Causes of labor disputes. Causes of individual labor disputes

Any labor dispute does not arise out of nothing, it has a reason. Analysis and correct understanding of the phenomena that led to the labor conflict contribute to the rapid and high-quality resolution of disagreements, reducing tension in the team.

Labor disputes

The legislation does not contain a formal explanation of the term "labor dispute". Based on the general content of the norms of the Labor Code, such disputes include any contradictions between the employer and subordinates that: a) arose from labor relations; b) submitted for consideration to the authorized body.

The emergence and development of the dispute

Each phenomenon develops in a certain dynamics, the labor dispute is no exception. The main stages of a dispute over labor relations are:

  • fact, event, action, inaction (issuance of an order, non-payment of wages, and so on);
  • its subjective assessment by the participants - disagreements;
  • negotiations - an attempt to resolve disagreements without the participation of a third party;
  • referral of the dispute to an advising jurisdictional body for the resolution of an already labor dispute.

The stage of negotiations is not always pronounced. The law does not establish any formal requirements for conducting preliminary negotiations in the event of an individual dispute. You can appeal the order without sending a pre-trial warning to the administration. Conducting conciliation procedures (negotiations) is mandatory only for the settlement of collective disputes.

Types of labor disputes

Labor Code classifies labor disputes according to the subjective composition of participants into individual and collective. The former affect the interests of a particular employee, the latter - a group of employees united by common interests.

Regardless of the composition of the participants, the grounds for the emergence of a production dispute are basically the same - improper compliance by one of the parties with labor rules and regulations. Collective disputes are not always associated with violation of mandatory requirements, often the subject of negotiations between the administration and employees is the specification of their rights and obligations under the current legislation.

If the consequences of the violation affect the interests of an individual employee, the dispute is resolved in individually special commission or court. Infringement of the rights of the labor collective leads to the need for conciliation procedures.

The decision on an individual dispute is binding on the individual employee who is a party to the conflict. The compromise reached between the administration of the enterprise and the representatives of the workers acquires a universal character, the agreements reached apply to all employees, regardless of their personal opinion.

The Labor Code calls the grounds for the emergence of an individual dispute the existence of disagreements over the execution of:

  • labor legislation;
  • industry and collective agreements;
  • normative documents of the enterprise;
  • labor contract.

A collective dispute, according to the code, arises over:

  • working conditions: introduction of new ones, changes in old ones;
  • remuneration terms
  • conclusions, changes and implementation of sectoral and collective agreements;
  • ignoring the position of the trade union when taking orders.

The ratio of individual and collective disputes

Often the cause of a collective dispute is the accumulated unresolved problems of individual workers. The unwillingness or inability of the administration to meet the personal requirements of employees, force the latter to unite and solve the problem collectively. For example, in the first place among the causes of collective disputes is the delay in wages. Non-payment of remuneration gives the employee the right to bring a claim against the enterprise and obtain compulsion to fulfill the obligation through the court, to resort to the help of bailiffs, that is, to initiate an individual labor dispute. Mass violation (delay in payment of the whole plant) leads to a collective dispute, often using strikes. At the same time, individual disputes that have arisen do not stop; in the course of conciliation procedures, a solution can be reached that can only resolve collective claims. Each employee can continue the protection of personal rights independently.

Causes of labor disputes

In many ways, the specific causes of individual or collective disputes coincide, but at the same time, due to the difference in the subjective composition, they differ. In general, considering the problem of disputes between participants in a labor partnership, two categories are distinguished:

  • objective reasons;
  • subjective reasons.

Objective reasons explain the general patterns of industrial conflicts arising from contradictions in property relations, wage labor, and others. Despite the declared social partnership, the interests of its participants are largely opposite. Employees are primarily interested in jobs and maximum wages. The owners of the enterprise - in increasing its profitability and minimizing costs. Different goals and attitudes towards the enterprise create an irreducible conflict of interests - a cause that, under certain conditions, will lead to a conflict. The decision of the owner to reduce wages will never be received positively by the workers. Demanding workers to raise wages will never cause enthusiasm among business owners.

Subjective reasons are not due to general patterns public relations, but by the actions of their participants, erroneous or deliberately illegal.

Conditions of occurrence

The causes of conflict in the enterprise are distinguished from the circumstances that contribute to its occurrence. The conditions for the emergence of conflicts between employees and the administration are divided into 3 groups:

  • social;
  • economic;
  • legal.

A change in the financial condition of the enterprise may induce the employer to lower salaries, make a decision to change working conditions, and others that will lead to a dispute with employees. Legal illiteracy, inconsistency of norms and gaps in legislation create conditions for different understanding of the rights and obligations by the parties, interpretation of the law. Unfavorable social conditions, such as low wages, lead to workers' dissatisfaction, resulting in a labor dispute.

Reasons for disagreement

Disagreements are often caused by the unequal understanding of the employee and the employer, their different assessment of the conditions for exercising a subjective right or fulfilling a specific obligation, expressed in the actions or inaction of the employee (breach of discipline, failure to comply with orders, etc.) or the administrative apparatus (illegal compulsion to work, non-payment of remuneration, etc.). ). The irrational, unmotivated and unreasonable desire of an employee to beat out personal working conditions for himself, to challenge the lawful actions of the administration, also lead to a labor conflict.

The reasons for the emergence of a collective dispute in an enterprise are often common problems of the team:

  • working conditions that do not meet the mandatory requirements of sanitary hygiene and safety;
  • insufficient level of organization of work and production;
  • shortcomings of the system for determining the amount of remuneration of employees;
  • other negative and unfavorable circumstances.

The main causes of disputes in 2017

The main reasons for the emergence of collective disagreements about working conditions in the first half of 2017 were.

Concept, causes and classification labor disputes.

Labor disputes are unsettled disagreements that arise between an employee or a group of employees and an employer on issues related to the use of labor.

A labor dispute is considered to have arisen when the disagreements could not be resolved through direct negotiations with the employer.

Reasons for labor disputes:

1. low legal culture of many managers (poor knowledge of the laws, disrespect for the laws and the legitimate rights of employees, ignoring the requirements of the law, etc.);

2. poor organization of labor;

3. unclear definition of labor functions of employees;

4. non-compliance of the work with the qualifications of the performer;

5. unfavorable moral and psychological climate in the team, leading to conflict situations;

6. leadership style that causes dissatisfaction among employees;

7. ignorance by employees of labor legislation, their rights and obligations, etc.

The main means of overcoming labor disputes is the eradication of these causes.

Types of labor disputes

1. According to the subjects, labor disputes are divided into individual and collective.

Individual - these are disputes between a specific employee and the employer (Articles 381-397 of the Labor Code).

Collective - disputes between the team of the organization or its structural unit(workshops, production facilities, etc.) and the employer (Articles 398-418 of the Labor Code).

2. According to the subject of the dispute, labor disputes are divided into claims and non-claims.

Claims are disputes on issues related to the application of existing working conditions established by law, a collective agreement, agreements, an employment contract.

These include disputes over layoffs, transfers to another job, payment for work performed, vacation days, etc.

Non-claims are disputes related to the establishment of new or changes in existing working conditions.

