St. 391 of the labor code with comments

The current legislation provides for cases where Claims for labor disputes dealt with in court. Note that such applications may be filed in the court of General jurisdiction. Grounds for the filing of claims is set to Article 391 TK the Russian Federation. Reviews to the article will introduce next.

Common reason of application to the court

As is known, the employer may apply to the employee who committed the violation of the laws or regulations of other statutory (local) acts, disciplinary action. One of them is The dismissal.

TC Contains several articles, which provided grounds for termination of the contract. However, not in all cases, the employee agree with the actions of the employer. The law gives the employee the right to challenge Dismissal. TK, in particular, provides for the possibility to appeal to the labour Inspectorate. However, as practice shows, this body is often considered labor disputes. What to do if fired Without reason? To go to court. This form of protection is just provided in the Article 391 of the labour code.

The Basis for the appeal in the court of General jurisdiction are the following cases:

1. The Employee, the employer, the Union, protecting the interests of the employee do not agree with the resolution of fee disputes.
2. Employee submits a request, passing a Inspection labour.
3. The Application is submitted by the Prosecutor, if the decision of the Commission is contrary to the labour legislation and other acts containing norms regulating employment relationships.

The claims

According to the article 391 TK, the courts are dealing directly disputes the statements of the employer on compensation of employees caused harm to them, unless otherwise established by the legislation.

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The List of reasons why the court may ask the employee, actually a little longer. In particular, in the instances deals with disputes about:

1. Reinstatement. Thus the reason for the termination of the contract does not matter.
2. Change the wording of the grounds and date of dismissal.
3. Transfer.
4. Payment of time of enforced idleness or of the difference over the period of execution of lower-paid work.
5. Misconduct Direct employer in the process of processing and protection of personal employee data.

Details

A Citizen can defend itself if its Employment disrespectful, in his opinion, reasons. In article 391 of the Code provides for additional rights of the persons whose interests in the employment of the disadvantaged.

According to the norm, the court can ask the person working citizens without the status of entrepreneur, and also employed by religious organizations.

Article. 391 of the labour code also allows for consideration of individual disputes on the applications of citizens who believe that they are discriminated against.

Explanations

As above mentioned, the Article 391 of the labour code can be used when applying to the court of General jurisdiction. This means that the judge, having made the claim, must determine whether it is derived from labor relations. Recall their characteristics.

The Employment relationship based on an agreement between the employer and the employee about:

• Personal fulfillment will follow a set fee for a specific task;
• The subordination of the worker to the rules established in the enterprise;
• Providing the employer with adequate working conditions, stipulated by the legislation, local acts, agreement, collective agreement.

In addition, the court shall determine jurisdiction of the case.

Important

In accordance with Federal law No. 147, paragraph 6 part 1 article 23 of the code of civil procedure is repealed. In accordance with this provision, previously all disputes arising from employment relations to be dealt with in the magistrates ' court in the first instance.

Currently the following case examines the district court.

Individual labour disputes: time

In article 46 of the Constitution guarantees the right of citizens to judicial protection. In TC, in turn, does not contain reservations about mandatory pre-trial appeal to the inspection labour.

A Citizen who believes that his rights have been violated may choose the method of protection. In particular, he is entitled to first approach the Commission for settlement of disputes. With the exception of those that deal directly with the court. If the Commission's decision will not satisfy the citizen, he may file a lawsuit. This must be done no later than 10 days from the date of the decision.

If the Commission within ten days has not considered the application submitted, the concerned subject has the right to transfer the case to the court.

Nuances

According to the Article 391 of the labour code, the court may request the employer and the employee, but the Union and the Prosecutor.

Refer to Federal legislation. According to article 23 of law No. 10 if the lessee has committed a breach of labour legislation, the Union may, at its own initiative or at the request of members of the trade Union or employees to apply to the structure, considering labour disputes.

In part 2Article 390 TK provides term for filing of the employer or employee to the court in case of disagreement with the decision of the Commission. It is 10 days. For the Union and the Prosecutor, the company is not selected. It seems that they should also follow the provisions of part 2 of article 390 TK.

More about categories of cases

Except for disputes expressly provided in the Article 391 TK, the court considered the cases according to the statements of persons:

• Received an unjustified denial of employment. Speech, in particular, on cases where citizen Employment due to age, skin colour, religious faith, sex, social status, etc.
• Subjected to discrimination in employment. For example, a woman is not allowed to take leadership positions. In such cases, among other things, the employee has the right to demand compensation for moral and material damage.
• Have Suffered material damages in connection with wrongful actions of the employer.

The Employer shall have the right to file a complaint for:

• Recovery earnings, unduly paid to the employee in connection with his illegal actions.
• Compensate employees for the harm caused to the company, the amount of which exceeds its average p/p.
• The Recovery of the unpaid debt with the dismissed employee, if he gave a written undertaking to repay the debt.
• Payment by the employee for the harm caused to the company, the amount is more than its medium s/n, if the monthly deadline for approval by the head of the order has expired or the employee does not want to compensate the damage voluntarily.

In addition, the employer may appeal the instruction of the labour Inspectorate on Reinstatement previously dismissed employee.

Discrimination

It can take place in the framework of the professional activities of a citizen, and when the subject Illegally dismissed. What to do in such situations, whom to contact? In such cases, direct road to court. It should be remembered that the fact of discrimination necessary to prove. It is advisable to take a copy of the order of the employer. If necessary, the employee may take an additional written explanation of the Manager.

