Current issues of judicial practice in labor cases. Review of decisions on labor disputes in judicial practice Judicial practice under the Labor Code of the Russian Federation

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That individual labor disputes are considered, including by the courts. Sometimes they go to court if they disagree with the result pre-trial settlement labor disputes. And in some cases, only the court is the only body authorized to resolve a labor dispute. Which court hears labor disputes?

Which court hears labor disputes?

Labor disputes are considered in the courts general jurisdiction(Clause 1, Clause 1, Article 22 of the Code of Civil Procedure of the Russian Federation). In this case, for example, what is the jurisdiction of labor disputes regarding the collection of wages? Claims for the recovery of accrued but not paid wages and other amounts to an employee are considered by a magistrate (Article 23, Code of Civil Procedure of the Russian Federation). The remaining labor claims are considered by the district court as a court of first instance (Article 24 of the Code of Civil Procedure of the Russian Federation).

In general, labor disputes are considered in court at the place of residence of the defendant. For an organization, this is its location, i.e. legal address(Article 28 of the Code of Civil Procedure of the Russian Federation). Which court should you go to in labor disputes if the employer’s legal address does not coincide with the employee’s place of direct work indicated in the employment contract? In this case, the labor dispute can be resolved in court at the actual address of work (Clause 9, Article 29 of the Code of Civil Procedure of the Russian Federation).

Claim for restoration labor rights may be presented to the court at the plaintiff’s place of residence (clause 6.3 of Article 29 of the Code of Civil Procedure of the Russian Federation).

We talked about the amount of state duty on labor disputes in a separate article.

A review of judicial practice on labor disputes is issued periodically by the Supreme Court, both as part of a review of general judicial practice and as a review relating exclusively to labor disputes. So, for example, on June 2, 2015, Resolution No. 21 of the Plenum of the Supreme Court was issued “On some issues that arose with the courts when applying the legislation regulating the work of the head of the organization and members of the collegial executive body organization”, and 07/08/2015 by the Presidium Supreme Court The “Review of the practice of courts considering cases on disputes arising from the labor relations of athletes and coaches” was approved.

As for the judicial practice on labor disputes, presented in the Reviews only as one of the sections, then, in particular, on July 12, 2017, the Presidium of the Supreme Court approved the “Review of the judicial practice of the Supreme Court of the Russian Federation No. 3 (2017)”, in which some labor issues disputes are considered only as part of the section “Resolution of disputes related to labor and pension relations” (Definition No. 42-КГ16-2).

1. By virtue of paragraph 1 of part 1 of Article 22 of the Code of Civil Procedure of the Russian Federation and Articles 382, ​​391 of the Labor Code of the Russian Federation (hereinafter referred to as the Code, Labor Code of the Russian Federation), cases on disputes arising from labor relations are subject to the jurisdiction of courts of general jurisdiction.

Taking this into account, when making statement of claim the judge needs to determine whether the dispute arises from labor relations, i.e. from such relationships that are based on an agreement between the employee and the employer on the personal performance by the employee for payment of a labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; specific type work assigned to the employee), the employee’s subordination to internal labor regulations while the employer provides working conditions provided for by labor legislation and other regulations legal acts, collective agreement, agreements, local regulations, employment contracts (Article 15 of the Labor Code of the Russian Federation), and whether the case is subject to jurisdiction this court.

Paragraphs three through five have been deleted. — Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 28, 2010 N 22.

If a dispute arises regarding non-fulfillment or improper fulfillment of the terms of the employment contract, civil nature(for example, on the provision of residential premises, on payment to the employee of the amount for the purchase of residential premises), then, despite the fact that these conditions are included in the content of the employment contract, they are by their nature civil obligations of the employer and, therefore, the jurisdiction of such a dispute (district court or magistrate) should be determined based on the general rules for determining the jurisdiction of cases established by Articles 23 - 24 of the Code of Civil Procedure of the Russian Federation.

Cases on declaring a strike illegal fall within the jurisdiction of the supreme courts of republics, regional and regional courts, and city courts. federal significance, ships autonomous region and autonomous okrugs (part four of Article 413 of the Labor Code of the Russian Federation).

2. Considering that Article 46 of the Constitution of the Russian Federation guarantees everyone the right to judicial protection and the Code does not contain provisions on the mandatory preliminary out-of-court resolution of a labor dispute by a labor dispute commission, a person who believes that his rights have been violated, at his own discretion, chooses the method of resolving the individual labor dispute and has the right to either initially appeal to the labor dispute commission (except for cases that are considered directly by the court), and in case of disagreement with its decision, to the court within ten days from the date of delivery of a copy of the commission’s decision, or to immediately appeal to the court (Article 382, part two of Article 390, Article 391 of the Labor Code of the Russian Federation).

If an individual labor dispute is not considered by the labor dispute commission within ten days from the date the employee submits the application, he has the right to transfer its consideration to the court (part two of Article 387, part one of Article 390 of the Labor Code of the Russian Federation).

3. An employee’s application for reinstatement at work is submitted to the district court within a month from the date of delivery to him of a copy of the dismissal order or from the date of issue work book, or from the day when the employee refused to receive a dismissal order or work record book, and to resolve another individual labor dispute - within three months from the day the employee learned or should have learned about the violation of his right (part one of Article 392 of the Labor Code of the Russian Federation, Article 24 of the Code of Civil Procedure of the Russian Federation). (clause 3 as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 28, 2010 N 22)

4. Within the meaning of subparagraph 1 of paragraph 1 of Article 333.36 of Part Two of the Tax Code of the Russian Federation and Article 393 of the Labor Code of the Russian Federation, when employees apply to court with claims for reinstatement at work, recovery of wages (monetary support) and other requirements arising from labor relations, in including regarding non-fulfillment or improper fulfillment of the terms of the employment contract, which are of a civil nature, are exempt from payment legal expenses.

5. The judge does not have the right to refuse to accept a statement of claim on the grounds of missing the deadline for going to court without good reason (parts one and two of Article 392 of the Labor Code of the Russian Federation) or the deadline for appealing the decision of the labor dispute commission (part two of Article 390 of the Labor Code of the Russian Federation), since The Code does not provide for such a possibility. The decision of the labor dispute commission to refuse to satisfy an employee’s claim due to missing the deadline for presenting it is not an obstacle to initiating a labor case in court.

When preparing a case for trial, it is necessary to keep in mind that in accordance with Part 6 of Article 152 of the Code of Civil Procedure of the Russian Federation, the defendant’s objection regarding the plaintiff’s missing the deadline without good reason to apply to the court for resolution of an individual labor dispute can be considered by a judge at a preliminary court hearing. Having recognized the reasons for missing a deadline as valid, the judge has the right to restore this deadline (part three of Article 390 and part three of Article 392 of the Labor Code of the Russian Federation). Having established that the deadline for filing a lawsuit has been missed without good reason, the judge makes a decision to reject the claim precisely on this basis without examining other factual circumstances in the case (paragraph two of part 6 of Article 152 of the Code of Civil Procedure of the Russian Federation).

If the defendant makes a statement about the plaintiff missing the deadline for going to court (parts one and two of Article 392 of the Labor Code of the Russian Federation) or the deadline for appealing the decision of the labor dispute commission (part two of Article 390 of the Labor Code of the Russian Federation) after the case has been assigned to trial (Article 153 of the Code of Civil Procedure of the Russian Federation ), it is considered by the court during trial.

Circumstances that prevented the to this employee promptly file a claim in court to resolve an individual labor dispute (for example, the plaintiff’s illness, being on a business trip, impossibility of going to court due to force majeure, the need to care for seriously ill family members).

6. In order to resolve the labor dispute as quickly as possible and restore the violated or disputed rights of the plaintiff without the court considering the case on the merits, the judge must take measures to reconcile the parties (Articles 150, 152, 165, 172 and 173 of the Code of Civil Procedure of the Russian Federation).
7. Draw the attention of the courts to the need for strict adherence to the deadlines for consideration of labor cases established by Article 154 of the Code of Civil Procedure of the Russian Federation. It should be borne in mind that cases of reinstatement at work must be considered by the court before the expiration of a month, and cases on other labor disputes - before the expiration of two months from the date of receipt of the application to the court. The specified time frame also includes the time required to prepare the case for trial (Chapter 14 of the Code of Civil Procedure of the Russian Federation). (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 28, 2010 No. 22).

At the same time, by virtue of Part 3 of Article 152 of the Code of Civil Procedure of the Russian Federation, in complex cases, taking into account the opinions of the parties, the judge may set a period for holding a preliminary court hearing that goes beyond the deadlines indicated above.

8. When resolving labor disputes, courts should keep in mind that in accordance with Article 11 of the Labor Code of the Russian Federation, the norms of this Code apply to all employees who are in an employment relationship with the employer, and accordingly are subject to mandatory application by all employers (legal entities or individuals) regardless of their organizational and legal forms and forms of ownership.

The Labor Code of the Russian Federation does not apply to military personnel when performing military service duties, members of boards of directors (supervisory boards) of organizations (with the exception of persons who have entered into an agreement with this organization employment contract), persons working on the basis of civil contracts, other persons, if this is established by federal law, except in cases where the above persons, in the manner established by the Code, do not simultaneously act as employers or their representatives (part eight of Article 11 of the Labor Code of the Russian Federation).

If an agreement of a civil law nature is concluded between the parties, but during the trial it is established that this agreement actually regulates the labor relations between the employee and the employer, the provisions of labor legislation and other acts must be applied to such relations by virtue of part four of Article 11 of the Labor Code of the Russian Federation, containing labor law norms.

9. When considering labor cases, the court should take into account that by virtue of parts 1 and 4 of Article 15, Article 120 of the Constitution of the Russian Federation, Article 5 of the Labor Code of the Russian Federation, Part 1 of Article 11 of the Code of Civil Procedure of the Russian Federation, the court is obliged to resolve cases on the basis of the Constitution of the Russian Federation, the Labor Code of the Russian Federation, and others federal laws, other regulatory legal acts containing labor law norms, as well as on the basis of generally recognized principles and norms of international law and international treaties of the Russian Federation, which are an integral part of its legal system.

If the court, when resolving a labor dispute, establishes that the normative legal act to be applied does not correspond to the normative legal act having greater legal force, it makes a decision in accordance with the normative legal act having the greatest legal force (Part 2 of Article 120 of the Constitution of the Russian Federation, part 2 Article 11 Code of Civil Procedure of the Russian Federation, Article 5 Labor Code of the Russian Federation). It must be borne in mind that if an international treaty of the Russian Federation regulating labor relations establishes rules other than those provided for by labor legislation and other acts containing labor law norms, then the court applies the rules of the international treaty (part 4 of article 15 of the Constitution of the Russian Federation, part second article 10 of the Labor Code of the Russian Federation, part 4 of article 11 of the Civil Procedure Code of the Russian Federation).

When resolving labor disputes, courts must take into account the explanations of the Plenum of the Supreme Court of the Russian Federation, given in Resolutions of October 31, 1995 No. 8 “On some issues of the application by courts of the Constitution of the Russian Federation in the administration of justice” and of October 10, 2003 No. 5 “On the application by courts general jurisdiction of generally recognized principles and norms of international law and international treaties of the Russian Federation.”

Conclusion of an employment contract

10. When considering disputes related to refusal to hire, it is necessary to keep in mind that labor is free and everyone has the right to freely dispose of their abilities to work, choose their type of activity and profession, and also have equal opportunities when concluding an employment contract without any -discrimination, i.e. any direct or indirect restriction of rights or establishment of direct or indirect advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence ( including the presence or absence of registration at the place of residence or stay), as well as other circumstances not related to the business qualities of employees, except for cases provided for by federal law (Articles 19, 37 of the Constitution of the Russian Federation, Articles 2, 3, 64 of the Code, Article 1 of ILO Convention No. 111 of 1958 on discrimination in the field of employment and occupation, ratified by the Decree of the Presidium of the Supreme Soviet of the USSR of January 31, 1961).

Meanwhile, when considering cases of this category in order to optimally reconcile the interests of the employer and the person wishing to enter into an employment contract, and taking into account the fact that, based on the content of Article 8, Part 1 of Article 34, Parts 1 and 2 of Article 35 of the Constitution of the Russian Federation and the paragraph of the second part the first article 22 of the Code, the employer, for the purpose of effective economic activity and rational property management, independently, under his own responsibility, makes the necessary personnel decisions (selection, placement, dismissal of personnel) and the conclusion of an employment contract with a specific person seeking work is the right, and not the obligation of the employer, and also that the Code does not contain rules obliging the employer to fill vacant positions or jobs immediately as they arise, it is necessary to check whether the employer made an offer about the vacancies available to him (for example, a notice of vacancies was submitted to the employment service authorities, published in a newspaper , announced on the radio, announced during speeches before graduates of educational institutions, posted on the bulletin board), whether negotiations on employment were held with this person and on what grounds he was denied an employment contract.

It is necessary to take into account that it is prohibited to refuse to conclude an employment contract due to circumstances of a discriminatory nature, including to women for reasons related to pregnancy or the presence of children (parts two and three of Article 64 of the Code);

employees invited in writing to work by way of transfer from another employer, within one month from the date of dismissal from their previous place of work (part four of Article 64 of the Code).

Since the current legislation contains only sample list reasons why an employer does not have the right to refuse to hire a job seeker, the question of whether discrimination occurred when refusing to conclude an employment contract is decided by the court when considering a specific case.

If the court finds that the employer refused to hire due to circumstances related to the business qualities of the employee, such refusal is justified.
The business qualities of an employee should, in particular, be understood as abilities individual perform a certain labor function, taking into account the professional qualifications he has (for example, the presence of a certain profession, specialty, qualification), personal qualities employee (for example, health status, presence of a certain level of education, work experience in a given specialty, in a given industry).

In addition, the employer has the right to present to a person applying for a vacant position or work other requirements that are mandatory for concluding an employment contract by virtue of a direct prescription of federal law, or that are necessary in addition to standard or typical professional qualification requirements due to the specifics of a particular or other work (for example, owning one or more foreign languages, ability to work on a computer).

11. Draw the attention of the courts to the fact that an employer’s refusal to conclude an employment contract with a person who is a citizen of the Russian Federation on the grounds of his lack of registration at his place of residence, stay or at the location of the employer is illegal, since it violates the right of citizens of the Russian Federation to freedom movement, choice of place of stay and residence, guaranteed by the Constitution of the Russian Federation (Part 1 of Article 27), Law of the Russian Federation of June 25, 1993 N 5242-1 “On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation ", and also contradicts the second part of Article 64 of the Labor Code of the Russian Federation, which prohibits limiting rights or establishing any advantages when concluding an employment contract on the specified basis.