These include disputes about the revision of production standards, the establishment of new wage conditions, etc.

The judicial procedure for considering labor disputes is regulated by the norms of the Civil Procedure Law.

Consideration of individual labor disputes.

Individual labor disputes are unresolved disagreements between an employer and an employee on the application of labor legislation and other regulatory legal acts containing labor law norms, collective agreement, agreement, local regulatory legal act, employment contract, which are declared to the labor dispute resolution bodies.

The primary body for the consideration of individual labor disputes is the KTS. The CCC is formed at the initiative of employees or employers from an equal number of their representatives.

Employee representatives are elected general meeting(conferences) or delegated by the representative body of employees with subsequent approval at the general meeting.

Representatives of the employer are appointed by the head of the organization (Article 384 of the Labor Code).

Since CCCs are created at the initiative of the parties, the creation of such a commission is not mandatory.

The competence of the commission on labor disputes includes the resolution of individual labor disputes only claims.

The procedure for considering non-contractual labor disputes in the legislation has not been fully regulated. They can be considered with the participation of trade unions.

Labor disputes that are submitted for direct consideration to the courts cannot be considered in the CCC (Article 391 of the Labor Code).

The employee has the right to apply to the CCC by submitting a written application within three months from the day he learned about the violation of his rights (Article 386 of the Labor Code).

The procedure for resolving labor disputes is regulated by Art. 387, 388 TC. The dispute must be resolved within 10 calendar days from the date of receipt of the application in the presence interested employee. Consideration of a dispute in the absence of an employee is possible only upon his written application.

The commission has the right to summon witnesses and specialists to the meeting. At the request of the CCC, the head is obliged to provide her with the necessary documents.

If the CCC does not consider the labor dispute within 10 days, the employee has the right to transfer its consideration to the court.

The decision of the CCC may be appealed by the parties to the dispute in court within ten days. The decision comes into force after 10 days after its adoption and is subject to mandatory execution by the employer within 3 days.

If the employer fails to comply with the decision, the CCC issues the employee a certificate for enforcement, which has the force of a writ of execution, which the employee submits to the court for execution.

Directly in the courts as the first instance considering labor disputes referred to in Art. 391 TK. These include:

1. disputes over employees' applications - about reinstatement, transfer to another job, payment for time forced absenteeism etc.;

2. disputes at the request of employers - about compensation by the employee for damage caused to the employer;

3. refusal to hire;

4. persons working under an employment contract for employers - individuals who are not individual entrepreneurs, and employees of religious organizations;

5. persons who believe that they have been discriminated against.

The employee has the right to apply to the court within 3 months from

of the day when he found out or should have found out about the violation of his right, and in case of dismissal disputes - within 1 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 may apply to the court with a claim for compensation by the employee for the damage caused to the employer within 1 year from the date of discovery of the damage.

When applying to the court with a claim on claims arising from labor relations, including non-fulfillment or improper fulfillment of the terms of an employment contract that are of a civil law nature, employees are exempted from paying duties and court costs (Article 393 of the Labor Code).

Resolution of collective labor disputes. Collective labor disputes are unresolved disagreements between employees (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 refusal of the employer to take into account the opinion of an elected representative body of employees when adopting local regulations (Article 398 of the Labor Code).

Dispute consideration begins with conciliation procedures (Articles 401-406 of the Labor Code).

Stage 1. Consideration of the dispute in a conciliation commission, formulated from representatives of the parties on an equal basis, which must resolve the dispute within 5 working days from the moment of its formation. The decision in the commission is taken by agreement of the parties and is binding, not subject to appeal. If the parties come to an agreement, their decision is binding and the dispute is considered resolved.

If an agreement is not reached, the parties begin negotiations on inviting a mediator and (or) establishing a labor arbitration.

Stage 2. Consideration of the dispute by representatives of the parties with the participation of a mediator or transfer of the dispute to labor arbitration.

A three-stage conciliation procedure and a two-stage one are possible.

With a three-stage conciliation procedure, the second stage is the consideration of the dispute with the participation of a mediator. If within 3 working days the parties have not reached an agreement on the candidacy of the mediator, then they proceed to the creation of a labor arbitration.

The dispute involving the mediator must be considered within 7 working days from the moment of his invitation and end with the adoption of an agreed decision in writing or drawing up a protocol of disagreements if such a decision could not be made.

In the latter case, the dispute is referred to labor arbitration. Establishment of labor arbitration, its composition, regulations, powers are formalized by the decision of the employer, representatives of employees and the state body for the settlement of collective labor disputes. The dispute must be considered within 5 working days from the date of creation of the labor arbitration. Labor arbitration decides on the merits of a labor dispute. This concludes the conciliation proceedings.

If conciliation procedures have not led to the resolution of a collective labor dispute, workers have the right to start organizing a strike (Articles 406, 409 of the Labor Code).

Strike as a way to resolve collective labor disputes. The right to strike as a way to resolve collective labor disputes is a constitutional right of Russian citizens, enshrined in Art. 37 of the Constitution of the Russian Federation.

The procedure for organizing and conducting a strike is regulated by Art. 410-414 TC. Participation in a strike is voluntary. No one may be forced to participate or refuse to participate in a strike.

Leading the strike representative body workers.

The employer must be warned in writing about the strike no later than 10 calendar days in advance.

He is obliged to warn the state body for the settlement of collective labor disputes about the strike.

For the duration of the strike, the employee retains the place of work and position, but the employer has the right not to pay wages.

The employer, executive authorities, compulsory medical insurance are obliged to take all measures to ensure public order, the safety of the property of the organization and employees.

In Art. 413 of the Labor Code provides for cases of prohibition of a strike in order to ensure security:

1. strikes are unacceptable when martial law or a state of emergency is introduced in the country;

2. in bodies and organizations of the Armed Forces of the Russian Federation;

3. in organizations in charge of ensuring the defense and security of the country;

4. in law enforcement agencies;

5. in organizations serving especially dangerous species productions;

6. at ambulance and emergency medical aid stations;

7. in organizations related to the provision of vital functions of the population.

Strikes prohibited by law are recognized as illegal.

The decision to recognize a strike as illegal is made by the supreme courts of the republics, as well as by the courts of other subjects, upon the application of the employer or the prosecutor.

A court decision that has entered into force shall be subject to immediate execution. Employees must end their strike and return to work no later than next day after delivery of a copy of the court decision to the body leading the strike.

Employees who continue an illegal strike are subject to disciplinary liability as a violation of labor discipline.

1 Legal capacity legal entities is also recognized as special, since it is determined by the goals and objectives of their activities, specified in the relevant charters and regulations.

The conditions for the emergence of disputes are those conditions, circumstances that directly or indirectly affect labor

relationships, causing unresolved disagreements between workers and management.

The causes of labor disputes are those legal facts that directly caused disagreements between the employee (employees) and the administration. Even the reasons common for labor disputes are specific in a specific legal relationship to resolve a labor dispute. These are violations of certain rights of an employee or his obligations to the enterprise (for example, when he is financially liable for the damage caused).

