The courts quite clearly indicate that the imposition of additional duties on the employee, if they are not specified in his job description, is unacceptable.

When accepting a new employee, the employer concludes an employment contract with him. This document is fundamental in the relations of the parties to labor relations, since it is he who contains the labor function of the employee, which, in accordance with Art. 57 of the Labor Code of the Russian Federation is the performance of work by position in accordance with staffing, profession, specialty, indicating the qualifications or the specific type of work assigned to the employee.
In accordance with Art. 60 of the Labor Code of the Russian Federation, it is prohibited to require an employee to perform work not stipulated by an employment contract, with the exception of cases provided for by the Labor Code of the Russian Federation and other federal laws.
An employee can perform work not stipulated by the employment contract, for example, replacing an absent employee, but in any case this must be justified from the point of view of labor law and formatted accordingly.
But there are cases when an employee is instructed to perform work that he should not do, without formalizing a transfer or combination. What does the jurisprudence say in such cases?
The job responsibilities of the employee, prescribed in the employment contract or job description, must be clearly defined, understandable and correspond to the position occupied by the employee. Some employers, when compiling a job description, include in it such an item as the fulfillment of other instructions of the immediate supervisor. What kind of assignments in this case should the employee perform and can he refuse if he considers that the assignment does not correspond to his position?

Example. Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Komi Republic dated June 14, 2012 in case No. 33-2195AP/2012.
The plaintiff filed a lawsuit against CJSC "XXX" to cancel the order from ... N ... on the obligation to provide work stipulated by the employment contract and job description, the obligation to provide necessary equipment and technical documentation for the performance of work, referring to the fact that the order from ... N ... imposed on him an obligation not provided for by the employment contract and job description.
At the hearing, the plaintiff supported the requirements.
The representative of the defendant at the hearing did not recognize the claims.
From the materials of the case, it appears that the plaintiff works at a branch of ZAO XXX.
Order N... employment contract with the plaintiff was terminated due to absenteeism without good reason. By the effective decision of the Vorkuta City Court, the plaintiff was reinstated at work.
By order of the supply director of FZAO "XXX" dated ... N ... in order to properly monitor compliance with the storage conditions for material assets, the plaintiff is required to check the storage conditions of goods and materials, equipment from ... to ... in structural divisions defendant and, based on the results of the audit of each joint venture, submit a written report to the director of the DMTS on the last day of the audit of the structural unit.
Disagreeing with the order, the plaintiff filed a memorandum addressed to the procurement director, in which he indicated that the assignment of work on the order from ... N ... is work that is not provided for by his job description and job duties.
By order of the HR Director of FZAO "XXX", the plaintiff was reprimanded for failure to perform labor duties, expressed in failure to comply with an order from ... N ...
After evaluating the evidence collected in the case in their totality, the court of first instance concluded that the appealed order was legal, based on the fact that the work assigned by the defendant - checking the conditions for storing inventory items and equipment - is included in the main duties of the position in which the plaintiff works, and by virtue of clause 2.1.2 of the employment contract, the plaintiff undertook to carry out oral and / or written assignments, assignments, instructions and instructions from direct supervisors that are not provided for by the job description, but related to tasks and areas of activity.
Meanwhile, it is impossible to agree with the indicated conclusions of the court of first instance, since the circumstances relevant to the case are incorrectly identified.
In accordance with Art. 21 of the Labor Code of the Russian Federation, an employee is obliged to conscientiously fulfill his labor duties assigned to him by an employment contract.
Articles 15, 57 of the Labor Code of the Russian Federation establish that the labor function is understood as work according to the position in accordance with the staff list, profession, specialty, indicating qualifications; specific type of work assigned to the employee.
The realization of the right to conclude an employment contract is directly related to the employee's right to perform work that corresponds to the labor function defined by the concluded employment contract.
The name of the position, specialty, profession, indicating qualifications is a mandatory condition of the employment contract. They define the responsibilities of the employee. The legislator prohibits the employer from requiring the employee to perform work not stipulated by the employment contract (Article 60 of the Labor Code of the Russian Federation).
In accordance with the employment contract concluded between the parties, the plaintiff assumed the performance of the duties of a specialist in accordance with the job description; undertook to carry out oral and / or written assignments, assignments, instructions and orders of immediate supervisors, other competent officials and authorized representatives of the employer, not provided for by the job description, but related to the tasks and areas of activity.
From the text of the job description, it is seen that the main purpose of the position ... is the timely approval in the SAP system and the high-quality execution of requests for the purchase of goods and materials with the performance of all the necessary operations for this. At the conclusion of the employment contract, direct duties and joint duties were determined. Joint responsibilities include conducting annual and selective inventories at UMTS warehouses.
Indeed, in accordance with the regulation on the directorate for logistics of the branch of CJSC "XXX", the main activities of DMTS include monitoring compliance with the conditions of storage of goods and materials and equipment in warehouses structural divisions JSC "ZZZ"
Taking into account the labor function of the plaintiff, related to the fulfillment of applications for the purchase of goods and materials, the judicial panel believes that imposing on the plaintiff the responsibility for checking the conditions for storing material assets in the warehouses of the defendant's structural divisions is not included in the main duties of the employee established by the job description. The defendant's reference to paragraph 2.1.2 of the job description, in accordance with which the plaintiff undertook to comply with the instructions of the immediate supervisors, which are not provided for by the job description, but related to the tasks and areas of activity, in this case cannot be taken into account, since the assignment of duties to the employee for all types of activities, DMTS, not related to the labor function determined by the concluded labor contract, violates the principle of certainty of the labor function performed by the employee.
As seen from the case file, in violation of the requirements of labor legislation, the employer entrusted the plaintiff with the performance of work not stipulated by the employment contract, knowing that the plaintiff did not agree to comply with this order, he decided to bring the plaintiff to disciplinary responsibility.
The application of a disciplinary sanction for non-fulfillment of duties not provided for by the employment contract is unreasonable, in connection with which the contested orders are illegal.

