home Self-development Labor disputes arise during the execution of contracts. Labor dispute

Labor disputes arise during the execution of contracts. Labor dispute

If, as a result of improper performance of labor duties by one of the parties to the employment contract, damage is caused to the other party, financial liability arises. The employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of the employee's opportunity to work, for example, if: the employee is illegally removed from work, dismissed or transferred to another job; the employer refused to execute or untimely executed the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee to his previous job; the employer delayed the issuance of a work book to the employee, entered into the work book an incorrect or non-compliant formulation of the reason for the dismissal of the employee, and in other cases provided for by federal laws and the collective agreement.

Responsibility in labor law

The general rule is to impose disciplinary sanctions on the employee as provided. Labor Code of Ukraine and internal labor regulations. Certain categories of employees are subject to special disciplinary liability under disciplinary statutes and regulations on discipline.

For violation of labor discipline, only one of two types of penalties can be applied to an employee - reprimand or dismissal. Legislation, charters and discipline regulations may provide for other disciplinary sanctions for certain categories of employees. This applies to prosecutorial and investigative workers, judges, civil servants in railway transport, communications, mining enterprises, etc. Disciplinary sanctions are applied by the body that is granted the right to hire (elect, approve and appoint) an employee.

Labor legislation provides for two types of financial liability of employees: limited and full. The main type of financial liability of an employee is limited financial liability. It consists in the obligation of the employee, through whose fault the damage was caused, to compensate the employer for direct actual damage, but not more than his average monthly earnings.
Direct actual damage is understood as loss, deterioration or reduction in the value of property, the need for an enterprise to incur costs for restoration, acquisition of property or other valuables, or to spend unnecessary ones, i.e. caused as a result of the employee’s violation of labor duties, monetary payments. Unreceived income will not be reimbursed. Full financial liability without any limitation for damage caused by an employee is provided for in Article 134 of the Labor Code.

Topic 5.3. liability under labor law

Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of said property (including the property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to make costs or unnecessary payments for the acquisition or restoration of property. The employee bears financial responsibility both for direct actual damage directly caused by him to the employer, and for damage incurred by the employer as a result of compensation for damage to other persons. Topics for projects, abstracts and discussion 1. Strikes - “for” and “against”.
2. Wages and labor discipline.

Concept and types of liability under labor law

If after 2 working days the employee does not provide the specified explanation, then a corresponding act is drawn up. Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action. Disciplinary action is applied no later than 1 month from the date of discovery of the misconduct.

Attention

A disciplinary sanction cannot be applied later than 6 months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than 2 years from the date of its commission. For each disciplinary offense, only one disciplinary sanction can be applied. The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within 3 working days from the date of its publication, not counting the time the employee is absent from work.

Consequently, the basis for disciplinary liability is always a disciplinary offense committed by a specific employee. In accordance with Art. 189 of the Labor Code of the PMR, a disciplinary offense is recognized as the failure or improper performance by an employee, through his fault, of the labor duties assigned to him. If an employee commits a disciplinary offense, the employer has the right to apply the following disciplinary sanctions: 1) reprimands; 2) reprimand; 3) dismissal for appropriate reasons; 4) transfer to a lower paid job for a period of up to 3 months or displacement to a lower position for the same period.
Laws, charters and regulations on discipline for certain categories of employees may provide for other types of disciplinary sanctions. Before applying disciplinary action, the employer must request a written explanation from the employee.
With limited financial liability, the maximum amount of compensation for damage caused is limited to the established limits of the salary of the employee who caused the damage. The main type of limited liability is liability in the amount of actual damage, but not more than the average monthly earnings of the employee. It occurs in all cases of damage caused by an employee, except in cases where higher limits are established by law.
Full financial liability for damage caused is recovered in full without any restrictions on wages. It occurs in cases established by law (Art.

§ 7. legal liability in labor law

Info

What are labor disputes? What are the reasons for their occurrence? 2. What is a labor dispute commission, how is it formed and works? 3. How does the conciliation commission work? 4. What is a strike? 5.

In what cases are strikes not allowed? 6. What is labor discipline? 7. What incentives are provided for exemplary performance of job duties? 8. What is disciplinary liability? 9. What is the employer’s financial responsibility? We examine documents Labor Code of the Russian Federation (Extracts) Article 232.

Obligation of a party to an employment contract to compensate for damage caused by it to the other party to this contract. The party to the employment contract (employer or employee) who caused damage to the other party compensates for this damage in accordance with this Code and other federal laws.

Responsibility under labor law

Disciplinary liability of employees. One of the responsibilities of employees is the proper performance of labor duties and internal labor regulations, which is included in the concept of labor discipline. If an employee violates labor discipline through his fault and commits a disciplinary offense, he is subject to disciplinary liability. Employee disciplinary liability is a type of legal liability that is imposed for misconduct. Disciplinary liability is the employee’s obligation to suffer adverse consequences provided for by labor law for culpable, unlawful failure or improper performance of his or her job duties. Employees who have committed a disciplinary offense may be subject to disciplinary liability.

