates’ job responsibilities and/or their pay.
It should be noted that a decrease in sales and a deterioration in the financial position of an organization are not considered by the courts as reasons allowing the employer, in accordance with Art. 74 of the Labor Code of the Russian Federation to change the terms of the employment contract. The courts indicate that such circumstances do not indicate changes in organizational and technological working conditions (Determination of the Moscow Regional Court dated September 14, 2010 No. 33-17729, Review of cassation practice of the Supreme Court of the Komi Republic in civil cases for May 2009).
IMPORTANT IN WORK
New conditions proposed by the employer in accordance with Art. 74 of the Labor Code of the Russian Federation cannot imply changes in the employee’s labor function.
Special categories of workers
It should be noted that the dismissal procedure described above does not apply to all employees who refuse to work under the new conditions.
Yes, Art. 261 of the Labor Code of the Russian Federation establishes that termination of an employment contract with women who have children under 3 years of age, single mothers raising a child under 14 years of age (a disabled child under 18 years of age), and other persons raising these children without a mother, according to the employer's initiative is not allowed (except for dismissal on the grounds provided for in clauses 1, 5–8, 10 or 11 of the first part of Article 81 or clause 2 of Article 336 of the Labor Code of the Russian Federation).
Consequently, termination of an employment contract with a single mother raising a child under the age of 14, in accordance with clause 2 of the first part of Art. 81 of the Labor Code of the Russian Federation in the event of her refusal to continue working, for example, part-time, is not allowed.
It seems that in this case, the position (staffing unit) occupied by such a worker can be reduced only when the woman is transferred with her consent to another job in the manner prescribed by Art. 72.1 Labor Code of the Russian Federation.
Moreover, in accordance with part four of Art. 66 of the Labor Code of the Russian Federation, as well as clause 4 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers (approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225), an entry about transfer to another permanent job must be made in a woman’s work book.
POSITION OF THE COURT
To single mothers within the meaning of part four of Art. 261 of the Labor Code of the Russian Federation may include a woman who is the only person actually exercising parental responsibilities for the upbringing and development of her children (natural or adopted) in accordance with family and other legislation, that is, raising them without a father, in particular in cases where the father child died, deprived of parental rights, limited parental rights, declared missing, incompetent (limitedly capable), due to health reasons cannot personally raise and support the child, is serving a sentence in institutions that carry out a prison sentence, evades raising children, or from protecting their rights and interests in other situations.
Clause 28 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1.
Sample entry in the work book about dismissal
due to the employee’s refusal to continue working under new conditions
| Entry no. | date | Admission Information for work, transfer to another permanent job, qualification, dismissal (indicating the reasons and reference to the article, clause of the law) | Name, date and document number, on the basis of which the entry was made |
||
|---|---|---|---|---|---|
| number | month | year | |||
| 1 | 2 | 3 | 4 | ||
| 15 | 06 | 11 | 2015 | The employment contract was terminated due to | Order |
| employee refusal to continue working | dated 06.11.2015 No. 75-k | ||||
| due to changes in certain | |||||
| parties to the terms of the employment contract, | |||||
| clause 7 of part one of article 77 of the Labor Code | |||||
| Code of the Russian Federation | Back|||||
A change in the owner of the organization’s property is not grounds for terminating employment contracts with other employees of the organization. If an employee refuses to continue working in connection with a change in the owner of the organization’s property, the employment contract is terminated in accordance with paragraph 6 of Article 77 of this Code. When the owner of an organization's property changes, a reduction in the number or staff of employees is allowed only after state registration of the transfer of ownership. A change in the jurisdiction (subordination) of an organization or its reorganization (merger, accession, division, separation, transformation) or a change in the type of state or municipal institution cannot be grounds for terminating employment contracts with employees of the organization or institution. (as amended by Federal Laws dated June 30, 2006 N 90-FZ, dated April 2, 2014 N 55-FZ) (see.
