The procedure for considering individual labor disputes implies a procedure that is aimed at resolving disputes that have arisen between the subjects of legal relations. In this case, not only an employee of the enterprise, but a previously dismissed citizen can act as a party. In addition, a person who was denied employment in the presence of a vacancy also has the right to make claims against the management of the enterprise.
In itself, the concept of an individual labor dispute implies disagreements between the parties that have not been resolved before judicial order, as well as with the assistance of the trade union organization. Disagreements between the parties this case may relate both to the organization of the labor process, labor regulations and payment wages, and direct violations of the norms of the current legislation, committed by the employer or persons authorized by him.
The general procedure for considering individual labor disputes provides for the initial appeal of the employee to the CCC. This commission is organized by the head of the company for a period of one year. It consists of representatives of the trade union organization and the employer. If within 10 days, which are given to the commission to resolve the conflict, they did not come to an agreement, then the employee has the right to apply for the protection of his interests in court. If the CCC decision was made, but any of the parties does not agree with it, then in accordance with Article 390 of the Labor Code of the Russian Federation, it can also be appealed in court.
In some cases, an individual dispute may be resolved by a higher authority, if any. At the same time, it is necessary to take into account the jurisdiction of the organization and the competence of the body, since each of them may differ in the procedure for considering disputes, the timing of the decision and the procedure for their implementation.
In the process of resolving conflict situations, it is important to remember the time limits established by law. IN general order they are - 3 months, with the exception of issues of illegal dismissal of workers, the appeal period of which is 1 month. Only cases related to compensation for harm to the health of an employee received at work have no time limits.
The concept of an individual labor dispute
This concept is enshrined in Article 381 of the Labor Code of the Russian Federation and is defined as disagreements between the parties to labor relations that were not resolved before the involvement of a third party, and are associated with the application of labor legislation, as well as the provisions enshrined in the local acts of the company and the employment agreement / contract .
A labor dispute also recognizes disagreements between the management of an enterprise and a former employee who does not agree with his own dismissal and considers it illegal or carried out in violation of applicable law. Also, a claim can be made by a person who was unreasonably denied employment.
The procedure for considering a labor dispute between an employee and an enterprise begins with the filing of an application with the competent jurisdictional body. The procedure for resolving the conflict, the procedural actions necessary for this, are enshrined in legislation and depend on where the complaint was sent. When submitting an application to the CCC, the employee is not deprived of the opportunity to go to court if the parties do not reach an agreement. However, in this case, it is necessary to ensure that the deadlines for appealing against the unlawful actions of the employer do not expire.
In addition to applying to the CCC and the court, an employee can file a complaint with the Labor Inspectorate, but in this case this will not be a way to resolve a labor dispute, since this institution does not resolve the issue “in essence”. After the inspection, the inspector issues an order obliging the employer to stop violating the norms of the current legislation, and not to satisfy the requirements of the employee. However, in some situations this may be enough to resolve the dispute.
Bodies dealing with individual labor disputes
Legal relations for the consideration of labor disputes are enshrined in Chapters 60-61 of the Labor Code of the Russian Federation and determine the protective measures and procedural actions used to resolve labor disputes, including material ones.
Disputes between an employer and an employee relating to labor issues and unsettled by the parties are considered on the merits by the CCC and the court, within their powers. Determine the jurisdictional body to be contacted to resolve a particular conflict situation necessary for its specificity.
In this case, initially the citizen must determine the jurisdiction of the case. That is, to find out in whose competence is the solution of his questions. At this stage, it is important not to make a mistake, as this may entail the adoption of a decision that has no legal force and the omission of the claim period, the restoration of which will be quite problematic, since an incorrect definition of jurisdiction is not a sufficient basis for this.
In most cases, initially a worker who has a disagreement with the employer must contact the CCC. Such a commission is created annually at the enterprise and includes representatives of the employer and members of the trade union. They consider the dispute on the merits. That is, appeal to other instances is possible only after the consideration of the dispute in the CCC. The exceptions are situations where the case falls within the jurisdiction of the courts. Then the employee can bypass the stage of contacting the CCC.
According to the jurisdiction, the cases resolved by the CCC include disputes about:
- Collection of due payments and their amount;
- Travel expenses reimbursement;
- overtime pay;
- Imposition of disciplinary sanctions, etc.
In a judicial proceeding, bypassing the CCC stage, cases are considered on:
- Recognition of the dismissal as illegal and reinstatement in the position held;
- Illegal transfer to another position;
- Making adjustments to the wording of the entry in the labor (on termination of labor relations), changing the date of dismissal;
- Compensation for forced absenteeism;
- Compensation for the difference in wages in a temporary position with a lower salary;
- Issues related to illegal actions related to the processing of personal data of employees;
- Illegal refusal of employment for an existing vacancy;
- Labor discrimination.
Disputes with an employer who is an individual who has not been registered as an individual entrepreneur and with religious organizations are also considered in court.
The procedure for consideration of labor disputes
The procedure for settling individual labor disputes is established for each jurisdictional body separately. Not only the consideration procedure differs, but also the procedure for accepting an application, issuing a decision and implementing it. Therefore, when applying to a particular body, it is necessary to take into account the specifics of its work.
The procedure for consideration of individual labor disputes is regulated by industry and federal regulations. In addition, when resolving a conflict in the CCC and higher authorities, local acts may also be taken into account if their provisions do not contradict the current legislation.
The procedure for consideration of individual labor disputes in CTC is quite convenient for the employee, as it allows him to resolve disputes at a convenient time outside of work. In addition, the decision is made only in the presence of the employee who submitted the application. An examination in absentia can be held only with the written consent of the applicant to this. Such a measure is necessary if a person cannot personally appear at the meeting for objective reasons.
