home Investment Replacing an employee during vacation. Rules for replacing a temporarily absent employee during vacation according to the Labor Code of the Russian Federation - sample documents and important subtleties Replacement of employees who have gone on vacation

Replacing an employee during vacation. Rules for replacing a temporarily absent employee during vacation according to the Labor Code of the Russian Federation - sample documents and important subtleties Replacement of employees who have gone on vacation

In any organization, a situation may arise when an employee is absent for a long time - sick, on vacation or a long business trip, studying outside of work, etc. However, the work must be done. Today we’ll talk about options for assigning the duties of a temporarily absent employee to another employee: we’ll tell you how to formalize such performance of duties, whether it is necessary to make an entry in the work book, and answer questions that arise along the way.

The Labor Code offers more than one option for fulfilling the duties of a temporarily absent employee:
- without release from work specified in the employment contract;
— temporary transfer;
— movement;
- part-time job;
- fixed-term employment contract.
Let's take a closer look at each of these options.

We use the internal resources of the organization

Combination or expansion of service areas. Based on Art. 60.2 of the Labor Code of the Russian Federation, an employee may be assigned to perform, during the established duration of the working day (shift), along with the work specified in the employment contract, additional work in a different or the same profession (position) for additional pay. If additional work is carried out in another profession (position), this will be a combination, and if in the same profession (position) - an expansion of service areas, an increase in the volume of work.

At the same time, Art. 60.2 of the Labor Code of the Russian Federation makes a reservation that in order to fulfill the duties of a temporarily absent employee without release from the work specified in the employment contract, the employee may be assigned additional work in either a different or the same profession (position).

The period during which the employee will perform additional work, its content and volume are determined by the employer with the written consent of the employee and formalized in an agreement. The same agreement also approves the amount of additional payment for additional work (Article 151 of the Labor Code of the Russian Federation) - either in a fixed amount or as a percentage of the salary (both for the main position and for the position being replaced).

I would like to focus your attention on paying for additional work. The Ministry of Health and Social Development in Letter dated March 12, 2012 N 22-2-897 explained that sometimes the performance of duties of an absent specialist may not be paid. This is possible when the job descriptions of certain categories of employees provide for cases of performing the duties of an absent specialist with a similar job function. In this case, the combination is part of the labor function and is not subject to payment.

Note. If the assigned work in another profession requires additional skills or education, assess whether the employee can perform it without compromising his work, otherwise it is better to use another replacement option.

However, the author does not agree with this position, and here's why. Involvement of an absent employee in temporary performance of duties at a position must in any case be carried out by the employer issuing an appropriate order (instruction), as required by Explanation of the State Committee for Labor of the USSR No. 30, All-Russian Central Council of Trade Unions No. 39 of December 29, 1965 “On the procedure for paying temporary substitution,” regardless of whether whether the possibility of such involvement is indicated in the employment contract or job description of the employee. In addition, Art. 151 of the Labor Code of the Russian Federation, the establishment of additional payment for performing additional work is also not made dependent on the presence or absence in the employment contract (job description) of an indication of the performance of the duties of the absent employee. Therefore, we believe that the employee for performing additional work is in any case entitled to an additional payment in the amount determined by the parties to the labor relationship.

Based on the agreement, an order is issued. It might look like this, for example:

Limited Liability Company "Vesna"

Order No. 41
On the assignment of additional work in order to combine positions

Due to the absence of a payroll accountant, Anokhina V.L. due to advanced training with separation from production on the basis of Art. 60.2 and 151 of the Labor Code of the Russian Federation

I order:
1. Instruct the senior accountant Volkova A.S. performing, during the established working hours, along with the work specified in the employment contract, additional work as a payroll accountant for additional payment.
2. Install Volkova A.S. monthly additional payment for performing additional work in order to combine positions in the amount of 12,000 rubles.
3. Determine the period of combination of Volkova A.S. as a payroll accountant from 05/15/2013 to 07/19/2013.

Reason: additional agreement dated May 14, 2013 to the employment contract dated August 5, 2009 N 9-08.

Director Medvedev /Medvedev A.D./

The following have been familiarized with the order:
accrual accountant
wages Anokhin, 05/14/2013 /Anokhina V.L./
senior accountant Volkova, 05.14.2013 /Volkova A.S./

Remember that the employee has the right to refuse to perform additional work ahead of schedule by notifying the employer in writing no later than three working days in advance (Article 60.2 of the Labor Code of the Russian Federation). The employer can also cancel the order to complete it ahead of schedule by notifying the employee of this within the same time frame.

Temporary transfer. A transfer is considered a permanent or temporary change in the labor function of the employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer (Article 72.1 of the Labor Code of the Russian Federation).

More specifically, the procedure for temporary transfers is defined in Art. 72.2 Labor Code of the Russian Federation. In particular, according to this rule, an employee can be temporarily transferred to another job with the same employer for a period of up to one year. If a temporary transfer is carried out to replace a temporarily absent employee, whose job remains in accordance with the law, the period of such transfer may be more than a year (for example, for the period of parental leave for a child under 1.5 years of age).

In any case, a temporary transfer for the period of replacement of an absent employee is permitted only by agreement of the parties, concluded in writing.

The conditions of the temporary transfer and its duration are stipulated by the parties in an additional agreement to the employment contract. Based on such an agreement, a transfer order is issued. Let us remind you that the unified forms of orders established by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1, are not mandatory for use since 2013, therefore a transfer order can be issued in a form approved by the organization. In this case, it is important to indicate in the order the nature of the transfer - temporary and, as a basis, provide the details of the transfer agreement - its date and number. The employee must be familiarized with such an order against signature.

Note. If, at the end of the transfer period, the employee’s previous job is not provided, and he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer loses force and the transfer is considered permanent.

Question: Is the employee’s signature on the temporary transfer order sufficient for the transfer agreement to be considered reached?

No, not enough. A separate document is required - an agreement, in which the parties on an equal basis will determine the conditions of the temporary transfer. It is this agreement, signed by both parties to the labor relationship, that is the basis for issuing a transfer order.

Remember that if an employee’s responsibilities change during a transfer, he must be familiarized with the new job description. The same applies to safety regulations (Part 2 of Article 225 of the Labor Code of the Russian Federation).
Regarding making an entry in the work book, we will say the following. Neither the Rules for maintaining and storing work books*(1) nor the Instructions for filling out work books*(2) provide for making entries in the work book about temporary transfers. In addition, Art. 66 of the Labor Code of the Russian Federation establishes that information about the employee, the work he performs, transfers to another permanent job and the dismissal of the employee is entered into the work book. Accordingly, there is no need to record a temporary transfer.

The question often arises whether it is necessary to formalize the return of an employee to a permanent place. The Labor Code does not answer this question. However, in order to avoid controversial situations, we recommend sending the employee a notification about the return to work of the main employee, which is drawn up in any form. You can also issue an order to terminate temporary duties and return to your old position. It is compiled in any form.

