Labor inspectorate reinstated. Reinstatement at work by order of the labor inspectorate
In this article you will get the answer to the question: which government bodies can and should be contacted to protect your rights in case of illegal dismissal. I will also tell you which government agencies are effective to contact in case of illegal dismissal, and which are not. So, illegal dismissal: where to go.
There are three government bodies that can help with illegal dismissal: the federal labor inspectorate (state labor inspectorate), the prosecutor's office and the court. Let's figure out what powers they have in case of illegal dismissal of an employee.
Powers of the Federal Labor Inspectorate in case of illegal dismissal
The Federal Labor Inspectorate is provided for by the Labor Code of the Russian Federation as a specialized government body that supervises compliance with labor legislation and other regulatory legal acts containing labor law norms.
On behalf of the inspectorate, inspections are carried out by state labor inspectors, who are of two types. Some are involved in checking legal issues, others - checking compliance with safety regulations. In case of illegal dismissal, the employer will check compliance with labor laws by a legal state labor inspector.
In order for the employer to be inspected by the federal labor inspectorate in case of illegal dismissal, the employee must write a statement.
Based on the results of an inspection based on an application for illegal dismissal, the state labor inspector has the right to apply the following measures (Article 357 of the Labor Code of the Russian Federation):
Firstly, issue the employer a binding order to eliminate violations of labor legislation and restore violated rights.
Secondly, bring the employer to justice - draw up a protocol on an administrative offense, consider the case of an administrative offense and impose a punishment.
Can a state labor inspector force an employee to be reinstated? Yes, the state labor inspector has the right to issue an order to reinstate the employee at work. This is evidenced by the following norms of the Labor Code of the Russian Federation.
Article 234, which deals with the employer’s obligation to compensate for material damage to the employee in the event of illegal deprivation of the opportunity to work. An article of the Labor Code of the Russian Federation states that such an obligation arises when a decision of the state legal labor inspector to reinstate an employee to his previous job is refused or untimely executed.
Article 373 regulating the procedure for taking into account the motivated opinion of the elected body of the primary trade union organization when dismissing an employee at the initiative of the employer. I quote: the state labor inspectorate, within ten days from the date of receipt of the complaint (application), considers the issue of dismissal and, if it is recognized as illegal, issues the employer a binding order to reinstate the employee at work with payment for forced absence.
In practice, I do not advise you to rely unduly on the labor inspectorate and delay in filing a claim in court for reinstatement. There are several reasons why you should not rely on GIT:
The Federal Labor Inspectorate, as a rule, checks the procedural aspects of dismissal - whether the procedure for making a decision on dismissal has been followed. The labor inspector will not interrogate witnesses to absenteeism, your witnesses who say that there was no absenteeism, will not compare their testimony and evaluate which ones can be trusted and which cannot. The labor inspector will not check whether a reduction is actually being carried out, whether the reduction is being carried out formally to dismiss an unwanted employee, etc.
The labor inspector's order can be challenged in court within three months from the date of its issuance. The court can cancel it not only due to unfoundedness, but also due to violation of the verification procedure. When appealing an order, the employer may file a petition for interim measures in the form of suspension of the order.
The period for consideration of an application by the federal labor inspectorate is one month.
And finally, the Labor Code of the Russian Federation establishes a shortened period for going to court in disputes about dismissal - 1 month from the date of delivery of a copy of the dismissal order or from the date of issue of the work book. This period can be restored, but it is better not to risk it again.
Powers of the prosecutor's office in case of illegal dismissal
The prosecutor's office has the right to conduct audits of any legislation. The prosecutor's office is an accessible body, because there is a prosecutor's office in every district (there are inter-district ones). The prosecutor's office is the most “terrible” government body. At least, this opinion has taken root in the minds of the majority of Russian citizens. The prosecutor's office will definitely help - this is another common opinion.
Will the prosecutor's office help with illegal dismissal?