Methodology for dismissing employees according to paragraphs. 6–9 tbsp. 77 tk russian Federation
Procedure 1. Prepare documents confirming the entry into the Unified State Register of Legal Entities of information about the reorganization of the organization. These documents are indicated as the basis for an order to terminate the employment contract. 2. Issue an order for reorganization 3. Register the order in the journal for registering orders for the main activity 4. Notify employees about upcoming changes 5. Register notifications in the journal for registering notifications 6.
Receive from the employee a refusal to continue working in the form of a statement 7. Register a statement of refusal to work under the new conditions in the application registration journal 8. Issue an order to terminate the employment contract 9. Register the order in the order registration journal with a shelf life of 75 years 10.
According to the Tax Code of the Russian Federation, the taxpayer's expenses for wages include any accruals to employees in cash or in kind, incentive accruals and allowances, compensation accruals related to working hours or working conditions, bonuses and one-time incentive accruals, expenses associated with the maintenance of these employees, provided for by the norms legislation of the Russian Federation, labor (contracts) or collective agreements. Since the monetary compensation paid to the former head of the organization, his deputy and the chief accountant upon termination of the employment contract in connection with a change in the owner of the organization is provided for by the legislation of the Russian Federation (Article 181 of the Labor Code of the Russian Federation), for profit tax purposes the amount of this compensation can be taken into account as part of expenses for wages.
Dismissal due to change of ownership
Attention
Having not established any facts of abuse of rights in the actions of the dismissed person (concealing his disability), the court satisfied the plaintiff’s demands, reinstating him at work (Appeal ruling of the Lipetsk Regional Court dated July 28, 2014 N 33-1979/2014). Application of inappropriate grounds for dismissal The reason for this mistake is the employer’s misunderstanding of the current situation and the specific circumstances of the case, as well as ignorance of the norms of the Labor Code of the Russian Federation. It happens that the employer confuses the grounds for dismissal provided for in paragraph.
4 hours 1 tbsp. 81 and paragraph 2 of Art. 278 Labor Code of the Russian Federation. Arbitrage practice. The former director of the LLC was dismissed from her job under clause 4, part 1, art. 81 Labor Code of the Russian Federation.
1.3.23. employee refusal to continue working
The employer misinterpreted the employee’s refusal to sign a new employment contract, offered to her by the employer to re-sign in place of the existing one, as a refusal to continue working in connection with the reorganization of the company. The court found that refusal to renew an employment contract from one concluded for an indefinite period to a fixed-term one does not indicate a refusal to continue working, but only indicates a refusal to work under different terms of the employment contract. In this case, the employment contract previously concluded with the plaintiff for an indefinite period continued to apply.
Having recognized the application of the grounds for dismissal provided for in paragraph 6 of Part 1 of Art. 77 of the Labor Code of the Russian Federation, unfounded, the court reinstated the employee in her position (Appeal ruling of the Supreme Court of the Republic of Tatarstan dated December 11, 2014 in case No. 33-17042/2014)<3. <3 См.
Refusal of an employee to continue working due to a change of owner
Federal Law of December 21, 2001 N 178-FZ “On the privatization of state and municipal property”, Art. 217 Civil Code of the Russian Federation); - when property owned by an organization is converted into state property (last paragraph of paragraph 2 of Article 235 of the Civil Code of the Russian Federation); — when transferring state enterprises to municipal ownership and vice versa; - when transferring a federal state enterprise to the ownership of a constituent entity of the Russian Federation and vice versa. Please note: a change in the owner of the organization’s property does not occur if the composition of participants (shareholders) of the company changes, and there is no basis for terminating the employment contract under clause 4, part 1, art. 81 Labor Code of the Russian Federation. A change in the owner of the organization’s property may cause termination of the employment contract on the following grounds: 1) dismissal due to a change in the owner of the organization’s property (clause 4, part 1, art.