Moving. To replace a temporarily absent employee, you can use relocation. It, unlike a transfer, does not require the employee’s consent, provided that it is carried out to another workplace, to another structural unit located in the same area, and this does not entail a change in the terms of the employment contract determined by the parties (Part 3 of Art. 72.1 of the Labor Code of the Russian Federation). Without consent, an employee can be moved to work on another mechanism or unit, but subject to the above conditions.

In order to find out whether an employee can be moved, you need to check the employment contract with him. Quite often, employers indicate as the place of work the name of the structural unit in which the employee will work, but meanwhile, in accordance with Art. 57 of the Labor Code of the Russian Federation, it is necessary to name a structural unit only if the employee is accepted into a branch, representative office or other separate unit located in another area.

For your information. By virtue of clause 16 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2 “On the application of the Labor Code of the Russian Federation by the courts of the Russian Federation”, another locality is understood as an area outside the administrative-territorial boundaries of the corresponding locality.

Thus, if a structural unit is specified in an employee’s employment contract, then it will not be possible to move him to another structural unit to replace a temporarily absent employee even without changing the position or job function - this will be a change in the terms of the employment contract determined by the parties and will require the consent of the employee.

We attract external labor

If the responsibilities of the absent employee are extensive, and other company employees are heavily loaded with work, so as not to disrupt the production process, the employer may decide to hire outside workers to replace the temporarily absent employee.

Part-time job. This option for fulfilling the duties of an absent employee is suitable not only for an external employee, but also for employees already working in the company.

So, Art. 60.1 of the Labor Code of the Russian Federation allows you to replace an absent employee for a certain time by registering a part-time job. Article 282 of the Labor Code of the Russian Federation defines part-time work as the performance by an employee of other regular paid work under the terms of an employment contract in his free time from his main job. Moreover, such an employment contract can be concluded both with the same employer (internal part-time job) and with another employer (external part-time job).

An important nuance of part-time work is not only the presence of a separate employment contract, but also the length of working hours. So, by virtue of Art. 284 of the Labor Code of the Russian Federation, the duration of working time for such work should not exceed four hours a day. On days when the employee is free from performing work duties at his main place of work, he can work part-time full time (shift).

Based on Art. 285 of the Labor Code of the Russian Federation, remuneration for persons working part-time is made in proportion to the time worked, depending on output or on other conditions determined by the employment contract. When setting standard assignments for persons working part-time with time-based wages, wages are paid based on the final results for the amount of work actually completed.

To register a part-time job, the employee submits the documents specified in Art. 65 of the Labor Code of the Russian Federation, and a certificate about the nature and conditions of work at the main place of work (Article 283 of the Labor Code of the Russian Federation) - when hiring for hard work, work with harmful and (or) dangerous working conditions. One caveat: the part-time worker does not present a work book, since all entries in it are made by the employer at the main place of work. Therefore, if an employee wants to see an entry in the work book about part-time work, then he needs to submit a document confirming part-time work at the main place of work (Article 66 of the Labor Code of the Russian Federation).

Then an employment contract is concluded, which must indicate that the job is a part-time job. And, of course, other actions are taken to formalize the hiring process: an employment order is issued, a personal card is created (even for an internal part-time worker).

Fixed-term employment contract. If other options for replacing an absent employee are not suitable, you can use another one - concluding a fixed-term employment contract with a new employee. However, in this case it is necessary to take into account the requirements of Art. 58 of the Labor Code of the Russian Federation, on the basis of which a fixed-term employment contract is concluded when employment relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation, namely in the cases provided for in Part 1 of Art. 59 Labor Code of the Russian Federation. For our situation, the basis specified in paragraph. 2 part 1 of this article: for the duration of the performance of the duties of an absent employee, whose place of work is retained in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract.

Note! Based on Art. 57 of the Labor Code of the Russian Federation, when concluding a fixed-term employment contract, it is necessary to indicate the start date of work, as well as the period of its validity and the circumstances (reasons) that served as the basis for its conclusion. If this is not done, the contract will be considered concluded for an indefinite period.

When formulating a condition on the duration of an employment contract, it is advisable to indicate not only the duration of the contract, but also its expiration date, since in the future this will help to avoid disputes when terminating the contract due to the end of its term. For example, the wording may be as follows: “This agreement was concluded for the period of training of accountant R.Z. Sorokina. from 03/04/2013 to 06/04/2013.”

But what to do when the end date of work, and even the duration of the contract term itself, is problematic to determine, for example, when replacing an employee during the period of parental leave? In this case, the wording may be as follows: “This agreement was concluded for the duration of Kalmykova I.D.’s vacation. for the care of a child under three years of age.”

When replacing an absentee in this way, the same documents are drawn up as when hiring a regular employee: an employment contract, a hiring order, a personal card. In addition, you need to make an entry about the hiring in the work book, without indicating that the employee was hired for a certain period. This is confirmed by the explanations of Rostrud in Letter dated 04/06/2010 N 937-6-1.

Let us note that an employment contract concluded for the duration of the duties of an absent employee is terminated when he returns to work (Article 79 of the Labor Code of the Russian Federation).

Finally

When the head of an organization is temporarily absent, quite often a person is appointed to perform his duties. And in documents you can often see a signature marked “acting.” Let’s say right away that the position of “acting” does not exist. However, for some time, appoint an “acting” It's still possible.

If the duties will be performed by a person whose job description or employment contract contains a clause on the performance of the duties of a manager or another employee, an appropriate order must be issued for this clause to take effect (the replacement clause in the employment contract means that the employee is obliged to fulfill it only if when another employee will be absent).

If there is no obligation to replace, it turns out that the employee agreed, along with his job responsibilities, to perform additional work in the position of the absent employee, that is, Art. 60.2 of the Labor Code of the Russian Federation and arrange the combination.

In any of these cases, the employee replacing the absent employee must be paid additionally.

T.V. Shadrina,
magazine expert
“Payment: accounting and taxation”

There are several options to temporarily replace an absent employee whose job is retained - temporary transfer, external or internal part-time work, combination of professions (positions).

Let's look at the legal nuances, pros and cons, as well as the procedure for registering each of them.

The holiday season is a headache for the HR manager. After all, every now and then you have to close “personnel holes”: work and management processes cannot be sent on vacation. Our article will tell you how to quickly and painlessly solve the problem of registering a replacement for a temporarily absent employee.

The Labor Code of the Russian Federation offers several options for replacing a temporarily absent employee, who retains his job:

temporary transfer of another employee to his place;
employment of a person from outside (external part-time job);
combination of professions (positions);
internal part-time work.

All of the above options have their own legal nuances and also differ from each other in the procedure for registration. In some cases, only one design option is possible, and the other will be considered illegal. In order not to be unfounded, we will consider the features of all options for replacing a vacationer.

Temporary transfer of an employee

One of the ways to close the “personnel hole” during the holiday season is to temporarily transfer an employee. As Art. 72.2 of the Labor Code of the Russian Federation, a temporary transfer of an employee, among other circumstances, “is carried out to replace a temporarily absent employee, whose place of work is retained in accordance with the law.” The deadline is until he goes to work.