Responsibility under labor law presentation

Since, unlike rest and entertainment, work requires very significant volitional, mental, and physical efforts from the person engaged in it, not always and not everyone manages to be at the height of accepted standards of behavior in the process of work. This determines the importance of maintaining labor discipline at a certain, necessary level. Labor discipline is obligatory for all employees to obey the rules of conduct determined in accordance with the Labor Code of the Russian Federation, other laws, a collective agreement, and local regulations of the organization. The content of labor discipline includes requirements for employees to work honestly, conscientiously, promptly and accurately carry out the employer’s orders, comply with safety rules, labor protection requirements, take care of material assets, etc.

Responsibility under labor law briefly

Important

These include: 1. Conclusion of a written agreement between the employee and the owner on full financial responsibility (clause 1 of Article 134) 2. Receipt of property and other valuables by the employee on account of a one-time power of attorney or other one-time documents (clause 2 of Article 134) 3 . Damage caused by the actions of an employee that have signs of criminally prosecutable acts (clause

C in 134) 4. Damage caused by an employee who was intoxicated (clause 4 of Article 134) 5. Damage caused by shortage, deliberate destruction or deliberate damage to materials, semi-finished products, products (products), including during their manufacture , as well as tools, measuring instruments, special clothing and other items issued to the employee for use by an enterprise, institution, or organization (clause 5 of Article 13434). 6.

Responsibility under labor law abstract

The party to the employment contract (employee or employer) who caused damage to the other party compensates for this damage in accordance with the Labor Code of the PMR and other laws. An employment contract or written agreements attached to it may specify the financial liability of the parties to this contract. At the same time, the contractual liability of the employer to the employee cannot be lower, and the employee to the employer – higher, than provided for by the Labor Code of the PMR or other laws.

Termination of an employment contract after causing damage does not entail the release of the party to this contract from financial liability provided for by the Labor Code of the PMR or other laws. Financial liability of the employer to the employee: 1) the employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work.

When performing work duties, an employee has the right to protect his labor rights, freedoms and legitimate interests, using all methods and procedures not prohibited by law. At the same time, the Constitution of the Russian Federation (Article 37) and labor legislation recognizes the employee’s right to resolve individual and collective labor disputes using the methods for resolving them established by federal law, including the right to strike.

The procedure for consideration between the employee and the employer is established Ch. 60 Labor Code of the Russian Federation. And the procedure for permission is provided Ch. 61 Labor Code of the Russian Federation and is called “conciliation procedures”, while workers have the right to strike. The right to strike is granted by Art. 37 of the Constitution of the Russian Federation and is regulated by Art. 409-415 Labor Code of the Russian Federation.

- these are disagreements between the employer (or his representatives) and the employee (employees) on issues of regulation of labor relations, submitted to the permission of a special jurisdictional body.

Disagreement- this is a different assessment of the situation by the interacting parties.

The cause of a labor dispute is usually labor violations or, in some cases, honest misconception about the existence of an offense.

Classification and types of labor disputes

All labor disputes can be classified on various grounds.

Types of labor disputes by disputing subjects:

individual labor disputes - when they affect the interests of individual workers;
collective labor disputes - when the interests of the entire workforce are affected (for example, the employer’s failure to comply with a collective labor agreement) or part of it (a separate structural unit).

Types of labor disputes in legal relations from which they arise (follow from the subject of labor law):

1. labor disputes arising as a result of violations of labor relations (for example, non-payment of wages, illegal dismissal, delay in issuing a work book, etc.);

2. labor disputes arising from violations of relations directly related to labor, i.e.:

Types of labor disputes by the nature of the dispute:

disputes regarding the application of labor legislation. Including disputes regarding the conclusion, amendment and implementation of collective agreements, agreements, as well as in connection with the employer’s refusal to take into account the opinion of the representative body of employees);
disputes about establishing or changing existing working conditions.

Types of labor disputes on the subject of the dispute:

disputes regarding the recognition of a right violated by the other party to the employment contract;
disputes regarding the award of payments and damages.

Types of labor disputes according to the method of their resolution:

claim disputes;
non-claim disputes.

Litigable disputes include disagreements arising in connection with the application of regulations, contracts, and labor agreements. In the course of their resolution, the employee seeks restoration or recognition of a specific right for him, i.e., brings a claim. Disputes of a claim nature, as a rule, are individual. Individual labor disputes of a claim nature are considered by labor dispute commissions, courts, and higher authorities, therefore, from the point of view of jurisdiction, three types of proceedings are distinguished. Disputes of a non-litigious nature include disagreements arising in connection with changes in existing or establishment of new working conditions. Collective labor disputes are always non-litigious in nature and therefore are resolved in a special procedural form.

Types of bodies capable of resolving a labor dispute

Types of bodies that can resolve disagreements between participants in relations in the world of work.

