Types of violations of the employment contract by the employer and liability for them

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Published: 07/19/2016

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The rights of employees may be violated by the employer on purpose or due to illiteracy. In this case, both the terms of the already signed employment contract and the requirements of the Labor Code are violated.

In Russia, the rights of workers are protected by judges, prosecutors and GIT inspectors.

Who can be an employer?
Types of violations Lack of TD or failure to provide a copy to the employee
Mandatory inclusions are not specified
A civil contract was signed
Salary payment deadlines are missed
An employee does someone else's work
Timesheets are not kept
The agreement provides for penalties
Salary below minimum wage

Responsibility for violations

Where to look for the truth?

The most common violations

Cases of violation by an employer of the terms of an employment contract are a very common practice. The list of such violations is very diverse, but the most common are:

Imposing disciplinary sanctions on employees in circumvention of established norms and rules.
Non-payment of wages or untimely transfer of funds due to the employee.
Violation of contractual terms of employment.
Involving employees to work overtime.
Refusal to provide paid leave due to an employee.
Dismissal of employees for no apparent reason.
Failure to pay required compensation under an employment or collective agreement.

Possible measures of liability for violation of an employment contract are prescribed in Art. 362 of the Labor Code.

Let's look at the most common violations of an employment contract by an employer in more detail. Thus, most often employers seek to save money on their employees and are looking for different ways to do this.

In particular, various penalties and fines for violation of an employment contract are an illegal way to reduce an employee’s due earnings. The employer has the right to stipulate them in the employment contract itself or in a local legal act (for example, a regulation or a collective agreement).

Most often, employers fine employees for being late, smoking during the working day, talking on the phone, snacking, exceeding traffic usage limits, using social networks during working hours and other violations.

When introducing fines and penalties, the employer often does not even think that he is thereby violating the provisions of Art. 137 Labor Code of the Russian Federation. This article provides an exhaustive list of grounds on which deductions from wages are allowed, and it is not subject to an expansive interpretation.

In particular, the employer legally has the right to reduce wages for an unpaid advance, return erroneously accrued funds and overpayments for vacation pay. It is also allowed to legally withhold alimony, debts under writs of execution and material damage.

The employer's responsibilities include paying wages not lower than the minimum wage or the minimum established at the regional level.

Also, violations are often committed during the process of dismissing employees . For example, an employer forces employees to write letters of resignation of their own free will instead of dismissal due to reduction (in order not to pay severance pay) or untimely warns employees about the upcoming dismissal, delays the payment of wages and vacation compensation upon dismissal, and does not comply with the current dismissal rules as a disciplinary sanction.

According to current legislation, the employer is required to pay wages twice a month. Therefore, if an advance is not paid, the employer is breaking the law.

An employee who works 8 hours a day has the right to a lunch break . Violation of this rule is not permitted.

Any work that is performed beyond the working day is overtime and is paid according to special rules.

It is the employer's responsibility to follow the established vacation schedule .
He has no right to deviate from it. All employees can count on 28 days of paid leave.

Dismissal for disclosing secrets

Trade secrets are important in the activities of an enterprise, the disclosure of which leads to material losses. The enterprise independently determines the list of information that constitutes commercial significance. Information of a public nature provided upon request from the Federal Tax Service is not included.

In case of violation of secrecy followed by dismissal, the following conditions must be met:

The enterprise has a developed regulation on information containing trade secrets.
The employee must be familiar with the situation.
The fact of disclosure of secret information was confirmed.
Explanations from the employee have been received.

To make a decision on dismissal, the employer is required to convene a committee. In the process of work, the damage caused to the enterprise is determined in order to make a decision on dismissal and filing a claim.

How can an employee defend his rights?

If the employee’s rights, which are guaranteed to him by the employment contract or labor law norms, are not respected, then he can complain about the employer to the authorized authorities.

There are three organizations where an employee can turn to protect his rights:

Labour Inspectorate.
Court.
Prosecutor's office.