For your information

During a temporary transfer, the employee ceases to perform his main duties as provided for in the employment contract and works entirely for another employee.

A prerequisite for such a temporary transfer is agreement of the parties . In Art. 72 of the Labor Code of the Russian Federation states that a change in the terms of an employment contract determined by the parties, including transfer to another job, is permitted only by agreement of the parties to the employment contract, which must be in writing. Thus, when temporarily transferring an employee to replace a temporarily absent employee, a document should be drawn up entitled “Agreement of the parties to change the terms of the employment contract determined by the parties in connection with the temporary transfer of the employee to another job to replace the temporarily absent employee.” It must indicate all changes in working conditions that occurred in connection with the transfer (new job function, working hours, wages, structural unit, etc.). For a sample document format, see Example 1.

Example 1

Let us explain the difference between obtaining the employee’s consent (as, for example, in the case of a combination) and the agreement of the parties (in case of a temporary transfer).

Firstly, the agreement of the parties is a separate document, drawn up in writing, and not the employee’s signature on the employer’s offer of a temporary transfer indicating “I agree” or the employee’s signature on the transfer order. Secondly, the agreement of the parties is binding on both parties and implies an equal opportunity to determine future working conditions. Consequently, even in the event of an early transfer of an employee to his previous position, only an order from the employer or a notice from the employee will not be enough. You will also need to conclude another agreement - to change the terms of the employment contract.

For your information

In the clause on the period of temporary transfer, it is better not to indicate the expected date of the vacationer’s return to work, even if it seems to be known. After all, a person can suddenly fall ill while on vacation, and the release date will be pushed back indefinitely.

Based on the amendment to the employment contract, the employer must issue an order for the temporary transfer of the employee using the unified form No. T-5 (for the procedure for filling out the form, see Example 2).

Next, we reflect information about the temporary transfer in the employee’s personal card (Form No. T-2) in Section III “Hiring and transfers to another job.” The basis for making an entry will be a previously issued order in form No. T-5 (see Example 3).

There is an opinion that information about a temporary transfer is not entered into a personal card. It is based on the fact that information is entered into section III only on the basis of entries made in the employee’s work book. And, as follows from 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 “On work books”, an entry about a temporary transfer is not made in the work book.

However, we believe that information about the temporary transfer should still be reflected in the employee’s personal card. And that's why. In the Instructions for the use and completion of forms of primary accounting documentation for the accounting of labor and its payment, approved by Resolution of the State Statistics Committee of the Russian Federation dated January 05, 2004 No. 1, there is a mention that in the section “Hiring, transfers to another job” with each entry, entered on the basis of an order (instruction) on transfer to another job (Form No. T-5), the administration is obliged to familiarize the employee with a personal signature. As we can see, the legislator is simply talking about transfer, without dividing it into permanent or temporary. Another argument in favor of our point of view is that a temporary transfer (like a permanent one) is also issued using an order in form No. T-5. At the same time, in the section on filling out the order according to the specified form, it is said that on the basis of the order (instruction) on transfer to another job, marks are also made in the employee’s personal card (form No. T-2 or No. T-2GS (MS)).

We return the employee “to his place”

When the main employee returns after vacation, the employee replacing him must be returned to his previous position. How to arrange this?

On the one hand, the Labor Code of the Russian Federation does not prescribe the drawing up of any agreements on reverse transfer (Part 1, Article 72.2 of the Labor Code of the Russian Federation). From the literal interpretation of the code it follows that the reverse transfer is carried out automatically, with the former employee returning to his place. But if the main employee returns, and the employee replacing him does not demand to be given his previous place and the employer does not provide it to him (this can happen for various reasons, the most banal of which is the absence of the head of the organization and the “forgetfulness” of his deputy), an unpleasant situation will arise - two people will end up in the same position. Therefore, we recommend that you notify the employee in writing about the provision of his previous job in any form (see Example 4).

If you made an entry about the transfer in the employee’s personal card, then you should also reflect the reverse transfer there (see Example 3). The basis for such an entry may be an order to provide the previous job. As a rule, it is the accounting department that insists on its preparation, especially if the temporary transfer order does not indicate a specific date for the employee’s return. It is quite difficult to draw up an order in form No. T-5, since it is not clear what to indicate in the columns “Former place of work” and “New place of work”. Therefore, we recommend that you draw up an order in any form (see Example 5).

Combination of professions (positions)

Issues of fulfilling the duties of a temporarily absent employee without exemption from the main job, or simply combining them, are regulated by Art. 60.2 and 151 of the Labor Code of the Russian Federation.

Key points to consider when combining:

The employee performs additional work without being released from the main work specified in the employment contract. At the same time, he performs it within the framework of the main working hours.

An employee can be additionally assigned to perform both similar work (in this case we are talking about increasing the volume of work, expanding service areas) and work in another position or profession (here there is a combination).

Additional work can be assigned only with the written consent of the employee.

According to Art. 151 of the Labor Code of the Russian Federation, when combining professions (positions), expanding service areas, increasing the volume of work, or performing the duties of a temporarily absent employee without being released from the main job, the employee is paid additionally. Its size is established by agreement of the parties to the employment contract.

For your information

The Labor Code of the Russian Federation obliges the employer to make additional payments even without an agreement. The agreement only specifies the amount of this surcharge. This conclusion is confirmed by the decision of the Arkadaksky District Court of the Saratov Region dated March 30, 2010 No. 24. The court ordered the accountant to be paid a certain amount as an additional payment for combining the position of cashier, despite the fact that there was no agreement on this additional payment.

The employee has the right to refuse to perform additional work ahead of schedule, and the employer has the right to cancel the order to perform it ahead of schedule. Only for this it is necessary to notify the other party in writing no later than three working days.

Attention: restrictions! There are a number of regulations that prohibit employees holding certain positions from combining certain other positions (professions). For example, according to paragraph 6 of Art. 35 of the Law of the Russian Federation of February 10, 1997 No. 3266-1 “On Education”, heads of state and municipal educational institutions are not allowed to combine their positions with other leadership positions (except for scientific and scientific-methodological leadership) inside or outside educational institutions.

The Regulations on Chief Accountants are still in effect, approved by Resolution of the USSR Council of Ministers dated January 24, 1980 No. 59, paragraph 7 of which states that the chief accountant cannot be assigned responsibilities related to direct financial responsibility for funds and material assets. It can be argued that the regulations adopted during the USSR are valid only to the extent that they do not contradict the Labor Code of the Russian Federation, but there is no such prohibition in it. However, guided by common sense and the Regulations on the procedure for conducting cash transactions with banknotes and coins of the Bank of Russia on the territory of the Russian Federation, approved by the Bank of Russia on October 12, 2011 No. 373-P, with this combination the chief accountant becomes accountable to himself, since the financially responsible persons are subordinate precisely chief accountant. Therefore, it is better not to allow such a combination of positions.

Based on the above, we will give examples of documents that need to be drawn up when combining. So, first, we obtain the employee’s written consent to perform additional work. It can be expressed in the form of an appropriate mark on the employer’s written proposal to replace a temporarily absent employee (see Example 6). Also, the employee himself can take the initiative and submit an application requesting a replacement (see Example 7).