Important
Civil Code of the Russian Federation); - when transferring state enterprises to municipal ownership, and vice versa; - when transferring a federal state enterprise into the ownership of a constituent entity of the Russian Federation, and vice versa (clause 32 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”). Labor relations in the event of a change in the owner of the organization's property, a change in the jurisdiction of the organization, or its reorganization are regulated by Art. 75 of the Labor Code of the Russian Federation. According to this article, when there is a change in the owner of the organization’s property, the new owner, no later than three months from the date his ownership rights arise, has the right to terminate the employment contract with the head of the organization, his deputies and the chief accountant.
Based on clause 4, part 1, art.
For example, a newly formed enterprise does not need two directors, two chief accountants, 15 economists; 2) on what basis can employees be dismissed during the reorganization of an enterprise if they demand to continue relations with them on the previously valid terms of employment contracts; 3) is it necessary to make changes to employment contracts when there is a change in the owner of the organization’s property or reorganization; 4) on behalf of the new or old employer should there be an entry about dismissal in the work book during reorganization? Is it necessary to first make a record of the reorganization; 5) how should an employee’s refusal to continue working in a reorganized company be expressed if the procedure for establishing labor relations during a reorganization or change of owner is not regulated? Let's find the answers to them.
From this we can conclude that the employer can notify the employee at any time about changes taking place. But given that, as a rule, a change of ownership or reorganization takes a fairly long period of time, in order to avoid disputes, we consider it advisable to notify employees about upcoming changes in advance. To terminate an employment contract with an employee under clause.
6 hours 1 tbsp. 77 of the Labor Code of the Russian Federation requires only a written refusal of the employee to continue working in connection with a change in the owner of the organization’s property. This is confirmed by judicial practice. Thus, the court indicated that labor legislation does not establish a deadline for an employee to file a resignation letter due to refusal to continue working when the owner of the organization’s property changes.
The court, in the presence of the plaintiff’s written refusal to continue working in connection with a change in the owner of the institution’s property, came to the conclusion that the defendant had an obligation to dismiss plaintiff T. under clause 6, part 1, art. 77 of the Labor Code of the Russian Federation due to her refusal to continue work in connection with a change in the owner of the organization’s property. In this case, the court considered, we are not talking about the dismissal of an employee at the initiative of the employer under clause 4 of part 1 of Art. 81 of the Labor Code of the Russian Federation (change of owner of the organization’s property in relation to the head of the organization, his deputies and the chief accountant), when, in accordance with Part 1 of Art. 75 of the Labor Code of the Russian Federation, the exclusive right to terminate the employment contract with these employees belongs to the new owner of the organization’s property, and the dismissal of an employee on another basis, namely under clause 6, part 1, art.
From this we can conclude that the employer can notify the employee at any time about changes taking place. But given that, as a rule, a change of ownership or reorganization takes a fairly long period of time, in order to avoid disputes, we consider it advisable to notify employees about upcoming changes in advance. To terminate an employment contract with an employee under clause 6, part 1, art. 77 of the Labor Code of the Russian Federation requires only a written refusal of the employee to continue working in connection with a change in the owner of the organization’s property. This is confirmed by judicial practice. Thus, the court indicated that labor legislation does not establish a deadline for an employee to file a resignation letter due to refusal to continue working when the owner of the organization’s property changes.
Methodology for dismissing employees according to paragraphs. 6–9 tbsp. 77 tk russian Federation
The court, in the presence of the plaintiff’s written refusal to continue working in connection with a change in the owner of the institution’s property, came to the conclusion that the defendant had an obligation to dismiss plaintiff T. under clause 6, part 1, art. 77 of the Labor Code of the Russian Federation due to her refusal to continue work in connection with a change in the owner of the organization’s property. In this case, the court considered, we are not talking about the dismissal of an employee at the initiative of the employer under paragraph.
