Employers are well aware that the Labor Code protects, first of all, the interests of the employee. It is correct - after all, the employee in these legal relations is the “weak side”. However, sometimes this party begins to exercise its rights to the detriment of the employer. What mechanisms do employees use to abuse their rights, and how should they counter their actions?
In practice, almost every personnel officer or accountant who performs his duties has to face the so-called personnel blackmail. As a rule, with the help of blackmail, the employee tries to "knock out" some concessions for himself. And in such cases, the employer always has options: agree or argue. The decision is usually made taking into account possible labor costs and time costs.
But there are also situations when an employee "fights", as they say, out of principle. And in such a situation, he has to resist. The main principle of such confrontation is the correct execution of all documents.
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A variation of the situation with the work book: the employee stopped going to work, but at the same time does not submit a letter of resignation, does not make direct contact with the employer. The calculation here is that he will be fired, and then he will prove and receive compensation.
Accordingly, the employer can simply resist this: it is enough not to fire such an employee. But, of course, that the absent employee and wages should not be accrued. Therefore, it is important to fix the fact of absence itself. This is done as follows: the immediate supervisor of the absent employee draws up a memorandum or memo addressed to the head of the organization. It sets out the facts: the employee did not appear at his workplace, indicates the time when he was supposed to come to work and the time the note was drawn up. It also provides information about whether attempts were made to contact the employee and what the results of these attempts are.
The head of the organization, having received such a memorandum, initiates the procedure for further processing. In particular, it instructs the personnel and (or) legal service to prepare. For this document, the State Statistics Committee of Russia has not established a unified form, therefore it is compiled in free form. It indicates the full name and position of the employee who is absent from the workplace, the date of absence, how many working hours the employee was absent (therefore, it is better to draw up an act at the end of the working day). Further, the date and time of drawing up the act itself are necessarily fixed, it is indicated who and on the basis of what it was drawn up. In addition, we record in the act who was present when the document was drawn up. After that, all persons present sign the act. We recommend that you invite the immediate supervisor of the absent employee, as well as two or three employees from other departments of the organization, to draw up the act (to ensure relative independence and impartiality in the preparation of the document).
This act is attached to the memorandum or memo that served as the basis for its preparation, and is transferred to the person who is responsible in the organization for recording working time. On the basis of these documents, the employer has the right to put a note in the Timesheet on the absence of an employee for an unexplained reason (“НН”, or 30; see Decree of the State Statistics Committee of the Russian Federation dated 05.01.04 No. 1). In the future, the act and the memorandum are filed in the employee's personal file. In the event of a long absence of an employee at the workplace, such acts must be drawn up for each day of absence and filed into his personal file.
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Separately, it is worth mentioning the various methods of blackmail associated with. Here situations usually develop according to two scenarios.
The first is provoking the termination of the employment contract at the initiative of the employer, dismissal and subsequent filing of claims that at the time of dismissal the employee was pregnant and, accordingly, the dismissal is illegal.
The second is the actual refusal to work by a pregnant employee with the expectation that she cannot be fired for absenteeism and other violations of the Labor Code of the Russian Federation.
Unfortunately, in the first of the situations described, it is almost impossible for an employer to protect himself from blackmail. The only thing that can be done in such a situation is to check the reality of the issued certificate and, if it turns out that it is fake, initiate criminal prosecution of the employee. The employer can organize such a check on his own by sending a request to the organization that issued the certificate, or petition the court if the matter has gone to trial. Remember that the key point in such disputes is the date of pregnancy, which at the initial stages is set according to the woman's words and is further specified based on the results of medical examinations. You can also play on this clarification by defending the legality of the dismissal.
