5 most common mistakes in employment contracts and their consequences

An employment contract concluded between an employee and an employer is a bilateral document. This means that liability for violation of its provisions may arise for both the employee and the employer. Rostrud primarily guards the interests of the employee. However, the employer also has sufficient legal grounds to defend its interests if the employment contract is violated by the other party.

Question: A former employee of the organization, in violation of the confidentiality agreement concluded with her upon hiring after the termination of the employment contract, stole a client from the organization, offering him more favorable terms of cooperation. The client terminated the contract with the organization. Can a former employee be held liable? If yes, what ways are there for this? View answer

Violations of the contract by the employee

An employee who violates an employment contract, in certain cases, risks immediately losing his job. Let's look at them first.

Question: Is non-payment of a bonus a violation of labor laws if the employment contract states that wages consist of an official salary and a bonus? View answer

Can I be fired immediately?

In Art. 81 of the Labor Code of the Russian Federation, paragraph 6, contains a list of violations for which liability may occur immediately. The administration may terminate the employment relationship with an employee without waiting for him to violate the employment contract again:

Disclosure of secrets related to the performance of work duties. Here we are talking not only about commercial and official secrets, but also about the disclosure of personal data to third parties. The fact of disclosure must be documented by explanatory notes, memos from other employees, video surveillance data and other legitimate information. In addition, an explanation from the violator himself or a corresponding act in case of refusal to provide it is necessary.

Note! If an employee violated the rules for working with classified information, but it did not become available to third parties, his dismissal will be illegal. At the same time, the use of other, less severe disciplinary sanctions is acceptable.

Truancy. Absenteeism is considered to be a situation when an employee is absent from work for the entire working day, shift, or is absent for more than 4 hours in a row without good reason. Judges recognize as valid reasons a strike, arrest, force majeure circumstances beyond the control of the employee (for example, unsatisfactory performance of a transport company), termination of work after a long delay in wages (more than 15 days, after a written warning to the administration), issued sick leave and a number of others. Written evidence of the offense and a written explanation from the offender will also be required.

Question: Is it possible to recognize labor costs for income tax purposes if the written form of the employment contract is not complied with (Clause 1, Article 252, Article 255 of the Tax Code of the Russian Federation)? View answer

Drunk at work. There is a peculiarity here - the courts certainly take into account only the medical report, from which it follows that the employee was drunk. If he refuses to undergo an examination, evidence may include employee testimony, a video indicating that the employee behaved inappropriately at work. In this case, we are talking not only about alcohol intoxication, but also about its other varieties, for example, drugs. A drunk person must be immediately removed from work.
Property violations: theft, embezzlement, damage, intentional destruction of company property. Here, the employer delegates the authority to establish the truth to the competent authorities and does not independently collect evidence. This case is quite ambiguous from the point of view of judicial practice. Thus, dismissal may be considered illegal if there was an amnesty in the case, a confession (this circumstance is not in itself evidence of guilt), etc.

What is the responsibility of the employee and employer for violation of the terms of the employment contract ?

Violation of labor safety standards with grave consequences or the threat thereof.

It is important to install here:

the employee’s real guilt in violations;
real serious consequences or their threat;
connection of actions with consequences.

Guilt is established at the enterprise according to a special procedure (Article 227 of the Labor Code of the Russian Federation et seq.) by a special commission, an employee of the occupational safety service in its composition.

In addition, dismissal may follow in the following cases:

Forgery of documents. If, for the purpose of deception, a citizen provided a false diploma, work book, or other documents when applying for a job, he may be fired without being given another job (clause 11).
The employee does not fulfill his duties under the employment contract without good reason, has been repeatedly found guilty of negligence and has already received a disciplinary sanction (clause 5).
Inconsistency with position and qualifications (clause 3).

