Home Grape A controversial situation is often not caused. Dispute and controversial situation in international law. When pre-trial settlement of disputes is possible

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A controversial situation is often not caused. Dispute and controversial situation in international law. When pre-trial settlement of disputes is possible

Introduction ................................................. .................................................. .... 3

1. Dispute ............................................... .................................................. ..........4

2. Ethics of resolving controversial issues ............................................ ...........12

3. Ethics of resolving conflict situations ............................................ ...15

Conclusion................................................. ................................................. 24

Bibliography............................................... ............. 25

Introduction

Everyone knows what a dispute is. And for the majority, this word evokes unpleasant associations. People who start a dispute or, against their own will, fall into it, usually strive to quickly resolve it in the best way for themselves. Few are interested in an argument on its own. But how to bring the dispute to a safe end? The head (manager) of the enterprise must know the answer to this question. Of course, in the simplest cases, a person, finding himself in a disputable situation, can navigate what to do without special knowledge. But when the situation is rather complicated, it is far from superfluous to intervene the head of the enterprise with knowledge of various methods of resolving disputes from an ethical point of view.

The purpose of writing this work is to study the objective and subjective factors prompting a dispute in a team and ethical resolution of the dispute.

A number of Russian scientists have devoted their works to the study of the causes of the dispute. Among them are: Karmin A.S., Viktorov V.I., Allakhverdova O.V. other.

Dispute

In interpersonal, business and social relations, controversial situations often arise, for the successful resolution of which it is necessary to comply with certain ethical standards.

Dispute, As a rule, it includes evidence: one person proves the legitimacy of any thought, the other refutes, i.e. proves its illegality. The thought, to substantiate the truth or falsity of which the proof is built, is called thesis of the proof. The whole proof should be built around the thesis.

To identify a thesis, it is usually sufficient to do the following:

1. If possible, bring to full clarity the concept of the thesis (the main idea of the dispute). To do this, there are two means: to define the concept on their own (which is not always possible), to use a definition from any serious book or encyclopedic dictionary. It so happens that different authors interpret the same concept differently. Then you should choose the optimal, from your point of view, concept, but at the same time be aware that there are other definitions. It is also advisable to memorize one or two definitions of the concept by heart, having previously understood them well.

2. To find out (for the clarity of the subsequent reasoning) whether one subject of this class is discussed in the thesis or about all subjects without exception. Or maybe only about some (most, almost all, many, a few)? Meanwhile, in many of the judgments presented in proof, this is precisely what is lacking in clarity. For example, if a person says: "People are evil," then his thought is not clear: are all people, without exception, evil or most of them? Without knowing this, one cannot prove or disprove the thesis itself. In such cases, the thesis is said to be indefinite in quantity.

3. Find out what kind of judgment we consider the thesis: undoubtedly true, undoubtedly false, or only probable to a greater or lesser extent. It is likely that the thesis seems to us simply possible: there are no serious arguments for it, but there are no arguments against it either. Meanwhile, the clarification of these differences (differences in the degree of modality, as logic calls them) is usually the least worried about. For a poorly educated mind, whatever thought you take, it is either reliable or undoubtedly false. Therefore, if a person deliberately tries to find out whether a thought is reliable or only probable, and attaches great importance to this difference, then this should be considered as a sign of the education of the disputant.

Evidence errors are mainly of three types:

a) in theses;

b) in the arguments or grounds for the thesis;

c) in connection with arguments and theses, that is, in reasoning.

Errors in theses consist in the fact that we undertook to prove one thesis, but in fact we have proved or are proving another. Sometimes this is a thesis that is similar to the present or somehow related to it, often without any visible connection. This mistake is called a deviation from the thesis, which is encountered at every step in resolving controversial issues. For example, the interlocutor wants to prove that the foolish person is stupid, but proves that the foolish person is unreasonable. Sometimes the disputant sees that he cannot prove or defend the thesis and he deliberately replaces it with another so that the opponent does not notice. This is called thesis substitution.

Errors in reasoning are of two types: false and unfounded. In the first case, the basis of the argument is a knowingly false thought, in the second - the argument still requires proper proof.

Errors in the connection between the grounds and the thesis (errors in reasoning) consist in the fact that the thesis does not "follow", does not follow from the grounds, or it is not clear how it follows from them.

The starting point of every correct dispute should be the establishment of the point of contention. The latter is usually achieved by the fact that we, in contrast to the erroneous view of the opponent at a particular point, put forward our view that is incompatible with him as true. In other words, an antithesis is put forward in opposition to the thesis. The struggle between these two opposites is the essence of the most important right debate.

It is necessary to strive to ensure that the antithesis is laconic and expressed as simply as possible. Composite antitheses, expressing two or more thoughts, entail a lot of inconvenience, bring extreme confusion and uncertainty into the solution of controversial matters. To achieve results in a dispute, it is advisable to dismember them into compound elementary judgments and consider each point of disagreement separately.