Also, the legality of the dismissal can be tried to be justified by referring to the abuse of the right (Decree of the Constitutional Court of the Russian Federation of December 6, 2012 No. 31-P, Appellate ruling of the Supreme Court of the Republic of Sakha (Yakutia) of September 26, 2012 in case No. 33-3295 / 2012). But here you will need evidence of dishonest actions of the employee. For example, a significant and unexplained time interval between dismissal and going to court, testimonies of witnesses about the facts of blackmail, etc.
If the certificate and dates of pregnancy are beyond doubt, then the employee will have to be reinstated at work with the payment of all amounts due (paragraph 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 01/28/14 No. 1).
With the second situation, everything is a little easier. Yes, the employer is not entitled to dismiss such a truant, but he is also not obliged to pay her wages. So, in this case, it is necessary to act in the same way as in the situation with the missing worker described above. That is, to record the facts of absenteeism in personnel documentation.
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If a citizen wrote about the violation of his rights to the labor inspectorate, then an unscheduled on-site inspection may be assigned to the employer. What exactly will the inspectors check during such an inspection?
In case of admission, the subject of an unscheduled inspection will be the facts of non-compliance by the employer with the requirements of labor legislation in relation to this employee. In this case, the documents related to this particular employee will be checked. Since state labor inspectors do not have the right to demand the submission of documents, information, if they are not objects of verification or do not relate to the subject of verification. If during the inspection the inspector reveals violations that are not related to the subject of the inspection, this may be the reason for initiating another unscheduled inspection. After all, the basis for its implementation may be information (including information received from officials of the federal labor inspectorate) about the facts of violations by employers of the requirements of labor legislation, including labor protection requirements, which resulted in a threat of harm to the life and health of workers.
It turns out that, having come with an unscheduled inspection initiated in connection with an employee’s complaint, inspectors will only check the facts stated in this complaint.
As a general rule, the labor inspectorate notifies the organization of an unscheduled on-site inspection at least 24 hours before its start by any available means. However, if an employee has received an appeal about a violation of his labor rights or about the facts of violations by the employer of the requirements of labor legislation, which resulted in a threat of harm to the life and health of employees, the notification of the employer about the inspection is not allowed. For example, within the statutory deadlines refers to violations representing threat to public health. Therefore, such an unscheduled inspection can be carried out immediately, without the consent of the prosecutor's office.
As a general rule, if an employee wants to quit of his own free will, he must notify the employer in writing no later than two weeks in advance.
Hello Anton!
In this situation, you need to know what you will have to face.
If you have entered into an agency contract, and not an employment contract, then you are not required to pay “vacation pay” and “severance pay” to the employee, since these relations are not labor relations, but are regulated by the Civil Code. But, here the employee will try to prove that between you there are not civil law, but labor relations. And his chances of proving it are quite high, while you yourself helped him in this. Let me explain.
In the absence of a written employment contract, the employee can prove that an employment relationship has developed between you and you actually allowed him to work, providing him with a workplace (transferred to an office “under supervision”). Labor relations are characterized by the following:
Article 15. Labor Code of the Russian Federation. Labor Relations
Labor relations - relations based on an agreement between an employee and an employer on the personal performance by an employee of a labor function for a fee (work according to the position in accordance with the staff list, profession, specialty indicating qualifications; a specific type of work assigned to the employee), subordination of the employee to the rules of internal labor regulations when the employer provides the working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract.
The conclusion of civil law contracts that actually regulate labor relations between an employee and an employer is not allowed.
Regarding the actual admission to work, confirming the conclusion of an employment contract - Part 2 of Art. 67 of the Labor Code of the Russian Federation:
An employment contract that is not executed in writing is considered concluded if the employee has started work with the knowledge or on behalf of the employer or his authorized representative. When the employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than three working days from the date the employee was actually admitted to work, and if the relationship associated with the use of personal labor arose on the basis of a civil law contract, but subsequently was recognized as labor relations - no later than three working days from the date of recognition of these relations as labor relations, unless otherwise established by the court.
He will prove this with evidence.
