Liability labor disputes. Labor dispute. Types of bodies capable of resolving a labor dispute

Concept labor disputes

While performing his job duties, an employee has the right to protect his labor rights, freedoms and legitimate interests. The Constitution of the Russian Federation and labor legislation recognize the employee’s right to resolve individual and collective labor disputes using the methods for resolving them established by law.

A labor dispute is a disagreement between an employer and employees regarding the regulation of labor relations, which is submitted to the resolution of a special jurisdictional body.

The procedure for resolving individual labor disputes is regulated by Ch. 60 Labor Code of the Russian Federation, collective – Ch. 61 Labor Code of the Russian Federation.

Traditionally, labor disputes are caused by labor offenses.

Employers are required to consider all employee demands.

Stages of resolving a collective labor dispute:

• consideration of a collective labor dispute by a conciliation commission;
• consideration of a collective labor dispute with the help of a mediator;
• consideration of a collective labor dispute in labor arbitration.

Figure 1. Bodies considering labor disputes

Labor legislation, and in particular Art. 407 of the Labor Code of the Russian Federation establishes the settlement of collective labor disputes by a special service created in the system of state bodies of federal or municipal government. The functions of the service for the settlement of collective labor disputes are as follows:

• register collective labor disputes;
• check the powers of representatives of the parties to a collective labor dispute, if necessary;
• create a list of labor arbitrators and conduct their training;
• identify the reasons that gave rise to collective labor disputes;
• provide methodological assistance to the parties at all stages of dispute resolution;
• organize financing of conciliation procedures;
• promote interaction between representatives of workers and employers with government bodies and local government.

If an agreement is reached between the parties to a collective labor dispute, it is drawn up in writing and is binding on the parties.

If an agreement is not reached and the collective labor dispute is not resolved, workers, in accordance with the law, have the right to resort to a strike.

The right to strike, its procedure, obligations of the parties, guarantees, legal status workers and the prohibition of illegal strikes are regulated by the Labor Code of the Russian Federation.

When performing labor responsibilities the 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 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 regarding legal relations from which they arise (follow from the subject of labor law):

1. labor disputes arising as a result of violation 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.:

• arising from a violation of relations in the organization and management of labor. For example, an employer requires compliance with labor standards that are not provided technological process, or requires that workers complete all production tasks at a pace exceeding the normal speed of task execution, or does not release the employee from work until he completes the production task, etc., and employees in a jurisdictional manner recognize these requirements as unlawful;
• arising from a violation of the employment relationship with a given employer. For example, an illegal refusal to hire can be appealed in court;
• arising due to a violation of social-partner relations. For example, an employer does not comply with a collective agreement and the employee demands compliance with its provisions in court. Typically, such violations lead to a collective labor dispute, but each employee can defend their interests individually;
• arising due to a violation of relations regarding the participation of employees (their representative bodies) in the management of the organization. For example, an employer adopts local regulations without agreement with the primary trade union organization;
• arising from a breakdown in relationships vocational training, retraining and advanced training with this employer. For example, an employer requires an employee to pay for his training or establishes probation after successful training;
• arising from a breakdown in relationships financial liability parties to the employment contract. For example, an employer, in violation of labor laws, recovers from an employee full damages that exceed his average salary, by his own order;
• arising from a violation of supervisory and control relationships. Thus, the employer and employee can appeal the illegal application of administrative measures for violation of labor safety standards, and the parties can also appeal the accident investigation report if they do not agree with its contents and conclusions;
• arising due to a violation of relations for resolving labor disputes. For example, a party that does not agree with the decision of the labor dispute commission appeals its decision to the court, and the employer can also declare the strike illegal in court;
• arising due to a violation of relations under compulsory social insurance. For example, an employer refuses to pay an employee for two days of sick leave, although by law the first three days are paid at the expense of the employer, and the employee is forced to contact the CTS.