12. Courts must keep in mind that an employment contract is concluded in writing, drawn up in two copies (unless labor legislation or other regulatory legal acts containing labor law provisions provide for the drawing up of employment contracts in a larger number of copies), each of which is signed parties (parts one, three of Article 67 of the Labor Code of the Russian Federation). Hiring is formalized by order (instruction) of the employer, the contents of which must comply with the terms of the concluded employment contract (part one of Article 68 of the Labor Code of the Russian Federation). The employer's order (instruction) on hiring must be announced to the employee against signature within three days from the date of actual start of work (part two of Article 68 of the Labor Code of the Russian Federation). (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 28, 2010 No. 22).

If the employment contract was not properly drawn up, but the employee began work with the knowledge or on behalf of the employer or his authorized representative, then the employment contract is considered concluded and the employer or his authorized representative is obliged, no later than three working days from the date of actual admission to work, to formalize the employment contract. agreement in writing (part two of Article 67 of the Labor Code of the Russian Federation). It should be borne in mind that the representative of the employer in this case is a person who, in accordance with the law, other regulatory legal acts, constituent documents legal entity(organization) either by local regulations or by virtue of an employment contract concluded with this person is vested with the authority to hire workers, since it is in this case that when an employee is actually admitted to work with the knowledge or on behalf of such a person, an employment relationship arises (Article 16 of the Labor Code of the Russian Federation) and The employer may be required to properly formalize the employment contract with this employee.

13. When deciding the validity of concluding a fixed-term employment contract with an employee, it should be taken into account that such an agreement is concluded when labor relations cannot be established on indefinite period taking into account the nature of the work to be performed or the conditions for its implementation, in particular in the cases provided for by part one of Article 59 of the Labor Code of the Russian Federation, as well as in other cases established by the Code or other federal laws (part two of Article 58, part one of Article 59 of the Labor Code of the Russian Federation).

In accordance with part two of Article 58 of the Labor Code of the Russian Federation, in the cases provided for by part two of Article 59 of the Code, a fixed-term employment contract may be concluded without taking into account the nature of the work to be performed and the conditions for its implementation. It is necessary to keep in mind that such an agreement can be recognized as legal if there was an agreement between the parties (part two of Article 59 of the Labor Code of the Russian Federation), i.e. if it is concluded on the basis of the voluntary consent of the employee and the employer.

If the court, when resolving a dispute about the legality of concluding a fixed-term employment contract, finds that it was concluded by the employee involuntarily, the court applies the rules of the contract concluded for an indefinite period.

14. In accordance with part one of Article 58 of the Labor Code of the Russian Federation, a fixed-term employment contract can be concluded for a period of no more than five years, unless a longer period is established by the Code or other federal laws.

When concluding a fixed-term employment contract with persons entering work in organizations created for a predetermined period of time or to perform a predetermined job (paragraph seven of part one of Article 59 of the Labor Code of the Russian Federation), the term of the employment contract is determined by the period for which such an organization was created. Therefore, termination of an employment contract with these employees on the basis of expiration of the employment contract can be carried out if this organization actually ceases its activities due to the expiration of the period for which it was created, or the achievement of the purpose for which it was created, without transfer of rights and obligations in the order of succession to other persons (Article 61 of the Civil Code of the Russian Federation).

If a fixed-term employment contract was concluded to perform certain work in cases where its completion cannot be determined by a specific date (paragraph eight of part one of Article 59 of the Labor Code of the Russian Federation), such a contract, by virtue of part two of Article 79 of the Code, is terminated upon completion of this work.

If it is established during the trial that there have been multiple conclusions of fixed-term employment contracts for a short period of time to perform the same labor function, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period.

15. When considering disputes between employees with whom fixed-term employment contracts were concluded for a period of up to two months or for the duration of seasonal work, it is necessary to take into account the peculiarities of regulating relations under these contracts, established by Chapters 45 - 46 of the Code. In particular, when hiring for a period of up to two months, employees cannot be subject to a test (Article 289 of the Labor Code of the Russian Federation); in case early termination of the employment contract, the specified employees, as well as employees engaged in seasonal work, are obliged to notify the employer about this in writing three calendar days in advance (part one of Article 292, part one of Article 296 of the Labor Code of the Russian Federation); The employer is obliged to notify about the upcoming dismissal in connection with the liquidation of the organization, reduction in the number or staff of employees in writing against signature: employees who have entered into an employment contract for a period of up to two months - at least three calendar days in advance (part two of Article 292 of the Labor Code RF), and for workers engaged in seasonal work - no less than seven calendar days (part two of Article 296 of the Labor Code of the Russian Federation). (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 28, 2010 No. 22).

Change of employment contract

16. In accordance with Articles 60 and 72.1 of the Labor Code of the Russian Federation, the employer does not have the right to require the employee to perform work not stipulated by the employment contract, except in cases provided for by the Code and other federal laws, and also to transfer the employee to another job (permanent or temporary) without his written consent, except for the cases provided for in parts two and three of Article 72.2 of the Code.

Transfer to another job should be considered a permanent or temporary change in the labor function of the employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to another job locality together with the employer (part one of Article 72.1 of the Labor Code of the Russian Federation).

Structural units should be understood as branches, representative offices, as well as departments, workshops, sections, etc., and by other locality - an area outside the administrative-territorial boundaries of the corresponding settlement.

17. When applying parts two and three of Article 72.2 of the Code, which allow the temporary transfer of an employee to another job without his consent, the courts should keep in mind that the obligation to prove the existence of circumstances with which the law connects the possibility of such a transfer rests with the employer.

18. Courts must take into account that in accordance with parts one and four of Article 72.1, part one of Article 72.2 of the Code, an employee can be temporarily transferred to another job only with the same employer with whom he has an employment relationship, and the work should not be contraindicated him for health reasons.

If, when transferring to another job in the event of downtime, the need to prevent destruction or damage to property, or replacing a temporarily absent employee, the employee will have to perform work of a lower qualification, then such a transfer, by virtue of part three of Article 72.2 of the Code, is possible only with the written consent of the employee.

19. When resolving cases related to transfer to another job, it is necessary to keep in mind that refusal to perform work during a transfer made in compliance with the law is recognized as a violation of labor discipline, and absence from work is considered absenteeism.

It should be taken into account that by virtue of paragraph five of part one of Article 219, part seven of Article 220 of the Code, an employee cannot be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, except in cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with harmful and (or) dangerous working conditions not provided for by the employment contract.

Since the Code does not contain rules prohibiting an employee from exercising this right even when the performance of such work is caused by a transfer on the grounds specified in Article 72.2 of the Code, the employee’s refusal to temporarily transfer to another job in accordance with Article 72.2 of the Code for the above reasons is justified.

Termination of an employment contract by agreement
parties (clause 1 of part one of Article 77, Article 78 of the Labor Code of the Russian Federation),
due to the employee’s refusal to continue working due to
with changes in labor conditions determined by the parties
agreement (clause 7 of part one of Article 77 of the Labor Code of the Russian Federation),
at the initiative of the employee (clause 3 of part
first article 77, article 80 of the Labor Code of the Russian Federation)

20. When considering disputes related to the termination of an employment contract by agreement of the parties (clause 1 of part one of Article 77, Article 78 of the Labor Code of the Russian Federation), the courts should take into account that, in accordance with Article 78 of the Code, when an agreement is reached between the employee and the employer, the employment contract concluded for an indefinite period, or a fixed-term employment contract can be terminated at any time within the period determined by the parties. Cancellation of an agreement regarding the period and grounds for dismissal is possible only with mutual consent of the employer and employee.

21. Resolving cases on the reinstatement of persons whose employment contract was terminated under paragraph 7 of part one of Article 77 of the Code (refusal to continue work in connection with a change in the terms of the employment contract determined by the parties), or on the recognition of illegal changes to the terms of the employment contract determined by the parties when an employee continues to work without changing his job function (Article 74 of the Labor Code of the Russian Federation), it must be taken into account that, based on Article 56 of the Code of Civil Procedure of the Russian Federation, the employer is obliged, in particular, to provide evidence confirming that the change in the terms of the employment contract determined by the parties was a consequence of changes in organizational or technological conditions labor, for example, changes in equipment and production technology, improvement of jobs based on their certification, structural reorganization of production, and did not worsen the employee’s position in comparison with the terms of the collective agreement or agreement. In the absence of such evidence, termination of an employment contract under clause 7 of part one of Article 77 of the Code or a change in the terms of the employment contract determined by the parties cannot be recognized as legal.

22. When considering disputes regarding termination at the initiative of an employee of an employment contract concluded for an indefinite period, as well as a fixed-term employment contract (clause 3 of part one of Article 77, Article 80 of the Labor Code of the Russian Federation), the courts must keep in mind the following:

a) termination of an employment contract at the initiative of an employee is permissible in the case where filing a letter of resignation was his voluntary expression of will. If the plaintiff claims that the employer forced him to submit a letter of resignation due to at will, then this circumstance is subject to verification and the responsibility to prove it rests with the employee;

b) the employment contract can be terminated at the initiative of the employee and before the expiration of the two-week notice period for dismissal by agreement between the employee and the employer.

If the employee’s application is due to the impossibility of continuing his work (enrollment in an educational institution, retirement, or the presence of other valid reasons due to which the employee cannot continue to work, for example, sending a husband (wife) to work abroad, to a new place of duty), and also in cases established violation employer of labor legislation and other regulatory legal acts containing labor law norms, local regulations, terms of a collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee’s application. It is necessary to keep in mind that these violations can be established, in particular, by the authorities implementing state supervision and control over compliance with labor legislation, trade unions, labor dispute commissions, and the court;

c) based on the content of part four of Article 80 and part four of Article 127 of the Labor Code of the Russian Federation, an employee who has warned the employer about termination of the employment contract has the right, before the expiration of the warning period (and when granting leave with subsequent dismissal - before the day the leave begins) to withdraw his application and dismissal in this case, is not carried out provided that another employee is not invited in his place in writing, who, in accordance with the Code and other federal laws, cannot be refused to conclude an employment contract (for example, by virtue of part four of Article 64 of the Labor Code of the Russian Federation, it is prohibited to refuse in concluding an employment contract for employees invited in writing to work by way of transfer from another employer, within one month from the date of dismissal from their previous place of work). If, after the expiration of the notice period, the employment contract has not been terminated and the employee does not insist on dismissal, the employment contract is considered continued (part six of Article 80 of the Labor Code of the Russian Federation).

Guarantees for employees upon termination
employment contract at the initiative of the employer

23. When considering a case on reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer. It must be borne in mind that:

a) dismissal of an employee is not allowed (except in the case of liquidation of the organization or termination of activities individual entrepreneur) during the period of his temporary disability and while on vacation (part six of Article 81 of the Labor Code of the Russian Federation);

pregnant women (except for the case of liquidation of an organization or termination of activities by an individual entrepreneur), as well as women with children under the age of three, single mothers raising a child under the age of fourteen (a disabled child - up to eighteen years), other persons, raising these children without a mother, with the exception of dismissal on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 of the first part of Article 81 or paragraph 2 of Article 336 of the Labor Code of the Russian Federation (Article 261 of the Labor Code of the Russian Federation);

b) termination of an employment contract with employees under the age of eighteen (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur), in addition to compliance with the general procedure for dismissal, is allowed only with the consent of the relevant state labor inspectorate and the commission for minors and the protection of their rights (Article 269 of the Labor Code RF);

c) the dismissal of employees who are members of a trade union on the grounds provided for in paragraphs 2, 3 or 5 of part one of Article 81 of the Code is carried out in compliance with the procedure for taking into account the reasoned opinion of the elected body of the primary trade union organization in accordance with Article 373 of the Code (part two of Article 82 of the Labor Code of the Russian Federation ). At the same time, based on the content of part two of Article 373 of the Code, dismissal on the specified grounds can be carried out without taking into account the opinion of the elected body of the primary trade union organization, if it does not submit such an opinion within seven working days from the date of receipt of the draft order and copies of documents from the employer, as well as if he presents his opinion within the prescribed period, but does not motivate it, i.e. does not justify its position on the issue of dismissal of this employee;

d) representatives of employees participating in collective negotiations during the period of their conduct cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent, except in cases of termination of the employment contract for committing an offense for which, in accordance with the Code, other federal laws dismissal from work is provided (part three of Article 39 of the Labor Code of the Russian Federation);

e) representatives of workers and their associations participating in the resolution of a collective labor dispute during the period of resolution of a collective labor dispute cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent them (part two of Article 405 of the Labor Code of the Russian Federation).

24. In cases where the participation of an elected trade union body in considering issues related to the termination of an employment contract at the initiative of the employer is mandatory, the employer must, in particular, provide evidence that:
a) upon dismissal of an employee under paragraph 2 of part one of Article 81 of the Code (reduction in the number or staff of employees of an organization, individual entrepreneur), the notification deadlines established by part one of Article 82 of the Code, the elected body of the primary trade union organization about the upcoming reduction in the number or staff of employees of the organization were observed, individual entrepreneur, as well as the mandatory written form of such notification;

b) upon termination of an employment contract with an employee due to his insufficient qualifications, confirmed by the results of certification, to the composition certification commission during the certification process, which served as the basis for the dismissal of an employee under paragraph 3 of part one of Article 81 of the Code, a representative of the elected body of the relevant primary trade union organization was included (part three of Article 82 of the Labor Code of the Russian Federation);

c) in case of dismissal of an employee who is a member of a trade union, under paragraph 2, 3 or 5 of part one of Article 81 of the Code, the draft order, as well as copies of documents that are the basis for making this decision, were sent to the elected body of the relevant primary trade union organization; the employer held additional consultations with the elected body of the primary trade union organization in cases where the elected body of the primary trade union organization expressed disagreement with the proposed dismissal of the employee; the one-month period for terminating the employment contract was observed, calculated from the day the employer received the reasoned opinion of the elected body of the primary trade union organization (Article 373 of the Labor Code of the Russian Federation).

When deciding on the legality of dismissal in cases where it was carried out with the consent of a higher elected trade union body, it must be borne in mind that the employer, in particular, must provide evidence that the trade union body gave consent on the grounds that were indicated by the employer when applying to the trade union body, and then in the dismissal order.

25. Courts must keep in mind that in accordance with part five of Article 373 of the Labor Code of the Russian Federation, the employer has the right to terminate the employment contract no later than one month from the date of receipt of the reasoned opinion of the elected body of the primary trade union organization and during this period periods of temporary disability of the employee, stay him on vacation and other periods of absence of the employee when he retains his place of work (position).

Considering that the Code has not established a period during which an employer has the right to terminate an employment contract with an employee, whose consent to dismissal has been given by a higher elected trade union body, the courts, in relation to the rules of part five of Article 373 of the Code, should proceed from the fact that dismissal can also be carried out without later than one month from the date of receipt of the consent of the higher elected trade union body for dismissal.