If a point of contention is not clearly established (or a difficult point has been established), then the dispute is often essentially blind. The wrong choice of disagreements can often decide the fate of the entire dispute without revealing the truth.

Correctly constructed proof of the thesis (or antithesis) is of paramount importance in a dispute. Nevertheless, very often the opponent is more interested not in whether our thesis is true or false, but how correctly it can be proved or substantiated. The lack of correctness in the proof of the thesis is often mistakenly (or deliberately) taken by the opponent for its falsity. This is an obvious fallacy: an objective truth does not cease to be true if someone could not prove it correctly.

In a dispute between two parties, the defender of the thesis is usually in a more difficult position. The choice of a dispute over a thesis or a dispute over a proof of truth belongs to the attacker, that is, the opponent. By putting forward an antithesis, he makes the thesis itself a question of controversy. By demanding a proof of the thesis, if it is not given, he thereby proposes a dispute over the proof. The advocate of the thesis is usually left with one of two things: to accept the proposed dispute or to refuse it.

This feature of "attack" in skillful hands provides certain advantages. The attacker can choose the form of dispute that is easier and more profitable for him and more difficult for the opponent. In such conditions, it is much better for the defender of the thesis to direct the opponent into the mainstream of the dispute over the thesis, to force him to provide evidence of the falsity of the thesis. Then the opponent's business in many cases may be lost.

Disputes are inherently focused and formless. In the first case, opponents constantly have in mind a controversial thesis, and all their reasoning is aimed at proving or refuting this thesis. The formless dispute does not have such a focus. It begins about a thesis. When exchanging objections, opponents seize on some argument or particular thought and argue over it, forgetting about the initial thesis. Then the controversy flares up about the third thought, and the dispute does not end anywhere, but turns into separate local fights. This is the lowest type of all disputes.

A dispute can be between two persons. This is a simple, lonely argument. However, often a dispute is conducted between several persons, each of whom enters into it either from the side of the defense or from the side of the attack. This is a complex debate. Correctly leading the latter is much more difficult. Meanwhile, a complex dispute can be extremely important, especially in those cases when it is a means of getting closer to the truth. In a complex dispute, an opportunity is provided to listen and weigh all or many of the arguments both in favor of the thesis and against it, and to better assess their comparative strength. Of course, in order to correctly make such an assessment, in order to take all possible benefit out of the dispute, a good, healthy and clear mind is necessary in itself, together with knowledge of the matter under discussion. Without a difficult dispute, even such a mind would rarely be able to quite correctly and confidently evaluate the thesis. And so everywhere: in science, in public life, in interpersonal relations. The more people of outstanding intellect and knowledge participate in a complex dispute, the more persistent it is, the more important its thesis, the more interesting and valuable the results of the dispute can crystallize.

A dispute with many participants is capable of "working out" by itself only in those cases when all participants in the dispute have good discipline of the mind, the ability to grasp the main thing, and an understanding of the essence of the problem. In other cases, a dispute manager is required. Practice shows that good dispute leaders are extremely rare. Often a complex dispute is conducted so illiterately that it inspires dislike for joint discussion of issues.

DISPUTE WITH OBSERVERS.

Both simple and complex disputes can occur with or without listeners. Sometimes this difference has a decisive influence not only on the nature of the dispute, but also on its outcome. The presence of listeners, even if they are silent and do not express their approval or disapproval in any other way, psychologically strongly affects opponents, especially those who are proud, impressionable, and nervous. Victory in front of listeners greatly flatters pride, while defeat becomes much more annoying and unpleasant. Hence the greater persistence in opinions, greater fervor and a tendency to resort to various tricks.

In a dispute with listeners, one has to adapt not only to the opponent, but also to the listeners.

There are two main types of listeners. Some - with preconceived opinions, likes and dislikes. They will support "their" chosen one, catch his thoughts and not listen or obviously biasedly listen to his opponent. Others - do not have any opinion on this issue, at least a firm opinion. They will judge the course of the dispute mainly by external signs: authority, the confident tone of one, the timidity of the objections of the other, the attitude to the dispute of "experts on the subject."

For both the former and the latter, thought works very little. This passivity of thinking among the majority of listeners of the dispute is observed everywhere - from rally discussions to learned societies.

External and internal psychological factors play an important role in a dispute in front of the audience: an impressive manner of speaking and holding, self-confidence, aplomb. A timid, shy person, especially not accustomed to arguing in front of numerous outside listeners, always loses a priori in comparison with a self-confident, even somewhat arrogant opponent.

WHAT QUALITIES THE PARTICIPANTS IN THE DISPUTE SHOULD HAVE.