The choice of a jurisdictional body capable of resolving a conflict between participants in labor relations largely depends on the nature of the dispute and its causes. A higher-level organization (or a ministry, if the enterprise has departmental subordination) can resolve the conflict if the higher-level organization has the authority to change the decisions of the lower-level organization or give binding instructions. The dispute can be resolved by the Labor Dispute Commission (LCC) if the disagreement concerns labor relations and the parties are the employee and the employer. The judicial authorities consider all individual disputes, since Art. 46 of the Constitution of the Russian Federation enshrines the right of all citizens to judicial protection. The court may also determine the illegality of an ongoing or declared strike. Collective disputes are considered through conciliation procedures, the jurisdictional body of which is a conciliation commission, mediator or labor arbitration. In addition, supervisory and control bodies, which have the right to issue binding instructions, can also help eliminate the causes that caused the conflict, i.e., in fact, end it.

Article 382 of the Labor Code of the Russian Federation names the bodies for considering individual labor disputes: labor dispute commissions and the court. Therefore, we distinguish between bodies that consider labor disputes and bodies that can resolve conflicts between participants in labor relations and those directly related to them. Confusion arises due to conflicting labor laws. So, for example, according to Art. 391 of the Labor Code directly in the courts, individual disputes about reinstatement at work are considered, regardless of the grounds for termination of the employment contract and at the request of persons who believe that they have been discriminated against. Whereas Art. 373 of the Labor Code of the Russian Federation practically allows a dispute over dismissal to be considered administratively. In particular, part 3 of this article says: “The State Labor Inspectorate, within ten days from the date of receipt of the complaint (application), considers the issue of dismissal and, if it is recognized as illegal, issues a binding order to the employer to reinstate the employee at work with payment for forced absence "

Until 2006 Art. 3 of the Labor Code of the Russian Federation also established the right of persons who believe that they have been discriminated against in the field of labor to apply for the restoration of violated rights to the federal labor inspectorate or to court. June 30, 2006 Federal Law No. 90-FZ Art. 3 was changed and only the court was left as the authority protecting citizens from discrimination in the world of work. But, of course, certain norms of labor legislation that define supervisory authorities’ functions of considering labor disputes that are unusual for them should not be considered binding, since the powers and competence of supervisory authorities are determined by special legislation. Therefore, supervisory authorities can eliminate the conflict only in the course of performing their control functions.

The nature of the emergence and development of a labor dispute is reflected in the following stages:

first, the root cause of the dispute arises, this is a labor offense or a bona fide misconception regarding the offense;
different assessments of the current situation by the parties to the employment contract, i.e. the emergence of disagreements;
an attempt to resolve disagreements independently through negotiations or mutual consultations, which does not bring results. The law requires mandatory consideration of conflicts (disagreements) between the parties only in certain cases (for example, Article 235 of the Labor Code of the Russian Federation, which provides for compensation by the employer for damage to the employee’s personal property);
sending a statement about the essence of the disagreement with a view to resolving it to the competent jurisdictional authority. It is at this stage that a labor dispute arises;
resolving the dispute on the merits, making a decision;
it is possible to appeal the decision (optional stage);
execution of the decision.

In a labor dispute, the legislator determines the important point that these are unresolved disagreements (Article 381 of the Labor Code of the Russian Federation). The Russian language dictionary contains the following definition: disagreement - lack of agreement due to dissimilarity in opinions, views, interests; contradiction, inconsistency (of words, thoughts). Thus, to resolve disagreements, the parties can conduct mutual negotiations, and if disagreements are not resolved in this way, the conflict develops into a labor dispute if one of the parties, in the prescribed manner, specifically to resolve the conflict that has arisen, applies to a special institution (body), endowed with certain powers (jurisdiction).

The subjects of disagreement in individual disputes are the employee and the employer, but it should be taken into account that the subject of an individual dispute may be a citizen who has expressed a desire to conclude an employment contract with the employer if the employer refuses to conclude such an agreement. The subject of collective labor disputes opposing the employer or his representative is the labor collective or representatives of workers who make demands regarding the establishment and change of working conditions (including wages), the conclusion, amendment and implementation of collective agreements, agreements, as well as in connection with the refusal of the employer take into account the opinion of the elected representative body of workers when adopting acts containing labor law norms.

Disciplinary responsibility

Labor discipline is obligatory for all employees to obey the rules of conduct determined in accordance with the legislation of the Russian Federation, collective agreements, agreements, employment contracts, and local regulations of the organization.

Measures to ensure maintenance of labor discipline: encouragement

(announcement of gratitude, issuance of a cash bonus, awarding a valuable gift, nomination for the title “Best in the Profession”, etc.); punishment.

A disciplinary offense is the failure or improper performance by an employee, through his fault, of the work duties assigned to him. For committing a disciplinary offense, a disciplinary sanction is imposed.