26. If the employer fails to comply with the requirements of the law on the preliminary (before issuing the order) consent of the relevant higher elected trade union body to terminate the employment contract or on contacting the elected body of the relevant primary trade union organization to obtain a reasoned opinion of the trade union body on the possible termination of the employment contract with the employee, when it is mandatory, the dismissal of the employee is illegal and he is subject to reinstatement.

27. When considering cases of reinstatement at work, it should be borne in mind that when implementing the guarantees provided by the Code to employees in the event of termination of an employment contract with them, the general legal principle of the inadmissibility of abuse of rights, including by employees, must be observed. In particular, it is unacceptable for an employee to conceal temporary disability during his dismissal from work or the fact that he is a member trade union or the head (his deputy) of an elected collegial body of a primary trade union organization, an elected collegial body of a trade union organization of a structural unit of an organization (not lower than a workshop and equivalent to it), not released from his main job, when the decision on the issue of dismissal must be made in compliance with the procedure for taking into account a reasoned opinion elected body of the primary trade union organization or, accordingly, with the prior consent of a higher elected trade union body.

If the court establishes that the employee has abused his right, the court may refuse to satisfy his claim for reinstatement at work (while changing, at the request of the employee dismissed during a period of temporary incapacity, the date of dismissal), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of unfair actions on the part of the employee.

Termination of an employment contract at the initiative of the employer
(Article 81 of the Labor Code of the Russian Federation) and under paragraph 2 of Article 278 of the Labor Code of the Russian Federation. Disciplinary action

28. A circumstance that is important for the correct resolution of claims for reinstatement of persons whose employment contract was terminated due to the liquidation of an organization or termination of activities by an individual entrepreneur (clause 1 of part one of Article 81 of the Labor Code of the Russian Federation), the obligation to prove which rests with the defendant, in in particular, is the actual termination of the activities of an organization or an individual entrepreneur.

The basis for dismissal of employees under paragraph 1 of part one of Article 81 of the Code may be a decision to liquidate a legal entity, i.e. a decision to terminate its activities without transferring rights and obligations by way of succession to other persons, adopted in the manner prescribed by law (Article 61 of the Civil Code of the Russian Federation).

If the employer was an individual registered as an individual entrepreneur, then the employment contract with the employee may be terminated under paragraph 1 of part one of Article 81 of the Code, in particular, when the activities of an individual entrepreneur are terminated on the basis of his own decision, due to his being declared insolvent (bankrupt). ) by a court decision (clause 1 of Article 25 of the Civil Code of the Russian Federation), due to the expiration of the state registration certificate, refusal to renew a license for certain types activities.

The termination of the activities of an employer—an individual who did not have the status of an individual entrepreneur—should be understood as the actual termination by such an employer of its activities.

29. In accordance with part three of Article 81 of the Code, the dismissal of an employee due to a reduction in the number or staff of an organization or individual entrepreneur is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (as a vacant position or a job that corresponds to the employee’s qualifications , as well as a vacant lower-level position or lower-paid work), which the employee can perform taking into account his state of health. Courts should keep in mind that the employer is obliged to offer the employee all qualified vacancies available in the local area. When deciding whether to transfer an employee to another job, it is also necessary to take into account the employee’s real ability to perform the work offered to him, taking into account his education, qualifications, and work experience.

It must be borne in mind that termination of an employment contract with an employee under clause 2 of part one of Article 81 of the Code is possible provided that he did not have a preferential right to remain at work (Article 179 of the Labor Code of the Russian Federation) and was warned personally and against signature of at least than two months in advance about the upcoming dismissal (part two of Article 180 of the Labor Code of the Russian Federation). (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 28, 2010 No. 22).

30. When considering cases of reinstatement of civil servants dismissed due to the liquidation of a state body or reduction of positions in the civil service, one should be guided by the provisions of Articles 31, 33 and 38 of the Federal Law of July 27, 2004 N 79-FZ “On State Civil service of the Russian Federation."

It must be borne in mind that, based on Article 73 of the said Federal Law, the Labor Code of the Russian Federation, other federal laws, other regulatory legal acts of the Russian Federation, as well as laws and other regulatory legal acts of the constituent entities of the Russian Federation containing labor law norms may be applied to relations related to the civil service, to the extent not regulated by the Federal Law “On the State Civil Service of the Russian Federation”.

31. By virtue of paragraph 3 of part one and part two of Article 81 of the Labor Code of the Russian Federation, dismissal under paragraph 3 of part one of Article 81 of the Code is permissible provided that the employee’s incompatibility with the position held or the work performed due to his insufficient qualifications is confirmed by the results of certification carried out in the manner established by the labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of workers.

Taking this into account, the employer does not have the right to terminate the employment contract with the employee on the above grounds if certification was not carried out in relation to this employee or the certification commission came to the conclusion that the employee is suitable for the position held or the work performed. In this case, the conclusions of the certification commission about the employee’s business qualities are subject to assessment in conjunction with other evidence in the case.

If the employee was dismissed under paragraph 3 of part one of Article 81 of the Code, then the employer is obliged to provide evidence indicating that the employee refused to be transferred to another job or the employer did not have the opportunity (for example, due to the lack of vacant positions or jobs) to transfer the employee with his consent to another job available to this employer (part three of Article 81 of the Labor Code of the Russian Federation).

32. Courts must keep in mind that dismissal under paragraph 4 of part one of Article 81 of the Code in connection with a change in the owner of the organization’s property is permissible only in relation to the head of the organization, his deputies and the chief accountant.

It should be taken into account that termination of an employment contract on the above grounds is possible only in the event of a change in the owner of the organization’s property as a whole. These persons cannot be dismissed under paragraph 4 of part one of Article 81 of the Code when the jurisdiction (subordination) of the organization changes, unless there is a change in the owner of the organization’s property.

A change in the owner of an organization’s property should be understood as a transition (transfer) of ownership of the organization’s property from one person to another person or other persons, in particular during the privatization of state or municipal property, i.e. upon alienation of property owned by the Russian Federation, constituent entities of the Russian Federation, municipalities, into the ownership of individuals and (or) legal entities (Article 1 of the Federal Law of December 21, 2001 N 178-FZ “On the privatization of state and municipal property”, Article 217 of the Civil Code of the Russian Federation); when property owned by an organization is converted into state property (last paragraph of paragraph 2 of Article 235 of the Civil Code of the Russian Federation); when transferring state enterprises to municipal ownership and vice versa; upon transfer of federal state enterprise into the ownership of a constituent entity of the Russian Federation and vice versa.

Since, in accordance with paragraph 1 of Article 66 and paragraph 3 of Article 213 of the Civil Code of the Russian Federation, the owner of property created from the contributions of the founders (participants) of business partnerships and companies, as well as produced and acquired by business partnerships or companies in the course of their activities, is the company or partnership, and the participants, by virtue of paragraph two of paragraph 2 of Article 48 of the Civil Code of the Russian Federation, have only rights of obligations in relation to such legal entities (for example, to participate in the management of the affairs of a partnership or company, to take part in the distribution of profits), a change in the composition of participants (shareholders) cannot serve as a basis for termination of an employment contract under clause 4 of part one of Article 81 of the Labor Code of the Russian Federation with the persons listed in this norm, since in this case the owner of the property of a business partnership or company still remains the partnership or company itself and there is no change in the owner of the property.

33. When resolving disputes of persons dismissed under paragraph 5 of part one of Article 81 of the Code for repeated failure to fulfill labor duties without good reason, it should be taken into account that the employer has the right to terminate the employment contract on this basis, provided that a disciplinary sanction was previously applied to the employee and the moment he repeatedly fails to fulfill his labor duties without good reason, it is not withdrawn or extinguished.

The application of a new disciplinary sanction to an employee, including dismissal under clause 5 of part one of Article 81 of the Code, is also permissible if the failure or improper performance, through the fault of the employee, of the work duties assigned to him continued, despite the imposition of a disciplinary sanction.

It must be borne in mind that the employer has the right to apply a disciplinary sanction to the employee even when, before committing the offense, he filed an application for termination of the employment contract on his own initiative, since the employment relationship in this case is terminated only after the expiration of the notice period for dismissal.

If the court finds that the disciplinary sanction was imposed in violation of the law, this conclusion must be motivated in the decision with reference to the specific legal norms that were violated.

34. In cases of reinstatement of persons dismissed under paragraph 5 of part one of Article 81 of the Code, the defendant is obliged to provide evidence indicating that:

1) the violation committed by the employee, which was the reason for dismissal, actually took place and could be the basis for termination of the employment contract;

2) the employer complied with the deadlines for applying disciplinary action provided for in parts three and four of Article 193 of the Labor Code of the Russian Federation.

It should be borne in mind that:

a) the month period for imposing a disciplinary sanction must be calculated from the date of discovery of the misconduct;

b) the day of discovery of the misconduct, from which the month period begins, is considered the day when the person to whom the employee is subordinate for work (service) became aware of the commission of the misconduct, regardless of whether he is vested with the right to impose disciplinary sanctions;
c) the one-month period for applying a disciplinary sanction does not include the time of illness of the employee, his stay on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (part three of Article 193 of the Labor Code of the Russian Federation);

absence of an employee from work for other reasons, including in connection with the use of rest days (time off), regardless of their duration (for example, when shift method organization of work) does not interrupt the specified period;

d) vacation that interrupts the flow of a month should include all vacations provided by the employer in accordance with current legislation, including annual (main and additional) vacations, vacations in connection with training in educational institutions, vacations without pay.

Advertisement (violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules etc.).

Such violations, in particular, include:

a) the absence of an employee from work or the workplace without good reason.
It must be borne in mind that if the employment contract concluded with the employee or the employer’s local regulatory act (order, schedule, etc.) does not stipulate specific workplace this employee, then in the event of a dispute arising on the issue of where the employee is obliged to be in the performance of his labor duties, one should proceed from the fact that, by virtue of part six of Article 209 of the Code, the workplace is the place where the employee must be or where he must arrive in connection with his work and which is directly or indirectly under the control of the employer;

b) refusal of an employee, without good reason, to perform labor duties in connection with a change in labor standards in accordance with the established procedure (Article 162 of the Labor Code of the Russian Federation), since by virtue of an employment contract, the employee is obliged to perform the labor function defined by this contract, to comply with the internal labor regulations in force in the organization (Article 56 of the Labor Code of the Russian Federation).

It should be borne in mind that refusal to continue work in connection with a change in the terms of the employment contract determined by the parties is not a violation of labor discipline, but serves as a basis for termination of the employment contract under paragraph 7 of part one of Article 77 of the Labor Code of the Russian Federation in compliance with the procedure provided for in Article 74 Code;

c) refusal or evasion without good reason from a medical examination of workers of certain professions, as well as the refusal of an employee to undergo medical examination working hours special training and passing exams on labor protection, safety precautions and operating rules, if this is a mandatory condition for admission to work.

36. When resolving disputes arising in connection with the application of disciplinary measures to employees who refused to conclude a written agreement on full financial liability for a shortage of property entrusted to employees (Article 244 of the Labor Code of the Russian Federation), in the case where it was not concluded simultaneously with the employment contract, it is necessary to proceed from the following.

If performing maintenance duties material assets is the main labor function of the employee, which was agreed upon when hiring, and in accordance with the current legislation, an agreement on full financial liability can be concluded with him, which the employee knew, refusal to conclude such an agreement should be considered as a failure to fulfill labor duties with all that arises from the consequences of this.

If the need to conclude an agreement on full financial liability arose after concluding an employment contract with the employee and is due to the fact that, due to changes in current legislation, the position he holds or the work he performs is included in the list of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full financial responsibility, but the employee refuses to conclude such an agreement, the employer, by virtue of part three of Article 74 of the Code, is obliged to offer him another job, and in its absence or the employee refuses the offered work, the employment contract with him is terminated in accordance with paragraph 7 of part one Article 77 of the Code (an employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties).

37. Considering that the law provides for the employer’s right to early recall an employee from leave to work only with his consent (part two of Article 125 of the Labor Code of the Russian Federation), the employee’s refusal (regardless of the reason) to comply with the employer’s order to return to work before the end of the leave cannot be considered as violation of labor discipline.

38. When considering a case on the reinstatement of a person dismissed under paragraph 6 of part one of Article 81 of the Code, the employer is obliged to provide evidence indicating that the employee committed one of the gross violations of labor duties specified in this paragraph. It should be borne in mind that the list of gross violations of labor duties, which gives grounds for termination of an employment contract with an employee under paragraph 6 of part one of Article 81 of the Code, is exhaustive and is not subject to broad interpretation.

39. If an employment contract with an employee is terminated under subparagraph “a” of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation for absenteeism, it must be taken into account that dismissal on this basis, in particular, can be made:

a) for absence from work without good reason, i.e. absence from work throughout the entire working day (shift), regardless of the length of the working day (shift);

b) for an employee being outside the workplace without good reason for more than four hours in a row during the working day;

c) for leaving work without a good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer about termination of the contract, as well as before the expiration of the two-week warning period (part one of Article 80 of the Labor Code of the Russian Federation);

d) for leaving work without a good reason by a person who has entered into an employment contract for a certain period, before the expiration of the contract or before the expiration of the notice period for early termination of the employment contract (Article 79, part one of Article 80, Article 280, part one of Article 292, part one Article 296 of the Labor Code of the Russian Federation);

e) for unauthorized use of days off, as well as for unauthorized departure on vacation (main, additional). It is necessary to take into account that the use of rest days by an employee is not considered absenteeism if the employer, in violation of the statutory obligation, refused to provide them and the time the employee used such days did not depend on the discretion of the employer (for example, a refusal to provide an employee who is a donor with rest days). in accordance with part four of Article 186 of the Code of the day of rest immediately after each day of donating blood and its components).

40. When considering the case of reinstatement at work of a person transferred to another job and dismissed for absenteeism due to refusal to start work, the employer is obliged to provide evidence indicating the legality of the transfer itself (Articles 72.1, 72.2 of the Labor Code of the Russian Federation). If the transfer is declared illegal, dismissal for absenteeism cannot be considered justified and the employee must be reinstated at his previous job.

41. If, when resolving a dispute about the reinstatement of a person fired for absenteeism and the recovery of average earnings for the period of forced absence, it turns out that the absence from work was caused by an unexcused reason, but the employer violated the dismissal procedure, the court, when satisfying the stated requirements, must take into account, that the average salary of a reinstated employee in such cases can be recovered not from the first day of absence from work, but from the day the dismissal order is issued, since only from this time absenteeism is forced.

42. When resolving disputes related to the termination of an employment contract under subparagraph “b” of paragraph 6 of part one of Article 81 of the Code (appearing at work in a state of alcohol, drug or other toxic intoxication), the courts must keep in mind that on this basis there may be employees who were in a state of alcohol, drug or other toxic intoxication during working hours at the place where they performed their job duties were dismissed. It does not matter whether the employee was suspended from work due to the specified condition.

