Commentary on article 169

1. Moving to another locality should be understood as moving to another settlement according to the existing administrative-territorial division.

2. Moving to work in another locality is possible when: transferring an employee with his consent to another organization located in a different locality; transfer of the organization in which the employee works to another locality; conclusion of an employment contract with an employer located in another area; employment in another locality of graduates of educational institutions of primary, secondary, higher professional education, trained in the order of targeted contract training of specialists.

3. Legislation guarantees the employee the reimbursement of the following types of expenses: for relocation; transportation of property; settling in a new place of residence.

The agreement of the parties to the employment contract determines the specific amount of reimbursement of expenses. This agreement is reached before the employee moves and is in writing.

4. Reimbursement of expenses to employees of organizations financed from the federal budget when moving to work in another locality by prior agreement with the employer is determined by Decree of the Government of the Russian Federation of April 2, 2003 N 187 "On the amount of compensation by organizations financed from the federal budget , expenses to employees in connection with their moving to work in another locality "(SZ RF. 2003. N 14. Art. 1285).

The following amounts of compensation to the employee for expenses incurred when moving to work in another locality are established by prior agreement with the employer:

A) expenses for the relocation of the employee and his family members (including the insurance premium for compulsory personal insurance of passengers in transport, payment for travel documents, expenses for the use of bedding on trains) - in the amount of actual expenses confirmed by travel documents, but not more than fares:

By rail - in a compartment car of a fast branded train;

By water transport - in the cabin of the V group of a sea vessel of regular transport lines and lines with integrated passenger service, in the cabin of the II category of a river vessel of all lines of communication, in the cabin of the I category of a ferry vessel;

By air - in the economy class cabin;

By road - in a public vehicle (except for taxis).

In the absence of travel documents confirming the expenses incurred, compensation is carried out in the amount of the minimum fare:

By rail - in a reserved seat car of a passenger train;

By water transport - in the cabin of the X group of a sea vessel of regular transport lines and lines with integrated passenger service, in the cabin of the III category of a river vessel of all lines of communication;

By road - in a general type bus;

B) the cost of transporting property by rail, water and road transport (public) in the amount of up to 500 kg per employee and up to 150 kg for each moving member of his family - in the amount of actual expenses, but not higher than the tariffs provided for the transportation of goods (cargo luggage ) by rail.

In the absence of these modes of transport, expenses for the transportation of property by air from the nearest railway station to the place of work or from the nearest sea or river port open for navigation at a given time are reimbursed.

Travel expenses and transportation of property are not subject to reimbursement if the employer provides the employee with appropriate means of transportation;

C) expenses for settling in a new place of residence: for an employee - in the amount of a monthly official salary (monthly tariff rate) at his new place of work and for each moving member of his family - in the amount of 1/4 of his salary (1/4 of the monthly tariff rate ) at the new place of work of the employee;

D) payment of daily allowance to the employee - in the amount of 100 rubles. for each day of being on the way to a new place of work.

If it is not possible to accurately determine in advance the amount of expenses subject to reimbursement in connection with the employee's relocation to work in another locality, an advance payment is issued to him, by prior agreement with the employer.

Expenses for the relocation of the employee's family members and for the transportation of their property, as well as for arranging them at a new place of residence are reimbursed if they move to a new place of residence of the employee before the expiration of one year from the date of actual provision of housing.

By agreement between the employee and the employer, the amount of reimbursement of expenses established by law may be increased. If the parties did not have a preliminary agreement on the amount of reimbursable expenses, then the expenses incurred are compensated to the employee at rates not lower than those established by law.

Reimbursement of expenses in the amounts mentioned above is carried out by organizations in which employees are transferred, sent or hired, within the limits of the allocations allocated to these organizations from the federal budget for the implementation of measures related to the relocation of employees to work in another locality, or (in the case of the use of these allocations in full) by saving funds allocated from the federal budget for the maintenance of the organization.

Reimbursement of expenses exceeding the mentioned amounts, as well as other expenses related to the move (provided that they are made by the employee with the consent of the employer) is carried out by organizations at the expense of savings in funds allocated from the federal budget for their maintenance, as well as at the expense of funds received in the established order by organizations from entrepreneurial or other income-generating activities.

The employee is obliged to return in full the funds paid to him in connection with moving to work in another locality, in the event of:

If he did not start work on time without a good reason;

If he, before the end of the term of work determined by the employment contract, and in the absence of a certain period - before the expiration of one year of work, resigned of his own free will without good reason or was dismissed for guilty actions, which, in accordance with the law, were the basis for termination of the employment contract.

An employee who did not show up for work or refused to start work for a good reason is obliged to return the funds paid to him, minus the expenses incurred for moving him and his family members, as well as for transporting property.

5. For reimbursement of expenses associated with moving to organizations located in the regions of the Far North and equivalent areas, see comment. to Art. 326.

6. Graduates of educational institutions of secondary, higher professional education who go to work in accordance with the concluded contract outside the place of permanent residence, as well as members of their families, are entitled to receive compensation in accordance with the law and are provided by the employer, including local governments, with living space according to established standards. Living in a hostel, renting housing are a temporary measure of providing a graduate and his family members with living space (paragraph 4 of the Decree of the Government of the Russian Federation of September 19, 1995 N 942 "On targeted contract training of specialists with higher and secondary vocational education" // SZ RF. 1995. N 39. St. 3777).

7. For employers not related to the public sector, the amount of reimbursable expenses is not established at the legislative level. They are determined only by agreement of the parties to the employment contract. Therefore, the amount of reimbursable expenses specified in Decree of the Government of the Russian Federation of April 2, 2003 N 187 cannot be considered as a minimum amount. In the agreement between the employee and the employer, any size may be named, which is the result of an agreement between the parties.

At the same time, some regional agreements stipulate that the amount and conditions for reimbursement of expenses for the relocation of an employee, by prior agreement with the employer, to work in another area, members of his family and the transportation of property, the costs of settling in a new place of residence are determined by agreement of the parties to the employment contract, but not lower than the size established by the Government of the Russian Federation (Republican (regional) agreement on cooperation in the field of social and labor relations in the Republic of Sakha (Yakutia) between the Government of the Republic of Sakha (Yakutia), the federation of trade unions of the Republic of Sakha (Yakutia) and republican associations of employers for 2005 - 2007 years).

The legislator establishes the types of expenses that the employer must reimburse the employee. By agreement of the parties to the employment contract, it is possible to provide for other measures that ensure the employee's relocation and settling in a new place, for example, the provision of paid leave for settling in a new place, the provision of housing.

8. Members of the employee's family are understood as the spouse (wife), minor children, children over 18 years of age who became disabled before they reached the age of 18, children under the age of 23 studying in educational institutions full-time education, persons who are on his dependent.

9. On the procedure for compensating unemployed citizens for material costs in connection with sending them to work in another locality at the suggestion of the employment service and by prior agreement with employers, see Rules for compensating unemployed citizens for material costs in connection with sending them to work or study in another locality at the suggestion employment service bodies, approved. Decree of the Government of the Russian Federation of October 21, 2005 N 633 (SZ RF. 2005. N 44. Art. 4559).

10. Decree of the Government of the Russian Federation of May 25, 1994 N 533 "On benefits for citizens moving to work in the countryside" (SZ RF. 1994. N 6. Art. 607) establishes benefits for citizens moving to work in the countryside at enterprises and organizations of the agro-industrial complex, regardless of their affiliation and form of ownership, engaged in the production and processing of agricultural products, as well as for work in institutions of public education, culture, healthcare, physical culture and sports, law enforcement agencies, trade enterprises, public catering, consumer services and communications in the countryside.