If the worker did not send such consent and did not appear for consideration of the case, then its consideration is postponed and the citizen is invited again. In case of repeated failure to appear at the meeting without good reason, the members of the commission may decide to withdraw the case from consideration. In this case, the employee is deprived of the opportunity to re-apply to the CCC on this fact.
During the consideration of the application, the commission has the right to demand necessary documentation, conduct technical, administrative or accounting checks, invite witnesses to testify, use other measures to reach a complete and objective decision. It is determined by secret ballot. According to Article 388 of the Labor Code of the Russian Federation, the decision is made for which the majority of the members of the CCC voted.
Concerning the procedure for consideration of labor individual disputes in courts general jurisdiction, then it is regulated by Articles 391-397 of the Labor Code of the Russian Federation and the provisions of the Code of Civil Procedure of the Russian Federation. Main difference this method conflict resolution lies in the fact that the court not only restores the violated rights of the employee, but also determines the cause of the disagreement and can issue recommendations on preventive measures to prevent such situations in the future.
After acceptance statement of claim for consideration, the court examines the materials submitted by the parties and may request additional documents from the employer or state institutions, if necessary to resolve the dispute on the merits.
The plaintiff, for his part, may, in the process of considering the case, change the claims, the subject of the dispute, its grounds, and also completely abandon it. In addition, the parties, in accordance with Article 39 of the Code of Civil Procedure of the Russian Federation, may complete the judicial review before a decision is made by signing a settlement agreement.
If the parties do not reach an agreement, the court makes a decision based on the evidence presented and on the basis of the norms of the current legislation. It can be appealed, in accordance with Article 338 of the Code of Civil Procedure of the Russian Federation, in a higher court within 10 days.
Individual labor disputes
Individual labor disputes are unresolved disagreements that arise between an employee and an employer regarding the application of legislative and other regulatory acts on labor, collective agreement and other labor agreements. Individual labor disputes (Article 381 of the Labor Code of the Russian Federation) involve, on the one hand, the employee, and on the other, the employer. Not all disputes that arise between an employee and an employer are labor disputes. For example, if an employee living in a factory apartment arbitrarily occupied a room that had been vacated in it, and the enterprise filed a lawsuit against him for eviction, then such a dispute is not a labor dispute. The relations in connection with which it arose are regulated by the norms of not labor, but housing law. Labor disputes are only those disputes that arise from relations regulated by labor legislation. As a rule, a labor dispute arises when the subject of an employment relationship believes that his right has been violated as a result of the incorrect application in this particular case of certain norms of labor legislation. Along with this, disputes may arise between the subjects of an employment relationship in connection with the establishment of new or changes in existing working conditions. Labor disputes can be classified as follows - depending on the nature of the disputed legal relationship into:
1. Labor disputes of a material nature.
2. Labor disputes of an intangible nature (organizational, procedural, procedural).
Subject of consideration special bodies(KTS, courts, Rostrudinspektsii of the constituent entity of the Russian Federation) are mainly material disputes, and non-material disputes are quite rare. The causes of individual labor disputes can be conditionally divided into two main groups: a) subjective reasons (ignorance, misinterpretation of labor legislation, etc.); b) objective reasons (poor organization of labor, omissions in the organizational and economic activities of the enterprise, unclear wording of certain norms of labor legislation, gaps in labor legislation, etc.).
One of the main reasons that give rise to individual labor disputes is poor knowledge or ignorance of the labor legislation by the employee and the employer, i.e. low legal culture. In a number of cases, individual labor disputes arise as a result of the dishonest attitude of some employees to the performance of their labor duties and the presentation of illegal demands by them, as well as due to the deliberate violation of labor laws by individual employers. Further improvement of labor legislation, improvement of the legal culture of citizens, improvement of labor organization - these and other measures carried out in our country are aimed at reducing and eradicating the causes that give rise to labor disputes, at strengthening the rule of law in labor relations. Labor legislation provides for the resolution of three types of labor disputes:
1) between the employee and the employer regarding the application of existing working conditions (for example, disputes related to the dismissal of an employee, payment of wages, provision of leave, etc.);
2) between the employee and the employer regarding the establishment of new or changes existing conditions labor (for example, disputes about the assignment of new tariff categories, salaries, the establishment of new production standards, etc.);
3) between the trade union committee and the employer regarding the establishment of new or changes in existing working conditions (for example, disputes arising from the conclusion of a collective agreement).
The subject of an individual labor dispute is the rights and legitimate interests of the employee, violated, in his opinion, by the administration in the application of labor legislation, other regulatory legal acts on labor, a collective agreement, an agreement, employment contract, that is, in case of non-fulfillment or improper fulfillment of these acts. In such cases, an application for consideration of a labor dispute is submitted by the employee or, in his interests, on his behalf by the trade union body (trade union committee). The subject of individual labor disputes between the administration and the employee may be the obligation to compensate for material damage to the organization by the employee's misconduct. In such cases, the application (claim) is submitted by the administration of the organization. A few words about the competence and jurisdiction of the bodies for the consideration of individual labor disputes.