It is also necessary to take into account that dismissal on this basis can also follow when the employee during working hours was in such a state not at his workplace, but on the territory of this organization, or he was on the territory of the facility, where, on behalf of the employer, he had to perform a labor function .

The state of alcoholic or narcotic or other toxic intoxication can be confirmed by both a medical report and other types of evidence, which must be assessed accordingly by the court.

43. If an employee challenges dismissal under subparagraph “c” of paragraph 6 of part one of Article 81 of the Code, the employer is obliged to provide evidence indicating that the information that the employee disclosed, in accordance with current legislation, relates to state, official, commercial or other protected confidentiality law, or to the personal data of another employee, this information became known to the employee in connection with the performance of his job duties and he undertook not to disclose such information.

44. When considering cases of reinstatement at work of persons whose employment contract was terminated under subparagraph “d” of paragraph 6 of part one of Article 81 of the Code, the courts must take into account that on this basis employees who have committed theft (including petty theft) can be dismissed. other people's property, embezzlement, intentional destruction or damage, provided that these unlawful actions were committed by them at the place of work and their guilt was established by a court verdict that entered into legal force or by a decision of a judge, body, official authorized to consider cases of administrative offenses.

Any property that does not belong to a given employee should be regarded as someone else's property, in particular property belonging to the employer, other employees, as well as persons who are not employees of this organization.

The established monthly period for applying such a disciplinary measure is calculated from the date of entry into force of a court verdict or decision of a judge, body, official authorized to consider cases of administrative offenses.

45. Courts must keep in mind that termination of an employment contract with an employee under paragraph 7 of part one of Article 81 of the Code due to loss of trust is possible only in relation to employees directly servicing monetary or commodity assets (reception, storage, transportation, distribution, etc.). etc.), and provided that they committed such guilty actions that gave the employer grounds for losing confidence in them.

If it is established in the manner prescribed by law that theft, bribery and other mercenary offenses have been committed, these employees may be dismissed on the grounds of loss of confidence in them and in the case when these actions are not related to their work.

46. ​​When considering cases of reinstatement to work of persons whose employment contract was terminated due to their commission of an immoral offense incompatible with the continuation of this work (clause 8 of part one of Article 81 of the Labor Code of the Russian Federation), the courts should proceed from the fact that on this basis Dismissal is allowed only of those workers who are engaged in educational activities, for example, teachers, teachers of educational institutions, vocational training supervisors, teachers of child care institutions, and regardless of where the immoral offense was committed: at the place of work or at home.

47. If guilty actions giving grounds for loss of trust, or an immoral offense are committed by an employee at the place of work and in connection with the performance of his job duties, then such an employee may be dismissed from work (according to paragraph 7 or 8 of part one of Article 81 of the Labor Code of the Russian Federation ) subject to compliance with the procedure for applying disciplinary sanctions established by Article 193 of the Code.

If guilty actions giving grounds for loss of trust, or, accordingly, an immoral offense were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his job duties, then the employment contract with him can also be terminated under clause 7 or clause 8 Part one of Article 81 of the Labor Code of the Russian Federation, but no later than one year from the date of discovery of the offense by the employer (part five of Article 81 of the Labor Code of the Russian Federation).

48. Courts should keep in mind that termination of an employment contract under clause 9 of part one of Article 81 of the Code is permissible only in relation to the heads of the organization (branch, representative office), his deputies and the chief accountant, and provided that they made an unfounded decision, which resulted in entail a violation of the safety of property, its unlawful use or other damage to the property of the organization.
In deciding whether it was decision made unfounded, it is necessary to take into account whether the named adverse consequences occurred precisely as a result of this decision and whether they could have been avoided if another decision had been made. Moreover, if the defendant does not provide evidence confirming the occurrence of the adverse consequences specified in paragraph 9 of part one of Article 81 of the Code, dismissal on this basis cannot be recognized as legal.

49. The employer has the right to terminate the employment contract under paragraph 10 of part one of Article 81 of the Code with the head of the organization (branch, representative office) or his deputies if they committed a one-time gross violation of their labor duties.
The question of whether the violation committed was gross is decided by the court, taking into account the specific circumstances of each case. At the same time, the responsibility to prove that such a violation actually took place and was of a gross nature lies with the employer.

As a gross violation of labor duties by the head of the organization (branch, representative office), his deputies should, in particular, be regarded as failure to fulfill the duties assigned to these persons by the employment contract, which could result in harm to the health of employees or property damage to the organization.

Based on the content of paragraph 10 of part one of Article 81 of the Code, heads of other structural divisions of the organization and their deputies, as well as the chief accountant of the organization cannot be dismissed on this basis. However, an employment contract with such employees can be terminated for a one-time gross violation of their labor duties under paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation, if the acts committed by them fall under the list of gross violations specified in subparagraphs “a” - “d” of paragraph 6 of part first article 81 of the Code, or in other cases if provided for by federal laws.

50. Taking into account that Article 3 of the Code prohibits limiting someone’s labor rights and freedoms depending on their official position, and also taking into account that the dismissal of the head of an organization in connection with the adoption by an authorized body of a legal entity either by the owner of the organization’s property or by an authorized owner person (body) of a decision on early termination of an employment contract is essentially dismissal at the initiative of the employer, and Chapter 43 of the Code, which regulates the specifics of the work of the head of an organization, does not contain rules depriving these persons of the guarantee established by part six of Article 81 of the Labor Code of the Russian Federation, in the form of a general ban on dismissal of an employee at the initiative of the employer during a period of temporary incapacity for work and while on vacation (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur), an employment contract with the head of an organization cannot be terminated under paragraph 2 of Article 278 of the Code during the period of his temporary incapacity for work or stay on vacation vacation.

51. By virtue of paragraph 11 of part one of Article 77 and Article 84 of the Labor Code of the Russian Federation, an employment contract may be terminated due to a violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation or other federal law, if violation of these rules excludes the possibility of continuing work and the employee cannot be transferred from his written consent to another job available to the employer.

It is necessary to take into account that if the rules for concluding an employment contract were violated through the fault of the employee himself due to the submission of false documents, then the employment contract with such an employee is terminated under paragraph 11 of part one of Article 81 of the Code, and not under paragraph 11 of part one of Article 77 of the Code.

52. Dismissal of an employee for repeated failure to fulfill labor duties without good reason, as well as for a single gross violation of labor duties by the employee; for committing guilty actions giving grounds for loss of trust, or committing an immoral offense, if the guilty actions giving grounds for loss of trust, or the immoral offense were committed by the employee at the place of work or in connection with the performance of his job duties; dismissal of the head of an organization (branch, representative office), his deputies or chief accountant for making an unfounded decision that resulted in a violation of the safety of property, its unlawful use or other damage to the organization’s property; dismissal of the head of the organization (branch, representative office), his deputies for a single gross violation of labor duties; dismissal of a teaching employee for repeated gross violation of the charter within one year educational institution(clauses 5 - 10 of part one of Article 81, clause 1 of Article 336 of the Labor Code of the Russian Federation) is a disciplinary measure (part three of Article 192 of the Labor Code of the Russian Federation). Therefore, dismissal on these grounds is permitted no later than one month from the date of discovery of the misconduct, not counting the time the employee was ill, on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the employee’s representative body (part three of Article 193 of the Labor Code of the Russian Federation). A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit or audit of financial and economic activities or an audit - later than two years from the date of its commission. The specified time frame does not include the time of criminal proceedings (part four of Article 193 of the Labor Code of the Russian Federation). (as amended by the Resolutions of the Plenum of the Supreme Court of the Russian Federation dated September 28, 2010 N 22, dated November 24, 2015 N 52).

53. By virtue of Article 46 (Part 1) of the Constitution of the Russian Federation, which guarantees everyone judicial protection of their rights and freedoms, and the corresponding provisions of international legal acts, in particular Article 8 of the Universal Declaration of Human Rights, Article 6 (Clause 1) of the Convention on the Protection of Rights human rights and fundamental freedoms, as well as Article 14 (paragraph 1) of the International Covenant on Civil and Political Rights, the state is obliged to ensure the implementation of the right to judicial protection, which must be fair, competent, full and effective.

Taking this into account, and also taking into account that the court, which is the body for resolving individual labor disputes, by virtue of Part 1 of Article 195 of the Code of Civil Procedure of the Russian Federation must make a lawful and justified decision, a circumstance that is important for the correct consideration of cases of challenging a disciplinary sanction or reinstatement at work and subject to proof by the employer, is his compliance when applying disciplinary sanctions to an employee arising from Articles 1, 2, 15, 17, 18, 19, 54 and 55 of the Constitution of the Russian Federation and recognized by the Russian Federation as rule of law general principles legal, and therefore disciplinary, responsibility, such as justice, equality, proportionality, legality, guilt, humanism.

For these purposes, the employer must provide evidence indicating not only that the employee committed a disciplinary offense, but also that when imposing a penalty, the severity of this offense and the circumstances under which it was committed were taken into account (part five of Article 192 of the Labor Code of the Russian Federation), as well as the employee’s previous behavior and attitude towards work.

If, when considering a case for reinstatement at work, the court comes to the conclusion that misconduct actually occurred, but the dismissal was made without taking into account the above circumstances, the claim may be satisfied.

However, in this case, the court does not have the right to replace dismissal with another sanction, since, in accordance with Article 192 of the Code, imposing a disciplinary sanction on an employee is the competence of the employer.

Wages. Annual additional leave. Strike

54. When resolving disputes arising in connection with the payment of non-monetary wages to an employee in accordance with a collective agreement or employment contract, it must be borne in mind that, within the meaning of Article 131 of the Code and Article 4 of the ILO Convention No. 95 of 1949 on the Protection of Wages wages (ratified by Decree of the Presidium of the Supreme Soviet of the USSR No. 31 of January 31, 1961), payment of wages in this form can be recognized as justified if the following are legally proven significant circumstances:

a) there was a voluntary expression of the employee’s will, confirmed by his written statement, to pay wages in non-monetary form. At the same time, Article 131 of the Code does not exclude the right of an employee to express consent to receive part of the salary in non-monetary form, both for this specific payment and for a certain period (for example, during a quarter, a year). If an employee has expressed a desire to receive part of his salary in kind for a certain period, then he has the right, before the end of this period, in agreement with the employer, to refuse this form of payment;

b) wages in non-monetary form were paid in an amount not exceeding 20 percent of the accrued monthly wage;

c) payment of wages in kind is common or desirable in given industries, economic activities or professions (for example, such payments have become common in the agricultural sector of the economy);

G) this kind payments are suitable for the personal consumption of the employee and his family or bring him a certain kind of benefit, keeping in mind that payment of wages in bonds, coupons, in the form of promissory notes, receipts, as well as in the form of alcoholic beverages, narcotic, toxic, poisonous and harmful substances, weapons, ammunition and other items that are subject to bans or restrictions on their free circulation;

e) when paying an employee wages in kind, the requirements of reasonableness and fairness in relation to the cost of goods transferred to him as wages are met, i.e. their value in any case should not exceed the level of market prices prevailing for these goods in a given area during the period of accrual of payments.

55. When considering a dispute arising in connection with the employer’s refusal to pay an employee interest (monetary compensation) for failure to pay wages, vacation pay, dismissal payments and other payments due to the employee, it must be borne in mind that in accordance with Article 236 Code, the court has the right to satisfy the claim regardless of the employer’s guilt in the delay in paying the specified amounts.

If a collective agreement or employment contract determines the amount of interest to be paid by the employer in connection with the delay in payment of wages or other payments due to the employee, the court calculates the amount of monetary compensation taking into account this amount, provided that it is not lower than that established by Article 236 of the Code.

The accrual of interest in connection with late payment of wages does not exclude the employee’s right to indexation of the amounts of delayed wages due to their depreciation due to inflationary processes.

56. When considering a case on the claim of an employee, whose employment relationship has not been terminated, for the recovery of accrued but unpaid wages, it should be taken into account that the employer’s statement about the employee missing the deadline to go to court cannot in itself serve as a basis for refusing to satisfy requirements, since in this case the deadline for going to court has not been missed, since the violation is of a continuing nature and the employer’s obligation to timely and fully pay the employee wages, and even more so the delayed amounts, remains throughout the entire period of validity of the employment contract.

57. When resolving disputes related to late payment of wages, courts should keep in mind that by virtue of Article 142 of the Code, an employee has the right to suspend work (except for the cases listed in part two of Article 142 of the Labor Code of the Russian Federation), provided that the delay payment of wages was more than 15 days and the employee notified the employer in writing of the suspension of work. It is necessary to take into account that, based on this norm, suspension of work is allowed not only in cases where a delay in payment of wages for a period of more than 15 days occurred due to the fault of the employer, but also in the absence of such.

58. When resolving disputes that have arisen in connection with the provision of annual additional leaves to employees, it is necessary to take into account that the right to such leaves has the employees listed in part one of Article 116 of the Code, as well as other categories of employees in cases provided for by the Labor Code of the Russian Federation and other federal laws , collective agreements or local regulations (Article 116 of the Labor Code of the Russian Federation).

It should be borne in mind that, by virtue of Articles 5 and 8 of the Code, the provisions of collective agreements or agreements, as well as local regulations governing the conditions and procedure for granting annual additional leave, worsen the situation of employees in comparison with the legislation on additional leave (for example, establishing less than the corresponding legislative act, duration of additional leave) cannot be applied by the court.

59. Based on the provisions of part 3 of article 17, part 3 of article 55 of the Constitution of the Russian Federation, as well as part three of article 413 of the Code, a strike, the right to which is guaranteed by the Constitution of the Russian Federation (part 4 of article 37), may be declared illegal if during the trial there is it was established that there were restrictions on the exercise of the right to strike established by federal law (for example, it was carried out in violation of part one of Article 413 of the Code, which provides for cases when a strike is not allowed), or it was declared in violation of the terms, procedures and requirements established by the Code , in particular, conciliation procedures were not carried out before the strike was declared (Articles 401 - 404 of the Labor Code of the Russian Federation);

the decision to hold a strike was made in the absence of the required quorum (part three of Article 410 of the Labor Code of the Russian Federation); either less than half of the workers present at the meeting (conference) voted for this decision, or for its approval (if it is impossible to hold a meeting or convene a conference), the representative body of workers collected an insufficient number of signatures of workers (part five of Article 410 of the Labor Code of the Russian Federation); the minimum necessary work (services) performed during the strike by employees of organizations (branches, representative offices or other separate structural units), individual entrepreneurs whose activities are related to the safety of people, ensuring their health and vital interests of society was not provided (part three - eighth article 412 of the Labor Code of the Russian Federation); the employer was not warned in writing no later than ten calendar days about the start of the upcoming strike (part eight of Article 410 of the Labor Code of the Russian Federation).