If we put aside formalities, the powers of the prosecutor's office are not much different from the powers of the federal labor inspectorate. The prosecutor's office, like the State Labor Inspectorate, conducts inspections and, based on the results of the inspections, brings administrative liability, and may demand that the employer eliminate the violations committed - make submissions on eliminating violations of labor legislation. Likewise, nowhere in the law does it say that the prosecutor cannot demand that an employee be reinstated. Most likely, he will send the employer a protest (demand to cancel) the illegal dismissal order.
But like the federal labor inspectorate, the prosecutor’s office, as a rule, checks compliance with the order (procedure) of dismissal. You can competently unsubscribe from the protest and the prosecutor's presentation. Want to know how? The prosecutor's office conducts an investigation within one month. As a rule, prosecutors are overloaded with work and will have very little time to respond to your complaint about illegal dismissal.
Although it is possible that contacting the prosecutor's office will help you get reinstated at work. Perhaps the employer will be afraid of the prosecutor's inspection. It is possible that if all possibilities for protecting your rights have been exhausted, the prosecutor will file a claim in your interests for reinstatement at work. This right is granted to him by Art. 45 of the Civil Procedure Code of the Russian Federation.
Ultimately, contacting the federal labor inspectorate and the prosecutor's office is an excellent way to relieve yourself of responsibility for your future. Maybe they will help, maybe not. In the latter case, all responsibility can be placed on the state. For those who want to decide their destiny on their own, there is only one option - going to court.
Powers of the court in case of illegal dismissal
The court is the only government body that finally resolves a dispute over illegal dismissal. The court decision is binding. There is a federal bailiff service that enforces court decisions.
The court may rule on reinstatement, change the wording of the reason for dismissal, collect monetary compensation for unlawful deprivation of the opportunity to work in the amount of average monthly earnings, and also recover compensation for moral damage.
Some points you need to know when going to court.
The period for filing a lawsuit in disputes over dismissal is one month from the date of delivery of a copy of the dismissal order or from the date of issue of the work book. The deadline can be restored, but it is better not to risk it.
The employee is exempt from legal costs, including payment of state fees.
Judge Bychkov A.V.
Case No. 33-1730
Definition
Judicial panel for civil cases of the Moscow City Court, composed of presiding Zakharova E.A. judges Davydova I.N. and Neretina E.N.
under secretary Bondarenko K.V.
having heard in open court the report of judge Davydova I.N.
case on the cassation appeal of Zelenogradstroy LLC against the decision of the Nagatinsky District Court of Moscow dated October 28, 2010, which decided:
In satisfying the application of Firma Zelenogradstroy LLC to challenge paragraphs. 12.17 the order of the state labor inspector of the State Labor Inspectorate in Moscow No. 7-5257-10-OB/53/2 dated May 14, 2010 - refuse,
INSTALLED:
LLC "Firm Zelenogradstroy" filed a claim with the court to challenge paragraphs. 12, 17 instructions of the state labor inspector of the State Labor Inspectorate in Moscow No. 7-5257-10-OB/53/2 dated May 14, 2010, by which the applicant undertakes to eliminate violations of labor legislation and other regulatory legal acts containing labor law norms , considering this order illegal.
State Labor Inspector in Moscow Nikiforov E.V. - the official who issued the order appeared at the court hearing and objected to the satisfaction of the application, submitting a written response.
The court made the said decision, the cancellation of which is requested by Zelenogradstroy LLC based on the arguments of the cassation appeal.
Having checked the case materials, having listened to the representative of Zelenogradstroy Firm LLC T.A. Vasilyeva, the representative of the State Labor Inspectorate in Moscow – E.V. Nikiforova, having discussed the arguments of the cassation appeal, the judicial panel does not find any grounds for canceling the decision made taking into account the established circumstances of the case and the evidence presented.
According to Part 2 of Article 357 of the Labor Code of the Russian Federation, in the event of an appeal by a trade union body, an employee or another person to the state labor inspectorate on an issue that is being considered by the relevant body for consideration of an individual or collective labor dispute (with the exception of claims accepted for consideration by the court, or issues , for which there is a court decision), the state labor inspector, upon identifying an obvious violation of labor legislation or other regulatory legal acts containing labor law norms, has the right to issue an order to the employer that is subject to mandatory execution. This order may be appealed by the employer to the court within ten days from the date of its receipt by the employer or his representative.
