Restoration to work - judicial practice. Consideration of labor disputes in court. Illegal dismissal. Jurisdiction of labor disputes Judicial practice under article 47 of the Labor Code of the Russian Federation

In all countries, and ours is no exception, there are cases when the management makes an unlawful decision to fire an employee or transfer him to another position. And the employee does not want to leave the cozy place at all. He really liked the work, especially since it was not far from home. Yes, and there was a terrible resentment from the unfair treatment on the part of the authorities. Illegal dismissal must be challenged without fail.

Any laid-off person who believes that he or she has been treated unfairly has the right to reinstatement. Knowing your rights is very important, and you need to fight for them, even in court. You can familiarize yourself with the rules for dismissal and what grounds for this exist in Chapter 13 of the Labor Code of the Russian Federation.

When dismissal is illegal

In the event that the employee conscientiously performed his work, did not skip, did not come to work in drunk, did not steal anything and did not violate safety precautions, his dismissal will be considered illegal. Dismissal is also considered illegal if:

the employee was not warned in advance, for example, about the reduction of the staff at the enterprise;
if the specified reason for dismissal does not correspond to reality and is indicated in the order for a completely different reason;
upon dismissal of an employee for the fact that he does not correspond to the position held and does not cope with his duties, the employee was not properly certified;
an employee is fired due to poor health, he is often sick and does not cope with his work, a medical commission has not been held, which can confirm this;
the employee was fired, allegedly due to staff reduction, but in reality there is no reduction;
the employee has not been paid the salary due to him.

In the event that an employee commits an official crime or some serious misconduct, the boss may offer him to resign on his own. In this case, he is doing you a favor and you must definitely agree. But if the dismissal is illegal, and the boss offers to write a statement in his own way on their own, then you should know: you cannot write it, since the court will then not accept your claim for consideration.

However, if it is proven that such a statement was written under pressure and duress, the judge should take into account and try to understand the true reasons for the dismissal. Most employers make mistakes in the preparation of such documents.

Their illiteracy in legal intricacies and unwillingness to use the services of professional lawyers leads to the fact that it is easy for a competent lawyer to prove violation of the employee's rights and demand significant compensation in the form of debt payments for the period of the employee's forced downtime, and also demand payment for moral damage and for paying for the services of a law office.

Complaint to the state labor inspectorate

When an employee is fired, he writes a statement. Often employers are asked to write a letter of resignation of their own free will. If you think that the dismissal is illegal, then in no case should you write it. After the order of dismissal is issued, you can contact the labor inspectorate. This is done simply. A statement is written in which all the circumstances of the case are clearly indicated, without speculation and your judgments.

Your application must be reviewed within 15 days. The decision will be made on time if the employer has clearly violated labor laws. In case of difficulties arising in the consideration of the complaint, the case may be delayed, but this cannot be allowed. After the expiration of one month, it is no longer possible to file a claim in court. So the choice is yours. Or go to court right away, and it will take longer and more expensive, but there are more chances to return your position and recover in the workplace, or first try to act through state inspection labor. It will be much cheaper, but there are some nuances. The case can be delayed or rejected, and the inspectors of the service are not as professional as the judges.

They have the right to conduct an administrative check of the incident at the enterprise, revise all documents and contracts, and familiarize themselves with the orders. For the rest, namely, reinstatement in the workplace, payment of any money and compensation, the inspector will still advise you to contact district court... If, after the expiration of the due period, no decision is made, then there is no more time to wait, you need to urgently file a lawsuit for illegal dismissal.

It should be less than a month from the order of dismissal to filing a claim for reinstatement. Later, the court considers the issue only in the case extraordinary reasons delays. A prolonged examination of the case by the inspectorate is not considered for such a reason. You can first contact the labor inspectorate, and after 15 days immediately submit claim to court at the same time. Questions on reinstatement to work in judicial practice are considered within a month.

Pros of going to court

Consideration of labor disputes in court has a number of advantages. You need to know them in order to make the right decision whether to seek help or not. A claim is filed for reinstatement at work in court at the location of the enterprise. After the application is filed, an executive judge is appointed to listen to your claims and review the evidence base. The proceedings are carried out with a thorough study of all controversial issues, with the summons and interrogations of all parties to the labor dispute.

The judge considers the basis for Only in court can you tell in detail about the procedure for dismissal, about all violations committed by the employer during this period.

Another positive point to take legal action. The unlawful dismissal of an employee implies that the employer bears the costs involved. Based on Article 393 of the Labor Code of the Russian Federation, a dismissed employee is completely exempted from paying state duty and legal costs... Also, a pleasant moment will be the opportunity through the court to demand from the employer compensation for moral damage and compensation for loss. wages for the entire period that the plaintiff did not work.

Cons of litigation

The only drawback will be the duration of the complaint. Especially if the controversial issue has little evidence. In case of gross violation labor legislation, restoration to work in judicial practice is easier, less time is spent on clarifying the circumstances of the case. If there is no valid written confirmation of the violation by the employer of the rights of his employee, then the consideration of the case may be delayed.

But in recent times judges try to resolve such disputes about reinstatement at work faster, within a month. The process can be delayed only in the case of very controversial issues... If the obviousness of the illegality of the employee's dismissal is great, then the case for reinstatement to work in court practice is considered much faster.

Preparing to go to court

Before applying for reinstatement at work by a court decision, an employee should carefully prepare in advance. Usually they are not fired abruptly, but the person feels and understands that everything leads to this. At the time of dismissal, the employer is unlikely to want to meet you halfway and give out everything Required documents which the judge will require. When signing an employment contract, one copy must be in the hands of the employee.

The contract must indicate the wages you will receive. If there cash payments not specified, but you need to take a certificate from the place of work about the salary for six months. The judge will need this if the employee wants to pay the debt.

It is advisable to try to talk to the manager for the last time before filing an application with the court, to explain your reasons for unwillingness to leave workplace... You also need to warn him about your desire to go to court for reinstatement at work according to the Labor Code of the Russian Federation. In the practice of labor disputes, there were cases when the manager did not want to check his enterprise and study the documentation by court assistants, and accepted an amicable agreement to restore the employee to his previous workplace. Even in such cases, the issue of debt payments was resolved.

What documents are required to go to court?

If it was not possible to agree with the manager and solve the problem of returning to the previous place of work, then you need to file a claim with the judicial authorities at the place of registration of the enterprise. Sometimes the case can be sent to the court at the place of residence of the plaintiff. When filing a claim, in addition to the application, the following documents must be submitted:

work book (it must contain a record of the number of hiring and dismissal, with order numbers);
a copy of the employment contract concluded upon admission to this place work;
copies of orders with numbers (about hiring, about dismissal, about reprimands or penalties, if any);
certificate of receipt of wages for the last six months.

You can also submit any documents that prove that you worked in this company. Each document on hand must be filed to the file. This is very important, since the employer can calmly declare that he is seeing you for the first time, and you did not work for him.

Individual labor disputes

According to the court, any employee who considers his dismissal and transfer to a lower-paid position to be illegal can apply to the court. He can, through the court, demand compensation for the period that he was forced not to work or received less wages. Employees who do not agree with the wording of the reasons for their dismissal in the work book can file a claim.

Also, an employee of an enterprise can complain in court against a boss who did not respect confidentiality when processing employee data. The issues of unlawful refusal to hire a person, discrimination of his rights on the basis of nationality, pregnancy or the fact that a woman has a small child are considered.

The court, when conducting a case, hears different sides, examines all the documents, court assistants are sent to the company to check all the documents. Also, if necessary, various professional experts, various witnesses can be involved, certifying your work activity in this enterprise. The employee in this process is called the plaintiff, since he has filed a claim, and the manager or private entrepreneur is considered the defendant.

Making a decision by the court

Upon submission, the employee plans that the court reinstatement decision will satisfy his demands. After a careful study of the case materials, the judge makes a reasoned decision, confirmed by labor legislation, indicating the chapters and articles of this code.

In the event that the plaintiff makes claims for compensation to him material damage or other compensation, the judgment must clearly state the amount due payment... Since the trial can last for a long time, according to the law, it is decided that the compensation for the dismissed employee should not exceed the salary for six months. In the event of a claim by the plaintiff additional payments, for example, payment of a lawyer or compensation for moral damage, then the judge also determines and clearly indicates this amount. Since in an individual labor dispute, the state duty is not collected from the employee, 50% tax is levied on additional payments at the request of the plaintiff.

