An employment contract serves as confirmation of the existence of a legal relationship between a person and an employer; its terms must comply with the norms of the Labor Code of the Russian Federation. The contract specifies in detail the scope of work, the timing of its completion, the procedure for collecting material damage, the amount of sanctions and the reasons for the severance of labor relations. Often, an employment contract puts workers at a disadvantage, since the deal deprives him of the opportunity to refer to the guarantee standards listed in the Labor Code. The article reveals the signs that allow you to distinguish between an employment contract and a contract.
Terms of service contract
The terms of the service contract are listed in Art. 24 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” (hereinafter referred to as Law No. 79-FZ ).
The essential terms of the service contract include:
- the name of the civil service position to be filled, indicating the division of the government body;
- date of commencement of official duties;
- rights and obligations of a civil servant, job regulations;
- types and conditions of medical insurance for a civil servant and other types of his insurance;
- rights and obligations of the employer's representative;
- conditions of professional official activity, compensation and benefits provided for professional official activity in difficult, harmful and (or) dangerous conditions;
- regime of official time and rest time (if it differs for a civil servant from the official schedule of a government body);
- terms of remuneration (the amount of the employee’s official salary, bonuses and other payments, including those related to the performance of his professional work), established by Law No. 79-FZ , other federal laws and regulations;
- types and conditions of social insurance related to professional work;
- finding the position being filled by the employee in the list of civil service positions for which rotation of employees is provided.
In addition, the contract may provide for the following conditions:
- about testing upon entry into the civil service;
- on non-disclosure of information constituting state and other secrets protected by federal law, and official information, if the official regulations provide for the use of such information;
- on the obligation of a person to perform civil service after completing training in a professional educational organization or educational organization of higher education for no less than the period established by the agreement on targeted admission or the agreement on targeted training, if the training was carried out at the expense of the relevant budget;
- on the performance indicators of the professional performance of a civil servant and the associated terms of payment for his labor and other conditions that do not worsen the position of the employee in comparison with the situation established by Law No. 79-FZ , other laws and regulations.
Types of changes
First of all, we note that, unlike the Labor Code, Art . 72 of which states that changing the terms of an employment contract is allowed only by agreement of the parties, with the exception of cases provided for by this code, in Part 5 of Art. 24 of Law No. 79-FZ establishes that the terms of a service contract can only be changed by agreement of the parties and in writing. However, according to Art. 29 of Law No. 79-FZ still allows changes to the essential terms of the service contract at the initiative of the employer.
One type of change in the terms of a service contract by agreement of the parties is the transfer of an employee to another position in the civil service. The transfer can be temporary or permanent. Moreover, if a permanent transfer of an employee is allowed only with his consent, then a temporary transfer is possible without it, that is, on the initiative of a representative of the employer, in the cases established by Art. 30 of Law No. 79-FZ .
The transfer of a civil servant to another position means a change in his job responsibilities specified in the service contract and job regulations.
Regarding transfer, it is also worth noting that the concept of transfer in the civil service is somewhat different from transfer in accordance with the Labor Code. Thus, if a transfer by virtue of labor legislation, in addition to a change in job duties, will be considered a change in the structural unit in which the employee performs his duties (if it was specified in the employment contract), then a change in the structural unit for a civil servant will not be a transfer if his official the responsibilities have not changed.
note
The transfer of a civil servant means a transfer to another position in the civil service with a change in job responsibilities in the same or another government agency, or a transfer to another locality together with a government agency. Moving him to another civil service position without changing job responsibilities established by the service contract and job regulations is not a transfer to another civil service position and does not require the consent of the employee ( Article 28 of Law No. 79-FZ ).
The rotation of employees can also be called a kind of transfer. But during rotation, the service contract for the position held is terminated, the employee is appointed to another position in another government body, and a new service contract is concluded with him.
As for the remaining terms of the service contract, as already mentioned, they can be changed by agreement of the parties by virtue of Art. 24 of Law No. 79-FZ or at the initiative of the employer’s representative by virtue of Art. 29 of Law No. 79-FZ . At the same time, by agreement of the parties, both essential and additional terms of the contract may be changed, and at the initiative of the employer’s representative by virtue of Art. 29 of Law No. 79-FZ - only essential ones (except for official duties).