The conditions for the emergence of labor disputes become specific causes in a specific labor dispute. For example, ignorance or neglect of labor legislation by a specific head of an organization leads to a violation of the rights of a particular employee and the emergence of an individual labor dispute between him and the administration.

Often labor disputes arise as a result of a combination of several conditions (reasons). Some of them are economic, others are social, others are legal.

The conditions of an economic nature include, in particular, the financial difficulties of organizations that prevent the full and timely payment of wages, the provision of guarantees and benefits due to employees (for example, milk at work in unhealthy conditions, therapeutic and preventive nutrition), the absence or insufficiency of funds for labor protection.

The conditions for the emergence of labor disputes of an economic nature give rise to serious social consequences, which, in turn or in combination with economic consequences, give rise to labor disputes. Thus, a lack of funds leads to a reduction in the number of employees or the liquidation of an organization, to ever-growing unemployment. The dismissed workers, defending their right to work (workplace), often apply for the resolution of a labor dispute and the protection of their rights to the judiciary.

The conditions of a social nature include, for example, a growing gap in the income level of low- and high-paid workers.

The conditions of a legal nature include, in particular, the complexity, inconsistency, as well as the lack of accessibility of labor legislation for the administration and especially for employees, as a result - poor knowledge by employees of their labor rights and obligations of employers (administration), ways to protect their rights; unwillingness to comply with labor legislation by many heads of organizations, officials of the administration; poor readiness of trade union leaders, trade union activists to protect workers on the basis of labor legislation. The transition to a market economy has exacerbated the situation in many organizations, exacerbated the causes of labor disputes.

Due to lack of funds, many organizations are forced to temporarily completely or partially stop work. A significant number of enterprises have been liquidated. There were bankrupt companies. Many workers were laid off. Unemployment has become ubiquitous.

Differences in working conditions and in the amount of wages increased sharply. On the one hand, the minimum wage was significantly lower than the subsistence level. On the other hand, wages are no longer limited by the maximum size.

This was facilitated by significant changes in labor legislation that took place during last years: narrowing the scope of centralized obligatory regulation of labor relations and expanding decentralized and, above all, local regulation, as well as establishing working conditions through individual labor agreements (contracts); assignment by the Constitution of the Russian Federation (subparagraph “k” of paragraph 1 of article 72) of labor legislation to the joint jurisdiction of the Russian Federation and its subjects and, as a result, the possibility of regulating labor relations with the help of laws, other regulatory legal acts adopted by authorized bodies like the Russian Federation, as well as its subjects; forced (in order to avoid gaps in the legal regulation of labor relations) combination of Russian legislation with the legislation of the former USSR that retains legal significance (if it does not contradict Russian legislation and there is no legislation of the Russian Federation on the issues resolved by it); inclusion in the system of labor legislation of the Russian Federation of international legal norms and acts (p.

4 tbsp. 15 of the Constitution of the Russian Federation, art. 4 Labor Code).

Trade unions, by their very nature, charters, legislation designed to represent the interests of workers and protect their rights, do not always actively and effectively contribute to resolving disagreements between workers and administration, do not use all the means at their disposal for this purpose.

The weakening of supervision and control over compliance with labor laws also played a negative role. Creation of new government agencies on supervision and control over compliance with labor legislation (Rostrudinspektsii under the Ministry of Labor of the Russian Federation) is accompanied by the withdrawal from the competence of the labor inspectorate, which is under the jurisdiction of trade unions, of state power (issuing binding orders, imposing fines). As a result, the number of violations of workers' labor rights has sharply increased, and the legal liability of administrative officials for such violations has decreased.

To eliminate the causes of labor disputes, means and methods should be used that affect each of them and in a complex manner.

However, even if all the necessary measures are taken, it is unrealistic to completely eliminate the causes of labor disputes. Labor disputes will not disappear. Their total number may decrease. There may not be disputes on some specific issues, the causes of which are completely eliminated. Disputes may arise on other issues that did not exist before. Therefore, labor disputes will exist for the foreseeable future.

An effective tool for protecting the labor rights of workers is called upon to be the procedure for resolving labor disputes established by law.

For many years, judicial statistics on the consideration of labor disputes shows that most often the claims of employees are satisfied. However, this does not mean that “the worker is always right”. Often the reason for the "defeat" of the employer in the lawsuit lies in a lack of understanding of the meaning of the requirements of the law.

In a previous publication on labor disputes (see Human Resources Bulletin, No. 4, pp. 67–76), we examined the categories of labor cases that fall under the jurisdiction of the courts and issues related to the issuance and enforcement of a judgment. In this article, I would like to talk about one of the options for resolving a labor dispute - the conclusion by the parties of a settlement agreement, and also dwell in more detail on the legal features of the consideration by the courts of certain, the most common categories of labor cases.

Conflicts in the field of labor relations can arise between the parties for a variety of reasons (for example, unfair fulfillment of the terms of an employment contract, failure to fulfill one's duties, non-observance of legitimate interests, direct violation of rights guaranteed by law). A labor conflict does not always transform into a labor dispute, and the dispute rarely becomes the subject of litigation. As you know, this happens only in cases where the “offended” employee (namely, he is most often given the right to initiate a labor dispute by law, although any of the parties can be the culprit of the conflict) initiates an appeal to the labor dispute resolution body, including to court. But often the employee does not want or is afraid to apply to the labor dispute resolution bodies, and, consequently, the conflict remains unresolved. This, in turn, leads to negative consequences for both sides. As a result of an unresolved labor conflict, an employee may experience a feeling of dissatisfaction, stress, a decrease in labor motivation and labor productivity, and an employer may develop a feeling of permissiveness, which is fertile ground for further violations. Obviously, such a situation can turn into stress for the employer, for example, if he is held legally liable. Taking into account the increasing trend state control and oversight of compliance with labor laws, this is becoming quite real.

Since labor conflicts are not taken into account, it is difficult to draw an objective conclusion about whether they have become more. Labor disputes, as is known, are subject to registration both at the pre-trial level of their consideration (in the commissions on labor disputes of organizations (CTS)), and in courts. Judicial statistics allow us to talk about an annual increase in the number of labor disputes, which, in turn, may indicate an increase in the legal activity of employees. I would like to draw the attention of employers to this fact, who make illegal decisions based on submissive, non-conflict workers, who will not go to court even in the event of outright violations of their rights. One should not place high hopes on the widespread negative stereotype public opinion about the personality of the “complainant”. If earlier it was believed that only “slanderers”, “litigators”, etc., go to court, now significant changes are taking place in the public consciousness, and employees resorting to judicial protection of violated rights are increasingly respected and supported by colleagues.

Interestingly, in the overwhelming majority of cases, the basis for the emergence of labor disputes is a violation of the rights of the employee directly established and guaranteed by law (for example, non-payment of wages in the manner prescribed by law - at least every half a month). Such disputes in many Western countries accepted to be classified as conflicts of law.