Competence is a set of powers (rights and obligations) of a body in a certain area of activity. At the same time, the powers of the body are also its duties. In particular, consideration of a labor dispute is the right and at the same time the duty of the relevant authorities, if they are approached with a proper application. Labor dispute resolution bodies are not entitled to refuse to accept an application or to consider a dispute. Jurisdiction is a certain competence of certain bodies to consider certain types of labor disputes. Jurisdiction is determined by the type of labor dispute by subjects (individual or collective) and by content (on the establishment of working conditions or on their application). Each of the bodies considers disputes within its jurisdiction. Therefore, before applying for a solution to a labor dispute, you need to know where, to which body you should file an application (claim). The jurisdiction of the jurisdictional body is determined legislative act(Labor Code and Civil procedural code) as a circle of labor disputes about the right, for the consideration and resolution of which the body is competent. It is in the circle of those labor disputes that each jurisdictional body has the right to consider and resolve that the division of jurisdiction of each body in the field of dispute resolution is carried out. The decision of the labor dispute body only then has legal force when it is made on the issue under its jurisdiction. Therefore, it is necessary to distinguish between the procedure for considering individual labor disputes in the CCC, the court and in a higher body. All these bodies can carry out remedial actions, but in a different order. Jurisdiction is determined depending on the parties to the dispute. Individual labor disputes in accordance with Art. 382 of the Labor Code of the Russian Federation are considered by the CCC and the courts. However, today the Labor Code of the Russian Federation provides for the possibility of an employee filing a complaint (a request to resolve a problem) to the state labor inspectorate of a subject of the federation. However, such an inspection is not the main body for the consideration of individual labor disputes. The term jurisdiction is usually defined as a range of disputes, a range of cases, the resolution of which is assigned to the jurisdiction of a particular body or official. The term jurisdiction is applied by the type of dispute or by the type of body that considers the dispute. In the first case, we are talking about the right of bodies to consider certain disputes. For example, disputes about the reinstatement of employees are subject to consideration only in court. The Labor Code of the Russian Federation in a number of articles directly provides for the appeal of certain decisions of the employer to the Federal Labor Inspectorate, for example, Art. 193 of the Labor Code of the Russian Federation. Art. 291 of the Labor Code of the Russian Federation provides for the possibility, when investigating accidents at work, to appeal the decision to the courts or the Federal Labor Inspectorate.
Thus, we can say that the state labor inspectorate is empowered to resolve labor disputes (collective and individual) between employees and the employer. The competence of specialized bodies to resolve labor disputes - the Labor Code of the Russian Federation calls them in Art. 382 (CCC and court). Now no one has the right to cancel the decision of the CCC, and the prosecutor can file a complaint either with the court or with the CCC. KTS has jurisdiction over all individual labor disputes, with the exception of those that fall within the competence of the courts. To do this, it is necessary to find out whether the dispute is an individual labor dispute and determine jurisdiction, and secondly, to determine whether the dispute falls within the exclusive competence of the court.
Disputes related to employment contracts:
1. Recruitment-related, for example, questions about the date of employment, about changing the name, job title, profession, specialty. This is especially true for those workers whose professions are associated with certain benefits, for example, with a seniority pension.
2. Application and modification of the terms of the employment contract, art. 381 of the Labor Code of the Russian Federation included disagreements on changes in working conditions (including wage conditions) among individual labor disputes. Disputes on the application of employees for transfer to another job, for the payment of compensation for the performance of lower-paid work after the transfer shall fall within the competence of the court. Art. 394 of the Labor Code of the Russian Federation speaks of making a decision to transfer to another job. Correlating articles 391 and 394, we can talk about transfers carried out contrary to the interests of the employee, and thus it can be recognized that the CCC has the right to consider transfer disputes if the administration does not comply with the requirements of the transfer law. This includes transfers of pregnant women, women with young children, persons with reduced working capacity, etc., i.e. that group of people who are transferred only with their consent.
3. Termination of the employment contract. By general rule, disputes about the reinstatement of an illegally dismissed employee must be considered in court, however, there are certain rules that oblige, under the conditions specified in the law, to dismiss an employee who wants to terminate an employment relationship with an employer. For example, an employee entered a university and wants to terminate the employment contract, but the employer does not want to terminate the contract and claims that the employee must work for another two weeks - then you can contact the KTS to resolve this issue. Also, if the employee is not presented with a job that is stipulated by an employment contract, you can contact the KTS. The main issue is the issue of wages. The determination of the jurisdiction of such disputes is beyond doubt. General issues wages: according to Art. 133 of the Labor Code of the Russian Federation, the monthly salary of an employee who has worked the fulfilled norm of work for a month and worked the norm of time cannot be lower than the minimum wage. Also, the basic tariff rate should not be less than the minimum wage. Prize question. The CCC may consider disputes related to bonuses that are part of the employee’s salary, issues of bonuses for other reasons do not fall within the competence of the CCC (for example, bonuses based on the results of a competition related to anniversaries, for rationalistic activity). There is such a formula, KTS, as a rule, considers disputes related to bonuses, if the right to receive this bonus arises for all employees who have fulfilled the conditions of the bonus provision. Often, individual issues of stimulating the work of an employee are resolved in a collective agreement, for example, it may include an obligation to pay bonuses not taking into account, but in agreement with the trade union. The bonus position becomes a local normative act, and accordingly, the employer cannot unilaterally deviate from the conditions of the provision and the employee can appeal against these actions of the employer. There may be a fund for the head of the shop, foreman, bonuses from this fund can be paid with the agreement of the trade union group. It is practically impossible to demand payment of such a premium through the KTS. Because these awards are pure subjectivism. However, the KTS has no right to refuse to accept such an application due to lack of jurisdiction. But they can explain to the employee the futility of such proceedings. Remuneration in case of deviation from labor standards (for overtime work, etc.). Because These are disputes related to the application of labor law, they are under the jurisdiction of the CCC.
