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Dispute.
Disputes often arise in interpersonal, business and public relations, for the successful resolution of which certain ethical standards must be observed.
Dispute, as a rule, includes proof: one person proves the legitimacy of a thought, the other refutes, i.e. proves it wrong. The idea, to substantiate the truth or falsity of which a proof is built, is called proof thesis. The entire proof must be built around the thesis.
To identify the thesis, it is usually enough to do the following:
1. If possible, bring to full clarity the concept of the thesis (the main idea of the dispute). For this, there are two means: to define the concept on your own (which is not always possible), to use the definition from some serious book or encyclopedic dictionary. It happens that the same concept is interpreted differently by different authors. 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 a concept by heart, having previously understood them well.
2. To find out (for the clarity of the subsequent reasoning) whether the thesis is talking about one subject of a given class or about all subjects without exception. Or maybe only about some (most, almost all, many, a few)? Meanwhile, in many of the judgments cited in evidence, this is precisely what lacks clarity. For example, if a person says: “People are evil,” then his thought is not clear: are all people without exception evil or are most of them? Without knowing this, it is impossible to 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 to be: 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 elucidation of these differences (differences in the degree of modality, as logic calls them) is usually the least cared for. For a poorly educated mind, whatever thought you take, it is either reliable or undeniably false. Therefore, if a person consciously 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 erudition of the arguing.
Errors in proofs are mainly of three types:
a) in the theses;
b) in the arguments or grounds of the thesis;
c) in connection with arguments and theses, that is, in reasoning.
Errors in the theses consist in the fact that we undertook to prove one thesis, but in fact we proved or are proving another. Sometimes this is a thesis similar to the present one or somehow connected with it, but often without any visible connection. This mistake is called a deviation from the thesis, which occurs at every step in resolving controversial issues. For example, the interlocutor wants to prove that an unreasonable person is stupid, but proves that a stupid 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.
There are errors in reasoning. two types: false and unfounded. In the first case, the argument is based on a deliberately 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 is not visible as it follows from them.
The starting point of every right dispute should be the establishment of a point of disagreement. The latter is usually achieved by the fact that, in contrast to the erroneous view of the opponent on a particular point, we put forward our view that is incompatible with it as true. In other words, antithesis is put forward in opposition to the thesis. The struggle between these two opposites is the essence of the most important correct disputes.
It is necessary to strive to ensure that the antithesis is concise and expressed as simply as possible. Compound antitheses, expressing two or more thoughts, entail many inconveniences, introduce extreme confusion and uncertainty into the solution of controversial cases. In order to achieve results in a dispute, it is advisable to divide them into component elementary judgments and consider each point of disagreement separately.
If the point of contention is not clearly stated (or a complex point is established), then the dispute is often conducted essentially blind. The wrong choice of controversy can often decide the fate of the whole controversy without revealing the truth.
Properly constructed proof of the thesis (or antithesis) is of paramount importance in the 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 the truth if someone has failed to 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 the antithesis, he makes the thesis itself a matter of dispute. By requiring proof of the thesis, if it is not given, he thereby proposes a dispute about the proof. The defender of the thesis is usually left with one of two options: to accept the proposed dispute or to refuse it.
This feature of the "attack" in skillful hands provides certain advantages. The attacker can choose the form of the 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 case of the opponent in many cases may be lost.
Arguments are inherently focused and formless. In the first case, the opponents constantly have in mind a controversial thesis, and all their reasoning is aimed at proving or refuting this thesis. A formless dispute has no such focus. It starts with a thesis. When exchanging objections, the opponents grab onto some argument or private thought and argue because of it, forgetting about the initial thesis. Then the controversy flares up over the third thought, and the dispute does not end anywhere, but turns into separate local fights. This is the lowest type of all varieties of dispute.