Special grounds

Further pp. 7-10 of the same article contain a number of additional serious grounds on which an employment contract may be terminated. They apply to certain categories of employees:

Loss of trust of financially responsible persons. If an employee directly deals with inventory or cash and, as a result of his questionable actions, has lost the trust of the administration, he may be fired. Dismissal makes sense only if an agreement on full financial responsibility has been concluded with the employee. Judicial practice recognizes bribery as a sufficient reason for dismissal, if the fact is established by law.
An official who violates anti-corruption legislation (for example, does not provide information about income or provides incomplete information) risks losing his job.
Immoral act. This point concerns teaching staff. Physical or moral humiliation of students, humiliation of parents in the presence of a child, or insult of a colleague can be recognized as immoral acts.
The managers of a company can be fired for making unfounded decisions, as a result of which real material damage was caused to the company (for example, salary increases when the financial condition of the company is unfavorable, concluding contracts with obviously unreliable partners). Here the connection between the damage and the wrongful decision of one person must be proven.
One-time gross violation of duties by a manager. The legislation does not contain an exhaustive list of such violations. As a rule, the final decision rests with the judges, and evidence of correctness is provided by the employer (for example: negligence in the duties outlined in the employment contract, which resulted in serious material losses, loss of health of employees; signing an order to hire fictitious workers).

In addition, the manager and deputies, the chief accountant may be fired when the owner of the organization’s property changes (clause 4).

What should an employee do to defend his rights?

How to file a complaint

Collection of evidence

The legislative acts do not indicate what documents must be provided in labor disputes with the employer.

However, their presence will make it possible to clearly establish a violation of working conditions by the employer. Therefore, it is very important for an employee to understand how to prove a violation of the terms of an employment contract.

If an employee simply filed a complaint with the supervisory authority, but did not provide any documents, this cannot be considered a violation and a reason for refusing to accept the appeal.

Typically the following documents serve as evidence:

A copy of the employee’s passport (to determine identity);
A copy of the work book with the latest entry on admission;
A copy of the employment agreement and all signed additional agreements;
Copies of orders that affect the employee’s activities - hiring, transfer, vacation, dismissal, etc.
Copies of documents confirming the accrual and payment of wages - payslips, copies of statements, etc.
Documents with which you can confirm the fact of work in the organization (if there was an improper execution of the contract or work without a contract at all).

Sample application

The law does not indicate on what basis a complaint should be drawn up. This usually takes place in the format of a business letter.

If an employee writes an appeal on a piece of paper by hand, then his handwriting must be legible. The law allows refusal to consider an appeal if its text is difficult or impossible to understand. If the application is typed on a computer, there must be a live signature.

The appeal should be based on the following principles:

In the upper part on the right, information about the body to which the appeal is sent is recorded, and below is information about the employee. The law prohibits anonymous complaints;
The text must indicate the name of the employer, as well as its main management persons;
Next, it is necessary to describe the violation of labor rights that occurred;
The appeal ends with the date and signature. If the employee has evidence, he must attach it and indicate the list at the end of the application.

When the employer violated the employment contract

Violations of the employment contract and violations in the field of labor relations are generally monitored by Rostrud. There is a document of this federal service called “List of typical violations of mandatory requirements...”, which collects and classifies by degree of risk for employees all violations of the employment contract by the employer. There are 76 violations in total.

The most serious violations: Rostrud warns

The most serious violations are marked with points from 7 to 10. There is a link to the articles of the Labor Code of the Russian Federation for each violation.

When applying for a job it is:

Failure to draw up an employment contract (Article 16, 19.1).
A civil contract is concluded instead of an employment contract, but in fact an employment relationship takes place (Article 15).
The employee is allowed to work, but is not authorized to do so by the employer (Article 67.1).

In the case of dismissal, these are violations of the dismissal procedure during liquidation (termination of the activities of an individual entrepreneur), reduction in number or staff (Article 81).

Working time violations:

Violation of work procedures on weekends, holidays, overtime, at night, in relation to car drivers, pilots, minors (Article 96, 268).
Failure to provide rest between shifts (Article 103).
Increasing the duration of working hours in total for a period or per week (Article 91 and a number of others).