The employer issues an order imposing additional duties on the employee. Should an employee be penalized for non-compliance?

Example. Determination of the Judicial Collegium for Civil Cases of the Tambov Regional Court dated July 11, 2012 in case No. 33-1536.
The enterprise issued an order to conduct timekeeping of the working time of the administrative and managerial apparatus in the central office and branches.
09/29/2011 to the name CEO a memorandum was received about the plaintiff's failure to provide maps of timekeeping of working hours.
On 10/03/2011, the plaintiff reported the reasons for the absence of timekeeping cards, explaining that he does not belong to any category of subjects covered by this order. Order No. 21.10.2011 imposed a disciplinary sanction on him in the form of a reprimand for his failure to fulfill, through his fault, the labor duties assigned to him.
The plaintiff filed a lawsuit against JSC "XXX" to cancel the above penalty.
By the decision of the Oktyabrsky District Court of Tambov dated March 21, 2012, the plaintiff's claims were satisfied in full.
Satisfying the claim, the court indicated that the plaintiff was hired under an employment contract. The job description, with which the plaintiff was familiarized against signature, contains the job responsibilities listed in Sec. 2. The plaintiff's duties do not include timekeeping of working time. Imposing on an employee additional duties not stipulated by the employment contract and job description without his consent is not allowed. At the same time, the employer is not entitled to refer to the emergence of "momentary" tasks facing the enterprise. In any case, the organization (enterprise) must have the consent of the employee to perform other work, and in case of his refusal, the employer has no right to force the employee to perform work not stipulated by the employment contract.
The court rejected the arguments of the defendant's representatives that, according to the terms of the employment contract, the plaintiff is obliged to comply with the orders, instructions and other local regulations of the employer, and therefore was obliged to obey the order for timing. The employee is obliged to comply with the orders, instructions and other local regulations of the employer only to the extent that they relate to his function, and the performance of timekeeping does not apply to his labor function.
In its appeal, JSC "XXX" considers the court's decision unlawful, unfounded, and asks to cancel it. Indicates that the basis for imposing a disciplinary sanction on the plaintiff was the failure to comply with the order of JSC "XXX" "On the timing of working hours." The conclusions of the court that the plaintiff should not have executed it, since the instruction contained in it goes beyond the scope of the employment contract concluded between the defendant and the plaintiff, does not correspond to the circumstances of the case. The order prescribed by this order consisted in fixing by the employees of JSC "XXX" the operations (functions) performed by them during the working day, provided for by job descriptions, indicating the time spent and did not entail for them a change or increase in the range of their labor duties. The employees who took part in the self-timer did not perform any other work not stipulated by the employment contract; accordingly, the court had no grounds to believe that they were performing an additional labor duty.
The panel of judges comes to the following.
According to paragraph 2.2 of the employment contract concluded between the plaintiff and OJSC "XXX", the employee is obliged to conscientiously fulfill his labor duties assigned to him by this employment contract and job description, to execute orders, instructions and other local regulations of the employer and his immediate supervisor.
Thus, the plaintiff is obliged to execute orders, instructions and other local regulations of the employer.
At its core, timekeeping is a report on the work done in one's position during the working day, which is being photographed. Therefore, the plaintiff had to comply with the disputed order.
The decision of the Oktyabrsky District Court of Tambov dated March 21, 2012 was cancelled. A new decision has been made in the case.
There are two points to note in this example. Firstly, this is the decision of the court of first instance, in which the court pointed out the inadmissibility of imposing duties on the employee that are not directly provided for by the employment contract or job description. A similar opinion was held by the court from the first example. The decision was canceled due to a misinterpretation by the court of the essence of the order, in which he saw the imposition of duties not provided for by the labor function, although in fact the order did not affect the employee's labor function in any way. Secondly, the regional court, overturning the decisions of the district court, indicated that if the order does not impose obligations that go beyond official duties employee, it is subject to execution, and the refusal of the employee may result in the application of a disciplinary sanction to him.