When reinstating at work in court, a person has the right to demand compensation not only for the remuneration of employees of the Bar, but also for the suffering caused to him, both physical and psychological. The degree of guilt of the defendant is also taken into account. But usually such compensation is small.

Work recovery procedure

If the consideration of labor disputes in court ends with a decision to reinstate an unlawfully dismissed employee at work, then the employer is obliged to reinstate him in the same position on the same day. In this case, the employee submits a court decision and writes an application for reinstatement at work.

An order is issued on reinstatement at work by a court decision and is given to the employee for signature. After that, it is necessary to make an appropriate entry in the work book: the entry under No. (the entry number is put, it is in this work book) is invalid, restored at the previous job. But if the employee does not want to spoil his impeccable reputation with such an entry in the book, he has every right to demand that he be given a duplicate without corrections.

In the event that the employee was transferred to a lower-paid position, then with a positive decision of the judge, he must return to his previous place of work. If the reason for dismissing an employee from work was incorrectly indicated, the person suffered and could not get another job because of this? Through the court, he was also entitled to monetary compensation in the amount of his salary for six months. Also, the court will oblige the manager to change the objectionable wording in the work book.

But after the court's decision on reinstatement to work, judicial practice shows that not everything goes so smoothly. Usually, a person who has achieved his requirements in this way is not very welcome at his old place of work. The moral atmosphere is so heated, and the boss's nagging becomes so critical that a person often then independently comes to a decision to quit and write. The employee must understand this, and after a court decision and receiving monetary compensation, start looking for another job.

Illegal dismissal for redundancy

When the company plans to reduce staff, the head, according to the law, must comply with all the rules. To begin with, it is necessary in advance, namely two months in advance, to warn the employee about the changes in his life. During this time, a letter is also submitted to the employment service about the need for this period to provide a person with an appropriate place, according to his experience, length of service and education.

Also, the boss can offer a different position, if, of course, there are vacancies. The employer must pay compensation to the employee if the forced dismissal has occurred ahead of time... Failure to comply with these rules will result in illegal dismissal due to redundancy.

Categories of citizens who are illegally reduced

There are several categories of workers who, according to the law, in any case do not have the right to fire, let alone cut:

pregnant women;
single mothers with a small child in their arms (up to 14 years old) or raising a disabled child (up to 18 years old);
mothers who have a child under 3 years of age;
guardians of disabled people under 18 years of age, who are considered to be one working in the family;

a father who has a young child in education, but does not have a mother;
a father who is the only breadwinner in a family with three young children;
people who, at the time of downsizing, are on planned vacation or on vacation at their own expense;
people who are on sick leave at the time of the reduction;
if the employee with whom the contract was signed is not yet 18 years old, then he can be dismissed by agreement with the labor inspectorate or the juvenile affairs inspector.

In any case, upon dismissal, an employee must know his rights, be able to act professionally, defend himself, if necessary, in court. If the production is not complied with Labor Code and the chaos of the authorities reigns, then the punishment must follow without fail.

The work collective must unite and defend the rights of employees. Unfortunately, in our country, trade union organizations do not have the same strength as in other states, and often workers cannot get the support they need. This is what the judicial authorities are for. You can always file a claim in court. Illegal dismissal must be punished.

Many are worried and afraid to apply, and such processes are very rare, however, as practice in other countries shows, if you wish, you can always prove your case.

Generalization on cases arising from labor relations (prepared by T.A. Petrova, judge of the Moscow Regional Court)

The following conclusions are drawn in the Summary of the Judicial Practice below:

Protection of the labor rights of a foreign worker

Violation of labor legislation by the employer when concluding an employment contract with a foreign worker (attraction to labor activity in the absence of a work permit) cannot serve as a basis for refusing to protect the labor rights of this employee, since the fact of the existence of an employment relationship between the parties was established by the court; R. was actually admitted to the performance of labor duties under vacant post the dispatcher, performed these duties, obeying the labor regulations in force in the LLC, received payment for her work

Taking into account the severity of the employee's misconduct

The employer did not submit to the court evidence showing that when a penalty was imposed, the severity of this offense, the circumstances under which it was committed, the employee's previous behavior, and his attitude to work were taken into account. Since such evidence was not presented to the court during the consideration of the case, the Presidium considered, guided by Part 5 of Art. 192 of the Labor Code of the Russian Federation that the imposition disciplinary action cannot be recognized as legal

Change by the court of the wording of dismissal

Since the plaintiff, in connection with the filing of an application for early termination contracts on the basis of Art. 280 of the Labor Code of the Russian Federation was subject to dismissal, but not on the basis of clause 9 of Art. 81 of the Labor Code of the Russian Federation, which is recognized as illegal, and on the basis of Art. 280 of the Labor Code of the Russian Federation, the court should have been by virtue of Part 5 of Art. 394 of the Labor Code of the Russian Federation to change the wording of the grounds for dismissal and indicate in the decision the grounds and reasons for dismissal in strict accordance with the circumstances that took place in reality, and with reference to the relevant article of the Code

Recovery of average earnings due to incorrect wording of dismissal

Average earnings for the period from the moment of dismissal to the day of the decision was subject to recovery if it was proved that the incorrect wording of the grounds and / or reasons for dismissal prevented the citizen from entering another job, which is provided for by the provisions of Part 8 of Art. 394 of the Labor Code of the Russian Federation

There are no obstacles to leave if you have a certificate of incapacity for work

The presence of a certificate of incapacity for work, the reduction of the position of the plaintiff are not an obstacle to the granting of leave, since at the time of the appeal the plaintiff was not dismissed and had the right to apply for parental leave, even with a certificate of incapacity for work, and in this case she was not subject to dismissal by virtue of Art ... 81 of the Labor Code of the Russian Federation.

Return to the table of contents of the review of judicial practice: Dismissal of an employee under article 81 of the Labor Code of the Russian Federation on the initiative of the employer

GENERALIZATION
IN CASES ARISING FROM LABOR LEGAL RELATIONS

So, the Presidium of the MoE was satisfied supervisory complaint Energoinzhmash LLC against the decision of the Vidnovsky City Court of the Moscow Region dated July 14, 2008, which recognized the dismissal of citizen K. as illegal - general director society "Energoinzhmash" according to clause 9 of Art. 81 of the Labor Code of the Russian Federation.

From LLC in favor of K. it is collected average earnings during the forced absence from March 24, 2008 to July 14, 2008 in the amount of 958303.32 rubles. and compensation for moral damage of 5,000 rubles.

Resolving the dispute, the court concluded that there were no grounds provided for in paragraph 9 of Art. 81 of the Labor Code of the Russian Federation (adoption unreasonable decision the head of the organization, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization), for the dismissal of citizen K.

This conclusion of the court was also agreed by the judicial board on civil affairs Moscow Regional Court.

The Presidium of the Moscow Regional Court also found the above conclusions of the court correct.

At the same time, the Presidium indicated that the court did not take into account that on February 11, 2008, at an extraordinary meeting of the LLC participants, it was decided to early terminate the powers of General Director K. and terminate the employment contract with him.

On March 11, 2008, at an extraordinary general meeting of participants, the decision of February 11, 2008 was revised and a new one was adopted - to terminate the contract with K. under clause 9 of Art. 81 of the Labor Code of the Russian Federation. Solution general meeting dated March 11, 2008 adopted during the period of the plaintiff's illness.

At the same time, on February 12, 2008, K. filed an application for early termination of the employment contract on the basis of Art. 280 of the Labor Code of the Russian Federation.

On March 24, 2008, the plaintiff received a work book with a note of dismissal under paragraph 9 of Art. 81 of the Labor Code of the Russian Federation.

Since the plaintiff, in connection with the filing of an application for early termination of the contract on the basis of Art. 280 of the Labor Code of the Russian Federation was subject to dismissal, but not on the basis of clause 9 of Art. 81 of the Labor Code of the Russian Federation, which is recognized as illegal, and on the basis of Art. 280 of the Labor Code of the Russian Federation, the court should have been by virtue of Part 5 of Art. 394 of the Labor Code of the Russian Federation to change the wording of the grounds for dismissal and indicate in the decision the grounds and reasons for dismissal in strict accordance with the circumstances that took place in reality, and with reference to the relevant article of the Code, indicating the date of dismissal from March 24, 2008.

However, the court, finding the dismissal illegal, guided by Part 7 of Art. 394 of the Labor Code of the Russian Federation, changed the wording of the grounds for dismissal, as well as the date of dismissal from March 24, 2008 to the date of the court decision - July 14, 2008.