Now about what he can get: in the absence of evidence of the amount of wages - an all-time salary in the amount of the minimum wage (5554 rubles) per month plus the district coefficient minus 13% personal income tax. for the entire time of work, compensation for not granted leave upon dismissal and average earnings for the entire time of forced absenteeism (while the trial is ongoing, if he goes to court), plus compensation for non-pecuniary damage (the courts satisfy very small amounts of 2-5 thousand rubles. ), as well as court costs.
Thus, the actual employee will not be charged so much from you (a relative category, of course).
More trouble can be delivered to you by an inspection by the State Labor Inspectorate. There are penalties for violating labor laws. There will be a violation if the employee proves the existence of an employment relationship. Violations: there is no written employment contract, there is no proper execution (order, entry in the work book) and, accordingly, a violation of the dismissal procedure.
In this case, the legal position of the employer may be as follows: the contract is not labor, but civil law (agency, regulated by Chapter 52 of the Civil Code of the Russian Federation):
Article 1005. Agency agreement
1. Under an agency agreement, one party (agent) undertakes, for a fee, to perform legal and other actions on behalf of the other party (principal) on its own behalf, but at the expense of the principal or on behalf and at the expense of the principal. In a transaction made by an agent with a third party on behalf of in his own name and at the expense of the principal, acquires the rights and becomes obligated to the agent, even though the principal was named in the transaction or entered into direct relations with a third party in the execution of the transaction. In a transaction made by an agent with a third party on behalf and at the expense of the principal, the rights and obligations arise directly from the principal.2. In cases where the agency agreement, concluded in writing, provides for the general powers of the agent to make transactions on behalf of the principal, the latter, in relations with third parties, is not entitled to refer to the agent’s lack of appropriate powers, unless he proves that the third party knew or should have known about the limitation of the agent's powers.
3. An agency contract may be concluded for a fixed period or without specifying the period of its validity.
4. The law may provide for specific features of certain types of agency agreement.
The weakness of this position is that he worked at the workplace provided by you and, in fact, there is no agency agreement. The rest is stated above.
Or negotiate with him on reasonable terms. Only in this case it should be understood that there are no guarantees that he will not go to court.
The only thing that is possible is to "drag out" the time. The fact is that he can file a claim with you regarding reinstatement at work within 1 month from the date of dismissal, and regarding arrears in payments - within 3 months (this is according to the Labor Code of the Russian Federation). At the same time, if he goes to court after the expiration of these deadlines, the court will accept his claim, but according to your application for the application of the limitation period, he is obliged to refuse to satisfy such requirements.
Thus, there are 3 options: 1. Prove that an agency agreement has been concluded; 2. Agree with his demands and pay; 3. "Delay" the term of his appeal to the court under various pretexts.
Sincerely, S.Sergeev
The right to work is established by the Basic Law of the country. Russians implement constitutional law in practice. Labor is free, everyone controls himself: he has the right to choose a profession and type of activity. When applying for a job, a citizen has the right to count on the employer's compliance with labor protection requirements, as well as protection from unemployment. The interests of the employer and employee do not always coincide. At any stage of the employment relationship, a dispute may arise. The employee has the right to protect his rights and interests.
An employee working in a company (at an enterprise) has three options to protect himself from the arbitrariness of the employer:
If a citizen believes that the employer infringes on his rights, he can apply to the organization for the protection of the rights of workers. This is the State Labor Inspectorate, whose powers include issues of consideration of violations by employers. A complaint to the Inspectorate can be made in writing or by filling out a special electronic form on the OnlineInspection.ru web resource.
A citizen can seek help from lawyers specializing in labor disputes. The specialist will accurately and correctly draw up a complaint. The law does not impose special requirements on the content of this appeal, except that the complaint must be written correctly and concisely. This will help the labor inspector to quickly understand the essence of the employee's problem and help him. The Labor Inspectorate must respond to a complaint within 30 days. The Service for the Protection of the Rights of Workers - The Labor Inspectorate responds to complaints from the working population with unscheduled inspections of the employer. Based on the results of the inspection, the inspector issues an act, which indicates the identified violations, their nature. In some cases, the activities of the employer may be suspended.