Resettlement is carried out in accordance with the resettlement agreement and subject to the obligatory availability of living space in the settlement household. A family that has entered into an agreement on resettlement to the countryside for permanent work is entitled to: receive at the expense of the federal budget a one-time cash allowance for each family member in the amount of 500 rubles. and payment of the cost of travel by rail, and in areas that do not have this type of communication, by other modes of transport and transportation of household property weighing up to 5 tons per family from the former place of residence to the place of settlement; obtaining a separate residential building (apartment) with outbuildings and a personal plot on the terms stipulated by the contract, which is concluded between the resettling family and the settlement household or local government; reservation for a period of 3 years of living space (except for privatized) at the place of residence before resettlement.

The executive authorities of the constituent entities of the Russian Federation, local governments and settlement farms are recommended to use their own funds to: pay additional gratuitous allowances to the families of migrants, compensate for the costs of paying daily allowances for the time spent on the road; to provide families who have moved to the countryside with a long-term, interest-free loan for home improvement; to provide free fuel according to the current norms to the families of migrants during the first 2 years after resettlement; to give free of charge to the families of migrants for the organization of personal subsidiary farming livestock, poultry, and during the first year after resettlement to provide assistance in the purchase of feed.

In case of violation of the terms of the resettlement agreement through the fault of the Russian employment service, local governments or settlement farms, the resettled workers and members of their families are paid the costs of moving and transporting property to their former place of residence or a new place of settlement at the expense of the guilty party. In the event that a family of migrants leaves the settlement household without valid reasons before the expiration of a 3-year period from the moment of settlement, the financial resources provided to it are fully recovered from it, residential premises with outbuildings and a personal plot are withdrawn.

These benefits are valid on the territory of the constituent entities of the Russian Federation specified in the annex to the Decree of the Government of the Russian Federation of May 25, 1994 N 533.

11. In order to ensure the employment of employees dismissed due to a reduction in the number or staff of the organization's employees, some agreements provide for the use of such a measure as providing conditions for the relocation of employees to a new place of work with the provision of housing or its acquisition on preferential terms (Sectoral Tariff agreement on transport construction for 2004-2006, sectoral agreement on institutions of the system of the Ministry of Education of the Russian Federation for 2004-2006).

• HR and Labor Law

The Ministry of Finance of Russia no longer requires the rationing for income tax purposes of payments to employees who, at the request of the organization, move to work in another city.

Letter of the Ministry of Finance of the Russian Federation of December 17, 2008 No. 03-03-06/1/688

NO LONGER NEED TO APPLY THE NORMS SET FOR BUDGETARY INSTITUTIONS

The Ministry of Finance of Russia has changed its position regarding the tax accounting of compensation that the company pays to an employee in connection with his relocation to work in another area. We are talking about funds intended to pay for housing or for a down payment on a mortgage loan.

Previously, specialists from the financial department demanded that the specified amounts be normalized. They regarded compensation for the arrangement of workers in a new place as lifting payments. And according to subparagraph 5 of paragraph 1, such amounts relate to other expenses associated with production and sale, within the limits established in accordance with the legislation of the Russian Federation.

According to the Ministry of Finance of Russia, in this case, it was necessary to use the norms for reimbursement of expenses established for budgetary organizations (The norms were approved by Decree of the Government of the Russian Federation of 02.04.03 No. 187 (hereinafter referred to as Decree No. 187). The argument for this position was that Chapter 25 of the Tax Code of the Russian Federation limits this type of expenses for all categories of taxpayers.Therefore, before the approval of the relevant rules, all organizations must recognize expenses of this kind within the limits established for organizations financed from the federal budget.

Now, answering the question about the procedure for tax accounting for compensations for settling workers in a new place, the Ministry of Finance of Russia no longer requires the use of the norms established by Decree No. 187.

THE AMOUNT OF COMPENSATION SHOULD BE SET IN THE EMPLOYMENT CONTRACT

Specialists of the Ministry of Finance of Russia came to the conclusion that an organization, when calculating income tax, can fully take into account these amounts as expenses. As before, the financial department recognizes such payments as lifting and recalls that for the purposes of taxation of profits they are accepted within the limits.

The specific maximum amount of reimbursement of expenses is determined by agreement of the parties to the employment contract. After all, the obligation of the employer to pay compensation to an employee moving to work in another area is expressly stated in Article 169 of the Labor Code of the Russian Federation. Therefore, when calculating income tax, it is necessary to use as norms the amounts of payments established by the employment contract (or an additional agreement to it). It is within the limits of such amounts that expenses can be recognized in tax accounting.

WHEN LIFT CAN TURN INTO A LOAN AND LEAD TO A TAX RECALCULATION

The commented letter also contains an explanation on the issue that arises if the employment contract provides for the following condition. In case of dismissal of an employee within, for example, five years after receiving a lifting allowance, he is obliged to reimburse the entire amount of funds for the arrangement without paying interest.

According to the Ministry of Finance of Russia, in this situation, the amount previously issued by the employer should be considered as an interest-free loan. Therefore, the employee receives income in the form of material benefits from savings on interest, which are subject to personal income tax ().

But what about the previously withheld amount of personal income tax? After all, when paying compensation, the employer must withhold personal income tax, since the expenses of relocated workers for hiring housing do not fall under paragraph 3 and are therefore taxed. Specialists of the financial department believe that the company should recalculate in the tax period in which the specified income was received. After all, the income of an employee in the form of a lifting allowance received by him is no longer recognized as subject to taxation. Therefore, excess tax withheld from him is refundable.

EXAMPLE

In May 2007, I.I. Ivanov, who lives in Nizhny Novgorod, was hired by Gamma LLC, located in Moscow. He had to move from Nizhny Novgorod to Moscow. In accordance with the employment contract, on May 31, Gamma LLC paid for Ivanov the first installment on a mortgage loan in the amount of 120,000 rubles. Also on that day, the company paid for the rental of housing in the amount of 30,000 rubles, which was rented for an employee until the moment when he moves into an apartment purchased on a mortgage.

The employment contract provides that in the event of dismissal earlier than five years from the date of employment, the employee must reimburse the company for the funds transferred for him. On January 15, 2009, Ivanov resigned. Upon his dismissal, he compensated Gamma LLC for 150,000 rubles paid for him in May 2007.

In May 2007, 150,000 rubles were included in Ivanov's income, that is, the amount of tax withheld from him in excess amounted to 19,500 rubles. At the same time, the amounts paid for Ivanov are considered as an interest-free loan issued to him, so Ivanov received material benefits during the time he used the loan. It is subject to personal income tax at a rate of 35% (Note that, according to the Ministry of Finance of Russia, in 2007 the organization should have acted as a tax agent in this case (letters No. No. 03-05-01-04/140, No. 03-05-01-04/356 dated November 14, 2005. Since 2008, such an obligation of the company has been directly established by the Tax Code).

So, the material benefit on an interest-free loan in 2007-2009 is calculated as the sum of interest calculated on the basis of 3/4 of the refinancing rate (since 2009 - based on 2/3 of the refinancing rate).

In 2007, the material benefit had to be determined at least once during the tax period using the refinancing rate in effect on the date of receipt of the loan (subclause 1, clause 1, subclause 2, clause 2, article . Thus, the amount of benefit for 2007 will amount to 6925.68 rubles (3/4 * 10.5% * (214 days : 365 days) * 150,000 rubles) And the amount of tax to be withheld from Ivanov for 2007 will be equal to 2424 rubles ( 6925.68 rubles * 35%).