Court decisions on labor disputes

60. An employee dismissed without legal grounds or in violation of the established procedure for dismissal is subject to reinstatement at his previous job. If it is impossible to restore him to his previous job due to the liquidation of the organization, the court declares the dismissal illegal and obliges the liquidation commission or the body that made the decision to liquidate the organization to pay him the average salary for the entire period of forced absence.

At the same time, the court recognizes the employee as dismissed under paragraph 1 of part one of Article 81 of the Labor Code of the Russian Federation in connection with the liquidation of the organization.

If an employee with whom a fixed-term employment contract was concluded was illegally dismissed from work before the expiration of the contract, the court reinstates the employee in his previous job, and if at the time the dispute is considered by the court, the term of the employment contract has already expired, it recognizes the dismissal as illegal, changes the date of dismissal and the wording grounds for dismissal upon expiration of the employment contract.

At the request of an employee whose dismissal is recognized as illegal, the court may limit itself to making a decision to recover in his favor the average earnings for the period of forced absence and to change the wording of the grounds for dismissal to dismissal at his own request (parts three and four of Article 394 of the Labor Code of the Russian Federation).

61. If, when resolving a dispute about reinstatement at work, the court recognizes that the employer had grounds for terminating the employment contract, but in the order indicated an incorrect or non-compliant wording of the grounds and (or) reasons for dismissal, the court, by virtue of part five of Article 394 of the Code, is obliged to change it and indicate in the decision the reason and basis for dismissal in strict accordance with the wording of the Code or other federal law with reference to the relevant article, part of the article, paragraph of the article of the Code or other federal law, based on the actual circumstances that served as the basis for dismissal.

If it is proven that the incorrect formulation of the grounds and (or) reasons for dismissal prevented the employee from taking another job, the court, in accordance with part eight of Article 394 of the Code, recovers in his favor the average earnings for the entire period of forced absence.

62. The average earnings to pay for the time of forced absence are determined in the manner prescribed by Article 139 of the Labor Code of the Russian Federation.

Since the Code (Article 139) established a uniform procedure for calculating the average salary for all cases of determining its size, the same procedure should be used to determine the average earnings when collecting sums of money during forced absence caused by a delay in issuing a work book to a dismissed employee (Article 234 of the Labor Code of the Russian Federation) , in case of forced absenteeism due to incorrect formulation of the reason for dismissal (part eight of Article 394 of the Labor Code of the Russian Federation), in case of delay in the execution of a court decision on reinstatement at work (Article 396 of the Labor Code of the Russian Federation).

It must be borne in mind that the specifics of the procedure for calculating average wages established by Article 139 of the Code are determined by the Government of the Russian Federation taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations (part seven of Article 139 of the Labor Code of the Russian Federation).

When collecting average earnings in favor of an employee reinstated in his previous job, or if his dismissal is declared illegal, the severance pay paid to him is subject to offset. However, when determining the amount of payment for forced absence, the average earnings collected in favor of the employee during this time are not subject to reduction by the amount of wages received from another employer, regardless of whether the employee worked for him on the day of dismissal or not, temporary disability benefits , paid to the plaintiff within the period of paid absenteeism, as well as the unemployment benefits that he received during the period of forced absenteeism, since these payments by current legislation are not classified as payments subject to offset when determining the amount of payment for forced absenteeism.

63. In accordance with part four of Article 3 and part nine of Article 394 of the Code, the court has the right to satisfy the claim of a person who has been subjected to discrimination in the sphere of labor, as well as the claim of an employee dismissed without legal grounds or in violation of the established procedure for dismissal or illegally transferred to another job, about compensation for moral damage.

Considering that the Code does not contain any restrictions for compensation for moral damage and in other cases of violation of the labor rights of employees, the court, by virtue of Articles 21 (paragraph fourteen of part one) and 237 of the Code, has the right to satisfy the employee’s claim for compensation for moral damage caused to him by any unlawful actions or inaction of the employer, including violation of his property rights (for example, delay in payment of wages).

In accordance with Article 237 of the Code, compensation for moral damage is compensated in cash in an amount determined by agreement between the employee and the employer, and in the event of a dispute, the fact of causing moral damage to the employee and the amount of compensation are determined by the court, regardless of the property damage to be compensated.

The amount of compensation for moral damage is determined by the court based on the specific circumstances of each case, taking into account the volume and nature of moral or physical suffering caused to the employee, the degree of guilt of the employer, other noteworthy circumstances, as well as the requirements of reasonableness and fairness.

64. In connection with the adoption of this Resolution:

a) invalidate the Resolutions of the Plenum of the Supreme Court of the Russian Federation:
dated March 21, 1978 No. 3 “On issues that arose in judicial practice when applying Art. 214 of the Labor Code of the Russian Federation” with amendments and additions made by Resolutions of the Plenum of December 20, 1983 No. 11 and of August 23, 1988 No. 9, as amended by Resolution of the Plenum of December 21, 1993 No. 11;

dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes” as amended by the Resolutions of the Plenum of December 21, 1993 No. 11 and dated October 25, 1996 No. 10, with amendments and additions made Resolutions of the Plenum of January 15, 1998 No. 1 and November 21, 2000 No. 32;

b) Resolutions of the Plenum of the Supreme Court of the Russian Federation containing explanations on the application of labor legislation are subject to application to the extent that they do not contradict the Labor Code of the Russian Federation.

Judicial practice on labor disputes is summarized by the Supreme Court of the Russian Federation in relevant reviews and decisions. Let us take a closer look at the importance of this judicial body in shaping the practice of considering and resolving conflicts between employees and employers.

The role of the Supreme Court in labor disputes

The main role of the Supreme Court in resolving labor disputes is to formulate a unified course of law enforcement by providing appropriate explanations (Article 126 of the Constitution of the Russian Federation).

Decisions of the Supreme Court on labor disputes are implemented in the form of:

• reviews (approved by the presidium);
• resolutions (adopted by the Plenum).

The first are a generalization of practice on certain topics, based on a description of the most “correct” court decisions. And the latter contain explanations of the procedure for enforcing certain provisions of the legislation, based on the most pressing issues identified during the analysis of practice. Reviews, published more often than resolutions of the Plenum on labor disputes, are in some way a supplement to the latter, since they fill in the issues that are not resolved by them.

An example of a review of judicial practice on labor disputes is a review of the practice of courts considering cases on disputes arising from the labor relations of athletes and coaches (approved by the Presidium of the Supreme Court of the Russian Federation on July 8, 2015).

Examples of decisions of the Plenum of the Supreme Court on labor disputes:

• dated January 28, 2014 No. 1 (on the labor of females, family citizens and persons under the age of 18);
• dated 06/03/2015 No. 21 (on the labor of managers and members of the executive body), etc.

Moreover, courts must be guided by all current decisions, otherwise their decisions may be canceled or changed (for example, appellate ruling Moscow City Court dated July 16, 2015 in case No. 33-17085/15).

Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2

One of the most important resolutions on labor disputes of the Plenum of the Armed Forces of the Russian Federation is Act No. 2 dated March 17, 2004. It provides definitions of many important concepts, including such as:

• business qualities of the employee;
• valid reasons for missing the deadline for going to court;
• change of owner of the organization’s property, etc.

Most of the document is devoted to issues related to termination of relations at the initiative of the employer and disciplinary sanctions.

As examples of additions, clarifications, and filling gaps in judicial practice on labor disputes, the following provisions of the act in question can be cited:

• clause 27, in which the courts are given the right to refuse to satisfy an employee’s claim for reinstatement if it is established that he has abused his right (for example, when concealing activities in the status of a trade union member, when dismissal should be made taking into account the opinion of this organization);
• clause 42, which defines what is meant by appearing at work in a state of alcohol intoxication, namely: being in such a state not only directly at the workplace, but also on the territory of the company, facility, where he should have performed his direct duties;
• clause 46, which indicates the possibility of dismissal of an employee engaged in educational activities due to the commission of an immoral act (clause 8, part 1, article 81 of the Labor Code of the Russian Federation), regardless of the place where this unacceptable act occurred.

Reviews of judicial practice on labor disputes are made by the Plenum of the RF Armed Forces. And for the purpose of uniform application of legal norms, this body issues decisions on the rules for considering and resolving conflicts in this area. Such acts have a significant role and must be taken into account by the courts when making decisions.

Resolution of the Plenum No. 2 on labor disputes is the main act, which reflects and comments on the order of application of all the most important points, from the conclusion of the contract to its termination, as well as general rules resolving such conflicts and issuing resolution acts.

Judicial practice in labor disputes

To protect his violated labor rights, an employee has the right to apply either to the labor inspectorate or to court. According to Art. 24 of the Code of Civil Procedure of the Russian Federation, cases of labor disputes that arise are considered by district courts. The employee has the right to file a claim in court at the location of the organization. If his rights are violated in a branch or representative office, then at their location. This is stated in paragraph 2 of Art. 29 Code of Civil Procedure of the Russian Federation.
Labor disputes occupy the lion's share of civil cases considered by the courts.

As judicial practice shows, the most common disputes are about illegal refusal to hire and illegal dismissal. Unfortunately, neither in the Labor Code of the Russian Federation, nor in the Civil Procedure Code, there are no unambiguous rules that would reflect the consequences of an illegal refusal to hire. That is why decisions on such disputes are ambiguous.
If there is a “gap” in the law, then the courts, when considering labor disputes, began to rely on the norms of the Constitution of the Russian Federation, using the analogy of law and the analogy of law.
Judicial practice is necessary to bring complex legal issues into a coherent whole. However, this rule does not always work with labor disputes.

Court decisions on labor disputes

One of the most “popular” reasons for refusal to hire is the applicant’s lack of registration at the place of residence in the new region. However, by filing a claim in court on such grounds, an employee can be sure that the court will rule in his favor, since such a reason is not a basis for refusing to accept a vacant position.

In “second place” in terms of “attendance” of courts are cases of illegal dismissal.
Court decisions on labor disputes concerning illegal refusal to hire and illegal dismissal are not always clear-cut. There is no unity here that is necessary to make a decision. Often, the court makes a decision in favor of the plaintiff (that is, the employee) only because the employer filled out the documents incorrectly.
For example, a court decision in a similar case where an employment contract was drawn up incorrectly. The court decided to reinstate the employee at work, and ordered the employer to pay him wages for forced absence. In addition, the employer is obliged to pay the plaintiff monetary compensation for moral damage caused to her illegal actions employer.

Court decisions in labor disputes are not always made in favor of the employee. For example, a court decision on illegal dismissal was made in favor of the employer, since the plaintiff, that is, the former employee, did not familiarize himself with his job description.
The courts make decisions based on the workers' claims and the evidence they present to the court. Thus, a strong evidence base often helps to reinstate an employee at work.
In addition, both parties to the employment relationship must pay close attention to the main document - the employment contract. Often, an incorrectly drawn up fixed-term contract helps the employee to be reinstated at work. Thus, the court decision in a similar case was made in favor of the employee.

The practice of labor courts is quite ambiguous. For example, if you show up to apply for a job while drunk, you should not expect to get the position. However, there is a court decision in which a refusal for such a reason is recognized as unfounded. The court ordered the defendant, a potential employer, to enter into an employment contract with the applicant and pay him compensation.
An employee’s appeal to the labor inspectorate for protection of his labor rights does not deprive him of the right to go to court. However, if the court refuses to satisfy the claim, then labor inspection has no right to make a decision in the case in favor of the employee.

trudinspection.ru

Court decisions on labor disputes

The question arises: are the norms of the Labor Code of the Russian Federation subject to application when resolving disputes involving the named categories of citizens, or is it necessary to be guided by the provisions of special laws that apply to them?

Having analyzed the judicial practice on this issue, we can conclude: it is necessary to apply, first of all, special laws. Let's say, if a police officer went to court, then the law should be followed? RF dated April 18, 1991 N 1026-I “On the police”. 11 Regulations on service in the internal affairs bodies of the Russian Federation (approved by Resolution of the Supreme Court of the Russian Federation of December 23, 1992 N 4202-I). 12 With this? Should the provision be applied by the court? insofar as it does not contradict the Law “On the Police”, which directly follows from Article 19 of this Law. Is this indicative? In terms of a court decision, when a police officer was reinstated in service, because he was fired under clause “l” of Part 1 of Article 58 of the Regulations, while the Law “On the Police” does not provide for such a basis for dismissal. 13 In the decree??o? The Regulations contain concepts used in Labor? Code of the Russian Federation. For example, Article 10 of the Regulations talks about part-time work, Article 11 provides for the conclusion of a contract, Article 12 regulates the establishment probationary period etc. These standards can be assessed in accordance with those contained in Labor? Code of the Russian Federation requirements.

Point? “e” of Article 58 of the Regulations provides for the dismissal of a police officer due to staff reduction. According to the norms of the Labor Code of the Russian Federation, a certain procedure and guarantees are provided for dismissal on such grounds. The Regulations only provide that the employee is warned of dismissal two months in advance, and dismissal is carried out if it is impossible to use him in the service. At this? certain difficulties arise in assessing the defendants represented? evidence of the impossibility of such use of the employee. Meanwhile, regarding the application of the norms of the Labor Code of the Russian Federation on this issue, extensive judicial practice has developed. It seems that this practice, even if indirectly, can be taken into account when resolving similar labor disputes with the participation of police officers.

According to Article 66 of the Regulations, if a police officer disagrees with a decision on his promotion, removal from office, demotion or special promotion? rank, he has the right to appeal this decision to a higher superior, and then to court. Sometimes courts, applying this Regulation, refuse to accept applications with reference to the Code of Civil Procedure if the employee immediately decided to go to court. Indeed, according to the Labor Code of the Russian Federation, when resolving a labor dispute other than dismissal, changing the wording of the reason and date of dismissal, payment for forced absence, the employee must first contact the labor dispute committee, and, if this not done in the presence of such a complaint, the judge has the right to refuse to accept the application. However, in yes??o? In this case, according to established practice, despite the restrictions provided for by the Regulations, a police officer can immediately go to court to protect his labor rights, while including on a dispute over the imposition of a disciplinary sanction.

The service of military personnel is regulated by Federal Law? dated May 27, 1998 N 76-FZ “On the status of military personnel” 14 and the Federal Law? dated March 28, 1998 N 53-FZ “On military obligations and military service” 15.

Persons in active military service apply to a military court to resolve disputes, and former military personnel - at their choice - to a military court or a court of general jurisdiction. Is this procedure enshrined in the Federal? constitutional?o? Law of June 23, 1999 N 1-FKZ “On the military courts of the Russian Federation”. 16 Courts should not apply the norms of the Labor Code of the Russian Federation when regulating relations related to the dismissal of military personnel. The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation drew attention to this when considering specific cases of this kind. Indeed, in the named federal laws there are no references to the Labor Code of the Russian Federation. 17 For military personnel established special conditions labor (service), which differ significantly from the labor relations of workers and employees. For example, for military personnel, such grounds for dismissal from military service are provided as failure by the commander to fulfill the terms of the contract.