The jurisdiction of the KTS includes issues related to wages, with the release of defective products during downtime. In a marriage, there may be no fault of employees, a complete or partial marriage is also determined, and determining the degree of reduction in prices does not fall within the competence of the CCC, because. This is a dispute about the establishment of working conditions. A downtime dispute may arise not only on the issue of refusal to pay downtime, but also on the amount of such payments. For example, the employer refuses to pay for forced downtime due to the fact that the employee did not warn about the start of downtime. Such a dispute, of course, is under the jurisdiction of the CCC. Although the rule is quite complicated, for example, the electricity was turned off, and that 1000 employees with statements will run to the employer? In addition, electricity can be turned off for 30 seconds, and for 8 hours. Withholding from wages is a significant proportion of payroll issues that go through KTS. In general, their jurisdiction can be defined as follows - all disputes related to the withholding of wages provided for in labor legislation can be considered by the CCC. those. retention disputes that fall under the scope of other branches of law, for example, disputes about the retention of alimony, cannot be considered by the CCC. For example, if income tax withheld in a larger amount than it seems to the employee, then such disputes should be resolved through the tax authorities and the actions of the tax authorities are appealed to the court, and not to the CCC. Warranty compensation payments. In all cases when such payments are not made or their amount is less than it should be, the employee has the right to apply to the KTS. But, for example, disputes about the recovery of the average salary in the event of a delay in issuing a work book are subject to consideration in a general manner, i.e. and the CCC can resolve them. Dispute over working time and rest time. For example, persons working on a flexible schedule, in case of violation, can be transferred to a rigid schedule for up to three months, in case of repeated violation, up to two years, disputes in such cases are also under the jurisdiction of the CCC. In addition to appealing penalties, employees can appeal against the application of other legal measures, for example, if the employee believes that a disciplinary sanction has been wrongfully imposed on him or he does not agree with the size of the sanction or its type. In addition, such a penalty as an oral reprimand can be challenged in the CCC. Requirements for early removal of a disciplinary sanction are not considered by the CCC. Judicial jurisdiction of individual labor disputes. On the one hand, the range of disputes subject to litigation is determined, on the other hand, the competence of the court to consider labor cases is determined. Since the CCC is a body for pre-trial consideration of labor disputes, it means that any issue under the jurisdiction of the CCC can be considered in court. Art. 391 of the Labor Code of the Russian Federation provides for the employee's ability to decide where to consider his labor dispute. However, there is a group of disputes where the discretion of the employee is narrowed to only one body - the court. Art. 391 names the cases of exclusive jurisdiction of the courts of individual labor disputes:
1. Individual labor disputes upon the employee's application for reinstatement, regardless of the grounds for dismissal.
2. On the wording of the grounds and reasons for dismissal.
3. About payment for the time of forced absenteeism, etc.
4. Disputes on the statements of the employer for compensation for harm caused to the organization by the employee.
5. According to the applications of persons who are denied employment.
6. Individuals who feel they have been discriminated against.
Any organization - the employer, in the process of maintaining labor relations with its employees, there is a risk of labor disputes. Such labor disputes can be both individual and collective.
In accordance with the provisions of Article 381 of the Labor Code of the Russian Federation, an individual labor dispute is an unresolved disagreement between an employer and an employee on the application of:
- labor legislation and other normative legal acts containing labor law norms,
- collective agreement, agreement,
- local regulation,
- employment contract (including the establishment or change of individual working conditions),
An individual labor dispute may arise between an employer and his employee, a former (dismissed) employee, as well as a person claiming to conclude an employment contract, if the employer refuses to conclude it.
The reasons for individual disputes between employees and the employing organization can be:
- changing the terms of the employment contract,
- transfer of an employee to another job,
- failure to provide the employee with days off and vacation days due to him,
- disciplinary action against an employee
- incomplete and untimely payment of wages,
- dismissal of an employee
- compensation for harm caused to an employee or employer,
- refusal to conclude an employment contract with the applicant (refusal to hire).
- etc.
The provisions of the Labor Code of the Russian Federation provide “offended” employees with quite wide range opportunities to protect their rights if they have been violated by the employer.
However, at the same time, one should remember about the time limits for applying to the court by an employee, established by the provisions of Article 392 of the Labor Code of the Russian Federation:
- For the resolution of an individual labor dispute, the employee has the right to apply to the court within three months from the day when he knew or should have known about the violation of his right.
- Disputes about dismissal can be brought to court within one month from the date of delivery of a copy of the dismissal order or from the date of issue of the work book.
The deadlines established by Article 392 of the Labor Code of the Russian Federation can be restored by the court if they are missed for good reasons. At the same time, the legal illiteracy of an employee is usually not recognized by the courts as such a reason.
Court or labor dispute committee?
In accordance with the provisions of Article 383 of the Labor Code of the Russian Federation, the procedure for considering individual labor disputes is governed by the provisions of:
- labor code,
- other federal laws (for example, the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service Russian Federation»).
An individual labor dispute is considered by a labor dispute commission if the employee, on his own or with the participation of his representative, has not settled the differences during direct negotiations with the employer.
On the basis of Article 384 of the Labor Code of the Russian Federation, labor dispute commissions can be created both at the initiative of employees (or their representative body) and at the initiative of the employer. They must consist of equal number employee and employer representatives. Employer and employee representative body that received the offer in writing on the establishment of a commission on labor disputes, are obliged to send their representatives to the commission within ten days.
Representatives of the employer to the commission on labor disputes are appointed by the head of the organization (employer of the individual entrepreneur). Representatives of employees to the commission on labor disputes are elected by the general meeting of employees or nominated by the trade union with subsequent approval for general meeting workers.