The next stage will be the conclusion of an agreement. Please note that when expanding service areas or increasing the volume of work, the terms of the employment contract determined by the parties do not change. Therefore, an agreement to expand service areas or an agreement to increase the scope of work should be concluded, and not an additional agreement to the employment contract. Another situation arises when combining positions (professions). Here the worker’s labor function changes. Therefore, it is necessary to draw up an agreement to change the terms of the employment contract determined by the parties in connection with the combination of positions (professions).

Based on Art. 151 of the Labor Code of the Russian Federation, the main point that should be reflected in the agreement is the amount of additional payment due to the employee for combining jobs. If the job function changes, this must also be indicated in the agreement.

The third stage will be the issuance of an order on combining positions/professions (expanding service areas or increasing work). There is no unified form for such an order, so an order can be issued in any form (see Example 9). The order must reflect the period for which the combination is issued, the type, content and volume of additional work, as well as the amount of additional payment.

Full-time deputy

In practice, the question often arises whether a full-time deputy manager is entitled to additional payment if the manager goes on vacation and his responsibilities are assigned to the full-time deputy. On the one hand, it would seem that it is not allowed - after all, that is why he is a full-time deputy, to “intercept the banner” during the absence of his immediate superiors. But in reality, deputies have a lot of responsibilities of their own. As a rule, they supervise certain areas of the company’s activities, and do not sit idly by, waiting for the manager to leave. And when the manager goes on vacation, the deputy literally has to spend the night at work. Plus additional responsibility. Whose side is the law on?

Let us repeat that, if read literally, the Labor Code of the Russian Federation is on the side of the employee. It obliges the employer to make additional payments even without an agreement. The agreement only specifies the amount of this surcharge. In addition, according to paragraph. 2 clause 1 of the explanation of the State Labor Committee of the USSR No. 30, All-Union Central Council of Trade Unions No. 39 of December 29, 1965 “On the procedure for paying temporary substitution” when replacing a higher-ranking employee, the deputy is paid the difference between his actual salary (official, personal) and the official salary of the replaced employee (without personal allowances). At the same time, the clause that such additional payment is not due to full-time deputies was declared invalid by the ruling of the Cassation Board of the Armed Forces of the Russian Federation dated March 11, 2003 No. KAS03-25.

But what if the deputy’s job description clearly states that one of his duties is to “perform the duties of a manager in the event of his absence from the workplace”? Is there any additional payment involved? The letter of the Ministry of Health and Social Development of the Russian Federation dated March 12, 2012 No. 22-2-897 states the following. If the job descriptions of certain categories of employees provide for cases when, during the absence of another employee with a similar job function, they perform their duties, no additional payment is due. This conclusion is based on the fact that in the described cases the work is performed within the framework of the concluded employment contract, since the job description is an integral part of it.

Nevertheless, I would like to argue with this conclusion. As we have already said, there is a difference between deputy and deputy. In some places, a deputy is hired specifically to replace a manager, since by the nature of his work he is constantly on the road. Accordingly, the deputy’s salary is set taking into account this feature and no additional payments are made. Everything is fair here. In other companies, the deputy performs a completely different function and the period of the manager’s departure becomes simply an emergency for him. In addition, the letter mentioned above does not take into account the “increase in the scope of work” referred to in Art. 60.2 Labor Code of the Russian Federation. But in this case, there is clearly an increase, and what an increase! Therefore, in our opinion, the deputy is still entitled to additional payment.

Part-time work – internal and external

Ch. is devoted to part-time work. 44 Labor Code of the Russian Federation. To replace a vacation worker, a part-time worker is a rather inconvenient option, since it inevitably entails concluding an employment contract with the part-time worker, completing a mountain of other papers, and maintaining a time sheet. In addition, there are quite a few restrictions when working part-time.

However, there are cases when there is no one else to replace an employee who has gone on vacation other than a part-time worker. For example, if you need to replace a highly specialized employee who performs specific duties, and finding a replacement for him is very difficult.

Therefore, we will not dwell in detail on this option, but will highlight only the main points that are relevant specifically in our case - when a person is hired for a part-time job to replace a vacationer.

You need to pay attention to the following:

According to Art. 282 of the Labor Code of the Russian Federation, a part-time worker performs work in his free time from his main job. This work is regular (as opposed to overtime) and paid.

A part-time worker can be either an employee of the organization (here there will be an internal part-time job) or an outsider (an external part-time worker).

An employment contract (in our case, a fixed-term one) must be concluded with a part-time worker! Therefore, if you decide to replace a vacationer with a part-time worker from among your own employees, then you need to conclude a separate fixed-term employment contract with him, which stipulates the condition of part-time work, and not an additional agreement to the main employment contract.

The duration of a part-time worker's working hours should not exceed four hours a day (or half the monthly working time). However, an employee can work part-time full time (shift) on days when he:

free from main work;
suspended work in accordance with Part 2 of Art. 142 Labor Code of the Russian Federation;
suspended from work in accordance with Parts 2 and 4 of Art. 73 Labor Code of the Russian Federation.

The following persons cannot be hired part-time:
- minors (Part 5 of Article 282 of the Labor Code of the Russian Federation);
- citizens who are hired to work under harmful and (or) dangerous working conditions, if their main work involves the same conditions (Part 5 of Article 282 of the Labor Code of the Russian Federation);
- prosecutorial workers (except for teaching, scientific and creative activities) (clause 5 of article 4 of the Law of January 17, 1992 No. 2202-1 “On the Prosecutor’s Office of the Russian Federation”);
- citizens who are hired for work related to driving vehicles or controlling the movement of vehicles, if at their main place of work they perform the same job duties (Part 1 of Article 329 of the Labor Code of the Russian Federation). The list of positions and professions to which this restriction applies was approved by Decree of the Government of the Russian Federation of January 19, 2008 No. 16;
- judges (except for teaching, scientific and creative activities) (clause 3 of article 3 of the Law of June 26, 1992 No. 3132-1 “On the status of judges in the Russian Federation”).
An entry in the work book about part-time work is made only at the request of the employee.

Question on topic

One structural unit of our chemical plant employs three specialist technologists. One of the employees went on vacation for a month. Only one of the specialists can replace it. But we cannot arrange a part-time job for him, because during regular working hours he will not be able to do someone else’s work. Is it possible to arrange an internal part-time job for the same position in which he already works as his main one, or is it better to involve him in overtime work every day during his colleague’s vacation?

First, let's find out whether it is possible to apply for a part-time job with the same employer for the same position. On the one hand, it is impossible, since according to Art. 282 of the Labor Code of the Russian Federation, part-time work means fulfilling another regular paid work with the same or another employer. But what is meant by “other work”? The Labor Code of the Russian Federation does not provide a clear definition. Let's look at the official clarifications. The letter of Rostrud dated 01.06.2011 No. 1495-6.1 states that other work can be understood as activities in free time from the main job within the framework of an independent (other) employment contract. At the same time, Art. 98 of the Labor Code of the Russian Federation, which previously allowed internal part-time work only in another profession, specialty or position, has lost force since October 6, 2006.