For military personnel, additional guarantees are provided upon dismissal. For example, according to paragraph 1 of Article 22 of the Federal Law “On the Status of Military Personnel”, a military serviceman must be provided with housing before being discharged upon reaching the age limit for military service.

There are often cases when police officers and former military personnel go to court with claims to recover monetary allowances and the cost of food rations. In these cases, the courts to some extent apply general provisions The Labor Code of the Russian Federation, for example, indexes such cash payments not received on time, although this is not provided for by special laws. 18 The practice of resolving labor disputes among civil servants is peculiar. Along with the Labor Code? In the Russian Federation, these relations are regulated by the Federal Law of May 27, 2003 N 58-FZ “On the system of public service of the Russian Federation” and the Federal Law “On the fundamentals of public service in the Russian Federation”. ?th Federation" dated July 31, 1995 N 119-FZ. According to Article 25 of the Federal Law “On the Fundamentals of Civil Service in the Russian Federation,” the dismissal of civil servants is carried out on the grounds and in the manner provided for in the Labor Code. Code of the Russian Federation. But the Law also contains additional grounds for dismissal, for example, upon reaching the age limit, upon termination of citizenship, for disclosing information constituting a state secret.

When considering cases of reinstatement of civil servants,? dismissed during the liquidation of a state body, reduction of its staff or number (clauses 1, 2 of Article 81 of the Labor Code of the Russian Federation), the defendant is obliged to prove circumstances indicating that he followed the procedure for dismissal on the indicated grounds taking into account? provisions of Article 16 of the Federal Law “On the Fundamentals of the State Service of the Russian Federation”. In connection with this, the defendant? Evidence must be provided to prove that after notice of dismissal, the state?but?the employee was offered vacant positions in this? state?but? body, and in their absence - at least one vacant position in another? state?but? authority, and he refused the offered job or refused to undergo retraining (requalification) in the manner established? legislation? Ro??ii???th Federation and subjects of the Ro??ii???th Federation about public service.

At this? An offer of a vacant position is understood as a proposal coming from an authorized official of a state body for appointment to a public position in the civil service, including? including those below, the duties for which a civil servant can perform taking into account? his profession, qualifications and previously held position.

Subjects of the Russian Federation are given the right to adopt laws on regulating the labor of civil servants. So in the Bryansk region there is a law of July 10, 1997 N 18-Z “On the fundamentals of public service in the Bryansk region.” However, when applying these laws, it must be taken into account that the subjects of the Federation cannot establish additional grounds for termination of an employment contract.

IN course work problems related to the resolution of individual labor disputes in the courts were considered. This topic, as has been repeatedly noted in the work, is very relevant.

In connection with the old production relations that developed under the conditions of a planned economy and in connection with the transition? to a market economic system in front of society? problems arose due to contradictions between the interests of employers, expressed in obtaining maximum profits, and the interests of workers, interested in maximum payment for their labor and receiving benefits provided for by labor legislation. However, the implementation of all these guarantees places an additional financial burden on employers, which they do not want to take on.

Violations of labor laws are common? They begin even before the conclusion of employment contracts, when the applicant for a vacancy is given in advance illegal conditions for concluding an employment contract. The employer often requires him to give up vacations, days off, etc. requires working beyond normal working hours. As a result, the employment contract is concluded on previously illegal conditions.

This situation is due to objective factors arising from economic laws, which, in relation to the labor market, determine the constant excess of supply over demand. The Labor Code of the Russian Federation imperatively compensated for this economic law in its norms, but in reality in practice there is no mechanism for state control over compliance with the provisions of labor legislation. The Labor Code provides for the existence of such a state body as a labor inspectorate (Federal Service for Labor and Employment) 19 and also clearly defines its powers. But this body is not yet exercising its powers properly? level. According to some leading Russian political scientists and legal scholars, the reason for this is the small staff of the newly created Federal service. Hence, its employees are not able to control the situation in all organizations in conditions when is it practical?? all employers ignore the requirements of labor legislation.

This is precisely the situation that contributes to the emergence of labor disputes, both individual and ? and collective ones.

As a regulator of social relations, law usually actively manifests itself precisely when one or another conflict arises, including a labor one. It is during conflict that the effectiveness of legal norms, and the ability of the state and society to actually guarantee a person the realization of his rights, including in the sphere of applying abilities to work.

Currently, a great many conflicts arise due to contradictions between the interests of employers, expressed in obtaining maximum profits, and the interests of workers interested in maximum payment for their labor and receiving benefits provided for by labor legislation. However, the implementation of all these guarantees places an additional financial burden on employers, which they do not want to take on.

Violations of labor laws are common. They begin even before the conclusion of employment contracts, when the applicant for a vacancy is given in advance illegal conditions for concluding an employment contract. The employer often requires him to give up vacations, days off, and requires him to work beyond normal working hours. As a result, the employment contract is concluded on pre-illegal conditions.

Russian reality shows that in the economy today there are two legal regimes for regulating labor relations - written labor law for state (budgetary) organizations and “ordinary” law for the commercial sector. If in government organizations The Labor Code of the Russian Federation is mostly observed, but in the commercial sector it practically does not work at all. At small and medium-sized businesses, civil law relations are common, since it is convenient for the employer (there is no need to comply with the minimum guarantees established in labor legislation). The growth in the number of small and medium-sized enterprises exacerbates the problem of protecting the legal rights of employees. At these enterprises, trade union organizations are usually not created, commissions on labor disputes are not elected, that is, there are no bodies that should represent and protect the interests of workers. Legal insecurity plus legal ignorance forces people to accept any conditions of the employer. The number of enslaving contracts is growing, which means that the number of socially unprotected workers is also growing.

It is this situation that contributes to the emergence of labor disputes, both collective and individual.

As can be seen from the content of the work, the legislator regulated in sufficient detail the procedures for resolving individual labor disputes. The Labor Code of the Russian Federation defines two bodies that are authorized to consider labor disputes. These are the labor dispute commission and the court.

However, in the current difficult socio-economic situation, employees often do not risk openly defending their rights or entering into conflict with the employer. Filing a complaint risks losing your job. Therefore, very often it is more profitable for the victim to refuse to exercise the rights granted by law than to enter into a dispute. Any employee's appeal to the court (for example, about reinstatement at work, payment for forced absence) is considered by the employer as an undesirable and abnormal phenomenon, and most often such an employee is persecuted by him.

Relations between the parties to labor relations are actually built on the basis of the employee’s subordination to the employer. In these conditions, an effective system of legal guarantees is needed to ensure the protection of the rights and interests of employees from unlawful actions of employers. For the same reason, wider state intervention in wage labor relations is allowed than in other areas. The employee is interested in the authorities supervising and monitoring compliance with labor legislation to eliminate violations of own initiative. However, there are no legal prerequisites for their independent proactive actions to protect workers. In this case, it is necessary to reconsider the role of the Federal Service for Labor and Employment as a specialized body in the field of labor relations. It is necessary to give it greater powers in this area in order to increase work efficiency. This body must independently carry out measures to monitor compliance with labor legislation and take measures to eliminate violations in this area. This requires expanding the staff of the specified Federal Service, introducing amendments to the Labor Code that expand its powers and oblige it to carry out large-scale monitoring activities in the field of compliance with labor legislation.

Positive judicial practice on workers' claims for reinstatement and overcoming the legal illiteracy of the population will undoubtedly contribute to the fact that illegally dismissed workers will more often go to court, and this, in turn, will force the employer to respect their rights. In this regard, it is advisable to conduct regular generalizations of the practice of monitoring compliance with labor rights.

By realizing the constitutional right to judicial protection, a person turns to justice for help. Strengthening the human rights function of courts requires expanding their competence, making the necessary changes to existing legislation, and improving the judicial system and judicial procedures.

It must be remembered that an effective process of development of labor relations is possible only in conditions of law and order and discipline in production, respect for labor law. It aims at legal education and intransigence towards any violations of law and order, at preventing any labor offenses and eliminating the causes that give rise to them. Active implementation of this helps to reduce and eliminate the causes and conditions of labor disputes.

As for the committee on labor disputes, as practice shows, it cannot really protect the rights of the employee, because its composition: both members of the CCC, appointed by the employer, and members elected by the employees, actually?? depend on employers and follow their line. Therefore, an employee can really defend his rights only in court.

But, again, as practice shows, only those workers who have terminated or are planning to terminate their employment relationships apply for judicial protection of their violated labor rights. This is due to the fact that in the event of a labor dispute, he will be able to protect his rights in court. order, but after this the employer will create conditions for him that are incompatible with the continuation of the employment relationship.

This situation clearly does not correspond to the proclaimed equality of all before the law in the Constitution of the Russian Federation. and court? and the principles of observance of human and civil rights in a civilized world??o? democratic society.

Based on the above, a number of the following conclusions can be drawn:

Issues related to the consideration of individual labor disputes are regulated by the Constitution of the Russian Federation Federation, Labor Code of the Russian Federation, the Civil Procedure Code and the Federal Laws of the Russian Federation.

The legislator clearly defines individual labor disputes in Art. 381 Labor Code of the Russian Federation. An individual labor dispute is an unresolved disagreement between an employer and an employee on the application of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, an agreement, a local regulatory act, an employment contract (including on the establishment or change of individual working conditions), which are stated in body for the consideration of individual labor disputes.

An individual labor dispute is a dispute between an employer and a person who previously had an employment relationship with this employer, as well as a person who has expressed a desire to conclude an employment contract with the employer, if the employer refuses to conclude such an agreement.

The subjects of an individual labor dispute are not only the employer and individual worker, but also persons who are not yet or are no longer employees.

The legislator does not give a clear classification of individual labor disputes; it is given in the scientific literature on various grounds. However, based on the law, depending on the bodies considering individual labor disputes, they can be classified into disputes considered by the labor dispute commission and disputes considered by the court.

The Labor Code of the Russian Federation clearly distributes competence between the labor dispute commission and the courts (Article 385, Article 391 of the Labor Code of the Russian Federation).

The provisions on the consideration of disputes by the Labor Code of the Russian Federation are not a novelty of the Labor Code of the Russian Federation; the rules on it, as a mandatory, pre-trial body for the consideration of individual labor disputes, were enshrined in the Labor Code of the RSFSR in 1971.

The Labor Code of the Russian Federation clearly regulates the procedure for the formation of labor unions. However, the law does not regulate the procedure for determining the total number of CTS. Therefore, this issue is determined by a joint decision of the employees and the employer. Also, at the legislative level, the term of office of the CCC is not defined.

The procedure for considering labor disputes is defined by the Labor Code of the Russian Federation only in general terms. In particular, the legislation does not regulate the issues of challenging one or more members of the CCC, the procedure for hearing participants in a labor dispute, the rules for the participation of witnesses and specialists invited by the commission in the consideration of the dispute, etc. This gives reason to believe that the CCC has the right to independently establish the procedure for the settlement of the dispute in that part , in which it is not defined by the Labor Code.

In accordance with Part 1 of Art. 391 of the Labor Code of the Russian Federation, courts of general jurisdiction consider individual labor disputes at the request of an employee, employer or trade union defending the rights of the employee when they do not agree with the decision of the commission on labor disputes, or when the employee goes to court without going through the CCC, as well as at the request of the prosecutor, if the decision The CCC on labor disputes does not comply with labor legislation and other acts containing labor law norms. It is noteworthy that the new edition of Part 1 of Article 391 of the Labor Code of the Russian Federation covers large number acts, the violation of which entails the possibility of considering a labor dispute in court on the initiative of the prosecutor.

The court is not bound by the previous decision of the CCC on this dispute, although it analyzes among other materials.

The end of the proceedings is possible in two forms: by issuing a court decision and without issuing a court decision.

Court decisions on individual labor disputes are subject to mandatory execution upon their entry into legal force, except in cases of immediate execution (for example, on reinstatement).

Court decisions on individual labor disputes can be appealed to the courts of appeal, cassation and supervisory instances, as well as based on newly discovered circumstances.

Thus, to summarize the above, we can conclude that issues related to the consideration of individual labor disputes in labor dispute commissions are regulated by the Labor Code of the Russian Federation, and issues related to the consideration of individual labor disputes in court are regulated by the Labor Code of the Russian Federation and the Civil Procedure Code of the Russian Federation.

Sources and literature

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O Labor Code of the Russian Federation of December 30, 2001 N 197-FZ (as amended on July 24, 25, 2002, June 30, 2003)

O Civil Procedure Code of the Russian Federation of November 14, 2002 N 138-FZ (Civil Procedure Code of the Russian Federation) (as amended and supplemented on June 30, 2003)

O Federal Constitutional Law of June 23, 1999 N 1-FKZ “On Military Courts of the Russian Federation”. "Rossiyskaya Gazeta" dated June 29, 1999

O Law of the Russian Federation of April 18, 1991 N 1026-I “On the Police” (as amended on February 18, July 1, 1993, June 15, 1996, March 31, December 6, 1999, July 25, November 7 , December 29, 2000, July 26, August 4, December 30, 2001, April 25, June 30, July 25, 2002, January 10, June 30, July 7, 2003). Gazette of the Congress of People's Deputies of the RSFSR and the Supreme Soviet of the RSFSR dated April 22, 1991, No. 16, art. 503.

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O Federal Law of March 28, 1998 N 53-FZ “On Military Duty and military service"(as amended on July 21, 1998, August 7, November 7, 2000, February 12, July 19, 2001, February 13, May 21, June 28, July 25, December 30, 2002, February 22, June 30, 2003)

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O Resolution of the Plenum of the Supreme Court of the Russian Federation of December 20, 1994 “Some issues of application of legislation on compensation for moral damage.” Bulletin of the Supreme Court of the Russian Federation, 1995, No. 3.

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O Comparative analysis of the Labor Code and the Labor Code of the Russian Federation / Zavgorodniy A.V. - St. Petersburg; Legal Center Press, 2003. - 427 p.

O Labor law: Course of lectures / Tolkunova V.N. - M.; LLC "TK Velby", 2002. - 320 p.

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O Commentary on legislation on the consideration of individual labor disputes / Korshunov Yu.N., Snigireva I.O. - M.; Legal lit., 1996.