The Labor Disputes Commission has its own seal. Organizational and technical support for the activities of the commission on labor disputes is carried out by the employer.
The commission on labor disputes elects from among its members a chairman, a deputy chairman and a secretary of the commission.
It should be remembered that not all types of individual labor disputes fall within the competence of the commission for the consideration of labor disputes. Individual labor disputes that may be considered by the commission include:
- changing the terms of the employment contract.
- failure to provide the employee with the days off and vacation days due to him.
- disciplinary action against an employee.
- incomplete and untimely payment of wages.
- dismissal of an employee.
- reinstatement of an employee due to illegal dismissal.
- change in the date and wording of the dismissal order.
- paid absenteeism.
- compensation for harm caused to an employee or employer.
- dispute due to refusal to conclude an employment contract with the applicant (denial of employment).
- dispute over discrimination.
- dispute between an employee and an employer who is an individual who is not an individual entrepreneur *.
An employee can apply to the commission in case of violation of his labor rights only within three months from the day he learned or should have learned about such a violation (Article 386 of the Labor Code of the Russian Federation). On the basis of Article 390 of the Labor Code of the Russian Federation, if an individual labor dispute is not considered by the commission on labor disputes within ten days, the employee has the right to transfer its consideration to the court.
Both the employee and the employer can appeal against the decision of the labor dispute commission in court, but this must be done quickly - within ten days from the date of receipt of a copy of the commission's decision. In addition, the employee can apply to the court immediately, bypassing the commission on labor disputes. This possibility is provided for by Article 391 of the Labor Code of the Russian Federation.
The procedure for consideration of labor disputes by the commission
According to the provisions of Article 387 of the Labor Code of the Russian Federation, the labor dispute commission must:- in without fail register the employee's application received by her.
- consider an individual labor dispute within ten calendar days from the date the employee submits the application.
The Labor Disputes Commission has the right to summon witnesses to the meeting and invite specialists. At the request of the commission, the employer (his representatives) is obliged to submit the necessary documents to the commission within the time period established by the commission.
The meeting of the commission is considered competent if it is attended by at least half members representing employees and the employer. At the meeting of the commission, a protocol must be kept, which is signed by the chairman of the commission or his deputy and certified by the seal of the commission.
Procedure for making a decision by the commission
The labor dispute committee decides by secret ballot by a simple majority of votes of the committee members present at the meeting.What should be indicated in the decision of the commission on labor disputes:
- Name of the organization (full name of the employer - IP), and if an individual labor dispute is considered by the commission structural unit organization, then the name of the structural unit.
- Full name, position, profession or specialty of the employee who applied to the commission.
Dates of appeal to the commission and consideration of the dispute, the essence of the dispute.
Full name of the members of the commission and other persons present at the meeting.
Copies of the decision of the commission on labor disputes, signed by the chairman of the commission or his deputy and certified by the seal of the commission, are handed over to the employee and the employer (or their representatives) within three days from the date of the decision.
Execution of commission decisions
The decision of the commission on labor disputes is subject to execution within three days after ten days provided for his appeal. In case of non-execution of the decision within the prescribed period, the commission issues a certificate to the employee, which is an executive document.An employee can apply for a certificate within one month from the day the decision was taken by the commission on labor disputes.
The commission can restore this period if it was missed by the employee for good reasons.
If an employee or employer has filed an application for the transfer of a labor dispute to the court, the certificate is not issued.
On the basis of a certificate issued by the commission and presented no later than three months * from the date of its receipt, the bailiff enforces the decision of the commission on labor disputes by force.
*This period can also be restored by the commission that issued the certificate, if the employee misses it for good reasons.
Consideration of individual labor disputes in courts
The courts consider individual labor disputes on the basis of applications:- worker,
- employer,
- trade union protecting the interests of the worker.
- when their participants do not agree with the decision of the commission on labor disputes,
- when an employee goes to court, bypassing the commission on labor disputes,
- at the request of the prosecutor, if the decision of the commission on labor disputes does not comply with labor legislation and other acts containing labor law norms.
- Employee:
- on reinstatement at work, regardless of the grounds for termination of the employment contract,
- on changing the date and wording of the reason for dismissal,
- about transferring to another job,
- on payment for the time of forced absenteeism or on the payment of the difference in wages for the time of performing lower-paid work,
- about unlawful actions (inaction) of the employer in the processing and protection of personal data of the employee.
- Employer:
- on compensation by the employee for damage caused to the employer (unless otherwise provided by federal laws).
- about refusal to hire;
- persons working under an employment contract with employers - individuals, which are not individual entrepreneurs, and workers of religious organizations;
- individuals who believe they have been discriminated against*.
In accordance with the provisions of this article, no one may be restricted in labor rights and freedoms or receive any benefits, regardless of:
- sex,
- race,
- skin color,
- nationality,
- language,
- origin,
- property, family, social and official status,
- age,
- living place,
- relationship to religion
- political beliefs,
- belonging or not belonging to public associations,
- as well as other circumstances not related to business qualities worker.
Persons who believe that they have been discriminated against in the sphere of labor have the right to apply to the court with a statement:
- about the restoration of violated rights,
- compensation for material damage,
- compensation for moral damage.
At the same time, the employer has the right to apply to the court in disputes on compensation by the employee for damage caused to the employer, within one year from the date the damage was discovered.
If, for good reason, the deadlines established by the provisions of Article 392 of the Labor Code of the Russian Federation are missed, they can be restored by the court.
Now consider what is recognized good reasons, in the presence of which the term limitation period on labor disputes can be restored.