The conclusion of the court to change the date of dismissal, the Presidium recognized as inconsistent with Part 5 of Art. 394 of the Labor Code of the Russian Federation, since the court established that the plaintiff was subject to dismissal from work, however, the grounds for dismissal did not comply with the law, in this regard, the date of dismissal was not subject to change.

Since the date of K.'s dismissal was not subject to change, the court was also not entitled to collect the average earnings during the forced absence from March 24, 2008 until the day of the decision - July 14, 2008.

Taking into account the lack of information in the case materials that the incorrect wording of the grounds or reasons for dismissal prevented K. from entering the job, and also that K. had not filed claims for the collection of wages on these grounds, the Presidium recognized the court's conclusion that the requirements were satisfied. on the recovery of wages for the time of forced absenteeism from March 24, 2008 to the date of the court's decision - July 14, 2008 in the amount of 958303.32 rubles that does not meet the requirements of Art. 394 of the Labor Code of the Russian Federation, and therefore refused to collect the indicated amounts.

Thus, when considering this case, the court, having applied Part 7 of Art. 394 of the Labor Code of the Russian Federation instead of Part 5 of Art. 394 of the Labor Code of the Russian Federation to the arisen legal relationship, incorrectly made the choice of the rule of law to be applied.

Violations of norms committed by the court substantive law are significant and led to the cancellation of the court orders in part and in the adoption of a new decision to refuse to satisfy the claims for the recovery of earnings during the forced absence.

In accordance with Art. 38 (parts 1 and 2) of the Constitution Russian Federation motherhood and childhood, the family are under the protection of the state; Taking care of children, their upbringing is an equal right and responsibility of parents. The constitutional right to the upbringing of children by one of the parents is exercised when granting parental leave until the child reaches the age of three years. This right corresponds to the obligation of the employer to grant parental leave until the child reaches the age of three years.

Thus, the above example allows us to state that the judicial collegium limited the plaintiff's rights to conditions that were not provided for by law as grounds for refusing to grant leave, in this regard, the plaintiff was illegally deprived of the guarantees provided for by the Labor Code of the Russian Federation.

Prepared by the judge
Moscow Regional Court
T.A. Petrova

Arbitrage practice on labor disputes summarized by the Supreme Court of the Russian Federation in the relevant reviews and decisions. Let us consider in more detail the meaning of this judicial authority in the formation of the practice of considering and resolving conflicts between employees and employers.

Importance of the Supreme Court in labor disputes

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

The 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 is a generalization of practice on certain topics, based on the description of the most "correct" decisions of the courts. And the second contain explanations of the procedure for law enforcement individual provisions legislation based on the most pressing issues identified in the analysis of practice. Reviews, which are published more often than resolutions of the Plenum on labor disputes, are in some way an addition to the latter, since they make up for unresolved issues.

As an example of a review of judicial practice in labor disputes, one can name the Review of the practice of consideration by courts of cases in disputes arising from the labor legal relations of athletes and coaches (approved by the Presidium of the Supreme Court of the Russian Federation on 07/08/2015).

Examples of decisions of the Plenum of the Supreme Labor Court:

dated 01.28.2014 No. 1 (on the work of females, family citizens and persons under the age of 18);
dated 03.06.2015 No. 21 (on the work of managers and members executive body) and etc.

And all current regulations courts are obliged to be guided, 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 RF Armed Forces No. 2

One of the most important decisions on labor disputes of the Plenum of the RF Armed Forces is Act No. 2 dated 17.03.2004. It defines many important concepts, including such as:

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

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

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

Clause 27, in which the courts are given the right to refuse to satisfy the employee's claim for reinstatement at work in case of establishing the fact of abuse of his right (for example, when concealing the implementation of activities in the status of a trade union member, when dismissal should be made taking into account the opinion of this organization);
p. 42, which provides a definition of what is meant by appearing at work in a state drunkenness, namely: being in such a state not only directly at the workplace, but also on the territory of the company, the facility where he should have performed his direct duties;
Clause 46, which indicates the possibility of dismissing an employee engaged in educational activities due to the commission of an immoral act (clause 8, part 1 of 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 in order to ensure the unity of the application of the norms of legislation, the said body makes 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 the general rules for resolving such conflicts and passing resolutions.

Litigation on labor disputes

For the protection of his violated labor rights, the employee has the right to apply either to the labor inspectorate or to the court. According to Art. 24 of the Code of Civil Procedure of the Russian Federation, cases of labor disputes that have arisen 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.

Judicial practice shows that 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 Code of Civil Procedure, there are no unambiguous norms 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, considering labor disputes, began to rely on the norms of the Constitution of the Russian Federation, applying the analogy of the law and the analogy of law.
Judicial practice is necessary in order to bring complex legal issues to a single whole. However, this rule does not always work with labor disputes.

Judicial 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 this basis, the employee can be sure that the court will decide in his favor, since such a reason is not a reason for refusing to accept a vacant position.

On the "second place" in terms of "attendance" of courts - cases of illegal dismissal.
Judicial decisions on labor disputes concerning unlawful refusal to accept and unlawful 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 the direction of the plaintiff (that is, the employee) only because the employer did not draw up the documents correctly.
For example, a court decision in a similar case, when an employment contract was drawn up incorrectly. The court decided to reinstate the employee in the workplace, and ordered the employer to pay him wages for forced absenteeism. In addition, the employer is obliged to pay the plaintiff monetary compensation moral harm caused to her illegal actions employer.

Labor court decisions are not always in the employee's favor. 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 get acquainted with his job description.
The courts decide on the basis of workers' claims and the evidence they present to the court. So weighty evidence base often helps to restore an employee to work.
In addition, both parties to the employment relationship must be attentive to the main document - the employment contract. Often, an incorrectly executed fixed-term contract helps the employee to recover from work. So the court decision in a similar case was made in favor of the employee.

The practice of labor courts is rather ambiguous. For example, having come to get a job while drunk, you should not count on getting a position. However, there is a court decision in which the refusal for this reason is recognized as unfounded. The court ordered the defendant, a potential employer, to conclude an employment contract with the applicant and pay him compensation.
An employee's appeal to the labor inspectorate for the protection of his labor rights does not deprive him of the right to go to court. However, if the court dismissed the claim, then Labour Inspectorate does not have the right to decide on 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 with the participation of the named categories of citizens, or is it necessary to follow the provisions of the special laws that apply to them.

After analyzing the judicial practice on this issue, we can conclude that it is necessary to apply, first of all, special laws. For example, if a police officer appealed to the court, then the law should be followed? RF of 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 RF Armed Forces of December 23, 1992 N 4202-I). 12 With this? Should the regulation be applied by the court? insofar as it does not contradict the Law "On Militia", which directly follows from Article 19 of this Law. Is it indicative of this? According to the court decision, when the police officer was reinstated in the service, he was dismissed under clause "l" of Part 1 of Article 58 of the Regulation, while the Law "On Police" does not provide for such a basis for dismissal. 13 In the decree ?? o? The position contains concepts used in the Labor? RF Code. For example, article 10 of the Regulations speaks of a combination of jobs, article 11 provides for the conclusion of a contract, article 12 regulates the establishment of a probationary period, etc. The assessment of these norms can be made in accordance with those contained in the Labor? RF Code requirements.

Point? "E" Article 58 of the Regulations provides for the dismissal of a police officer to reduce staff. According to the norms of the Labor Code of the Russian Federation, upon dismissal on such grounds, a certain procedure and guarantees are provided. The Regulations only provide that the employee is warned of dismissal two months in advance, and dismissal is made if it is impossible to use it in the service. With this? there are certain difficulties in assessing the respondents presented? evidence of the impossibility of such use of the employee. Meanwhile, there is an extensive judicial practice regarding the application of the norms of the Labor Code of the Russian Federation on this issue. It seems that this practice, even if it is mediated, can be taken into account when resolving such labor disputes with the participation of police officers.

According to Article 66 of the Regulations, if a police officer disagrees with the decision to move him through the service, remove him from office, demote and special? rank, he has the right to appeal this decision to a higher superior, and then to the court. Sometimes the 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 before dismissal, changing the wording of the reason and date of dismissal, payment for the time of forced absenteeism, the employee must first apply to whom and ?? yu for labor disputes, and, if this not done in the presence of such a ko? and ?? s, the judge has the right to refuse to accept and ??? However, yes ?? o? In the case of the established practice, despite the restrictions provided for by the Regulation, a police officer can immediately apply to the court for the protection of his labor rights, in that? number and on a dispute on the imposition of a disciplinary sanction?