The court found that on the basis of order No. 7-5257-10-OB/53/1 of the State Labor Inspectorate in Moscow dated April 15, 2010, an unscheduled documentary inspection of compliance with labor regulations was carried out at Zelenogradstroy LLC from April 15, 2010 legislation.
In accordance with paragraphs 12 and 17 of the contested order No. 7-5257-10-OB/53/2 dated May 14, 2010 (case sheet 65-67) of the state labor inspector in Moscow at Firma LLC Zelenogradstroy" is charged with the obligation to take measures to eliminate violations of labor legislation and other regulations containing labor law norms, namely:
Compensate Ariskin B.A. in accordance with Part 1, Clause 3, Article 234 of the Labor Code of the Russian Federation, the earnings he did not receive as a result of the employer’s delay in issuing Ariskin B.A. his work book and continue not to violate the deadlines for issuing work books to employees upon termination of employment contracts;
Cancel order No. 1044-k dated December 2, 2008 regarding the dismissal of B.A. Ariskin. from November 16, 2008 for absenteeism according to clause “a” clause 6 of Article 81 of the Labor Code of the Russian Federation and restore Ariskin B.A. as a third-class concrete worker. In accordance with Part 1, Clause 1, Article 234 of the Labor Code of the Russian Federation, compensate Ariskin B.A. the earnings he did not receive as a result of his illegal dismissal, and also recognize the entry in the work book of B.A. Ariskin. illegal.
In accordance with the order dated October 16, 2006, Ariskin B.A. was hired by Firma Zelenogradstroy LLC as a 3rd category concrete worker (case file 98).
According to clause 9.3 of the employment contract dated 10/16/2006, b/n, concluded between Zelenogradstroy LLC and B.A. Ariskin, a five-day work week with two days off was established - Saturday and Sunday (case file 99- 103).
According to clause 3.1 of the Internal Labor Regulations, approved on June 1, 2006, the said organization established a five-day work week with two days off - Saturday and Sunday (case file 104-111).
In accordance with Article 111 of the Labor Code of the Russian Federation, the general day off is Sunday.
By order of December 2, 2008 No. 1044-k Ariskin B.A. was dismissed on November 16, 2008 (which was a Sunday) according to clause “a” clause 6 of Article 81 of the Labor Code of the Russian Federation (absence from the workplace without good reason) on the basis of a memo from the head of contracts, A.I. Serebryakova. dated November 17, 2008, according to which Ariskin B.A. subject to dismissal from November 16, 2008, since he did not show up for work on November 16, 2008. (case sheet 94-95).
In resolving the complaint, the court came to the correct conclusion that since November 16, 2008 was B.A. Ariskin’s day off, his dismissal for absenteeism on the basis of the above order is illegal, and the dismissal order is subject to cancellation.
Work record book for Ariskin B.A. was issued not on the day of his dismissal, but later on December 4, 2008 (case sheet 72-73).
In accordance with part 4, 6 of article 84.1 of the Labor Code of the Russian Federation, documents confirming the direction to Ariskin B.A. notification by mail of the need to appear for a work book or to agree to have it sent by mail was not provided during the inspection.
In accordance with Article 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, arises if earnings are not received as a result of:
Illegal removal of an employee from work, his dismissal or transfer to another job;
Delays by the employer in issuing a work book to an employee, or entering into the work book an incorrect or non-compliant formulation of the reason for the employee’s dismissal.
Under such circumstances, the court came to a reasonable conclusion that the state labor inspector lawfully issued an order obliging Zelenogradstroy LLC to eliminate violations of labor legislation in relation to B.A. Ariskin.
In this connection, the court correctly recognized the requirements set out in the order of the State Labor Inspectorate in Moscow as justified.
In resolving the complaint, the court came to the correct conclusion that the procedure for checking compliance with labor legislation was not violated and information about the violation of such a procedure by the applicant was not indicated.
The order of the state labor inspector to eliminate violations of labor legislation was issued in accordance with the competence granted to the State Labor Inspectorate, Article 357 of the Labor Code of the Russian Federation.
