Statement of claim to establish the fact of labor relations: sample 2021

Key points for applying

When there are problems with the recognition of the plaintiff’s completed activities in a specific organization, a statement of claim is prepared aimed at establishing the fact of the existing labor relationship. The following recommendations should be taken into account when preparing it:

• The filing is made directly to the court of district or city subordination at the current legal address of the defendant. If the employee carried out work not in the main office, but in its separate branch, the appeal is submitted at the place of work of the plaintiff;
• What is noteworthy is that the employee himself, who decides to appeal on this issue, is exempt from all possible expenses in the case; they are assigned to the defendant;
• The collection and preparation of evidence at the time of filing a claim lies with the plaintiff; it is advisable to first check the relevance of the submitted documents, which could confirm the very fact of employment in a given place. If it is not possible to collect all the required documents in an informal way, you will need to submit a corresponding application, which is drawn up separately from the claim for recognition of the fact of labor relations, regarding the release of data related to the plaintiff’s activities;
• It is important to contact the labor inspectorate before submitting such an application, which is a very practical solution and this approach is justified. The inspector can check the presence of unregistered persons employed at work (based on data available in the employer’s archives), which will help collect the required evidence base on this issue;
• As practice shows, the main requirements specified in the prepared document are the recovery of wages (withheld from payment as a result of the defendant’s unlawful actions), subsequent reinstatement to the previous job. To successfully represent your interests at a court hearing, it is recommended that you familiarize yourself with other information aimed at quickly resolving labor conflicts.

What should be indicated in the statement of claim

The structure of the statement of claim to establish the fact of employment does not differ from other court documents. When drawing up the paper, the plaintiff will have to indicate the following information:

• name of the judicial authority to which the document is sent;
• Full name and residential address of the plaintiff;
• Full name and registered address of the defendant;
• legislative norms serving as the basis for filing a claim;
• requirements for the court;
• arguments and evidence in favor of the plaintiff;
• the cost of the claim;
• a request to involve eyewitnesses who are able to confirm the fact of the applicant’s employment;
• date of application and signature.

When filling out the paper, an illegal employee should highlight the following key signs of the existence of an employment relationship:

• the fact of performing official duties or functions on a permanent or systematic basis;
• receiving payment from the employer for performing certain tasks;
• the person, while in illegal employment, was subject to internal rules and other local norms;
• The management of the organization provided the employee with a workplace and tools to perform immediate duties.

The fact that the plaintiff’s position is on the staff list will also be a good argument in court.

How to prove the absence of an employment relationship?

The presence of an employment relationship is associated with numerous additional payments in favor of the employee - vacation pay, benefits, and the like. By proving the absence of a relationship, specifically an employment relationship, the employer can get rid of these additional expenses.

The absence of an employment relationship may be indicated by:

A note in the contract with the employee that he is not obliged to perform the duty personally

1. Performing part of the work by a third party for the employee
2. “free” employee work schedule
3. Dependence of remuneration for work only on the result (for example, drawing up one contract - one thousand rubles)
4. Absence of any mention of the employee in all internal company documentation (hiring order, staffing table, familiarization with the job description, etc.)
5. Transfer of remuneration with the purpose of payment - “according to agreement No. .....” (in no case “salary”)
6. Lack of requirements (even verbal) for the employee to comply with the work schedule, clothing style, etc.
7. No income tax payment for an employee
8. There is no connection to the place where the duty is performed - the employee has the right to choose where he will perform the duty under the contract

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What evidence can there be of an employment relationship?

So, you filed a claim and filed a lawsuit. And now you’re asking yourself a very reasonable question: what to provide as proof of your work?

1. any documents where you put your signature (invoices, various statements, powers of attorney and other similar papers);
2. if you were ordered a pass to an enterprise or your arrival and departure was recorded in a log, then you will need to take an extract from it;
3. correspondence by e-mail (and not only) with employees or clients of the company on work matters;
4. work schedules with your name and signature;
5. witness's testimonies. Not only your colleagues, but also clients who observed you at work can act as witnesses. You can also go around neighboring offices and invite their employees as witnesses. They saw you every day and will be able to confirm your presence at work.

