The current legislation provides for cases when claims for labor disputes are considered in court. Please note that this kind of application may be filed with the general jurisdiction. The grounds for filing claims are established in Art. 391 of the Labor Code of the Russian Federation. We will get acquainted with the comments to the article further.
General grounds for filing an application with the court
As you know, the employer has the right to impose a disciplinary sanction on an employee who has committed a violation of the law or the provisions of other normative (local, including) acts. One of them is dismissal.
TC contains several articles that provide grounds for termination of the contract. However, not in all cases the employee agrees with the actions of the employer. The law gives the employee the right to challenge the dismissal. TC , in particular, secures the opportunity to apply to the labor inspectorate. However, as practice shows, collective disputes are most often considered in this body. What to do if they dismiss from work without reason? Go to court. This form of protection is just provided in Art. 391 of the Labor Code of the Russian Federation .
The basis for appeal to the instance of general jurisdiction are cases when:
- An employee, an employer, or a trade union defending the interests of an employee disagree with the resolution of the dispute committee.
- The employee submits the application, bypassing the labor dispute inspection .
- The prosecutor submits the application if the resolution of the commission contradicts labor legislation and other acts containing norms governing labor relations.
Claim Categories
According to Article 391 of the Labor Code , the courts directly deal with disputes regarding applications by the employer for compensation to employees for harm caused to them, unless otherwise provided by law.
The list of reasons why an employee can apply to the court is somewhat more extensive. In particular, the courts consider disputes about:
- Recovery at work . In this case, the reason for termination of the contract does not matter.
- Changing the wording of the grounds and date of dismissal.
- Transfer to another job.
- Payment of time of forced absenteeism or difference for the period of performance of a lower-paid work.
- Illegal behavior of a direct employer in the process of processing and protecting personal data of an employee.
Additionally
A citizen can protect himself if he is not hired for reasons which, in his opinion, are disrespectful. Article 391 of the Code provides for the additional rights of persons whose interests in the labor sphere are infringed.
According to the norm, persons working for citizens who do not have the status of an entrepreneur, as well as those registered in the state of religious organizations, can apply to the court.
Art. 391 of the Labor Code of the Russian Federation also allows for the consideration of individual disputes on statements of citizens who believe that they have been discriminated against.
Explanations
As mentioned above, Art. 391 of the Labor Code of the Russian Federation can be applied when filing applications with the general jurisdiction. This means that the judge, having accepted the claim, must determine whether it follows from the employment relationship. Recall their signs.
Labor relations are based on an agreement between the employer and the employee on:
- personal performance followed for a set fee of a specific task;
- employee submission to the rules established by the enterprise;
- providing the employer with appropriate working conditions stipulated by law, local acts, contract, collective agreement.
In addition, the court determines the jurisdiction of the case.
Important point
In accordance with the Federal Law No. 147, 6, paragraph 1 of part 23 of the article of the Civil Procedure Code has lost force. In accordance with this provision, previously all disputes arising from labor relations were considered in the magistrate's court as in the first instance.
Currently, such cases are being investigated by the district court.
Individual labor disputes: deadlines
Article 46 of the Constitution guarantees the right of citizens to judicial protection. In turn, the Labor Code, in turn, does not contain reservations on the mandatory pre-trial appeal to the labor dispute inspection .
A citizen who believes that his right is violated may choose a method of protection. In particular, he may first apply to the dispute resolution commission. The exception is those cases that are dealt with directly by the court. If the decision of the commission does not satisfy the citizen, he can file a lawsuit. This must be done no later than 10 days from the date of the decision.
If the commission within ten days did not consider the submitted application, the interested entity has the right to transfer the case to court.
Nuances
According to Art. 391 of the Labor Code of the Russian Federation , the court can appeal not only to the employer and employee, but also to the trade union and prosecutor.
Turn to federal law. According to Article 23 of the Federal Law No. 10, if the employer has committed a violation of labor law, the trade union has the right, at its own initiative or at the request of members of the trade union or workers, to file a complaint with the structures considering labor disputes.
In part 2 of article 390, the Labor Code provides a time period for the employer or employee to appeal to the court if they disagree with the decision of the commission. It is 10 days. There is no period set for the union and the prosecutor. It seems that they should also be guided by the provisions of part 2 of article 390 of the Labor Code.
More about case categories
In addition to disputes expressly provided for in Article 391 of the Labor Code , cases may be considered in court on statements of a person:
- Received an unreasonable denial of employment. It is, in particular, about cases when a citizen is not hired because of age, color, religious worldviews, gender, social status, etc.
- Discriminated in the workplace. For example, a woman is not allowed to a managerial position. In such cases, among other things, the employee has the right to demand compensation for moral and material damage.
- He suffered material damage in connection with the unlawful actions of the tenant.
The employer has the right to file a lawsuit about:
- Recovery of earnings excessively paid to an employee in connection with his illegal actions.
- Compensation to employees of the harm caused to the enterprise, the amount of which exceeds its average salary.
- Collection of unpaid debt from the dismissed employee, if he gave a written obligation to pay the debt.
- Compensation by the employee for harm caused to the organization, the amount of which is greater than its average salary, if the one-month period for approval by the head of the order has expired or the employee does not want to indemnify the harm voluntarily.
In addition, the employer may appeal the order of the labor inspectorate to reinstate a previously dismissed employee.
Discrimination
It can take place both within the framework of a citizen’s professional activity and when the subject is illegally dismissed. What to do in such situations, whom to contact? In such cases, a direct road to court. It should be remembered that the fact of discrimination must be proved. It is advisable to take a copy of the tenant’s order. If necessary, the employee may well take additional written explanations of the head.