Since 2008, the material benefit is calculated on the date of repayment of the loan and based on the rate of the Central Bank of the Russian Federation on that date. For 2008-2009, Ivanov's taxable income will be determined on January 15, 2009 and, accordingly, will be included in 2009 income. Its size will be 12,493.15 rubles. (2/3 * 12% * ((365 days + 15 days) : 365 days) * 150,000 rubles). The tax amount is 4373 rubles. (12,493.15 rubles * 35%).

The amount of tax calculated from material benefits amounted to 6797 rubles. This means that the company unnecessarily withheld personal income tax from an employee in the amount of 12,703 rubles. (19,500 rubles - 6,797 rubles).

The same should be done with the amounts of UST, which was calculated from the compensation issued to the employee and transferred to the budget.

Please note: expenses in the form of loans issued are not recognized for income tax purposes (clause 12). Therefore, it is necessary to exclude the amounts of payments to the employee from the expenses of the corresponding tax period and submit an updated declaration to the tax authority. In this case, the company will have an income tax arrears that need to be paid. In addition, you will have to pay penalties.

HOW TO BE IF THREE YEARS HAVE PASSED FROM THE PAYMENT OF COMPENSATION

Unfortunately, the financial department did not explain the rather serious issue of the return of excessively withheld amounts of personal income tax and unified social tax. How should the tax be recalculated if the employee quits, for example, four and a half years after receiving the compensation? After all, the return (as well as offset) of overpaid tax amounts is allowed within three years from the date of their transfer to the budget (clause 7

At the same time, there is no reason to reflect a decrease in the income of an individual in the period when the amounts received by him were reclassified, since the period to which the payments relate is clearly defined (clause 1). It turns out that, in fact, an individual will not be able to return the amounts of personal income tax excessively withheld from him if the employment relationship with the employer is interrupted after three years from the date of payment of the lifting?

According to Deputy Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia Sergey Razgulin, which he told the editors "DK", in this situation, an individual will be able to return the excessively withheld tax through the court. In this case, you can use the procedural legislation and the general period established by the Civil Code of the Russian Federation - three years from the moment when it became known about the violation of rights.

E.Yu. Zabramnaya, lawyer, Ph.D. n.

We move with the employer to another area

When an organization moves from one area to another, in addition to the fact that there are a lot of organizational and technical difficulties, you need to deal with the staff.

Some of the workers will agree to move, but, of course, there will be those who do not want to move. How to be with them? And is it possible to dismiss pregnant employees and women with children under the age of 3, single mothers raising a child under the age of 14 (a disabled child under 18), as well as other persons raising such children without a mother, in case of their refusal to move A Art. 261 of the Labor Code of the Russian Federation?

You will find answers to all these questions in our article.

What is a transfer to another locality together with the employer

The transfer of an employee to another locality together with the employer is a type of transfer to another permanent job. This means that such a transfer is possible only with the written consent of the employee. A Art. 72.1 of the Labor Code of the Russian Federation.

Place of work is a mandatory condition of the employment contract A Art. 57 of the Labor Code of the Russian Federation.

Other terrain- this is an area outside the administrative-territorial boundaries of a certain settlement A Clause 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2. The area changes when you move to another city, town, village. And a change in the location of the company within one locality (for example, moving from one city street to another) will not be a change of location, since the locality has not changed.

ATTENTION

Location of the organization And paragraph 2 of Art. 54 of the Civil Code of the Russian Federation may not coincide with the place of work of its employees.

It should also be taken into account that not always a change in the location of the company entails the need to transfer its employees to another area. The fact is that the location of the organization (that is, the location of its executive body A paragraph 2 of Art. 54 of the Civil Code of the Russian Federation) and the place of work of its employees do not necessarily coincide. For example, an organization is located in St. Petersburg, and its warehouse is in Gatchina. Then a change in the location of the organization, for example, its relocation to the city of Pushkino, will not entail the transfer of warehouse workers together with the employer to another locality. After all, they will continue to work in the city of Gatchina. But at the same time, the relocation of the company from St. Petersburg to Pushkino entails the need to change the place of work of employees working in St. Petersburg, and should be considered as their transfer to another location together with the employer.

If a separate division moves, for example, a branch, then its employees also change their place of work s Art. 57 of the Labor Code of the Russian Federation. This means that their transfer must be processed according to the rules for transferring to another locality together with the employer.

Transfer to work in another locality together with the employer must be distinguished from other movements (relocations) of employees, namely:

• from the transfer of an employee from one structural unit of the company to another, located in a different area, if the company itself does not move. It will also be a transfer of an employee to another job. at Art. 72.1 of the Labor Code of the Russian Federation, but not transfer to another locality with the employer, since his location does not change;
• from the movement of employees working on a rotational basis in such areas as geological exploration, construction, logging, etc. In this case, the employee works at facilities located in different areas. This is a condition of his employment contract. Therefore, its movement from one object to another cannot, in principle, be considered as a translation.

"Personnel" actions of the employer when moving to another area

First, you need to inform in writing all employees whose place of work coincides with the location of the organization about the upcoming relocation of the company. And Art. 57 of the Labor Code of the Russian Federation, Art. 72 Labor Code of the Russian Federation. The employer does not have the right not to inform one of the employees about the move, even if it is unprofitable for him to transfer someone to another area and it is easier to hire in a new place (for example, a cleaner, a driver, etc.). But with such employees, you can try to negotiate a dismissal on mutually beneficial terms.

From reputable sources

Deputy Director of the Department of Salaries, Occupational Safety and Social Partnership of the Ministry of Health and Social Development of Russia

“ The employer is obliged to inform all employees of the organization about the upcoming move. He cannot lay off workers on his own initiative just because he is moving. He notifies them of the move, and they either agree to move or not. But if it is unprofitable for the employer to transport someone, for example, unskilled personnel, then he can agree with the employees on their dismissal on favorable terms for them.

For example, an employer can negotiate with employees about severance pay if they agree to quit by agreement of the parties or of their own free will.

But if the employees do not agree to quit by agreement of the parties or of their own free will and want to move, and it is unprofitable for the employer to transport them, then dismiss them under paragraph 9 of Art. 77 of the Labor Code of the Russian Federation, he cannot. Such workers will have to be transferred.”

It is also possible that some of the employees will refuse the transfer if they are not satisfied with the amount of reimbursed expenses. For example, if your company will reimburse employees for moving expenses according to the norms established for state employees V. In particular, the costs of settling down employees of budgetary organizations in a new place of residence depend on their salary. V sub. "c" paragraph 1 of the Decree of the Government of the Russian Federation of 04/02/2003 No. 187. And for unskilled staff with low salaries, such payments will amount to an insignificant amount, which can make the move unattractive for them.

Offer employees relocation

STEP 1. We inform in writing about the move in any form

The move notice must include:

• the locality where the company is moving;
• the term of the actual relocation of the company to a new location and, accordingly, the date the employee starts working in a new location;
• guarantees that the company provides to the employee in connection with such a move, including the composition and amount of expenses reimbursed to the employee in connection with the move m Art. 169 of the Labor Code of the Russian Federation.