Types of disciplinary sanctions: reprimand, reprimand, dismissal for appropriate reasons. Other disciplinary measures may be provided for by industry charters and regulations on discipline (for example, the Charter “On the discipline of employees of organizations with particularly hazardous production in the field of nuclear energy use,” approved by Decree of the Government of the Russian Federation of July 10, 1998 No. 744). Organizations themselves do not have the right to introduce additional disciplinary measures.

A disciplinary sanction is not entered in the work book, except in cases where the disciplinary sanction is dismissal (Article 66 of the Labor Code of the Russian Federation).

The procedure for applying disciplinary sanctions (Article 193 of the Labor Code of the Russian Federation):

disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time the employee was ill, on vacation, as well as the time necessary to take into account the opinion of the representative body of employees and no later than 6 months from the date of the misconduct, and based on the results of an audit, financial check - economic activity or audit - no later than 2 years from the date of its commission. Example. The offense was committed on January 10, 2003. It was discovered on the same day. From February 1 to February 8, 2003, the employee was ill. There is no trade union organization at the enterprise. In such circumstances, the order must be issued and announced to the employee no later than February 17, 2003;

disciplinary liability can be applied by the head of the enterprise or other officials authorized by the head;

the employer must request an explanation from the employee in writing; in case of refusal, a corresponding act is drawn up;

The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within 3 working days from the date of its issuance. If the employee refuses to sign the specified order (instruction), a corresponding act is drawn up;

the decision to impose a disciplinary sanction can be appealed by the employee to the bodies for consideration of individual labor disputes (KTS and court), to the state labor inspectorate (Article 193 of the Labor Code of the Russian Federation);

For each disciplinary offense, only one disciplinary sanction can be applied.

Removal of disciplinary action:

if within a year from the date of application of the disciplinary sanction the employee is not subject to a new disciplinary sanction;

at the initiative of the employer: on its own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees.

Features of an accountant's responsibility:

According to clause 2 of article 7 of the Federal Law dated 21.111996 No. 129-FZ “On

Accounting" (as amended by the Federal Law of the Russian Federation dated June 30, 2003 N 86-FZ), the chief accountant is assigned the following functions: formation of accounting policies; accounting; timely provision of complete and reliable financial statements.

It is these functions that constitute the job responsibilities of the chief accountant.

In case of non-fulfillment or improper execution, disciplinary measures established by labor legislation may be applied to the chief accountant.

The chief accountant, like any other employee, can be subject to disciplinary liability only if the conditions specified in Articles 192 and 193 of the Labor Code of the Russian Federation are met. If, for example, an accountant is both a cashier and directly handles monetary assets, then if he commits a disciplinary offense that gives grounds for loss of trust in him by the employer, he can be dismissed under clause 7 of Article 81 of the Labor Code of the Russian Federation due to loss of trust . Moreover, such dismissal will be related to his performance of his duties as a cashier, and not as an accountant.

Material liability of the parties to the employment contract

Material liability of the parties to the employment contract:

one of the ways to protect the property of the employer and employee;

sanction for labor violation, damage caused;

obligation to compensate for damage caused.

Material responsibility for objects and values to which the employee is directly related in the labor process; the employer’s obligations to create conditions for the employee to preserve these items and valuables; ensuring the safety of property transferred to the employer, etc. can be specified in the employment contract or in a special written agreement (for example, an agreement on full financial liability) attached to the employment contract (see Part 2 of Article 232 of the Labor Code of the Russian Federation).

Termination of an employment contract after causing damage does not entail the release of the party to this contract from financial liability provided for by labor legislation.

The issue of compensation for damage can be resolved by agreement of the parties or considered by the court. During the trial, the possibility of concluding a settlement agreement cannot be ruled out.

General conditions for the occurrence of financial liability:

the fault of the causer of the damage (except for the employer’s liability in cases where the damage was caused by a source of increased danger);

actual damage to property or health;

illegality of conduct;

a causal relationship between the behavior of the causer of damage and the resulting consequences - material damage;

absence of circumstances that are the basis for exemption from legal liability (damage caused by force majeure, extreme necessity, reasonable risk, etc.).

Employer's liability

When considering the issue, it is worth paying attention to the following:

the employer - a legal entity acts through its authorized representatives - the head of the organization, other persons duly authorized;

For damage caused to an employee by guilty illegal actions of representatives of the employer, the employer bears financial responsibility. He has the right to compensate for his damages arising in connection with compensation for material damage to the employee at the expense of the guilty representative in the manner prescribed by law (Articles 238-248 of the Labor Code of the Russian Federation);

the employer - an individual is directly liable for damage caused to the employee.

The Labor Code of the Russian Federation provides for the following grounds for the occurrence of financial liability of the employer to the employee (Chapter 38 of the Labor Code of the Russian Federation): 1.

Illegal deprivation of an employee's opportunity to work. The employer is obliged to compensate the employee for the earnings he did not receive. Such an obligation, in particular, arises if earnings are not received as a result of:

illegal removal of an employee from work, his dismissal or transfer to another job;

the employer’s refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee to his previous job;

delay by the employer in issuing a work book to an employee, entering into the work book an incorrect or non-compliant wording of the reason for dismissal of the employee, and other cases provided for by labor legislation and the collective agreement. 2.