The employer issues an order imposing additional duties on the employee, the employee does not agree with the order, but nevertheless fulfills the assigned duties. How does the court see it?

Example. Decision of the Livensky District Court of the Oryol Region dated June 24, 2015 in case No. 1/2-924/2015~M-799/2015.
The plaintiff filed a lawsuit against LLC "XXX", in support of which he indicated that the general director of LLC "XXX" issued an order to entrust her with the duties of the general director of the factory for the period of his next vacation in order to combine with her main labor duties.
He asks to cancel the order issued against her and to recover compensation for moral damage in her favor.
At the court session, the plaintiff supported the stated requirements, explaining that she did not give her consent to perform work not stipulated by the employment contract as an additional burden to her official duties. When the order was brought to her attention, she did not agree with it. Since the general director did not accept her objections, and in order not to suspend the work of the factory, she was forced to issue a number of orders for the management of the society.
The defendant's representative denied the claim. The Deputy for Economics and Marketing is one of the officials who can first of all apply for filling the position of the General Director during his temporary absence. Despite her objections, the plaintiff immediately began to fulfill the additional duties assigned to her, began to issue numerous personnel orders, orders regarding the release of products. According to the job description of the Deputy for Economics and Marketing, this official is obliged to perform the duties of the General Director in the event of his temporary absence without any additional consent.
The court comes to the following conclusions.
It follows from the order of the general director that, in connection with his being on vacation, he entrusts the temporary performance of his duties to the plaintiff along with the work determined by the employment contract.
This order was brought to the attention of the plaintiff, which she did not deny, but explained that she did not give her consent to combining duties for additional work not stipulated by her employment contract.
The order does not contain a note from the employee about her consent to an additional load in order to combine it with her main duties.
However, the argument of the defendant's representative that the plaintiff was obliged to perform the duties of the general director during his temporary absence in order to combine with his main labor functions without her consent, was not confirmed at the court session.
The submitted documents do not establish such an obligation, in accordance with the testimony of witness B., executive director factory, the job description of the plaintiff did not provide for such an obligation, the assignment of the duties of the general director to none of the factory employees for official duties was provided, the general director always chose who would perform his duties during the period of temporary absence.
Evidence that the employee agreed to the additional workload was not presented by the defendant.
The argument of the defendant's representative that the plaintiff actually approved his order, having begun to fulfill the duties assigned to her, does not indicate that the employee agreed with the actions of the employer, since the performance of duties in this situation by the plaintiff could be dictated by the need to execute the issued order in order to observance of labor discipline. The consent of the employee, as provided for by labor legislation, must be expressed in writing, which may indicate the freedom of the agreement reached between the employee and the employer.
In the absence of this condition, the court believes that the actions of the general director of the company to assign to his deputy, in order to combine the duties of the general director with the main duties, violate the provisions of Art. 60.2 of the Labor Code of the Russian Federation, and, accordingly, the rights of the employee. In this regard, the court finds the claim of the plaintiff to recover compensation for non-pecuniary damage in her favor on this basis justified.
The claim is satisfied.

When considering this category of cases, the courts quite clearly indicate that the imposition of additional duties on an employee, if they are not indicated in his job description, is unacceptable.
Therefore, it is very important not only to properly formalize the assignment of additional duties, but also to ensure that the provisions relating to the official duties of the employee are as clearly spelled out as possible, do not contain vague wording and do not allow for several interpretations.

Magazine: Directory of personnel officer
Year: 2008
Author: Andreeva Valentina Ivanovna
Topic: Documents of the personnel service, Temporary transfer to another job, Mandatory and additional conditions
Category: Filling out without errors

Note!