If you have difficulties collecting written evidence (for example, the employer refuses to issue the necessary documents), you have the right to write a petition about this fact to the court. And the employer will be obliged to do this.

Statement of claim to establish the fact of labor relations

Such an application is subject to consideration exclusively in the district court. At the same time, you can apply at the choice of the employee either at his place of residence or at the address of the employer. It is necessary to note that this requirement is derived from the main one - for example, collection of wages, benefits, and so on.

An additional guarantee for the employee in this case is exemption from all costs. That is, filing a claim is not subject to state duty.

Despite the fact that such a statement is aimed at establishing an employment relationship, part of the evidence confirming the work should be attached to the statement itself. If the employee previously filed a complaint with the labor inspectorate against the employer, the results of this inspection can also serve as separate evidence in the case.

Expert opinion

Semenov Alexander Vladimirovich

Legal consultant with 10 years of experience. Specializes in the field of civil law. Member of the Bar Association.

State duty

Expert opinion

Novikov Igor Timofeevich

Legal consultant with 6 years of experience. Specializes in the field of civil law. Law teacher.

When considering the issue of the amount of state duty, we should again return to the differences between claim and special proceedings. In accordance with domestic legislation, labor disputes are not subject to state duty upon filing.

However, statements to establish the fact of labor relations do not belong to the category of labor disputes, but relate exclusively to issues of recognition by the state of a certain fact of legal significance.

Due to this application, the type considered in the article must be paid a state fee in the amount of 300 rubles upon submission.

Establishing the fact of an employment relationship is usually required in the following cases:

reinstatement at work in case of wrongful dismissal (read about the dismissal procedure here, reinstatement here);

collection of unpaid wages;

compensation for various types of damage caused to an employee during the performance of his work duties;

compensation for moral damage, etc.

From what moment can the fact of an employment relationship be established?

Article 67 of the Labor Code obliges the employer to enter into a written employment contract with a new employee within three days.

If this does not happen, then even despite the absence of a legally executed document, the employment relationship begins to operate from the moment the employee begins to perform his work duties.

A small blot, which is regulated by the same article: an employee can start work only with the consent and knowledge of the employer himself or his representative (an employee of the organization’s personnel department, for example).

If your employer is in no hurry to formally place you on staff, then you have the right to demand this through the prosecutor’s office or the labor inspectorate. It is these services that are designed to protect the rights of workers.

If the case goes to court, we recommend collecting the maximum amount of evidence of your work activity in this organization.

Evidence that the person worked

When no official employment relationship has been concluded between a person who has worked for a certain period of time in an organization and his immediate employer, it will be quite problematic to prove what salary the employee received, how long he worked, when he was hired and when he was fired.

But even if a person did not have an official entry in the work book, it is possible to prove the fact of work if there is a concluded employment contract, there are witnesses to the performance of work at the enterprise by this employee, the organization has documents that confirm that this citizen was an employee of the company.

Info

If there is any of this evidence, then it will not be so difficult to prove the fact of work in court. It is especially easy to prove this fact when there are documents in which the signatures of you and other leading individuals of the organization appear.

Statute of limitations

The concept of limitation of action for going to court is regulated by Article 392 of the Labor Code of the Russian Federation.

According to it, the period during which an employee can go to court is three months from the moment the employee learned (should have known) about the violation of his rights. If the claim is related to illegal dismissal, then one month.

Missing these deadlines is possible for a reason recognized by the court as valid, and if the employer requests the application of a statute of limitations.

That is, in simple terms, you have three months to recognize the employment relationship between you and the employer as valid. If you missed this point without any good reason, then the likelihood of your claim being denied is very high.