The Committee for the Protection of the Rights of Workers is created on the basis of the trade union. This is an association of citizens, consisting of employees and representatives of the employer. The trade union aims to protect the rights of workers. Its work is regulated by No. 82-FZ, as well as by the federal law regulating the activities of non-profit organizations. The employer has no right to interfere with the organization of the trade union.
An employee may also apply to the Prosecutor's Office, in whose territory the company that violated the employee's rights operates. The prosecutor's office monitors the observance of the rights of citizens in Russia, including labor rights. The complaint is written in the name of the prosecutor.
The employee can go to court. The claim is written in triplicate. In order to write a competent document, it is better to contact lawyers or independently study the rules for drawing up a statement of claim. The claim must indicate the court where the application is sent. The plaintiff must provide full details about himself and the defendant with contacts by which they can be contacted. The claim must indicate the facts of violation by the employer of the rights of the employee with references to laws, as well as a request to the court. If the complaint is incorrectly drafted, the judge may send it back to the complainant and not consider the dispute until the violations are corrected.
The law provides for the worker's right to self-defense. Usually it is used by employees who are not paid wages on time; arrange for a workplace that does not comply with the employment contract. But the right to self-defence cannot create barriers to appeal to various authorities.
Typically, employee representation services in court are provided by lawyers specializing in labor disputes. Lawyers will competently state the position of the plaintiff in court. There are several organizations operating in Moscow that call themselves the Society for the Protection of Workers' Rights. The organization consists of lawyers who resolve disputes between the employer and the employee.
As you know, in labor relations between an employer and an employee, the employer is the least protected party.
Employees have many rights:
To receive compensation for unused vacations,
Receiving draconian compensation (up to 5 salaries) in case of staff reduction, headcount and liquidation of the company,
The right to unchanged working conditions, any slightest change is immediately interpreted as a transfer, and can be made only with the consent of the employee, and even with a two-month prior notice,
The right to complain to the Labor Inspectorate and the Prosecutor's Office about the slightest violations of the employer, such as delay in payment of wages even for 1 day,
The right to demand a practically unlimited number of internal documents of the employer, including the staff list with all salaries (according to the explanations of the Federal Labor Inspectorate), hiding behind the fact that they are related to him, and the employee can request them almost daily,
And dozens and hundreds of other rights.
If an employee decides to use at least part of the rights granted, he can even bring the company into a state of virtual suspension of activities, huge unfounded claims sometimes lead to the arrest of the company's accounts, inspections by state bodies force them to divert all their efforts to preparing documents for them, and not business work.
And this is despite the fact that the employee himself does not actually bear any responsibility for his work. In order to prove the unsuitability of an employee, it is necessary, in accordance with clause 3, part 1, article 81 of the Labor Code of the Russian Federation, to carry out a monstrously cumbersome and time-consuming certification procedure for the entire team for the sake of dismissing one person. Almost even more difficult is the dismissal under paragraph 5 of part 1 of article 81 of the Labor Code, according to which the employee must seriously violate his labor duties as many as 3 times, and each time must be strictly documented so that he can be fired.
According to the established judicial practice of Russian courts, an employee is not liable either for disclosing trade secrets, which employees constantly use, completely stealing customer bases from companies, or for insults and threats against colleagues and management, or for unethical behavior, because. The Labor Code does not consider this at all as a violation of labor duties, i.e. an employee can freely be rude to the whole team around him and calmly continue to do nothing, rejoicing at his impunity.
At the same time, the employer turns out to be absolutely powerless and is forced to transfer tons of paper only for the signing of all kinds of agreements, local acts, contracts, orders and other tinsel, in order to be able to fire the employee, even if only with huge compensation for downsizing.