4 hours 1 tbsp. 81 of the Labor Code of the Russian Federation (change of owner of the organization’s property in relation to the head of the organization, his deputies and the chief accountant), when, in accordance with Part 1 of Art. 75 of the Labor Code of the Russian Federation, the exclusive right to terminate the employment contract with these employees belongs to the new owner of the organization’s property, and the dismissal of an employee on another basis, namely under clause 6, part 1, art.
1.3.23. employee refusal to continue working
The employer's labor rights and obligations passed to the legal entity not from the moment of state registration of the transfer of ownership of property previously in use, but from the moment the relevant entries were made in the Unified State Register of Legal Entities on the state registration of changes made to the constituent documents of the legal entity, and transfer of the institution’s property from the old owner - the Russian Federation to the new one - the Chuvash Republic, which, as follows from the case materials, was carried out on March 6, 2012.
The company is reorganizing: we are preparing personnel documents
Info
The arguments of the defendant's complaint about the absence in the Labor Code of the Russian Federation of norms regulating the filing by an employee of an application for refusal to continue working in connection with a change in the owner of the organization's property and the impossibility in this regard to dismiss the plaintiff on the specified grounds, the judicial panel considers to be based on an incorrect interpretation of the norms of labor legislation and in does not take into account, since in order to dismiss an employee under clause 6, part 1, art. 77 of the Labor Code of the Russian Federation only requires the presence of the employee’s refusal to continue working in connection with a change in the owner of the organization’s property, and the presence of such a refusal, expressed in writing, is confirmed by the evidence presented in the case and is not disputed by the defendant himself. Thus, the foregoing convincingly demonstrates that the grounds for dismissal provided for in paragraph.
4 hours 1 tbsp. 81 of the Labor Code of the Russian Federation, is very “insidious”.
Since dismissal on this basis is permissible only in relation to the manager, his deputies and the chief accountant, and the plaintiffs did not hold these positions, the court declared the dismissals illegal and changed the wording of the grounds for dismissal from clause 4 of part 1 of Art. 81 of the Labor Code of the Russian Federation for voluntary dismissals in accordance with the requirements stated by the plaintiffs. A change in the jurisdiction (subordination) of an organization or its reorganization (merger, accession, division, spin-off, transformation) cannot be grounds for terminating employment contracts with employees of the organization.
If the employee refuses to continue working in the cases provided for in Part 5 of Art. 75 of the Labor Code of the Russian Federation, the employment contract is terminated in accordance with clause 6, part 1, art. 77 Labor Code of the Russian Federation. The Labor Code of the Russian Federation does not define the procedure for notifying an employee about upcoming changes, nor does it establish any deadline for such notification.
The order should be printed and familiarized with it to the employee against signature - at the bottom of the order the employee must sign and put the date of familiarization. 11. Pay wages, monetary compensation for unused vacation and other payments due based on the calculation note 12.
Make an entry about the termination of the contract in the work book. The work book is filled out according to the following example: Entry number Date Information about hiring, transfer to another permanent job, qualifications, dismissal (indicating the reasons and reference to the article, paragraph of the law) Name, date and number of the document, on the basis of which the entry was made date month year 1 2 3 4 3 20 08 2013 The employment contract was terminated due to the employee’s refusal to continue work due to a change in the owner of the organization’s property, paragraph 6 of part one of Article 77 of the Labor Code of the Russian Federation Order No. 14k dated 08/20/2013 .
Refusal of an employee to continue working in connection with the reorganization of the organization
A change in jurisdiction (subordination) is most often caused by institutional restructuring (for example, an educational institution of the Russian Ministry of Education is transferred to the jurisdiction of the Russian Ministry of Education and Science) or structural transformations (for example, in connection with the abolition of Roszdrav, enterprises, institutions and organizations under its jurisdiction are transferred to the jurisdiction of the Russian Ministry of Health and Social Development). The procedure for reorganizing a legal entity is determined by Articles 57 - 60 of the Civil Code of the Russian Federation.