Thus, internal and external part-time work can be in any profession, specialty, position, including those similar to those performed at the main place of work.

In the question, the reader did not indicate the working conditions of technologists. When deciding on part-time work, it should be taken into account that, in accordance with Part 5 of Art. 282 of the Labor Code of the Russian Federation, part-time work is not allowed, in particular, in jobs with harmful and (or) dangerous working conditions, if the employee’s main job is related to the same conditions.

As for overtime work, according to Art. 99 of the Labor Code of the Russian Federation, in addition to other restrictions, its duration should not exceed 4 hours for each employee for two days in a row and 120 hours per year. That is, it can be episodic rather than permanent. If the procedure for involving an employee in overtime work is violated, the employer is liable under Art. 5.27 Code of Administrative Offenses of the Russian Federation.

As far as can be seen from the question, the employer intends to involve the employee in overtime work regularly. Therefore, it is unlikely that this restriction will be met. Thus, in the situation under consideration, it is better to focus on internal part-time work.

We conclude a fixed-term employment contract

About fixed-term employment contracts, read the article “Problems of fixed-term employment contracts” on page 28 of magazine No. 7’ 2012

According to Part 1 of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract is concluded, among other things, for the duration of the duties of an absent employee, whose place of work is retained.

Since, most likely, a fixed-term contract will be concluded for a period of less than two months, the rules established by Chapter 45 of the Labor Code of the Russian Federation will apply to it. Namely:

it is impossible to establish a probationary period for the employee;
in case of early dismissal, the employee is obliged to notify the employer not 2 weeks in advance, but only three calendar days in advance;
Employees are paid compensation upon dismissal at the rate of two working days per month of work.

Let's consider difficult situations that may arise in practice.

Contract extension

Is it possible to extend a fixed-term contract if a vacationer, during whose absence a “conscript” was hired, got sick or, let’s say, took a vacation at his own expense? Let's start with some advice: when concluding a fixed-term contract, you should not limit it to specific dates. Anything can happen. Therefore, it is better to indicate an event upon the occurrence of which the fixed-term contract will be terminated. What formulation should be used in this case? If we write “during the annual paid leave of employee N,” then we will again find ourselves in a difficult situation: the vacation has ended, but the employee has not shown up at the workplace. Therefore you should write: “until the temporarily absent employee N, who retains his main place of work, returns to work.”

If you nevertheless indicated a specific expiration date for a fixed-term contract, but you cannot terminate it on this day, then you should dismiss the employee due to the expiration of the employment contract and conclude a new fixed-term contract with him. Let's figure out why you can't extend the existing one.

A literal reading of the Labor Code of the Russian Federation shows that after the expiration of its term, a fixed-term employment contract either ceases to be valid, or, if neither party has demanded its termination, continues to be valid, but in the status of being concluded for an indefinite period. The Labor Code of the Russian Federation does not provide the possibility of extending a fixed-term contract. This rule is indirectly confirmed by exceptions to it when a fixed-term employment contract is extended at the written request of a pregnant employee until the end of pregnancy (Part 2 of Article 261 of the Labor Code of the Russian Federation) or when an employee is elected through a competition to fill a scientific and pedagogical position previously occupied by him under a fixed-term employment contract employee (Part 8 of Article 332 of the Labor Code of the Russian Federation).

Pregnant "urgent"

What to do if an employee temporarily acting as a vacation worker, with whom a fixed-term employment contract was concluded, brought a certificate of pregnancy? There is only one option: offer the pregnant employee a different job. If the employer does not have such an opportunity or the “fixed-term” worker herself refuses the offered vacancy, then the fixed-term employment contract is terminated.

Please note that a pregnant woman can only be offered work that she can perform for health reasons (even in a lower position). This is indicated in Part 2 of Art. 83 Labor Code of the Russian Federation.

Dismissal of a conscript

It happens that a “conscript” who was hired to temporarily perform the duties of a vacationer gets sick. In his place, a new employee was hired, with whom a fixed-term employment contract was also concluded. Is it possible to fire the first conscript before the expiration of his contract? Let us recall the general rule that prohibits dismissing an employee at the initiative of the employer during the period of his temporary disability and while on vacation (Part 6 of Article 81 of the Labor Code of the Russian Federation). The only exceptions are cases of liquidation of an organization or termination of activities by an individual entrepreneur. This conclusion is also confirmed by the resolution of the Federal Antimonopoly Service of the North Caucasus District dated August 23, 2011 in case No. A32-6455/2010, where a conscript employee on annual paid leave was fired at the initiative of the employer.

Vacations: who should work? All ways to replace an employee

Summer divides people into those leaving for vacation and those replacing them. Who should be entrusted with performing the duties of absent employees? How to formalize this employment relationship? In each individual case, you should choose the option that meets the legal requirements. Let's take a look at these options so you can choose the one that's right for you.

On the pages of the magazine, we have already touched upon the topic of replacing temporarily absent workers in one way or another. Today we will collect all possible methods together and talk about their features.

Let's get by on our own

If you want to do it yourself and not involve a third-party employee during the vacation period of one or another employee, then the following options are suitable for you.

Combination of professions (positions), expansion of service areas, increase in the volume of work. To fulfill the duties of a temporarily absent employee, additional work, either in a different or in the same profession (position), may be entrusted to another employee with his written consent. In this situation, additional work is assigned without exemption from the main work determined by the employment contract (Article 602 of the Labor Code of the Russian Federation).

If the work is assigned to another profession (position), then it will be carried out in the order of combining professions (positions). If for the same profession (position) by expanding service areas, increasing the volume of work.

In all of the above cases, the procedure for the personnel officer should be as follows (let’s look at the example of combination):

conclude with the employee an additional agreement to the employment contract describing the conditions of the combination (the period during which the employee will perform additional work, its content and volume, and the amount of additional payment must be indicated);
issue an order on combination (in any form with the obligatory indication of the work assigned, the period during which the employee will perform additional work and the amount of additional payment) (sample on page 46);
familiarize the employee with the order for combination against signature*.

In order to combine professions (positions), the responsibilities of a temporarily absent employee can be distributed among several employees. The content and scope of additional work for each individual employee is established by the employer with the written consent of each individual employee (fixed in additional agreements to employment contracts). Taking into account the content and volume of additional work, the amount of additional payment is determined by agreement of the parties. The amount of the additional payment can be determined either as a percentage of the salary or as a fixed amount (in rubles).

Temporary transfer to another job. With this option, the employee is released from his main job to perform the duties of a temporarily absent employee. An employee can be temporarily transferred to another job only by agreement of the parties, concluded in writing. The exception is the cases provided for in parts two and three of Art. 722 of the Labor Code of the Russian Federation, such as industrial accident, industrial accident, fire, etc. (that is, due to production necessity).

By agreement of the parties, a temporary transfer to another job to replace a temporarily absent employee is allowed until this employee returns to work. To complete it you need:

conclude an additional agreement with the employee to the employment contract;
issue an order in the unified form No. T-5**;
familiarize the employee with it against signature***.