Discrimination could, for example, expressed in the fact that the increase of salaries, wage rates affected all employees, except persons who have reached retirement age. In the second situation, the employer decided the employee's Fire under, providing for the reduction, did not take into account the priority right of an employee to remain in his post. It is referred to in article 179 of the Code.

Of Course, not everyone knows What to do if fired Without explanation. First and foremost you need to understand that such actions of the employer is unlawful. For starters, you can consult the Commission on labor disputes. In such cases it is useful and the assistance of a qualified lawyer.

Most Importantly - turning to the court to have evidence of discrimination. You can additionally take testimony from colleagues.

It Should be noted that a dismissed employee can bring to Direct employer a few requirements. However, part of them he may appeal to the Commission under the disputes part – directly to the court.

You Must also consider that the fact of termination of labor relations does not affect the jurisdiction requirements.

In addition, if the employer decides to dismiss the article (regardless of which), it is necessary to control the correct paperwork, compliance by tenant of all the rules established by the TC.

Jurisdiction

The Claim of the employer to the employee are sent to the place of residence of the latter. The employee shall submit the request on meta where the enterprise.

Meanwhile, the legislation allows the employee to choose the place of hearing in the following cases:

1. Professional activities of the plaintiff is in the branch/representative office of the organization. Requirements for enterprise arising from the activities of a separate division, may be sent to the court not only the address of the head of the firm and its subsidiaries.
2. The Claim is associated with the restoration of labor rights, compensation of losses incurred by the employee in connection with his unlawful conviction, prosecution under the criminal code, the application to it of measures of restraint (recognizance not to leave, detention), administrative sanctions in the form of arrest. Such statements may be delivered to authority not only on the location of the organization, but also at the place of residence of the applicant.

This list is exhaustive.

Unreasonable refusal to accept to the enterprise

Explanations for the review of such disputes gave the Plenary of the armed forces Decree No. 2 of 17.03.2004.

The Court, in particular, specifies that when such cases need to be taken into consideration that the right to work enshrined in the Constitution. Citizens can freely use their knowledge, abilities, choose a profession, occupation.

At the conclusion of the contract with the employer applicant has equal rights with others. No discrimination in the admission of citizens to work. Prohibited any restrictions (direct or indirect), the establishment of individuals of privileges based on race, sex, age, nationality, family, property, social status, place of residence and other circumstances notconnected with professional qualities of the person.

Meanwhile, when considering the denial of employment to ensure optimum coordination of interests of the employer and of entities willing to enter into an employment agreement, you need to take into account that, in accordance with the Constitution and the provisions of article 22 of TK (2 par. Part 1), the employer personnel decisions are made independently. The conclusion of the contract with the applicant is not the responsibility of the Manager. Moreover, in TC there is no requirement that the employer with the appearance of the vacant posts shall be obliged immediately to fill.

When handling disputes, the court should determine whether the proposed supervisor jobs available to him, through the placement of advertisements in the media, notification of the employment service, the announcement in a speech to the graduates of educational institutions etc., whether he talks with a specific person (the claimant's claim, in particular). Mandatory defined grounds of denial of employment, verified their legality and validity.

In this case, the court must consider that the failure to work according to the circumstances, bearing clearly discriminatory in nature are prohibited. For example, a woman may not be refused due to the fact that she is pregnant or has young dependents.

In the current legislation contains an illustrative list of grounds on which an employer may not deny the applicant. In this regard, the court assesses the actions of the Director and decides on the presence in them of signs of discrimination in each case individually.

If it is found that failure was associated with an insufficient level of training of the person, failure is recognized lawful.

In the above Resolution of the Supreme Council draws the attention of the courts that the denial of employment of persons living in Russia, but do not have permanent registration at the address of residence/stay or place of business, is illegal. Such actions of the employer violate the rights of individuals to free movement in Russia and the choice of residence guaranteed by the Constitution. In addition, such refusal is contrary to the provisions of part 2 article 64 TC, which does not allow to restrict or to establish the benefits for individuals when applying for a job on this basis.

A Special category of disputes

Often, in practice, difficulties arise in cases arising from the legal relationship between the shareholder-citizen and AO or another member of the company/partnership and that society/Association. Such disputes also under the jurisdiction of the courts of General jurisdiction.

The Question of relating these cases to the category of labour disputes resolved under the provisions of article 381 of the TC. In accordance with her individual dispute should be considered unresolved disagreement between the employer and employee on issues related to the application of labour standards present in the legislation and other legal, including local acts, the collective agreement, the contract stated in the authority to resolve it.

The Relationship between sole Executive structure of the company (the CEO, for example), members of the collective structures on the one hand and by the societies on the other are based on employment contracts, the works belong to the category of labour disputes, if associated with the invalidation of the decisions of the Executive bodies listed on:

• Early termination of the powers;
• Restoration of positions;
• Payment of the compelled truancy.

The Term of consideration of civil cases by the General rules is not more than two months from the date of receipt of the claim to the court. Cases relating to reinstatement are studied and resolved within one month.

If one dispute, one of the requirements of the decision must be rendered no later than two, and on the other – one month, the matter shall be referred, before the expiry of two months from the date of receipt of the claim in court. I.e. generally the period provided by law for the proceedings.