O Application of limitation periods in judicial practice (K.Yu. Lebedeva, “Journal Russian law", N 7, July 2003)

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1Marinenko M.E. Protection of labor rights of workers and employees: Author's abstract. diss.: Ph.D. legal Sci. Minsk, 1969. From 15

2Orlovsky Yu.P. The Labor Code of the Russian Federation is an important stage in the reform of labor legislation // Journal of Russian Law. - No. 8 - 2002 - C 48-67

3Orlovsky Yu.P. The Labor Code of the Russian Federation is an important stage in the reform of labor legislation // Journal of Russian Law. - No. 8 - 2002 - C 48-67

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11 Gazette of the Congress of People's Deputies of the RSFSR and the Supreme Soviet of the RSFSR dated April 22, 1991, No. 16, art. 503.

12Vedomosti of the Congress of People's Deputies of the Russian Federation and the Supreme Council of the Russian Federation" dated January 14, 1993, No. 2, art. 70.

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14 Bulletin of the Supreme Court of the Russian Federation. 1998. N 10. P. 2

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19 Decree of the President of the Russian Federation dated March 9, 2004 N 314 “On the system and structure federal bodies executive power"

Arbitration tribunal decisions on labor disputes are illegal

Arbitration courts do not have the right to consider labor disputes. This is the prerogative of courts of general jurisdiction.

The parties included in the employment contract a condition that all disputes arising from it would be considered by an arbitration tribunal. Subsequently, the employee appealed to this court with a demand to declare the transfer to another workplace illegal. Since the arbitration court did not satisfy the employee’s demands, she appealed its decision to the district court (Article 418 of the Code of Civil Procedure of the Russian Federation).

The court indicated that arbitration courts have the right to consider only disputes arising from civil legal relations(Part 2 of Article 1 of the Federal Law of July 24, 2002 No. 102-FZ). But in this case, a labor dispute arose between the employee and the employer, which cannot be the subject of arbitration. Taking this into account, the court overturned the arbitration tribunal's decision.

Petrov A.Ya., Doctor of Law.

Review of the conference organized by the head. Department of Labor Law, State University - Higher School of Economics, Doctor of Law, Professor, Honored Scientist of the Russian Federation Yu.P. Orlovsky, dedicated to current issues of judicial practice in labor cases. On October 27, 2010, the Department of Labor Law of the Faculty of Law of the State University-Higher School of Economics organized a conference on the topic “Topical issues of judicial practice in labor cases.” The report was made by B.A. Gorokhov, chairman of the judicial panel for labor and social affairs Judicial Collegium for civil cases Supreme Court of the Russian Federation.

The current profound changes in labor legislation, as well as legislation on social insurance and social security, quite reasonably give rise in practice to questions related to the interpretation and application of the norms of newly adopted codified legislative acts modern Russia. In this regard, the role of the official interpretation of legislation, which is carried out in the field of social and labor relations by acts of the highest judicial authorities of our country, is increasing. These acts of judicial interpretation help to link labor law with real life and understand sometimes quite complex and contradictory legal concepts and categories that are not always successfully formulated by the legislator. These circumstances have given rise to a well-founded interest in judicial practice in the field of social and labor relations and, accordingly, have intensified the adoption by the highest courts of our country of clarifications that contain answers to questions regarding the application of the rules of law governing social and labor relations.

Among the most successful in terms of judicial protection labor rights of citizens of the Russian Federation should include 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” and Resolution of November 16, 2006 No. 52 “On the application by courts of legislation regulating financial liability workers for damage caused to the employer."

From the point of view of modern jurisprudence, it is difficult to overestimate the role and importance of judicial practice in our legal reality. In fact, it has become another real source legal regulation various social relations, including, of course, relations in the sphere of labor. It was under the influence of judicial practice that many modern standards on wages, financial liability, labor discipline, labor disputes and other institutions of labor law were formed. In this sense, domestic judicial practice can and should be considered not only as a source of judicial and legal regulation of labor and directly related relations, but also as a fairly effective means of improving the labor law of our country.

This position is based, in particular, on the fact that many provisions of acts of higher judicial authorities contain original provisions not duplicated by law, which make it possible to apply articles of law in a very specific way, resolve specific labor disputes and thereby regulate judicial procedure relevant social relations. Through these acts, the existing gaps in the law are actually filled, ambiguities and contradictions in the texts are eliminated, and in this sense, new norms of “judicial” law are created, which are subsequently applied not only by the courts, but also by all other subjects of law enforcement.

Examples of such norms are many provisions of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, which unified the understanding of the content and procedure for applying a number of articles of the Labor Code of the Russian Federation, previously interpreted very ambiguously by scientific and practical workers.

To illustrate what has been said, it is enough to refer to the wording of Art. 142 of the Labor Code of the Russian Federation, according to which an employee, in the event of a delay in payment of wages for a period of more than 15 days, has the right, by notifying the employer in writing, to suspend work until the day of payment of the delayed amount. However, the Labor Code did not define the scope of this right and the procedure for its implementation, as a result of which, in practice, immediately after the adoption of the Code, numerous questions arose, giving rise to equally numerous and multivariate answers, often based on different provisions of the Labor Code itself. For example: whether an employee who has suspended work must come to his workplace or he has the right not to go to work; whether the employee is paid or not paid for the time of suspension of work, etc. Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 provided answers to these and a number of other equally pressing questions and greatly contributed to solving the problem of a uniform understanding and application of labor legislation. Many provisions of this Resolution give the articles of the Labor Code of the Russian Federation either an expansive or restrictive meaning and thereby fill the gaps that exist in modern labor legislation.

Another judgment regarding the need to observe, when considering cases of reinstatement at work, the general legal principle of the inadmissibility of abuse of rights, including by the employees themselves, seems very important and relevant (paragraph 27). In particular, it is unacceptable for an employee to conceal the fact of temporary disability that occurred during his dismissal from work, or the fact that he is a member of a trade union or the head of an elected trade union body, etc. In this case, we are witnessing an attempt to change the course of judicial practice, prevailing in cases of reinstatement at work. If previously any formal violation of the legislative ban on dismissal during a period of temporary disability automatically entailed the reinstatement of the dismissed employee at work, now, if it is established that the employee has abused his right, the court may refuse to satisfy the employee’s claim for reinstatement at work, since the employer should not be responsible for unfavorable consequences resulting from dishonest actions on the part of the employee.

The importance of this clarification by the highest judicial body of our state can hardly be overestimated, not only because it allows us to resolve specific disputes in law enforcement practice, but also because it gave impetus to the understanding of the need to legislatively expand the concept of the mechanism of legal regulation of relations in the sphere of hired labor.

Russian labor law is not some kind of legal enclave; it actively interacts with other branches of domestic law. This circumstance predetermined the implementation in our legal reality of generally recognized principles and norms of international law, the direct application of articles of the Constitution of the Russian Federation, the provisions contained in part one of the Civil Code of the Russian Federation and the Civil Procedure Code of the Russian Federation.

In Art. 5 of the Labor Code of the Russian Federation provides a list of regulatory legal acts regulating labor relations and other relations directly related to them in accordance with the Constitution of the Russian Federation, federal constitutional laws implemented by labor legislation (including labor protection legislation), consisting of this Code, other federal laws and laws of the constituent entities of the Russian Federation containing labor law norms, other regulatory legal acts containing labor law norms.

As an example of legal uncertainty in labor relations, it should be noted that the Labor Code of the Russian Federation does not indicate the possibility of regulating labor relations in general and resolving labor disputes by courts in accordance with the general principles enshrined in the ILO conventions ratified by the Russian Federation and in the Constitution of the Russian Federation.

It is known that since the appearance in the Labor Code of the Russian Federation, clause 2 of Art. 278, on the basis of which heads of organizations can lose their jobs at any time, sometimes without any reason or explanation at all, the debate continues on whether the employer, when dismissing on this basis, is obliged to explain the reasons for terminating the employment contract or whether he can do this arbitrarily, solely on the basis of your own volitional decision. In the absence of legislative clarity in this matter, on the part of the employer, when dismissing on this basis, obvious abuse is allowed, in response to which the other party to the employment contract began to apply a protection mechanism based on Art. 279 Labor Code of the Russian Federation. In accordance with this rule, the employer, in the event of early termination of the employment contract under clause 2 of Art. 278 of the Labor Code of the Russian Federation is obliged to pay the employee compensation established by the employment contract.

One of the first examples in judicial practice was a case when, in an agreement with the general director of a large joint stock company Moscow City agreed to pay $100,000 (which the plaintiff eventually received). And recently we were faced with a situation in which such compensation was no longer equal to thousands, not even millions, but 1 billion US dollars. Whether a small enterprise can pay such compensation is clearly a rhetorical question.

In the absence of a mechanism in the Labor Code of the Russian Federation similar to the Civil Code of the Russian Federation for declaring transactions invalid, a dead-end legal situation arises from the point of view of labor legislation, in which the employer cannot exercise its seemingly absolute right to dismiss an employee without explaining motives and reasons under Art. 278 of the Labor Code of the Russian Federation, since payment of compensation in this situation is simply unrealistic.

One way out of this legal impasse may be to directly apply the principle of inadmissibility of abuse of law, common to all branches of law, enshrined in Art. 17 of the Constitution of the Russian Federation.

At the same time, the practice of considering labor cases by courts shows that the absence in the Labor Code of the Russian Federation of both the very mention of the principle of inadmissibility of abuse of rights and clear criteria for its application in specific legal situations in fact leads to court decisions refusing to protect the violated labor rights of an employee under on the basis that he did not prove in court that he did not allow his rights to be abused. For example that the employee promptly notified the employer of his disability to prevent unlawful dismissal.

The explanation given in Resolution No. 2 of March 17, 2004 regarding the need for the employer to comply with the general principles of legal liability arising from Art. Art. 1, 2, 15, 17, 18, 19, 54 and 55 of the Constitution of the Russian Federation and recognized by the Russian Federation as a legal state. In this case we are talking about such principles as justice, equality, proportionality, legality, guilt, humanism. In purely practical terms, this means that it is not enough for an employer to have only a formal reason for disciplinary dismissal of an employee; in addition to this, the employer, in the event of a dispute being considered in court, will have to provide evidence indicating that when choosing a penalty, the employer took into account: the severity of the offense, the circumstances under which it was committed, the employee’s previous behavior and his attitude to work (clause 53).

At the same time, the question of the proportionality of the disciplinary measures applied by the employer to the employee has a logical continuation when resolving the issue of assessing the employer’s actions in complying with the procedure for involving the employee in disciplinary liability.

In terms of analyzing the significance of modern judicial practice, it is necessary to pay attention to one more feature. The socio-economic changes taking place in our country are to a large extent due to the growing role of private capital, whose interests involve the use of new organizational and legal forms of relations between workers and employers, their representatives, as well as associations of employers, trade unions, the state and society as a whole. The search for these forms, as well as the selection of the most optimal combination of state-legal and contractual-legal regulation of social relations in the sphere of labor, entailed the updating of not only labor legislation. Reforms in other branches of Russian law were no less required. In particular, at present, with the adoption of new codified legislative acts, the process of updating the legislation on social insurance of workers against industrial accidents, as well as legislation on labor pensions in Russia.

One of current issues is the question of the relationship between the principle of discretion when the parties to an employment contract establish its terms (in this case, the specific amount of compensation for moral damage) with the principle of judicial discretion when determining the amount of such compensation.

In accordance with Part 1 of Art. 237 of the Labor Code of the Russian Federation, moral damage caused to an employee by unlawful actions or inaction of the employer is compensated to the employee in cash in amounts determined by agreement of the parties to the employment contract.

Part 2 of the same article provides that in the event of a dispute, the fact of causing moral damage to the employee and the amount of compensation for it are determined by the court, regardless of the property damage subject to compensation. In accordance with the legal position of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation in one of the specific cases, the court cannot, at its discretion, determine the amount of compensation for moral damage when the amount of compensation for moral damage is determined by agreement of the parties to the employment contract and is fixed in writing in the employment contract itself upon its conclusion.

When summarizing judicial practice in labor cases, it became clear that the relatively new Labor Code of the Russian Federation in the conditions of the economic crisis does not provide answers to many questions that require direct regulatory regulation. In these conditions, judicial practice is the most efficient mechanism for identifying gaps in legislation and developing methods for filling them.

In an environment where employers are increasingly, and sometimes completely unjustifiably, cutting jobs, it has become obvious that the decision to reduce staff is far from a personal matter for the employer. In addition to the fact that such a decision leads to the termination of employment relations with a specific employee, it directly affects a wide range of public interests, starting with problems of financing benefits and compensation for the unemployed and ending with issues of ensuring social partnership and generally social peace in the country.

Currently, the state is developing targeted programs to combat unemployment and create new jobs. In this regard, the judicial practice that has developed since the early 90s in considering cases of reinstatement of persons dismissed under clause 1 of Part 1 of Art. 81 Labor Code of the Russian Federation. The point is that the courts, believing that the decision to reduce the number of employees is within the exclusive competence of the employer, have completely withdrawn from checking the validity of such a decision of the employer and do not require relevant evidence from him, although plaintiffs quite often challenge their dismissal precisely on the grounds of the unreasonableness of their reduction position or structural unit.

If we look at the judicial practice of the 80s of the last century, we will have to remember that in Soviet times the state cared about preserving and increasing jobs. Careful attitude towards workplaces is now becoming again government policy, in connection with which the courts should also reconsider their approaches to the issue of verifying the validity of the employer’s decision to reduce staff, especially since there are sufficient legal basis related to the improvement of labor legislation.

Federal Law of June 30, 2006 N 90-FZ in Art. 74 of the Labor Code of the Russian Federation, fundamental innovations were introduced. In this regard, on December 28, 2006, changes were made to paragraph 21 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.” This paragraph draws attention to the fact that the employer does not have the right to unilaterally change the terms of the employment contract determined by the parties. At the same time, the production process is significantly influenced by economic, technical, organizational and other factors that lie outside the scope of labor relations themselves. Dismissal of an employee under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation can be carried out by the employer only when there is an objective need to change the terms of the employment contract with the employee due to the impossibility of maintaining them in their previous form, and the employee does not agree to this. When considering cases of this category, the burden of proof of legally significant circumstances lies with the employer. The employer is obliged, in particular, to provide evidence confirming that the change in the terms of the employment contract determined by the parties was a consequence of changes in organizational or technological working conditions, for example, changes in equipment and production technology, improvement of jobs based on their certification, structural reorganization of production and did not worsen the situation employee in comparison with the terms of the collective agreement and agreements.

In addition, in accordance with Art. 74 of the Labor Code of the Russian Federation, the employer is obliged to prove in court the fact that the employee was offered all possible employment options in writing, as well as the very fact of the employee’s refusal to accept the proposed employment and to work under changed conditions.

Agree that termination of an employment contract at the initiative of the employer under clause 2, part 1, art. 81 of the Labor Code of the Russian Federation is nothing more than a unilateral change in the terms of the employment contract in its most radical form. That is why it would be illogical to demand from the employer in court evidence of the validity of unilateral changes in the terms of the employment contract and exempt from proving the validity of the unilateral termination of all the terms of this contract when dismissing an employee on this basis.