If, according to the law, the parties must resolve the issue by mutual agreement (for example, the issue of dividing the employee's vacation into parts) and cannot come to that, there is no formal basis for the dispute. For example, an employee who applied for a vacation not in full, but in parts and received a refusal from the employer, has no formal reason to complain, since his right to leave is not violated, he will receive it in accordance with the vacation schedule in the prescribed manner. You can try to appeal employer's lack of understanding those reasons that force the employee to apply for the division of leave. True, the Russian practice of considering individual labor disputes does not yet know such examples. In the Western classification, such conflicts are called conflicts of interest. Considering the fact that modern Russian labor legislation is focused on the contractual relations of the parties (i.e. many issues are determined not by law, but by the parties themselves by voluntary consent), it is likely that similar categories of disputes will also arise in Russia in the near future, which will be considered by the CCC and the courts along with conflicts of law.

Analyzing the grounds for the emergence of labor disputes considered by the courts, we can conclude that the most common are disputes related to the dismissal of employees for various reasons, including disputes about changing the wording of the reasons and dates of dismissal; unjustified and illegal transfers of employees; application of disciplinary sanctions, including dismissal for violation of labor discipline; delays in the payment of wages, as well as related disputes on compensation for moral damage and payment of compensation for the time of forced absenteeism or performance of lower-paid work; disputes on the claims of employers for the recovery from employees of the material (property) damage caused by them. Of course, the courts consider many other categories of cases under their jurisdiction. In a previous publication, we already said that labor disputes on all issues of application of the law, other regulatory acts on labor, the collective agreement and other labor agreements for persons working under an employment contract in an organization of any form of ownership are within the jurisdiction of the courts. Moreover, the court protects the rights and freedoms of citizens, regardless of what subject they are violated. If the subjective labor right is violated by an individual act of applying the norms, then this act can be appealed to the court in compliance with the procedure specified in Art. 391 of the Labor Code of the Russian Federation.

The court has jurisdiction over disputes over the justification for terminating an employment contract with executives appointed to positions by decrees of the Government of the Russian Federation; disputes of civil servants (with the features provided federal law dated July 31, 1995 No. 119-FZ “On the basics of public service Russian Federation»); disputes about the reinstatement of persons dismissed due to the end of the term of elective work and not elected for a new term, if the procedure for holding elections is violated; on illegal dismissal, if an order to this effect is issued by a manager who does not have the right to hire and terminate an employment contract; on the employment of persons released from elective office due to the end of their term of office; on changing the term of the employment contract, if it was concluded in violation of Art. 58, 59 of the Labor Code of the Russian Federation.

The Labor Code of the Russian Federation, in contrast to the Labor Code of the Russian Federation, also includes disputes about transfers to another job to the direct competence of the court (magistrate) of the Labor Code of the Russian Federation.

Disputes arising from

layoffs and transfers of employees

Reinstatement of an employee previous work

Article 394 of the Labor Code of the Russian Federation provides for the legal consequences of a dismissal without legal basis or in violation of the law or illegal transfer to another job. And these consequences are quite serious - the worker reinstated at previous job.

Reinstatement at work is the return of the employee to the former legal status that existed before the wrongful dismissal or wrongful transfer to another job. Reinstated worker:

a) the previous job is provided, i.e. work in the same specialty or in a position with the same working conditions that he performed before the illegal dismissal or transfer;

B) all the time of forced absenteeism is paid or the difference in earnings is paid for the time of performing lower-paid work;

c) monetary compensation for non-pecuniary damage is paid at his request;

d) uninterrupted work experience is restored, and the time of paid forced absenteeism is included in all types of his work experience, including the length of service for the next vacation;

e) from the date of restoration, the employee is entitled to sick leave benefits. It is also restored in other rights to certain benefits and guarantees.

Article 391 of the Labor Code of the Russian Federation establishes the procedure for resolving labor disputes about reinstatement at work with the same working conditions, regardless of the grounds for termination of the employment contract, the initiative of the party to the contract, the procedure for hiring and dismissal, as well as from the organization where the labor function was performed. The decision to reinstate an employee shall specify:

  • name of company;
  • position (specialty) of the employee;
  • all essential working conditions under which the former labor function was previously performed.

The dismissal is considered without legal basis if the termination of the employment contract occurred without the grounds provided for by the relevant federal laws or the Labor Code of the Russian Federation, in particular: Art. 77 of the Labor Code of the Russian Federation "General grounds for termination of an employment contract", art. 81 of the Labor Code of the Russian Federation "Termination of an employment contract at the initiative of the employer", Art. 83 of the Labor Code of the Russian Federation "Termination of an employment contract due to circumstances beyond the control of the parties". This primarily applies to those cases where an employee is dismissed on grounds not specified in the law, but included in individual labor contracts. For example: "Fired for violation of corporate ethics."

Therefore, it is very important to know and be able to correctly qualify the grounds for terminating an employment contract in accordance with the norms of the Labor Code of the Russian Federation or other federal laws, and also to understand that if it is impossible to select the appropriate ground from those provided by law, then dismissal cannot be made.

Disputes about dismissal at the initiative of the employee (voluntarily)

The employee's initiative as a ground for terminating an employment contract is the most common reason for terminating an employment relationship. At the same time, everyone is well aware that such a basis is often used in cases where the employer intends to get rid of an unwanted employee. In this case, the emergence of "own desire" is preceded by pressure, blackmail and even threats against him by the employer. Paradoxical as it may sound, employees will appeal against the dismissal made at their “own will” in court (clause 3, article 77 of the Labor Code of the Russian Federation).

Considering disputes related to dismissal at the initiative of an employee, the courts pay attention to the following circumstances:

a) termination of the employment contract at the initiative of the employee is permissible only if he free will. If the plaintiff claims that the administration forced him to submit a resignation letter of his own free will, the court carefully checks these arguments;

b) the employment contract can be terminated before the expiration of the notice of dismissal, but only with the consent of the parties (it is checked whether the employee’s consent is voluntary);

c) an employee who has submitted an application for dismissal of his own free will has the right to withdraw his application before the expiration of the notice period. The only exceptions are cases when another employee is invited to his place, who, in accordance with the law, cannot be refused to conclude an employment contract. If, after the expiration of the warning period, the employment contract has not been terminated and the employee does not insist on dismissal, the contract is considered continued.

Disputes about dismissal at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation)

One of the essential guarantees of the right to work is the restrictive list of grounds established by law for the dismissal of an employee at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation). Some grounds apply to all employees, regardless of the work functions they perform, and therefore are common, others - only to special categories of employees (for example, financially responsible persons, managers, their deputies and chief accountants, persons performing educational functions, etc.) and are additional (clauses 4, 7–10 of article 81 of the Labor Code of the Russian Federation). Some grounds are related to production reasons and do not imply the presence of the employee’s fault (paragraphs 1, 2 of article 81 of the Labor Code of the Russian Federation - liquidation of an organization and reduction in the number or staff of employees), but in some cases depend on his personal qualities(subparagraphs “a” and “b”, paragraph 3 of article 81 of the Labor Code of the Russian Federation - the employee’s inconsistency with the position held or the work performed). Others - and most of them - are associated with the guilty actions (inaction) of the employee, and dismissal on some of these grounds is a measure disciplinary action, and therefore requires compliance with a special procedure (clause 5; subparagraphs "a", "b", "c", "d", "e" clause 6; clause 10, article 81 of the Labor Code of the Russian Federation).