Due to production needs, a temporary transfer to another job is allowed without the employee’s consent for a period of up to one month and only on the condition that the replacement of a temporarily absent employee is caused by emergency circumstances (part two of Article 722 of the Labor Code of the Russian Federation). In this case, the employee is paid according to the work performed, but not lower than the average earnings for the previous job. To formalize a transfer due to production needs, an order is also issued in form No. T-5, which the employee must familiarize himself with upon signature.

In order to avoid negative situations, it is necessary to take a responsible approach to registering the replacement of the head of the organization and financially responsible employees ****.

Internal part-time work. In case of internal part-time work, you must conclude a separate employment contract with the employee regarding the performance of other regular paid work in his free time from his main job. When concluding a part-time employment contract, you must pay attention to the restrictions established by part five of Article 282 of the Labor Code. If the future part-time worker does not fall under these restrictions, then an employment contract can be concluded with him. At the same time, the employment contract must necessarily indicate that the work is a part-time job.

Based on the concluded employment contract:

an order for part-time employment is issued in form No. T-1**;
the order is announced to the employee against signature;
an entry is made in the work book (at the request of the employee) (Article 66 of the Labor Code of the Russian Federation);
a separate personal card is issued in form No. T-2**.

The duration of working hours when working part-time should not exceed four hours a day. On days when the employee is free from performing work duties at his main place of work, he can work part-time full time (shift). Moreover, within one month (or another accounting period), the duration of working time when working part-time should not exceed half of the monthly working time standard (working time standard for another accounting period) established for the corresponding category of workers (Article 284 of the Labor Code of the Russian Federation)** ***.

We attract outside specialists

If you cannot manage with the help of the organization’s employees, we suggest considering these options.

External part-time work. For such a short period of time as a vacation, finding a good specialist is, of course, not easy. In this case, you can invite a specialist from another organization on an external part-time basis and conclude an employment contract with him for the period of your employee’s vacation. But at the same time, we must remember the restrictions and features established when working part-time, which we discussed above.

The general procedure for hiring an external part-time worker is the same as when hiring an internal part-time worker (employment contract, order, personal card). One difference: entry into the work book (again at the request of the employee) is made at the place of main work of your external part-time worker. To do this, you will have to, if the employee asks, give him a copy of the employment order or a certificate (Article 66 of the Labor Code of the Russian Federation).

Fixed-term employment contract. During the employee’s vacation period, so as not to disrupt the normal flow of work in a specific structural unit or in the organization as a whole, it is possible to hire an employee under a fixed-term employment contract.

The procedure for hiring under a fixed-term employment contract is the same as when hiring an employee for an indefinite period. But there are some peculiarities.

Thus, in accordance with Article 57 of the Labor Code, the employment contract must necessarily indicate the duration of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract. The basis in this case is the provision of leave (regular or additional) to an employee of the organization. What is the deadline?

When hiring a particular employee during a vacation (annual paid and (or) additional) it would seem that the end date of the vacation is known and can be issued exactly before this date. But what if an employee gets sick while on vacation and his vacation will last for the number of days of illness indicated on the sick leave certificate (Article 124 of the Labor Code of the Russian Federation)? If a temporarily absent employee is absent longer than initially expected, and the employee replacing him under a fixed-term employment contract continues to work, then a situation may arise when the contract becomes permanent (part four of Article 58 of the Labor Code of the Russian Federation). Therefore, it is preferable in employment contracts concluded during the vacation of an employee not to indicate a specific end date, but to hire the employee “for the period of temporary absence of a specific employee” (indicating the position, surname, name, patronymic of the replaced employee).

Global approach

There are situations when the question is not about replacing several employees, but about the need to attract a significantly larger number of people or close a very large front of work. The solution could be personnel leasing or outsourcing of work (services).

However, these options for formalizing relations with employees are not yet regulated by labor legislation, although they are quite often used in practice. We talked about the problems of their application and design in No. 1, 2005, No. 6, 2006, No. 6–8, 2007.

When concluding fixed-term employment contracts Don't forget about their expiration date. An employment contract concluded for the duration of a specific work is terminated upon completion of this work. An employment contract concluded for the duration of the duties of an absent employee is terminated when this employee returns to work. An employment contract concluded to perform seasonal work during a certain period (season) is terminated at the end of this period (season).

The employee must be notified in writing of the termination of a fixed-term employment contract due to its expiration at least three calendar days before dismissal (except for cases where a fixed-term employment contract concluded for the duration of the duties of a temporarily absent employee expires) (Article 79 of the Labor Code of the Russian Federation).

* For more information about combining professions (positions), see the thematic supplement to the magazine “Personnel Affairs” No. 3, 2008 “All about part-time work and combinations.”

Filling a position during the main employee's vacation

Usually, an employee going on vacation does not cause global problems for the company. However, when the vacation drags on for a long time, for example, a girl takes her main vacation, and then leave for labor and employment and to care for a newborn child, or when the head of the organization goes on vacation, without whom the work, of course, will not get going, but may stall at certain points, the employer we have to think about the need for replacement.

The Labor Code of the Russian Federation has provided 4 options for action if it is necessary to temporarily replace an employee:

Temporary transfer of an organization employee to the position of an absent employee

In Art. 71 of the Labor Code of the Russian Federation states that the transfer is accompanied by a change in the worker’s labor function, structural unit or locality where he worked.

In paragraph 16 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” dated March 17, 2004 No. 2, it is explained that the locality is considered changed if the employee begins to work outside the locality where he initially performed his labor function. A change in a structural unit will be a transfer to another branch, workshop, department, etc.

Changing the labor function involves performing work that was not previously performed by the worker. For example, when an accountant is temporarily transferred to the position of a secretary, instead of organizing and maintaining accounting, he takes calls, organizes meetings, conferences, etc.

According to Art. 72.2 of the Labor Code of the Russian Federation, the transfer is carried out:

For less than a month - without the employee’s consent, but only if the transfer is necessary due to an exceptional case that threatens the life of the population, and the qualifications of the temporary work are not lower than the employee’s qualification level. In accordance with paragraph 17 of the resolution of the Plenum of the Supreme Court No. 2, if a dispute arises, the employer must himself prove the existence of such circumstances.
For a period of 1 month before the main employee returns to work - without the consent of the transferred employee in the case where the transfer does not lead to a change in the terms of the employment contract. In other situations, the employee’s consent is required.

Part-time work

Part-time work involves a part-time employee performing labor functions in several jobs at different times.