Speaking about changes in the terms of the employment contract on the initiative of the employer’s representative, we can also note some differences from changes in the terms of the employment contract on the initiative of the employer. So, in Art. 74 of the Labor Code of the Russian Federation specifies the reason why an employer can change the terms of an employment contract unilaterally - this is a change in organizational or technological working conditions. And in Art. 29 of Law No. 79-FZ, the reasons why the terms of the contract may change are not specified at all. It is assumed that for civil servants they are similar to Art. 74 of the Labor Code of the Russian Federation , that is, due to changes in organizational or technological working conditions.
Civil and employment contracts: the difference between them
An employment contract implies the personal performance by the employee of work given by the employer, within the framework of a certain position or specialty of appropriate qualifications. At the same time, the employee undertakes to comply with the requirements of the internal regulations. The employer, in turn, creates the necessary working conditions and pays for the work performed in full and on time. The employee is subordinate to the employer.
All other issues of the relationship between the employee and the administration are regulated by law, for example: the length of work and rest time, including weekends and vacations, guarantees and compensation for preferential categories of workers, those whose work takes place under special conditions, restrictions on the amount of collection of employee debt, additional benefits.
The civil contract is signed by the customer and the contractor. The latter undertakes to do the work, provide the service, and the customer undertakes to pay for it on time and in full. Does not oblige the executor to personally fulfill the order. The relationship is equal.
Such relationships are not subject to guarantees established by labor legislation, that is, the performer is not provided with sick leave, vacations, or weekends. Labor is paid not twice a month, but based on the results of work and provision of services. The customer does not have to provide the necessary conditions. For its part, the contractor must not comply with the requirements of the customer’s internal regulations.
Similar to an employment contract, for example, is a type of employment agreement such as a contract for the provision of paid services.
Sometimes the administration seeks to conclude this type of agreement, as it eliminates the need to pay mandatory insurance premiums. If the inspector discovers that the contractor, when executing an order, is subject to the internal rules of the customer organization, the customer dictates the stages of execution of the order, such a contract may be qualified as an employment contract and forced to conclude it in writing. The executor can make a similar claim by contacting the administration and, having received a refusal, going to the labor inspectorate or court.
The procedure for changing the essential terms of service
So, according to Art. 29 of Law No. 79-FZ, in the event of a change in the essential conditions of professional service activity at the initiative of the employer’s representative, while a civil servant continues his professional service activity without changing his job responsibilities, it is allowed to change the essential terms of the service contract determined by the parties.
The employee must be notified of such a change by a representative of the employer in writing no later than two months in advance. Changes to essential conditions are formalized in the form of an additional agreement to the service contract.
If an employee does not agree to fill a civil service position and perform civil service in the same or another government agency due to a change in the essential terms of the contract, the employer’s representative has the right to release the employee from the position being filled and dismiss him from the civil service. In this case, he must be offered another civil service position to fill. In case of refusal, the contract with him is terminated in accordance with clause 7, part 1, art. 33 of Law No. 79-FZ : refusal of a civil servant from a civil service position proposed to be filled in connection with a change in the essential terms of the service contract.
note
Notification of an employee about changes in the material terms of the contract and the offer of a vacant position in connection with such changes, as well as the employee’s refusal of the proposed position must be in writing.
Note that, in contrast to dismissal under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation in connection with the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties, when the employee, by virtue of Art. 178 of the Labor Code of the Russian Federation, severance pay is paid in the amount of two weeks’ earnings upon dismissal of an employee under clause 7, part 1, art. 33 of Law No. 79-FZ, the payment of severance pay is not established by this law.