The law provides certain rules for the application of each of these grounds, and the courts carefully check their observance.

It is important to know!

In cases on the reinstatement of persons dismissed at the initiative of the employer, the burden of proving the legality of the dismissal and compliance with its procedure lies with the defendant (employer).

Considering the claims of employees dismissed in connection with liquidation of the organization or termination of activity by the employer - individual(Clause 1, Article 81 of the Labor Code of the Russian Federation), the courts first of all find out whether the employer has really ceased its activity.

Since labor legislation does not provide for the concept of liquidation of organizations, it is necessary to rely on the provisions of the Civil Code of the Russian Federation (CC RF), which determine the procedure for the creation, transformation and liquidation of legal entities. In Art. 61 of the Civil Code of the Russian Federation provides that the liquidation of a legal entity entails its termination without the transfer of rights and obligations by way of succession to other persons. The grounds for the liquidation of a legal entity may be, for example, a decision by its founders or a competent body, declaring it bankrupt, etc. Liquidation is considered completed after an appropriate entry is made in the Unified State Register of Legal Entities (Article 63 of the Civil Code of the Russian Federation), and this moment is the last term of dismissal of employees.

Termination of the employment contract under paragraph 1 of Art. 81 of the Labor Code of the Russian Federation is also carried out in the event of termination of the activities of the employer - an individual, which may occur, for example, as a result of declaring him bankrupt by a court decision, deprivation of a license for certain types activities or decisions made by him.

Upon termination of employment contracts under paragraph 1 of Art. 81 of the Labor Code of the Russian Federation, both the very fact of liquidation and compliance with the procedures and guarantees established by labor legislation are important, which is also clarified by the courts.

However, the largest number of court decisions on the reinstatement of employees dismissed at the initiative of the employer is taken when considering labor disputes arising in connection with a reduction in the number or staff of employees of the organization (clause 2 of article 81 of the Labor Code of the Russian Federation). When considering such disputes, the courts check whether there really was a reduction in the number or staff of the organization's employees (i.e., the validity of the dismissal). Often, the employer unfairly uses the specified basis in order to get rid of a certain employee, forgetting that it is not specific individuals that are subject to reduction, but jobs for production reasons. Employees occupying jobs that have become redundant are released in compliance with the guarantees established by law, the main of which is the provision of other work available in the organization. Therefore, the reduction of jobs and the release in connection with this work force does not mean termination of the employment relationship. It is possible, for example, to change the labor function of an employee (with his consent), send him for retraining and retraining, etc.

In practice, there are cases when the workplace (position) is reduced, and an undesirable employee is fired as a result. But since this labor function is necessary in the production process, after a while such a position is again returned to staffing and hire a new employee. Most often, the manager is concerned about the question: how quickly can a reduced position be returned to the staffing table? The law does not establish such terms, and the right to determine the required number and staff of the employee belongs to the employer. It is only important to prove that at the time of dismissal this workplace (position) really became redundant, and therefore it was reduced. Of course, if after a short time the position is returned to the staff list and another employee takes it, it will not be easy to bring convincing evidence to the court of the need for the reduction. All these circumstances (of course, without interference in the production and economic activities of the employer) are carefully examined by the courts, which allows us to conclude that such dismissals are unjustified and the so-called fictitious reduction is carried out. Therefore, the employee must be reinstated in the previous job (in the previous position).

As already mentioned, along with the validity of the dismissal, the courts verify compliance with its legal procedure and order.

When considering disputes on dismissal to reduce the number or staff, the courts perform the following actions:

a) demand from the employer evidence of the employee's refusal to transfer to another job(moreover, the number of such offers is not established and is not limited) or evidence that the employer is unable to transfer the employee with his consent to another job in the same organization(Article 180 of the Labor Code of the Russian Federation);

b) find out if the released employee has preferential right to stay at work(Article 179 of the Labor Code of the Russian Federation);
c) check whether he was warned about the upcoming dismissal at least 2 months in advance. If the term for warning the employee about dismissal is not observed, the court has the right to change the date of dismissal (if the employee is not reinstated at work) so that the employment contract is terminated after the expiration of the notice period established by law. Of course, the period for which, in connection with this, the employment contract has been extended, is payable according to average earnings (by analogy with payment for forced absenteeism);

d) check whether the elected trade union body participated in the consideration of this issue- upon release of an employee who is a member of a trade union (Art. 82, 180 of the Labor Code of the Russian Federation).

Attention should be paid to significant changes in the procedure for agreeing with the elected trade union bodies on the dismissal of workers who are members of the trade union. In accordance with Part 2 of Art. 82 of the Labor Code of the Russian Federation dismissal of such employees under paragraph 2; sub. "b" p. 3; paragraph 5 of Art. 81 of the Labor Code of the Russian Federation is made taking into account motivated opinion(but not consent as provided for in Art. 35 of the Labor Code of the Russian Federation) of the elected trade union body of this organization. This means that when a trade union member is dismissed due to a reduction in the number or staff of the organization’s employees, the employer obliged to request on this occasion, a reasoned opinion of the elected trade union body, which must be expressed in writing and submitted to the employer within 7 days from the date of receipt of the draft order. Since the legal text mentions elected trade union body, but in practice most often such is a collegial body - the trade union committee, it seems that its opinion or decision should be developed collectively, and not solely by its leader (for example, the chairman). Therefore, a reasoned opinion can be formalized, in particular, by the minutes of the meeting of the trade union committee, which considered the employer's request for dismissal. The current labor legislation does not establish clear definitions and requirements on this issue, in contrast to the previous strict regulations for the adoption by the trade union body of a decision on consent (refusal of consent) to the dismissal of trade union members. Unfortunately, this is not the only omission of the legislation.

Often, mistakes made by employers when dismissing employees are due to precisely such shortcomings, i.e. the lack of clear definitions of legal concepts and clearly formulated procedural requirements in the norms of the law. In most cases, they are replenished higher authorities judicial power. The Supreme Court of the Russian Federation generalizes the practice of applying the current legislation when considering certain categories of civil cases (including labor cases) by the courts, reveals problems and shortcomings. Based on the results of the analysis of the application of legislation, the Plenum of the Supreme Court of the Russian Federation adopts relevant decisions that are binding on the judiciary when they consider similar civil cases. In particular, we find answers to certain questions arising from labor relations in the repeatedly mentioned resolution of the Plenum of the Supreme Court of the RSFSR dated December 22, 1992 No. 16 “On Certain Issues of the Application of Legislation by the Courts of the Russian Federation in the Resolution of Labor Disputes”, which is applied by courts with taking into account the norms of the new Labor Code of the Russian Federation.

It is interesting to note that the largest number of court decisions that satisfied the claims of workers for reinstatement were court decisions in cases of reinstatement of persons dismissed at the initiative of the employer, which are based on the identification by the judicial authorities violations of the dismissal procedure. And the reason for this state of affairs is not limited to gaps in the legislation. Employers often make mistakes even when applying quite clearly and specifically formulated legal norms, apparently due to an insufficient level of legal knowledge. Common and conscious violations established order dismissals, which may indicate a low level of legal culture.

It is important to know!