In practice, very often it becomes necessary to assign the duties of a temporarily absent employee to another employee. At the same time, the issuance of orders with the wording: “impose duties” or “appoint acting ones” is often used, and an addition “i. about.". This practice cannot be recognized as consistent with the law.

Labor legislation provides for three forms of performance of a labor function in another position if it is necessary to replace a temporarily absent employee.

1. Temporary transfer to another job to replace an absent employee. If such a transfer is carried out by agreement of the parties to the employment contract (part 1 of article 722 of the Labor Code of the Russian Federation), then the parties conclude an additional agreement to the employment contract, which indicates the labor function, the term of the temporary transfer, other conditions ( see annex 1). Temporary transfer to another job by agreement of the parties is executed by order of the employer in the unified form T-5 ( see annex 2). At the end of the transfer period, the employee must be given the previous job. In order to avoid disputes, it is advisable for the employer to issue an order (in any form) on the expiration of the temporary transfer period and on the provision of the previous job ( see annex 3).

An employee can be transferred without his consent for up to one month to replace a temporarily absent employee, if the need for such replacement arose due to the circumstances listed in the cases specified in Part 2 of Art. 722 of the Labor Code of the Russian Federation. Such a transfer is executed by order of the employer in a unified form T-5.

2. If the parties decide on the performance of the duties of a temporarily absent employee without exemption from the main job and outside the normal working hours, then a part-time employment contract should be drawn up for a certain period ( see annex 4). On the basis of the concluded employment contract, the employer issues an order for hiring part-time in the unified form T-1 ( see annex 5).

3. To perform the duties of a temporarily absent employee without exemption from work specified in the employment contract, within the normal working hours, the employee may be assigned additional work (Article 602 of the Labor Code of the Russian Federation). The issue of the amount of additional payment for the performance of additional work is decided by agreement of the parties to the employment contract ( see annex 6). The performance of additional work is established by the employer with the consent of the employee by issuing an order in any form ( see annex 7).

Appendix 1

An example of drawing up an additional agreement to an employment contract on the temporary transfer of an employee to another job by agreement of the parties

Annex 2

An example of execution of an order (instruction) on the temporary transfer of an employee to another job by agreement of the parties (form No. T-5)

Annex 3

An example of drawing up an order to provide the employee with the previous job after the expiration of the transfer period.

Appendix 4

An example of drawing up an employment contract for part-time work (fragment)

Annex 5

An example of execution of an order (instruction) on hiring part-time

Appendix 6

An example of drawing up an additional agreement to an employment contract on the performance of duties of a temporarily absent employee without exemption from work stipulated by the employment contract

Appendix 7

An example of execution of an order on the performance of duties of a temporarily absent employee without exemption from work stipulated by the employment contract

Sometimes in organizations there may be such a situation when one employee needs to do not only his own work, but also the work of a temporarily absent colleague.

In this case, the employer needs to take care of the proper execution of the relevant documentation. It is important to know that this situation requires the mandatory issuance of an order imposing the relevant duties on the employee, and he must sign it.

Design nuances

Legislatively, the imposition of additional duties is considered in article 60.2 of the Labor Code of the Russian Federation, where it is noted that such work can be entrusted to only with the written consent of the employee and for an additional fee.

At the same time, in order to perform the functions of an absent employee without removing duties for the main activity, an employee can be entrusted with additional work both in his profession and in another.

An agreement on the assignment of additional work can be drawn up in the form of an additional agreement to an employment contract or in the form of a separate document. It must specify the list of sane duties and the amount of additional payment for their performance.

Such an agreement can either be valid until the expiration date, or terminate at the initiative of the employer or employee.

When to draw up

Such an order is required in several cases. Consider the most common of them:

• The combination of two or more professions or positions. For example, due to the temporary absence of a personnel officer, this work can be assigned to an accountant. At the same time, the employee will be required to do his job and at the same time cope with new responsibilities.
• Increase in service area or scope of work. For example, a dispatcher working in a taxi needs to receive calls from several areas of the city. In this case, the amount of the surcharge is often a controversial issue.
• Performing the duties of an employee who is temporarily absent from the workplace. The most common reasons for this situation are regular vacations, illnesses, business trips, parental leave and other reasons.

Publication order

The employer needs to know that the employee must be familiar with the order, as evidenced by his signature. If he refuses to sign the document, the employer does not have the right to insist on the assignment of duties. This is contrary to labor law.