And even in this case, the court very often reinstates the laid-off employee at work, also awarding him additional compensation in addition to the already paid five salaries.
An employer can avoid losses and defend his rightness in court only by acting according to clear procedures developed by our lawyers, using strictly defined forms of documents - acts, orders, contracts, signing them exactly on time and sending them to the employee only in established ways, providing evidence of their receipt. Protection of the rights of the employer is one of our main areas of work.
What are the main causes of litigation between an employee and an employer?
Litigation between employee and employer, where The claimant is an employee:
Litigation with an employee begins, as a rule, with a pronounced conflict between the employee and management, the employee sends claims to the employer, and then sends complaints against the employer to the State Labor Inspectorate (Rostrudinspektsiya) and the Prosecutor's Office.
Lawsuits are usually filed by employees after the completion of government inspections or in their final stages.
In its turn, protect the rights of the employer, sue the employee or send An employer may file a claim against an employee in the following cases:
In all these cases, it is important to work out the legal position correctly, select all the documents directly or indirectly substantiating your position, provide the court with testimonies from other employees confirming your position.
To do it right so as to win your particular case, only high-class specialists, such as lawyers from the Legal Bureau JURISTOKRAT, can do it.
Our practice in protecting the rights of employers in labor disputes has many years of hard, hard and productive work, a lot of reflected claims of employees, saved tens of millions of rubles by employers.
According to Art. 392 of the Labor Code of the Russian Federation, an employee has the right to apply to the court for resolution of an individual labor dispute within three months from the day when he learned or should have learned about the violation of his right, and for disputes about dismissal - within one month from the date of delivery of a copy of the order to him on dismissal or from the date of issue of the work book. That is, you need to wait for a statement of claim from the employee within the specified time frame.
The employer has the right to apply to the court for disputes on compensation by the employee for damage caused to the employer within one year from the date of discovery of the damage caused. That is, within the specified time limits for this category of disputes, it is necessary to file a statement of claim.
If, for good reason, the deadlines set above are missed, they can be restored by the court.
It should be borne in mind that when applying to the court, employees are exempted from paying state duty, which greatly increases the risk of such “free” claims.
According to Article 154 of the Code of Civil Procedure of the Russian Federation, “civil cases are considered and resolved by the court before the expiration of two months from the date of receipt of the application to the court”, i.e. within about two months, a labor dispute is considered in court.
In practice, this period is increased to 3-6 months in connection with the collection of documents by the court, the questioning of witnesses.
In total, the total period for resolving a labor dispute and protecting the rights of the employer, taking into account the pre-trial "war" is ~ 4-8 months.
This period can be reduced by half or even three times, if you turn to the lawyers of PB JURISTOKRAT in a timely manner, who will impeccably draw up the necessary documents, conduct negotiations, as a result of which the dispute will be resolved before it really starts.
1. You send us by e-mail or in person at your or our office information and documents to protect the employer against the employee, including filing a claim against the employee, a claim against the employee, responding to the employee's claim, withdrawing the employee's claim:
Constituent documents of the organization, description of the company's activities (presentation)
Personal file of the employee, including documents in accordance with the Labor Code of the Russian Federation
Employment contract with all annexes and other documents signed with the employee, job description
Orders on admission, dismissal, penalties, incentives, transfers, relocations, etc.
Correspondence with an employee
Other documents as per our request
2. We study the submitted documents, evaluate the prospects for defending the employer, suing the employee, claims against the employee, claims of the employee, or a case initiated by the employee himself, we inform you.
3. You hand over to us the rest of the documents that are necessary for employer protection, preparing a claim against an employee, filing a claim against an employee, preparing a response to an employee’s claim or a response to an employee’s claim.
4. We are preparing a claim to the employee, a claim to the employee, a response to the claim of the employee, a response not to the claim of the employee.