The State Labor Inspector lawfully issued an order obliging Zelenogradstroy LLC to eliminate violations of labor legislation - to cancel the order regarding the dismissal of B.A. Ariskin. for absenteeism, reinstate Ariskina B.A. as a third-class concrete worker and in accordance with Art. 234 of the Labor Code of the Russian Federation to compensate Ariskin B.A. the earnings he did not receive as a result of illegal dismissal and the earnings he did not receive as a result of the employer’s delay in issuing Ariskin B.A. his work book, recognize the entry in the work book of Ariskin B.A. illegal.
Resolving the case, the court came to a reasonable conclusion that the inspection was carried out on the basis of an authorized body, by a competent official, within the time limits established by law, based on the results of the inspection, an appropriate act was drawn up, and based on the facts of violations identified, an order was issued to the applicant to eliminate violations of labor legislation.
The court came to a reasonable conclusion that during the inspection, the inspector found violations of labor legislation.
The court's conclusions that the actions of the state labor inspector in the implementation of supervisory functions in the field of monitoring compliance with labor legislation are lawful, since the issuance of order No. 7-5257-10-OB/53/2 dated May 14, 2010 is aimed at achieving a fair balance of interests employer and employee, as well as to protect and restore the violated rights and interests of the employee.
The court's conclusion is motivated, corresponds to the factual circumstances and materials of the case, and there are no grounds for recognizing it as incorrect.
The court examined all the circumstances of the case with sufficient completeness, gave a proper assessment of the evidence presented, the court's conclusions do not contradict the case materials, the legally significant circumstances in the case were established by the court correctly, the rules of substantive law were applied correctly by the court.
The court carefully analyzed the case materials, correctly established the factual circumstances relevant to the case, gave a well-founded and motivated assessment of all the parties' arguments, and provided in the decision all the necessary references to legal norms.
Under such circumstances, the court's decision is legal and justified.
The arguments of the cassation appeal that the court incorrectly determined the circumstances relevant to the case, the court’s conclusions do not correspond to the circumstances of the case, cannot serve as a basis for canceling the decision, since they are aimed at a different assessment of the evidence examined by the trial court, do not contain new circumstances that refuted would be the conclusions of the court decision, and therefore cannot serve as a basis for its cancellation.
The arguments set out in the cassation appeal that the district court considered the case in the absence of a representative of Firma Zelenogradstroy LLC are not substantiated and cannot be a basis for canceling the court decision, since the applicant’s representative was duly notified, which is confirmed by receipts on p. d. 58, 59, did not appear at the court hearing, did not provide information about the valid reasons for failure to appear.
In accordance with Part 2 of Article 257 of the Code of Civil Procedure of the Russian Federation, the failure to appear at a court hearing of any of the persons specified in part one of this article, duly notified of the time and place of the court hearing, is not an obstacle to the consideration of the application.
The court did not commit any violations of the norms of procedural and substantive law leading to the reversal of the decision.
The argument of the cassation appeal that the order of the State Labor Inspector for Moscow No. 7-5257-10-OB/53/2 dated May 14, 2010 was issued in violation of the established procedure, was verified by the court, based on the evidence presented, assessed by the court in accordance with the requirements of Art. 67 of the Code of Civil Procedure of the Russian Federation, the court did not find this argument justified. The panel of judges has no reason to make a different assessment of the evidence presented.
The argument of the complaint is that the director of Firma Zeenogradstroy LLC, Yu.V., filed a statement with the court. Gorbunov, and the court considered the complaint of Zelenogradstroy Firm LLC, cannot be a basis for canceling the court decision, since the director of the company is the legal representative of the legal entity and acts in its interests as an authorized executive body. This circumstance violates the rights of neither the legal entity nor its legal representative - the director.
The argument of the complaint is that Ariskin B.A. worked on a rotational basis and for him Sunday was a working day in this mode of work, he is not wealthy, cannot be taken into account, since it contradicts the materials of the case. The court was not presented with evidence of changes to B.A. Ariskin. working hours. Working conditions Ariskina B.A. are recorded in the employment contract and in the internal labor regulations. Agreements on changing working conditions were not presented to the court.