One of the gaps in labor legislation is the absence in the Labor Code of the Russian Federation of norms on the consequences of employees’ self-defense of their rights.

In accordance with Part 2 of Art. 142 of the Labor Code of the Russian Federation, in the event of a delay in payment of wages for a period of more than 15 days, the employee has the right, by notifying the employer in writing, to suspend work for the entire period until the delayed amount is paid.

In this regard, questions arise about how to evaluate the actions of an employee who warned the employer about the suspension of work not in writing, but orally; can an employee not go to work during a suspension of work; how should the time of suspension of work be paid (and whether it should be paid at all).

It seems that the actions of an employee who warned the employer about the suspension of work not in writing, but orally, should be regarded as a violation of labor discipline, since the law requires the employer to be warned in writing.

During a suspension of work, an employee has the right not to go to work, and during this time the employee’s average earnings must be maintained. The following logic of reasoning can serve as the basis for such a conclusion. The lack of remuneration allows the labor in the given example to be classified as forced (Part 2 of Article 4 of the Labor Code of the Russian Federation). Since forced labor is prohibited, the worker is thereby deprived of the opportunity to work. If the lack of remuneration is caused by the guilty illegal actions (inaction) of the employer, then it is he who, by virtue of Art. 234 of the Labor Code of the Russian Federation must bear full financial liability to the employee in the amount of his average earnings. If the lack of payment for the employee’s labor was not caused by guilty and illegal actions (inaction) on the part of the employer, then the latter, of course, should not bear financial responsibility. However, for the employee in this case, the effect of forced labor still takes place, so the employee, again, should not work without paying for his labor. Since the risk of organizing labor and production, in principle, lies with the employer, he is therefore obliged to pay the labor of his employees, regardless of the financial results of his activities. Consequently, in a situation in which employees do not work due to lack of payment, not caused by guilty and illegal actions (inaction) of the employer, the latter must pay for the suspension of work as the employee’s forced absence. The only question in this case is whether the employee’s forced absence due to no fault of the employer is fully or partially payable? One of the options for answering this question is the application of the rules of Art. 157 of the Labor Code of the Russian Federation (payment for downtime in the amount of at least two-thirds of the employee’s average salary). According to the majority of judges of the judicial panel for civil cases of the Supreme Court of the Russian Federation, the most correct option is full payment for the time of absence that is forced for the employee, regardless of whether the employer is at fault in the actions, since termination of work in this case is not downtime, but should be considered a violation employer of the employee's right to paid work. Liability for such a violation is established in Art. 234 of the Labor Code of the Russian Federation in the form of compensation to the employee for earnings not received by him.

Unfortunately, although the legislator supplemented Art. 142 of the Labor Code of the Russian Federation, parts 3 and 4, which removed the issue of the employee’s obligation to be present at the workplace during the suspension of work, but did not in any way resolve the issue of payment for forced absence during this time. In addition, in Part 4 of Art. 142 of the Labor Code of the Russian Federation provides that an employee who was absent from the workplace during working hours during the period of suspension of work is obliged to return to work no later than the next working day after receiving written notification from the employer of readiness to pay the delayed wages on the day the employee returns to work. At the same time, the question remained unresolved as to whether the concept of “delayed wages” includes interest for its delay, provided for in Art. 236 Labor Code of the Russian Federation. It seems correct legal position, according to which the employee’s obligation to resume work must precede the employer’s obligation to completely eliminate the violation of the employee’s rights, that is, to pay the employee delayed wages, which includes payment for forced absence during the suspension of work, and the interest provided for in Art. 236 Labor Code of the Russian Federation.

Report by B.A. Gorokhov provoked discussion and numerous questions.

The following professors took part in the discussion of the report: M.O. Buyanova, K.N. Gusov, A.M. Kurennoy, T.A. Soshnikova, L.A. Chikanova, Director of the Center for the Protection of Social and Labor Rights E.S. Gerasimova and others.

Associate Professor Dmitry Levonovich Kuznetsov, Director of the Higher School of Law of the State University-Higher School of Economics, especially emphasized the role of the Resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” as an act of interpretation in the formation law enforcement practice, eliminating legislative gaps and resolving conflicts. D.L. Kuznetsov proposed to consider the possibility of preparing a new version of this Resolution of the Plenum of the Supreme Court in order to determine the legal position of the highest court in the country for the most controversial issues application of labor law standards. In particular, we are talking about the following legal conflicts:

1. In Part 1 of Art. 72.1 of the Labor Code of the Russian Federation, transfer means a change in the structural unit in which the employee works, if the unit is specified in the employment contract. Such a transfer, in accordance with the meaning of this norm, is allowed only with the consent of the employee; therefore, if the employee refuses to change the structural unit, the employer may begin a procedure for reducing the number (or staff) of the organization’s employees (Clause 2, Part 1, Article 81 of the Labor Code of the Russian Federation). At the same time in Art. 74 of the Labor Code of the Russian Federation talks about the employer’s ability to change any terms of the employment contract determined by the parties for reasons related to organizational or technological working conditions, except for the employee’s labor function. Consequently, in the manner prescribed by the relevant article, the structural unit specified in the employment contract can also be changed, since the structural unit is not included in the concept of labor function by current legislation (Articles 15, 57 of the Labor Code of the Russian Federation).

Thus, in practice, situations often occur when an employer dismisses an employee who refuses to change the structural unit specified in the employment contract, under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation, that is, in connection with the employee’s refusal to continue work due to a change in the terms of the employment contract determined by the parties, although within the meaning of Part 1 of Art. 72.1, there is a refusal by the employee to transfer, permissible only with the written consent of the employee, and, accordingly, a layoff.

Here the legal community is faced with one of the most complex types of legal conflicts: in an act of the same legal force, two norms of a general nature contradict each other, while giving rise to directly opposite legal consequences, including dismissals for various reasons;

1. The current legislation does not have a legal definition of the concepts “reduction in the number of employees of an organization”, “reduction in the number of employees of an organization”, which leads to practical difficulties in formulating the reasons for terminating an employment contract on appropriate grounds.
2. In accordance with Part 3 of Art. 81 of the Labor Code of the Russian Federation, the employer upon dismissal under clauses 2 - 3, part 1, art. 81 of the Labor Code of the Russian Federation must offer the employee both a vacant position or job that meets the qualifications, and a vacant lower-level or lower-paid job. Unfortunately, the legislator did not disclose any of the legal categories included in this norm. It seems that it is necessary to define the concepts of “vacant position (job)”, “position (job) corresponding to qualifications”, “lower-ranking (lower paid) work". Today, in practice, we have to deal with situations where the courts reinstate an engineer because he was not offered a lower-ranking and lower-paid job as a 4th grade roofer. At the same time, the court does not take into account: in order to perform the work of a roofer, the worker must undergo appropriate professional training and advanced training several times, as well as successfully pass exams for assignment of a rank.
3. One of the most frequently arising questions in practice today is the question of the admissibility of extending fixed-term employment contracts. On the one hand, the employee and the employer can agree to change the terms of the employment contract by agreement of the parties (Article 72 of the Labor Code of the Russian Federation), since the term of the employment contract is one of the mandatory conditions of the employment contract, specifically established for a fixed-term employment contract; on the other hand, the Labor Code directly provides for a list of cases when extension of fixed-term employment contracts is allowed (for example, Article 261 of the Labor Code of the Russian Federation).
4. In practice, law enforcers often have problems with the uncertainty of a number of legal constructs used by the legislator when formulating the grounds for termination of an employment contract, for example the concept of “making an unreasonable decision by the head of an organization (branch, representative office), his deputies and the chief accountant.” What do you mean by unreasonable decision? Is it illegal or unprofitable?
5. In a number of cases, individual gaps and conflicts in legislation can lead to extremely negative legal consequences, including those of an intersectoral nature. Thus, the procedure for adopting local acts taking into account the opinion of the elected body of the primary trade union organization (Article 372 of the Labor Code of the Russian Federation) does not provide for a solution to the situation when the elected body of the primary trade union organization, after the expiration of the five working days allotted to it to formulate its opinion, does not in any way inform the employer about German For example, the elected body could not hold a meeting at all within the specified period. Can an employer accept local act in a similar situation? Here it is necessary to take into account that local regulations, adopted without compliance with the established Art. 372 procedures for taking into account the opinions of the representative body of employees are not subject to application. In practice, such a situation often leads the employer to the most undesirable consequences. So, if the state tax inspectorate comes to the conclusion that the organization’s local regulations that establish wage systems (Article 135 of the Labor Code of the Russian Federation) are not in effect, then all payments to employees that were made in accordance with these local regulations will not be included in expenses ( Art. 255 of the Tax Code of the Russian Federation).

Professor A.Ya. Petrov (Department of Labor Law, State University - Higher School of Economics) noted that despite the exceptional importance for judicial practice of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 (as amended on December 28, 2006 No. 63), it needs some improvement . In this regard, it is necessary to highlight the following areas:

1. eliminate duplication of norms of the Labor Code of the Russian Federation (Articles 11, 64, etc.), because it can hardly be considered necessary and appropriate for courts to resolve labor cases those provisions that do not explain how to apply the relevant norms of the Labor Code of the Russian Federation;
2. take due account of the structure of the Labor Code of the Russian Federation, which generally reflects the scientifically based system of labor law in Russia. Thus, first the section “Guarantees for employees upon termination of an employment contract on the initiative of the employer” is fixed, and then “Termination of an employment contract on the initiative of the employer (Article 81 of the Labor Code of the Russian Federation) and according to paragraph 2 of Article 278 of the Labor Code of the Russian Federation. Disciplinary sanctions.”

The Labor Code of the Russian Federation, on the contrary, initially establishes the specified basis for termination of an employment contract, and then the corresponding guarantees and compensation. And this is even more true for the provisions on disciplinary sanctions, which, obviously, should be allocated in a separate section.

It is not entirely appropriate in the section “Concluding an employment contract” to contain provisions on termination of an employment contract. Thus, in accordance with paragraph 14 of the Resolution, termination of an employment contract with employees who have entered into an employment contract with organizations created for a clearly defined period of time or to perform a clearly defined work (paragraph 7, part 1, article 59 of the Labor Code of the Russian Federation), on the basis of expiration the term of the employment contract can be carried out if the organization actually ceases its activities due to the expiration of the period for which it was created, or the achievement of the purpose for which it was created, without the transfer of rights and obligations by way of succession to other persons (Article 61 Civil Code of the Russian Federation).

If a fixed-term employment contract was concluded to perform a specific job in cases where its completion cannot be determined by a specific date (paragraph 8, part 1, article 59 of the Labor Code of the Russian Federation), such an agreement, by virtue of part 2 of art. 79 of the Code is terminated upon completion of this work.

It would be appropriate and logical to exclude from the section “Changing the employment contract” the provision of paragraph 19 that, by virtue of paragraph. 5 hours 1 tbsp. 219, part 7 art. 220 of the Code, an employee cannot be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, since this relates to the institution of labor discipline.

Inappropriate in section " Wages. Annual additional leave. Strike" clause 55, according to which, when considering a dispute arising in connection with the employer’s refusal to pay interest (monetary compensation) to the employee for violation of the deadline for payment of wages, vacation pay, dismissal payments and other payments due to the employee, it is necessary to have In view of the fact that, in accordance with Article 236 of the Code, the court has the right to satisfy the claim regardless of the employer’s guilt in the delay in paying the specified amounts.

If a collective agreement or employment contract determines the amount of interest to be paid by the employer in connection with the delay in payment of wages or other payments due to the employee, the court calculates the amount of monetary compensation taking into account this amount, provided that it is not lower than established by Art. 236 of the Code.

It is easy to notice that this provision cannot be included in the “Wages” section, because it relates to the institution of material liability of the parties to the employment contract;

1. eliminate inaccuracies. Thus, the legal position on making the necessary personnel decisions (selection, placement of personnel) is not based on the Labor Code of the Russian Federation (I believe that this was borrowed from documents of party congresses and plenums of the CPSU Central Committee or there was a terminological inaccuracy).

The provision of paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation that when an employee is actually allowed to work with the knowledge or on behalf of the employer or his authorized representative, labor relations arise (Article 16 of the Labor Code of the Russian Federation) and the employer may be obligated to draw up an employment contract with by this employee properly, not based on the law. According to Part 2 of Art. 67 of the Code, when an employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than three working days from the date of the employee’s actual admission to work. Therefore, the words “maybe” should be excluded from the text.

The category of “abuse of rights by an employee” cannot be attributed to the guarantees of employees upon termination of an employment contract at the initiative of the employer. If we consider it in essence, and not according to formal criteria, then the employee’s abuse of rights relates to a greater extent to the guarantees of the employer’s labor rights.

Paragraph 28 of the Resolution provides that the termination of the activities of an employer - an individual who did not have the status of an individual entrepreneur - should be understood as the actual termination by such an employer of its activities. At the same time, clause 1, part 1, art. 81 of the Labor Code of the Russian Federation stipulates that an employment contract can be terminated by the employer in the event of “liquidation of the organization or termination of activities by an individual entrepreneur.” Consequently, the specified provision of clause 28 has no relation to this ground for termination of the employment contract.

The wording of paragraph 39 of the Resolution is unsuccessful. In particular, if the employment contract with the employee is terminated under paragraphs. "a" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation for absenteeism, it must be taken into account that dismissal on this basis can be made:

a) for absence from work without good reason, i.e. absence from work throughout the entire working day (shift), regardless of the length of the working day (shift);

b) for an employee being outside the workplace without excuse for more than four hours in a row during the working day.

But in paragraphs. "a" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation has a slightly different wording, more precise. The emphasis is on absence from work rather than from work. Note that an employee can go to work, but be absent from the workplace.

In addition, and paragraphs. “b” clause 39 of the Resolution is not consistent with the Code (cf. “the employee being outside the workplace” and “absence from the workplace”). Moreover, unlike the Labor Code of the Russian Federation, the term “change” is not used in the Resolution.

The section of the Decree “Wages. Additional annual leave. Strike” seems more logical to be divided into the corresponding three sections. At the same time, in a slightly different sequence, corresponding to the Labor Code of the Russian Federation: “Annual additional holidays”; "Wages"; "Strike".

In paragraph 54 of the Resolution the category “in-kind form of remuneration” is repeatedly used, which does not quite correspond to Art. 131 of the Code. Obviously, in this case it is not taken into account that " non-monetary form" and "in-kind form" of remuneration are ambiguous categories.

In paragraph 60 of the Resolution, the emphasis is placed on the issue of reinstatement of an employee dismissed as a result of the liquidation of the organization. However, in this case, one should take into account the slightly different content of clause 1, part 1, art. 81 of the Code, namely: “liquidation of an organization or termination of activities by an individual entrepreneur.”