The employer's financial liability for damage caused to the employee's property. Employer who caused property damage

employee, compensates for this damage in full. The amount of damage is calculated at market prices in force in the area at the time of compensation. If the employee agrees, damages may be compensated in kind.

It is worth noting that the employer is responsible for the safety of not everything

the employee's property, but only that which he is obliged to keep safe

provide. For example, the safety of an employee’s personal clothing in a place specially designed for its storage (when the employee works in

special clothing), safety of tools, equipment, mechanisms, property belonging to the employee, used in the interests of the employer, transferred to him for use.

The employee's application for damages is sent to the employer. The deadline for filing an application from the moment the damage was caused is not defined by law. The employer is obliged to consider the received application and make an appropriate decision within ten days from the date of its receipt. If the employee disagrees with the employer’s decision or does not receive a response within the prescribed period, the employee has the right to go to court. 3.

The employer's financial liability for delays in payment of wages, vacation pay, dismissal payments and other payments due to the employee. The employer is obliged to pay them with interest (monetary compensation) in an amount not lower than 1/300 of the refinancing rate of the Central Bank of the Russian Federation in force at that time from amounts unpaid on time for each day of actual payment, inclusive. The specific amount of monetary compensation paid to an employee is determined by a collective or labor agreement.

Moral damage caused to an employee by unlawful actions or inaction of the employer is compensated to the employee in cash in amounts determined by agreement of the parties to the employment contract.

In cases of dispute, the fact of causing moral damage to the employee and the amount of compensation for it is determined by the court, regardless of the property damage subject to compensation.

Material liability of the employee

The employee bears financial liability both for direct actual damage directly caused by him to the employer, and for damage incurred by the employer as a result of compensation for damage to other persons2. For example, compensation by a guilty employee in a recourse procedure for damages compensated by the employer to the victim in an accident from a vehicle owned by the employer.

Lost income (lost profits) cannot be recovered from the employee.

In this case, the employer has the right, taking into account the specific circumstances in which the damage was caused, or depending on the amount of damage (damage that is insignificant from the employer’s point of view is often not recovered, and the employer is limited to imposing a disciplinary sanction on the employee), on the financial situation of the employee, completely or partially refuse to collect it from the guilty employee who caused the damage.

Amounts of damage not recovered from the employee are attributed to the employer's losses.

Depending on the limit of damages allowed by law, the financial liability of employees is divided into two types: 1.

Limited - the maximum amount of damage caused is limited by the established limits of the salary of the employee who caused the damage. 2.

Full - the damage caused is recovered in full without any restrictions on wages. Responsible for the employee in the cases provided for in Art. 243 Labor Code of the Russian Federation, including:

causing damage as a result of criminal actions of an employee established by a court verdict;

causing damage as a result of an administrative violation, if such is established by the relevant government body;

shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document, etc.

For workers under the age of 18, full financial liability can only occur for:

intentional causing of damage;

damage caused while under the influence of alcohol, drugs or toxic substances;

damage caused as a result of a crime or administrative violation.

Financial liability in the full amount of damage caused to the employer can be established by an employment contract concluded with the head of the organization, deputy head, chief accountant (Part 2 of Article 243 of the Labor Code of the Russian Federation).

Full financial responsibility can be individual and collective (team). The latter is introduced if, when employees jointly perform certain types of work related to the storage, processing, sale (release), transportation, use or other use of the values transferred to them, it is impossible to differentiate the responsibility of each employee for causing damage and to conclude an agreement with him on compensation for damage in full size.

Written agreements on full individual or collective (team) financial responsibility are concluded with employees who have reached the age of 18 and directly service or use cash, commodity values or other property. Lists of works and categories of workers with whom these contracts can be concluded, as well as standard forms of these contracts, are approved in the manner established by the Government of the Russian Federation.

A written agreement on collective (team) financial liability for damage is concluded between the employer and all members of the team (team). To be released from financial liability, a member of a team (team) must prove the absence of his guilt.

In case of voluntary compensation for damage, the degree of guilt of each member of the team (team) is determined by agreement between all members of the team (team) and the employer. When recovering damages in court, the degree of guilt of each member of the team (team) is determined by the court.

To make a decision on compensation for damage by specific employees, the employer: 1)

is obliged to conduct an inspection to establish the amount of damage caused and the reasons for its occurrence. In this case, it is possible to create a commission with the participation of relevant specialists; 2)

request written explanations from the employee to establish the causes of the damage.

Recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly salary, is carried out by order of the employer, issued no later than one month from the date the employer finally determines the amount of damage caused by the employee.

If the month has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage caused to be recovered from the employee exceeds his average monthly earnings, then recovery is carried out in court.

"Labor Law", 2010, N 3

Most of the workers' appeals to the court with claims against employers for bringing workers to disciplinary liability are related to the fact that they do not agree that they have committed a disciplinary offense, or do not understand what their failure to perform their official duties is. Conditions for the emergence of employee liability and disciplinary measures - in the practice of Russian reality.