Paragraph 5 of the Resolution of the Plenum Supreme Court RF dated March 17, 2004. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” it is established that as good reasons for missing the deadline for applying to the court, circumstances that prevented this employee from filing a claim with the court in a timely manner for resolving an individual labor dispute can be regarded. For example:
- Plaintiff's illness
- finding him on a business trip,
- inability to go to court due to force majeure,
- the need to care for seriously ill family members.
Thus, the Volgograd Regional Court in its appellate ruling dated 23.11.2012. in case No. 33-11901/2012, he dismissed the claim to establish the fact of labor relations and the recovery of wages, since the plaintiff missed the statute of limitations and there were no good reasons for missing the deadline. At the same time, the references in the plaintiff's complaint to his legal illiteracy and the impossibility of protecting his rights due to physical disabilities (the plaintiff's disability) were not recognized as valid reasons for missing the deadline judicial protection violated rights.
In accordance with the provisions of Article 393 of the Labor Code of the Russian Federation, when an employee applies to the court with a claim on claims arising from labor relations *, he freed up from paying fees and court costs.
* Including regarding non-fulfillment or improper fulfillment of the terms of an employment contract that are of a civil law nature.
Court decisions on disputes on dismissal and transfer to another job
Based on Article 394 of the Labor Code of the Russian Federation, if the court recognizes the dismissal or transfer to another job as illegal, the employee should be restored at a previous job.In this case, by decision of the court, the employee is paid:
- average earnings for the entire time of forced absenteeism,
- the difference in earnings for the entire period of performance of the lower paid work.
- on the invalidation of the dismissal order,
- reinstatement at work
- recovery of wages for the time of forced absenteeism,
- compensation for non-pecuniary damage,
- recovery in favor of the plaintiff of the costs of paying for the services of a representative,
At the request of the employee, the court may limit itself to making a decision on the recovery of the above compensation in favor of the employee.
In addition, if the dismissal is recognized as illegal, the court may, at the request of the employee, decide to change the wording of the grounds for dismissal to dismissal of their own free will.
If found to be incorrect or inconsistent with the law:
- foundation statements,
- reasons for dismissal
If the dismissal is declared illegal, and the term of the employment contract for the time the dispute is considered by the court has expired, then the court considering the individual labor dispute is obliged to change the wording of the grounds for dismissal to dismissal after the expiration of the employment contract.
If, in the cases provided for by this article, after declaring the dismissal illegal, the court decides not to reinstate the employee, but to change the wording of the grounds for dismissal, then the date of dismissal must be changed to the date of the decision by the court.
In the event that by the time the said decision is made, the employee, after the disputed dismissal, has entered into an employment relationship with another employer, the date of dismissal must be changed to the date preceding the day the employee began working for this employer.
If the incorrect wording of the grounds and / or reasons for dismissal in the work book prevented the employee from entering another job, then the court decides to pay the employee average earnings for the entire period of forced absenteeism.
In cases of dismissal:
- without legal basis
- in violation of the established procedure for dismissal,
- illegal transfer to another job,
According to Article 396 of the Labor Code of the Russian Federation, the decision to restore:
- at work of an illegally dismissed employee,
- at the previous job of an employee illegally transferred to another job,
If the employer delays the execution of such a decision, the court issues a ruling on payment to the employee for the entire time of the delay in the execution of the decision of the average earnings or the difference in earnings.
Note:The reverse recovery from the employee of the amounts paid to him in accordance with the court decision, when the decision is canceled by way of supervision, is allowed only in cases where the canceled decision was based on the information provided by the employeefalse information or submitted by himfalse documents (Article 397 of the Labor Code of the Russian Federation).
The concept of an individual labor dispute
According to Art. 381 of the Labor Code of the Russian Federation, an individual labor dispute is an unresolved disagreement between an employer and an employee on the application of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, an agreement, a local regulatory act, an employment contract (including the establishment or change of individual working conditions), which are declared to the body for the consideration of individual labor disputes.
A labor dispute is a dispute on the establishment of a new labor subjective right, for example, the right to receive a higher salary or benefits and benefits, as well as a dispute between the parties regarding the scope of their mutual rights and obligations already established in regulatory legal acts and an employment contract.
An individual labor dispute is a dispute between an employer and a person who previously had an employment relationship with this employer, as well as a person who expresses a desire to conclude an employment contract with the employer, if the employer refuses to conclude such an agreement.
Legal relations related to a labor dispute arise on the basis of a statement received by a legal body, for example, a labor dispute commission (CTS) or a court, about a disagreement between the parties to an employment contract on the application of labor legislation or agreements on working conditions, as well as on issues compensation for material damage or compensation for moral damage. The labor dispute ends with the adoption by the court (or CCC) of a decision to recognize the subjective dispute or to refuse to satisfy the claim, as well as the application of sanctions and other measures to prevent further unlawful actions of the employer or employee.
The protection of the labor rights of employees is the means and methods established by the state by which the protection of labor rights and interests is carried out, as well as their forced restoration in case of violation and compensation to the employee in this case. in full material damage and moral damage.
The basis for the emergence of labor disputes is the failure to perform or improper performance of labor duties by one of the subjects of the labor relationship.
Bodies for consideration of individual labor disputes
According to Art. 382 of the Labor Code of the Russian Federation, individual labor disputes are considered by labor dispute commissions (CTC) and courts within the rights granted to them.
The question of where a specific individual labor dispute should be placed - in the commission on labor contracts or in court, is determined in accordance with their jurisdiction.