The dispute may be between two persons. This is a simple, solitary dispute. However, a dispute is often 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. Properly managing the latter is much more difficult. Meanwhile, a complex dispute can be of exceptional importance, especially in cases where it is a means of approaching the truth. In a complex dispute, there is an opportunity to listen and weigh all or many of the arguments both in favor of the thesis and against it, and better assess their comparative strength. Of course, in order to correctly make such an assessment, in order to derive all possible benefit from the dispute, a good, healthy and clear mind is necessary in itself, along with knowledge of the matter under discussion. Without a complex argument, even such a mind would very rarely be able to quite correctly and confidently evaluate the thesis. And so it is everywhere: in science, in public life, in interpersonal relations. The more people of outstanding intelligence and knowledge participate in a complex dispute, the more stubborn 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 able to “get better” by itself only in those cases when all participants in the dispute have good mental discipline, the ability to grasp the main thing, and an understanding of the essence of the problem. In other cases, a dispute leader is required. Practice shows that good dispute managers are extremely rare. Often a complex argument is conducted so illiterately that it inspires dislike for a joint discussion of issues.
DISPUTE IN THE LISTENERS. Both simple and complex disputes can take place with listeners and 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, has a psychologically strong effect on opponents, especially on people who are proud, impressionable, nervous. Victory in the presence of listeners greatly flatters self-esteem, while defeat becomes much more annoying and unpleasant. Hence the greater stubbornness in opinions, greater vehemence 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 a prejudiced opinion, likes and dislikes. They will support “their” chosen one, catching his thoughts and not listening or obviously biased listening to his opponent. Others - have no opinion on this issue, in any case, a firm opinion. They will judge the course of the dispute mainly by external signs: the authority, the confident tone of one, the timidity of the objections of the other, the attitude of “experts on the subject” to the dispute.
Both for the first and for the second, 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.
In a dispute with listeners, external and internal psychological factors play an important role: an impressive manner of speaking and holding on, self-confidence, aplomb. A timid, shy person, especially not accustomed to arguing in front of numerous outsiders, always loses a priori in comparison with a self-confident, even somewhat arrogant opponent.
WHAT QUALITIES SHOULD THE PARTICIPANTS OF THE DISPUTE HAVE. A huge advantage in the dispute gives the speed of thinking. Whoever thinks faster, he “does not climb into his pocket for a word.” He is resourceful, witty, has a sense of humor and, with an equal mind and stock of knowledge, always overcomes the enemy.
The highest, noblest, and most beautiful form of argument is that in which, in essence, there is a joint search for truth. In its pure form, this type of dispute is rare, and only between intelligent and calm people. When people who look at the argument as a means of finding out the truth converge, their conversation, as a rule, proceeds in a calm and dignified tone. In addition to undoubted benefits, it delivers true pleasure and satisfaction: here is the expansion of one's horizons; and advancing the truth to its resolution; and the subtle, calm excitement of the mental struggle; and some special aesthetic, intelligent pleasure. Even if someone had to “give up positions”, abandon the previously defended point of view, the resulting unpleasant aftertaste can completely fade into the background in comparison with the positive impression of this dispute.
We need a very differentiated approach to the question of choosing the identity of the opponent in the upcoming dispute. The wisdom of all nations warns against arguing with fools. Such an argument never succeeds. You should also not needlessly argue with a daring and rude person. Undesirable opponents also include obvious sophists, with whom one can argue needlessly only when we know that we are able to teach them a lesson by giving them a verbal beating.
There are people who are incapable of a proper argument. Here is how M. Yu. Lermontov writes about this type of debaters: “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 him to say a word, and when he tries to insert a word, he shouts: “You don’t let me speak.” He constantly throws 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 “opponent”, 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 to such a dispute, although he may be expected to be “torn apart 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 complex argument. Paradoxically, such 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 been well aware.