It should be recalled here that, by virtue of Art. 73 of Law No. 79-FZ , federal laws, other regulatory legal acts of the Russian Federation, laws and regulatory legal acts of constituent entities of the Russian Federation containing labor law norms apply to relations related to the civil service, to the extent not regulated by Law No. 79-FZ . Based on this article, upon dismissal of an employee under clause 7, part 1, art. 33 of Law No. 79-FZ, the provision of Art. 178 of the Labor Code of the Russian Federation and severance pay is paid.
However, this point of view is not supported in practice. The fact that the provisions of Art. 178 of the Labor Code of the Russian Federation do not apply when dismissing an employee on the specified basis, as stated, for example, in the Letter of the Ministry of Health and Social Development of the Russian Federation dated May 10, 2011 No. 17-3/834 . The courts take the same position (for example, see the Determination of the Perm Regional Court dated 03/09/2011 in case No. 33-2106 ).
Competition as the basis for the emergence of an employment contract
Article 18 of the Labor Code of Russia defines as the reason for the emergence of labor relations the election by competition to fill the corresponding position.
According to this article, labor relations arise after selection through a competition, which serves as the basis for signing an employment contract between the employer and employee. These procedures together represent a rather complex process of a legal nature, which is the basis for the emergence of labor relations.
Mistakes of the employer's representative when dismissing an employee
When dismissal due to changes in the essential terms of the service contract, employers make many mistakes.
Using the example of court decisions, we will consider the main ones. Failure to comply with the dismissal procedure, in particular, another civil service position is not offered, there is no written refusal of the employee to fill another civil service position in connection with a change in the essential terms of the service contract.
I. was in the state civil service in the Barents-Baltic Territorial Administration of the Federal Fisheries Agency, as a senior state inspector of the department of state control, supervision and protection of aquatic biological resources. By order of the head, I. was relieved of his position and dismissed from the state civil service under clause 9, part 1, art. 37 of Law No. 79-FZ in connection with disagreement with filling a civil service position and performing civil service in the same government body due to a change in the essential terms of the service contract.
The court found that by order of the head the size of the monthly bonus to the official salary for special conditions of the state civil service was changed from 90% to 60%. I. was familiarized with the order and signed an additional agreement, which formalized the change in the terms of the service contract in terms of the amount of the monthly allowance, expressing disagreement with the specified documents.
At the same time, I. did not refuse in writing from filling a civil service position and performing civil service in connection with a change in the essential terms of the service contract. After signing the order and additional agreement, I. continued to serve until his dismissal for more than five months.
The employer's representative indicated: before the decision to dismiss I. was made, he actually had I.'s refusal to accept the offered position, since he refused to sign an additional agreement, about which an act was drawn up, which reflected I.'s orally expressed reasons for refusing to sign the additional agreement. In addition, the employer’s representative incorrectly applied paragraph 9 of Part 1 of Art. 37 of Law No. 79-FZ - dismissal in other cases provided for by Law No. 79-FZ and other federal laws, since he believed that I.’s dismissal occurred on the initiative of a representative of the employer and on the grounds of clause 3 of Art. 29 of Law No. 79-FZ , due to the fact that there was no written refusal of I. to fill the civil service position.
But the court recognized I.’s dismissal under clause 9 of part 1 of Art. 37 of Law No. 79-FZ is illegal and here’s why. First of all, the employer’s representative did not have I.’s refusal to fill the position of the civil service in connection with changes in the essential terms of the contract, therefore, there were grounds for releasing I. from the position he was filling and dismissal under Art. 29 of Law No. 79-FZ did not exist. In itself, disagreement with the reasons for changing the essential terms of the service contract at the initiative of the employer’s representative does not mean disagreement with filling the position on the changed conditions; it cannot be recognized as such.
In addition, the defendant did not comply with the provisions of Part 4 of Art. 29 of Law No. 79-FZ : another civil service position was not offered to I. in connection with a change in the essential terms of the service contract and a written refusal was not received from the position proposed for replacement, giving grounds for the dismissal of a civil servant on the basis of Art. 29 of Law No. 79-FZ under clause 7, part 1, art. 33 of Law No. 79-FZ .
