Legal nature of individual labor disputes
In the theory of labor law, disputes arising in the process of implementing labor relations have different classifications. According to one of the criteria, they are divided into individual and collective. The legal mechanism for resolving them is different.
Clarification.
In the legal literature, these disputes are also called labor conflicts, but since the Labor Code of the Russian Federation calls controversial relations disputes, for clarity one should still adhere to this formulation.
The general meaning of the provisions of the Labor Code of the Russian Federation is that individual labor disputes (hereinafter referred to as “ITS”) are unresolved disagreements between the owner on the one hand and the employee on the other, arising from the right to work or labor relations, which are submitted to a special body for consideration .
It is typical that if an application to resolve disputed relations has not been submitted to the relevant body, then it is considered that the dispute has not yet arisen, and the statute of limitations for consideration of such a dispute continues to run. ITS also includes situations where the employment relationship between the parties has not yet developed (before hiring), or has already been terminated (after dismissal). However, in order to recognize an existing dispute as a labor dispute, there must be a specific subject of the dispute - terminated, ongoing or planned for implementation (by at least one party) labor relations.
The procedure for considering ITS is a certain procedural form of establishing the truth in a case, according to which the body authorized to consider ITS operates. The beginning of the process is indicated by the acceptance of the application, and ends with the entry into force of the final decision on the ITS. Sometimes the original decision is appealed and the dispute continues. Sometimes other events end the dispute: the death of an individual or the liquidation of a company.
There are two ways to consider ITS:
- With the involvement of the labor dispute commission;
- Through legal proceedings.
When dismissal is considered illegal
There are a lot of situations when dismissal is considered illegal. Each case is considered individually in court proceedings.
The most common reasons for recovery are:
1. Dismissal without legal grounds. The list of grounds is provided in Art. 81 Labor Code of the Russian Federation. These include liquidation of the company, staff reduction, violation of discipline, etc. The employer must prove that the basis existed in fact, and dismissal is not a disciplinary measure.
2. Violation of the procedure for dismissing an employee.
3. Dismissal of certain categories of citizens. In particular, you cannot fire a pregnant woman, a single mother, or fathers raising children on their own. The exception is the complete liquidation of the company.
4. Dismissal of an employee who is on leave (including maternity leave) or sick leave.
Dismissal that occurs due to:
- Non-compliance with the dress code;
- Fictitious staff reduction;
- Forcing an employee to submit a resignation letter of his own free will.
This is only part of the possible grounds for contacting government authorities. It is important to comply with the statute of limitations.
Beginning of consideration of ITS
The start of the work of labor dispute commissions is initiated by both the employee and the owner (including the body or person authorized by him). The commission includes delegates from both sides, observing the principle of parity. Having received a written invitation to participate from one party, the other delegates its participants to the joint commission 10 days in advance.
Participants from each party are appointed in the following order. General meetings or a conference of the labor collective nominates its delegates through voting, followed by protocol, and the employer issues an order or instruction regarding its representatives. At the same time, it is not necessary for the employer to personally participate in the commission; he can appoint other competent employees for this.
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The legislation establishes the possibility of forming a CTS within structural divisions. They consider disputes at the level of a specific unit. Their competence at their level is exactly the same as the CTS of the entire enterprise.
Important detail!
The CTS must have its own seal, and organizational and technical issues of its activities are decided by the employer. The commission must include a secretary, and it is headed by a chairman. The commission determines the personalities of the secretary and chairman independently. Another interesting point is that the legislation is extremely vague in its approach to regulating the work of CTS.
For example, in practice it can be regulated by local provisions or regulations that regulate in detail:
- Possibility of challenging members of the commission;
- Involving trade union organizations to participate;
- The procedure for filing and considering petitions by meeting participants;
- Possibility of participation of public organizations and special services (for family and minors);
- Release of employees from official duties for the duration of the CCC meeting;
- The possibility for the parties to submit written objections and explanations on the merits of the dispute.
Obviously, the more fully these opportunities are used, the more objective the approach to establishing the truth in the case and making a reasoned decision will be.
The competence of the CTS is limited not only by the subject, but also by the circle of persons. Its powers extend only to cases involving:
- an employee of this particular enterprise (including fired);
- a person seeking work at a given enterprise.
In addition, the commission does not deal with cases directly related to the exclusive powers of the courts. But she cannot refuse to consider the dispute after personal negotiations between the employee and the owner did not lead to its settlement.
In order for the employee to submit the application to the CCC, he has three months.
Important detail!
