Chapter 60. Consideration and resolution of individual labor disputes

In this article we will tell you what kind of dispute is considered individual, what issues it may arise on, and how to resolve it without waiting for the employee to appeal to a supervisory authority or court.

Article 381. The concept of an individual labor dispute

An individual labor dispute is an unresolved disagreement between an employer and an employee on the application of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, an agreement, a local regulatory act, an employment contract (including on the establishment or change of individual working conditions), which were reported to the body for consideration of individual labor disputes.
(as amended by Federal Law No. 90-FZ of June 30, 2006)

An individual labor dispute is a dispute between an employer and a person who previously had an employment relationship with this employer, as well as a person who has expressed a desire to conclude an employment contract with the employer, if the employer refuses to conclude such an agreement.

Discussions and deadlines

Dispute processes involve resolving the conflict of both sides of the incident through peaceful agreements. Therefore, including when filing a claim, the judge is obliged to take all means to resolve:

• Issues related to reinstatement at work and non-payment of compensation are considered within a month, for other reasons - within sixty days.
• If it is necessary to study additional evidence, taking into account the submissions of the participants in the trial, in accordance with part three of Article 152 of the Code of Civil Procedure of the Russian Federation, the judge is authorized to extend these deadlines.

It is worth knowing that a labor dispute is subject to the jurisdiction of a magistrate or district court. It all depends on the severity of the offenses against the employee or employer.

Article 383. Procedure for considering labor disputes

The procedure for considering individual labor disputes is regulated by this Code and other federal laws, and the procedure for considering cases of labor disputes in the courts is determined, in addition, by the civil procedural legislation of the Russian Federation.

The specifics of consideration of individual labor disputes of certain categories of employees are established by this Code and other federal laws.

(as amended by Federal Law No. 13-FZ dated February 28, 2008)

Article 384. Formation of commissions on labor disputes

Labor dispute commissions are formed at the initiative of workers (a representative body of workers) and (or) the employer (organization, individual entrepreneur) from an equal number of representatives of workers and the employer. The employer and the representative body of employees who have received a proposal in writing to create a labor dispute commission are obliged to send their representatives to the commission within ten days.

(Part one as amended by Federal Law No. 90-FZ dated June 30, 2006)

Representatives of the employer to the labor dispute commission are appointed by the head of the organization, and the employer is an individual entrepreneur. Employee representatives to the labor dispute commission are elected by the general meeting (conference) of workers or delegated by the representative body of workers with subsequent approval at the general meeting (conference) of workers.

(Part two as amended by Federal Law No. 90-FZ of June 30, 2006)

By decision of the general meeting of employees, labor dispute commissions can be formed in the structural divisions of the organization. These commissions are formed and operate on the same basis as the commissions on labor disputes of the organization. The labor dispute commissions of structural divisions of organizations can consider individual labor disputes within the powers of these divisions.

The Labor Dispute Commission has its own seal. Organizational and technical support for the activities of the labor dispute commission is carried out by the employer.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

The Labor Dispute Commission elects a chairman, deputy chairman and secretary of the commission from among its members.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

Which bodies are authorized to resolve specific labor disputes?

ITS between an employer and an employee can be resolved by a labor dispute commission (LCC, Commission), created in the organization on a voluntary basis. The initiators of its formation can be only the employees or their representative body, only the employer, or both of them together. The commission must consist of an equal number of representatives of one and the other party.

The commission is authorized, at the request of an employee, to consider certain categories of individual disputes: about changes to the terms and conditions previously agreed upon by the parties to the employment contract; on remuneration in cases that do not contradict the law; on the provision of guarantees and compensation payments; on the removal of disciplinary sanctions, etc.

The decision of the commission, unless the parties to the dispute have appealed it in court, is binding on both the employee and the employer. If the employer has not executed the decision within three days, the Commission may issue the employee a certificate on the basis of which its decision will be compulsorily executed by a bailiff.

Article 385. Competence of the labor dispute commission

The Labor Dispute Commission is a body for the consideration of individual labor disputes, with the exception of disputes for which this Code and other federal laws establish a different procedure for their consideration.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

An individual labor dispute is considered by a labor dispute commission if the employee, independently or with the participation of his representative, does not resolve disagreements during direct negotiations with the employer.

Topics of claims for disputes

It is impossible to imagine any proceedings without courts. The following labor disputes are subject to consideration:

• Violation by the employer of contract clauses, regulations and other documents.
• Unsubstantiated refusal of employment.
• Prejudice.
• Violation of the terms of a contract concluded with an individual (not for an individual entrepreneur), which takes into account payment.