The passage of service as military personnel is regulated by the Federal Law? of May 27, 1998 N 76-FZ "On the status of military personnel" 14 and the Federal Law? of March 28, 1998 N 53-FZ "On the soldier's obligation and military service" 15.

Persons in active military service apply to the military court to resolve disputes, and former military servicemen, at their choice, to the military court or to the court general jurisdiction... Is this procedure enshrined in the Federal? constitution? o? the law of June 23, 1999 N 1-FKZ "On military courts of the Russian Federation". 16 Courts should not apply the norms of the Labor Code of the Russian Federation when regulating relations associated with the dismissal of military personnel. I paid attention to this Judicial board on citizenship The Supreme Court RF when considering specific cases of this kind. Indeed, the named federal laws do not contain references to the Labor Code of the Russian Federation. 17 For military personnel established special conditions labor (service), which are essentially different from the labor relations of workers and employees. For example, for military personnel, such a basis for dismissal from military service is provided, as non-compliance with the terms of the contract.

For military personnel, additional guarantees are provided upon dismissal. For example, according to clause 1 of article 22 of the Federal Law "On the Status of Military Servants," a military employee should be provided with housing before dismissal upon reaching age limit stay in military service.

It is not uncommon for police officers and former military servicemen to go to court with claims for the collection of monetary allowances, 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? RF these relations are regulated by the Federal Law of May 27, 2003 N 58-FZ "On the system of state service of the Ro ?? i ??? th Federation" and the Federal Law "On the fundamentals of the state service in Ro ?? iy ??" ? th Federation "of July 31, 1995 N 119-FZ. According to article 25 of the Federal Law "On the fundamentals of state service in the Russian Federation", the dismissal of civil servants is carried out on the grounds and in the manner provided for in Labor? RF Code. 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 on the reinstatement of civil servants,? dismissed during the liquidation of a state body, reduction of its staff or number (paragraphs 1, 2 of Article 81 of the Labor Code of the Russian Federation), the defendant is obliged to prove the circumstances indicating that he followed the procedure for dismissal on the indicated grounds with the account? the provisions of Article 16 of the Federal Law "On the Foundations of State Service of the Ro ?? y ??? th Federation". In this regard, the defendant? must be presented evidence confirming that after the warning about the release of 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? body, and he refused the offered job or refused to undergo retraining (retraining) in the manner established? but? legislation? Ro ?? nd ??? th Federation and subjects of the Ro ?? nd ??? th Federation on state service.

With this? the offer of a vacant position is understood as coming from a fully-qualified official state body a proposal for the appointment to a state post of the state service, including? number of subordinates, the obligations according to which the state employee can fulfill with the account? his profession, qualifications and previously held position.

The subjects of the Russian Federation have been given the right to adopt laws on the regulation of civil servants' labor themselves. So in the Bryan region there is a law of July 10, 1997 N 18-З "On the fundamentals of state service in the Bryan region". However, when applying these laws, it should be borne in mind that the subjects of the Federation cannot establish additional grounds for terminating an employment contract.

V term paper the problems associated with the resolution of individual labor disputes in courts were considered. This topic, as has been noted many times in the work, is very relevant.

In connection with the lo? Ko of old production relations, which have developed in the conditions of the planned economy and in connection with the transition? to the market system of management in front of society? problems arose due to the contradictions between the interests of employers, expressed in obtaining maximum profits and the interests of workers interested in maximum pay for their labor and receiving benefits provided for by labor legislation. However, the implementation of all these guarantees imposes on employers an additional financial burden that they are not willing to shoulder.

Labor law violations are commonplace. They begin even before the conclusion of employment contracts, when the applicant for a vacancy is exposed in advance to illegal conditions for concluding an employment contract. The employer often demands from him to refuse leave? requires work in excess of working hours. As a result, the employment contract is concluded on previously unlawful conditions.

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

Namely, but such a situation contributes to the emergence of labor disputes as individual,? and collective.

As a regulator public relations, the law usually actively manifests itself precisely when this or that conflict arises, including of a labor nature. It is during the conflict that the effectiveness is also tested. legal regulations, and the ability of the state and society to actually guarantee a person the realization of his rights, including in the sphere of applying his 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 employees interested in maximum remuneration for their labor and obtaining benefits provided for by labor legislation. However, the implementation of all these guarantees imposes an additional financial burden on employers that they are not willing to shoulder.

Labor law violations are common. They begin even before the conclusion of employment contracts, when the applicant for a vacancy is exposed in advance to illegal conditions for concluding an employment contract. The employer often requires him to give up vacation, weekends, and requires him to work in excess of the working hours. As a result, the employment contract is concluded on previously unlawful 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 respected, but in the commercial sector it practically does not work at all. In small and medium-sized enterprises, common civil relations, since it is convenient for the employer (there is no need to comply with the minimum guarantees established in labor legislation). Growth in SMEs Exacerbates Security Challenges legal rights hired workers. At these enterprises, trade union organizations are usually not created, labor dispute commissions 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 bonded 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, workers often do not risk openly defending their rights, coming into conflict with the employer. Making a complaint can lead to job loss. 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 appeal of the employee to the court (for example, for reinstatement at work, payment for forced absenteeism) is considered by the employer as an undesirable and abnormal phenomenon, and most often such an employee is persecuted by him.

The relationship between the parties to labor relations is actually built on the basis of the employee's subordination to the employer. In these conditions, it is necessary efficient system legal guarantees ensuring the protection of the rights and interests of employees from misconduct employers. For the same reason, broader interference of the state in relations with hired labor is allowed than in other spheres. The employee is interested in the bodies of supervision and control over the observance of labor legislation to eliminate violations on their own initiative. However, there are no legal prerequisites for their independent proactive actions to protect workers. V 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 legal relations. It is necessary to endow it with great powers in this area in order to increase the efficiency of its work. This body must independently carry out measures to monitor compliance with labor legislation and take measures to eliminate violations in this area. This requires the expansion of the staff of the said Federal Service, the introduction of amendments to the Labor Code, expanding its powers and obliging to carry out large-scale monitoring activities in the field of compliance with labor legislation.

Positive judicial practice on claims of workers for reinstatement at work 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 the observance of labor rights.

By implementing constitutional law 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 the current legislation, improving judicial system and court procedures.

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

As for who? And ?? s on labor disputes, then, as practice shows, it cannot really protect the rights of the employee, tk. its composition: both members of the CCC, appointed by the employer, and members, elected by the workers, in fact, depend on employers and follow their line. Therefore, an employee can really defend his rights only in court.

But, again, as practice shows, for judicial protection their violated labor rights are addressed only by those employees who have stopped or are about to stop labor Relations... This is due to the fact that on the basis of the dispute arising from labor, he will be able to defend his rights in court? order, but after that 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 proclamation of? But? In the Constitution of the Russian Federation of the equality of all before the law? and court? and the principles of observance of human and civil rights in civilization ?? o? a democratic society.

Based on the foregoing, 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, 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 of the Labor Code of the Russian Federation. Individual labor dispute unresolved disagreements between the employer and the employee on the application of labor legislation and other regulatory legal acts containing norms labor law, a collective agreement, an agreement, a local normative act, an employment contract (including on the establishment or change of individual working conditions), which are reported to the body for considering 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 an employer, if the employer refuses to conclude such an agreement.

The subjects of the individual labor dispute are not only the employer and individual worker but also persons who are or are not yet employees.

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

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

The provisions on the consideration of a dispute by the CCC is not a novelty of the Labor Code of the Russian Federation, the norms 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 a CCC. However, the law does not regulate the procedure for determining the total number of CCCs. 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 has been determined.

The procedure for considering labor disputes is determined by the Labor Code of the Russian Federation only in general terms. In particular, the legislation does not regulate issues about the application of recusal of one or several members of the CCC, the procedure for hearing participants in a labor dispute, about the rules for the participation of witnesses and specialists invited by the commission in the consideration of the dispute, etc. , in which it is undefined by the Labor Code.

In accordance with Part 1 of Art. 391 of the Labor Code of the Russian Federation, in courts of general jurisdiction, individual labor disputes are considered at the request of an employee, employer or trade union advocating for the rights of the employee when they disagree with the decision of the labor dispute commission, or when the employee goes to court, bypassing the labor dispute, as well as at the request of the prosecutor, if the decision of the labor dispute 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 a large number of 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 termination of the proceedings on the case is possible in two forms: by passing a judgment and without making a judgment.

