Often, in enterprises, after the dismissal of an employee, his position remains vacant. Some employers are in no hurry to adjust staffing levels and exclude vacancies from it. Instead, they entrust current employees with the performance of duties for vacant posts. Meanwhile, such an action is not entirely legal.
Definition Features
A vacant position is a vacant position provided for in the staff list for which an employee is not registered. If the employee is absent due to illness, in connection with a business trip, then his workplace is reserved for him. Accordingly, this is no longer a vacant post. Temporary performance of duties under it is regulated by 74 articles of the Labor Code.
Replacing an absent employee
According to the law, the appointment of an active employee to the position of an employee who is on a business trip, on vacation, on treatment, etc., is a transfer. Replacing an absent employee is due to production needs. Legislation allows transfer to another job without the consent of the employee.
Since this is not a vacant position, the term for the temporary performance of duties on it is strictly limited. It may not exceed a month during the year (calendar).
Difficulty in practice
As in the case of a vacant post, the performance of duties at the place of work of a temporarily absent employee is possible with the appropriate qualifications. If the replacement of an employee implies a lower level, the written consent of the transferred employee is necessary.
The implementation of this rule may cause some problems in practice. The fact is that the TC does not fix the criteria for comparing the qualifications of different specialties, positions and professions. This means that the employer must develop such an assessment system. Of course, all criteria should be officially fixed by local acts, and the staff should be familiar with them.
The employer must act very carefully, without violating the interests and rights of employees. All decisions should be made exclusively within the framework of the law. Otherwise, a labor dispute may arise.
Combination
An employee can simultaneously fulfill duties in his main position and replace an absent employee. In such cases, they talk about combining. It should be borne in mind that the employer does not have the right to transfer the employee to another job without his consent and release from the main activity. If an employee wishes to combine work duties, he must give written permission for this.
Co-payments
An employee who has agreed to combine, in accordance with Article 151 of the Labor Code, is entitled to additional payments. The size of the surcharge is established by agreement of the parties. According to current standards, additional payments may be received by a full-time deputy employee who is temporarily absent from work.
Sun explanations
Previously, the provision was applied in accordance with which the amount of the supplement was determined as the difference between the official salaries of employees, if the replacement employee is not a full-time assistant (deputy) of the absent.
However, this rule was found to be in violation of the labor rights of employees by the definition of the collegium. As a result, full-time assistants (deputies), Ch. engineers, etc.
Nuances
If the position of an absent employee is filled by an employee with exemption from his main activity, he can expect to receive a salary in an amount not less than the average earnings that he received at his workplace.
The general rules for determining the average salary are established by the Government in Decree No. 213 of 2003.
Performance of duties on a vacant post
It has already been mentioned above that the appointment of an employee to the place of an absent employee is a transfer. This situation is possible if the employee is absent temporarily, that is, he is not dismissed from the enterprise. The courts hold the same position.
In particular, one can pay attention to the Resolution of the Plenum of the Armed Forces No. 16 of 1992. Section 12 of this document gives an interpretation of the provisions of Article 26 of the Labor Code of the RSFSR. Despite the fact that this Code has not been in force for a long time, many of its norms can be applied today. Moreover, the wording of Articles 26 of the Labor Code and 74 of the Labor Code in the part governing the transfer of an employee to the place of a temporarily absent employee on the initiative of the employer is the same. Accordingly, there is no doubt that the judicial authorities, when considering labor disputes, will take into account the explanations given in the said judgment.
Clause 12 of the document states that the performance of duties in a vacant position during a certain period is possible by written consent of the employee. It follows that the Supreme Court, in fact, introduced a new type of transfer of employees to another job. Meanwhile, under labor law, the performance of duties in a vacant position is not allowed. Therefore, the provision present in the Resolution of the Plenum cannot be applied.
The aforementioned means that the order on the performance of duties in a vacant position can be recognized as invalid. The local document should use a completely different wording. Many leaders, taking advantage of the ignorance of citizens, their legal illiteracy, issue clearly unlawful orders. It should be remembered that any decision of the employer can be challenged.
Questions about the timing
Many ignorant citizens are interested in what period of performance of duties in a vacant position can be established by order of the head? The TC does not say anything about this. There are no explanations in the labor legislation because such a form of employee transfer is not provided at all. Consequently, it is not entirely correct to talk about any (including continuous) term of performance of duties in a vacant position. In such cases, it should be considered that the employee has been permanently reassigned. For this, in turn, the consent of the employee is required. Let us turn to the explanations of the aircraft.
Decree No. 16 states that if an employer transferred an employee without his consent, and that, in turn, began to work voluntarily, this action may be recognized as legal. Consequently, the employee will be deemed to be in office from the 1st day of transfer.
The establishment of a specific deadline for the performance of duties for a vacant post has no legal significance for the regulation of labor relations. Such a temporary appointment of an employee must be considered a permanent transfer to another place (with the consent of him) in accordance with Article 72 of the Labor Code.
conclusions
The fact of voluntary performance of duties on a free post transforms the interaction of the employer and the employee from the first day of appointment. Consequently, the position itself ceases to be vacant.
Decor
When appointing an employee to a vacant position, the standard procedure for hiring or transferring is applied. In the first case, the candidate provides all the necessary documents, writes a statement. The employer and citizen enter into an agreement.
Before signing, the candidate must carefully read the contents of the document. The fact is that some employers use incorrect wording. Signing a contract means voluntary acceptance of the terms of employment.
Often, employers take advantage of the legal illiteracy of employees and designate them to act as vacant posts. And workers, in turn, voluntarily agree to this. In practice, it turns out that employees perform their own and other people's work. Remuneration of labor, in turn, as a rule, in such cases does not correspond to the volume of labor activity. It is quite difficult to challenge such situations, as employers take written consent from employees. Often the only way out is dismissal.
Nevertheless, in the event of such conflicting situations, it is advisable to contact the labor inspectorate.
In fact, the employee may refuse to perform additional duties. To do this, he needs to directly contact the employer, write a statement.
It is worth saying that many employees consciously agree with the proposal of the employer. This is usually due to the promise of the employer to pay a high fee. But in reality, the employee does not always receive the expected amount. In such situations, problems begin. On the one hand, the employer's actions are not legal; on the other, the employee himself agreed to the conditions.
Conclusion
In order to avoid problems with any personnel changes, employees should carefully read the documents issued by the employer. In the absence of confidence in the legality of certain conditions, it is advisable to consult with an independent lawyer. Often ignorance of the law leads to very negative consequences.
The employer's instructions should only use wording that is provided for by labor standards. In the TC, the appointment of an employee as an acting officer is prohibited. If it still took place, then it should be recognized as a transfer to a permanent job. Accordingly, the position will no longer be vacant, and it is impossible to accept another person.
The appointment of an employee as an executive for a given position is allowed if the corresponding employee is absent for any reason, but remains on the staff of the company.