In accordance with part five of Article 75 of the Labor Code of the Russian Federation, a change in the jurisdiction (subordination) of an organization, as well as its reorganization (merger, accession, division, spin-off, transformation) cannot be a basis for terminating employment contracts with employees of the organization. And only if the employee refuses to continue working in these cases, the employment contract is terminated in accordance with paragraph 6 of part one of Article 77 of the Labor Code of the Russian Federation.
A change in the jurisdiction (subordination) of an organization applies to organizations under the jurisdiction of state bodies or local governments (for example, state and municipal unitary enterprises, educational institutions, scientific and research organizations).
In the order and in the work book, it is enough to provide wording that generally reflects the essence of the changes that have occurred in the organization (“in connection with a change in the owner of property”, “in connection with a change in the jurisdiction (subordination) of the organization”, “in connection with the reorganization of the organization”). Thus, in the order to terminate an employment contract in connection with refusal to continue work in connection with the transformation of a limited liability company into an open joint-stock company, the following information is provided: Fragment of the order According to Form N T-8 In connection with refusal to continue work in connection with the reorganization ───────────────────────────────────────── ───────── ──────────────── Grounds for dismissal of the Organization, paragraph 6 of part one of Article 77 of the Labor Code ────────────────── ──── ───────────────────────────────────────── ─── Russian Federation.
Attention
Issue a work book Result: entry in the book of accounting for the movement of work books. Deadline: day of dismissal. 16. Issue to the employee a certificate of the amount of earnings for the two calendar years preceding the year of termination of work, and other requested copies of documents related to work based on application 17.
Notify the military commissariat at the place of registration of the employee. Notification must be in writing by registered mail. In this case, a copy of the notice with a postal receipt must be retained as evidence of the notice.
Deadline: Two weeks This is all that needs to be completed as part of the procedure for the conditions you specified in the questionnaire. All that remains is to fill out and print the documents and follow the instructions sequentially.
An employment contract can be terminated if the employee refuses to continue working due to a change in the terms of the employment contract determined by the parties (Part 4, Article 74 of the Labor Code of the Russian Federation) (Clause 7, Part 1, Article 77 of the Labor Code of the Russian Federation).
Article 74 of the Labor Code of the Russian Federation provides that in the case when, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be preserved, they are allowed change at the initiative of the employer, with the exception of changes in the employee’s labor function.
The Supreme Court of the Russian Federation indicated that such changes include changes in equipment and production technology, improvement of jobs based on their certification, and structural reorganization of production. At the same time, the introduced changes should not worsen the employee’s position in comparison with the terms of the collective agreement or agreement.
At the same time, courts at various levels, including the Constitutional Court of the Russian Federation, have repeatedly noted that the economic feasibility of introducing changes, their validity and necessity remain at the discretion of the employer.
The Moscow City Court indicated that the employer, in order to carry out effective economic activities and rational property management, has the right to independently, under his own responsibility, make the necessary personnel decisions, while ensuring the guarantees of the labor rights of employees enshrined in labor legislation. Making a decision to change organizational working conditions or reduce staff falls within the exclusive competence of the employer, who has the right to terminate the employment contract with the employee for one reason or another, depending on the reorganization path chosen by the owner.
At the same time, the Labor Code of the Russian Federation does not prohibit the employer, if circumstances arise simultaneously that require the organization to change the essential terms of the employment contract with employees and reduce the staff of specific individuals, to initiate both procedures at once. The main criterion for the legality of the employer's actions in this case will be compliance with the procedure established by law for taking measures to change the terms of the employment contract and reduce staff.
Thus, the reasons for the employer to change technological or organizational working conditions do not matter to determine the legality of termination of the employment contract. But it must be taken into account that a change in such working conditions really must take place.
Thus, refusing to satisfy the demands for reinstatement and recovery of average earnings for the period of forced absence, the court of first instance correctly noted that at LLC “S” there were organizational and technological changes in working conditions, which led to changes in the working hours of the electrician, about of which V. was notified. Since the latter refused to accept these changes, the employer had the right to terminate the employment contract with him under clause 7, part 1, art. 77 Labor Code of the Russian Federation.