The courts consider the following to be a violation of the established procedure for dismissal:

a) when the dismissal was made immediately for several different reasons;

b) when the dismissal was made contrary to the norms of the Labor Code, which prohibit the dismissal of employees for some reason, if their transfer to another job is possible, as well as dismissal at the initiative of the employer during the period of vacation or temporary disability (Article 81 of the Labor Code of the Russian Federation);

c) when the dismissal to reduce the number or staff of employees was made without taking into account the norms establishing the pre-emptive right to remain at work (Article 179 of the Labor Code of the Russian Federation);

d) when the dismissal was made without the participation of an elected representative trade union body of workers, if such is recognized as mandatory (Article 82 of the Labor Code of the Russian Federation);

e) if the employee is dismissed without complying with the requirements for a warning upon dismissal due to the expiration of the employment contract (Article 79 of the Labor Code of the Russian Federation);

f) dismissal of a pregnant woman at the initiative of the employer, with the exception of cases of liquidation of the organization, as well as in connection with the expiration of the fixed-term employment contract before she has the right to maternity leave (Article 261 of the Labor Code of the Russian Federation);

f) dismissal of a woman with a child under the age of 3, a single mother with a child under the age of 14 (a disabled child under 18), other persons raising children without a mother, on grounds not related to guilty behavior an employee, with the exception of the complete liquidation of the organization or the termination of activities by the employer - an individual, as well as in connection with the inconsistency of the employee with the position held or work performed for health reasons (Article 261 of the Labor Code of the Russian Federation);

g) dismissal of an employee under the age of 18 at the initiative of the employer (except in cases of liquidation of the organization), carried out without the consent of the state labor inspectorate and the commission for minors and the protection of their rights (Article 269 of the Labor Code of the Russian Federation). This applies both to cases when the dismissal is made contrary to the opinion of these bodies, and to cases when the employer did not apply to these bodies at all;

h) dismissal of certain categories of workers contrary to the prohibition and restriction (i.e. without observing the guarantees established for them), in particular, the dismissal of a trade union member under paragraph 2; sub. "b" p. 3; paragraph 5 of Art. 81 of the Labor Code without taking into account the reasoned opinion of the elected trade union body (Article 373 of the Labor Code of the Russian Federation), as well as the dismissal on the indicated grounds of the heads of elected trade union collegial bodies and their deputies who are not released from their main work, without the prior consent of the relevant higher elected trade union body (Article 373 of the Labor Code of the Russian Federation). 374 of the Labor Code of the Russian Federation) and former heads of elected trade union bodies and their deputies within 2 years after the end of their term of office (Article 376 of the Labor Code of the Russian Federation);

f) dismissal, at the initiative of the employer, of representatives of employees during the period of collective bargaining without the prior consent of the body that authorized them to represent them, with the exception of cases of dismissal for disciplinary violations (Article 39 of the Labor Code of the Russian Federation), as well as dismissal of representatives of employees participating in the resolution of a collective labor dispute , without the prior consent of the body that authorized them to represent them (Article 405).

As mentioned above, an illegally dismissed employee must be reinstated in his previous job. However, Part 3 of Art. 394 of the Labor Code of the Russian Federation provides that at the request of an employee who does not want to be reinstated in his previous job, the court has the right to limit itself to making a decision on payment for forced absenteeism and change the wording of the basis for dismissal - “termination of the employment contract at the initiative of the employee” (clause 3 of article 77 of the Labor Code of the Russian Federation) . This usually happens in cases where the employee has already found a job and does not intend to continue the employment relationship with the previous employer.

An employee may also initially file a lawsuit to change the wording of the reason for dismissal, rather than reinstatement. If the wording is recognized as incorrect or not in accordance with the current legislation, a decision is made to change it in strict accordance with the law. And if the incorrect wording of the dismissal complained by the employee in the work book prevented him from going to work, then simultaneously with the decision to change the wording, a decision is made to pay for the time of forced absenteeism.

Depending on the circumstances of the case that have come to light, the court may go beyond the claims made by the plaintiff if it considers it necessary to protect the rights and legally protected interests of the plaintiff, as well as in other cases provided for by law (Article 195 of the Code of Civil Procedure of the Russian Federation). For example, when considering a claim for reinstatement at work, the court explains to the employee that he can make an additional claim for payment for forced absenteeism.

Forced absenteeism is the time during which the employee, through the fault of the employer, was deprived of the opportunity to work and receive wages.

Issues related to forced absenteeism (establishment of the fact, duration, amount of compensation, etc.) are almost always considered by the courts in cases of reinstatement at work, as well as other cases related to dismissal. Compensation for involuntary absenteeism is currently not limited by any time frame and is paid for all actual time of forced absenteeism.

Labor disputes related to the transfer of an employee to another job

The transfer of an employee to another job is a change in his labor function or essential terms of the employment contract. Such a transfer, as a rule, is allowed only with the written consent of the employee. It is impossible to require an employee to perform work that is not provided for by the employment contract. The written form, as a prerequisite, only emphasizes the importance of the voluntariness of the expression of will. Certainly from general rule there are exceptions both in the legal norms themselves and in their application in practice. Some deviations from compliance with the established translation rules are the basis for disputes.

It is important to know!

The transfer is considered illegal if it is made without sufficient grounds or in violation of the procedure established by law.

The grounds are established only for certain types of transfers. Thus, the basis for a temporary transfer in the event of a production need is the presence of circumstances provided for by law (for example, to prevent a catastrophe, industrial accident or natural disaster; to prevent accidents, downtime, and also to replace an absent employee). In the absence of the grounds provided for in Art. 74 of the Labor Code of the Russian Federation, the translation is recognized as illegal.

Illegal are transfers made in violation of the procedure prescribed by law, in particular:

a) transfer to another permanent job, made without the consent of the employee (Article 72 of the Labor Code of the Russian Federation);

b) transfer to work that is contraindicated for the employee for health reasons (Article 74 of the Labor Code of the Russian Federation);

c) the transfer, at the initiative of the employer, of representatives of employees during the period of collective bargaining without the prior consent of the body that authorized them to represent them (Article 39 of the Labor Code of the Russian Federation);

d) transfer at the initiative of the employer of representatives of employees, their associations during the period of resolution of collective labor disputes (Article 405 of the Labor Code of the Russian Federation).

Consideration by the courts of the employee's claims for compensation for moral damage (harm)

When considering labor disputes in the courts, workers' compensation claims are becoming more common. moral damage. In this regard, it is important for both parties of labor relations to know what this concept includes from a legal point of view.

Moral damage caused in the sphere of labor relations, long time was considered in accordance with the norms of civil law (Articles 151, 1101 of the Civil Code of the Russian Federation). According to Art. 151 of the Civil Code of the Russian Federation, moral harm implies the presence of physical and moral suffering caused by actions that infringe on personal non-property rights (the right to a name, authorship, etc.) or on intangible benefits belonging to a citizen (life, health, personal dignity, business reputation, inviolability privacy etc.) .