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-litigious 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 legal 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 bodies as having unusual functions in considering labor disputes should not be considered binding, since the powers and competence of supervisory bodies 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;
• appeal possible decision taken(optional stage);
• execution of the decision.

In a labor dispute, the legislator determines 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 in the event of the employer’s refusal 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.

Labor disputes, which may be the subject of consideration and resolution by courts of general jurisdiction, are divided into collective and individual.

Collective labor dispute is an unresolved disagreement between employees (and their representatives) and employers (their representatives) 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 employer’s refusal to take into account the opinion of the elected representative body of employees when adopting acts containing labor law standards in the organization (Article 398 of the Labor Code of the Russian Federation).

Collective labor disputes (on declaring a strike illegal) fall under the jurisdiction of the supreme courts of the republics, regional, regional courts, courts of federal cities, courts of the autonomous region and autonomous districts. These courts consider collective labor disputes at the request of the prosecutor or employer (Article 413 of the Labor Code of the Russian Federation).

Almost all individual labor disputes fall within the competence of the magistrate. The exception is cases of reinstatement at work, which are considered at first instance by district courts (clause 6, part 1, article 23 of the Code of Civil Procedure of the Russian Federation).

Individual labor dispute - unresolved disagreements between an employer and an employee on the application of laws or other regulatory legal acts containing labor law norms, a collective agreement, an agreement, an employment contract, including on the establishment or change of individual working conditions, which were reported to the labor authority consideration of individual labor disputes (Article 381 of the Labor Code of the Russian Federation).

This concept of an individual labor dispute has significantly expanded the capabilities of the bodies called upon to consider labor disputes, including justices of the peace, to protect the labor rights of a particular employee.

A very important addition regarding the signs of a labor dispute is contained in Part 2 of Art. 381 of the Labor Code of the Russian Federation, according to which an individual labor dispute is recognized not only as a dispute between an employee and an employer, but also between an employer and a person who previously had an employment relationship with this employer, as well as a person who has expressed a desire to conclude an employment contract with the employer, in the event of the employer’s refusal in concluding an employment contract.

The parties to a civil proceeding are the plaintiff and the defendant.

The plaintiff is a person in defense of whose subjective rights and legally protected interests a case has been initiated, including those arising from labor relations; defendant - a person brought to justice by the court at the request or application of the plaintiff. In addition, persons participating in the case include third parties, the prosecutor, trade unions and other bodies.

One of the features of labor dispute cases is that almost always the initiator (plaintiff) is the employee, and the employer is involved as a defendant. This is due to the specifics of labor relations, which are characterized by the subordination of the employee to the authority of the administration, the binding decisions and instructions of the administration for subordinate workers.

The employer formalizes the hiring of the employee, makes entries in work book, organizes labor process and provides the conditions necessary for work, pays wages, provides vacation and days off, transfers to another job, brings the employee to disciplinary liability, formalizes dismissal from work and has the right to terminate the contract with the employee on his own initiative.

The employee has almost no ability to influence the will of the employer.

If in conflict situation the employee decides to take a principled position, does not want to give in to the manager and put up with the decision he has made, he goes to court with a claim.

Any decision of the manager related to the application of labor legislation, collective or labor agreements, which, as the employee believes, violates his rights, may become the subject of a labor dispute.

A labor dispute can be considered either by a labor dispute commission located at an enterprise or organization, or in court in accordance with Art. 382, part 2 art. 390, Art. 391 Labor Code of the Russian Federation.

In this case, the judge must take into account that out-of-court resolution of labor disputes is not mandatory. In accordance with Art. 46 of the Constitution of the Russian Federation guarantees everyone the right to judicial protection, and the Labor Code of the Russian Federation does not contain provisions on the mandatory preliminary out-of-court procedure for resolving a labor dispute by a labor dispute commission. A person who believes that his rights have been violated, at his own discretion, chooses the method of resolving an individual labor dispute and has the right to either initially appeal to the Labor Dispute Commission (LCC) or directly to the court.