All missed deadlines mentioned in this article can be restored (extended) in the presence of extenuating circumstances that led to their omission. Respectfulness is an evaluative category, and in each case the persuasiveness of the same reason can be considered differently. The calculation of time limits begins from the moment when the applicant learned or should have learned about the violated right.
The general procedure for resolving disputes is determined by law. The application is registered and considered within ten days from the moment of its receipt in the presence of the employee (his representative vested with confirmed authority). If they are absent during the work of the commission, the dispute is resolved with the written consent of the employee. If it is not there, the commission postpones the meeting date. If the employee fails to appear again, the application remains without consideration, but the applicant has the right to re-apply within the same time frame.
To find out the truth in the case, the CCC can invite and interview witnesses, specialists, and request documents related to the dispute from the employer.
Important detail!
All decisions of the CCC are considered valid only if at least half of the delegates from each party participated in their adoption. All meetings are recorded.
Step-by-step instructions for returning to work
If a citizen is sure that the dismissal is illegal, several steps must be taken to protect his rights. To begin with, a statement of claim is drawn up. It must be in writing and must contain:
- Name of the judicial authority;
- Identification information about the applicant - full name, passport details, residential address, contact information;
- Employer data – name of the organization, address, details, full name of the manager;
- Grounds for filing a claim;
- A detailed statement of the essence of the matter;
- List of attached documents;
- Date and signature.
It is necessary to describe in the text of the document during what period the duties were performed, what position the plaintiff held in accordance with the work book. In addition, the date and number of the dismissal order issued with a description of the circumstances that became the prerequisite are indicated. In addition, one’s own attitude towards dismissal and requirements for the employer and the court are prescribed.
The claim must clearly formulate a request for restoration of rights to a place of work and position with payment of all required compensation charges. If the claim is granted, immediate reinstatement will follow.
Deadline for returning to work after reinstatement by court decision
If the judicial authority makes a positive decision and the claim is satisfied, the employer must immediately execute it. The citizen who filed the claim begins work the next day after the decision is made.
In this case, there is no need to wait for the expiration of a ten-day period, as in most court cases in the civil legal field. Despite this, the parties can appeal the court's decision, as in other cases, but until the appeal is satisfied, the first decision will remain in effect.
Sometimes it may be difficult to get reinstated at your previous job. For example, there are situations when, during the period of defending rights, an employee’s position is reduced. In this case, the court will oblige the employer to return her to the staffing table. This occurs as part of the cancellation of the order to reduce and introduce the position into the documentation.
It may happen that another employee has already been hired for the controversial position. In this case, the new employee must be offered another position. If he does not agree, the dismissal procedure is carried out. In this case, the refusal of the position is recorded in writing. The basis for dismissal will be a court decision to reinstate the employee in his position.
Payments upon reinstatement
All accrued payments are divided into two categories:
- Wage;
- Compensation for moral damage caused.
In case of reinstatement in the previous position by decision of the judicial authority, the citizen receives benefits for forced absence. It corresponds to average daily earnings. This compensation payment is guaranteed by Art. 234 Labor Code of the Russian Federation.
The amount of compensation for loss of income during forced absence is calculated based on the average earnings for the last year worked. It is calculated based on wages, sick leave and unemployment benefits, as well as the amount of accrued severance pay.
The procedure for calculating average wages is regulated in Art. 139 Labor Code of the Russian Federation. These payments are not tax exempt.
The amount of payment for causing moral damage is determined individually. This decision is made by the court. Funds are transferred when the court ruling comes into force.
How an employee is reinstated
The restoration procedure in the presence of a writ of execution or a court decision occurs as follows:
1. Issuing orders to cancel the dismissal order, to reinstate the employee at work, and to make the required payments.
2. Familiarization of the employee with the order. The fact of familiarization is confirmed by a personal signature. If an employee refuses to sign a document, a corresponding act is drawn up.
3. Making an appropriate entry in the work book indicating the order number.
4. Making adjustments to the time sheet or drawing up a new document with the correct data.
5. Payment of compensation charges, including for moral damage.
6. Beginning of work duties.
There is no legally established sample order. However, the text must include:
- Document number and date of issue of the order;
- Personal data of the employee indicating the position held;
- A link to the court decision that served as the basis for issuing the order;
- The basis and time of dismissal, which was declared illegal;
- Confirmation of cancellation of the previous order;
- Data on employee reinstatement;
- Information on entering data into the staffing table, time sheet and work book;
- The position of the manager and his signature with a transcript.
A note about the issuance of the order is made in the registration journal. The document is stored at the enterprise for 75 years.
