How to prove in court the fact of labor relations in the absence of an employment contract

Grounds for going to court

Labor relations without official registration allow employers to save on insurance premiums and income tax, and employees to receive a salary without withholding personal income tax. But such attractive working conditions immediately lose their advantages when the employee is fired without explanation. In such a case, to protect your rights you will have to go to court, since trade unions and the labor inspectorate are not authorized to accept complaints from unofficially working citizens.

The most common reason for filing a claim for recognition of labor relations is non-payment of wages.

Also, a lawsuit can be initiated on the basis of:

• wrongful disciplinary action;
• deprivation of bonuses and compensation payments;
• refusal to grant regular or study leave;
• deviation of the certificate of incapacity for work.

What exactly needs to be proven

Natalia

Labor expert

The Supreme Court of the Russian Federation, in Resolution No. 2 of March 17, 2004, explained exactly what circumstances indicate the existence of an employment relationship between an organization or individual entrepreneur and an employee.

Such circumstances include:

• Personal performance of a labor function by a citizen;
• Performing the specified function for a fee;
• Submission to the rules of the VTR;
• Providing the employer with working conditions.

All these circumstances indicate that it is labor relations, and not civil legal relations, that have developed between the two persons. And the labor legislation of the Russian Federation should be applied to them.

Signs of an employment contract

According to the explanations of the Supreme Court of the Russian Federation, when identifying the existence of an employment relationship, the court must rely not only on the execution of the contract, but also on the presence of signs of an employment relationship under Art. 15 and 56 of the Labor Code of the Russian Federation, the implementation of admission of a citizen to perform labor duties.

Characteristic signs confirming the fact of their conclusion are:

1. agreement on the performance of a specific list of functions in the interests and under the management of the employer;
2. employee compliance with internal regulations and work schedule;
3. availability of working conditions;
4. payment for functions performed;
5. stability of the relations between the parties;
6. establishing subordination and dependence of labor;
7. performance of labor functions exclusively in accordance with a certain qualification, specialization or position;
8. execution of the employer's instructions;
9. inclusion of the employee in the employer’s organizational structure;
10. observance of the rights to days off every week and vacation every year;
11. payment by the employer of expenses incurred on work trips;
12. receipt by the employee of periodic payments that are his main or only source of income;
13. receiving supplies from the employer.

The presence of at least one of the listed signs is the basis for filing a claim in court for the protection of labor rights.

Working without an employment contract

After successfully passing the interview, an employment contract must be concluded with the employee. This document specifies such important conditions as:

• Labor function of the employee;
• His place of work;
• The date from which the employee must begin performing his duties;
• Conditions and amount of salary;
• Operating hours, and others.

If an agreement with the employee was not concluded immediately before the start of work, then the employer must sign it within 3 days from the date the employee began performing his work activity.
Natalia

Labor expert

However, in practice it often happens that the employee continues to work without a contract, or a civil contract is signed with him. Both must be unacceptable for the employee, since as a result he is deprived of all the guarantees provided to him by the current labor legislation of the Russian Federation.

Possible evidence

When considering a dispute about establishing the fact of labor relations, the court has the right to take into account any evidence that does not contradict procedural legislation.

These include:

1. availability of a personal pass to the employer’s territory;
2. recording the plaintiff’s data in the log of registration of arrival and departure for work;
3. HR documents: shift schedules, work schedules, vacation schedules, assignments on business trips, agreement on financial responsibility, etc.;
4. any documents confirming the fact of remuneration: payslips and statements of issuance of financial resources, information on transactions to the employee’s account, etc.;
5. documentary evidence of business activities: invoices containing the signature of the dismissed person, invoices, cash books about revenue, waybills, etc.;
6. correspondence with the employer, including via email and SMS;
7. audio/photo/video materials confirming the fact of labor relations.

The list may be supplemented depending on the specific situation.

I work for an individual entrepreneur without an employment contract

Most often, individual entrepreneurs violate the requirement to conclude employment contracts with employees. There can be many reasons for this, from banal legal illiteracy to the desire to avoid large taxes.

At the same time, the law does not contain any concessions for this category of employers. And, just like legal entities, they are obliged to draw up employment contracts with each employee allowed to perform a labor function.