Due to the ambiguity of the concept of “organizational changes in working conditions,” employers often try to pass off a change in the organizational structure as a change in organizational working conditions. At the same time, given that the name of the structural unit is a stumbling block for law enforcement officials, they periodically replace Art. 74 of the Labor Code of the Russian Federation cases of movement or transfer. Thus, if the name of the structural unit is not agreed upon by the parties in the employment contract, its change is allowed without complying with the conditions of Art. 74 of the Labor Code of the Russian Federation, since this event is the movement of an employee. In the same case, when the name of the structural unit is indicated in the employment contract, change it in accordance with Art. 74 of the Labor Code of the Russian Federation is very risky, given the prohibition established by Art. 72.1 of the Labor Code of the Russian Federation and unresolved conflict.
A typical example is when the employer incorrectly classified the transfer and fired the employee under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation, the following case occurs: the employer had no grounds for dismissing the employee under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation, since there was no change in the terms of the employment contract determined by the parties. The liquidation of a structural department in the form of a legal service cannot be recognized as a change in the terms of the employment contract determined by the parties, since the plaintiff’s labor function was preserved and the amount of remuneration remained the same. Moreover, a change in the name of the unit in which the employee worked and subordination cannot indicate a change in the terms of the employment contract determined by the parties.
In another case, the court noted: from the staffing table it follows that the position of fourth-class car driver, which was occupied by the plaintiff, is not excluded. In the notification dated March 23, 2011, the defendant did not indicate the reasons that necessitated the need to change the terms of the employment contract. In this regard, the judicial panel found it legitimate to conclude by the court of first instance that no changes were made in the organizational structure of production or technological working conditions at OJSC “L”. Consequently, the employer had no grounds for changing the terms of the employment contract with the plaintiff and terminating the employment contract with him, in connection with the refusal to continue work due to a change in the terms of the employment contract determined by the parties.
Changes in the structural organization of work at an employer can be recognized as organizational changes in cases where, as a result of objective reasons, there is a real redistribution of functionality and the order of interaction between individual employees and structural units, not only the structure, but also the system and organization of work of employees change. It is not enough to just swap departments and shuffle their functionality.
Thus, the court emphasized that the change in the terms of the employment contract determined by the parties was a consequence of organizational changes in the management structure with the redistribution of the load among departments or specific positions, and the dismissal of the plaintiff by the defendant was carried out in full compliance with the requirements of the law. The reduction in the scope of the employee’s job responsibilities specified in the employment contract was caused by the defendant’s structural reorganization and the reassignment of the department; the employer had grounds for terminating the employment contract with the employee, taking into account compliance with other requirements provided for in Art. 74 Labor Code of the Russian Federation. As a result of changes in the terms of the employment contract determined by the parties, changes occurred in the management structure with a redistribution of the load. A change in the scope of responsibilities for a specific position does not constitute a change in the employee’s job function.
In another case, the court indicated that the mere fact of structural reorganization of divisions with the transfer of functions of one of them to another cannot be regarded as a change in organizational or technological working conditions (changes in equipment and production technology, improvement of jobs based on their certification, structural reorganization of production).
It is necessary to pay attention to the fact that, as E.G. Sitnikova and N.V. Senatorova rightly note, the deterioration of the employer’s financial situation is not a reason for changing the terms of employment contracts with employees in accordance with Art. 74 Labor Code of the Russian Federation. Indirectly, such reasons can serve as the basis for subsequent structural reorganization, reorientation of the company’s activities, etc. But the deterioration of the organization's financial situation in itself cannot be a reason for changing the terms of employment contracts and terminating them in the future.