Initially, you should try to resolve the problematic situation personally with the management of the enterprise and, if possible, involve the trade union organization in the dispute.

The employee should inform of his intention to contact the regional labor inspectorate if the employer does not comply with the employee’s legal requirements voluntarily. Sometimes this threat works, and employers decide that it is more profitable for them to voluntarily comply with the employee’s demands than to wait for an inspection from the labor inspectorate, as a result of which he may be subject to large fines.

But if this does not bring success, then you can complain about the employer to the labor inspectorate . It is worth submitting a written application to this organization outlining the problematic situation and requesting an inspection to determine the legality of the employer’s actions.

If, based on the results of the inspection, labor inspectors identify violations, they will issue an order to the employer to eliminate the deficiencies, which is mandatory.

also write a statement to the prosecutor's office with a complaint against the employer . The duties of the prosecutor include protecting the rights of citizens, including labor rights. Based on the results of the inspection, the prosecutor's office may also initiate criminal proceedings.

Finally, an employee can always file a complaint against the employer in court . In the statement of claim, he should set out all the circumstances of the violation of his labor rights and attach documentary evidence to it.

Bottom line

In conclusion, we can say that officially working citizens quite often encounter various violations by management.

Workers must protect their rights by contacting supervisory authorities.

If violations are discovered during an inspection, the employer may be held liable for various types of liability, which directly depend on the severity of the damage caused to the working citizen.

Tags: violationsEmployment contract

Types of liability

Labor law distinguishes 4 main types of liability for violation of the terms of an employment contract. This:

Financial liability in the form of penalties and fines for late payment of funds due under the contract or in case of illegal dismissal.
Disciplinary responsibility.
Administrative liability in the form of a warning, fine or even suspension of activities for 90 days.
Criminal liability in the form of a fine, correctional labor or even imprisonment.

Disciplinary and financial liability

According to Art. 195 of the Labor Code, the head of the company may be subject to disciplinary action. It is also possible to bring a deputy manager or the head of a structural unit to disciplinary liability at the request of the employee’s representative body (usually we are talking about a trade union organization).

Disciplinary action occurs on the basis of a statement from a representative body. The statement indicates which points of the contract and labor law were violated by the employer. Based on the results of consideration of the application, the employer must prepare an official response. If the facts stated in the application are confirmed, then disciplinary action is taken against the employer, up to and including dismissal.

The employer may also be held financially liable for the following offenses:

For delays in wages and other payments with payment of interest (monetary compensation) in the amount of 1/300 of the Central Bank rate of the unpaid amount for each day of delay under Art. 236 TK.
For moral damage caused to an employee under Art. 237 of the Labor Code in the amount determined by agreement of the parties to the agreement.
In cases where an employee is deprived of the opportunity to work under Art. 234 Labor Code : in case of illegal removal from work, dismissal of an employee, his transfer to another position, refusal to comply with the inspector’s decision to reinstate him in his previous place, for a delay in issuing a work book, etc.

Administrative responsibility

Administrative liability for violation of labor law norms is prescribed in the Code of Administrative Offenses of the Russian Federation. Violations of labor and labor protection legislation are dealt with in Art. 5.27 Code of Administrative Offences.

According to clause 1st. 5.27 of the Administrative Code, the employer faces a fine. Such a sanction is provided not only for the immediate manager, but also for officials: accountant, head of the personnel department, etc.

The person who will be held administratively liable depends on the type of offense. Thus, the head of the HR department may be fined for violating personnel records, an accountant for errors in calculating wages, etc.