If a citizen working for an individual entrepreneur has encountered a violation of his rights related to the conclusion of an employment contract, he should adhere to the algorithm of actions set out in this article.

How to prove that you worked if there is no employment contract - step-by-step instructions

Before going to court, you should carefully prepare to protect your interests. To do this you need:

• Prepare documentation confirming the fact of the employment relationship. The main condition is the signature of the employee and/or employer.
• Submitting a written application to the employer with a requirement to respect the rights of the employee (making an entry about dismissal in the work book, issuing wages and other types of payments, etc.). The document is drawn up in free form, indicating the details of the parties and the requirement for the employer. You also need to indicate the intention to go to court if there is no positive decision within a specific time (specify the waiting period), date and signature. The application can be submitted in person (in this case, you will need a second copy, on which we will put a mark of acceptance) or sent by mail (by registered mail with notification of acceptance and a list of attachments).
• Find witnesses who agree to confirm the fact of an employment relationship - the performance of certain functions and stay at the workplace for a specific period of time.
• Submit the claim to the magistrate or district court at the place of registration of the employer. Jurisdiction can be changed at the request of the plaintiff in accordance with Art. 29 Code of Civil Procedure of the Russian Federation.

How to prove the fact of work in unofficial employment?

Hello, Ld

In general, the court may recognize the existence of an employment relationship if the employee has testimony from officially employed colleagues-witnesses confirming periods of work under a specific regime, and documents proving the completion of tasks in favor of the employer. The employer is guaranteed victory only when the employee unfoundedly convinces the court that he works for the company. In other words, he has neither documents signed by the director, nor correspondence on work topics (including email), nor convincing witnesses. Below - more about some of the evidence. Medical examination The mere fact of undergoing a medical examination when applying for a job does not mean automatic employment and does not guarantee it (decision of the Vuktyl City Court of the Komi Republic dated November 1, 2011 in case No. 2-720/2011, determination of the Supreme Court of the Udmurt Republic dated May 31, 2012 No. 33- 1642/2012). Despite failing to pass the medical examination, the citizen insisted that the employment had taken place, submitting a referral for a medical examination. The employer's representative in court stated that employees are allowed to work in the restaurant only after a medical examination and then an employment contract is concluded. The employee received a referral to a medical commission, did not object to the examination, but did not appear for it, which means he had no intention of finding a job. Since the employee did not have evidence of admission to work and its performance in accordance with the PVTR, the court refused to satisfy his demands (ruling of the St. Petersburg City Court dated November 11, 2014 in case No. 33-17011/2014). However, if, in addition to the medical examination documents, the fact of work is also confirmed by convincing testimony from witnesses, there is a good chance that the claim will be satisfied. Witnesses can be relatives of employees who visited them at work, friends of employees, their colleagues and even visitors to establishments where they worked unofficially (appeal ruling of the Tomsk Regional Court dated October 11, 2013 in case No. 33-2798/2013). But the employee’s participation in periodic medical examinations can serve as good evidence of his employment. Thus, in one case, the fact of the driver’s work was confirmed not only by waybills, but also by a certificate of pre-trip medical examinations, which was issued by the organization with which the employer entered into a corresponding agreement. As a result, the court of second instance recognized the relationship as labor (decision of the Supreme Court of the Republic of Bashkortostan dated March 19, 2015 No. 33-2478/2015). In another case, important evidence in favor of an employee was a list of employees sent for periodic medical examinations. It was certified by the seal of the medical organization and the signature of the responsible person and contained the full name of the employee (determination of the Primorsky Regional Court dated November 10, 2014 No. 33-9499). Since regular medical examinations are carried out only with employees, the courts accept them as evidence of employment. Photo and video recording To confirm the fact of working in an organization, citizens use photo and video recordings. BUT it is unlikely that the court will take them into account as evidence if: it is unknown who and when these materials were made (it wouldn’t hurt to announce the time and place of recording during recording); they involve the absence of an employee in a work environment and (or) surrounded by colleagues; the company does not carry out work at the specified facility, does not rent space on it (subject to documentary evidence); the materials do not confirm the performance of a specific job function and compliance with labor regulations in a specific period of time. The court may side with the employer, even if the citizen, demanding to be recognized as an employee, attaches photographs against the background of the company’s products or with advertising leaflets (ruling of the Ivanovo Regional Court dated July 21, 2014 No. 33-1510/2014). This is natural, because he could be a buyer, a random person passing by. But if the photo or video showed an image of an employee in company uniform, and even in the performance of duties, then the court could well have had a completely opposite opinion. Photos from corporate events in which the employee is captured with recognizable company faces can provide additional evidence of his employment. Thus, in one case, the employee presented a number of documents, including powers of attorney, invoices, travel tickets with his name, company details, signatures of its officials, as well as a photograph from a corporate event, where he