The argument of the complaint that the state labor inspectorate does not have the right to carry out inspections, reinstate and collect wages during forced absence is not justified, since it contradicts the information contained in the order in which the State Labor Inspector in Moscow obliged the director of LLC " Firm Zelenogradstroy" restore Ariskina B.A. at work, cancel the dismissal order and make the payments due to him.
The order of the state labor inspector to eliminate violations of labor legislation was issued in accordance with the competence granted to the state labor inspectorate, Article 357 of the Labor Code of the Russian Federation.
Therefore, the reference of the applicant’s representative to the fact that between Ariskin B.A. and Zelenogradstroy Firm LLC have an individual labor dispute about reinstatement at work, which can only be resolved by a court, and the order was issued in excess of the powers granted and cannot be taken into account, since it is aimed at a different interpretation of the law.
According to Article 357 of the Labor Code of the Russian Federation, state labor inspectors, when exercising state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms, have the right:
Provide employers and their representatives with binding orders to eliminate violations of labor legislation and other regulatory legal acts containing labor law norms, to restore the violated rights of employees, to bring those responsible for these violations to disciplinary liability or to remove them from office in the prescribed manner.
The argument of the complaint that in this case there is an individual labor dispute that must be resolved by the court, whose competence includes the assessment of evidence, also cannot be a basis for canceling the court decision, since there is no evidence that Ariskin B.A. went to court to resolve a labor dispute. Ariskin B.A. applied for protection of his labor rights in a different manner, provided for by the norms of the Labor Code of the Russian Federation, the actions of the State Labor Inspector of Moscow are fully consistent with the norms of the Labor Code of the Russian Federation.
The reference to the fact that, in essence, there is a labor dispute does not affect the court’s conclusions about the legality of the order issued, since the State Labor Inspector of Moscow acted within the framework of labor legislation and its competence established by the norms of the International Labor Organization Convention No. 81 on Labor Inspection (1947), ratified by the Federal Law of April 11, 1998. No. 58-FZ.
The panel of judges does not see any grounds for canceling the court decision based on the arguments of the cassation appeal.
Based on the above and guided by Article 360, paragraph 1 of Art. 361 Code of Civil Procedure of the Russian Federation, judicial panel
DEFINED:
the decision of the Nagatinsky District Court of Moscow dated October 28, 2010 is left unchanged, the cassation appeal is not satisfied.
Chairman:
Judges:
Supervision over the implementation of norms and the provisions of labor law, according to Art. 353 of the Labor Code of the Russian Federation, carried out by the State Labor Inspectorate. An employee has the right to file a complaint with this government supervisory body in cases where the employer violates his labor rights and interests.
Often, when downsizing or liquidating an enterprise, an employer, trying to reduce paperwork and personnel work, fires employees inappropriately. This is a violation of labor law. An employee can write a complaint to the labor inspectorate at the location of the employer.
Within 30 days of receiving the complaint, inspectors must conduct an audit of the employer's actions. If these violations are discovered, an order will be issued to the employer to reinstate the illegally dismissed employee in the workplace. In addition, the employer will have to pay the employee wages for forced downtime, calculated based on the employee’s average earnings before dismissal.
According to Art. 396 of the Labor Code of the Russian Federation, the decision on reinstatement in case of illegal dismissal is subject to immediate execution. If the execution of the decision is delayed due to the fault of the employer, he will be obliged to compensate the employee for days of forced downtime in the amount of average earnings or pay him the difference in earnings.
Reinstatement at work on the basis of the prosecutor's office
In addition to the labor inspectorate, the employee has the right to write a complaint to the prosecutor’s office at the employer’s location.
He writes a complaint to the prosecutor's office, indicating all violations and, without fail, provides evidence of these violations. The prosecutor is conducting an inspection at the enterprise. If these violations are revealed, the prosecutor will issue an order to reinstate the employee in his workplace.
The order of the prosecutor, as well as the labor inspector, is subject to immediate implementation.
Reinstatement by court decision
In addition, the employee can go to court within 1 month from the date of illegal dismissal. The “countdown” of time begins from the moment the employee is given the dismissal order.