By jurisdiction, all labor disputes can be divided into the following:
- in a general manner, when the CCC is a mandatory primary stage, after which the dispute may be submitted to the court;
- directly in court, bypassing the CCC.
Assigning a labor dispute to one of the above groups means that other bodies are either not authorized to consider this dispute, or can consider it only after it was initially considered by the CCC. Correct Definition The jurisdiction of a particular labor dispute plays a major practical role, since the resolution of the dispute by an incompetent body has no legal force and cannot be executed in the prescribed manner.
If the labor dispute is individual, then its nature is established - on the application of labor legislation or on the introduction of new working conditions by agreement of the subjects of the employment contract, then it is determined from which legal relationship it (the dispute) follows.
An individual dispute about the establishment of new working conditions is not under the jurisdiction of either the CCC or the court, although it arose from an employment relationship. Disputes from legal relations closely related to labor relations are also outside the jurisdiction of the CCC and the court, for example, disputes about the application of legislation on pensions and benefits, because these relationships are governed by social security laws.
The established procedure for considering individual labor disputes, including their jurisdiction, does not deprive the employee of the right to apply to a higher authority in the order of subordination or to the court with a complaint against the actions (inaction) of a particular head of the organization. The employee has the right to appeal the illegal actions of the employer to other bodies, for example, to the prosecutor's office, the federal labor inspectorate and other structures that oversee and monitor compliance with labor and labor protection laws.
It is also necessary to take into account the effect on the territory of the Russian Federation of the Law on Justices of the Peace.
The Constitution of the Russian Federation establishes the obligation of the state and law enforcement agencies to protect the rights of workers. Therefore, each worker, if he considers his labor rights violated, has the right to qualified legal assistance and, above all, to judicial protection.
The procedure for consideration of labor disputes
According to Art. 383 of the Labor Code of the Russian Federation, the procedure for considering individual labor disputes is regulated by the Labor Code and other federal laws, and the procedure for considering cases on labor disputes in courts is determined, in addition, by the civil procedural legislation of the Russian Federation.
Features of consideration of individual labor disputes of certain categories of employees are established by federal laws.
Labor disputes are divided into claims and non-claims, individual and collective. It is customary to classify disputes of an actionable nature as disagreements arising in connection with the application of regulatory acts on labor and labor contracts, and to disputes of a non-contact nature - disagreements arising in connection with a change or the establishment of new conditions that are not regulated by regulatory legal acts and labor agreements.
Labor disputes regarding the application of labor legislation and other normative acts on labor of a collective agreement, agreements are considered by labor dispute commissions and courts of general jurisdiction, as well as justices of the peace. A mandatory out-of-court procedure for the consideration and resolution of a labor dispute is established in cases specified by labor legislation and the Code of Civil Procedure.
To determine the jurisdiction of a labor dispute means to establish a legal body that is authorized to resolve a specific labor dispute and make a decision on it that is binding on the parties. So, KTS is subordinate to all individual labor disputes of a claim nature, with the exception of those that can be resolved directly in court.
The CCC has jurisdiction over disputes on the recovery of wages and its amount, on the application of disciplinary sanctions, etc. The CCC of a structural unit, organization can only consider labor disputes within the powers of the unit, organization.
The procedure for considering a labor dispute is dictated by its nature. For example, a dispute over the recognition of a disciplinary sanction as illegal is resolved by the CCC, and a labor dispute over illegal dismissal for a systematic violation of labor discipline is resolved directly in court. This means that, according to the content of the labor dispute, it is possible to determine its jurisdiction, namely, in which initially legal body the labor dispute should be considered - initially in the CCC, and then in court, or directly in court.
At the first stage, the labor dispute should be considered between the subjects of the employment contract by mutual agreement of its parties. Only in the event that disagreements between the subjects of an employment relationship have not been resolved either through their direct negotiations or with the participation of representatives of an elected trade union body, the parties to the dispute may seek the assistance of a legal body.
Various kinds of disputes that often arise between an employee of an enterprise and an employer that cannot be settled in the working order, and concerning the application of the norms of labor legislation, collective agreements, other documents on labor relations, the labor legislation of the Russian Federation considers individual labor disputes.
The legislation requires to recognize as labor conflicts that take place between the employer and the former employee of the enterprise, who used to be in industrial relations with a specific employer or other entity who wished to sign an employment contract with him.
IN labor code Russian Federation, many Russian laws clearly spell out the procedure that maximizes the resolution of individual labor disputes (ITS). The judiciary also deals with these types of issues. These instances are guided by the procedural normative acts that are in force on the territory of Russia.
The subject of labor disputes
The subject that has become the basis of the conflict are various issues relating mainly to:
- payment for work performed;
- conflicts over the imposition of disciplinary sanctions by the employer;
- receiving benefits and compensation;
- providing paid and unpaid leave;
- changes in working conditions;
- application of labor legislation, other NPA;
- recovery of damages caused to the employer, etc.
Labor conflicts also include service conflicts, the occurrence of which is possible when carrying public service.
Terms of consideration
Individual disputes between the employee and the employer are considered in court after the applicant's appeal within 3 months from the date when he established or should have established that his rights were violated. If the dispute arose in relation to the dismissal - within 1 month from the day on which the dismissal order was issued to him or from the date on which he received work book.
The employer has the right to apply to the court if the dispute concerns compensation by the employee for damage caused to the employer within 1 year from the date he discovered such damage.
When considering in court disputes relating to such relations, related to non-fulfillment or improper fulfillment of the conditions stipulated by the employment contract, related to civil law cases, employees should not pay a fee, bear any other costs associated with litigation.