Quick thinking gives a huge advantage in an argument. Whoever thinks more quickly does not go into his pocket for a word. He is resourceful, witty, has a sense of humor and, with an equal intelligence and stock of knowledge, always overcomes the enemy.

The highest, noblest and most beautiful form of controversy is that in which, in essence, a joint search for truth takes place. In its pure form, this type of dispute is rare, moreover, only between intelligent and calm people. When people who view an argument as a means of clarifying the truth converge, their conversation usually proceeds in a calm and dignified tone. In addition to the undoubted benefit, it brings true pleasure and satisfaction: here is the broadening of horizons; and advancing the truth towards its solution; and subtle, calm stimulation of mental struggle; and some kind of special aesthetic, intelligent pleasure. Even if someone had to “surrender their positions,” abandon a previously defended point of view, the resulting unpleasant aftertaste can completely recede into the background in comparison with the positive impression of this dispute.

We need a very differentiated approach to the question of choosing the personality of the opponent in the upcoming dispute. The wisdom of all nations warns against disputes with fools. Such an argument is never successful. You should also not argue unnecessarily with an impudent and rude person. Undesirable opponents also include obvious sophists, with whom it is possible to argue unnecessarily only when we know that we are able to teach them a lesson by giving them verbal bashing.

There are people who are incapable of arguing correctly. This is how M.Yu. writes about this type of debaters. Lermontov: “I could never argue with him. He does not answer your objections, he does not listen to you. As soon as you stop, he begins a long tirade, apparently having some connection with what you said, but which in fact is only a continuation of his own speech. "

Even worse is the hysterical debater. He constantly forgets the topic of the dispute, grabs at individual words, rushes from thought to thought, interrupts the opponent, literally does not allow a word to be said, and when he tries to insert a word, he shouts: "You do not let me speak." He constantly throws out rude, but unsubstantiated accusations in excitement: "You yourself do not understand what you are saying, you are inconsistent, you do not listen to me, but you say God knows what!" In the end, the stunned, bewildered, sometimes offended "enemy" who had the imprudence to get involved in such a dispute leaves, leaving the battlefield to the "triumphant winner".

Sometimes a dispute is imposed, provoking a quarrel. Of course, often an honest person must courageously go into such a dispute, although he may be expected to be torn to pieces by pigs. But no one should do this unnecessarily.

Sometimes the opponent is such that one can argue with him, but he will not understand the proof of the thesis. The more ignorant and stupid a person is, the less able he is to understand and accept any complex thought or difficult proof. Paradoxically, such an inability is usually accompanied by deep complacency, confidence that the truth is "in his pocket", that all this is very simple and he has long known well.

The choice of arguments in the proof of the thesis is determined by the tasks that we pose in the dispute. Wanting to check the truth of any thought, we choose the strongest, from our point of view, arguments in favor of it. Wanting to convince someone, we give the reasons that should seem the most convincing to the interlocutor. Wanting to defeat the enemy, we are looking for arguments that are most capable of putting him into difficulty. In a debate conducted to persuade listeners, we adapt our choice of arguments not so much to the opponent as to the listeners. Failure to take the task of the argument into account when choosing arguments often leads to failure. Here it is imperative to reckon with the level of development of the enemy, his specialty, psychology. Then you should not be surprised that an argument so obvious and strong to yourself is not noticed, rejected, or even ridiculed by the adversary.

A quick change of thoughts, especially complex ones, when arguing in front of an average audience is completely unacceptable. People who are not used to thinking deeply are only able to trace the gradual change of arguments. Each proof should be presented separately, discarding, if possible, all secondary details. Life comparisons are needed, even if they are rough, to create a visual image that is understandable.

Ethics of dispute resolution

Business communication is a necessary part of human life, the most important type of relationship with other people. Ethical norms are one of the main regulators of these relations. Depending on how a person understands moral norms, what content he puts into them, he can facilitate his business communication, make it more effective.

Business relationship is a complex multidimensional process of developing contacts between people in the service sphere. Its members act in official statuses and are focused on achieving goals, specific tasks. A specific feature of the named process is regulation, that is, submission to the established restrictions, which are determined by national and cultural traditions, professional ethical principles. Communication between people is a prerequisite in the process of business relations.

Ethics- the doctrine of morality, ethics.

Dispute- this is a characteristic of the process of discussing a problem, a method of its collective research, in which each of the parties, arguing (defending) and refuting (opposing) the opinion of the interlocutor (adversary), claims to have a monopoly on establishing the truth.

In the process of conducting a dispute, in an explicit or hidden form, some contradiction which allows you to formulate problem... In the course of collective condemnation, either the problem is resolved, or each of the opposing sides remains unconvinced.

Conflict properties: the contradiction between interests, values, goals, motives, roles of subjects; confrontation between the subjects of the conflict, the desire to harm the opponent; negative emotions and feelings towards each other.