The choice of arguments in proving the thesis is determined by the tasks that we set 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 arguments that should seem the most convincing to the interlocutor. Wishing to defeat the enemy, we are looking for arguments that are most capable of placing him in difficulty. In an argument carried on to convince the listeners, we adapt the choice of arguments not so much to the opponent as to the listeners. Failure to take into account the objectives of the dispute when choosing arguments often leads to defeat. Here it is imperative to take into account the level of development of the enemy, his specialty, psychology. Then you will not have to be surprised that the argument, so obvious and strong for yourself, is not noticed, rejected or even ridiculed by the enemy.
A quick change of thoughts, especially complex ones, when arguing in front of an average-level audience is completely unacceptable. People who are not accustomed to deep thinking can only trace the gradual change of arguments. Each proof must be presented separately, discarding as far as possible all secondary details. Real life comparisons are needed, even rough ones, to create a visual image that is understandable.
Modern conflictology identifies the following causes of conflict:
О contradiction between interests, values, motives, roles of subjects;
О confrontation between the subjects of the conflict, the desire to inflict damage on the opponent;
About negative emotions and feelings of subjects in relation to each other.
There are different points of view on the conflict:
Conflict is unnecessary and harms the organization. In this case, the main task is to eliminate the conflict by any means in the shortest possible time;
О conflict is an undesirable, but common way of relations in an organization, so it is necessary to spend less time and effort on fighting it;
Conflict is not only inevitable, but necessary and potentially beneficial. An example of such a conflict can be an industrial dispute, the result of which is the solution of the issue.
There are five main ways to overcome emerging conflicts:
- 1) avoidance, evasion, when the actions of the parties are aimed at getting out of the situation without yielding, but also without insisting on their own. At the same time, the parties to the conflict refrain from disputes and discussions, do not express their position, in response to the demands or accusations made, they transfer the conversation in a different direction and continue the conversation on other topics. This method eliminates responsibility for solving problems, assumes that partners do not see contentious issues, do not attach importance to disagreements;
- 2) coercion (confrontation), when actions are aimed at insisting on an open struggle for one's interests. Confrontation presupposes either victory or defeat, the adoption of a tough position, the manifestation of irreconcilable antagonism in the event of resistance from the enemy. The main goal is to force the opponent to accept their point of view at any cost;
- 3) smoothing (compliance), when the actions taken are aimed at maintaining or restoring favorable relations, at ensuring the satisfaction of the other side by smoothing out disagreements, with the readiness to give in for this, neglecting their interests;
- 4) compromise (cooperation), when actions are aimed at finding a solution that satisfies the interests of both one side and the other. An open and frank exchange of views on the problem is aimed at resolving differences, yielding something in exchange for concessions from the other side, at finding and developing intermediate compromise solutions that suit both sides;
- 5) problem solving - involves the recognition of differences in opinion and the willingness to get acquainted with other points of view in order to understand the causes of the conflict and develop a plan of action acceptable to all parties.
It is known that the disease is easier to prevent than to cure. So are conflicts. Their origin must be able to recognize at the very beginning and block in advance those places where they can arise, eliminate those causes that can lead to them. For the prevention of conflict, a clear organization of work, uninterrupted work schedule, and moral satisfaction of workers are of great importance. The more cohesive the work team, the less the likelihood of conflicts.
Despite the huge variety of conflicts, they have much in common, which allows us to consider issues related to the principles and rules for their prevention and resolution. Methods and means of eliminating conflicts are divided into non-verbal (non-speech), verbal (speech), mixed.
Non-verbal ways- those actions of the subjects of communication (or third parties) that can contribute to the resolution of the conflict, for example, through spatial isolation (until it "cools down"), temporary isolation (to ensure that the conflicting parties do not temporarily meet).
Verbal ways elimination of conflicts presupposes the presence of a culture of speech, knowledge of etiquette norms and the ability to creatively bring them to life. It is highly desirable to exclude from your speech such speech forms that could bring discord or distrust into relations with others.