Article 387. Procedure for considering an individual labor dispute in a labor dispute commission

An employee’s application received by the labor dispute commission is subject to mandatory registration by the said commission.

The Labor Dispute Commission is obliged to consider an individual labor dispute within ten calendar days from the date the employee submits the application.

The dispute is considered in the presence of the employee who filed the application or his authorized representative. Consideration of a dispute in the absence of the employee or his representative is permitted only upon a written application from the employee. If the employee or his representative fails to appear at the meeting of the said commission, the consideration of the labor dispute is postponed. In the event of a second failure of the employee or his representative to appear without valid reasons, the commission may make a decision to withdraw the issue from consideration, which does not deprive the employee of the right to submit an application for consideration of the labor dispute again within the period established by this Code.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

The Labor Dispute Commission has the right to call witnesses to the meeting and invite specialists. At the request of the commission, the employer (his representatives) is obliged to submit the necessary documents to it within the period established by the commission.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

A meeting of the labor dispute commission is considered valid if at least half of the members representing employees and at least half of the members representing the employer are present.

At a meeting of the labor dispute commission, a protocol is kept, which is signed by the chairman of the commission or his deputy and certified by the seal of the commission.

Professional assistance in resolving labor disputes - review of the TOP 3 law firms

Advice on labor disputes is provided by law firms or private lawyers. Clients have access to remote services online.

I offer an overview of 3 companies that I think are best suited for this role.

1) Lawyer

This Russian Internet company provides online legal services. Consulting is also actively used. It is given both orally and in writing. Independent lawyers from all over Russia cooperate with the Pravoved portal. You can use their services wherever you have access to the Internet. It’s easy to get advice from Lawyer’s staff. It is enough to know how to use a computer.

Algorithm for obtaining consultation:

1. We go to the Lawyer's website.
2. Find the feedback form.
3. Introduce yourself and write your email address.
4. We ask our question or state the problem.
5. We pay for the service.
6. We are waiting for an answer.
7. We use the recommendations received in practice.

Free consultations are also available, but they are of a general nature. The company's lawyers will even help you draw up a statement of claim or appeal to the CCC. To do this, you need to agree on such a service through the Lawyer portal.

2) Legal assistance center

This company employs lawyers with over 9 years of experience who graduated from prestigious Moscow universities. On the site you can also get free advice on any legal issues. The feedback form is located right on the main page.

It is noteworthy that more than half of all cases are resolved by specialists pre-trial, which significantly reduces costs and speeds up the entire process. The very fact of a lawyer from such a company coming to your manager will reduce the time required to resolve a labor dispute to a minimum.

3) Law and order

The lawyers of this company resolve labor disputes on which they have not reached a consensus in the organization. Our employees specialize in labor law, so they have very useful experience.

What lawyers can help you decide:

The cost of services in this company does not exceed 15 thousand rubles, the first consultation is free.

Article 388. The procedure for making a decision by the labor dispute commission and its content

The labor dispute commission makes a decision by secret ballot by a simple majority of votes of the commission members present at the meeting.

The decision of the labor dispute commission shall indicate:

the name of the organization or the surname, name, patronymic of the employer - an individual entrepreneur, and in the case when an individual labor dispute is considered by the labor dispute commission of a structural unit of the organization - the name of the structural unit, surname, name, patronymic, position, profession or specialty of the employee who applied to the commission ;

(as amended by Federal Law No. 90-FZ of June 30, 2006)

dates of application to the commission and consideration of the dispute, the substance of the dispute;

last names, first names, patronymics of commission members and other persons present at the meeting;

the essence of the decision and its justification (with reference to the law, other regulatory legal act);

Voting results.

Copies of the decision of the labor dispute commission, signed by the chairman of the commission or his deputy and certified by the seal of the commission, are handed over to the employee and employer or their representatives within three days from the date of the decision.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

Customer Reviews

Gratitude to Pavlyuchenko I express my gratitude to Alexander Viktorovich Pavlyuchenko for the qualified management of my case, competent advice and informed decisions, which led to compensation for all claimed losses.

Best regards, Evgeny Nevinchany

Letter of thanks

Gratitude from Busygin A.I. I express my gratitude to Vasily Anatolyevich Kavalyauskas for the qualified management of my case, competent advice and justification for the decision, which led to compensation of the stated claims.

Sincerely, Busygin Alexander Ivanovich

26.12.2017

Gratitude from Volkova N.E. I express my gratitude to Vasily Anatolyevich for his professional and competent assistance in resolving the issue of protecting my consumer rights. As a result, I received decent compensation from. Thank you!