The jurisdiction of the magistrate includes cases of individual labor disputes, with the exception of cases of reinstatement at work and cases of resolution of collective labor disputes. In particular, he considers cases on claims: about changing the date and wording of the reasons for dismissal; about withdrawal disciplinary action; about payment not accrued (if there is a dispute) and accrued, but not paid wages; on recovery from an employee of damage caused to the property of an enterprise, institution, or organization; on recognizing a transfer to another job as illegal, since in this case the employment relationship between the employee and the employer does not terminate. It is necessary to take into account that a labor dispute that arose in connection with a refusal to hire is not a dispute about reinstatement at work, since it arises between the employer and the person who expressed a desire to conclude an employment contract, and not between the employer and the person who previously who had an employment relationship with him.

The Supreme Court of the Russian Federation clarified that the magistrate does not have jurisdiction over not only cases of reinstatement at work, but also cases derived from demands for reinstatement at work. In particular, these include compensation cases moral damage caused by illegal dismissal.

Cases on property disputes arising from labor relations fall under the jurisdiction of a magistrate, regardless of the value of the claim.

Also, the magistrate has no jurisdiction over disputes about establishing new or changing existing working conditions. A judge cannot consider an employee’s request to increase his wages or establish part-time work for him, or to increase tariff category or increasing the duration of vacation, if the law, collective or labor agreement, or local regulatory act does not impose a corresponding obligation on the employer.

An employee does not have the right to demand in court the payment of a bonus that is not provided for in the bonus regulations adopted and in force at this enterprise.

If the employee nevertheless goes to court with such a claim, the judge issues a ruling refusing to accept the claim on the grounds that it is not subject to consideration and resolution in civil proceedings.

It should be noted that the new Labor Code of the Russian Federation contains a provision prohibiting discrimination in the world of work. According to Part 3 of Art. 3 of the Labor Code of the Russian Federation, persons who believe that they have been discriminated against have the right to apply to the federal labor inspection authorities and (or) to the court with an application for restoration of violated rights, compensation for material damage and compensation for moral damage.

The initiative to initiate a labor case in court belongs to: the employee; to the prosecutor; employer (organization of any legal form or individual); body government controlled; to the trade union.

Acceptance of a statement of claim by a magistrate is permitted if the plaintiff complies with the procedure established by the Code of Civil Procedure of the Russian Federation.

Claims in labor disputes are brought before the magistrate at the place of residence of the defendant, and a claim against a legal entity - at the location of the body of the legal entity. Claims for compensation may also be brought at the place where the harm occurred.

When a court receives an application regarding a dispute that is subject to preliminary consideration by the CCC, the judge must request an extract from the minutes of the CCC meeting on this dispute.

One of the conditions for accepting a claim for consideration is that the form and content of the application comply with the established requirements.

The statement of claim must indicate:

Name of the court to which the application is filed;

The name of the plaintiff, his place of residence or his location (for a legal entity), as well as the name of the representative, his address, if the application is submitted by a representative;

The name of the defendant, his place of residence or his location (for a legal entity);

The circumstances on which the plaintiff bases his claim and evidence confirming the circumstances stated by the plaintiff;

Plaintiff's claim;

The price of the claim, if the claim is subject to assessment;

List of documents attached to the application. The application is signed by the plaintiff or his representative, and is accompanied by a power of attorney or other document certifying the authority of the representative.

The following are attached to the statement of claim:

Its copies in accordance with the number of defendants and third parties;

A document confirming payment of the state duty;

A power of attorney or other document certifying the authority of the plaintiff’s representative;

Documents confirming the circumstances on which the plaintiff bases his claims, copies of these documents for defendants and third parties, if they do not have copies;

Evidence confirming the implementation of the mandatory pre-trial dispute resolution procedure, if such a procedure is provided for by federal law or agreement;

Calculation of the amount of money recovered or disputed, signed by the plaintiff, his representative, with copies in accordance with the number of defendants and third parties.