The order on the imputation of new duties can be issued in free form, the legislation does not provide for a strict framework for it. However, there are a number of important elements to note:

• Cause imposing additional responsibilities. For example, it can be a vacation of an employee who performs this work, staff reduction, illness and other reasons.
• Position. This item is indicated only when the assigned work relates to another position.
• Term during which the employee is assigned duties. This may be a strictly defined period, a condition may also be indicated, upon the occurrence of which the need to perform duties ceases (exit from parental leave, exit from the next vacation, etc.)
• New responsibilities- their list, content and volume. In this paragraph, it is necessary to list in as much detail as possible all the duties assigned to the employee. This will eliminate the occurrence conflict situations and misunderstandings.
• Surcharge amount. This item is at the discretion of the employer, but most often the amount of payments is discussed with the employee in advance.

It is important to take into account that when assigning additional work to an employee, it is necessary to conclude an additional or separate agreement concluded within the framework of labor legislation. The number and date of this document must be referred to in the first paragraph of the order.

The order drawn up in this way is first signed by the head of the company. After that, it is necessary to familiarize the employee with its text. In the event that the latter refuses to sign the document, it is necessary to draw up an act and choose another candidate to assign the relevant duties.

All orders, in accordance with the rules of document flow, are recorded in the journal of orders, where they are assigned a serial number, and the date of compilation is indicated.

In accordance with article 19 of the List of standard documents indicating the periods of storage, such documents must be stored for 75 years.

extra work

How the imposition of new labor duties is regulated by law

Many employees have probably had to deal with attempts by the employer to charge them with the obligation to perform any additional work. Moreover, some employers approach this issue from a position of strength, stating that in any case they will force the employee to perform additional duties, and at the same time they seek to either save on paying for additional work, or not pay for it at all. This state of affairs is fundamentally contrary to the interests of employees.

Consider the issues of imposing additional duties on the employee in the form in which this procedure is regulated by the legislation of the Russian Federation.

ADDITIONAL WORK AND ITS TYPES

The scope of work of a particular employee, the list of his job responsibilities is determined upon hiring and is fixed in the employment contract, job description. For the performance of this amount of work, wage, the amount of which is also fixed in the employment contract. Unilateral deviation by the employer from the terms of the concluded employment contract, including an increase in the scope of work, is not allowed.

At the same time, situations often arise when there is no one to perform this or that work. There is only one reason - the lack of workers, but the roots of this reason can be different: a person fell ill, went on vacation, quit (or was fired at the initiative of the employer), the scope of activity expanded, the volume of work increased, etc. To quickly resolve such problems, the legislation provides for the possibility of assigning the necessary additional work to one of the existing employees.

An employee may also have a certain interest in doing additional work - the possibility of additional earnings.

Part 1 Art. 60.2 of the Labor Code of the Russian Federation establishes: with the written consent of the employee, he may be entrusted with the performance during the established duration of the working day (shift), along with the work determined by the employment contract, additional work in another or the same profession (position) for additional payment.

subject to the provisions of h. 2 Article. 60.2 of the Labor Code of the Russian Federation, additional work assigned can be carried out in various forms depending on whether the this work profession (position) of the employee.

1. If an employee is entrusted with work in another profession (position), then such work may be carried out by combining professions (positions). It is necessary to immediately identify the differences between work on the terms of combining professions (positions) from part-time work. These two types of works, which have similar names, at the same time radically differ in their content.

Work on the terms of combining professions (positions) involves the performance by the employee, along with his main job, which is provided for by the employment contract, additional work in another profession (position). Such additional work is performed within the working hours at the main job (during the working day, shift) and cannot be carried out outside the working hours.

Unlike work on the terms of combining professions (positions), part-time work can be performed by an employee both for the same employer and for another. Part-time work requires the conclusion of a separate employment contract and is performed only in free time from the main job (Article 60.1 of the Labor Code of the Russian Federation).

2. An employee may also be entrusted with additional work within the framework of his profession (position). Such work can be done by increasing the scope of work or expanding service areas. In this case, the person actually does his job, but in a larger volume.

3. In addition, additional work in another or the same profession (position) may be entrusted to perform the duties of another temporarily absent employee who is on sick leave, on vacation, on a business trip or is absent for other reasons, and in accordance with the law he retains his place of work (position).
The legislation does not establish any restrictions for assigning additional work for an absent employee not to one, but to several employees; in such cases, each of them takes on a certain part of the work of the absentee.

In all these cases, the employee is not released from the main job and performs additional work by compacting the labor process, increasing the intensity of labor, and using hidden reserves of working time. Additional work does not require a new employment contract.

In the second part of the article, issues related to the term, content, volume of additional work, its design, as well as payment will be considered.

Denis ZHURAVLEV, legal adviser

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