The structure of the conflict- these are the parties or participants in the conflict (the number of participants and the scale of distribution); the subject of the conflict (because of what it arose); representations of the parties to the conflict about themselves, about the opposing sides.

Conflict stages: pre-conflict situation; conflict interaction; conflict resolution. Another variant:

1) the stage of expectation (no certainty, psychological discomfort, uncertainty about the future);

2) the stage of conscious, but not expressed disagreement (everyone is afraid that the lack of information is a sign of trouble for him, there is a need to determine prospects for himself);

4) the stage of open discussion (discussion of the current situation, “enemies” cause hostility, their innocent actions generate indignation, tension in relationships and mutual irritation builds up);

5) the stage of open conflict (as the conflict develops, the degree of irreconcilability of the warring parties and their views on its possible development increases).

Conflict resolution options:

1. Complete antagonism. The parties see a way out of the conflict according to the principle: "Victory or defeat!"

2. Assignment. Accept any decision of the partner (senior management).

3. Evasion (avoidance). Isolation and indifference: no active opposition, no active cooperation. Any push can exacerbate the conflict again.

4. Peaceful coexistence (joint work is possible, and controversial issues are simply not discussed).

5. Compromise. Both mutual agreement and mutual concessions are possible.

Joint problem solving, joint work is the best option.

Factors that prevent the emergence of conflicts:

1) correct selection and placement of personnel, taking into account professional and psychological qualities;

3) positive traditions in the team, which are carried by most of the employees.

Any conflict is resolved with the least loss and easier if the preconditions of the conflict are analyzed in advance and if it is constructively eliminated in the early stages.

Measures and means prevention and elimination conflict:

1. Strict adherence to the basic rules of discussion:

Your opponent is your partner who is looking for a reasonable way out of the situation with you.

Try to understand your opponent's goals and interests.

Everyone can have their own opinion. You are not necessarily absolutely right.

Draw conclusions by supporting them with facts.

Listen and have the strength to communicate unpleasant arguments.

Discuss the personal characteristics of your opponent less.

Maintain discipline in the discussion and give the opportunity to express your own opinion to your opponent.

2. Attention should be paid to the analysis of possible contradictions, prerequisites for the conflict, the definition of possible opponents and their likely positions:

Special attention to what unites opponents;

Both parties depend on each other and need each other;

Understand the essence of the main conflict, remove the superficial, emotional components that complicate the conflict;

Creation of conditions for joint work, where opponents get to know and help each other better;

Avoiding petty analysis of collisions and quarrels, so as not to be distracted from the main task.

N.V. Plastinina,
legal adviser of OJSC "ALFA-BANK"
(operational office "Saratov")

Many employers, especially those associated with the sale of goods and services, the production of products, in order to constantly motivate employees, use a salary-bonus system of remuneration. With the payment of salary as a fixed and constant part of the salary, questions do not arise. But with the accrual and payment of bonuses, questions arise very often. At the same time, the questions are quite varied: from the amount of the bonus due, the frequency of its payment to the question of whether or not the employer has the very obligation to calculate and pay the bonus.

According to the provisions of Article 191 of the Labor Code of the Russian Federation, the premium refers to one of the types of incentives for work used by the employer. In accordance with article 135 of the Labor Code of the Russian Federation, the remuneration system, including the size of tariff rates, salaries (official salaries), additional payments and allowances of a compensatory nature, including for work in conditions deviating from normal, a system of additional payments and bonuses of a stimulating nature and a bonus system , are established by collective agreements, agreements, local regulations in accordance with labor legislation and other regulatory legal acts containing labor law norms.

The prize, in contrast to punishment (the list of types of punishments is limited by article 192 of the Labor Code of the Russian Federation), does not have restrictive characteristics. When regulating the issue of bonuses, labor legislation does not establish either maximum or minimum amounts of bonuses; the frequency of its payment is not indicated (maximum and minimum); there are no restrictions on positions or specialties for the payment of bonuses. If, when applying disciplinary sanctions, the employer is limited by both the types of penalties and the parameters of the compliance of the applicable penalty with the committed misconduct (see the clarifications 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" (hereinafter - the resolution of the Plenum of the RF Armed Forces No. 2), then in the payment of the bonus to the employer, he is practically free: he can give bonuses both at the end of the quarter and at the end of the month, or he can provide for bonuses only at the end of the year; can provide for bonuses only for business units, bypassing the administrative and service personnel; can strongly to differentiate the size of the bonus, both by position, and from seniority or other indicators.However, despite such wide opportunities for the employer, litigation over the payment of bonuses (other incentive bonuses) do take place.Moreover, they are not so rare. Consider some types of grounds (reasons) for the The discussion of disputes on the payment of bonuses, options for court decisions on such disputes, as well as options for eliminating the prerequisites for the occurrence of labor disputes on the payment of bonuses, and / or eliminating the circumstances that allow the courts to make decisions on disputes not in favor of the employer.