An employee who moves with the company to another area will need to be reimbursed s Art. 169 of the Labor Code of the Russian Federation:

1) upon the relocation of himself, as well as members of his family;

2) for the transportation of property;

3) on arrangement at a new place of residence. This, for example, can be specific amounts of payments for the employees themselves and members of their families, as established for state employees. V Decree of the Government of the Russian Federation of 02.04.2003 No. 187. It is also possible to prescribe in an additional agreement to the employment contract the obligation of the employer to purchase an apartment for the employee in a new area;

From reputable sources

“ All issues of reimbursement of expenses (for the relocation of employees, transportation of luggage) should be regulated precisely in additional agreements with employees. Among these expenses, you can also prescribe the purchase of an apartment in a new area. Reimbursable expenses may vary from employee to employee. For example, one can buy an apartment, but the other cannot. All this can be included in the expenses reimbursed in connection with the move.

Ministry of Health and Social Development of Russia

• reimbursement method:
• <или>payment of expenses already incurred by the employee after the fact;
• <или>issuing an advance payment to an employee;
• the period during which the employee must notify you whether he agrees to the transfer;
• the condition that the employee’s failure to obtain consent to the transfer within the prescribed period will be regarded as his refusal to transfer;
• the consequences of the employee's refusal to transfer together with the employer to another area in the form of dismissal.

It is better to hand this message to the employee against signature.

Since when an employee moves, such a condition of his employment contract as a place of work changes, warn him about this change no later than 2 months in advance A Art. 57 of the Labor Code of the Russian Federation, Art. 74 Labor Code of the Russian Federation. In addition, before making a decision whether to move or not, an employee should discuss this issue with family members, weigh all the pros and cons. And if a decision is made in favor of moving, prepare for it.

However, the Ministry of Health and Social Development expressed a different point of view.

From reputable sources

“ A transfer to work in another locality with an employer is a transfer to another job. A transfer to another job is allowed with the written consent of the employee A Art. 72.1 of the Labor Code of the Russian Federation. Therefore, the employer must necessarily obtain from the employee either a written consent to the transfer to work in another locality, or a written refusal to such a transfer.
If an employee refuses to transfer to another job, he may be fired. n p. 9 h. 1 art. 77 Labor Code of the Russian Federation. At the same time, a 2-month notice period for an employee about dismissal has not been established, because there are no organizational or technological changes during the move. So Art. 74 of the Labor Code of the Russian Federation, which obliges to warn the employee of dismissal 2 months in advance, does not apply in this case.

Ministry of Health and Social Development of Russia

STEP 2. We receive from the employee consent to the transfer or refusal

For this you can:

• <или>receive from him a separate statement of consent / disagreement to the transfer;
• <или>include in the message that you give to the employee, a detachable part, where he will express his agreement / disagreement with the transfer. He will fill out this tear-off part and give it to you.

Such a message can be formatted as follows.

Limited Liability Company "Eurostyle"

Head of department
marketing
Zenin P.S.

Dear Petr Semenovich!

According to the decision of the general meeting of participants of Eurostyle LLC No. 6 dated 12/01/2010, Eurostyle LLC is changing its location from 03/01/2011 and will be located at: 309514, Belgorod Region, Stary Oskol, st. January 9, d. 3.

We offer you a transfer to work in the specified area from 03/01/2011.

If you agree to the transfer, Eurostyle LLC will reimburse you for the relocation expenses, including the relocation of family members, transportation of property and settling in a new place of residence, in the amount established in the local Regulation on compensation of expenses for employees of Eurostyle LLC in connection with their transfer to another area with the employer.

We inform you that in accordance with Part 1 of Art. 72.1 of the Labor Code of the Russian Federation, you have the right to agree to a transfer or refuse it. In case of refusal, the employment contract with you will be terminated on the basis of clause 9, part 1, art. 77 of the Labor Code of the Russian Federation with the payment of a severance pay to you in the amount of two weeks of average monthly earnings.

We ask you to inform the head of the personnel department of Eurostyle LLC about the decision taken in writing by 15.02.2011. Failure to receive your consent to the transfer within the specified period will be regarded as a refusal to transfer.

STEP 3. Dismiss those who did not agree to the transfer

The refusal of the employee to transfer to another locality together with the employer entails his dismissal e p. 9 h. 1 art. 77 Labor Code of the Russian Federation.

This also applies to pregnant employees, as well as women with children under the age of 3, single mothers raising a child under the age of 14 (a disabled child under 18), and other persons raising such children without a mother. After all, the employer cannot keep them working in the same area.

The Labor Code of the Russian Federation limits the dismissal of such employees at the initiative of the employer. I Art. 261 of the Labor Code of the Russian Federation. But dismissal due to the employee's refusal to move to another locality with the organization does not apply to dismissals at the initiative of the employer. I pp. 4, 9 h. 1 tbsp. 77 Labor Code of the Russian Federation.

To dismiss employees who do not agree to move, issue an order to terminate the employment contract in the form No. T-8 (or T-8a, if there are several dismissed).

In the line of the order “Reason (document, number, date)”, indicate the details of the decision to move the company to another locality, as well as the document in which the employee’s refusal to transfer is recorded A p. 9 h. 1 art. 77 of the Labor Code of the Russian Federation; Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1.

Do not forget to familiarize the employee with the order of dismissal against signature.

And if it is impossible to bring the order to the attention of the employee, make a note about this on the order itself e Art. 84.1 of the Labor Code of the Russian Federation.

On the day of dismissal:

• settle with the employee, paying him, in addition to the salary due and compensation for unused vacation, a severance pay in the amount of two weeks of average earnings A Art. 178 Labor Code of the Russian Federation;
• give the employee a work book with a record of dismissal And Art. 84.1 of the Labor Code of the Russian Federation, having previously asked him to certify with his signature the correctness of the entries in the work book e p. 35 of the Rules for the maintenance and storage of work books, the production of work book forms and the provision of employers with them, approved. Decree of the Government of the Russian Federation of April 16, 2003 No. 225 (hereinafter referred to as the Rules).

The entry in the work book in this situation should be like this.

• make a record of the dismissal, similar to the entry in the work book, in the employee’s personal card in the form No. T-2 and ask the employee to sign the personal card e clause 41 of the Rules;
• ask the employee to sign in the book of accounting for the movement of work books and inserts in them X clause 41 of the Rules.

STEP 4. We process the transfer of employees who agreed to it

With the consent of the employee for the transfer, you must:

• conclude with him an additional agreement to the employment contract on transfer to another locality;
• issue an order to transfer an employee in the form No. T-5 approved Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1.

If there are more than one transferred workers, then it is better to issue one order in the form No. T-5a

Employment contract (relationship)

when moving from another region

Effective business without competent personnel management today is hardly possible. Therefore, any employer sooner or later has to deal with the movement or transfer of employees to another job. If the organization has a branch network, then the transfer of an employee to another job may be associated with the latter's relocation to another area. Labor relations when moving from another region have their own specifics, which we will discuss in this article.

There are several objective reasons that, within the framework of the existing labor relations between the employee and the employer, may entail the need for the employee to move to another area. So, the relocation of an employee can be associated with:

- with his transfer to a branch, representative office or other structural unit of the company located in another area;

- with moving to another locality of the organization itself.

In addition, the relocation of an employee may be associated with the conclusion of an employment contract with a new employer located in a different area, or with the hiring of a young specialist who has undergone training in the form of targeted contract training. True, in these cases we are talking about a move that is carried out outside the framework of labor relations: in the first case, the transfer is carried out through dismissal, and in the second, we are talking about a potential employee of the organization with whom it is only planned to conclude an employment contract.