Court decisions on individual labor disputes are subject to mandatory execution upon their entry into legal force, except for their cases. immediate execution(for example, about the restoration of the operating time).

The decisions of the courts on individual labor disputes can be appealed in the courts of appeal, cassation and supervision instances, as well as on newly discovered circumstances.

Thus, summarizing 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 - by the Labor Code of the Russian Federation and the Civil Procedure Code of the Russian Federation.

Sources and Literature

O Constitution of the Russian Federation. Russian newspaper dated 25.12.1993

O Civil Code of the Russian Federation (parts one, two and three) (as amended on February 20, August 12, 1996, October 24, 1997, July 8, December 17, 1999, April 16, May 15, 2001, March 21, November 14, 26, 2002, January 10, March 26, 2003)

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

O Federal constitutional law dated 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). Bulletin of the Congress of People's Deputies of the RSFSR and the Supreme Soviet of the RSFSR dated April 22, 1991, N 16, art. 503.

O Federal Law of May 27, 1998 N 76-FZ "On the Status of Servicemen" (as amended on December 31, 1999, June 19, August 7, December 27, 2000, July 26, December 30, 2001, 7 , May 21, June 28, November 27, December 24, 2002)

O Federal Law of March 28, 1998 N 53-FZ "On conscription 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)

O Federal Law of October 26, 2002 N 127-FZ "On Insolvency (Bankruptcy)". "Rossiyskaya Gazeta" dated November 2, 2002

O Ordinance The Constitutional Court RF of March 12, 2001 N 4-p // Russian newspaper of March 22, 2001

O 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"

O Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Of the Arbitration Court RF of November 12, 2001 N 15/18 "On some issues related to the application of norms Civil Code Of the Russian Federation about limitation period". "Rossiyskaya Gazeta" dated December 8, 2001

O Resolution of the Plenum of the Supreme Court of the Russian Federation of December 20, 1994 "Some issues of the application of legislation on compensation for moral harm." Bulletin of the Supreme Court of the Russian Federation, 1995, N 3.

O Labor disputes: Practical commentary / Kurennoy A.M .. - M .; Case, 2003.

O Practice of resolving individual and collective labor disputes: Socionics: Lecture texts / MI Gubenko - Chelyabinsk; Publishing house Chelyab. state University, 2003.

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

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

O Kostyan I.A. Legal guarantees for the resolution of individual labor disputes // Labor law and law social security: Actual problems: Digest of articles. - M .; Prospect, 2000.

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

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

O Sosna B.I. The procedure for considering individual labor disputes // Arbitration and civil procedure... - M .; Lawyer, 2003. - No. 7.

O G. Titov. Labor disputes // Financial newspaper. Regional issue ", N 14, April 2003

About P.V. Klimov. UK Labor Dispute Resolution. // "Legislation", N 6, June 2001

O Zhdanova T.V. Individual labor disputes: labor legislation and reality // Law and Economics. - M .; Legal. House "Justicinform", 2001. - No. 4.

O V. Anisimov. Labor disputes with the participation of police officers, military personnel and civil servants. // "Russian Justice", 2001, N 3.

O Vlasova V.I., Krapivin O.V. Resolution of individual labor disputes // Citizen and Law. - M .; New legal culture, 2000. - №5.

1Marinenko M.E. Protection of labor rights of workers and employees: Author's abstract. Diss .: Cand. jurid. sciences. Minsk, 1969.C 15

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

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

4Grudtsyna. L.Yu. Questions and answers. // Legislation and Economics. - No. 10. - 2002 - from 25-39

5Chesovskaya E. Resolution of labor disputes // "Russian Justice", N 11, November 2002, pp. 43-57

6Klimov P.V. UK Labor Dispute Resolution. // "Legislation", N 6, June 2001, from 12-20

9 Labor disputes: Practical commentary / Kurennoy AM .. - M .; Delo, 2003.S. 142

10B. Anisimov. Labor disputes with the participation of police officers, military personnel and civil servants. // "Russian Justice", 2001, N 3, p. 43.

11 Bulletin of the Congress of People's Deputies of the RSFSR and the Supreme Soviet of the RSFSR dated April 22, 1991, N 16, art. 503.

12 Bulletin of the Congress of People's Deputies of the Russian Federation and the Supreme Soviet of the Russian Federation "dated January 14, 1993, N 2, art. 70.

13Bulletin of the Supreme Court of the Russian Federation. 1998. N 10.S. 2

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

17Sosna B.I. The procedure for considering individual labor disputes // Arbitration and civil procedure. - M .; Lawyer, 2003. - No. 7. - p.38-44

18B. Anisimov. Labor disputes with the participation of police officers, military personnel and civil servants. // "Russian Justice", 2001, N 3,

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

Arbitration court decisions on labor disputes are illegal

Arbitration courts are not entitled to consider labor disputes. This is the prerogative of the courts of general jurisdiction.

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

The court indicated that the arbitration courts have the right to consider only disputes arising from civil legal relations (part 2 of article 1 of the Federal Law of 24.07.2002 No. 102-FZ). But in this case, a labor dispute arose between the employee and the employer, which cannot be the subject of arbitration. With this in mind, the court overturned the arbitral tribunal's decision.

Active in Russia Romano-Germanic (continental) legal system as the main source of law is recognized exclusively by a normative legal act, legislation. Judgment, even pronounced in a case considered for the first time (precedent), will not be an official source of labor law. And yet, the role of judicial practice in the regulation of labor relations is quite large. It also influences the amendments to the core of labor law - the Labor Code.

For additional questions, please contact our lawyers through the free online form or by calling the numbers listed on the website.

Position of the Supreme Court on Law Enforcement Issues

Although court practice is not considered a source of labor legislation in Russia, it still has an impact on the consideration of disputes in the future. Based on the results of the generalization of the considered cases and the decisions made on them, as well as to give uniformity to law enforcement, the Plenum of the Supreme Court regularly issues its own acts - Resolutions. Compliance with the rules set out in it is mandatory for all courts of general jurisdiction.

The regulations of the PVS do not create new rules of law. They recommend the application of existing norms when considering labor disputes. In this case, the court has the right to refer to similar document, as a basis for resolving a particular case. From this point of view, judicial experience as a source of labor law may well be considered.

The interpretation by the Supreme Court of some concepts that are used in the Labor Code and do not have clear definitions is also significant. For example, what should be understood by the business qualities of an employee, where is the other locality and who is the employer's representative when a new subordinate is admitted to work. In this article, we will try to answer the above questions.

The most significant of the PVS documents promising materials of judicial practice are Resolution No. 2 of 17.03.2004 and a number of others. They considered the largest number of problem areas Labor Code and its application in resolving disputes between employees and employers. Subsequently, this document was repeatedly revised. Therefore, in order to refer to the generalization of judicial practice made in it, the latest edition should be found.

Conclusion of an employment contract

Often the reasons for going to court are the refusal of the employer to hire or even an invitation for an interview. The candidate who received it considers himself / herself discriminated against. And he does not find anything better than to demand to conclude a contract with him and pay compensation for the moral suffering caused. Meanwhile, as noted by the PVS, the conclusion of an employment contract is not a mandatory procedure.

At the same time, the Labor Code lists an approximate list of reasons that make the refusal really discriminatory. This is pregnancy or the presence of children in a woman, gender, age, race, place of registration, etc. The only reason why a refusal is possible and legitimate is the business qualities of the applicant. In order for the judicial practice on labor disputes to acquire uniformity, the Supreme Court formulated what should be understood by this term.

Business qualities are the ability to perform a certain activity, a job function, determined by:

the presence of a certain level of qualifications, profession, education;
health condition;
necessary work experience, etc.

Another controversial point in employment is the term of the employment contract. By general rule it is not installed. All cases when it is possible to conclude an agreement with a deadline for its validity are regulated by Art. 59 of the Labor Code of the Russian Federation. However, even without the presence of the grounds specified in the article, fixed-term contracts may be concluded and are lawful if the parties came to this decision voluntarily and there was no labor dispute between them.

Many cases considered in courts are related to the determination of the nature of existing relations. The fact is that an employment contract is similar to a number of civil law agreements, such as, for example, a contract or a paid provision of services.