Often, due to a lack of information, due to an overestimation of their ability to understand another, a person is inclined to explain the benevolent motives of partners with their arrogant ambitions. Therefore, even in a conflict situation, before taking “decisive measures”, one should try not only to understand the specific state of the other, but also to find means to discharge tension. To quickly resolve difficult situations, you need to start with polite, tactful questions: “I would like to know what you want?”, “I'm sorry, but I can't understand why you were offended by me?”
There are cases when people do not show their resentment, they are stubbornly silent, and then the conflict becomes hidden (latent) in nature. This leads to persistent alienation between people. In such a situation, there is no need to shelve the conversation, during which you can discuss all the ambiguities of the relationship. If a person is not talkative, you should tactfully bring him out of a state of tense silence, talk with him according to a pre-planned plan, and identify those "pitfalls" that interfere with open communication. Concrete forms and means of preventing conflicts require restraint and self-control.
If the partners do not agree with each other in some way, there is no need to rush with assessments and express them not immediately, but choosing the right moment and in the correct form. Friendly communication will turn out if you start with positive ratings.
Before giving your specific assessments, especially with long-term contact, you should study the values, assessments and self-assessments of a person and, in convenient cases, show signs of recognition of these values (of course, provided that they cannot infringe on your dignity).
If you cannot accept the values and norms that guide your communication partner, then you can use such a tried and tested tool as an interpersonal contract. Its essence is that two voluntarily undertake not to infringe on the dignity and habits of each other in their contacts. In short-term, formal (official) communication, it is also important to develop a culture of interpersonal contract.
As a rule, negative assessments are in the nature of criticism, so they should be avoided. D. Carnegie argues that criticism is dangerous, because it hurts a person's precious self-esteem, strikes at his idea of his own significance and arouses resentment and indignation in him. However, only empty, unfounded criticism, the denial of values only on the grounds that they do not correspond to someone's tastes, should be considered dangerous. Criticism is dangerous, growing into meaningless disputes, into a squabble.
Carnegie generally has a sharply negative attitude towards disputes and quarrels, since, in his opinion, they are devoid of any reasonable grounds, expediency and benefit. He believes that in 9 cases out of 10 after the end of the dispute, each of its participants becomes more convinced of its absolute rightness than ever before.
Benevolent, tactful, constructive, interested criticism, on the contrary, helps to effectively resolve emerging contradictions. According to ancient wisdom, when two people quarrel, as a rule, both are wrong. Indeed, if we analyze any conflict, we will make sure that in a conflict situation, rarely anyone manages to remain calm, dignity, and become higher than their offender. Defensively, a person begins to "get excited" and makes mistakes himself, offends his partner.
Humor is an important means of preventing and eliminating conflicts. However, jokes should not be allowed on a communication partner (especially if it is a woman), which can lead to irreversible consequences - the establishment of interpersonal distrust, and often to conflict. It is difficult to find a person who would like to be laughed at. This is true both for close people and for barely acquaintances. You need to be very careful when joking with a stranger, because without knowing his views, values, you can most likely hurt his pride or self-esteem. It is unacceptable to use individual partner's shortcomings as an object for humor. It is also necessary to refuse jokes about height, age, education, nationality, past failures, hair color, hidden shortcomings. Such humor borders on personal insult.
In the formation of a positive climate of communication, an important place is occupied by the problem of overcoming signs of superiority in contacts at any level. For example, one cannot emphasize the lower social status of a partner or one's higher one; at least it is not necessary to attach decisive importance to this fact.
The following phenomenon is psychologically interesting: if an employee has succeeded in something, then he is inclined to regard success as a personal merit, as a consequence of his merits, and in case of failure, a person refers to unfavorable life circumstances, someone's incitement, inept leadership. At the same time, the success of another employee is due to the accompanying favorable circumstances, and the reason for his failures is due to his negative personal qualities and unprofessionalism.
Each person should be able to interact not with such people with whom he would like, but with such as they are.