Part-time work is possible within the same organization or with different employers - internal and external part-time work, respectively. However, the number of such works is not limited, with the exception of special cases:

Limitation		Base
The work schedule of different part-time jobs should not coincide even partially		Art. 282 Labor Code of the Russian Federation
Cannot be part-timers	Minors
	Workers engaged in work with dangerous, harmful working conditions
	Heads of an organization without the consent of the authorized body of the legal entity or the owner of the property of the legal entity	Art. 276 Labor Code of the Russian Federation
	Workers whose activities are directly related to managing transport or ensuring traffic flow - if the second job involves performing the same job function. For such work, in accordance with the “List of works, professions, positions...”, approved. Decree of the Government of the Russian Federation dated January 19, 2008 No. 16, includes, for example, work: driver; transport dispatcher; flight engineer; pilot, etc.	Art. 329 Labor Code of the Russian Federation
	Coaches and athletes - without the consent of both employers	Art. 348.7 Labor Code of the Russian Federation
	Employees of the prosecutor's office, except when combined with work of a pedagogical, scientific or creative nature	Art. 4 of the Law “On the Prosecutor’s Office of the Russian Federation” dated January 17, 1992 No. 2202-1
	Citizens performing alternative service	Art. 21 of the Law “On Alternative Civil Service” dated July 25, 2002 No. 113-FZ
	Lawyers, except for combining work with a pedagogical, scientific or creative orientation	Art. 2 of the Law “On advocacy and advocacy in the Russian Federation” dated May 31, 2002 No. 63-FZ

Note: in addition to the restrictions on part-time work, some features of the regulation of combined work also apply to employees of certain industries. In particular, such features are established by the resolution of the Ministry of Labor of the Russian Federation “On the features of part-time work for teaching, medical, pharmaceutical workers and cultural workers” dated June 30, 2003 No. 41.

Payment for replacement during the main employee's vacation

Methods for calculating wages differ depending on the method of replacement:

Payment upon transfer

The transferred employee is paid based on the work performed, but below the average earnings at the previous job. This provision is enshrined in Part 4 of Art. 72.2 of the Labor Code of the Russian Federation, but it applies only to cases when replacement is necessary due to emergency circumstances.

Don't know your rights?

However, the clarification of the USSR State Labor Committee “On the procedure for payment of temporary substitution” dated December 29, 1965 No. 30/39 is still in effect, which states that payment for the temporary assignment of duties to another employee is made up of the official salary and a bonus based on the results of the work actually performed. When the payment is below the average earnings at work before the temporary transfer, an additional payment of the missing amount is made. Applying the analogy method, we find that the salary of the transferred employee will consist of a salary for the work performed and a bonus, if provided by the organization, of an amount no less than the previous salary.

According to Art. 72.2 of the Labor Code of the Russian Federation, only with the consent of the worker can he be transferred to a job with lower qualifications. Obviously, the salary for such work will be lower, and in the case where the employee agreed to such a transfer without an additional condition on the amount of salary, it would be logical that he simultaneously agrees with the salary that is established for work of such qualifications.

Payment for part-time work and under a fixed-term employment contract

Part-time work and the hiring of a new temporary employee are accompanied by the conclusion of an employment contract, which also determines wages.

Combined payment

For performing additional work for an absent employee in parallel with the main work under Art. 151 of the Labor Code of the Russian Federation requires an additional payment, the amount of which is established by agreement between the worker and the employer.

The calculation is based on the content and volume of additional work. The letter of the Ministry of Health and Social Development of the Russian Federation “On the procedure for performing work...” dated March 12, 2012 No. 22-2-897 clarifies that additional payment is not made if the employee’s job description provides for the obligation to perform the duties of an employee with a similar job function during his absence.

Registration of replacement

The procedure for registering the replacement of an absent employee is provided for by the Labor Code of the Russian Federation:

The transfer is formalized by a written agreement (Article 72.2).
Part-time work involves concluding an employment contract with each employer or several contracts with one employer (Article 282).
An employee is temporarily hired to replace an employee who has gone on vacation or is absent for any other reason by concluding a fixed-term employment contract (Article 59).
Additional responsibilities are assigned to the worker only with his consent. The letter of the Ministry of Health and Social Development of the Russian Federation No. 22-2-897 states that the assignment of additional duties to an employee is formalized by an additional agreement or stipulated when concluding an employment contract (Article 60.2 of the Labor Code).

After concluding an employment contract or additional agreement, a replacement order is drawn up, which is brought to the attention of the employee against signature.

IMPORTANT! Part 3 art. 92 of the Constitution of the Russian Federation made it the duty of the Chairman of the Government of the Russian Federation to replace the President of the Russian Federation when the latter is not able to fill his position. According to Art. 25 of the Law “On the Constitutional Court of the Russian Federation” dated July 21, 1994 No. 1-FKZ, the chairman of the Constitutional Court, if necessary, must be replaced by his deputy.

Such norms were created for a reason. Let's move them from the plane of public administration and project them onto the activities of any organization. By determining in advance the procedure for replacing not all, but at least key positions of a legal entity, and indicating it, for example, in an employment contract or a separate local act, the manager will be able to avoid problems such as:

lack of delineation of responsibility in the absence of an employee who bears it;
loss of time that will be spent searching and appointing a temporary worker to the position of an absentee;
difficulties in finding a temporary employee who is willing to work for a short period of time.

In this case, the replacement procedure should be understood, first of all, to determine the person replacing the absent employee.

Nuances when registering an employee as a temporary replacement

When replacing an employee on vacation, the following points must be taken into account:

1. A temporary transfer can become permanent, provided that the employee himself did not demand a transfer back, and the employer did not provide him with the same place (Article 72.2 of the Labor Code of the Russian Federation).

2. During shift work, an absent employee is replaced by his colleague, which is documented as an additional duty. It must be remembered that:

Art. 103 of the Labor Code of the Russian Federation prohibits working in a row in 2 shifts, therefore, when drawing up a shift schedule, it is impossible to allow consecutive shifts of the replaced and replacement employees;
the shifts that an employee works for an absent employee fall on his weekends, therefore, by virtue of Art. 153 of the Labor Code of the Russian Federation, the additional payment is at least double the salary of the replacement employee.

3. Sometimes additional documents need to be filled out. For example, when replacing a cashier position, an employer may require the replacement employee to enter into a liability agreement. This right is granted to the manager in accordance with the list of positions and works replaced or performed by employees, with whom the employer can enter into written agreements on full individual or collective (team) financial responsibility, approved. Resolution of the Ministry of Labor of the Russian Federation dated December 31, 2002 No. 85.

Let's summarize using the table:

substitution	Temporary transfer	Part-time job	Fixed-term employment contract	Additional responsibilities (combined)
Working hours	Working day exempt from work performed before transfer	Outside the working day at another job	Working day according to working hours	During the working day in parallel with the main responsibilities
Decor		Employment contract		Additional agreement to the employment contract
		According to the terms of the employment contract		According to the agreement to the employment contract

When an employee goes on vacation, maternity leave, or goes on a business trip, colleagues have more work to do. Sometimes the search for a replacement is like a detective story. In order for employees to replace a vacationer, arrange additional work in connection with temporary performance of duties, part-time work, temporary transfer, or hire a new employee under a fixed-term employment contract. We have already talked about this in, and now let’s pay attention to the advantages and disadvantages of each option.

Temporary performance of duties

On behalf of the employer, an employee may perform the duties of a temporarily absent colleague within a working day, shift simultaneously with the main work ( Art. 60.2 Labor Code of the Russian Federation). Moreover, both in the same and in another profession or position. But only if he agrees.