6. We are pursuing a case against an employee until a court decision is received.
Our vast positive experience in the field of protecting the rights of employer companies in the field of trade, production, supply, import and others allows us to guarantee the refusal of workers' claims or their multiple reduction as a result of a set of measures to protect the employer.
The result of our work on protecting the employer by filing a lawsuit against an employee is:
The decision of the court on the recovery of monetary amounts from the employee to compensate for the damages caused
The result of our work on protecting the rights of the employer by submitting employee complaints is:
Voluntary compensation by the employee of the amount of damage caused, or the fulfillment of other specified requirements
Voluntary dismissal of an employee from his position by agreement of the parties or at his own request
The result of our work is the protection of the employer by representing your interests against an employee in court is:
The decision to refuse the employee in the claims presented in whole or in part
The result of our work on protecting the rights of the employer by representing your interests against the employee at the stage of pre-trial negotiations is:
Refusal of the employee from claims against the employer in whole or in part
The result of our work to protect the rights of the employer through representation of your interests in the process of inspections of the Federal Labor Inspectorate and the Prosecutor's Office is:
Reducing the amount of fines or not imposing them (refusal to initiate an administrative case based on the results of the audit)
Reducing the number of comments or their complete leveling
|
Name of the type of employer protection service |
Service cost |
|
Drafting a claim to the court against the employee, claims against the employee, withdrawal of the employee's claim, response to the employee's claim |
7’000 rubles |
|
Advice on issues labor law and employer protection |
3’000 rubles / hour |
|
Representation at the pre-trial stage against an employee, including: Oral consultation; Analysis and Compilation and submission - conducting negotiations with an employee . |
25 "000 rubles +% of the collected / recovered amounts |
|
Representation in court in a case against an employee, including: Oral consultation; Analysis and highlighting problems in documents and the organization of labor that gave rise to the dispute; Compilation and submission claims / response to a claim; - compilation and submission statement of claim / response to the statement of claim; - preparation and submission other procedural documents; Receipt solutions court on business. |
45 "000 rubles +% of the collected / recovered amounts |
Protection of the rights of the employer in labor disputes is enshrined in Art. 22 of the Labor Code of the Russian Federation and includes the possibility of:
This provision is in line with Art. 21 of the Labor Code of the Russian Federation. What is the responsibility of the employer is the right of the employee. Conversely, the employer may require the employees to fulfill the obligations listed in Art. 21 of the Labor Code of the Russian Federation. For example, an employee must take care of the property of the enterprise, and, accordingly, the manager has the right to demand such frugality.
Thus, a violation of the employer's rights usually consists of:
All labor disputes can be divided into 2 large groups:
Of the individual disputes where the rights of the employer are violated, in practice, the most common are claims for compensation for damage caused by the employee.
According to Art. 248 of the Labor Code of the Russian Federation, the employer may recover 1 salary from the employee within 1 month after the determination of the final amount of damage by issuing an appropriate order.
The employer applies to the court for recovery if:
Such types of individual disputes fall within the exclusive competence of the court (paragraph 3, part 2, article 391 of the Labor Code of the Russian Federation).
For other types of individual disputes, the employer can first apply to the commission on labor disputes, and then to the court or immediately to the court (about the judicial procedure - in the article What kind of court and in what terms considers labor disputes?)
The procedure for resolving collective disputes is regulated by Ch. 61 of the Labor Code of the Russian Federation, it will be discussed below.
According to Art. 398 of the Labor Code of the Russian Federation, the beginning of a collective dispute is considered the day the employer refuses to fulfill all or some of the requirements set by the team of employees, or the expiration of 2 days from the moment the employees apply to him (part 1 of article 400 of the Labor Code of the Russian Federation). The procedure for resolving a collective dispute is defined in Art. 401-404 of the Labor Code of the Russian Federation. It is carried out in at least 2 stages:
If a consensus has been reached at the level of the conciliation commission, this fact is recorded in the minutes.
