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What to do - assignment of duties without the consent of the employee or forced to do someone else's work

What to do - assignment of duties without the consent of the employee or forced to do someone else's work

Let's put on the shelves in a clear and concise form the situation in which they are forced to do someone else's work without the consent of the employee in excess of his work duties, which is often hushed up and is largely commonplace, normal for many employers of organizations, reflected in the infringement of the rights of employees and violation of the current Labor legislation of the Republic of Belarus by the former.

Sometimes the boss, pursuing his own ambitions, personal liking or dislike for one or another employee (according to the principle of throwing off one and hanging on another), can perform a number of actions contrary to the law, based on the principle of the boss is always right. The scheme is rolled back, working, and the employee either does not know what to answer it with, or is simply afraid, due to the entrenched and flourishing intra-collective bacchanalia in this or that organization.

The essence of the question is whether an employee should perform an additional amount of work, duties assigned by a superior manager, but not provided for by an employment contract between them.

Let's consider the options for resolving it within the legal framework.

1 - Either a new contract on new agreed terms or we do not agree (we continue to work within the framework of the current contract)

expansion of the labor function - cancel the old contract - conclude a new contract

The basis for the conclusion of an employment contract (contract) in accordance with Article 19 of the Labor Code of the Republic of Belarus between the employer and the employee is the labor function of the employee.

The labor function of an employee involves the performance by the latter of labor duties within the established profession, position, specialty in accordance with the employer's staffing table, functional responsibilities, job description.

The direct binding of the labor function to the profession, position, specialty is carried out in accordance with the unified qualification reference book (CEN) approved by the Government of the Republic of Belarus (paragraph 3 of Part two of Article 19 of the Labor Code of the Republic of Belarus (hereinafter referred to as TC)).

Thus, the labor duties of the employee (labor functions based on the CEN) they are prescribed either in the employment contract or in the job description to which the latter refers.

For both the employer and the employee, the job description is important.

The employer uses it to control the work of the employee, and is also the basis for bringing the employee to disciplinary responsibility for its violation.

For an employee, the job description is important, because it clearly outlines the scope of his duties, and only the employer has the right to demand their fulfillment without going beyond its limits.

The legislation does not prohibit expanding the scope of an employee's duties, changing their scope by making changes to the job description, but only within the framework of the current employment contract (contract) and his labor function for this profession, position, specialty.

In this case, the performance of additional work should not cause an extension of the working day of this employee.

If these changes contribute to a change in the labor function, then a new employment contract (transfer) should be proposed by the employer, with a new position, a staff change and an appropriate level of remuneration for the new profession.

At the same time, the employee has the right to refuse (without any consequences for himself) from performing "imposed" additional functions (not related to the current contract) and continue to perform his duties under the current contract until its completion.

Does the employee's work function change as a result of these changes (the addition of new functional responsibilities)? –read carefully the CEN.

2 - Change of essential working conditions (circumstances) – if you want to work, and if you want not

change of essential working conditions

There may also be a situation related to changes in essential working conditions (internal or external factors that affected the workflow).

Due to justified production, organizational or economic reasons, the employer has the right in a certain manner (provided for by the Labor Code) to change the essential working conditions of the employee while continuing to work in the same specialty, qualification or position defined in the employment contract.

Changes in essential working conditions are allowed according to the norms of Part one of Article 32 of the Labor Code only in connection with justified production, organizational or economic reasons.

If a change in essential working conditions is made by the employer without justification of any specific industrial, organizational or economic reason, then legal consequences may occur with the involvement of guilty persons to material responsibility (Article 243–245 of the Labor Code).  

In case of changes in essential working conditions, the employer has the right to expand the employment obligations of the employee on new terms.

In this case, the employer is obliged to notify the employee about changes in essential working conditions in writing no later than one month in advance.

If the employee refuses to continue working with the changed essential working conditions, the employment contract is terminated according to clause 5 of Article 35 of the Labor Code.

Upon termination of an employment contract on the grounds specified in paragraphs 5 of Article 35, paragraphs 2 and 3 of Article 42, paragraphs 1 and 2 of Article 44 of the Labor Code, employees are paid severance pay in the amount of at least two weeks of average earnings (Part 2 of Article 48 of the Labor Code).

3 - Combination

combining positions

It is also possible to assign additional work (additional functions) to an employee in another profession (position) both in the form of part-time work and in the form of combination, but only with his voluntary consent, taking into account incentive measures for an additional amount of work.

That's all - there are no other variations provided by Law.

Any other actions on the part of the employer in the plan to "sell" something to someone, within the framework of the employee's current work function, are illegal and involve bringing the former to responsibility in accordance with labor legislation.

There is a very fine line in all these processes, which the main thing for the employer is not to cross.

How to be - forced to do work in excess of your work duties – Something like that!

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