"Personnel. HR records management", 2012, N 8
REPLACEMENT OF THE ABSENT WORKER
The article discusses options for replacing an absent employee. The author with examples examines the documentation of the relevant personnel operations.
Quite often, in the practice of organizations, a situation arises when it is necessary to replace a temporarily absent employee. An employee may be absent from work for various reasons. Accordingly, in the temporary absence of a specialist, work on this site is suspended. If the employer does not have the opportunity to wait for his return, then there is an acute question about who and how it can be replaced. Apparently, for this reason, such a translation is considered by the legislation as bearing an exceptional, extraordinary nature. At the same time, if an employee is absent one or two days, his absence, as a rule, cannot lead to negative consequences for the financial and economic activity of an enterprise. Very often, in such cases, the missing or no one replaces, or another employee of his "replaces" without any documentation. Another thing, when it turns out that the employee will be absent from work for several weeks or months.
Personnel permutations of this kind almost always raise many questions. To begin with, the employee is not always happy to work on "alien" place The managerial and psychological issues are supplemented with legal subtleties of documenting this personnel operation.
The legal framework for the replacement of the absent employee is currently very scarce: if you do not consider the Labor Code of the Russian Federation, then among the normative acts you can, perhaps, mention only one thing – the joint Explanation of the USSR State Committee on Labor and Social Affairs and the Secretariat of the All-Union Central Council of Trade Unions
At the same time, several articles of the Labor Code of the Russian Federation do not provide exhaustive information on this issue, and another regulatory document was adopted so long ago that it is in many ways contrary to the Code.
The above regulatory documents, based on the characteristics of replacing an absent specialist, give us two different concepts: "temporary substitution" and "Acting as a temporarily absent employee".
The definition of temporary sub-office was given in paragraph 1 of the Clarification of the State Labor Committee and the Secretariat of the All-Union Central Council of Trade Unions. Here, temporary replacement is considered to be the performance of official duties for the position of a temporarily absent employee, when this is caused by production necessity.
That is, temporary substitution is characterized as follows:
– the need for it arises only in case of production need;
– an employee is relieved for a fixed period of time from fulfilling his or her direct duties and transferred to the position of an absent employee in order to fulfill his duties.
Referring to Art.
Part 3 of Art.
– first, such a translation is allowed only if the work performed is not contraindicated for health reasons;
– secondly, the replacement of an absent employee is always urgent: the duration of transfer to another job to replace an absent employee cannot exceed one month in emergency situations, and in the absence of emergency events the transfer period expires with the work of the replaced professional;
– thirdly, if the transfer is caused by extraordinary circumstances, the employee’s consent is not required. If the employee is ready to replace the absent colleague in the absence of emergency events, then such a translation requires his consent;
– fourth, the remuneration of the transferred employee should not be lower than the average earnings of his previous job;
– Fifthly, if the replacement of an absent employee, the necessity of which is caused by extraordinary events, requires lower qualifications, such translation is allowed only with the written consent of the employee.
Acting as a temporarily absent employee
Concept "Acting as a temporarily absent employee" can be derived from the contents of art.
Under the duties of a temporarily absent employee without release from his main job means the replacement of an employee who is absent due to illness, vacation, business trip and for other reasons, when in accordance with the current legislation a job (position) is preserved.
From this definition, we can conclude about the features of this phenomenon:
– the employee works instead of another person who is temporarily absent from work;
– another employee, when performing the duties of his colleague, is not relieved of the performance of his own job duties.
In practice, they often make such a common mistake: they appoint one of the employees to act as acting officer (and on.) For the vacant position. As a rule, such a situation is common with respect to the management staff. Here we note again that the temporary discharge of duties (interim) is the replacement of an employee who is temporarily absent. Therefore, it is not possible to temporarily fulfill the duties of a vacant position, waiting for the recruitment of a specialist.
Legislative consolidation of this prohibition is contained in the Explanation of the State Labor Committee and the Secretariat of the All-Union Central Council of Trade Unions. Paragraph 2 of this document states that the appointment of an employee acting as vacant positions is not allowed. Thus, since the time of the Labor Code of the Russian Federation, the concept of "acting" (and. о.) exists only for the case when a candidate for a vacant position is appointed temporarily in order to check it for compliance with the position held, with subsequent mandatory approval by a higher authority.
Approval procedure and. about. the post is disclosed in the same paragraph 2 of the Explanation of the State Labor Committee and the Secretariat of the All-Union Central Council of Trade Unions. The head of the enterprise is obliged, no later than one month from the date of acceptance of the employee to work, to submit to the higher management body documents for his appointment to the position. This body within a month from the date of receipt of the documents should consider the issue and inform the manager about the results. In the case of non-approval of the position of the employee, adopted by the head is not from among the employees of the enterprise, he should be offered another job, taking into account the qualifications, work experience. In the absence of relevant work or refusal of the proposal, he shall be released from work on the grounds provided for by the legislation.
As we see, the employer is again limited to a monthly period for making a decision; therefore, a temporary replacement cannot last for months or even years.
If the enterprise does not have a higher organization that is authorized to approve and. about. in the post, then such an appointment and. about. for a vacant position is illegal. Having worked for a month under such conditions, the employee can safely claim to be issued a permanent transfer to this position.
Terms, payment, design features
Temporary substitution is always urgent. That is, you can not employee "Keep" in another position above the limits established by the legislation of the Russian Federation.
Temporary substitution in emergency situations, referred to in Part 2 and 3 of Art.
– other work is contraindicated for his health reasons, which must be confirmed by a medical certificate;
– the employer violates the rules and procedures for the temporary transfer established by the legislation: the deadline has been exceeded, the necessary documents have not been drawn up, etc.
In other cases, the employee is obliged to proceed to the duties. An unlawful refusal of an employee may result in the dismissal of clause 5 Part 1 of Art. 81 of the Labor Code of the Russian Federation. If the employee does not go to work at all, then it qualifies as absenteeism with all the ensuing adverse consequences for the employee. The fact is that temporary substitution is one of the few cases in which an employer has the right to demand that an employee do work that is not conditional on an employment contract (Art. 60 of the Labor Code of the Russian Federation).
Established in 1965, the Explanation of the USSR State Committee on Labor and Social Issues and the Secretariat of the All-Union Central Council of Trade Unions payment for temporary substitution was repeatedly the subject of legal proceedings and as a result was practically lost its force.
Moreover, this document is applied in the part that does not contradict the Labor Code of the Russian Federation. In the Labor Code of the Russian Federation, we find the answer to the question about the procedure for payment for replacing an absent employee in part 4 of art.
The payment of the transferred employee must correspond to the work performed, but not be lower than the average earnings of the previous job.
However, there are other cases where the need to replace a temporarily absent employee is not associated with any extraordinary events. We read about this in Part 1 of Art.
With temporary substitution, it is assumed that the employee for some time is exempt from the performance of their duties under the employment contract. It turns out that the transferable employee must also be temporarily replaced by someone else, otherwise the work will be already in another area. Therefore, if it is initially assumed that the employee will be absent for a long time, temporary substitution with his inherent limitations is not the best way out of this situation, and when deciding whether to replace an absent employee, it is advisable to resort to another option: assign the duties of a temporarily absent employee to another person without him release from the main job. As you can see, in this case, our employee should have time to work on two "fronts". Moreover, Part 2 of Art.
This situation is very similar to the combination of posts. The combination of positions (professions) is the fulfillment by the employee along with his main job, due to the employment contract, of additional work in another profession (position). Combining positions and performing the duties of a temporarily absent employee have similarities and differences, which are conveniently shown in the table.
Performing absentee duties