The main difference for a citizen, in the case of a conclusion with him GPC agreement, will be the absence of a social package.

And for the employer, accordingly, there is no obligation to make obligatory payments and contributions to insurance funds... It is not surprising that it is mainly the fiscal authorities that initiate such a labor dispute.

Dismissal of workers and their restoration

The largest number of labor disputes in the courts are related to dismissal. More precisely, with dismissal at the initiative of the employer. For obvious reasons, former employee there is only one way to get justice - the court. The most common in this category are claims for violation of the reduction order. The Supreme Court recalls that the employer is obliged to:

draw up a new staffing table taking into account optimization;
consider the possibility of preferential abandonment of each employee;
in advance in writing to warn everyone who fell under the reduction;
pay the due severance pay.

If at least one of these conditions or the timing of the procedures is violated, the reduction can be challenged, and the employee reinstated at work. Especially in cases where, under the guise of layoffs, “inconvenient workers” are being fired.

The second most common reason for seeking legal protection is the use of dismissal as a disciplinary sanction. Labor law provides for two cases of such punishment for violation of labor discipline (Article 81 of the Labor Code of the Russian Federation):

for repeated misconduct (clause 5);
for a single, but gross violation (clause 6.).

When considering a dispute about the legality of the application of a penalty in the form of dismissal, it is up to the defendant, that is, the employer, to prove his case. He will need to provide documentary evidence that:

the employee's offense was indeed committed;
misconduct is the reason for the application of the provisions of Art. Art. 192 and 81 of the Labor Code of the Russian Federation;
all the terms and procedure provided for in Art. 193 of the Labor Code of the Russian Federation were complied with by the employer.

If the court recognizes the accomplished dismissal unlawful, then this will have a number of consequences for the employer. First of all, he will be obliged to cancel his order to terminate the employment relationship and thereby reinstate the employee in the same place and in the same position as before the dismissal. The absence of an employee will be considered a forced absenteeism. And since it happened through the fault of the employer, it will have to be paid. And it is possible to compensate for moral damage if the employee declares this and is able to provide evidence.

Pay issues

In its decisions, which unify the existing judicial practice on labor law, the PVS did not bypass the issue of wages. More precisely, such aspects as its payment in kind and the emergence of the employer's debt to employees. Paying salaries not in monetary form is provided in labor law. But only if the following conditions are met:

this happens at the request of the employee;
the size is limited to 20% of earnings;
such forms of payment of wages are standard for this industry (as a rule, in agriculture);
goods received instead of wages benefit the employee;
for goods issued against wages, a reasonable price is set (not higher than the market price).

As for the delay in wages, the Supreme Court emphasizes that the obligation to pay compensation for the inconvenience caused to the employee remains with the employer, regardless of the reason for the late payment of funds. The employee also has the right to demand an indexation of the amount of debt, taking into account the magnitude of inflation.

Labor disputes have their own specifics. To protect their interests, the employee should not only navigate among the labor law, but also know the specifics of considering cases related to disputes with the employer.

On our website, you can get the necessary advice on the application by the court of certain rules of law in resolving a dispute that has arisen.

In a number of cases, the correct legal advice received in a timely manner will help solve the problem without going to court.

Valery Isaev

Valery Isaev graduated from the Moscow State legal institute... Over the years of work in the legal field, he has conducted many successful civil and criminal cases in courts of various jurisdictions. Extensive experience in legal aid citizens in various fields.

9. Payment of severance pay to an employee or preservation of average earnings for the period of employment in the event of termination of the activities of his employer - an individual entrepreneur is not provided for by current legislation.

Such guarantees can be determined by the terms of the employment contract concluded between the employee and individual entrepreneur(employer).

R. went to court with a claim against F. to declare the dismissal illegal, to recover severance pay, wages, payment for days of temporary incapacity for work, imposing on the defendant the obligation to make an entry in the work book about the termination of the employment contract with an indication of the article on the basis of which with her terminated labor relations, compensation for moral damage.

The court established that R. had an employment relationship with the individual entrepreneur F., worked as a seller in a store.

An employment contract of January 1, 2012 was concluded with R., which stipulates the employer's obligation to comply with laws and other regulatory legal acts, local regulations, the terms of the collective agreement, agreements and the employment contract; provide an employee with work stipulated labor contract; to ensure labor safety and conditions that meet the requirements of labor protection and hygiene; provide the employee with equipment, tools, technical documentation and other means necessary for the performance of his labor duties; pay in full the salary due to the employee within the terms established by the Labor Code of the Russian Federation, the organization's internal labor regulations, and the employment contract; carry out compulsory social insurance of the employee in the manner prescribed federal laws; perform other duties provided for by the Labor Code of the Russian Federation, federal laws and other regulatory legal acts containing labor law norms.

On 31 August 2015 R. was dismissed from her job due to the termination of F.'s activities as an individual entrepreneur.

September 9, 2015 F. removed from the register in tax authority as an individual entrepreneur.

In resolving the dispute and refusing R.'s claim to recover severance pay and average earnings from the defendant for the period of employment in connection with the dismissal, the court of first instance was guided by the provisions of Art. 20, 22, part 1 of Art. 178, part 2 of Art. 307 of the Labor Code of the Russian Federation and proceeded from the fact that the terms of the labor contract concluded between R. as an employee and F.'s individual entrepreneur as an employer did not provide for such guarantees upon dismissal as payment of severance pay and average earnings retained for the period of employment. At the same time, the court indicated that the regulation of the labor of workers working for employers - individuals, to the category of which F. belongs, has the established Ch. 48 of the Labor Code of the Russian Federation, features, including the definition by an employment contract of cases and amounts of severance pay and other compensation payments paid to such employees upon termination of an employment contract. The Labor Code of the Russian Federation does not provide workers of this category with guarantees in the form of preservation of earnings for the period of employment, as provided for in Part 1 of Art. 178 of the Labor Code of the Russian Federation for persons working in organizations.

Canceling the decision of the court of first instance in part of the refusal to satisfy R.'s requirements for the recovery of severance pay and average earnings for the period of employment, the court appellate instance came to the conclusion that the defendant had violated the requirements of Art. 318 of the Labor Code of the Russian Federation and, taking into account the amount of the plaintiff's salary per month established by the court of first instance, he collected from F. in favor of R. a severance pay in the amount of the average earnings for three months.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation recognized the conclusions of the court of appeal as based on a misinterpretation and application of substantive law governing disputed relations.

According to Part 1 of Art. 20 of the Labor Code of the Russian Federation, the parties to labor relations are the employee and the employer.

An employee by virtue of Part 2 of Art. 20 of the Labor Code of the Russian Federation is an individual who has entered into an employment relationship with an employer, an employer is an individual or entity(organization) that entered into an employment relationship with an employee. In the cases provided for by federal laws, another entity entitled to conclude employment contracts (part 4 of article 20 of the Labor Code of the Russian Federation) may act as an employer.

Within the meaning of Part 5 of Art. 20 of the Labor Code of the Russian Federation, employers - individuals include, among other things, individuals registered in the prescribed manner as individual entrepreneurs and carrying out entrepreneurial activities without forming a legal entity.

Labor relations, as follows from the provisions of Part 1 of Art. 16 of the Labor Code of the Russian Federation, arise between the employee and the employer on the basis of an employment contract concluded in accordance with the Labor Code of the Russian Federation.

An employment contract can be terminated by the employer in cases of liquidation of the organization or termination of activities by an individual entrepreneur; reducing the number or staff of employees of an organization, an individual entrepreneur (subparagraphs 1, 2, part 1 of article 81 of the Labor Code of the Russian Federation).

Chapter 27 of the Labor Code of the Russian Federation establishes guarantees and compensation for employees related to the termination of an employment contract.

So, part 1 of Art. 178 of the Labor Code of the Russian Federation, it is determined that upon termination of an employment contract in connection with the liquidation of an organization (clause 1 of part one of article 81 of the Code) or a reduction in the number or staff of employees of the organization (clause 2 of part one of article 81 of the Code), the dismissed employee is paid severance pay in the size of the average monthly earnings, as well as the average monthly earnings for the period of employment, but not more than two months from the date of dismissal.

Section XII of the Labor Code of the Russian Federation establishes the features of labor regulation selected categories employees, which include employees working for employers - individuals (Chapter 48 of the Labor Code of the Russian Federation), and persons working in areas Far north(Chapter 50 of the Labor Code of the Russian Federation).