The judge, within five days from the date of receipt of the statement of claim in court, is obliged to consider the issue of accepting it for court proceedings. The judge makes a ruling on accepting the application for proceedings.

The statement of claim is submitted to the court with copies according to the number of defendants. Depending on the complexity of the case, the court may oblige the plaintiff to provide copies of documents attached to the statement of claim.

If these requirements, as well as the requirements for payment of the state duty, are violated, the judge makes a ruling to leave the statement of claim without progress, notifying the plaintiff about this and giving him a period to correct the deficiencies. If the plaintiff complies with the judge’s instructions within the prescribed period, the statement of claim is considered filed on the day of its initial submission to the court. Otherwise, the application is considered not submitted and is returned to the plaintiff.

The judge has the right to refuse to accept an application in the following cases:

The application is not subject to consideration in the courts;

The interested party who applied to the court did not comply with the procedure established by law for the preliminary out-of-court resolution of cases of this category;

There is a court decision or a court ruling on the acceptance of the plaintiff’s waiver of the claim or on the approval of a settlement agreement between the parties that has entered into legal force, made on a dispute between the same parties, on the same subject and on the same grounds;

There is a case in court proceedings regarding a dispute between the same parties, about the same subject and on the same grounds;

The case is beyond the jurisdiction of this court;

The application was submitted by an incapacitated person;

The application on behalf of the interested party was submitted by a person who does not have the authority to conduct the case.

The list of reasons is exhaustive. The judge, refusing to accept the application, issues a reasoned ruling on this and returns it to the applicant with the documents he submitted. These determinations can be appealed in cassation by filing a private complaint by the person whose application was refused, or by filing a private protest with the relevant prosecutor.

When accepting a statement of claim, the judge must check whether the dispute is within the jurisdiction of the magistrate, whether the claim has been filed by the proper person, establish substantive legal requirements, whether the person filing the claim was in an employment relationship with the defendant, whether the deadlines for going to court to protect his or her rights have been met. rights provided for in Art. 392 Labor Code of the Russian Federation.

When going to court, you must comply with the deadlines established by Art. 392 of the Labor Code of the Russian Federation, according to which an employee has the right to go to court within three months from the day when he learned or should have learned about a violation of his right in disputes about dismissal - within one month from the date of delivery of a copy of the dismissal order to him or from the date of issue of the work book. The employer has the right to go to court in disputes regarding compensation by the employee for harm caused to the organization within one year from the date of discovery of the harm caused. Employees who go to court are exempt from paying fees and court costs (Article 393 of the Labor Code of the Russian Federation).

If you miss the deadlines established by Art. for good reasons. 392 of the Labor Code of the Russian Federation, they can be restored by a judge. The judge does not have the right to refuse to accept a statement of claim on the grounds that the deadline for filing a claim has been missed. If the reasons for missing a deadline are recognized as valid, the court may restore this deadline, which must be indicated in the decision. If the court, having examined the case materials, determines that the deadline for filing an appeal has been missed for no valid reason, he denies the claim.

Having accepted an application for a labor dispute, the judge must properly prepare the case for trial. The Code of Civil Procedure of the Russian Federation forms the following tasks for preparing a case for trial:

Clarification of circumstances relevant for the correct resolution of the case;

Determination of the legal relationship between the parties and the law that should be followed. When considering labor disputes, the court is guided by the norms of both labor and civil procedural law; the judge must comply with the ruling Supreme Court Russian Federation on labor disputes;

Resolving the issue of the composition of persons participating in the case;

Determining the evidence that each party must present to support its allegations.