Discrimination can, for example, be expressed in the fact that the increase in salaries and tariff rates has affected all employees, except for a person who has reached retirement age. In the second situation, the employer, who decided to dismiss the employee under the article providing for the possibility of reduction, did not take into account the employee's preemptive right to remain in his post. It is referred to in article 179 of the Code.
Of course, not everyone knows what to do if they are fired from work without giving reasons. First of all, you need to understand that such actions of the employer are unlawful. For starters, you can consult the labor dispute committee. In such cases, the help of a qualified lawyer will also be useful.
The main thing - when applying to the court to have evidence of discrimination. You can additionally take testimony from colleagues.
It should be noted that the dismissed employee may present several requirements to the direct employer . At the same time, with some of them, he can appeal to the dispute committee, with some - directly to the court.
It is also necessary to take into account that the fact of the termination of labor relations does not affect the jurisdiction of the requirements.
In addition, if the tenant decides to dismiss under the article (regardless of which), it is necessary to verify the correctness of the documentation, the tenant's compliance with all the rules established by the TC.
Jurisdiction
Claims of the employer against the employee are sent to the place of residence of the latter. The employee submits an application according to the location of the enterprise.
Meanwhile, the legislation provides for the possibility of an employee to choose a place for consideration of a case when:
- The professional activities of the plaintiff are carried out in the branch / representative office of the organization. Claims to the enterprise arising from the activities of a separate division may be sent to the court not only at the address of the location of the parent company, but also its division.
- The lawsuit is related to the restoration of labor rights, compensation for losses incurred by an employee in connection with his unlawful conviction, prosecution under the Criminal Code, application of preventive measures against him (recognizance not to leave, detention), administrative sanction in the form of arrest. Such statements can be sent to the authority not only at the location of the organization, but also at the place of residence of the applicant.
This list is considered exhaustive.
Unreasonable refusal to admit to the enterprise
The Plenum of the Armed Forces in Resolution No. 2 of 03/17/2004 provided clarifications on the issues of consideration of such disputes.
The court, in particular, indicates that in the proceedings of such cases it must be taken into account that the right to work is enshrined in the Constitution. Citizens are free to manage their knowledge, abilities, choose a profession, occupation.
When concluding an agreement with the employer, the applicant has equal rights with other persons. No discrimination is allowed when hiring citizens. Any restrictions (direct or indirect), the establishment of benefits for individuals depending on race, gender, age, nationality, family, property, social status, place of residence and other circumstances not related to the professional qualities of the person are prohibited.
Meanwhile, when considering cases of refusal of employment to ensure optimal coordination of the interests of the employer and entities wishing to conclude an employment agreement, it is necessary to take into account that, in accordance with the Constitution and provisions of article 22 of the Labor Code (2 paragraph 1 of the article), the employer makes personnel decisions independently. The conclusion of a contract with the applicant is not the responsibility of the manager. Moreover, there are no requirements in the Labor Code that the employer is obliged to fill them immediately when vacant posts appear.
In disputes, the court must establish whether the head offered the vacancies available to him by posting announcements in the media, notifying the employment service, announcing during a speech to graduates of educational institutions, etc., whether he negotiated with a specific person (claimant, particular). It is mandatory to determine the grounds for refusal of employment, their legitimacy and validity are checked.
In this case, the court must take into account that non-employment due to circumstances that are clearly discriminatory is prohibited. For example, a woman cannot be refused due to the fact that she is pregnant or has minors dependent.
The current legislation contains an approximate list of grounds on which the employer cannot refuse the applicant. In this regard, the court evaluates the actions of the head and decides on the presence of signs of discrimination in them individually in each case.
If it is established that the refusal was associated with an insufficient level of professional training of the person, the refusal is recognized as lawful.
In the aforementioned Resolution, the Armed Forces draws the attention of the courts to the fact that the refusal to hire people living in the Russian Federation, but who do not have permanent registration at the address of residence / stay or location of the enterprise, is unlawful. Such actions of the employer violate the rights of persons to free movement in the Russian Federation and the choice of residence guaranteed by the Constitution. In addition, such a refusal contradicts the provisions of part 2 of article 64 of the Labor Code, which do not allow restricting opportunities or establishing advantages for individuals when applying for work on this basis.
Special category of disputes
Often, in practice, difficulties arise when considering cases arising from legal relations between a citizen shareholder and an AO or other participant in a company / partnership and this company / partnership. Such disputes are also subject to jurisdictions of general jurisdiction.
The issue of classifying such cases as labor disputes is decided on the basis of the provisions of Article 381 of the Labor Code. In accordance with it, an unresolved disagreement between the employer and the employee on issues related to the application of labor standards in the law and other legal acts, including local acts, the collective agreement, and the contract announced to the body authorized by him, should be considered an individual dispute. allow.
Legal relations between the sole executive structure of a company (general director, for example), members of collegial structures on the one hand, and the companies themselves on the other are based on labor contracts, cases fall into the category of labor disputes if they are related to the recognition of invalidity of decisions made by said executive bodies on:
- early termination of powers;
- reinstatement;
- payment of forced absenteeism.
The term for consideration of civil cases under the general rules is no more than two months from the date of receipt of the claim in court. Cases relating to reinstatement are reviewed and resolved within a month.
If, within the framework of one dispute, on one part of the claims, the decision must be made no later than two, and on the other - one month, the case shall be considered before two months have elapsed since the date the claim was filed with the court. That is, the general time period provided by law for the proceedings is valid.