Moreover, the presence of vacancies on the date of dismissal of the plaintiff was established by the court. As a result, the dismissal order was canceled, and I. was reinstated at work. The cassation board left this decision unchanged ( Cassation ruling of the Murmansk Regional Court dated February 15, 2012 in case No. 33-411-2012 ).
Let’s assume that the employer’s representative performed all the actions necessary for dismissal: sent a notice, offered another position, was refused... but violated the deadlines established by Art. 29 of Law No. 79-FZ , in particular the two-month notice period. In this case, the consequences for the employee may be different; he may not need to be reinstated.
G. worked at the MIFNS, but due to the reorganization, which caused a change in the essential terms of the service contract (position title), and the refusal of the civil service position proposed for replacement in connection with this change, she was dismissed under clause 7 of part 1 of Art. 33 of Law No. 79-FZ . G. considered the dismissal illegal and went to court, demanding that she be reinstated in her previous position and that she be given wages for the period of forced absence.
As a result of consideration of the circumstances of the case, the court found that the dismissal was made on legal grounds, but the deadline for notifying G. about changes in the essential terms of the contract was violated - the notification was made in less than two months. As a result, the court imposed the obligation on the MIFNS to change the date of G.’s dismissal and pay her wages during this time ( Determination of the Sverdlovsk Regional Court dated 06/07/2012 in case No. 33-6618/2012 ).
If the essential terms of the service contract change, the job responsibilities also change.
R. was appointed to the position of the state civil service, namely the position of head of the territorial department of the Rospotrebnadzor Office for the Krasnoyarsk Territory in the Kuraginsky District (hereinafter referred to as the Office) - the chief state sanitary doctor for the Kuraginsky District.
The department sent the plaintiff a notice that his position would be abolished, and at the same time offered the position of chief specialist expert in Minusinsk. The basis for sending this notification was the organizational and staffing measures being taken. R. refused the offered position, after which he was dismissed under clause 7 of part 1 of Art. 33 of Law No. 79-FZ .
The claims for declaring the order illegal were satisfied by the court, since, according to official regulations, the position of the head of a territorial department is classified as a group of positions in the state civil service of the category “managers”, whose official responsibilities are related to organizational and administrative powers, powers to control the activities of the department and its employees, and the position of “chief specialist-expert” is classified in the category of “specialists”, whose job responsibilities are related to direct monitoring of compliance with the requirements of sanitary and epidemiological legislation by legal entities and individuals when conducting relevant inspections.
Thus, when offering R. the position of chief specialist expert, the employer unilaterally decided not only to change the essential terms of the service contract, but also to change job responsibilities, which is a violation of the requirements of Art. 29 of Law No. 79-FZ .
In addition, from the staffing tables of the Department it followed that there had been an actual reduction in the position of the head of the Department. The appellate court agreed with the court's decision in this part ( Appeal ruling of the Krasnoyarsk Regional Court dated September 1, 2014 in case No. 33-8498, A-9 ).
Substitution of grounds for dismissal under clause 7, part 1, art. 29 of Law No. 79-FZ other grounds for dismissal.
In 2013, E.E.V. entered into a service contract for state civil service in the Ministry of Forestry, Nature Management and Ecology of the Ulyanovsk Region (hereinafter referred to as the Ministry). By decree of the governor of the Ulyanovsk region, the Ministry was abolished. The functions of the abolished Ministry were transferred to the newly formed Ministry of Agriculture, Forestry and Natural Resources of the Ulyanovsk Region.
A notice was sent to E. E. V. signed by the Minister of Agriculture, Forestry and Natural Resources of the Ulyanovsk Region with an offer to fill another position in the state civil service. The plaintiff refused the offered position and asked to dismiss her on the basis of clauses 8.2 , 8.3 of Art. 37 of Law No. 79-FZ (reduction of civil service positions in a government agency; abolition of a government agency) and pay her monetary compensation associated with the dismissal.
By order of the acting minister, E.E.V. was relieved of her position. Grounds: refusal of a civil servant from a proposed civil service position due to a change in the essential terms of the service contract in accordance with clause 7, part 1, art. 33 of Law No. 79-FZ .