There are two main types of international disputes: dispute and situation.
A dispute is a set of mutual claims of subjects of international law on unresolved issues relating to their rights and interests, interpretation of international treaties.
The situation is understood as a set of circumstances of a subjective nature that caused friction between the subjects out of connection with the specific subject of the dispute. Thus, in a situation where there is no dispute yet, but there are prerequisites for its occurrence; a situation is a state of potential dispute.
In accordance with Art. 33 of the Charter of the United Nations, parties to a dispute the continuation of which could threaten the maintenance of international peace and security must first endeavor to resolve it through negotiation, mediation, conciliation, arbitration, litigation, recourse to regional bodies or agreements or other peaceful means of their own accord. choice.
Actions of diplomacy
In international law, a set of actions aimed at achieving a specific diplomatic goal and resolving a specific diplomatic problem. AD is an official speech or action taken by the head of state, government, department of foreign affairs, diplomatic mission or other state bodies of external relations on a particular issue of international relations or international law. A. D. are different in their form and content: in form they can be expressed in a diplomatic act of any kind (see Diplomatic Act); in terms of content, it can be a protest, a warning, etc. According to the UN Charter, the threat of force or the use of force cannot be the content of A. d.
In the implementation of AD, a large role is played by the so-called. diplomatic etiquette, i.e. compliance with various accepted formalities or conventions in getting around, the use of a particular language, etc. So, for example, when AD is usually used one of the diplomatic languages, which are French, English, Russian, Spanish and Chinese. At the same time, it is customary for the bodies of foreign relations of one state, accredited in another, to use the language of the host state, and the representative offices of a foreign state - the language of the state they represent.
For AD, the order of relations between diplomatic bodies and foreign relations bodies of the receiving state is of great importance, which is determined both by the laws of the receiving state and by international agreements.
N.V. Plastinina,
legal adviser of OJSC "ALFA-BANK"
(operational office "Saratovskiy")
Many employers, especially those associated with the sale of goods and services, the production of products, use the salary-bonus system of remuneration in order to constantly motivate employees. With the payment of salary as a fixed and constant part of wages, there are no questions. But with the accrual and payment of bonuses, questions arise very often. At the same time, the issues are quite diverse: from the size of the bonus due, the frequency of its payment to the question of whether or not the employer has the obligation to accrue and pay the bonus.
According to the provisions of Article 191 of the Labor Code of the Russian Federation, the bonus 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 that deviate from normal, the system of additional payments and allowances of an incentive nature and the 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 award, unlike punishment (the list of types of punishment is limited by article 192 of the Labor Code of the Russian Federation), does not have restrictive characteristics. Labor legislation, when regulating the issue of bonuses, does not establish either maximum or minimum bonuses; the frequency of its payment (maximum and minimum) is not indicated; there are no restrictions on positions or specialties for the payment of bonuses. If, when applying disciplinary sanctions, the employer is limited both by the types of punishment and by the parameters of compliance of the applied punishment with the committed misconduct (see clarifications of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. No. 2), then in paying bonuses to the employer, his hands are practically free: he can give bonuses both at the end of the quarter and at the end of the month, or he can provide bonuses only at the end of the year; he can provide bonuses only for business units, ignoring administrative and service personnel; differentiate the size of the bonus, both from the position, and from the length of service or other indicators.However, despite such wide opportunities for the employer, litigation over the payment of bonuses (other incentive bonuses) takes place.Moreover, they are not so rare. Consider some types of grounds (reasons) for the occurrence evaluating disputes over the payment of bonuses, options for judicial decisions on such disputes, as well as options for eliminating the prerequisites for the emergence of labor disputes over the payment of bonuses, and / or eliminating circumstances that allow courts to decide on disputes not in favor of the employer.