According to Art. 318 of the Labor Code of the Russian Federation to an employee dismissed from an organization located in the Far North and equivalent areas in connection with the liquidation of the organization (clause 1 of part one of article 81 of the named code) or a reduction in the number or staff of the organization's employees (clause 2 of part one 81 of this code), severance pay is paid in the amount of the average monthly earnings, it also retains the average monthly earnings for the period of employment, but not more than three months from the date of dismissal (including the severance pay).

In exceptional cases, the average monthly earnings are retained by the specified employee for the fourth, fifth and sixth months from the date of dismissal by decision of the employment service body, provided that within a month after the dismissal, the employee applied to this body and was not employed by him.

Payment of severance pay in the amount of the average monthly earnings and the retained average monthly earnings provided for by hh. 1 and 2 of this article, is made by the employer at the previous place of work at the expense of this employer.

Based on the literal interpretation of the provisions of Part 1 of Art. 178 and Art. 318 of the Labor Code of the Russian Federation, the preservation of the employee's average monthly earnings for the period of employment and the payment of severance pay to him in the event of the liquidation of the organization, reduction of the number or staff of its employees are provided only when the employee is dismissed from the organization.

Labor regulation of employees working for employers - individuals has features established by Ch. 48 of the Labor Code of the Russian Federation.

Within the meaning of Part 2 of Art. 303 of the Labor Code of the Russian Federation, in a written agreement concluded between an employee and an employer - an individual, all conditions that are essential for the employee and the employer must be included.

According to Part 2 of Art. 307 of the Labor Code of the Russian Federation, the periods of notice of dismissal, as well as the cases and amounts of severance pay and other compensation payments paid upon termination of the employment contract are determined by the employment contract.

From the above regulatory provisions, it follows that the Labor Code of the Russian Federation establishes various legal regulation labor of employees who are in labor relations with an employer - an individual, including an individual entrepreneur, and employees working for employers - organizations. At the same time, the payment by the employer to the employee of the severance pay and the preservation of his average earnings for the period of his employment in connection with the dismissal under paragraph 1 or paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation are guaranteed by law (Labor Code of the Russian Federation) only in case of dismissal of an employee from an organization. For employees working for individuals, including individual entrepreneurs, this guarantee is not provided for by the Labor Code of the Russian Federation. Termination of an employment contract for this category of workers is regulated by a special rule - Art. 307 of the Labor Code of the Russian Federation, containing different from the established part 1 of Art. 178 of this Code, the rule that the cases and amounts of severance pay and other compensation payments paid to employees working for employers who are individuals can be determined by an employment contract concluded between an employee and an employer who is an individual, including an individual an entrepreneur. Thus, the employer is an individual entrepreneur who fires employees in connection with the termination of entrepreneurial activity, is obliged to pay the employee severance pay, other compensation payments, including the average earnings retained for the period of employment, only if the corresponding guarantees are specifically provided for by the employment contract with the employee.

As established by the court and follows from the materials of the case, the terms of the employment contract concluded between R. (employee) and the individual entrepreneur F. (employer), such guarantees in the event of dismissal in connection with the termination of activities by an individual entrepreneur, such as payment of severance pay or preservation of average earnings for the period of employment, are not provided.

Taking into account the established circumstances, the court of first instance correctly dismissed R.'s claims to recover from F. severance pay and average earnings retained for the period of employment, in connection with the termination of activities by an individual entrepreneur, applying the provisions of Art. ... 303, 307 chap. 48 of the Labor Code of the Russian Federation, establishing the features of labor regulation of employees working for employers - individuals.

Canceling in this part the decision of the court of first instance and imposing on the defendant the obligation to pay the claimant severance pay, the court of appeal misinterpreted the provisions of Part 1 of Art. 178, art. 318 of the Labor Code of the Russian Federation and extended their effect to legal relations between employees and employers - individuals that are not regulated by them.

Thus, the court of appeal did not have the statutory grounds for canceling the decision of the court of first instance on R.'s refusal to satisfy claims for the recovery of severance pay and average earnings retained for the period of employment, and to satisfy these requirements of R. with imposing on the defendant the obligation to payment to the plaintiff of the indicated amounts on the basis of the provisions of Art. 178, 318 of the Labor Code of the Russian Federation.

In such circumstances, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation overturned the appeal ruling regarding the cancellation of the court's decision on R. severance pay, leaving in force the decision of the court of first instance in the canceled part.

Definition N 74-KG16-23

10. When resolving disputes between employees and employing organizations that do not receive budgetary funding, regarding the indexation of wages, the provisions of local regulatory acts establishing wage systems, the procedure for indexing wages of employees in such organizations are subject to application.

L. applied to the court on December 14, 2015 with a claim against the Bank (employer) for the collection of wage arrears, compensation for late payment of the sums owed to the employee, compensation for moral damage, expenses for notarial certification power of attorney of the representative.

The court established in the case that on February 17, 2014, an employment contract was concluded between the Bank and L., in accordance with which L. was recruited to the Bank as the chief legal adviser in the court claims department legal department.

On March 4, 2014, the President of the Bank issued an order on the indexation of wages. In clause 1 of the order, it was provided that if the Bank achieved economic performance indicators based on the results of the Bank's work in 2014, specified in Appendix 1 to the order, to index the wages of the Bank's employees by increasing official salaries by 8% starting from January 1, 2015. Based on clause 2 of the said order, if the Bank does not achieve the indicators specified in clause 1 of the order, the salary indexation of the Bank's employees is not carried out.

On September 17, 2015, an agreement was concluded between the parties to the case to terminate the employment contract, and on the same day L. was dismissed from her job under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation (by agreement of the parties).

The court also found that due to the Bank's failure to achieve economic performance indicators based on the results of work in 2014, the indexation of the wages of the Bank's employees was not carried out, the order of the President of the Bank of March 4, 2014 was canceled by the order of January 20, 2016, and the order of On January 21, 2016, a different mechanism was established for indexing the salaries of the Bank's employees for 2013 - 2015 and for 2016.

In resolving the dispute and refusing to satisfy the requirements, the court of first instance referred to the provisions of Art. 392 of the Labor Code of the Russian Federation (as amended up to October 3, 2016) and came to the conclusion that L. had passed the three-month period established by this norm for going to court for resolving an individual labor dispute related to non-payment of wage indexation amounts, which was announced during judicial trial the defendant. The court of first instance proceeded from the fact that L., having received monthly wages without indexation since February 2014, could not have been ignorant of the violation of her labor rights from that time on, February 2014 to September 2015 only applied on December 14, 2015. Considering the defendant's statement that the plaintiff had missed the deadline for going to court and taking into account that L. did not provide evidence of the validity of the reasons for missing the established Art. 392 of the Labor Code of the Russian Federation of the term for filing these requirements with the court, the court of first instance decided to refuse L. to satisfy the claim.

In addition, the court of first instance, in support of the refusal of L. in the claim, indicated that the Bank's failure to index the wages of employees due to the failure to achieve economic performance indicators based on the results of work in 2014 fully complies with the order of the President of the Bank dated March 4, 2014 and established the employer to the mechanism of such indexing.

The appellate court did not agree with the conclusion of the first instance court that the plaintiff had missed the deadline for applying to the court to resolve an individual dispute and canceled the decision of the first instance court. The appellate court considered that the violation by the employer of L.'s right to timely indexation of wages took place up to her dismissal, in connection with which the established Art. 392 of the Labor Code of the Russian Federation at that time, the three-month period to go to court for the resolution of an individual labor dispute should be calculated from the date of the plaintiff's dismissal - September 17, 2015. statement of claim L. was filed with the court on December 14, 2015, then, in the opinion of the court of appeal, the statutory deadline for applying to the court was not missed by the plaintiff.

Satisfying L.'s claims to impose on the Bank the obligation to index the plaintiff's wages in accordance with the consumer price index for the period of work from February 17, 2014 to September 17, 2015 and to recover wage arrears from the defendant in favor of L., the court of appeal with reference to the norms of Art. 134 of the Labor Code of the Russian Federation, Regulations on the remuneration of bank employees, approved by the Board of the Bank on January 23, 2014 (hereinafter - the Regulations on the remuneration of bank employees), proceeded from the fact that indexation of wages is not a right, but an obligation of any employer, regardless of his organizational and legal form. However, the Bank in the period from February 17, 2014 to September 17, 2015, contrary to the requirements of Art. 134 of the Labor Code of the Russian Federation, did not index the wages of L. due to the rise in consumer prices for goods and services. Taking into account the fact that the specific terms of indexation were not set in the Regulations on the remuneration of the bank's employees, the employer was obliged to pay L. the amounts due to her for the indexation of wages on the day of her dismissal.