The court of first instance rejected the claims of E.E.V., based on the fact that the state body of the Ministry was not abolished, its functions and powers were transferred to the newly created Ministry of Agriculture, Forestry and Natural Resources of the Ulyanovsk Region, in connection with which the defendant had grounds for her dismissal under clause 7, part 1, art. 33 of Law No. 79-FZ .
However, the appellate court did not agree with this conclusion: based on the meaning and interrelation of the above norms, Law No. 79-FZ provides that the abolition of a state body and the refusal of a civil servant to transfer to another body to which the functions of the abolished body have been transferred is grounds for dismissal in accordance with from clause 8.3, part 1, art. 37 of Law No. 79-FZ .
From the analysis of Art. 24 and 29 of Law No. 79-FZ it does not follow that the abolition of a state body and the transfer of its powers to a newly created body is a change in the essential terms of the service contract, entailing its termination in accordance with paragraph 7 of Part 1 of Art. 33 of Law No. 79-FZ .
The fact that there is a similar position in the newly created body cannot serve as a circumstance indicating a change in the essential terms of the contract, since the state body in which the plaintiff worked was abolished and the position is offered in the newly created state body.
In this type of legal relationship, there can be no talk of changing the essential terms of the service contract, since its validity has been completely terminated. In this particular case, there was a reorganization of a state body, which resulted in the termination of the activities of the body with which the plaintiff had a service contract, and resulted in the creation of another state body - the legal successor of the previously existing government agency and the termination of labor relations with the government agency that ceased its activities, the consequence of which should be no change essential terms of the service contract, and the conclusion of a new service contract with a completely different, newly created government agency, albeit the legal successor of the previous employer.
Having assessed all the evidence presented in total, the judicial panel finds grounds for the plaintiff’s dismissal from the civil service under clause 7 of part 1 of Art. 33 of Law No. 79-FZ is illegal and believes that the basis for dismissal is subject to change to clause 8.3, part 1, art. 37 of Law No. 79-FZ , with the recovery from the defendant in favor of the plaintiff of compensation in the amount of four months’ maintenance in accordance with Part 3.1 of Art. 37 of Law No. 79-FZ ( Appeal ruling of the Ulyanovsk Regional Court dated February 25, 2014 in case No. 33-645/2014 ).
The appeal ruling of the Supreme Court of the Republic of Sakha (Yakutia) dated August 14, 2013 in case No. 33-3034/13 left unchanged the decision of the court of first instance on the reinstatement of an employee dismissed under clause 7 of part 1 of Art. 33 of Law No. 79-FZ , and recovery of wages in his favor for the period of forced absence.
While working as the acting head of the Interdistrict Inspectorate of the Federal Tax Service No. 1 for the Republic of Sakha (Yakutia) (IFTS), T. received notice of dismissal in connection with the appointment of K.M. as the head of the Federal Tax Service. Then T. was offered another position, from which he refused. Subsequently, T. was dismissed from service due to a change in the essential terms of the service contract and the civil servant’s refusal of the position offered for replacement ( clause 7, part 1, article 33 of Law No. 79-FZ ).
At the same time, the court found that T. was notified not of a change in the essential terms of the service contract, but of dismissal in connection with the appointment of another employee to his position. And in violation of the norms of Part 2 of Art. 29 of Law No. 79-FZ , the employer did not notify the plaintiff about the upcoming changes to the essential terms of the service contract, and also did not explain that in case of refusal to transfer to another position, he would be dismissed in accordance with clause 7 of part 1 of Art. 33 of Law No. 79-FZ .
In addition, the court indicated that Part 3 of Art. 24 of Law No. 79-FZ provides an exhaustive list of essential conditions of a service contract. This list does not provide for the appointment of another employee to the position held by the employee as an essential condition of the service contract. Therefore, there are no grounds to consider the appointment of K.M. to the position held by the plaintiff as a change in the essential terms of T.’s service contract.
Thus, the plaintiff’s dismissal was carried out in violation of the law and he must be reinstated in service.