First of all, we distinguish between the types of awards on:
- bonus on production indicators, which is associated with the implementation of some planned indicators;
- an award timed to coincide with certain events: holidays (New Year, February 23, March 8), memorable dates, dates celebrated within the organization (date of opening of a branch, separate subdivision), etc. In the second case, the bonus is accrued in any case, regardless of production performance.
Grounds for dispute
Non-payment by the employer of the bonus, the amount, terms of accrual and frequency of payment of which is provided for by the employment contract.
Court position
Option 1: if, in accordance with the employment contract, the payment of a bonus 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 bonus is paid 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 the collective agreement, a local act establishing bonuses for employees. The wording in the employment contract of the following content would 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 employees, the Regulations on bonus payments to employees, can make additional payments of a compensatory and incentive nature, including bonuses, as well as make other payments provided for by local regulatory documents of the employer. At the same time, payments are made using the district coefficient and a percentage premium ... ”;
- in a collective agreement, a local act of the organization, use streamlined formulations that allow, under certain conditions, without changing the provisions of this act, not to accrue bonuses.
Example from jurisprudence
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 the city of Volgograd dated May 27, 2009 on the recovery of the debt 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 the payment of bonuses in the amount of 12,537 rubles 78 kopecks, compensation for non-pecuniary damage in the amount of 3,000 rubles. Satisfying the claims, the court motivated the conclusions as follows. From paragraph 7 of the employment contract dated April 15, 2008, concluded between K. and the city public football organization, the defendant pays 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 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 reasonable 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.
Grounds for dispute
Non-payment of bonuses in connection with the dismissal of an employee.
Court position
Non-payment of 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 accruing not a bonus for performance indicators, but a bonus dedicated to a memorable date, if this date comes later than the day of dismissal.
How to avoid a controversial situation in the cases considered:
- make payments due to the employee in connection with his dismissal on the day of dismissal, as required by Article 140 of the Labor Code of the Russian Federation.
Example from jurisprudence
The Judicial Collegium for Civil Cases of the Krasnoyarsk Regional Court** decision of the Central District Court of Krasnoyarsk dated December 3, 2009 on V.'s refusal to satisfy the claims against the Judicial Department in the Krasnoyarsk Territory for the recovery of a premium and compensation for moral damage was canceled, the case was sent for a new trial . The decision of the lower court was canceled due to incomplete clarification by the court of legally significant circumstances, the case was sent for a new trial. The conclusion of the court of first instance that the bonuses based on the results of work for the quarter are not unconditional are paid if there are savings in the wage fund and only to those employees who are engaged in the performance of particularly important and complex tasks, and the chairman of the court had the right to independently evaluate the personal contribution of each civil servant and decide not to pay V. a quarterly bonus, was recognized by the panel of judges as 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. Any kind of discrimination is not allowed when establishing the conditions of remuneration (part two of Article 132 of the Labor Code of the Russian Federation). The plaintiff actually worked out the period for which the bonus was accrued to other employees. No evidence was presented by the defendant to show that there was no personal contribution to the performance of work, bad faith or inefficiency in the performance of official tasks.
Grounds for dispute
Non-payment of the bonus due to the employee’s failure to work out the established amount of working time for the reporting period (for example, when paying the bonus based on the results of work for the quarter, the employee was disabled for two weeks from the specified period or was on vacation).
Court position
Option 1: if the bonus is based on the results of production activities, the achievement of certain results/indicators, non-accrual of the bonus can take place only if the local act, the collective agreement, the labor contract expressly provides for a reduction in the amount of the bonus 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 accrued.
Option 2: if bonuses are paid regardless of performance indicators (for example, on 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 controversial situation in the cases considered:
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 accrued or not accrued. A good example is the order of Rosleskhoz dated December 21, 2009 No. 524 “On approval of lists of target performance indicators and criteria for evaluating the performance of federal state institutions subordinate to Rosleskhoz, indicators, conditions and procedures for remuneration of their leaders”, which in paragraph 8 provided that “.. .the bonus is accrued for the actual hours worked, which do not include:
- stay on the next basic or additional leave;
- time of incapacity."