Today, two legal regimes for regulating labor relations have emerged in the economy: written labor law for state (budgetary) organizations and “ordinary” law for the new commercial sector. While in government organizations the Labor Code of the Russian Federation is mostly observed, in the commercial sector it practically does not work at all.<1>. At small and medium-sized businesses, trade union organizations are usually not created, labor dispute commissions are not elected, that is, there are no bodies that should represent and protect the interests of workers. Legal insecurity and legal ignorance forces people to accept any conditions of the employer. This situation contributes to the emergence of labor disputes.

<1>Alekseev S.S. General theory of law. In 2 vols. M., 2004. T. 1. 280 p. P. 189.

Labor disputes related to the disciplinary liability of an employee represent a disagreement between the employee against whom a disciplinary sanction was applied and the employer who made the corresponding decision. Such a disagreement can be resolved directly between the parties to the dispute or by contacting the interested party with a labor dispute resolution body. These disputes arise regarding the application of legislation and local regulations in relation to an employee who has committed a disciplinary offense; on issues of the correctness of imposing a disciplinary sanction, changing the wording of the grounds and date of dismissal, compliance of the applied disciplinary sanction with the severity of the disciplinary offense committed, collection of funds for the period of forced absence.

Conditions for labor disputes

These are those factors that directly or indirectly contribute to a large number of labor disputes on the same issues or significantly aggravate the existing dispute<2>. Conditions for a labor dispute related to disciplinary liability, for example, include poor work organization, when employees do not clearly know their functional responsibilities and therefore do not fulfill them. The level of labor discipline reduces unorganized leisure time and the lack of formal living conditions, which also creates conditions for labor disputes<3>.

<2>Tolkunova V.N. Labor disputes and the procedure for their resolution. M., 1996. P. 10.
<3>Anisimov L.N., Anisimov A.L. Employment contracts. Labor disputes. M., 2003. P. 175.

They can be of a legal nature when the legislation contains gaps, inaccurate formulations, and evaluative concepts that allow legal norms to be interpreted differently by the disputing parties. All this leads to difficulty in understanding labor legislation for employees and employers.

Note. Due to the fact that labor legislation does not disclose the concept of “immoral misconduct” and does not provide examples of those actions that can be considered immoral, different opinions arise regarding the definition of immoral behavior, which is one of the grounds for terminating an employment contract with an employee for whom educational functions are the main content of his work (clause 8, part 1, article 81 of the Labor Code of the Russian Federation; hereinafter referred to as the Labor Code of the Russian Federation).

The answer to the question of whether an employee committing an immoral offense is disciplinary or not depends largely on an understanding of the employee’s job responsibilities<4>. Immoral offenses, for example, include the use of educational methods associated with physical or psychological influence<5>. This point of view is consistent with judicial practice, which considers an immoral offense as obscene language, bullying, offensive harassment, inducement to engage in sexual intercourse, physical or mental impact of an employee on a student or pupil (beating, hitting with a hand or with any object)<6>etc.

<4>Boguslavskaya K.Yu. Dismissal of an employee performing educational functions due to the commission of an immoral offense incompatible with the continuation of this work. Problems of legal regulation of labor relations: Collection of materials from the scientific conference September 23 - 24, 2004 / Rep. ed. M.Yu. Fedorov. Omsk, 2004. P. 105.
<5>Kurennoy A.M. Labor disputes: Practical commentary. M., 2001. P. 180.
<6>Decision of the Moscow District Court of Tver. The court recognized the dismissal of a school teacher for committing an immoral offense incompatible with the continuation of work at the school as legal and justified (from the court archives for 2000) // Judicial practice in labor cases / Comp. DI. Rogachev. M., 2006. P. 26 - 35; By the decision of the Cherdaklinsky District Court, the claim for reinstatement of teacher S., who was fired for using illegal methods of education (she hit boarding school student K. in the face with her fist, put barefoot student Z. on the cold floor) // Judicial practice in the consideration of cases reinstatement at work // University Lawyer. 2005. N 12. P. 109.

But there is also a broader definition of an immoral offense, when not only the employee’s action towards a pupil or student is assessed, but also behavior in everyday life, after work. For example, drinking alcoholic beverages or appearing in public places in a state of intoxication that offends human dignity or public morality<7>.

<7>Anisimov L.N., Anisimov A.L. Employment contracts. Labor disputes. M., 2003. P. 110.

In many cases, the case would not have reached the court if the Labor Code of the Russian Federation contained not only an approximate list of actions considered as immoral offenses, but also an indication of the inadmissibility of dismissal on the basis of a general assessment of the employee’s behavior in the team and at home, or on the basis of non-specific or insufficiently verified facts, rumors, etc.