Volkova N.E. November 30, 2018

Gratitude from Potapova T.I. I express my gratitude to Denis Yuryevich Stepanov for the work done, high qualifications, as well as for very clear, accessible help in solving my problem (protection of consumer rights). Excellent, very competent lawyer. Thank you very much!

Sincerely, Potapova Tamara Ivanovna, 07/09/2019

Gratitude I express my deep gratitude to lawyer Konstantin Vasilyevich for his attentive, kind, and, most importantly, very clear and competent explanation of my situation. It's nice to know that the world is not without good people. I wish Konstantin Vasilyevich good health, success in everything, prosperity, good, grateful clients and all the best. Sincerely.

Gratitude from Tunnova L. Sergey Vyacheslavovich! Thank you for the qualified advice you provided regarding my question in the field of consumer protection (dispute with TC OPT, the kitchen was not delivered)

Lyubov Tunnova December 12, 2018

Gratitude from Volkotrub Yuri Vasilyevich Thank you very much for the quality advice on the issue that interests me. With best wishes to Denis Yuryevich Stepanov, who advised me.

Volkotrub Yuri Vasilievich

Gratitude from Evgeniy N. I express my gratitude to Alexander Viktorovich Pavlyuchenko for the qualified management of my case, competent advice and informed decisions, which led to compensation for all claimed losses.

Sincerely, Evgeniy N., November 17, 2017

Gratitude to Vasily Anatolyevich Dear Lyubov Vladimirovna.

I would like to express my gratitude to Vasily Anatolyevich for his competent legal assistance in solving my difficult case. I wish you and your company further prosperity and success in your hard work.

From the bottom of my heart and with best wishes. 05/03/2018

Article 389. Execution of decisions of the commission on labor disputes

The decision of the labor dispute commission is subject to execution within three days after the expiration of the ten days provided for appeal.

In case of failure to comply with the decision of the labor dispute commission within the established period, the specified commission issues the employee a certificate, which is an executive document. An employee can apply for a certificate within one month from the date of the decision of the labor dispute commission. If an employee misses the specified period for valid reasons, the labor dispute commission may restore this period. The certificate is not issued if the employee or employer applied within the prescribed period to transfer the labor dispute to the court.

(Part two as amended by Federal Law No. 90-FZ of June 30, 2006)

Based on the certificate issued by the labor dispute commission and presented no later than three months from the date of its receipt, the bailiff enforces the decision of the labor dispute commission.

If an employee misses the established three-month period for valid reasons, the labor dispute commission that issued the certificate may restore this period.

How to avoid labor disputes - 5 useful tips for employers

Practice in labor disputes shows that not only the employee, but also the employer suffers from them. Often he himself provokes their occurrence due to poor knowledge of the law. This entails losses for the organization, since court decisions must be executed. A justified complaint to the labor inspectorate does not bode well.

To avoid such misunderstandings, employers need to heed some helpful advice provided by employment lawyers.

Tip 1. Pay for processing as required by law

Any overtime work must be paid at time and a half, and from 3 hours - at double rate. Do not ignore this provision of the law. If it is not possible to pay, write down a clause on irregular working hours in the employment contract. In this case, the employee is given additional days of vacation.

Tip 2. Follow the procedure for inviting an employee to work overtime

Please note that if you did not give a written instruction to the employee, then all of his processing is his initiative, for which you do not need to pay. But if he proves otherwise, he will have to fork out the money. Therefore, if you periodically need to involve employees in work beyond the established time, issue a written order and pay for the work as expected. Or use tip 1.

Example

Anna Vasilyeva worked in one of the government agencies as an ordinary specialist. There was a lot of work, but few employees. It was not always possible to get everything done during working hours. The boss didn’t let anyone leave work until everything was done. Nobody paid any overtime, although the employees stayed until 9-10 pm.

Anna went to court, but she was denied, since she could not provide any written orders. After this, all employees demanded either that the overtime be documented or that irregular working hours be stipulated in their employment contracts. The boss leaned towards the second option.

Tip 3. Do not hire new employees for reduced positions

If you fired someone due to staff reduction, then the reduced positions should not appear again. After all, then the dismissal would be illegal. This means that you cannot hire other employees into the same positions from which you have just fired others. If you appeal your decision to a court or labor committee, the labor dispute will be resolved in favor of the employee.

Tip 4. Notify employees about changes in working conditions in a timely manner

If you are going to change the working conditions of your employees in your company, they should know about it in advance. The notification is made in writing and confirmed by the seal of the organization.

Employees need to be given enough time to think about the innovation. Otherwise, if a dispute arises after an inspection by the labor inspectorate, your actions will be declared illegal.