Resolution of individual labor conflicts in court
The jurisdiction of the judiciary also includes consideration of conflicts in the receipt of complaints written by an employee regarding:
- recovery this employee at work, regardless of the grounds for which he was dismissed by the employer;
- replacing the wording of the reasons that led to the fact that the employee was fired, changing the date of his dismissal;
- transfer to other work;
- the issue of payment for forced absenteeism by the employer;
- payment of the difference in wages when performing work paid at lower rates;
- application of illegal actions or inaction of the employer in the processing personal information workers and their protection.
The Court is engaged legal regulation questions on applications submitted by the employer, if there is a need to compensate for the damage caused by the employee, unless otherwise provided by law.
The judicial authorities accept applications for ITS for consideration if the employer refuses to hire a person without explaining the reasons. Also, this instance accepts claims from citizens, according to which they were discriminated against (). Such complaints can also be brought to court by citizens registered for an enterprise under contracts with employers who are individuals (not individual entrepreneurs), religious organizations.
Other organizations considering ITS
Provides for the participation of the State Labor Inspectorate in resolving individual disputes between an employer and an employee. This body is obliged within 10 days from the date of filing a complaint against the decision made by the employer to terminate the contract or, if the trade union does not agree, to consider this dispute. If it is found that accepted by the employer the decision is illegal, the State Labor Inspectorate is obliged to issue him an order in the appropriate form. This document is mandatory for the employer. The employee must be reinstated. Absenteeism, which in this case is forced, must be paid by the employer.
Disputes between the employee and the employer are also considered if they are of an official nature. This mission is entrusted to the State Commission on Service Disputes. Individual unregulated service disputes between an employer and an employee or person may arise if a citizen:
- is going to enter the service;
- previously served in the service;
- has a dispute over the application legislative documents, other NAPs related to the performance of civil service and the fulfillment of contractual conditions, which are declared to the body considering such types of disputes.
Disputes between employees of the prosecutor's office, police department and other instances of a similar nature are accepted for consideration by higher authorities.
ITS decisions and their implementation
By revising controversial issue it may be established that the employee was illegally fired contrary to the requirements of the law, or he was transferred to a job that he did not agree to perform or to a lower paid one. In this case, his employer is obliged to restore him to his previous workplace. The authority that has received the individual dispute has the right to make such a decision.
Also, this body is vested with the right to decide on the payment of average earnings to the employee infringed on the rights. The amount is calculated for the entire period when he was forced to play truant. It can also be about paying the difference in earnings if it was lost by the employee after he was transferred to perform work paid at lower rates.
An employee can apply to an individual dispute resolution body for payment of money for involuntary absenteeism. In this case, a decision may be made that will require the applicant to recover the average amount of earnings to the applicant. The average earnings must be paid for the entire period of absenteeism, if it was of a forced nature. It may also be decided to pay the difference if he performed work with lower pay.
In case of dismissal of the applicant, and recognition of this action as illegal, the relevant legislative norms solutions. On the basis of the employee's application, the body that was considering this individual labor dispute may make a decision that requires changing the wording entered in the work book and the order, according to which the employee was fired.
There are frequent cases when the wording of the reasons for dismissal was recognized as not complying with the requirements of the law. The judicial body, which is considering this labor conflict of an individual nature, must change it, indicating the grounds on which the employee was dismissed. In this case, the wording must exactly comply with the Labor Code of the Russian Federation or another normative act. In this case, the decision must contain references to the appropriate basis for issuing such a wording (paragraphs of the federal law, articles, etc.).
When the dismissal of an employee was considered illegal, and at the time of the ITS review, the terms of the employment contract expired, the court that worked on this dispute must amend the wording of what was the basis for dismissing the person. The decision made by the court must contain information about the expiration of the contract, and that this has become the final basis for the employee to be dismissed.
The court may recognize the dismissal of an employee of an enterprise or organization as illegal. In this case, a decision may be made to replace the wording with which the employee was dismissed, and not to reinstate him. The date on which he retires must be changed to the date on which the final verdict on this complaint was delivered.
An employee may take another job after being wrongfully terminated and contesting it through legal proceedings at the time of the court's decision. In this case, the date on which he was illegally dismissed must be replaced with the previous date from which he began work under a new employment contract.
Sometimes the incorrect wording of the reason for dismissal, entered in the work book, becomes an obstacle or reason for refusal when applying for another job. In this case, the court must make a decision by which it obliges the employer who fired the employee to pay him the average earnings for the entire period during which he had forced absenteeism.
If there were no legal grounds for dismissal or the legal procedure for dismissal, transfer to another job was violated, the judicial authority has the right (if the applicant so requests) to decide on the recovery of monetary compensation to the employee. It can also be compensation for moral damage caused by the illegal actions of the employer. The competence of the court is to calculate the amount of such compensation.
When the body that was reviewing the ITS recognizes the claim of an illegally dismissed or transferred employee for monetary compensation justified, its satisfaction must be carried out in full.
The employee must be immediately reinstated in his legal rights if such a decision was made by the court on the facts confirming the illegality of the employer's actions in relation to the applicant.
The employer may delay the implementation of the decision of the body that issued it. In this case, a ruling must be issued by which the employer is obliged to pay the employee money for the entire period of delay in the implementation of the decision. The amount of such payment may be calculated on the basis of the average earnings for the profession or the difference in earnings may be paid.
It is possible to recover from the employee the money that was paid to him by the decision of the body considering the ITS in the form of a reverse recovery. This option is allowed if the cancellation of the decision is based on the establishment of the fact that the employee provided information that does not correspond to reality or when the employee attaches false documents to the case.
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