The appellate court recognized the conclusion of the first instance court that wages were not indexed by L. due to the Bank's failure to achieve financial and economic indicators, which contradict the Regulations on the remuneration of bank employees, which does not contain provisions that the indexation of wages depends on any results achieved by the Bank. The reference of the court of first instance to the failure of the Bank to achieve financial and economic indicators, in the opinion of the court of appeal, cannot be grounds for refusing to satisfy L.'s claim, since the lack of sufficient funds does not exempt the employer from observing the labor rights of employees.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation recognized the conclusions of the court of appeal as not complying with the requirements of the law.

In accordance with Art. 392 of the Labor Code of the Russian Federation (as amended up to October 3, 2016), an employee has the right to apply to the court for resolution of an individual labor dispute within three months from the day he learned or should have learned about the violation of his right, and in disputes about dismissal - within one month from the date of delivery of a copy of the dismissal order to him or from the date of issue of the work book (part 1). The employer has the right to apply to the court in disputes for compensation by the employee for damage caused to the employer within one year from the date of discovery of the damage caused (part 2). If, for valid reasons, the deadlines established by parts one and two of this article are missed, they can be restored by the court (part 3).

From the above provisions of Art. 392 of the Labor Code of the Russian Federation, in force during the period of L.'s work in the Bank and at the time of her dismissal on September 17, 2015, it follows that the period for an employee to go to court to resolve an individual labor dispute, including those related to non-payment or incomplete payment of wages, was three months. The course of this period begins from the day when the employee found out or should have learned that his right has been violated.

Consequently, when considering the defendant's application to skip L. the three-month period provided for by law for going to court for resolution of an individual labor dispute related to non-payment of wage indexation amounts, such a legally significant circumstance as determining the date from which the plaintiff learned or should have been find out that her right to indexation of wages has been violated.

The appellate court concluded that the plaintiff had not missed the deadline for applying to the court for the resolution of the individual labor dispute, since the employer had violated L.'s right to timely indexation of wages up to her dismissal; accordingly, the employer was obliged to pay L . the amounts of salary indexation due to her on the day of her dismissal, and it is from the date of the plaintiff's dismissal (September 17, 2015) that a three-month period should be calculated for her to apply to the court with a claim to collect wage arrears.

Clause 56 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" collection of accrued but unpaid wages, it should be borne in mind that the employer's statement that the employee missed the deadline for applying to the court in itself cannot serve as a basis for refusing to satisfy the claim, since in this case the deadline for applying to the court has not been missed, since the violation is of a continuing nature and the obligation of the employer to timely and in in full the payment of wages to the employee, and even more of the delayed amounts, is retained throughout the entire period of the employment contract.

The court of appeal did not take into account the given explanations of the Plenum of the Supreme Court of the Russian Federation, according to which, in order to recognize the continuing violation by the employer of the employee's labor rights when considering the case on the employee's claim for the recovery of unpaid wages, a certain condition must be met: the employee's wages must be accrued, but not paid.

The appellate court did not take into account that from January 1, 2015, that is, within the period established by the order of the President of the Bank of March 4, 2014, the indexation of the wages of the Bank's employees was not carried out and, as a result, the calculation of wages, taking into account the indexation of employees The bank, including L., was not produced.

In addition, in making a conclusion about the employer's obligation to pay L. the amounts due to her for the indexation of wages on the day of her dismissal, the appellate court proceeded from his interpretation of the provisions of Art. 134 of the Labor Code of the Russian Federation, believing that this norm establishes an unconditional obligation for any employer, regardless of its organizational and legal form, to index the wages of its employees.

Meanwhile, according to Art. 134 of the Labor Code of the Russian Federation, ensuring an increase in the level of real wages content includes the indexation of wages in connection with an increase in consumer prices for goods and services. State bodies, bodies local government, state and municipal institutions make indexation of wages in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms, other employers - in the manner prescribed by the collective agreement, agreements, local regulations.

Within the meaning of the normative provisions of the above article of the Labor Code of the Russian Federation, the procedure for indexing workers' wages in connection with the rise in consumer prices for goods and services by employers who do not receive budgetary funding is established by a collective agreement, agreements, local regulations. Such legal regulation is aimed at taking into account the peculiarities legal status employers other than budgetary sphere, provides them (in contrast to employers financed from the respective budgets) the opportunity to take into account the entire set of circumstances that are significant both for employees and for the employer. The Labor Code of the Russian Federation does not provide for any requirements for the indexation mechanism, therefore employers who do not receive budget funding have the right to choose any procedure and conditions for its implementation (including its frequency, the procedure for determining the indexation value, the list of payments to be indexed), depending on specific circumstances, the specifics of their activities and the level of solvency.

Based on the literal interpretation of the provisions of Art. 134 of the Labor Code of the Russian Federation, indexation is not the only way to ensure an increase in the level of real content of wages. The obligation to increase the real content of the workers' wages can be fulfilled by the employer also by means of its periodic increase irrespective of the indexation procedure, in particular, by raising official salaries, paying bonuses, etc.

By virtue of hh. 1 and 2 tbsp. 135 of the Labor Code of the Russian Federation, the salary of an employee is established by an employment contract in accordance with the labor remuneration systems in force for this employer. Remuneration systems, including the size of wage rates, salaries (official salaries), additional payments and allowances of a compensatory nature, including for work in conditions deviating from normal regulatory acts in accordance with labor legislation and other regulatory legal acts containing labor law norms.

In view of the foregoing, when resolving disputes between employees and employers who do not receive budgetary funding, regarding the indexation of wages, including when the court considers an application of the defendant (employer) that the plaintiff (employee) missed the deadline for filing a lawsuit with these requirements, the provisions of local normative acts that establish wage systems, the procedure for indexing the wages of employees in organizations that do not receive budget funding.

According to the Regulations on the payment of labor of bank employees, available in the case file, wages and other funds due to the employee are paid in cash, taking into account the actual hours worked, twice a month. The employer notifies each employee in writing (electronic mailing by internal bank mail) about constituent parts the salary due to him for the relevant period, the amount and grounds of the deductions made, as well as the total amount of money to be paid. Indexation of wages is carried out for all employees annually within the budget approved by the Board of Directors for the corresponding financial year. Indexing can be carried out in several stages. The size of the indexation is determined by the President of the Bank. The basis for indexing is the issuance of a corresponding order for the main activity, approved by the President of the Bank. This order is brought to the attention of all employees of the Bank by sending it to the internal bank e-mail (section 2 of the Regulation on the remuneration of employees of the bank).

This local normative act of the Bank establishes a mechanism for indexing the salaries of the Bank's employees, including determining its frequency (annually), the basis for conducting (issuing a corresponding order for core activities), the amount of indexation (determined by the President of the Bank), the method of familiarizing all employees of the Bank with the order on indexation (by sending it out via internal bank e-mail).

The appellate court, in violation of Art. 134 of the Labor Code of the Russian Federation, did not apply the provisions of the local normative act and the order of the President of the Bank dated March 4, 2014 issued in accordance with it, which established the deadline for the next indexation of wages of the Bank's employees (starting from January 1, 2015), the indexation value (by increasing official salaries by 8%) and the conditions for its implementation (if the bank achieves economic indicators based on the results of work in 2014).

As a result, the court of appeal did not establish circumstances that are relevant for the correct resolution of the dispute, including those concerning the moment when L., based on the mechanism of indexation of wages of the Bank's employees that was in effect at the Bank during her work and taking into account the position of the chief legal adviser of judicial the claim department of the legal department should have learned about the violation of her rights.

Were not the subject of investigation by the court of appeal and did not receive legal assessment when deciding to satisfy L.'s claims, the arguments of the Bank's representative, which he cited during the proceedings in the courts of first and appeal instances, that the Bank actually ensured an increase in the level of real wages of its employees, including the plaintiff, and also that the indexation of the salaries of the Bank's employees based on the performance results for 2014 was not carried out due to the Bank's failure to achieve economic performance indicators, which corresponded to the indexation mechanism established by the employer in the local normative act in compliance with the provisions of labor legislation. These arguments contained in cassation appeal Bank, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation recognized it as reasonable and subject to verification by the court of appeal when the case was re-examined.

Determination of N 18-KG17-10