Tip 5. Follow the procedure for paying bonuses

The procedure for awarding bonuses to employees in the organization is approved in writing, and all employees must be familiar with this document. You cannot deviate from it when making decisions. If an employee is deprived of a bonus, this is reflected in a reasoned order. The size of the bonus is also specified in orders for each employee separately, if it is not the same for everyone.

That's all for me, and now I suggest you watch a thematic video.

Article 391. Consideration of individual labor disputes in the courts

The courts consider individual labor disputes at the request of an employee, employer or trade union defending the interests of the employee, when they do not agree with the decision of the labor dispute commission or when the employee goes to court without going through the labor dispute commission, as well as at the request of the prosecutor, if the decision labor dispute commission does not comply with labor legislation and other acts containing labor law norms.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

Individual labor disputes are considered directly in the courts based on applications:

employee - about reinstatement at work, regardless of the grounds for termination of the employment contract, about changing the date and wording of the reason for dismissal, about transferring to another job, about payment for forced absence or about payment of the difference in wages for the time of performing lower-paid work, about unlawful actions ( inaction) of the employer in the processing and protection of the employee’s personal data;

(as amended by Federal Law No. 90-FZ of June 30, 2006)

employer - on compensation by the employee for damage caused to the employer, unless otherwise provided by federal laws.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

Individual labor disputes are also heard directly in the courts:

about refusal to hire;

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

(as amended by Federal Law No. 90-FZ of June 30, 2006)

persons who believe that they have been discriminated against.

Duration of consideration in court

Absolutely any ITS can be brought to court bypassing the CCC, and individual disputes, as noted above, are considered only by the courts. The nature of the requirements affects not only jurisdiction, but also the time frame for resolving cases by judges.

Terms of consideration

The legal process always comes down to two components: review and resolution. Consideration, in general, involves examining the circumstances of the dispute. Resolution – their legal assessment, determination of the consequences of the parties’ actions, decision-making. Each requires the performance of certain actions, regulated by procedural law, covering the preparation of the case, conducting the process, and making a decision. All of them must be completed within a strictly defined time.

For claims based on an employment relationship, the following deadlines apply:

• five days;
• month;
• two month.

All of them are calculated from the date of receipt of the appeal to the judicial authority. In this regard, the procedure for determining the period allotted to the courts differs from the period for consideration of the CCC.

Time limits for resolving certain categories of disputes

Five days are allotted for judges to issue a court order - a resolution obliging a person to pay the employee money, which has the force of a writ of execution. An order is issued if the amount of the debt does not exceed half a million rubles, and the debt itself represents remuneration accrued but not paid to the employee or compensation for delay in its payment. An order can force the employer to pay not only wages, but also any other funds the right to receive is conditional on the work.

When resolving the employee’s application, the court does not examine the labor conflict, since there is no substance to it; the parties do not argue about the right to the money, because the funds have already been accrued. Writ proceedings are a mechanism for forced collection. This circumstance determines the short period for issuing an order, since the judge only needs to formally check the grounds indicated and documented by the employee, and for this there is no need to take into account the employer’s objections, request any documents or take other actions.

A special category of cases consists of citizens’ demands to reinstate them at work. The social significance of the issue, due to the negative consequences of an illegal decision of the administration, because as a result a person is deprived of his source of livelihood, is the basis for establishing the optimal period for consideration of the application, equal to one month.

Other conflicts in labor relations must be resolved by a judge within two months.

Change of dates

Unlike the consideration of disputes by the CCC, the procedure for resolving an application in court provides for the possibility of extending the period for consideration of the dispute. The substance and nature of the requirements do not limit the judge in this matter. The only criterion is the complexity of the case.

Simple cases, properly prepared and not requiring additional actions, are resolved within a two-month period. Complex – require more time to prepare for the hearing. In this case, the judge is given the right, taking into account the opinions of the parties to the dispute, to go beyond the prescribed time, decide what additional actions need to be taken, set a deadline for their implementation and reflect it in a separate ruling. The total period for disposing of the case will include the period established by law and the time allotted by the judge to prepare the case.

It was noted above that the request for reinstatement must be considered within one month. In practice, additional demands are simultaneously made, in particular, for payment during unemployment, such a demand is considered within a total period of two months. There is a conflict of deadlines. In practice, two different approaches are used to resolve it. According to the first, a shortened term will be applied to such a compound case, since it is established by a special norm of the Code of Civil Procedure of the Russian Federation, and they have priority over general norms. The second allows you to consider the dispute within two months, since the complexity of the case increases, which involves taking additional steps to establish the circumstances, although it infringes on the interests of the dismissed employee.