First of all, let us distinguish between the types of bonuses:

a bonus for production indicators, which is associated with the implementation of some planned indicators;
an award dedicated to certain events: holidays (new year, February 23, March 8), memorable dates, dates celebrated within the organization (the date of opening a branch, a separate division), etc. In the second case, the premium is charged in any case, regardless of production indicators.

Ground of dispute

Failure to pay the bonus by the employer, the amount, conditions for calculating and the frequency of payment of which is provided for by the employment contract.

Position of the court

Option 1: if, in accordance with the employment contract, the payment of bonuses is mandatory upon achievement of certain results / indicators, the employer is obliged to pay it to the employee.

Option 2: if, in accordance with the employment contract, the payment of the bonus is made not depending on the indicators, but in accordance with some event (February 23, March 8, etc.), the employer was obliged to pay it.

in employment contracts, provide only references to a collective agreement, a local act establishing bonuses for employees. The wording in the employment contract with the following content will be quite successful: “The employer, in the cases and in the manner established by the legislation of the Russian Federation, the Regulations on the remuneration of workers, the Regulations on employee bonuses, can make additional payments of a compensatory and incentive nature, including bonuses, and also make other payments stipulated by local regulations of the employer. In this case, payments are made using the regional coefficient and percentage mark-up ... ";

in a collective agreement, a local act of the organization, use streamlined wording that allows, under certain conditions, without changing the provisions of this act, not to accrue bonuses.

An example from judicial practice

The Judicial Collegium for Civil Cases of the Volgograd Regional Court, by a ruling dated September 17, 2009 in case No. 33-9218 / 2009 *, upheld the decision of the Dzerzhinsky District Court of Volgograd dated 05/27/2009 to recover from the Volgograd city public football organization in favor of K. bonus in the amount of 280,000 rubles, monetary compensation for the delay in payment of bonuses in the amount of 12,537 rubles 78 kopecks, compensation for moral damage in the amount of 3,000 rubles. Satisfying the claim, the court reasoned its findings as follows. From clause 7 of the employment contract of 15.04.2008, concluded between K. and the city public football organization, the plaintiff is paid a bonus of 20,000 rubles for each victory in the Russian championship of the second division. In violation of the terms of the employment contract, upon dismissal, the plaintiff was not paid a bonus for fourteen victories in the matches of the Russian championship of the second division. The facts of victories are certified by the protocols of the Russian Football Championship. The court came to a well-founded conclusion about the violation of the terms of the employment contract by the defendant and ruled the above decision.

* Volgograd Regional Court [Electron. resource]. Access mode: http://obkud.vol.sudrf.ru, free.

Ground of dispute

Failure to pay bonuses in connection with the dismissal of an employee.

Position of the court

Failure to pay a bonus to an employee for the past period for which the bonus is accrued, in connection with his dismissal, violates the rights of the employee. Such non-payment is possible only when calculating not a bonus for performance indicators, but a bonus timed to a memorable date, if this date comes later than the day of dismissal.

How to avoid a disputable situation in the considered cases:

make payments due to an employee in connection with his dismissal, on the day of dismissal, as required by article 140 of the Labor Code of the Russian Federation.

An example from judicial practice

The Judicial Collegium for Civil Cases of the Krasnoyarsk Regional Court ** the decision of the Central District Court of the city of Krasnoyarsk dated 03.12.2009 on V.'s refusal to satisfy claims against the Office of the Judicial Department in the Krasnoyarsk Territory on the recovery of bonuses and compensation for moral damage was canceled, the case was sent for new consideration ... The decision of the lower court was canceled due to the incomplete clarification of the legally significant circumstances by the court, the case was sent for new consideration. The conclusion of the court of first instance that the bonuses based on the results of the work for the quarter are not unconditional, are paid in the presence of savings in the wages fund and only to those employees who are engaged in the performance of especially important and complex tasks, and the chairman of the court had the right to independently assess the personal contribution of each civil servant and decide not to pay V. the quarterly bonus, was recognized by the judicial board erroneous.

** Krasnoyarsk Regional Court [Electron. resource]. / Review of the cassation and supervisory practice of the Judicial Collegium for Civil Cases of the Krasnoyarsk Regional Court for the I quarter of 2010. Access mode: http: //kraevoy.krk. i sudrf.ru/modules.php?name=docum_sud&rid=4, free.

In accordance with part 3 of article 37 of the Constitution of the Russian Federation and article 3 of the Labor Code of the Russian Federation, everyone has equal opportunities to exercise their labor rights. No discrimination of any kind is allowed when establishing the terms of remuneration (part two of Article 132 of the Labor Code of the Russian Federation). The plaintiff actually worked the period for which other employees were awarded a bonus. The defendant has not presented any evidence of the absence of her personal contribution to the performance of the work, bad faith or inefficiency in the performance of official tasks.