IMPORTANT! A mediator as an intermediary in collective labor disputes is not allowed (part 5 of article 1 of the law “On an alternative procedure ...” dated July 27, 2010 No. 193-FZ).
If, despite the work of the mediator, the dispute continues, a labor arbitration is created. It is also created in cases of refusal of the parties to involve an intermediary or failure to reach agreement on his candidacy.
On the part of the employer in the course of conciliation procedures, the head of the organization or association of employers acts (part 2 of article 33 of the Labor Code of the Russian Federation).
Employers have the right to unite in associations and unions in accordance with Art. 2 of the Law “On Associations of Employers” dated November 27, 2002 No. 156-FZ (hereinafter - Law No. 156-FZ).
The main purpose of creating an OR is to represent and protect the legal rights of its participants in cases specified in the OR's charter.
In addition to statutory obligations, there are obligations under the law (Article 14 of Law No. 156-FZ):
As noted above, when resolving labor disputes, the representative of the employer may be the PR. This right is enshrined in paragraph 5 of Art. 13 of Law No. 156-FZ.
EOs act independently of state bodies, independently determine the goals and directions of their activities.
Thus, the EO is a kind of body that has the right, and sometimes is obliged to participate in collective bargaining and the resolution of collective disputes.
Preliminary preparation of the soil by the employer is the basis for further protection of his rights in a labor dispute, because for any requirement he needs to have a justification, documentation drawn up in accordance with all norms of the law.
For example, in order to require an employee not to disclose internal company information, it is not enough to just approve a list of information that is a trade secret and write a non-disclosure clause in the employment contract.
Bringing employees to disciplinary responsibility and terminating the contract on a unilateral initiative are also ways to protect the rights of the employer (determination of the Constitutional Court of the Russian Federation of February 25, 2016 No. 227-O). At the same time, in order to use such methods, the employer must prepare documents that substantiate his position.
Finally, judicial protection is a universal way of protecting rights that any person can resort to.
According to part 8 of Art. 401 of the Labor Code of the Russian Federation, workers have the right to hold strikes in the manner prescribed by law. This is the law "On meetings ..." dated June 19, 2004 No. 54-FZ (hereinafter - Law No. 54-FZ).
In part 3 of Art. 413 of the Labor Code of the Russian Federation defines an illegal strike: one that was held without taking into account the terms, procedures and requirements of the law. In this case, the employer has the right to protect his business - and demand that the strike be recognized as illegal.
To declare a strike illegal, the employer must prove that the deadlines were violated and / or the necessary procedures were not carried out. In particular, a mandatory procedure is to warn the employer about the strike no later than 5 days before it starts (part 8 of article 410 of the Labor Code of the Russian Federation).
IMPORTANT! If the upcoming strike was announced to the management of the branch, and not directly to the executive body of the organization, this is not considered a violation. The head of the branch must transmit information about the strike to the head office (determination of the Supreme Court of the Russian Federation of April 18, 2008 No. 45-G08-9).
A claim for the recognition of a strike as illegal is filed with the supreme court of the republic, territory, etc. (part 4 of article 413 of the Labor Code of the Russian Federation).
Labor disputes are considered in courts of general jurisdiction (clause 1, part 1, article 22 of the Code of Civil Procedure of the Russian Federation). Their peculiarity is that, no matter what position the employer (plaintiff or defendant) is in, in most cases the burden of proving any facts falls on him:
This "injustice" is due to the fact that the legislator considers the employee to be the weak side of the legal relationship and labor legislation is built on the principle of maximum protection of his (employee's) interests.
However, it is worth remembering that the court does not always have the right to impose the burden of proof on the employer. For example:
In our opinion, the complexity of protecting the rights of the employer lies in the fact that in most cases it is the management of the organization that has to prove any facts. At the same time, a large number of out-of-court ways to resolve a dispute allows you to come to an agreement with the employee.