A claim received by a judge must be assessed and accepted for proceedings within five days. The fact of initiating a case is fixed by a ruling. In some cases, the judge may immobilize the application and set a deadline for eliminating the shortcomings that served as the basis for this. If the instructions are completed on time, the beginning of the period does not change; the time allotted for correction is not taken into account.

The specific period allotted for eliminating deficiencies is not defined by law; it refers to the time limits set by the judge, therefore, by virtue of Art. 111 of the Code of Civil Procedure of the Russian Federation may be extended. To make such a decision, valid reasons are required that prevent the execution of the determination within the allotted time. The issue is resolved by the judge without holding a meeting or calling the participants in the case. The new term is also not taken into account as part of the total period of legal proceedings.

Article 392. Time limits for applying to court for resolution of an individual labor dispute

On the refusal to accept for consideration a complaint about a violation of constitutional rights by the provision of part one of Article 392 due to the fact that the complaint does not meet the requirements of admissibility, and the resolution of the issue raised in it is not within the jurisdiction of the Constitutional Court of the Russian Federation, see the rulings of the Constitutional Court of the Russian Federation dated July 12, 2005 N 312-O and dated December 20, 2005 N 482-O.

An employee has the right to go to court to resolve an individual labor dispute within three months from the day he learned or should have learned about a violation of his rights, and in disputes about dismissal - within one month from the date he was given a copy of the dismissal order or the day of issue of the work book.

The employer has the right to go to court in disputes regarding compensation by the employee for damage caused to the employer within one year from the date of discovery of the damage caused.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

If, for good reason, the deadlines established by parts one and two of this article are missed, they may be restored by the court.

Causes of labor disputes

All causes of labor disputes can be divided into two types: objective and subjective.

Article 394. Making decisions on labor disputes regarding dismissal and transfer to another job

(as amended by Federal Law No. 90-FZ of June 30, 2006)

If dismissal or transfer to another job is recognized as illegal, the employee must be reinstated in his previous job by the body considering the individual labor dispute.

The body considering an individual labor dispute makes a decision to pay the employee the average salary for the entire period of forced absence or the difference in earnings for the entire period of performing lower-paid work.

At the request of the employee, the body considering an individual labor dispute may limit itself to making a decision to recover in favor of the employee the compensation specified in part two of this article.

If the dismissal is declared illegal, the body considering the individual labor dispute may, at the request of the employee, decide to change the wording of the grounds for dismissal to dismissal of one’s own free will.

If the wording of the grounds and (or) reasons for dismissal is recognized as incorrect or not in accordance with the law, the court considering an individual labor dispute is obliged to change it and indicate in the decision the grounds and reasons for dismissal in strict accordance with the wording of this Code or other federal law with reference to the relevant article , part of an article, paragraph of an article of this Code or another federal law.

If the dismissal is declared illegal and the term of the employment contract has expired at the time the dispute is being considered by the court, then the court considering the individual labor dispute is obliged to change the wording of the grounds for dismissal to dismissal upon expiration of the employment contract.

If, in the cases provided for by this article, after declaring the dismissal illegal, the court makes a decision not to reinstate the employee, but to change the wording of the grounds for dismissal, then the date of dismissal must be changed to the date of the court’s decision. If, by the time the said decision is made, the employee, after a contested dismissal, has entered into an employment relationship with another employer, the date of dismissal must be changed to the date preceding the day of commencement of work for this employer.

If the incorrect formulation of the grounds and (or) reasons for dismissal in the work book prevented the employee from taking another job, then the court decides to pay the employee average earnings for the entire period of forced absence.

In cases of dismissal without legal grounds or in violation of the established procedure for dismissal or illegal transfer to another job, the court may, at the request of the employee, make a decision to recover in favor of the employee monetary compensation for moral damage caused to him by these actions. The amount of this compensation is determined by the court.

Organ categories

Some citizens do not quite understand where exactly they need to go with their complaints. Specific bodies deal with specific cases:

• Magistrate's Court. Considers claims of illegal transfer to another job, unsubstantiated refusal to employ an applicant. If an employee with the necessary qualifications was transferred to a position that does not require any special training, this is a pretext for filing a claim.
• Regional court. Considers appeals on claims that were previously dealt with by magistrates. These are cases of reinstatement, incorrect employment records, forced resignation and payment of money. They also deal with cases related to delays, non-payment, incorrect calculation of wages, and also compensation for moral damage. The district court also receives claims from employers seeking compensation for damages caused by workers.
• Supreme, regional and regional courts. They make decisions on cases regarding the legality of strikes. These authorities deal with appeals in cases previously considered by other district courts.