was depicted together with the director and founder of the company. The court took them all into account and sided with the employee (ruling of the Penza Regional Court dated December 9, 2014 No. 33-3087/2014). Video recordings of the employer's premises are not primary evidence of the existence of an employment relationship. The courts also examine them only in conjunction with other circumstances. This is natural, because you could be in the premises not for work, to visit friends, for example. Therefore, without confirmation of the fact that work was performed with the knowledge or on behalf of the employer, or his authorized person, such a video recording will clearly be insufficient (appeal rulings of the Supreme Court of the Republic of Buryatia dated 09/04/2013 in case No. 33-2862/2013, Kemerovo Regional Court dated 07/28/2015 in the case No. 33-7754/2015). Documents When trying to confirm employment with a company, employees will present various documentary evidence to the court. But not every document will be considered reliable and sufficient evidence by the court. In one case, the plaintiff presented the court with an employment contract, sealed with a facsimile signature of the head of the organization. At the same time, she explained that she received the employment contract by email, after which she printed it out and executed it using a facsimile. Since the employer did not dispute the presence of such a seal, the trial court recognized this agreement as admissible evidence. But the court of second instance considered that the independent execution of a two-sided document and the absence of the manager’s personal signature in it meant that the employer did not take actions aimed at concluding an employment contract with the citizen. The employee did not have other evidence worthy of attention and the fact of work was not proven (appeal ruling of the St. Petersburg City Court dated December 16, 2014 in case No. 33-19710/2014). Employees use every opportunity. They present to the court their remaining sales receipts, expense orders, invoices with the company seal, contracts and lists of legal entities and individual entrepreneurs with whom the employer has contractual relations, etc. In addition, the employee can bring a mobile phone SIM card to the court operator and details of the communication services provided. If they confirm that telephone conversations were conducted with contractors, partners and clients, then the employee’s chances of winning will increase. True, this will happen only if all this evidence is consistent (appeal ruling of the Omsk Regional Court dated November 12, 2014 in case No. 33-7430/2014). That is, the more evidence, the better, but think in advance whether the employer’s representative will somehow be able to twist the case so that some of your evidence contradicts others. Otherwise you will harm yourself. Email correspondence and social networks. An important proof of employment is electronic correspondence between the employer and employee. Thus, in one case, despite the failure to formalize an employment contract, correspondence became the main evidence of the emergence of an employment relationship. In his letters, the employer used the terminology of labor legislation, indicated the payment of wages and the possibility of dismissal during the trial. Also, via mail, the employee was assigned certain work. The employer tried to refer to the civil nature of the relationship, but the court rejected his arguments, pointing out the presence of the following essential circumstances: monthly fixed salary, availability of a workplace, compliance by the employee with work regulations, fulfillment of the employer’s instructions, etc. (determined by the St. Petersburg City Court dated April 12, 2012 No. 33-4991/2012). In addition to emails, employees provide correspondence on social networks as confirmation of their employment relationship. This is still unusual evidence, but recently courts are increasingly taking it into account. For example, the Novgorod Regional Court took into account the correspondence of an employee on social networks, including clients, from the content of which it was clear that the plaintiff was in an employment relationship with the employer. The employee’s final victory in court was brought by witness testimony and documents, namely a badge indicating his full name as a representative of the employer, contracts with clients indicating the employee as a contractor (appeal ruling dated April 29, 2015 in case No. 33-883/2015). By the way, detailed conversations are one of the types of evidence in favor of the employee. Courts accept it as evidence of work in the company along with other documents and testimony of colleagues. If the judge is of the old school, it will be difficult to explain to him about social networks and the peculiarities of relationships in them. The employer will probably claim that all your correspondence is forged and has no signs of authenticity. However, a printout of conversations from a social network is quite serious evidence, which should also be assessed by the court. Evidence from third parties In one of the cases, the director of a recruitment agency spoke in court, who confirmed that the employer had entered into an agreement with him to provide services for the search and selection of personnel, and in accordance with the agreements, the agency sent the employee to the organization for employment. The totality of these certificates became the basis for satisfying the employee’s claim (determination of the Supreme Court of the Republic of Khakassia dated August 26, 2014 No. 33-2037/2014). The employer sent staff to another company in pursuance of a civil contract, and then avoided formalizing the employment contract and paying wages. Such disputes end in court. An agreement was concluded between the client and the employer for the provision of security services. The employee worked at the client’s site for several months and received a certificate from him (broken down by month) about how long he worked. He also presented the duty schedules of the employer’s employees; The information coincided with the information from the certificate. The fact of work was confirmed by a colleague. As a result, the court recognized the relationship as an employment relationship and recovered the unpaid wages and compensation from the company in favor of the employee (determination dated October 21, 2014 No. 33-4489/2014).