The court will consider the case on its merits. But the employee must himself collect evidence of his illegal dismissal and present it to the court along with the claim.
The employee must follow all personnel procedures upon termination of employment. He must sign the order for familiarization. The employee’s signature on the dismissal order does not mean his consent (as many people think), but acquaintance. The employee has the right to keep a copy of the order, as well as other documents related to his work activity and subsequent dismissal. The employer has no right to interfere with him.
Reinstatement after layoff
Reducing the number of employees is the most common reason for dismissal. This procedure is quite lengthy. The employer, together with the personnel officer, must prepare a lot of papers and documents. This is why so many violations of labor laws occur during staff reductions. An employee can file a complaint with the labor inspectorate, the prosecutor's office or the court.
In Art. 179 of the Labor Code of the Russian Federation lists categories of employees who have a preferential right to remain at work in the event of layoffs. If the employer does not take into account this right of the employee, then the employee can write a complaint.
According to Art. 396 of the Labor Code of the Russian Federation, execution of a court decision on reinstatement at work is subject to immediate execution by the employer. The request for reinstatement is considered satisfied if the employee is reinstated to his previous job or the order to dismiss him is cancelled.
The employer must take the following actions when reinstating an employee:
- Issue an order to cancel the order to dismiss the employee. The employee must also be familiarized with this order by signing
- Make appropriate changes to the employee’s work book
- Actually allow the employee to perform his direct job duties
These actions must be carried out no later than the first working day from the date the employer receives a writ of execution based on a court decision.
Difficulties arise when reinstatement at work by court decision, when the position is reduced. In this case, the employer must issue an additional order to introduce this position into the staffing table. The remuneration for the newly introduced position cannot be lower than it was before the reduction.
In addition, the employer must pay the employee compensation for forced absence. Compensation is paid based on the employee’s average earnings before his reduction and dismissal.
The employee, in whose favor a court decision was made to reinstate him, then turned to the labor inspectorate with a statement to bring the employer to administrative responsibility for illegal dismissal. The employer executed the court decision on reinstatement in full with payment of all required compensation.
Can the state labor inspectorate hold an employer administratively liable for violating labor laws?
In accordance with the Labor Code of the Russian Federation, everyone has the right to protect their labor rights and freedoms by all means not prohibited by law. Methods of protecting labor rights include, among other things, judicial protection, as well as state control (supervision) over compliance with labor legislation and other regulatory legal acts containing labor law norms (Labor Code of the Russian Federation).
At the same time, as follows from the Labor Code of the Russian Federation, a person’s appeal to the court for protection of his labor rights excludes the possibility of considering the same issue by the federal labor inspectorate and issuing an order to the employer.
At the same time, it must be remembered that bringing a person to administrative responsibility is possible only after the initiation and consideration of a case of an administrative offense. In turn, administrative cases on violations of labor legislation and other regulatory legal acts containing labor law norms (Administrative Code of the Russian Federation) are initiated on the basis of a protocol on an administrative offense or a ruling on the initiation of a case on an administrative offense if it is necessary to conduct an administrative investigation (clause 3 and 4, part 4, article 28.1, part and Code of Administrative Offenses of the Russian Federation), compiled or issued by the federal labor inspectorate (and Code of Administrative Offenses of the Russian Federation, Labor Code of the Russian Federation).
From the above it follows that the courts are not independently authorized to initiate cases of administrative offenses, and in order to bring a person to administrative responsibility it is necessary, first of all, to draw up or issue the above protocol or ruling. Therefore, the mere adoption by the court of a decision to reinstate an employee at work and holding the employer financially liable to the employee, provided for by the provisions of the Labor Code of the Russian Federation, does not mean releasing him from administrative liability to the state, since the question of bringing such liability to the court within the framework of resolving an individual labor the dispute is not considered.
In connection with the above, the Federal Labor Inspectorate may initiate a case for an administrative offense related to violation of labor legislation regarding the dismissal of an employee, and after the court decision specified in the question is made. The reason for initiating such a case may be, among other things, an appeal from the employee himself, whose rights were violated (Administrative Code of the Russian Federation).