When preparing a case for trial, the judge:

Explains to the parties their procedural rights and obligations;

Questions the plaintiff or his representative on the merits of the stated claims and offers, if necessary, to provide additional evidence within a certain period;

Questions the defendant on the circumstances of the case, finds out what objections there are to the claim and what evidence these objections can be confirmed;

Resolves the issue of the entry into the case of co-plaintiffs, co-defendants and third parties without independent demands regarding the subject of the dispute, and also resolves issues of replacing an improper defendant, joining and severing claims;

Takes measures for the parties to conclude a settlement agreement and explains to the parties their right to seek resolution of the dispute in an arbitration court and the consequences of such actions;

Notifies citizens or organizations interested in the outcome of the case about the time and place of the trial;

Resolves the issue of calling witnesses;

Appoints an examination and an expert to conduct it, and also resolves the issue of involving a specialist or translator in the process;

At the request of the parties, other persons participating in the case, their representatives, requests from organizations or citizens evidence that the parties or their representatives cannot obtain on their own;

In urgent cases, carries out an on-site examination of written and material evidence, notifying the persons participating in the case;

Sends letters rogatory;

Takes measures to secure the claim;

Resolves the issue of holding a preliminary court hearing, its time and place;

Performs other necessary procedural actions.

The judge sends or hands to the defendant copies of the application and documents attached to it substantiating the plaintiff’s claim, and invites him to submit evidence in support of his objections within the time limit established by him. The judge explains that the defendant’s failure to submit evidence and objections within the time period established by the judge does not prevent the consideration of the case based on the evidence available in the case.

If a party systematically opposes the timely preparation of the case for trial, the judge may seek compensation in favor of the other party for the actual loss of time according to the rules established by Art. 99 Code of Civil Procedure of the Russian Federation.

When preparing a case for trial, it is necessary to keep in mind that in accordance with Part 6 of Art. 152 of the Code of Civil Procedure of the Russian Federation, the defendant’s objection regarding the plaintiff’s missing the deadline for applying to the court for resolution of an individual labor dispute without good reason may be considered by a judge at a preliminary court hearing. Having recognized the reasons for missing a deadline as valid, the judge has the right to restore this deadline (Part 3 of Article 390, Part 3 of Article 392 of the Labor Code of the Russian Federation). Having established that the deadline for filing a lawsuit has been missed without good reason, the judge makes a decision to reject the claim precisely on this basis without examining other factual circumstances in the case.

If the defendant makes a statement about the plaintiff missing the deadline for going to court (Parts 1, 2 of Article 392 of the Labor Code of the Russian Federation) or the deadline for appealing the decision of the CCC (Part 2 of Article 390 of the Labor Code of the Russian Federation) after the case has been assigned to trial (Article 153 Code of Civil Procedure of the Russian Federation), it is considered by the judge during the trial.

The preliminary court hearing has the purpose of procedurally consolidating the administrative actions of the parties committed in preparing the case for trial, determining the circumstances that are important for the correct consideration and resolution of the case, determining the sufficiency of evidence in the case, investigating the facts of missing the deadlines for filing a lawsuit and the statute of limitations.

The consideration of the case on its merits begins with a report from the presiding judge.

In the report, the judge must briefly outline: who made what demands, to whom, and their grounds; if the case contains written objections from the defendant, then their essence is reported; evidence available in the case.

A clearly written case report not only provides direction in the investigation of the facts, but also helps those present in the courtroom to better understand what is happening there.

Having completed the report of the case, the presiding officer asks whether the plaintiff supports his claims, whether the defendant recognizes the plaintiff’s demands, and whether the parties wish to conclude the case by concluding a settlement agreement.

According to Part 2 of Art. 39 of the Code of Civil Procedure of the Russian Federation, the judge does not accept the recognition of the claim by the defendant and does not approve the settlement agreement if these actions contradict the law or violate the rights and legally protected interests of other persons. If the judge does not accept the defendant’s claim or does not approve the settlement agreement between the parties, the judge issues a reasoned ruling and continues consideration of the case on the merits.

If the indicated administrative actions have not been taken, the judge proceeds to hearing explanations from the persons participating in the case. First, the judge hears the explanations of the plaintiff and the third party participating on his side, then the explanations of the defendant and the third party participating on his side, after which other persons participating in the case give explanations. The prosecutor, representatives of state bodies, local governments, organizations, citizens who go to court to protect the rights and interests of other persons are the first to give explanations.