It should also be taken into account that temporary absence from work due to any temporary reasons not caused by organizational or technological changes is downtime and not a change in the terms of the employment contract and is subject to appropriate qualifications. Apply in this case Art. 74 of the Labor Code of the Russian Federation is completely incorrect.
For example, according to the employer’s order, due to the lack of a sufficient amount of work and the impossibility of full funding, working days from June 29, 2009 were ordered to be considered downtime due to the employer’s fault. The employer paid for this time in the amount of 2/3 of the average salary. The plaintiff was sent a notice of a reduction in salary in connection with the above order, she was warned that in case of disagreement she would be dismissed under clause 7 of part 1 of Art. 77 Labor Code of the Russian Federation. The court concluded that the plaintiff’s dismissal was not associated with changes in organizational or technological working conditions, changes in equipment and production technology, or with the improvement of jobs based on their certification, but with a decrease in the volume of work and a deterioration in the financial situation. Under such circumstances, the dismissal of the plaintiff under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation was declared illegal, as it contradicts the requirements of Art. 74 Labor Code of the Russian Federation.
Changing the terms of an employment contract should also be distinguished from a transfer. In particular, Art. 74 of the Labor Code of the Russian Federation stipulates that it is permissible to change any terms of the employment contract except for the labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; the specific type of work entrusted to the employee, Article 15 of the Labor Code of the Russian Federation). This conclusion is confirmed by emerging judicial practice.
Thus, the employer excluded from the staff the position of the chief legal adviser of the management apparatus and included in the staffing table of the branch the position of the chief legal adviser of the business support group. This confirms that when the new staffing table was approved, the position of the chief legal adviser of the administration was not retained. Without denying the employer’s exclusive right to carry out organizational and staffing activities, exclude and introduce staff positions, the court concluded that in this case the employer had grounds for terminating the employment contract with employees on the grounds of staff reduction under clause 2 of part 1 of Art. 81 Labor Code of the Russian Federation. Grounds for application of the provisions of Art. 74 of the Labor Code of the Russian Federation, even if we proceed from the position of the employer that the plaintiff held the position of the chief legal adviser of the apparatus at the time of dismissal, there is no legal relationship that arose, since as a result of the approval of the new staffing table, the position of the chief legal adviser of the apparatus under the management was not retained. Taking into account the above, the court came to the conclusion that the dismissal of the plaintiff under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation was produced illegally.
In another case, the court considered that changes in the staffing table and the removal of an employee’s position from the energy-mechanical department were associated with improving the organizational structure of the plant. At the same time, the employee’s functional responsibilities were changed. As a result of improving the organizational structure of the plant, a change in the employee’s labor function took place. This is contrary to the norms of labor legislation of the Russian Federation. Also, in violation of clause 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, the employee’s position worsened compared to the previously existing terms of the contract, in addition, the employee’s salary was reduced. The employer did not provide evidence to the contrary, or that the employee was offered other available vacant positions, including electrical engineer. Taking into account the above, the court satisfied the employee’s demands to recognize the dismissal as illegal and reinstate him in his previously held position of head of the energy-mechanical department - chief power engineer.
If the employer’s change in certain terms of the employment contract is due to objective reasons, namely a change in the organization of work, the employee’s labor function has not been changed, then the court may find it lawful to notify employees about upcoming changes and possible termination of the employment contract on the basis being analyzed.
Thus, the court indicated that the content of an employee’s specific actions may vary depending on the time, conditions and circumstances that he may encounter while performing his job duties. In the process of organizational, technical and economic development, mastering modern management technologies, introducing the latest technical means, taking measures to improve organization and increase labor efficiency, it is possible to change the range of responsibilities of employees in comparison with those established by the corresponding characteristics, as a result of which a change by the employer in the employee’s job responsibilities is not a change his labor function in the sense of the provisions of Art. Art. 57, 60, 72 Labor Code of the Russian Federation. The job description is a local normative act, which is adopted and amended by the employer within the limits of his competence (Articles 8, 12 of the Labor Code of the Russian Federation).
