No matter how many regulatory acts are issued regarding the prohibition of hiring people without registration, the situation on the labor market remains virtually unchanged. However, for such situations, a procedure for establishing the fact of an employment relationship is provided. At the same time, there is a tendency for some individuals to use this procedure for their own selfish purposes.
How is everything supposed to happen?
The employment relationship between the employee and the employer should be secured by issuing an order for employment or signing an employment contract or contract. Moreover, if employment is carried out through the publication of the order, the employee should be given a certified copy of such an order.
The Labor Code allows you to allow a person to perform labor duties under an oral agreement, but provided that a written contract is concluded within 3 days.
What if the employer does not want to fill out an employee?
There are several ways to try to solve this problem. First of all, you must contact the employer in writing. In the application, it is recommended to ask to enter information about the work in the work book, to give a copy of the order for employment. It is better to transmit the application through the office, if an employee of this department refuses to supply the incoming number and date, then it is better to send the application by registered mail and keep receipts.
The second option is to contact the prosecutor. After verification, the prosecutor can independently initiate the procedure for establishing the fact of labor relations in court.
The third option is that the employee independently goes to court to protect his rights.
The fourth option is to contact the labor inspectorate. This state body, although it will not go to court, but is authorized to conduct checks, will help the employee collect the necessary package of documents for going to court.
Evidence base
Naturally, having only assumptions, you can’t turn to the prosecutor, and even more so to the court, you need evidence. And what in this case can confirm that there is an employment relationship, but no formalization?
The fact of an employment relationship can be established using the following evidence:
- The testimonies of witnesses, but these persons should not be directly interested in a positive result of the consideration of the case, that is, to be relatives and close people.
- Direction to study or consent to the reception of a specific employee sent from the Central Employment Agency or recruitment agency.
- Pass to the place of work.
- Medical insurance policy.
- Settlement sheets.
- Power of attorney or other documents from which it will be clear that the plaintiff works for the defendant.
- Time sheet.
Simply put, any documents that will confirm the actions of the plaintiff in favor of the defendant will do. It is clear that it is not possible to obtain such documents from the employer. In this situation, employees can help if, of course, they wish to testify in court. Correspondence with the employer will help. In an extreme case, the court can petition that the employer claim all the documents that will prove the fact of the plaintiff’s admission to work.
What can I get from the employer?
If you have passed the procedure for the court to establish the fact of an employment relationship and managed to prove your case, then you can get from the employer:
- Salary in the amount that was able to prove to the plaintiff. But even if the real amount of wages could not be established, they will not award less than the minimum amount (of course, at the rate that was in force during the work period).
- The judge will appoint the employer to pay compensation for overdue wages, which is 300% of the refinancing rate, and for each day of delay.
- Compensation for unused vacation will be charged.
- The employer will be charged with other costs associated with the lawsuit, and expenses for lawyer services. An employee does not pay a state fee for going to court.
If claims for non-pecuniary damage were claimed, they would also have to be paid to the employer. In the end, you can get a decent amount.
When compiling a statement on the establishment of the fact of labor relations, do not forget about regional allowances. For example, in the Urals, it is 15%.
But it is worth remembering that if you win in court, the plaintiff must independently pay 13% of the income tax on the entire amount received.
Limitation period
The establishment of the fact of an employment relationship is possible within 3 months from the moment the employee found out that the employer was violating his rights. Although there is a general period of limitation in civil circulation, set at 3 years. At the same time, the employee can learn that he is not registered, and after 4 years from the date of employment.
When else is such a procedure required?
In addition to situations where an employee wants to prove his seniority, the establishment of the fact of an employment relationship is carried out in the following cases:
- if there was an unlawful dismissal;
- if no salary has been paid;
- if it is necessary to recover from the employer the damage that he caused in the performance of the employee's labor duties;
- if it is necessary to compensate moral damage.
In fact, the situations in which a decision is required to establish the fact of an employment relationship is much larger, and this is decided individually by the judge based on the circumstances of the case.