Instead of the parties and third parties, their representatives may give explanations in court. This does not deprive the parties and third parties of the right to provide additional explanations, which they may refuse if they believe that the representatives have fully and correctly stated their position on the case.

In order to fully clarify the factual circumstances, the persons participating in the case are given the right to ask each other questions. Questions are asked with the permission of the presiding officer, who must ensure that their content relates to the essence of the case under consideration. Questions that are not relevant to the process must be rejected.

Written explanations of persons participating in the case, as well as explanations received by the judge by way of a letter of request or by providing evidence (Articles 62 and 64 of the Code of Civil Procedure of the Russian Federation), are announced. It is most often necessary to read out written explanations of the persons participating in the case in cases where the person did not appear at the court hearing and the court made a decision to consider the case in his absence.

Having heard and announced the explanations of the persons participating in the case, the judge must establish the sequence of further examination of the evidence: the procedure for questioning witnesses, experts and examination of other evidence. The judge decides this issue after first listening to the opinions of the persons participating in the case present in the courtroom.

Most often, the judge begins the examination of evidence by questioning witnesses. Each witness is questioned separately in the absence of other witnesses who have not yet been questioned. The interrogated witness remains in the courtroom until the end of the trial, unless the court allows him to leave earlier.

The presiding officer, having established the identity of the witness, explains to him the obligation to tell the court only the truth and warns against criminal liability for refusal to testify and for giving knowingly false testimony. After this, the witness is required to sign that his duties and responsibilities have been explained to him.

The presiding officer, having identified the witness’s attitude towards the persons participating in the case, invites him to tell everything that he personally knows about the case. The witness presents his testimony in the form of a free story about the circumstances known to him. After this, the witness may be asked questions. The first to ask questions is the person at whose request the witness was called and his representative, then the other persons participating in the case and their representatives. The plaintiff, called at the initiative of the judge, is the first to ask questions. Judges can ask questions of a witness at any time. The witness may be questioned a second time by the judge (Article 177 of the Code of Civil Procedure of the Russian Federation).

Available special rules regulating the interrogation of a minor witness. According to Art. 179 of the Code of Civil Procedure of the Russian Federation, when interrogating witnesses under the age of 14 years, and at the discretion of the judge, when interrogating witnesses aged 14 to 16 years, a teacher is called. If necessary, their parents, adoptive parents, guardians or trustees are called. These persons may, with the permission of the presiding officer, ask questions to the witness.

When giving testimony, a witness may use written materials in cases where the testimony involves any digital or other data that is difficult to retain in memory. These materials are presented to the judge and persons participating in the case, and may be added to the case by court order.

Testimony of witnesses collected in the order of a letter of request (Article 62 of the Code of Civil Procedure of the Russian Federation), in the order of securing evidence (Article 64 of the Code of Civil Procedure of the Russian Federation) or in the manner prescribed by Part 1 of Art. 70, Art. 170 of the Code of Civil Procedure of the Russian Federation, are announced at the court hearing.

Written evidence is also examined through announcement. According to Art. 181 of the Code of Civil Procedure of the Russian Federation, written evidence or protocols of their inspection, drawn up in the manner prescribed by Art. 62, 64, clause 9, part 1, art. 150 of the Code of Civil Procedure of the Russian Federation, are announced at the court hearing. Having read out the written evidence, the presiding officer must present it to the persons participating in the case, representatives, and, if necessary, experts, specialists and witnesses. After this, the persons participating in the case can give explanations regarding the content and form of the specified evidence.

Written and material evidence that is impossible or difficult to deliver to the court is inspected and examined at its location or in another place determined by the court. The court issues a ruling on the on-site inspection.

If there is a statement that the evidence in the case is fraudulent, the judge may order an examination to verify this statement or invite the parties to present other evidence.