Under such circumstances, the court came to the conclusion that the employer’s change in certain terms of the employment contract in this case was due to objective reasons, namely a change in the organization of work, the employee’s labor function was not changed, the change in the terms of the employment contract did not worsen the employee’s position compared to the terms of the collective agreement or agreement .
To correctly terminate an employment contract on the basis being analyzed, it is necessary to clearly understand which changes in the organization of the labor process are changes in the terms of the employment contract that provide grounds for terminating the employment contract on the basis being analyzed, and which are not. In particular, the withdrawal of additional payments from the employee in accordance with Art. 151 of the Labor Code of the Russian Federation or a change in the work schedule without changing the working hours will not change the terms of the employment contract.
The court considered the following situation. As follows from the plaintiff’s explanations, she previously had a work schedule: five working days, two days off, since March 2009 she worked in a new mode; The new work schedule provided for work: three days on, three days off. Thus, changing the work schedule to a new schedule in May 2009 is not in itself a change in significant working conditions; it took place without changing the working hours, i.e. without changing essential working conditions. The plaintiff’s absence from work in connection with the drawing up of a new work schedule for May 2009 cannot be considered lawful; accordingly, there was absenteeism without good reason, which was a legal basis for the plaintiff’s dismissal on the grounds of paragraphs. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation.
Analysis of the provisions of Art. 74 and paragraph 7, part 1, art. 77 of the Labor Code of the Russian Federation allows us to conclude that the employer is obliged to notify the employee of upcoming changes to the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, in writing no later than two months in advance. The notice period is not preemptive. Taking into account the wording of Art. 74 of the Labor Code of the Russian Federation, notification can be made earlier. The notification is drawn up in writing; the notification must indicate: the reason for the changes that have occurred, the changes themselves, the deadline for their introduction, the employee’s right to refuse to continue working in the changed conditions, an explanation of the consequences of refusing to continue working. If an employee refuses to continue working under new conditions, he must be offered available vacancies that correspond to the employee’s qualifications and experience, and are not contraindicated for health reasons. It is permissible for the employer to request from the employee documents about his education (if he did not provide them upon admission or has a different education), as well as about his state of health in order to ensure a more complete offer of vacancies. In the event that the employee refuses to provide such documents, the employer is relieved of responsibility for failure to provide vacancies for which the employer was not notified of the employee’s suitability. The practice is based on the employer’s obligation to repeatedly offer available vacancies to the employee, at least upon notice and before dismissal. The Labor Code of the Russian Federation does not contain such a requirement, although it can be considered justified in the case where the list of vacancies at the employer has changed by the time the employee’s warning about changing the terms of the employment contract expires.
If there is no other job in the organization or the employee refuses it, the employment contract is subject to termination in accordance with clause 7, part 1, art. 77 Labor Code of the Russian Federation. At the same time, the employee is warned two months in advance about the change in the employment contract, and not about its termination, since the employer may have vacancies that he is obliged to offer to the employee. In addition, despite the absence of such a norm in the Labor Code of the Russian Federation, we believe that the employee also has the right to withdraw his refusal to continue working in changed conditions.
Thus, the court came to the conclusion that there is no need to notify the employee in writing about the termination of the employment relationship two months in advance, but only that there is an obligation of the employer to notify the employee two months in advance about upcoming changes in the employment contract.
In another case, the court considered that the employer complied with Art. 74 of the Labor Code of the Russian Federation is the obligation to offer the employee a vacant position in writing if the latter does not agree to work under the new conditions. Since the employee refused to work under the new conditions and the proposed vacant positions, and also did not provide evidence of a worsening of his situation in connection with the change in working hours, the court found that the dismissal of the employee was made legally in accordance with clause 7 of part 1 of Art. . 77 of the Labor Code of the Russian Federation, as a result of which there are no grounds for declaring the order illegal and reinstating the plaintiff at work.