Moving an employee to another region, carried out in the interests of the employer, actually means for the employee of the company his transfer to another permanent job. Therefore, before drawing up documents on the transfer of an employee to a new permanent job, the employer should obtain his written consent, these are the requirements of Article 72.1 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation).

the written consent of the employee to the transfer and moving to a new place of work is a documentary confirmation of the preliminary agreement between the employee and the organization for the move. The existence of such an agreement between the parties to the employment agreement is very important and here's why.

Changing the place of residence, moving and settling in a new place is troublesome and very costly. However, in this case, the employer must bear all the expenses of the employee for moving to a new place of work, as indicated by article 165 of the Labor Code of the Russian Federation.

It follows from this article of labor law that an employee moving to a new place of work, in addition to the general guarantees and compensations established by labor law, is subject to guarantees and compensations established by Article 169 of the Labor Code of the Russian Federation.

By virtue of the said article, when an employee moves, by prior agreement with the employer, to work in another locality, the employer is obliged to reimburse the employee:

– expenses for the relocation of the employee, members of his family and the transportation of property (except for cases when the employer provides the employee with appropriate means of transportation);

- the cost of settling in a new place of residence.

The procedure and amount of reimbursement of expenses when moving to work in another locality for employees who have concluded an employment contract for work in federal state bodies, employees of state non-budgetary funds of the Russian Federation, federal state institutions are determined by regulatory legal acts of the Government of the Russian Federation.

The procedure and amount of reimbursement of expenses when moving to work in another locality for employees who have concluded an employment contract for work in state bodies of the constituent entities of the Russian Federation, employees of state institutions of the constituent entities of the Russian Federation, persons working in local governments, employees of municipal institutions are determined accordingly by the regulatory legal acts of the bodies state power of the constituent entities of the Russian Federation, regulatory legal acts of local governments.

The procedure and amount of reimbursement of expenses when moving to work in another area for employees of other employers are determined by a collective agreement or a local regulatory act or by agreement of the parties to the employment contract, unless otherwise established by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation.

As you can see, the Labor Code of the Russian Federation does not limit the employer to any maximum amount of reimbursement of expenses associated with the move. An exception is established only for public sector organizations. For example, federal state institutions, in order to reimburse the costs of moving, should be guided by the reimbursement standards established by Decree of the Government of the Russian Federation dated April 2, 2003 No. bodies, employees of state non-budgetary funds of the Russian Federation and federal state institutions" (hereinafter referred to as Resolution No. 187).

As follows from Resolution No. 187, reimbursement of expenses when moving to work in another locality (that is, to a locality outside the administrative-territorial boundaries of the corresponding settlement (paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation")) to employees of federal state institutions, is carried out in the following amounts:

expenses for the relocation of the employee and his family members (including payment for services for issuing travel documents, expenses for the use of bedding on trains) - in the amount of actual expenses confirmed by travel documents, but not higher than the cost of travel:

- by rail - in a compartment car of a fast branded train;

- by water transport - in the cabin of the V group of a sea vessel of regular transport lines and lines with integrated passenger service, in the cabin of the II category of a river vessel of all lines of communication, in the cabin of the I category of a ferry vessel;

– by air – in the economy class cabin;

– by road – in a public vehicle (except for a taxi).

If there are no travel documents confirming the travel expenses, then the reimbursement is made in the amount of the minimum fare:

- by rail - in a reserved seat car of a passenger train;

- by water transport - in the cabin of the X group of a sea vessel of regular transport lines and lines with integrated passenger service, in the cabin of category III of a river vessel of all lines of communication;

- by road - in a general type bus;

expenses for the transportation of property by rail, water and road transport (public) in the amount of up to 500 kilograms per employee and up to 150 kilograms for each moving member of his family - in the amount of actual expenses, but not higher than the tariffs provided for the transportation of goods (cargo luggage) by rail transport.

Keep in mind that in the absence of these modes of transport, expenses for the transportation of property by air from the nearest railway station to the place of work or from the nearest sea or river port that is open for navigation at this time are reimbursed.

Note!

In the event that a federal government agency provides an employee with appropriate means of transportation, then the above moving costs will not be reimbursed to them.

In addition to travel and baggage costs, the federal government agency must reimburse the worker for settling costs and per diems.

According to Decree No. 187, reimbursement of expenses for settling in a new place of residence is:

- for an employee - in the amount of a monthly official salary (monthly tariff rate) at his new place of work;

- for each moving member of his family - in the amount of one fourth of the official salary (one fourth of the monthly tariff rate) at the new place of work of the employee.

The per diem is paid at the rate of 100 rubles for each day of being on the way to a new place of work.

Note!

Decree No. 187 limits not only the amount of compensation, but also the period during which the federal state institution is obliged to reimburse the costs of moving the employee's family members and transporting their property, as well as arranging them at a new place of residence. These expenses are reimbursed by the institution only if the employee's family members move to the place of his new residence before the expiration of one year from the date of the actual provision of housing to him.

For reference: Article 2 of the Family Code of the Russian Federation includes only spouses, parents (adoptive parents) and children (adopted) as family members.

We would like to draw your attention to the fact that if it is not possible to determine in advance the exact amount of reimbursable expenses in connection with the employee's relocation to work in another area, then an advance payment is issued to him, by prior agreement with the employer.

Keep in mind that paragraph 6 of Decree No. 187 obliges the employee to fully return the funds paid to him in connection with moving to work in another locality, if:

- he did not start work on time without a good reason;

- he, before the end of the term of work determined by the employment contract, and in the absence of a certain period, before the expiration of one year of work, resigned of his own free will without good reason or was dismissed for guilty actions, which, in accordance with the legislation of the Russian Federation, were the basis for termination of the employment contract.

In the event that the employee did not show up for work or refused to start work for a good reason, he is obliged to return the funds paid to him, minus the expenses incurred for moving him and his family members, as well as for transporting property.

Note!

Clause 7 of Decree No. 187 limits its scope - the norms of this regulatory document do not apply to categories of employees for whom, in accordance with the legislation of the Russian Federation, other amounts of reimbursement of expenses are provided for when moving to work in another locality.

So, for example, the norms of Decree No. 187 do not apply to employees of federal state institutions - northerners.

The procedure for compensating expenses associated with the relocation of persons who have concluded employment contracts with employers located in the regions of the Far North and areas equivalent to them, and who arrived in accordance with these contracts from other regions of the Russian Federation, is determined by Articles 326 of the Labor Code of the Russian Federation, 35 of the Law of the Russian Federation dated February 19, 1993 No. 4520-1 "On State Guarantees and Compensations for Persons Working and Living in the Far North and Equivalent Localities" (hereinafter referred to as Law of the Russian Federation No. 4520-1), from which it follows that these persons relocation is reimbursed in a different amount.

It must be said that from the point of view of labor law, the reimbursement of expenses for moving an employee to a new place of work in accordance with Article 164 of the Labor Code of the Russian Federation is recognized as compensation, that is, it is a cash payment made in order to reimburse employees for the costs associated with the performance of their labor duties. This is confirmed by the Ministry of Finance of Russia in its letter dated January 17, 2006 No. 03-03-04 / 1/30.

The qualification of these cash payments as compensation in the sense of Article 164 of the Labor Code of the Russian Federation is of decisive importance in terms of their taxation on personal income, the procedure for calculating and paying which is established by the norms of Chapter 23 "Income Tax on Individuals" of the Tax Code of the Russian Federation (hereinafter - TC RF).