P.V. Trubnikov defines the causes of labor disputes as legal facts that directly caused disagreements between the employee (workers) and the administration<8>. The content of the term “causes of a labor dispute” is revealed in more detail by L.N. Anisimov and A.L. Anisimov are negative factors that cause different assessments by the disputing parties of the implementation of subjective labor rights or the fulfillment of labor duties and thereby give rise to disagreements between the subjects of labor relations. We can say that these are violations of any rights of the employee or his duties to the enterprise<9>.

<8>Trubnikov P.V. Consideration by courts of cases on claims for reinstatement at work // Legality. 2006. N 1 - 2. P. 58 - 60.
<9>Anisimov L.N., Anisimov A.L. Employment contracts. Labor disputes. M., 2003. P. 173.

Many researchers point to certain causes of individual labor disputes. B.I. Ushkov, S.A. Goloshchapov, V.K. Kolosov et al. identify the following groups of causes of labor disputes: ideological (subjective), organizational-legal and organizational-economic nature<10>; M.V. Lushnikova - objective and subjective reasons and conditions<11>; L.N. Anisimov, A.L. Anisimov - subjective factors<12>.

<10>Goloshchapov S.A. Concept, types, causes, jurisdiction of labor disputes. M., 1980. S. 15 - 23; Kolosov V.K. Labor rights of workers and employees. M., 1987. S. 84 - 86; Ushkov B.I. On the causes of labor disputes in the USSR // Bulletin of Leningrad University. Series of Economics, Philosophy and Law. 1965. N 23. S. 109 - 119.
<11>Lushnikova M.V. Labor disputes in the USSR. Yaroslavl, 1991. S. 4 - 5.
<12>Anisimov L.N., Anisimov A.L. Employment contracts. Labor disputes. M., 2003. P. 174.

IN AND. Smolyarchuk believes that disputes usually arise due to violations of the law<13>. Without a violation of rights that actually took place or existed, in the opinion of one of the parties, a labor dispute does not arise. In turn, the causes of these real or imaginary offenses will be factors that have been identified in the legal literature as the causes and conditions of labor disputes. Indeed, the emergence of the labor disputes under consideration is usually preceded by a labor offense, “that is, a culpable failure or improper fulfillment by an obligated subject of his labor duties in the sphere of labor and distribution, and, consequently, a violation of the rights of another subject of a given legal relationship”<14>. At the same time, a dispute about the legality of imposing a disciplinary sanction may also arise if one party to the labor relationship acted within the law, and the other party assessed these actions as unlawful (the employer reprimanded the employee for being late for work, and the employee believes that his punished unfairly, since the delay was caused by valid reasons). In any case, the presence or absence of a labor offense is determined by the body considering the labor dispute.

<13>Smolyarchuk V.I. Legislation on labor disputes. M., 1966. P. 15.
<14>Anisimov L.N., Anisimov A.L. Employment contracts. Labor disputes. M., 2003. P. 170.

According to S.Yu. Chuchi, disputes are caused by two groups of factors that differ in the type of causal connection between them and the dispute: direct causal connection (cause - labor dispute) and indirect (condition - cause - labor dispute)<15>. It is necessary to agree with the point of view of S.Yu. Chuchi that a dispute is brought to life by a set of conditions that need to be considered in conjunction, while it is necessary to distinguish between the causes of labor disputes and the causes of offenses<16>.

<15>Chucha S.Yu. Social partnership in the sphere of labor: formation and prospects for the development of legal regulation in the Russian Federation: Monograph. Omsk, 2005. P. 182.
<16>Right there. P. 184.

The scientific literature draws attention to the fact that in modern conditions a new reason for the emergence of labor disputes has appeared and it is connected with the situation in the state as a whole. “A high level of inflation, the regulation of economic relations as opposed to the laws of economic management in market conditions leads to the constant impoverishment of workers, a decrease in their standard of living, which, in turn, creates a need for higher wages, which the employer is often unable to implement.”<17>. In our opinion, it is more correct to attribute these circumstances to the conditions for the emergence of labor disputes, since, as noted, they are of a national nature and contribute to the emergence of tension and conflict not only in labor relations.

<17>Anisimov L.N., Anisimov A.L. Employment contracts. Labor disputes. M., 2003. P. 176.

In individual labor disputes related to disciplinary liability, the cause may manifest itself both in the guilty actions of the employer, violating labor law standards due to a low legal culture, and in the actions of the employee when he challenges the lawful actions of the employer. An employee may display a negative attitude towards work responsibilities in the form of absenteeism, drunkenness at work, poor performance of production tasks, etc., which forces the employer to impose penalties on such an employee, which he begins to challenge<18>.

<18>Anisimov L.N. Employment contract and individual labor disputes. M., 2004. P. 284.

The employee proves in court that his absence from work is justified

Example. On November 25, 2002, electrician K. of the Nizhny Tagil Metallurgical Plant OJSC was detained at the entrance of the plant in a state of intoxication, about which a report was drawn up. The employee was dismissed under paragraphs. "b" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation only on December 27, that is, a month after the commission of the disciplinary offense. By the decision of the Tagilstroevsky District Court of the Sverdlovsk Region dated March 17, 2003, K. was reinstated at work with payment for forced absence, since the deadline for applying the penalty had been missed<19>.