If an employee is ready to work for two, enter into an agreement with him on temporary performance of duties (sample below). The agreement shall reflect the period during which the employee will perform additional work, the position, profession for which it is assigned, the content and volume of additional work, the amount of additional payment (Art. 60.2, Labor Code of the Russian Federation).

Documentation. Additional agreement to the employment contract, order on temporary performance of duties, order on termination of additional work (if the period of additional work in the agreement is indicated not by a specific date, but by an event).

It is safer to establish at least a small additional payment to someone who performs the duties of a temporarily absent employee simultaneously with their main job ( para. 5 Part 1 of Art. 21, Art. 151 Labor Code of the Russian Federation).

Pros. If a job description or employment contract includes a clause stating that an employee performs the duties of a temporarily absent colleague in a certain position, this is included in the labor function. There is no need to pay extra for this combination. You can arrange for the duties of a temporarily absent employee to be performed for any period of time.

To cancel an order for additional work ahead of schedule, it is enough to notify the employee within three working days (part four art. 60.2 Labor Code of the Russian Federation). There is no need to obtain his consent.

Minuses. The additional amount of work must be calculated so that the employee can perform it without compromising the main work. It is impossible to set a probationary period ( Art. 70 Labor Code of the Russian Federation). An employee may refuse to perform additional work at any time by giving three working days notice ( part four art. 60.2 Labor Code of the Russian Federation).

Ekaterina PROKHOROVA,lawyer, labor law expert, editor-in-chief of the magazine “Personnel Business”

Check whether the employee’s qualifications correspond to the assigned work

Before assigning an employee to perform the duties of a temporarily absent colleague, check his qualifications. For some categories, the law establishes requirements for education and experience (chief accountant in a public joint stock company, doctors, teachers, etc.). Make sure that additional work will not interfere with fulfilling the main responsibilities under the employment contract. The law has no restrictions on the volume, content and types of additional work for one employee. But avoid overloading the employee - this will affect the quality of work.

Part-time job, fixed-term employment contract

When working part-time, the employee performs other regular paid work in free time from main work with the same or another employer ( part one Art. 60.1, Art. 282 Labor Code of the Russian Federation). To entrust the work of a vacationer to an internal part-time worker, enter into a fixed-term employment contract with him while the main employee is absent ( para. 2 Part 1 of Art. 59, Art. 79 Labor Code of the Russian Federation). A new employee, for whom this work will be the main one or part-time, can also fulfill the duties of a temporarily absent employee under a fixed-term employment contract.

Formulate in the fixed-term employment contract the date or event at which it expires. For example, “until the end of the main employee’s study leave.” If you do not indicate the validity period of the employment contract, it is recognized as unlimited ( Art. 58 Labor Code of the Russian Federation).

Documentation. A fixed-term employment contract, an order for employment according to a unified or other sample approved by the organization, a work book, an employee’s personal card.

Pros. It is permissible to include a test condition ( Art. 70 Labor Code of the Russian Federation). A part-time worker can be set to any length of working time, subject to restrictions ( Art. 284 Labor Code of the Russian Federation). In general, no more than four hours a day. On days when the employee is free from duties at his main place of work, he has the right to work part-time full time (shift).

A fixed-term employment contract must indicate the period for which it was concluded and the circumstances or reasons that made it possible to formalize the employment relationship for a certain period ( para. 4 part two art. 57 Labor Code of the Russian Federation, letter of Rostrud dated November 30, 2009 No. 3523-6-1).

The validity period of the employment contract, which was concluded for the duration of the duties of the absent employee, expires as soon as the main employee returns to work, at least for a partial day ( Art. 79 Labor Code of the Russian Federation). An employer dismisses a temporary employee, regardless of illness or pregnancy, if it is impossible to transfer the woman to another job before the end of pregnancy ( part three art. 261 Labor Code of the Russian Federation). There is no need to give a temporary employee three days' notice of termination.

Minuses. A separate employment contract is concluded with the part-time worker. The salary of an internal part-time worker is calculated separately according to two employment contracts.

If the part-time worker is internal, you need to separately take into account the time that an employee of the organization uses for his main job and for part-time work ( Art. 284 Labor Code of the Russian Federation). Part-time work hours should not coincide with the working hours of the main job. For example, when the work schedule of the main employee and part-time employee is from 9.00 to 18.00, part-time work will not work.

Example

Marina M., a designer, went on maternity leave and then on parental leave. A new employee, Svetlana N., was hired in her place under a fixed-term employment contract. However, the temporary employee also went on maternity leave. The HR officer hired another employee under a fixed-term employment contract. In the contract and in the order, she indicated that it was accepted for the period of absence of the temporary employee Svetlana Petrovna Novikova, but before the main employee Marina Aleksandrovna Mitusova returned to work (sample below). And the basis for terminating the contract was formulated as follows: “Before Marina Alexandrovna Mitusova or Svetlana Petrovna Novikova goes to work.”

Download and print the sample

Temporary transfer

By written agreement of the parties, an employee of the organization performing similar functions can be temporarily transferred to the position of an absent employee until he returns to work ( Art. 72.2 Labor Code of the Russian Federation). Then he will perform duties only in the position to which he is temporarily transferred. The employee must agree to the transfer and have no contraindications due to health reasons.

Documentation. Additional agreement to the employment contract on temporary transfer to another job, order on temporary transfer.

Pros. The employee will be able to perform the duties of a temporarily absent employee in full.

Minuses. When temporarily transferring to another job, you need to look for someone who will perform the duties of the transferred employee’s position. If the transfer period has expired, and the employee’s previous job is not provided and he continues to work in a new place, then the condition on the temporary nature of the transfer loses force. The transfer is considered permanent. It is safer to issue an order ending the temporary transfer.

Example

The head of the HR department, Irina V., went on vacation from August 8 to August 21, 2016. Taisiya Z. was temporarily transferred to her place from the position of HR manager. The manager signed an agreement with Taisiya on new conditions for the employment contract for the period from August 8 to 21 and issued an order. On August 22, when Irina V. returned from vacation, Taisiya returned to work as an HR manager. If Taisiya had continued to work as head of the HR department on August 22, the condition of the temporary transfer would have lost force and the transfer would have become permanent from August 8. And the employer no longer has the right to transfer her to her previous job without Taisiya’s consent.

To choose an option to replace a temporarily absent employee, consider the duration of the replacement, the amount of work, and the ability and desire of the staff to perform additional work. If the amount of additional work is large, hire a new employee on a fixed-term employment contract. If you don’t want to hire a third-party specialist, arrange an internal transfer, internal part-time job.

When it is obvious that the employee will successfully cope with both his immediate work and additional work, stop at temporary performance of duties. This method has fewer organizational difficulties. If necessary, you can distribute the responsibilities of a temporarily absent employee among several employees. For example, transfer a managerial function to one, and direct performance of work tasks to another. Labor Code it doesn't prohibit it. As soon as the period of temporary substitution ends, the obligations associated with the assignment of additional work will cease (