Recall that paragraph 3 of Article 217 of the Tax Code of the Russian Federation exempts from personal income tax all types of compensation payments established by the current legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local authorities (within the limits established in accordance with the legislation of the Russian Federation), related, including the fulfillment by the taxpayer of labor duties (including moving to work in another area and reimbursement of travel expenses).

Consequently, the amounts reimbursed by the organization for the cost of travel of the employee and members of his family to the place of work, made in connection with his moving to work in another locality, are not subject to personal income tax in the amount established by agreement of the parties to the employment contract. The same opinion on this issue is shared by the Ministry of Finance of Russia in its clarifications. In particular, this point of view was expressed by him in a letter dated November 18, 2014 No. 03-04-06/58173, in a letter dated May 15, 2013 No. 03-03-06/1/16789 and others.

Note that they are not subject to personal income tax on the basis of paragraph 3 of Article 217 of the Tax Code of the Russian Federation and compensation of expenses associated with the relocation of persons who have concluded employment contracts for work in organizations located in the Far North and equivalent areas, moreover, in the amounts established by Articles 326 of the Labor Code RF, 35 of the Law of the Russian Federation No. 4520-1, which follows from the letter of the Ministry of Finance of the Russian Federation dated April 8, 2005 No. 03-05-01-04 / 92.

Note!

The provisions of Article 169 of the Labor Code of the Russian Federation, as stated in the letter of the Ministry of Finance of Russia dated June 30, 2014 No. 03-04-06 / 31385, apply when the employee, in agreement with the employer, moves from one place of work in which he performed his labor duties, to another job with the same employer. At the time of moving to work in another locality, an individual must be in an employment relationship with the same employer, by agreement with which he is moving from one place of work with this employer to another place of work located in another locality.

Therefore, in the case of hiring a new employee and paying for travel to his place of work specified in the employment contract, as well as expenses for settling in a new place of residence, the amount of this payment is the income of this employee received in kind, and, accordingly, is subject to personal income tax in the established okay. This is also stated in the letter of the Ministry of Finance of Russia dated July 14, 2009 No. 03-03-06 / 2/140.

You should also pay attention to the fact that in paragraph 3 of Article 217 of the Tax Code of the Russian Federation, only the costs of moving an employee are directly named and nothing is said about whether they include the costs of renting housing! Naturally, in such a situation, the regulatory authorities working for the treasury insist that the amount of compensation to the employee for the cost of renting housing cannot be considered as compensation associated with the move. This approach of controllers equates the reimbursed costs of renting housing to the income of an individual subject to personal income tax in the general manner. It is this point of view that is stated in the letters of the Ministry of Finance of Russia dated July 13, 2009 No. 03-04-06-01 / 165, dated February 13, 2012 No. 03-04-06 / 6-35, dated May 15, 2013 No. 03-03 -06/1/16789.

The arbitrators do not agree with this approach, as evidenced by the decision of the FAS of the East Siberian District of September 11, 2013 in case No. A19-2330 / 2013, the decision of the FAS of the Moscow District of March 21, 2011 No. KA-A40 / 1449-11 in the case No. A40-36395 / 10-107-192, decision of the Federal Antimonopoly Service of the Volga-Vyatka District of June 24, 2008 in case No. A43-28282 / 2007-37-943 and others.

This is with regard to employee taxes, now a few words about the taxation of these amounts by the employer.

Organizations paying income tax, when calculating this tax, are guided by the provisions of Chapter 25 "Corporate Income Tax" of the Tax Code of the Russian Federation. It follows from the norms of this chapter that the taxpayer's taxable expenses include expenses that meet the criteria of Article 252 of the Tax Code of the Russian Federation, and are not directly named in Article 270 of the Tax Code of the Russian Federation. Therefore, if the amounts of compensation paid are related to the receipt of income, are justified and documented, then the organization has the right to take them into account for tax purposes. This is also confirmed by subparagraph 5 of paragraph 1 of article 264 of the Tax Code of the Russian Federation, according to which the amounts of paid lifting allowances within the limits established in accordance with the legislation of the Russian Federation are included in other expenses of the taxpayer related to production and sale.

Note!

Chapter 25 of the Tax Code of the Russian Federation does not decipher the concept of "lifting", but financiers in their letter dated May 26, 2008 No. 03-04-06-01 / 140 explain that for tax purposes, lifting should be understood as compensatory amounts paid by the employer in accordance with the legislation of the Russian Federation when an employee moves to work in another area (lifting allowance).

Moreover, as we have already noted, public sector organizations - federal state institutions, state institutions of the constituent entities of the Russian Federation, municipal institutions, when paying lifting allowances, are required to be guided by the compensation rates provided for by the regulatory legal acts of the Government of the Russian Federation, state authorities of the constituent entities of the Russian Federation, local authorities , and all other companies - the amount of compensation established by the parties to the employment contract (collective agreements).

Keep in mind that the lifting standards for employees of "northern" firms - for persons who have concluded labor contracts for work in organizations located in the regions of the Far North and equivalent areas, and who arrived in accordance with these contracts from other regions of the Russian Federation, are established article 326 of the Labor Code of the Russian Federation and article 35 of the Law of the Russian Federation No. 4520-1.

Financiers give similar explanations in this regard in their letters dated May 15, 2013 No. 03-03-06 / 1/16789, dated February 13, 2012 No. 03-04-06 / 6-35, dated November 23, 2011 No. 03- 03-06/1/773. The arbitrators also agree with this approach, as indicated by the decision of the FAS of the Moscow District dated June 3, 2009 No. KA-A40 / 4697-09-2 in case No. A40-34897 / 08-117-96.

By the way, we recommend that organizations paying income tax pay attention to the letter of the Ministry of Finance of Russia dated May 26, 2008 No. in the region of the Far North, to another settlement, also located in the region of the Far North. In such a situation, financiers believe that the employer also has the right to take into account for tax purposes the costs of moving the employee, if the amount of such compensation is provided for by the employment contract.

If, when moving to another locality, the organization pays the employee the cost of renting housing, then the organization has a chance to take into account such amounts for tax purposes. Such a conclusion can be drawn on the basis of the clarifications of the Ministry of Finance of Russia contained in the letter dated December 18, 2007 No. 03-03-06/1/874. It considers the situation when an organization invited an employee from another subject of the Russian Federation to work. According to the employment contract, she reimburses him for monthly expenses under the contract for renting a dwelling (with the exception of utilities), while the amount of compensation cannot exceed 0.5 of the salary. When asked whether these expenses are taken into account when calculating income tax, the Ministry of Finance replies that the cost of renting a dwelling, reimbursed by a Russian organization to its employee, a Russian organization has the right to take into account for tax purposes the profits of organizations in an amount not exceeding 20% ​​of the amount of wages .

Note!

If the employer compensates the costs of moving and settling to a person with whom he is not yet associated with labor relations, then such expenses of the organization are not taken into account for tax purposes. This is explained by the fact that before the conclusion of an employment contract with an individual, he is not an employee of this organization, and, as a result, the employer does not have an obligation to reimburse him for the costs of moving. This opinion of the tax authorities is stated in the letter of the Federal Tax Service of Russia for the city of Moscow dated February 18, 2008 No. 20-12 / 015139.