Judicial practice on compensation for moral damage was summarized in the resolution of the Plenum of the Supreme Court of the Russian Federation “Some questions of the application of legislation on compensation for moral damage” dated December 20, 1994 No. 10 (as amended and supplemented). And although the Supreme Court of the Russian Federation did not give general definition physical and moral suffering, in paragraph 3 of the said decision, an attempt was made to reveal the content of one of the types of moral harm - moral suffering, which should be understood as “moral or physical suffering caused by actions (inaction) that encroach on intangible benefits belonging to a citizen from birth or by virtue of law (life, health, personal dignity, business reputation, privacy, personal and family secrets, etc.) .p.) or violating his personal non-property rights (the right to use his name, authorship), or violating the property rights of a citizen.

Only in 1997 did the concept of moral harm enter into labor law. In accordance with the Federal Law of March 17, 1997 No. 59-FZ “On Amendments and Additions to Article 213 of the Labor Code of the Russian Federation”, an employee was given the opportunity to apply to the court for monetary compensation for moral damage in the event of illegal dismissal or transfer. Norms on compensation for moral harm caused to an employee are also contained in the new Labor Code of the Russian Federation. In particular, Part 7 of Art. 394 of the Labor Code of the Russian Federation, as well as part 5 of Art. 213 of the Labor Code of the Russian Federation, provides for the possibility of recovering moral damages for illegal dismissal and transfer to another job. But especially significant is the emergence of a new norm in the Labor Code of the Russian Federation, which provides for the right to compensation for moral damage. without reference to specific types of employer's offenses (Article 237 of the Labor Code of the Russian Federation “Compensation for moral damage caused to an employee”) . This means that the employee has the right to apply for compensation for moral damage in all cases of violation of his labor rights, accompanied by moral or physical suffering.

The law provides for compensation for non-pecuniary damage in monetary form, the amount of which may be determined by agreement of the parties to the employment contract. In the event that such an agreement between them is not reached and a labor dispute arises on this occasion, the employee has the right to file a lawsuit in court (with a justice of the peace). The court determines the existence of the fact of non-pecuniary damage, i.e. physical and moral suffering of an employee in violation of his right to work. The decision shall indicate the grounds for the recovery and the amount of compensation, which is also determined by the court (magistrate).

It is important to know!

To compensate for non-pecuniary damage, it is necessary to have the following conditions at the same time, defined by Art. 151 of the Civil Code of the Russian Federation:

a) the fact of moral damage (harm). Determining the presence of moral harm in the sphere of labor relations, first of all, they mean moral suffering and experiences in mental sphere of a person, caused to him by infringements on his labor rights (for example, in cases of illegal dismissal or transfer to another job). physical harm, as is known, is expressed in causing physical pain associated with an injury or past disease due to moral suffering;

b) unlawful actions (inaction) of the tortfeasor, i.e. the actions of the employer who violated the labor rights of the employee are recognized as illegal from the point of view of labor legislation;

in) causal relationship between illegal action (inaction) and non-pecuniary damage. This means that it is precisely the work done by the employer misconduct(omission) is main reason moral damage. For example, if, as a result of the illegal application of a disciplinary sanction, an employee experiences strong feelings (moral suffering) and, in connection with this, suffers a hypertensive crisis (physical suffering), then there is cumulative moral harm, which is a consequence of the unlawful actions of the employer (illegal application of the sanction), i.e. e. is with these actions in a causal relationship;

G) fault of the perpetrator. The principle of guilt is a prerequisite for holding the employer accountable, which follows from the analysis of Part 2 of Art. 151 of the Civil Code of the Russian Federation, which states that “when determining the amount of compensation for moral damage, the court takes into account the degree of guilt of the violator ...”. In addition, as mentioned above, the moral damage subject to compensation must not be caused by any actions of the employer, but only by those that are recognized by law as unlawful, which also implies guilt.

When determining the amount of compensation for non-pecuniary damage, the court also takes into account the degree of physical and moral suffering associated with the individual characteristics of the person who was harmed (part 2 of article 151 of the Civil Code of the Russian Federation), their nature and the actual circumstances of their infliction (part 2 of article 1101 of the Civil Code of the Russian Federation ). When determining the amount of compensation for non-pecuniary damage, the requirements of reasonableness and fairness must be taken into account.

Often, when causing moral harm, property damage is also caused, which is compensated regardless of compensation for moral damage (clause 3, article 1099 of the Civil Code of the Russian Federation).

Completion of a labor dispute by amicable agreement of the parties

Disputes considered in civil proceedings, including labor disputes, can be completed by an amicable agreement (Article 39 of the Civil Code of the Russian Federation).

settlement agreement- this is an agreement of the parties to terminate the litigation on the basis of mutual concessions.

A settlement agreement can be concluded not only during the trial, but also at other stages of the process - when considering the case by the cassation instance, at the stage of execution of the judgment. The possibility of resolving the dispute by amicable agreement is clarified by the judge in the process of preparing the case for trial. Control over the legality of the settlement agreement belongs to the court: it does not approve it if it is contrary to the law or violates someone's rights and legally protected interests. The terms of the settlement agreement, stated by the party orally in the court session, are recorded in the minutes and signed by both parties, and those presented in writing- get involved. When approving a settlement agreement, the court issues a ruling on termination of proceedings, which specifies its terms.

It is important to know!

The approval of the settlement agreement by the court entails important legal consequences:

a) the impossibility of a second consideration by the court of the same claim;

b) enforcement of a settlement agreement at the request of one of the parties.

A labor dispute considered by a court may also be terminated in connection with plaintiff's waiver of claims(Article 39 of the Civil Code of the Russian Federation).

The courts pay special attention to the verification of conditions settlement agreement labor matters, and waiver of claims so that they comply with the norms of labor legislation and do not violate anyone's rights and legally protected interests.

It is unacceptable to approve a settlement agreement in the event that its terms in any way violate the labor rights of an employee or, bypassing the law, are aimed at relieving the employer from liability for harm caused to the organization.

When deciding whether to accept waiver of claim on reinstatement or approval of a settlement agreement of the parties on such a claim, the court finds out whether these actions are contrary to the law and the interests of the parties.

The conditions under which the parties have reached an amicable agreement are reflected in the minutes of the court session and signed by the parties. These conditions must be clear, definite and not open to different interpretations, so as not to give rise to disputes in execution.

Conclusion

Analyzing the practice of consideration of labor disputes in courts, there is a double feeling. On the one hand, every employee has the right to apply to an independent judicial body for legal protection, and this protection is actually carried out. Judicial statistics confirm this: in the overwhelming majority of cases, workers' claims are satisfied. But, on the other hand, we perfectly understand and know that only a few apply to the courts and only in extreme cases, although labor violations are widespread. Why do most workers whose rights are ignored and violated choose to remain silent and do not seek legal protection?