Such an offense falls under the signs of an administrative offense mentioned in the Code of Administrative Offenses of the Russian Federation, and therefore the administrative case is considered and the decision to hold the employer accountable, as a general rule, is made by an official of the federal labor inspectorate (Code of Administrative Offenses of the Russian Federation). If the employer previously committed administrative violations regarding the illegal dismissal of employees, then such an offense falls under the elements of an offense specified in the Administrative Code of the Russian Federation, and the case is subject to consideration by the court (Administrative Code of the Russian Federation). Let us note that by virtue of the Code of Administrative Offenses of the Russian Federation, an administrative case initiated under the Code of Administrative Offenses of the Russian Federation is considered by the court if it is referred for such consideration by the person to whom such a case was received.
In conclusion, we note that when deciding whether to bring the perpetrators to administrative responsibility and the applicable sanction, the nature of the offense committed and circumstances mitigating administrative responsibility must be taken into account (Part 1, Code of Administrative Offenses of the Russian Federation). Therefore, taking all necessary measures to eliminate violations of labor legislation, voluntary elimination of the consequences of the offense, compensation for damage caused may, by virtue of the Code of Administrative Offenses of the Russian Federation, be recognized as circumstances mitigating administrative liability and taken into account when imposing an administrative penalty (Resolution of the Altai Regional Court dated July 5, 2011 N 4a-348/2011, decision of the Samara Regional Court dated October 3, 2012 in case No. 21-540, Review of judicial practice on the consideration in 2011 by district (city) courts and magistrates of the Kaliningrad region of cases of administrative offenses, as well as complaints against decisions on cases of administrative offenses).
Note:
We draw your attention to the fact that, in accordance with the provisions of the Labor Code of the Russian Federation, individual labor disputes upon an employee’s application for reinstatement at work, regardless of the grounds for termination of the employment contract, are considered in the courts. This means that if there is a dispute between an employee and an employer regarding the legality of dismissal, the federal labor inspectorate does not have the right to review the employer’s actions for compliance with the law. Only the court can do this. However, if the employer’s guilt in violating labor law norms was established by a court decision, then he may be held administratively liable.
Prepared answer:
Expert of the Legal Consulting Service GARANT
Candidate of Legal Sciences Shirokov Sergey
The answer has passed quality control
The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.
The powers of the state labor inspection are established in paragraph 2 of Article 356 and paragraph 6 of Article 357 of the Labor Code of the Russian Federation.
State labor inspectors, when supervising compliance with labor legislation, have the right to present mandatory orders to employers and their representatives to eliminate violations of labor legislation and other regulatory legal acts containing labor law norms, to restore the violated rights of workers, to bring those responsible for these violations to disciplinary action. responsibility or their removal from office in accordance with the established procedure.
On this basis, we can conclude that the state labor inspector has the right to eliminate violations committed against an employee, including during his dismissal, by the administrative and legal method inherent in this body - by issuing a mandatory order for the employer to cancel the employer’s order to apply disciplinary action against the employee or an order to dismiss the employee.
These powers were confirmed in the Review of Judicial Practice of the RF Armed Forces for the first quarter of 2011 (approved by the Presidium of the RF Armed Forces on June 1, 2011).
The Supreme Court of the Russian Federation, in Ruling No. 19-KG12-5 dated July 20, 2012, noted that within the meaning of these provisions of the law, when conducting inspections, the state labor inspector issues a mandatory order for the employer to comply with only in the event of an obvious violation of labor legislation.
That is, if there are compelling reasons, the labor inspectorate may issue an order to the employer to cancel the order to dismiss the employee for absenteeism.
The courts also believe that the state labor inspectorate has the authority to reinstate workers at work by sending mandatory orders to the employer.
FOR EXAMPLE
According to the Moscow City Court, the argument of the supervisory complaint that the state labor inspectorate does not have the right to reinstate and collect wages for forced absence is untenable, since it contradicts clause 2, part 1, article 83 of the Labor Code of the Russian Federation, as well as art. .357 of the Labor Code of the Russian Federation (Determination of the Moscow City Court dated March 28, 2011, No. 4g/5-2017/11). The Appeal Determination of the Trans-Baikal Regional Court dated March 30, 2016 No. 33-1461/2016 also noted that the order to eliminate the violation of the employee’s labor rights was issued by the state labor inspector within the limits of the powers granted to him by labor legislation, if there are legal grounds for this established by Art. . 357 Labor Code of the Russian Federation.