I agree with this point of view of the fiscal authorities and the Ministry of Finance of Russia, as evidenced by its letter dated July 23, 2009 No. 03-03-05 / 138. Yes, it is really impossible to recognize the amount of compensation to a potential employee as lifting, since they are paid only within the framework of already existing labor relations. At the same time, the organization can take them into account as labor costs on the basis of paragraph 25 of Article 255 of the Tax Code of the Russian Federation. This is what the Ministry of Finance of Russia recommends doing in such a situation in its letter dated July 23, 2009 No. 03-03-05 / 138. Do not forget to specify the procedure for reimbursement of expenses in the employment contract with the employee being hired!

Recall that organizations are recognized as payers of insurance premiums:

- compulsory pension insurance;

- for compulsory social insurance for temporary disability and in connection with motherhood;

- Compulsory health insurance.

The procedure for their calculation and payment is determined by the Federal Law of July 24, 2009 No. 212-FZ "On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund" (hereinafter - Law No. 212-FZ).

On the basis of paragraph 1 of Article 9 of Law No. 212-FZ, an organization that reimburses expenses associated with moving an employee to a new place of work, in the amount determined by the employment contract, does not have an obligation to accrue insurance premiums for compulsory types of social insurance.

Keep in mind that in terms of expenses such as the cost of renting an employee’s housing, insurance premiums will have to be charged, since this type of reimbursable expenses is not named in Article 169 of the Labor Code of the Russian Federation and, accordingly, cannot be considered as compensation established by law related to with the performance of work duties by the employee. Although there are examples of judicial practice in which the courts indicate that the costs of renting housing when moving to a new place of work are included in the cost of settling down. As an example, we can cite the decision of the Federal Antimonopoly Service of the Moscow District dated September 6, 2007, September 13, 2007 No. KA-A40 / 9054-07 in case No. A40-75099 / 06-107-471, in which the court indicated that renting a house is an integral part of settling in a new place of residence, which means that the accommodation of non-resident workers hired for a season or for a certain period is compensation to the employee when moving to a new place of work. Despite the fact that in this court decision, the cost of renting housing was the subject of a dispute on the unified social tax, today, according to the author, this decision can also be used in terms of paying insurance premiums for compulsory types of social insurance.

In addition to tax accounting, the amount of reimbursement of expenses for moving must be reflected by the organization in accounting.

The payment of the amount of compensation for expenses for the relocation of an employee, provided for by an employment contract, is recognized for the organization as expenses for ordinary activities, on the basis of which the cost of goods manufactured, work performed, services rendered is formed. This is indicated by paragraphs 5 and 9 of the Regulations on Accounting "Expenses of the organization" PBU 10/99, approved by Order of the Ministry of Finance of Russia dated May 6, 1999 No. 33n.

The Chart of Accounts for Financial and Economic Activities of Organizations and the Instructions for its Application, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 No. 94n, is intended to summarize information on all types of settlements with employees of the organization, except for payroll settlements and settlements with accountable persons, account 73 "Settlements with personnel for other operations".

The amount of expenses associated with the move is reflected in the debit of the production cost accounts (20 "Main production", 26 "General expenses", 44 "Sales expenses" and others) in correspondence with the credit of account 73 "Settlements with personnel for other operations" . The payment of the amount of compensation is reflected in the debit of account 73 "Settlements with personnel for other operations" in correspondence with account 50 "Cashier".

We will consider the procedure for reflecting reimbursement of expenses when moving from another region in accounting on a specific example.

Example

According to the terms of the supplementary agreement to the employment contract, an organization located in the city of Krasnoyarsk compensates the employee for the expenses associated with his moving to the place of business of the branch of the organization established in another city (Tomsk), namely:

– expenses for the travel of an employee and members of his family from Krasnoyarsk to Tomsk in a compartment car of a branded fast train in the amount of 15,000 rubles;

– expenses for the transportation of property in the amount of 7,500 rubles;

- expenses for settling in a new place of residence in the amount of two monthly official salaries (90,000 rubles);

– daily allowance in the amount of 300 rubles (for three days of travel).

The organization issued an advance payment for the move in the amount of 35,000 rubles.

In the accounting of the organization, these business transactions will be reflected as follows:

- 35,000 rubles - an advance payment was issued to the employee for moving to the place of work;

Debit 26 "General expenses" Credit 73 "Settlements with personnel for other operations"

- 112,800 rubles - reflects the amount of actual expenses for moving an employee to a new place of work (15,000 rubles + 7,500 rubles + 90,000 rubles + 300 rubles);

Debit 73 "Settlements with personnel for other operations" Credit 50 "Cashier"

- 77,800 rubles - the amount of the difference between the actual expenses incurred for moving and the amount of the previously issued advance payment was paid to the employee (112,800 rubles - 35,000 rubles).

Concluding the article, we note that an employee to whom the employer offers to move to another region may refuse such an opportunity.

Note!

An employee's refusal to be transferred to a branch, representative office or other structural subdivision of a company located in another locality cannot be grounds for terminating an employment contract with an employee if the employer himself does not move to this locality!

If the employer himself moves to another locality, and the employee refuses to move, then the employment contract with him is terminated. The procedure for terminating an employment contract in connection with the employee's refusal to transfer to another job together with the employer is determined by article 72.1 of the Labor Code of the Russian Federation.

Since the transfer of an employee to work in another locality is a change in the terms of the employment contract determined by the parties, if the employee refuses to be transferred to work in another locality, together with the employer, the labor contract with him is terminated in accordance with clause 9 of part 1 of article 77 of the Labor Code of the Russian Federation.

Based on the written refusal of the employee, an order (instruction) is issued to terminate (cancel) the employment contract with the employee (dismissal). Recall that the unified form of this document (form No. T-8) was approved by the Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1 "On approval of unified forms of primary accounting documentation for accounting for labor and its payment."

The employee must be familiarized with the order (instruction) of the employer to terminate the employment contract against signature, this is indicated by article 84.1 of the Labor Code of the Russian Federation.

If the order (instruction) to terminate the employment contract cannot be brought to the attention of the employee or the employee refuses to get acquainted with it against signature, then an appropriate entry is made on the order (instruction).

Based on the dismissal order, a corresponding entry is made in the personal card (unified form No. T-2).

Upon termination of the employment contract at the initiative of the employer, the released employee is paid a severance pay, the minimum amount of which is determined by the Labor Code of the Russian Federation.

According to Article 178 of the Labor Code of the Russian Federation, upon termination of an employment contract due to an employee's refusal to be transferred to work in another locality together with the employer, he is paid a severance pay in the amount of two weeks of average earnings.

Note that an employment contract or a collective agreement may also establish increased amounts of severance pay.

13.06.2017 "Calculation", June 2017

Anna Manaenkova
lawyer

In any company, it may be necessary to transfer employees to other regions. Anna Manaenkova, a lawyer at the PRIORITET law firm, found out what actions an employer needs to take in order to competently draw up such a transfer in accordance with the law.

The transfer of an employee to work in another locality together with the employer is regulated by Article 72.1 of the Labor Code of the Russian Federation. A transfer should be understood as a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee is employed (if the structural unit was indicated in the employment contract), while continuing to work in the same company, as well as transfer to work in another locality together with an employer. Transfer to another job is allowed only with the written consent of the employee, with the exception of cases provided for in parts 2 and 3 of Article 72.2 of the Labor Code of the Russian Federation (such as fire, industrial accident, industrial accident, flood, famine, etc.). According to the legislation, the company, if it decides to move to another locality, must take certain actions. Let's take a look at the steps to take.