Ground of dispute

Failure to pay bonuses due to non-work by the employee for the reporting period of the specified amount of working time (for example, when paying bonuses based on the results of work for the quarter, the employee was disabled for two weeks from the specified period or was on vacation).

Position of the court

Option 1: if bonuses are made based on the results of production activities, the achievement of certain results / indicators, the non-accrual of bonuses can take place only if a local act, collective agreement, labor contract directly provides for a reduction in the amount of bonuses in proportion to the time the employee is absent in the reporting period. However, non-payment of the bonus is completely possible only if the employee was absent from work for the entire reporting period for which the bonus is charged.

Option 2: if bonuses are paid regardless of production indicators (for example, for holidays or memorable dates, professional holidays), non-payment of the bonus is illegal, since its accrual and payment is not made dependent on the employee working time for certain periods.

How to avoid a disputable situation in the considered cases:

Provide in the collective agreement, the local act of the organization, in other acts regulating the procedure for calculating and paying bonuses, clear parameters under which the bonus is charged or not charged. A good example is the order of the Federal Forestry Agency dated December 21, 2009 No. 524 "On the approval of the lists of target performance indicators and criteria for evaluating the performance of federal state institutions subordinate to the Federal Forestry Agency, indicators, conditions and procedure for awarding bonuses to their leaders", which provided in paragraph 8 that ".. .the bonus is calculated for the hours actually worked, which do not include:

stay on the next main or additional vacation;
time of incapacity for work. ".

An example from judicial practice

The Judicial Collegium for Civil Cases of the Ulyanovsk Regional Court, by a ruling dated December 7, 2010 in case No. 33-4298 / 2010 *, the decision of the Zavolzhsky District Court of the city of Ulyanovsk dated October 27, 2010 on the partial satisfaction of S.'s claims against the LLC was left unchanged. With regard to the claims for the recovery of the premium for the disputable period, the court, refusing to satisfy them, concluded that the deprivation of the claimant of the premium does not indicate the application of disciplinary punishment to her. In S.'s employment contract, the salary is set at 90 rubles. for 1 hour + + bonus - 50 percent of the accrued salary, it also contains the provision that the salary consists of an official salary and a bonus, which is approved by the general director. By virtue of clause 4.1. Regulations on bonuses and material incentives for employees of LLC, the deprivation of an employee of the bonus in whole or in part is carried out on the basis of an order (order) of the General Director (Deputy Director). As the court established, clause 4.2.1 of the Regulation on bonuses and material incentives for employees of LLC, the basis for depriving the employee of the bonus is being on sick leave for more than 2/3 of the current month (20 days). During the controversial period, S. was on sick leave several times, and the last time on maternity leave, that is, more than 2/3 for several months in a row. In connection with the foregoing, the court did not find grounds for recognizing the orders not to accrue a premium to the plaintiff unlawful, and therefore did not find grounds for additional accrual of wages for the disputed period.

* Ulyanovsk Regional Court [Electron. resource]. Access mode: http://uloblsud.ru/index. php? option = com_content & task = view & id = 192 & I temid = 170 & idCard = 22336, free.

Ground of dispute

Depreciation for a disciplinary offense.

Position of the court

Depreciation as a punishment for a disciplinary violation is unambiguously perceived by both the labor inspectorate and the court as a violation of labor legislation by the employer.

How to avoid a disputable situation in the considered cases:

1) use laconic wording in the provisions of the collective agreement, local acts of the organization, in labor contracts. A much more flexible provision will be in the norm of the local act, which provides for the right of the employer to reduce the amount of the bonus down to zero for failure to achieve certain indicators or the presence in the reporting period of disciplinary sanctions that have not been lifted, than the word "deprivation". As an example, we can cite the same order of Rosleskhoz dated December 21, 2009 No. 524 "On approval of the lists of target performance indicators and criteria for evaluating the performance of federal state institutions subordinate to Rosleskhoz, indicators, conditions and procedure for awarding bonuses to their leaders", which established in paragraph 6 of the provisions on that “... the bonus to the head of the Institution may be reduced or not paid in full in the event of:

violations of financial, tax discipline, violations in the implementation of purchases for the needs of the Institution;
violations of labor, performance discipline;

For inappropriate use of federal budget funds, established based on the results of inspections by supervisory authorities, the head of the Institution is completely deprived of the bonus. ";

2) not to use in the collective agreement, acts regulating the procedure for bonuses, the word "depriving" as a kind of fine. Article 192 of the Labor Code of the Russian Federation contains a complete list of disciplinary sanctions provided for by the Labor Code of the Russian Federation. Other disciplinary sanctions can only be provided for by acts specified in the same article, for example, discipline charters. But even in these documents, the concept of "depriving" is not found.