The employer, in turn, can appeal in court the order issued by the state labor inspector to the employer to cancel the order to dismiss the employee by filing an application within ten days from the date of receipt of the order (Article 357 of the Labor Code of the Russian Federation).
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How to hire a company director?
The head of the company is both an employee in an employment relationship and the sole executive body of the company. Therefore, it is subject not only to the norms of the Labor Code, but also to civil legislation. 1. WHAT ARE THE MAIN FUNCTIONS OF A COMPANY DIRECTOR? 2. WHAT SHOULD BE DONE BEFORE HIRING A DIRECTOR? 3. HOW TO CHECK A POTENTIAL MANAGER FOR DISQUALIFICATION? 4. WHO MAKES THE DECISION ABOUT HIRING A COMPANY DIRECTOR? 5. WHAT DURATION IS THE EMPLOYMENT CONTRACT FOR? 6. WHO SIGNS THE EMPLOYMENT AGREEMENT WITH THE MANAGER OF THE COMPANY? 7. CAN A COMPANY DIRECTOR BE EMPLOYED WITH A PROBATIONAL PERIOD? 8. IS IT POSSIBLE TO BE A PART-TIME MANAGER? 9. CAN THE SOLE PARTICIPANT OF AN LLC BE THE MANAGER OF THIS COMPANY? 10. IF YOUR DIRECTOR IS A FOREIGNER. WHAT SHOULD BE CONSIDERED? See the material about this prepared by the Managing Partner of the company "RosCo - Consulting and Audit" Alena Talash..su/kadry/kadrovoe-deloproizvodstvo/
7 mistakes that will bankrupt your business if you employ foreigners
Starting from March 11, 2019, the Ministry of Internal Affairs will begin to use checklists for inspections of companies and institutions on migration issues (Order of the Ministry of Internal Affairs of the Russian Federation dated January 29, 2019 No. 42, hereinafter referred to as the Order). What questions are included in the checklists? Companies, by independently assessing compliance with mandatory requirements, can predict the results of inspections in advance. A few words about who has the right to check employers for compliance with migration legislation. On April 5, 2016, the Federal Migration Service of the Russian Federation was abolished, and all its powers were transferred to the Ministry of Internal Affairs of the Russian Federation, which created the Main Directorate for Migration Issues. From June 1, 2016, the functions of the Federal Migration Service of the Russian Federation were finally transferred to the Ministry of Internal Affairs of the Russian Federation (Decree of the President of the Russian Federation dated April 5, 2016 No. 156). Answers to what questions may indicate a violation of immigration laws? Questions No. 1 and No. 2 - has permission to attract and use foreigners been obtained and have employment contracts or civil service agreements been concluded with foreigners? Questions No. 3 and No. 4 - are there valid work permits or patents for labor activities and has the employer submitted notifications to the territorial body of the Ministry of Internal Affairs about the conclusion (termination) of employment contracts or civil servants' agreements with foreigners? Questions No. 5 and No. 6 - do foreigners carry out labor activities within the constituent entity of the Russian Federation specified in the work permit or patent, in the profession (specialty, position, type of labor activity) specified in the work permit or patent? Questions No. 7 and No. 8 – does the employer submit notifications for the payment of wages (remuneration) to HQS and for the provision of unpaid leave for more than one calendar month during the year to foreigners studying in the Russian Federation? Question No. 9 - are employment contracts or civil service agreements concluded with a foreigner terminated in the event of cancellation of the work permit or expiration of the term? Question No. 10 - is an employee involved in work activities without obtaining permits by the employer a citizen of a member state of the EAEU? (Clause 1 of Article 97 of the Treaty on the EAEU, signed in Astana on May 29, 2014)? See the material about this prepared by the Managing Partner of RosCo - Consulting and Audit, Alena Talash.