Informing

First, the company must notify all employees of the transfer of activities to another location and offer employees the transfer together with it. It should be noted that the Labor Code of the Russian Federation does not specifically and precisely determine the time frame and in what form the company must notify the decision and offer employees to transfer to another locality. Therefore, in practice, many employers, guided by Article 74 of the Labor Code of the Russian Federation, warn their employees about the move two months in advance. However, jurisprudence speaks of the fallacy of such a judgment. For example, according to the Appeal ruling of the Nizhny Novgorod Regional Court dated December 13, 2016 in case No. 33-14997 / 2016: “The actions of an employer who has decided to move to another locality are not regulated by the Labor Code of the Russian Federation. Since the procedure for informing employees about the relocation of the employer to another locality while maintaining the previous terms of the employment contract is not defined by law and differs from the procedure provided for in Article 74 of the Labor Code of the Russian Federation, the employer determines the terms and mechanism for resolving this issue with employees independently.

Due to the fact that the deadline for informing employees about the relocation of the employer to another locality is not fixed at the legislative level, the company must independently determine this period based on the principle of reasonableness.

In my opinion, notice of a company relocation must be served at least one calendar month prior to the proposed date. During this period, if the employee agrees to relocate, the employee will be able to make an informed decision, as well as complete all the necessary preparatory measures for further relocation, or, in case of refusal to relocate, the employee may begin to look for a new job.

Preparing a notice

The notice must be in writing and must contain the following information: the new address of the company's location; the period during which the employee must notify the employer of consent to the transfer or refusal of it; date of commencement of work of the employee in the new place; guarantees provided to the employee in connection with the move; the consequences of the employee’s refusal to transfer, together with the employer, to another locality (in this case, the dismissal of the employee on the grounds provided for in clause 9, part 1, article 77 of the Labor Code of the Russian Federation). The notice must be handed over to each employee of the company against signature, and in case of refusal to receive the notice by the employer, an appropriate act of refusal must be drawn up.

Formatting a response

The second important action of the employer is obtaining consent. It must be in writing. Obtaining a specific response (consent or refusal) from the relocation worker is extremely important for the employer, since in the future the employee can sue and challenge the actions of the company, and this document will serve as evidence of the legality of the company's actions.

Consider a case from practice: an employee filed a lawsuit to recognize his dismissal under subparagraph “a” of paragraph 6 of part 1 of Article 81 of the Labor Code of the Russian Federation for absenteeism as illegal and reinstatement in the position of Deputy General Director. In support of his claims, he indicated that he had been given a notice of transfer from the city of St. Petersburg to work in another locality together with the employer. He had questions, which he stated in his written request to management.

Due to the fact that there were no answers to them, he considered that he might not go to work at the new address of the enterprise. After examining the evidence presented in the case file, the court came to the conclusion that the employer did not receive consent to the transfer, as well as refusal from it, and the labor relations between the parties on the date of the actual relocation of the enterprise - September 1, 2012 - were not terminated. Under such circumstances, the plaintiff continued to be subject to the terms of the employment contract on compliance with discipline and internal labor regulations. Meanwhile, as seen from the case file, the plaintiff did not appear at work both in the city of St. Petersburg and at the new location of the employer, which is confirmed by the acts available in the case file and is not denied by the plaintiff himself. No explanation was received from him regarding his absence from work, he did not present any documents confirming the good reasons for his absence. Based on the foregoing, the court concluded that the plaintiff had indeed committed absenteeism and was rightfully dismissed by the employer. In connection with the foregoing, the court refused to satisfy the claims for recognition of illegal dismissal and reinstatement at work (Appeal ruling of the Moscow Regional Court of September 30, 2013 in case No. 33-19 078/2013).

Refusal or consent

When the employee is given a notice and a refusal or consent is received from him to transfer to another locality, the company can proceed to further steps to formalize the employment relationship provided for by the Labor Code of the Russian Federation.

If the employee refuses to move with the employer to another locality, the company must issue an order to dismiss the employee on the grounds provided for in clause 9 of part 1 of article 77 of the Labor Code of the Russian Federation, but not earlier than the period specified in the notice. In addition, the employer is obliged to pay the employee a severance pay in the amount of two weeks of average earnings, unless a different amount is provided for by the labor or collective agreement (Article 178 of the Labor Code of the Russian Federation). If the employee agrees to the transfer - in accordance with Article 169 of the Labor Code of the Russian Federation, when moving, by prior agreement with the employer, to work in another locality, the company is obliged to reimburse the employee: the costs of moving the employee's family members and transporting property, as well as the costs of settling in a new place residence.

At the same time, the procedure and amount of reimbursement of expenses are determined by a collective agreement or a local regulatory act or by agreement of the parties to an employment contract for employees of other employers, unless otherwise established by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation (part 4 of article 169 of the Labor Code of the Russian Federation) . To date, the procedure and amount of compensation when moving, in addition to the Labor Code of the Russian Federation, is also regulated by the Decree of the Council of Ministers of the USSR of July 15, 1981 No. 677 “On guarantees and compensations when moving to work in another area”, in part that does not contradict Article 423 of the Labor Code of the Russian Federation. Expenses for the transportation of property by rail, water and road transport (public) are paid in the amount of up to 500 kilograms for the employee himself and up to 150 kilograms for each moving family member. By agreement of the parties, the actual costs of transporting property in a larger amount may be paid.

Misinterpretation

Please note that in practice there are often cases of incorrect application of labor legislation, when the employer, when changing the location of the company, tries to dismiss the employee due to a refusal to continue working due to a change in the terms of the employment contract determined by the parties (clause 7, part 1, article 77 of the Labor Code of the Russian Federation). However, the relocation of the company to another locality does not fall under the above article of the Labor Code of the Russian Federation. A change in organizational or technological working conditions should be understood as a change in the structure of the organization, the mode of work and rest, the introduction of new production technologies, the improvement of jobs, etc. So, in one case from practice, a case was considered where the court found that the employee was fired legal and justified, but with the wrong wording. The employer, when moving a branch to another locality, fired an employee who refused to transfer under clause 7 of part 1 of article 77 of the Labor Code of the Russian Federation. However, in this case, the basis for dismissal, provided for in clause 9 of part 1 of article 77 of the Labor Code of the Russian Federation, was subject to application - the employee’s refusal to be transferred to work in another locality together with the employer. The court, by its decision, changed the wording to the correct one, without, nevertheless, recognizing the dismissal itself as illegal (Decision of the Novy Urengoy City Court of the YaNAO dated January 13, 2012, Appeal ruling of the Yamalo-Nenets Autonomous Okrug dated March 22, 2012 No. 33-550 / 2012 ).

In case of violation of the procedure for transferring an employee to work in another locality, the employee may appeal against the actions of the employer in court. An employee can ask the court to recognize the dismissal as illegal, reinstate him at work, at the same time demanding the recovery of moral damages from the company, average earnings for the time of forced absenteeism until the day of reinstatement at work, and compensation for court costs. And if the court establishes the fact of violation by the company of the procedure for transferring an employee, this will lead to additional costs.

It is possible to bring the employer to administrative responsibility for violation of labor legislation (clause 1, article 5.27 of the Code of Administrative Offenses of the Russian Federation). The sanction of this article provides for a warning or the imposition of an administrative fine on officials in the amount of 1,000 to 5,000 rubles; for legal entities - from 30,000 to 50,000 rubles.

In practice, cases of incorrect application of labor legislation are not uncommon, when the employer, when changing the location of the company, tries to dismiss the employee because of the refusal to continue working due to a change in the terms of the employment contract determined by the parties.