Where to file a lawsuit?
The employee must file a lawsuit with the court at the location of the employer. However, if the enterprise has branches, then it has the right to file a claim on the establishment of the fact of labor relations at the location of the branch or other structural unit, more precisely, at the place of direct performance of labor duties.
Claims in this category are assigned to the jurisdiction of city (district) courts.
Draw up a lawsuit
In the heading of the document are the data of the court where the employee is applying. The full details of the plaintiff and defendant, that is, the employer, are indicated below.
Further, the title of the document is attributed: "The statement of claim on the establishment of the fact of labor relations."
After that, it should be fully explained where and during what period the plaintiff worked. Indicate in what position, in the workshop, unit.
It is then indicated that the defendant did not conclude a contract with the applicant, but the work book was accepted by the personnel department. A pass was issued for unobstructed passage. At the workplace, training was given on labor protection and safety measures and so on. Simply put, all facts that confirm the existence of an employment relationship between the parties should be indicated.
If the plaintiff previously appealed to the employer to request an admission order, then this should be written.
Further, information should be provided when the letter of resignation was submitted and that upon receipt of the work book it turned out that the defendant did not make notes there.
Then, references to articles of the law that were violated by the employer, and requirements to it are indicated. In addition to establishing the fact itself, it should be written what the plaintiff requires from the defendant, what payments. If necessary, you can give examples of calculations (with formulas).
The following is a list of all documents that are attached as evidence. The signature, date and decoding of the applicant's full name are put on.
How is the hearing?
If the documents provided allow opening the proceedings, the judge shall make an appropriate decision. At the preliminary meeting on the establishment of the fact of labor relations, the plaintiff should be proactive and prove his position. The total period for consideration of such cases is 2 months, but it should be borne in mind that meetings can be postponed, and accordingly, the period for consideration of the case is postponed.
The decision shall enter into force in accordance with the general rules of civil proceedings, that is, after the expiration of the period which is granted for appeal of the decision.
The main thing is to remember that the burden of proof rests entirely with the plaintiff, so you should carefully prepare for the trial. If there are witnesses, you should agree with them so that they do not refuse to testify. Collect a complete package of documents as possible.
In cases of a positive decision, the plaintiff will receive not only material compensation. The employer will be obliged to register a person, to make the appropriate entries in the work book, and he will also have to pay contributions to all social funds.
And do not be afraid that the statute of limitations for establishing the fact of an employment relationship is only 3 months, if there are good reasons, then you can appeal to the court later.
When can a court take the side of an employer?
Judicial practice in resolving labor disputes is very diverse. It cannot be said that absolutely all claims regarding the establishment of the fact of labor relations are satisfied in favor of the plaintiff.
What needs to be done to the defendant in order to prove the fact of the absence of labor relations with the employee? The most important thing is to convince the judge that there is no written evidence that there was a relationship with the plaintiff. More often in court, the employer provides books of registration of orders, both general and personnel records, where it is clear that no business documents regarding the plaintiff were issued at the enterprise. It can also be either the accounting books themselves or job descriptions where the employee’s signature is missing. Often provide staffing, time sheets and books of attorney registration. To achieve the truth is often possible by attracting witnesses, company employees. As they say, if there is no evidence, then there is no fault.
Despite the seemingly great opportunities to defend against the plaintiff, the court nevertheless sometimes makes unprecedented decisions.
For example, once a Moscow judge did not accept as evidence the fact that an individual represented the enterprise on the basis of a power of attorney as an employment relationship.
The same court, but only in 2015 made another decision. He did not consider the fact of the employment relationship that a person had an internship and a safety training. The judge insisted that the briefing can take place even when the person is working on the basis of a civil law contract.
Eventually
Even if there is little chance of proving the point, the employee should still try to regain his rights in court. Do not be upset that you can’t get information from the administration of the employer, you should contact the prosecutor or the labor inspectorate. The main thing is that the truth will triumph, and the work experience should not be lost.