An example from judicial practice

Example 1
The Langepassky City Court of the Khanty-Mansiysk Autonomous Okrug - Ugra of the Tyumen Region, having considered in an open court hearing K.'s appeal against the magistrate's decision on K.'s claim against LLC to cancel the order for disciplinary punishment and recover the unpaid premium *, established the following.

* Sverdlovsk regional public organization "Consultative council of regional trade union associations" [Electron. resource]. Access mode: http: // www. uraltradeunion.ru/sudpraktika/disciplina/ apellyacionnoe_resenie_keibach.html, free.

By order of LLC No. 444 dated 15.05.2006 K. for violation of labor discipline was reprimanded, and K. was not presented for bonuses based on the results of work for a month. By the decision of the magistrate, K.'s claims were denied. By the court of appeal decision of 03.10.2006, this decision was canceled in part. However, the decision of the court of first instance in terms of K.'s refusal to satisfy the claims against LLC to cancel the order of 15.05.2006 No. 444 "On Punishment" in terms of his deprivation of bonuses and collection of the withheld premium from the defendant in his favor was upheld. Having studied the materials of the case, the internal local acts of the defendant, the court concluded that the deprivation of the plaintiff of the prize did not constitute a disciplinary punishment, as the plaintiff argued. Non-accrual of bonuses is provided for by the System Regulations on Bonus Payments to employees of the production personnel of LLC for violations in the form of non-compliance with the requirements and rules for labor protection and safety and other types of violations.

What is IBAS and who can use its services

The organization accepts claims for bets made at regulated bookmakers. Also, at its discretion, the service may consider a dispute over gambling operators registered in other jurisdictions. The second important condition is the bookmaker's presence in the IBAS register, as well as the consent of the gambling company to accept and execute the decisions of the organization.

The UK Gambling Commission obliges its licensees, in the event of non-resolution of disputes with clients, to submit claims for consideration to a third independent party, one of which is a non-governmental institution IBAS. You can find out the gambling operators registered in the system by the corporate logo of the organization located in the basement of the gaming sites. Also, on the service web page, you can see the register with an up-to-date list of bookmakers (ibas-uk.com/registeredOperators.php?start=0-9).

Today, the IBAS register includes over a thousand gambling companies. The most famous of them, and many others.

The institution is regulated by the UK Gambling Commission and the Gambling Act 2005. The Commission recognizes the methodology used by the service and does not have any impact on its operation, and also does not provide it with financial support.

IBAS operates in several gambling sectors:

game centers,
betting exchanges,
bookmaker offices,
online bookmakers,
sweepstakes,
bingo clubs,
casino,
charity lotteries,
lotteries,
slot machines,
dog racing.

IBAS consists of professional specialists from various fields. There are no fees or commissions for claimants. However, during the consideration of the dispute, both the player and the bookmaker may incur financial costs. If, after making a decision, the gambling operator refuses to accept it, then it is automatically excluded from the system register. Then the organization will send a notification to the regulator about the cancellation of the registration of this bookmaker, indicating the reasons.

In fact, the services of the Independent Betting Adjudication Service can be used by any player, regardless of his location and citizenship, by filing a dispute with the organization in relation to a sports betting operator that meets the conditions of IBAS. The organization will require the provision of the necessary materials in writing from both parties, which would explain the fact of the dispute. Both parties to the conflict assume responsibility for the accuracy of the submitted materials. In accordance with the Data Protection Act of 1998, the service complies with the necessary requirements for the custody of documents.

The starting point for the consideration of the dispute is the rules of gambling by the sports betting operator. When the bettor bets in the bookmaker, he agrees that the coupon will be calculated based on the rules of the gambling company. If, for any reason, the bookmaker does not have rules governing the dispute incident, then IBAS employees establish their own rules based on the standards and practices of the betting industry.

For example, one of the objects of dispute may appear illegible numbers or conditions of the bet, written by the player in a hurry on the coupon, which are subsequently interpreted by the operator in his own way. This also includes vague conditions for the bettor to provide various bonuses and promotions. Another example of controversy is the interpretation of the start of the Formula 1 race. Some bookmakers specify in the rules that the race begins with a warm-up lap. However, the FIA (International Automobile Federation) rules state that the race starts after the cars return to the grid after the warm-up lap. If there are no clear instructions on this incident in the rules of the gambling operator, then IBAS is guided by the FIA regulations.

Bookmakers are obliged to independently consider claims from players, before the latter contact the institution. As soon as the gambling operator realizes that the dispute cannot be resolved, it recommends that the client send a complaint to the organization. The term for filing a dispute is no more than 6 months from the date of the conflict between the parties. However, as an exception, at its discretion, the service may accept a statement of dispute with a longer validity period.