<19>Case No. 2-153 // Archive of the Tagilstroevsky District Court of N. Tagil, Sverdlovsk Region.

Analyzing judicial practice in cases of dismissal in the Ivanovo region, V.N. Tolkunova came to the conclusion that “the majority of labor violations during dismissal, and therefore labor disputes, are due to managers’ ignorance of labor legislation and the unprincipled attitude of trade union committees to this”<20>. It should be noted that employees are also characterized by poor knowledge of labor legislation (even to a greater extent than the employer), in particular their labor rights and obligations, and methods of protection.

<20>Tolkunova V.N. Labor disputes and the procedure for their resolution. M., 1996. P. 14.

When analyzing the materials of court cases on the reinstatement of employees at work, it is also possible to identify other violations by the employer of the procedure for dismissing an employee established by law.

Example. When considering the case of reinstatement of the chief engineer of Ural-NT LLC R., who was dismissed by order dated November 14, 2005 for absenteeism, the court found that there were no reports or other documents confirming R.’s absence from the workplace; the employer did not draw up an act on the employee’s refusal to provide explanations; the dismissal order dated November 14 was not announced to the employee within the 3-day period established by law. As a result, the court came to the conclusion that the dismissal was illegal and satisfied the plaintiff’s claims in full<21>.

<21>Case No. 2-183(2)/2006 // Archive of the Tagilstroevsky District Court of N. Tagil, Sverdlovsk Region.

In some cases, the causes of labor disputes related to the disciplinary liability of an employee are disagreements between the parties to the labor relationship regarding the assessment of the reasons for the employee’s absence from work. The employer considers these reasons disrespectful and dismisses the employee for absenteeism. The employee proves in court that his absence from work is justified. In a dispute that has arisen, the court is called upon to establish the truth.

Example. Assistant driver of the diesel locomotive of NTMK OJSC A. did not go to work on the night of September 25 to September 26, 2005. On September 25, he felt ill, and in the evening he called an ambulance. A. refused hospitalization and did not go to the doctor on the morning of September 26, as he began to feel better. Thus, the employee did not have a document confirming his illness, and the employer fired him for absenteeism. The employee went to court. Ambulance workers were heard in court, and certificate No. 231 was presented stating that the ambulance team actually went to A. and found the patient to be in moderate condition. Thus, the court confirmed that A.’s absence from work was justified. The employer in such a situation offered to resolve the dispute by changing the wording of the dismissal to “dismissal at will” and paying compensation for the period of forced absence<22>.

<22>Case No. 2-33(2)/2006 // Archive of the Tagilstroevsky District Court of N. Tagil, Sverdlovsk Region.

There may be cases when an employee refuses to perform work duties stipulated by the employment contract due to health reasons.

Example. Electrician K. provided the employer with a medical report on the need to transfer to another job. The employer not only did not transfer him to an easier job, although there was one at the enterprise, but fired K., who did not show up for work, under paragraphs. "a" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation for absenteeism. By the decision of the Tagilstroevsky court of N. Tagil, the employee’s claim was denied. The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, having considered the plaintiff’s cassation appeal, overturned the decision of the district court, because the resulting absenteeism was forced on the employee. According to the medical report, the plaintiff was unable to perform electrician work at height. The employer did not agree to transfer K. to another workshop where working conditions correspond to the doctors’ orders<23>.

<23>Case No. 2-473/2006 // Archive of the Tagilstroevsky District Court of N. Tagil, Sverdlovsk Region.

Sometimes an employee does not come to work, sincerely believing that he is acting in accordance with the law.

Example. By order dated January 3, 2006, electrician V. of NTMK OJSC was fired for absenteeism on December 4, 2005. At the court hearing, the plaintiff explained that he did not go to work due to his layoff. On November 10, 2005, V. was warned against signature that his position would be reduced. At the general meeting, the workers were explained that they would work for another 2 months, and then the issue of their employment in the sanatorium-dispensary of the enterprise would be decided if they had a personal statement or were fired. On November 28, an order was issued to lay off a number of workers from November 30, but V.’s name was not on it. Thus, the court did not find confirmation of the fact that V. was laid off; he was mistaken about the legality of his absence from the workplace. As a result, the claims were not satisfied by the court<24>.

<24>Case No. 2-85(2)/2006 // Archive of the Tagilstroevsky District Court of N. Tagil, Sverdlovsk Region.

Thus, the resolution of labor disputes, including those related to the disciplinary liability of an employee, requires knowledge of the essence of the case, clarification of its parties, determination of their legal status, causes and conditions of occurrence, circumstances of disagreements and their subject. In addition, knowledge of the causes and conditions of labor disputes allows us to develop a legal mechanism for preventing disputes and carry out preventive measures.

S.A. Ustinova

department of document management