Having established that the evidence presented does not sufficiently support the claims of the plaintiff or the objections of the defendant or does not contain other necessary data that the parties cannot fill, the judge has the right to invite them to provide additional evidence, and in cases where the presentation of such evidence is difficult for the named persons, at their request, requests from citizens or organizations written and material evidence (part 3 of article 50, part 8 of article 142 of the Code of Civil Procedure of the Russian Federation).

According to the current Code of Civil Procedure of the Russian Federation, in necessary cases, a judge can involve specialists to receive advice, explanations and provide direct technical assistance (photography, drawing up plans and diagrams, selecting samples for examination, assessing property). The need for this may arise when examining written or material evidence, listening to sound recordings, viewing video recordings, when ordering an examination, questioning witnesses, taking measures to secure evidence, etc.

A person summoned as a specialist is obliged to appear in court, answer questions posed by the judge, give oral or written advice and explanations, and, if necessary, provide technical assistance to the court.

The specialist gives the judge advice orally or in writing, based on professional knowledge and type of activity, without conducting special studies ordered by the court.

After examining all the evidence, the presiding officer gives the floor to the prosecutor, representative of the state body and local government participating in the process in accordance with Part 3 of Art. 45 and art. 47 Code of Civil Procedure of the Russian Federation.

The judge then hears arguments from the parties.

If the judge, during or after the judicial debate, finds it necessary to clarify new circumstances relevant to the case, or to examine new evidence, he issues a ruling to resume consideration of the case on the merits. After the consideration of the case on its merits, judicial debates take place in the general manner.

After the judicial debate, the presiding judge announces that the court will retire to the deliberation room to make a decision.

The decision is made in the manner prescribed by law. This procedure not only guarantees the independence of judges when making decisions, but also serves as an indispensable condition for making a legal and informed decision.

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 agreement, agreements, employment contract, 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 may be applied by the head of the enterprise or other officials, authorized by the manager;

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 the court), in state inspection labor (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 paragraph 2 of article 7 Federal Law dated 11/21/996 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; conducting 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 also 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 fired 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 job responsibilities a cashier, not 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 arising due to force majeure, extreme necessity, justified risk, etc.).

Employer's liability

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

employer - 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);

employer - individual directly bears financial responsibility 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.

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 - maximum dimensions the occurrence of damage caused is limited to 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 agency

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 under the influence of alcohol, drugs or;

toxic intoxication

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 carried out jointly by employees individual species work related to the storage, processing, sale (release), transportation, use or other use of the valuables 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.

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 These agreements 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.

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 developed in the economy: written labor law for state (budgetary) organizations and “ordinary” law for the new commercial sector. If in government organizations The Labor Code of the Russian Federation is mostly observed, but in the commercial sector it practically does not work at all<1>. At small and medium-sized enterprises, 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 rights. 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 workers do not clearly know their functional responsibilities, so they don't do 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 Labor Code RF; 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 related to physical or psychological impact <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 legal regulation labor relations: Collection of materials 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 alcohol or appearing in 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 because the delay was caused by good 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 appeared new reason the emergence of labor disputes and is connected with the situation in the state as a whole. "High inflation, over-regulation economic relations contrary 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 increased 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. November 25, 2002 electrician of Nizhny Tagil OJSC Iron and Steel Works"K. at the entrance of the plant was detained in a state of alcoholic intoxication, about which a report was drawn up. The employee was dismissed under clause "b" clause 6, part 1, article 81 of the Labor Code of the Russian Federation only on December 27, that is, a month from the date of the crime disciplinary offense by the decision of the Tagilstroevsky District Court. Sverdlovsk region dated 03/17/2003 K. was reinstated at work with payment for forced absence, as the deadline for applying the penalty was missed<19>.

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

Analyzing judicial practice on 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 proposed to resolve the dispute by changing the wording of the dismissal to “dismissal due to at will"and paying compensation for the time 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. Workers at general meeting They explained that they work for another 2 months, and then the issue of their employment in the sanatorium-dispensary of the enterprise is decided if they have a personal statement or dismissal. 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 sides, 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