How is the filing and consideration of an application in IBAS

On the ibas-uk.com website, in the “Adjudication Form” section, the applicant player fills out the fields indicated by the organization in detail. It is necessary to attach to the application all the materials that the bettor has on hand: screenshots or scans of bets, documents, links and footnotes to the rules, and so on.

After that, IBAS will contact the bookmaker's office in order to provide all the necessary documents on this dispute. Subsequently, the interaction between the organization and the parties to the dispute is carried out only in writing. The institution may refuse to investigate if it suspects the player or operator of intentionally misleading the organization or if the documents provided by one of the parties prove to be fake.

The term for considering a dispute is always individual and depends on the complexity of the conflict situation. After all the necessary information has been collected, the materials are submitted for consideration by a special commission. The parties can end the dispute at any time before the organization makes a decision if they come to a compromise. In this case, the service will require the player to confirm this fact in writing.

The result of the decision on the dispute is sent simultaneously to both parties in writing. Within 40 days from the date of the IBAS decision, the dissenting party may appeal, provided that it has convincing evidence that the decision may be wrong.

For the period from October 1, 2015 to September 30, 2016, the Independent Betting Adjudication Service made and rendered decisions on 5828 claims. It was refused in 1782 cases. The most frequent requests are:

terms of bonuses and promotions - 2014,
calculation of rates - 1528,
payments - 999,
identification of players - 657,
late bets - 571,
failure in the bookmaker's system - 357,
withdrawal mechanism - 300,
poor quality service - 286,
fixed matches / cheating - 257,
social responsibility - 228,
financial transactions - 214.

Types and causes of disputable situations

Studying the nature of the dispute, many opinions arise about its characteristics and forms. Often, a dispute is viewed as a procedure in which one proves that some idea is correct and the other that it is wrong. In simple terms, a dispute is an exchange of opinions in which each participant defends his point of view and refutes the opinion of the opposite side.

But such a description is too narrow and does not fully reflect the very essence of the dispute.

And, most likely, because in a dispute the main goal is not to prove the truth of one's own opinion, but to assert it, the validity of one's point of view on the controversial issue that has arisen. So the statement that the truth is born in a dispute is too strong. Most often in a dispute, the proof of the truth, as they say, and "does not smell." As life practice shows, disputes are conducted in disorganized and disordered forms. Disputants in most cases do not try to find the truth, but defend and leave only their own ideas and points of view under consideration.

According to researchers, the generic concept of a dispute may be the concept of an exchange of opinions. In a dispute, the exchange of views is most often of a conflicting nature.

The main characteristics of the dispute as a type of business communication

1. The subjective structure of the dispute is characterized by the presence of at least two subjects, one of which is more appropriate to call the proponent, and the other - the opponent.

2. The subjects of the dispute are equivalent in their role in the exchange of opinions, in the degree of activity, in the types and forms of direct and feedback with each other.

3. The subject of a dispute is a controversial provision, about which each party has its own opinion, called a position or thesis.

4. The difference in the positions of the parties, expressed by the opinions on the disputed position, makes the dispute a discussion at the level of the phenomenon, and not at the level of essence. Therefore, any dispute is a rather superficial discussion of a controversial position.

5. The positions of the parties contradict each other, and most often have an openly negative character.

6. The procedure for the exchange of views in accordance with the mutually exclusive characteristics of theses is expressed in the struggle of opinions.

7. The struggle of opinions in a dispute reaches the highest form - a dispute or a war of opinions, a feature of which is the proof by each side of the truth of its thesis and the falsity of the opponent's thesis. Accordingly, every argument in this type of argument is a denial of the opponent's argument. The nature of the discussion takes the form of refutation, rejection, denial, rejection, elimination.

8. The subject area of discussion of a controversial issue is usually not clearly defined. Its vagueness is also due to the fact that the dispute is not about the essence, but about the phenomenon, about the surface characteristics of the object. In fact, in a dispute, the struggle is waged not on grounds, but on opinions. A change in the subject field of discussion, as a rule, characterizes not its development, but various disordered and unpredictable metamorphoses.

9. Dispute as a type of business communication is not regulated either in procedural, spatial or temporal terms.

Types of controversial situations.

By the nature of the objects about which disputes arise:

> resource;

> status-role;

> sociocultural;

> ideological, etc.

By the direction of influence and distribution of powers:

> “Vertically” (the boss is a subordinate, a superior organization is a subordinate organization);

> “Horizontally” (between managers of the same rank, between colleagues).

There are also disputes:

> explicit and latent;

> constructive and destructive;

> short-term and long-term;

> realistic and unrealistic;

> local, regional and international, etc.

However, each of the above situations is not considered final and absolute and therefore is relative and conditional. The main purpose of the classification is to reveal a disputable situation, to help substantiate it and find adequate ways to resolve it or (even better) prevent it.

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