Examples of violations of labor laws may include:

Conclusion of a fixed-term employment contract without grounds for this under Art. 59 TK.
Delay in payment of wages.
Imposing a disciplinary sanction on an employee without reason.
Requirements from an employee to perform work that is not provided for in the employment contract.
An employment contract was not concluded with the employee , or one copy was not given to him.
The employment contract does not contain essential conditions that must be spelled out in it under Art. 57 TK.
The employer did not issue a hiring order under Art. 68 Labor Code.
A civil contract was signed with the employee instead of an employment contract.
The employer violated the deadlines for notifying the employee about changes in the terms of the employment contract (for example, about changing the schedule).
When hired, the employee was given a probationary period, although this is prohibited by law (for example, according to Article 70 of the Labor Code, probation is prohibited for pregnant women and minors).
The employee was not familiarized with job responsibilities and labor regulations.
The employer violated the rules of remuneration : wages must be paid at least once every two weeks (according to Article 36 of the Labor Code), and all due payments must be transferred on the day of dismissal (according to Article 140 of the Labor Code).

According to Part 2 of Art. 5.27 of the Code of Administrative Offenses, if an official commits an offense again, he faces disqualification for a period of 1-3 years. According to the explanations of the Plenum of the Supreme Court, repeated offenses mean precisely a similar violation of labor law norms.

For example, if the employer did not pay wages upon dismissal to one employee, then to another. Disqualification is established by the court and implies a ban on holding leadership positions.

According to the norms of Art. 5.42 of the Code of Administrative Offenses provides for a fine for employers who refuse to hire disabled people within the quota in the amount of 20-30 minimum wages.

For violation of the current rules for hiring foreign workers and the rules for using the labor of foreigners, the employer faces a fine for citizens in the amount of 10-20 minimum wages, for officials - 25-200 minimum wages and for legal entities - 100-300 minimum wages (under Article 18.10 of the Code of Administrative Offenses of the Russian Federation).

For disobedience to the order of the body exercising state supervision (labor inspectorate), the employer faces a fine of 5-10 minimum wages for citizens and 10-20 minimum wages for officials under Art. 19.4 Code of Administrative Offences.

For failure to comply with the requirements to eliminate violations of the law, the employer faces a fine under Article 19.5 of the Code of Administrative Offenses of the Russian Federation:

for citizens - in the amount of 3-5 minimum wages;
for officials – 10-20 minimum wages;
for legal entities – 100-200 minimum wage.

General aspects

An employment contract represents a written agreement between the management of the company and the employee joining them. It necessarily contains information on the basic rights and obligations for each party.

This agreement defines the labor functions that the employee must perform while working under the established conditions, as well as the remuneration paid to him by the administration of the business entity.

All important issues that are subject to settlement by this agreement are also reflected here. The contract with the employee is signed only in writing, and it is mandatory to record the receipt of his copy.

Important! The provisions of the contract must not contradict labor legislation. Compliance with them is mandatory both for the employee himself and for representatives of the organization.

Dismissal for immoral behavior

Labor or civil legislation does not have a clear description of immoral misconduct. The presence of signs is determined by the employer independently on the basis of internal regulations and moral standards.

Immoral offenses include fighting, insults, drinking alcohol, and other actions that negatively affect others.

For dismissal under clause 8 of Art. 81 of the Labor Code of the Russian Federation requires simultaneous fulfillment of the following conditions:

Performing educational functions by a person.
Committing an immoral act.
Incompatibility of continuing educational work after committing an offense.

An example from judicial practice of dismissal for immoral behavior

A teacher fired for an immoral act appealed to the Moscow Regional Court. The essence of the offense was a constant conflict between two teachers of the Municipal Educational Institution Secondary School. During the court hearing, it was found out that teachers allowed fights and abusive mutual insults in front of students.

The court recognized the behavior as immoral and decided to reject the appeal to reinstate the teachers to work as teachers (ruling dated 04/03/2012 No. 33-6057/20120). Dismissal is carried out taking into account the deadlines established by Art. 193 of the Labor Code of the Russian Federation - no later than a month from the date of the commission of the offense.

What is actual permission to work?

It is important to take into account that labor relations in the classical sense should arise on the following grounds:

when a citizen was elected to office;
approved or appointed to a specific vacant position;
referred for employment from the labor exchange using the existing quota;
when there is a court decision obliging the employer to execute a written labor agreement with the citizen;
when a previously concluded civil law contract is reclassified into an employment contract after a trial.