Rest time violations:

The employee is not granted additional leave (Article 116).
The employee is deprived of days off (Article 110).
The employee, in appropriate cases, is deprived of breaks for heating and rest (Article 109).

Wage violations:

Failure to pay the salary established by the employment contract, or the salary established by the contract is not paid in full (Article 136-6).
The salary is below the minimum wage (Article 133-3).
Weekends and working holidays are paid as ordinary days (Article 153).
Overtime is paid like regular days (Article 152).

In the field of guarantees and compensation, the most serious is the deprivation of severance pay to an employee in accordance with Art. 178.

Occupational Safety and Health:

The employee is allowed to work, but has not completed occupational safety training; is not provided with personal protective equipment when working in conditions of high danger to life and health (Articles 212, 225, 221).
The employee was admitted to work, but did not undergo the required medical examination or was admitted having medical contraindications to this work (Article 69 and a number of others, depending on the type of medical examination, Article 212).
Labor safety requirements are violated at production (Articles 212, 211).
Ignoring the requirements for organizing workplaces for people with disabilities (Article 224)
Inappropriate organization of labor for minors, ignoring restrictions and prohibitions on the use of their labor (Article 265).
Inappropriate organization of work for women and workers with family responsibilities, ignoring restrictions on the use of their labor (Article 253 and a number of others).

Violation of the provisions of the collective agreement (Article 55) is classified as serious (7 points). It is also considered a serious violation (8 points) to ignore the requirements of Federal Law No. 426 dated 12/28/13 regarding potentially harmful, hazardous production factors in the workplace.

Other violations

Other violations of the employment contract and working conditions of personnel may also have consequences for the administration. Rostrud draws the employer's attention to such factors of medium (4-6 points) and low (3-1 points) risk as:

violation of the procedure for drawing up an employment contract and work books;
violation of the dismissal procedure (termination of an employment contract);
violation of the procedure for recording working hours;
violation of the vacation schedule;
violation of deadlines for payment of wages, or if these deadlines are not documented;
non-payment of the average wage when an employee undergoes a medical examination, etc.

The full list of violations and their “weight” is contained in the above “List of Typical Violations.”

Employment contract with employee

6.4. The normal working week should generally not exceed 41 (20.5) hours per week. Overtime beyond the normal working week is paid at double the rate for each hour. Days off are provided to the Employee in accordance with the internal labor regulations of the Enterprise.

The employment contract with the employee is filled out in two copies. It is possible to fill out the document in triplicate if you involve an intermediary in the transaction or want to have the contract certified by a notary. In this case, each party remains in possession of one copy.

Types of liability

In conclusion, let us pay attention to the types of liability of the parties for violation of the employment contract. When an employment contract is violated, we are talking primarily about the disciplinary liability of the employee and the administrative liability of the employer - depending on whose side the violation occurred.

Disciplinary liability is prescribed by Article 192 of the Labor Code of the Russian Federation and includes, in addition to dismissal, a reprimand and a reprimand. The procedure for applying disciplinary sanctions must be strictly observed, in particular, collecting evidence (as we discussed above), obtaining explanations from the employee, otherwise it can be successfully appealed to Rostrud, in courts and other similar authorities. The period for applying such a penalty is one month from the moment the violation was discovered and six months from the moment it was committed.

Administrative liability is regulated primarily by the Code of Administrative Offences, Article 5.27. The employer risks receiving a fine, depending on the type and severity of the violation of the employment contract and labor law.

In addition, in some cases, criminal liability may be applied if there has been theft or a serious violation of labor relations. For example, criminal liability of an employer who has been delaying wages for a long time and maliciously may arise under Art. 145.1 of the Criminal Code of the Russian Federation.

Criminal and administrative liability in this area is often accompanied by financial liability of one of the parties to the employment contract.