How to file a claim

The statement of claim is drawn up according to the general rules in accordance with Art. 131 Code of Civil Procedure. In addition to the required data (details of the parties, date and signature), you must also indicate:

1. work start date;
2. description of job responsibilities with an established schedule;
3. information about receipt of wages and other payments - frequency, amount and method of issuance;
4. date and basis for termination of the employment relationship.

You also need to indicate your requirements:

1. establishing the fact of labor relations;
2. making an entry in the work book;
3. individual requirements - payment of wages, compensation for moral damage and legal costs, etc.

The claim must be accompanied by all documents confirming the existence of an employment relationship, including the employer’s response to the application.

Note! Written evidence takes precedence over audio because speech recognition is a separate job.

Our lawyers will help you file your claim. Contact form at the end of the article.

Salary

When considering cases of recovery of wages based on the claims of employees whose labor relations are not formalized in accordance with the procedure established by law, the courts should take into account that in the absence of written evidence confirming the amount of wages, the court has the right to determine its amount based on the usual remuneration of an employee of his qualifications in given locality, and if it is impossible to establish the amount of such remuneration - based on the amount of the minimum wage in the constituent entity of the Russian Federation (Part 3 of Article 37 of the Constitution of the Russian Federation, Article 1331 of the Labor Code, paragraph 4 of Article 1086 of the Civil Code).

How to confirm the income of an individual entrepreneur?

The issue of income confirmation is also relevant for individual entrepreneurs. After all, they have neither a salary nor an employer who could issue a certificate of its amount. Therefore, other documents will be required as proof of financial solvency:

1. Certificate 3-NDFL (tax return).
2. Extract from the Unified State Register of Individual Entrepreneurs.
3. Statement showing the movement of funds in a bank account.

When it comes to issuing a large loan like a mortgage, banks often request additional documentation (book of income and expenses, balance sheet). For bankers, it is important that the profit is clean, and the businessman can, if necessary, explain the details of a particular entry.

Evidence: what and where to get it

The claim will need to be accompanied by all documents that in one way or another can confirm your words.

Above, we already advised you to obtain the documents in which you signed during the work process. This could be: a sales book, invoices, documents confirming your receipt of money (from clients or wages), powers of attorney, orders and other similar documents.

In addition, it is worth thinking about other, indirect evidence. For example, you were issued a pass to the premises of a business or shopping center where your workplace was located. If you are not provided with such information, you can ask the court to request the information. It is also possible that you received and handed over the keys to the work premises during your shift and signed for their receipt and delivery. All possible evidence will be useful.

It is worth preparing witnesses in advance. But first you need to find them. Witnesses should be looked for among: colleagues (who, however, rarely agree to this), clients of the company, people from neighboring offices/departments in the store.

For example, the client’s testimony that he constantly saw you at work would be very good. Or neighbors in a department at a store that they saw you at work every working day. These individuals can confirm your work schedule. In addition, you can look for witnesses among other people: for example, your spouse drove you to work every morning.

All documents are submitted in copies. In addition to the above, you must attach to the claim a receipt for payment of the state fee and a copy of the representative’s power of attorney (if there is one).