Problems of temporary transfer of an employee (part 1 of Art. 72.2 of the Labor Code): A practical aspect

Abstract

This article discusses various problems that may arise regarding the realization of the right to transform an agreement regarding an employee’s temporary transfer to another job being made permanent (Part 1 of the Art. 72.2 of the Labor Code of the Russian Federation). In the authors’ opinion the wording provided in this article is unfortunate, as it does not regulate the employer’s obligation to warn the employee about the end of the period of temporary transfer. In such a situation, the employee is actually deprived of the right to freedom of labor, as well as to receive timely information about the possible transformation of his temporary transfer to a transfer on a permanent basis. Particular attention is drawn to the fact that for the duration of a worker’s temporary transfer, the former labor legal relationship, which corresponds to the conditions fixed in his labor contract, is “suspended” and resumes at the expiration of the transfer period, when the worker will be given at the previous job. Otherwise the effect of the principle of stability of the employment legal relationship is called into question and the threat of the employee being forced to work in another position (job) to which he/she has agreed to be transferred only for a certain period of time, but not on a permanent basis, is created. The absence of the employee’s consent to his transfer on a permanent basis to a position that he was temporarily replacing represents a violation of the constitutional principle of the freedom of the individual, including the disposal of his abilities to work. It should be taken into account that the concept of “deemed” is vague and abstract. It is difficult to imagine that an agreement on the temporary nature of a transfer “loses” force and “counts” as permanent. Any transfer, especially on a permanent basis, must be supported by specific actions, both on the employer’ and the employee’ part.