Among the many reasons, the most obvious are economic, social, psychological, cultural and legal. From a legal point of view, it is entirely possible to improve the effectiveness of worker protection, and movement in this direction is already under way. First of all, this is the improvement of the legal norms themselves, filling in the gaps in the legislation. As you know, labor legislation is constantly being updated, significant amendments to the Labor Code of the Russian Federation are being prepared, etc. Much preparatory work is being carried out to develop the concept of independent legal proceedings in labor cases, in particular, a draft Federal Law “On phased creation specialized labor courts” and the concept of the Labor Procedure Code is being developed. Taking into account the special specifics of labor cases, as well as all those financial, personnel and other problems that courts of general jurisdiction constantly experience, it seems necessary to separate labor proceedings from the general mass of civil cases. If such specialized labor courts are really created and staffed by qualified judges - specialists in the field of labor law, there is every reason to expect a significant increase in the quality of consideration of labor disputes, and consequently - an increase in the confidence of citizens. And then, perhaps, the number of unresolved conflicts that the employee can resolve in a civilized way in a specialized court for labor disputes will decrease.

In this publication, we are not able to analyze in detail the judicial practice of considering each of these grounds separately. Let us dwell only on some of the general and most important, in our opinion, requirements imposed by the courts when considering labor disputes.

Reasons tr. disputes - Those are the negative factors. cause a different assessment by the disputing parties of the implementation is subjective.

Circumstances that cause disagreements in connection with the application, interpretation of labor legislation, the terms of a collective or employment contract are the causes of individual labor disputes.

The objective causes of labor disputes are contradictions arising from property relations and wage labor.

The subjective causes of labor disputes are shortcomings and errors in the activities of the subjects of labor relations.

Conditions for the emergence of labor disputes:

1. Economic conditions - change economic relations, resulting in financial instability of the organization;

2. Conditions of a legal nature - the presence of contradictions, gaps in labor legislation, the absence necessary knowledge in the field of law;

3. Conditions of a social nature - disproportion fixed size living wages.

The reasons for collective and individual labor disputes include unsatisfactory working conditions of the labor collective, low level of labor organization, wages and other negative factors.

The condition of a labor dispute is, as a rule, the previous conflict situation. The resolution of labor disputes requires a good knowledge of the essence of the matter due to which the conflict occurred, clarification of its parties and determination of their legal status, causes and conditions for the occurrence of circumstances of disagreements and their subject.

As a rule, the circumstances of labor disputes are:

1. Poorly organized "production" process;

2. Inefficient wage system;

3. Non-compliance with the standards and conditions of the technology for performing work and providing services, low-quality equipment, materials and tools, etc.

The causes and conditions of labor disputes are negative factors in the development of our society, reflecting the contradictions of development.

The causes of labor disputes are negative factors that cause a different assessment by the disputing parties of the exercise of a subjective or collective labor right and interest or the performance of a labor obligation, that is, they cause disagreements.

The conditions for the emergence of labor disputes are negative factors that contribute to more labor disputes on the same issues or significantly exacerbate the dispute that has arisen. The conditions for the emergence of a labor dispute without a reason cannot cause a labor dispute.

The causes of collective labor disputes are often the guilty actions of officials, reflecting their subjective negative traits. But the reason for the negative property may also be on the part of the labor collective as a disputing side, showing group egoism, not taking into account production interests. In individual labor disputes, the reason may also appear on the part of the disputing employee, when he disputes the employer's lawful actions or demands the establishment of new working conditions without proper reason.


The causes of labor disputes are the following two subjective negative factors of the disputing parties or their representatives (in a collective dispute), as a result of which the actual circumstances and actions are assessed differently and therefore disagreements arise.

Backlog individual consciousness from public, deviation from the norms of generally established morality, which is manifested in some employers in bureaucracy, unwillingness to listen to criticism addressed to them, ignoring the rights and legitimate interests of employees.

On the part of individual employees, this reason may manifest itself in absenteeism, appearing at work in a state of intoxication, marriage, etc., an inadequate response to legitimate comments from the administration of the employer. On the part of individual labor collectives in collective labor disputes, this reason may manifest itself in group selfishness, demands for wage increases that are unjustified by production indicators.

Ignorance or poor knowledge of labor legislation by both individual managers and many employees and their representatives, or deliberate ignorance of labor legislation, that is, a low legal culture of the parties. If the manager does not know labor legislation well, then he commits labor offenses, for example, incorrectly transfers or dismisses employees, etc. More often, unfortunately, there are situations when the head of the organization knows labor legislation, but deliberately violates it, because he is confident in his impunity.

The main cause of labor disputes are disagreements between the employee and the employer directly or through his administration.

According to the subject of disagreements, labor disputes can be divided into three groups in depending on the immediate causes of occurrence:

When employees claim to improve the conditions for the sale of their labor force - an increase in wages, allowances, benefits, vacation time, improvement living conditions in production, etc., but the employer does not agree with this;

Legal disputes that arise in case of violation of the rights established by legal acts, due to the fact that representatives of the employer's administration and the employees themselves often do not know labor legislation well, or deliberately neglect it.

In the current economic situation in Belarus and Russia, workers often do not risk openly defending their rights or coming into conflict with the employer. Filing a complaint against the "Employer" often threatens the employee with the loss of a job. Therefore, it is very often more profitable for the victim to refuse to exercise the rights granted by law than to enter into a dispute with the employer. Any appeal of an employee to the court (for example, for reinstatement, payment for forced absenteeism) is considered by the Employer as an undesirable and abnormal phenomenon, and most often such a “troublemaker” is pursued by him.

The thesis of the legislator on the equality of the parties to the employment contract was rightly criticized today. The relationship between the employee and the employer is actually built on the basis of the subordination of the former to the latter.

It is also noteworthy that in case of illegal dismissals, the victims do not always go to court with a claim for reinstatement. They know that it is a real reality to be fired again, but for some other more “legitimate” reason.

Therefore, it might be it is advisable to establish such an order so that instead of being reinstated at work, a dismissed employee, by a court decision, would be paid monetary compensation for her loss. Then, presumably, the illegally dismissed will more often go to court, which, in turn, will force the employer to respect their rights.

It should be noted that today in the Belarusian and other countries the economy has actually developed two legal regimes for regulating labor relations - a written labor law for budgetary organizations and former state enterprises and “ordinary” law for workers in the new commercial sector of the economy. If the Labor Code is still somehow observed in budgetary organizations, it simply does not work in the new commercial sector. At small and medium-sized businesses, civil law relations are common, as it is convenient for the employer (there is no need to comply with the minimum guarantees established in labor legislation).

The growth in the number of small and medium-sized enterprises exacerbates the problem of protecting the legal rights of employees. Trade union organizations are usually not created at these enterprises, labor dispute commissions are not elected, that is, there are no bodies that should represent and protect the interests of workers. Legal insecurity plus legal ignorance makes people accept any conditions of the "Employer (Owner)".

The number of bonded contracts is growing, which means that the number of socially unprotected workers is also growing. Therefore, the objective need for the existence of specialized labor legislation remains and even becomes even more relevant.

The terms of labor disputes include the following groups:

Production conditions, reflecting shortcomings in the organization of the production process and labor activity in this organization. For example, the irregularity of work - a combination of downtime and overtime, causes frequent disputes about their payment.

Conditions of a legal nature are the shortcomings of labor legislation, such as, for example, the not entirely clear and precise formulation of certain norms or the presence of gaps that allow them to be interpreted differently by the disputing parties.



© 2022 We know everything about foundations. Job. Materials. Choice. Documentation