Example from jurisprudence
The Judicial Collegium for Civil Cases of the Ulyanovsk Regional Court, by a ruling of December 7, 2010 in case No. 33-4298 / 2010 *, the decision of the Zavolzhsky District Court of the city of Ulyanovsk of October 27, 2010 on 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 disputed period, the court, refusing to satisfy them, came to the conclusion that depriving the plaintiff of the premium does not indicate the application of disciplinary punishment to her. S.'s employment contract sets a salary of 90 rubles. for 1 hour + + bonus - 50 percent of the accrued wages, it also contains a provision that wages consist 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 an LLC deprivation of an employee of a bonus in whole or in part is carried out on the basis of an order (instruction) of the general director (deputy director). As the court established, clause 4.2.1 of the Regulations on bonuses and material incentives for employees of an LLC, the basis for depriving an employee of a bonus is being on sick leave for more than 2/3 of the current month (20 days). During the disputed period, S. was on sick leave several times, and the last time she was on maternity leave, that is, more than 2/3 for several months in a row. In connection with the foregoing, the court did not see any grounds for recognizing the orders not to accrue bonuses to the plaintiff as illegal, and therefore, it 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.
Grounds for dispute
Deprivation for disciplinary violation.
Court position
Deprivation of bonuses as a punishment for a disciplinary violation is unambiguously perceived by both the labor inspectorate and the court as a violation by the employer of labor legislation.
How to avoid a controversial situation in the cases considered:
1) in the provisions of the collective agreement, local acts of the organization, in labor contracts, use concise wording. A much more flexible provision will be in the norm of a local act, which provides for the right of the employer to reduce the size of the bonus down to zero for failure to achieve certain indicators or the presence of unremoved disciplinary sanctions in the reporting period, rather than the word “bonus deduction”. As an example, we can cite the same order of Rosleskhoz dated December 21, 2009 No. 524 “On approval of lists of target performance indicators and criteria for evaluating the performance of federal state institutions subordinate to Rosleskhoz, indicators, conditions and procedures for bonuses to their leaders”, which established in paragraph 6 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 procurement for the needs of the Institution;
- violations of labor, performance discipline;
For the misuse of federal budget funds, established by the results of inspections by regulatory authorities, the head of the Institution is deprived of the bonus in full.”;
2) not to use in the collective agreement, acts regulating the procedure for bonuses, the word "bonus deprivation" as a kind of penalty. 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 may be provided for only by the acts specified in the same article, for example, the statutes on discipline. But in these documents, the concept of "depremation" is not found.
Example from jurisprudence
Example 1
The Langepassky City Court of the Khanty-Mansiysk Autonomous Okrug - Yugra, Tyumen Region, having considered in open court K.’s appeal against the decision of the justice of the peace 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 "Advisory Council of Regional Trade Union Associations" [Electron. resource]. Access mode: http://www. uraltradeunion.ru/sudpraktika/disciplina/ apellyacionnoe_resenie_keibach.html, free.
By Order No. 444 K. dated May 15, 2006, a reprimand was announced for violation of labor discipline, and K. was not presented for bonuses based on the results of work for the month. By the decision of the justice of the peace, K.'s claims were denied. By the decision of 03.10.2006 the Court of Appeal reversed the said decision in part. However, the decision of the court of first instance regarding the refusal of K. to satisfy the claims against the LLC on the cancellation of order No. 444 “On Punishment” dated May 15, 2006 in terms of his deprivation of bonuses and the recovery 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 came to the conclusion that depriving the plaintiff of the premium was not a disciplinary punishment, as claimed by the plaintiff. The non-calculation of bonuses is provided for by the System Regulation on bonus payments to employees of the production personnel of an LLC for violations in the form of non-compliance with the requirements and rules for labor protection and safety and other types of violations.
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