In ____________ district court of the city __________ Address: _______________________ Applicant: _______________________ Address: _______________________ Interested party: Pension Fund Administration No. __ for the closed joint-stock company of the district “_________”, ______ Address: _______________________

STATEMENT to establish the fact of employment

I am the Applicant, ____________________, and have a total work experience of __ years. In connection with reaching the retirement age of “__” __________, I turned to a specialist from the Pension Fund Department No. __ of the district “_________” of the city.

Moscow, Russian Federation for the appointment of an old-age labor pension. The pension fund specialist informed me that the following period of work must be deducted from my total work (insurance) experience: from _________.

for _________, organization: LLC “______________”.

Old-age labor pensions are established and paid in accordance with Federal Law dated December 17, 2001 N 173-FZ (as amended on December 27, 2009) “On Labor Pensions in the Russian Federation” (adopted by the State Duma of the Federal Assembly of the Russian Federation on November 30, 2001).

Due to the fact that on ___________ I turn 60 years old, my total work experience is __ years, I believe that I have the right to be assigned an old-age pension based on __ years of total work experience. The circumstances that I worked with ________

for _______ in LLC "__________" is confirmed by a work book, which contains a record of this organization and seal, and can also be confirmed by witness testimony.

“__” ___________, I contacted the Pension Fund Office No. __ of the “___________” district.

__________ with an application to include work experience for the period from ____________ to ___________.

at LLC "______________", in the total length of service for the purpose of a pension. My appeal was denied.

The organization in which I worked does not currently exist. Under such circumstances, I am deprived of the opportunity to establish out of court the fact of labor activity during the above-mentioned time period.

By virtue of paragraph 1 of Art.

264 of the Civil Procedure Code of the Russian Federation, the court establishes the facts on which the emergence, change, or termination of personal or property rights of citizens and organizations depends. In accordance with Art. 265 of the Civil Procedure Code of the Russian Federation, the court establishes facts of legal significance only if it is impossible for the applicant to otherwise obtain the appropriate documents certifying these facts, or if it is impossible to restore lost documents. In accordance with Art.

266 of the Civil Procedure Code of the Russian Federation, an application to establish a fact of legal significance is submitted to the court at the place of residence of the applicant.

In accordance with Art. 268 of the Civil Procedure Code of the Russian Federation, a court decision on an application to establish a fact of legal significance is a document confirming a fact of legal significance, and in relation to a fact subject to registration, serves as the basis for such registration, but does not replace documents issued registration authorities.

Expert opinion

Semenov Alexander Vladimirovich

Legal consultant with 10 years of experience. Specializes in the field of civil law. Member of the Bar Association.

Thus, in accordance with paragraph 1 of Art.

264, art. 265, art.

266, art. 268 of the Civil Procedure Code of the Russian Federation, I ASK: 1.

Establish the legal fact of my labor activity in the period from ________ to ________.

in LLC "_____________" (LLC "_____"). 2. Call __________________________, who lives at the address: ________________________, as a witness in the case. APPENDIX: copy of this application – 1 copy; copy of work record book – 2 copies; a copy of the application to the Pension Fund of the Russian Federation - 2 copies; copy of the refusal of the Pension Fund of the Russian Federation – 2 copies; copy of an extract from the house register - 2 copies; receipt of payment of state duty.

"____" _______________ G. ________/________________/

With the flourishing of informal employment, court cases are common in which Russian citizens are asked to establish the fact of an employment relationship - and oblige the employer to conclude an agreement, or return money for work performed.

We will tell you how to correctly file a statement of claim in court, and what points not to forget when writing a claim.

Application example

We distinguish the establishment of fact from the claim proceedings

You can talk as much as you like about the features of special proceedings, but for citizens who do not have a legal education, it will be difficult to understand these features.

That is why most legal and semi-legal sites bypass the division of controversial and special proceedings and actually mislead the reader with their “guides” for drawing up a “statement of claim to establish the fact of labor relations.” As a result of such benefits, citizens go to court with an improperly completed application, and as a result, are refused to accept it.

Therefore, it is important to remember that there is simply no “claim” to establish a fact.

In order not to delve into the jungle of jurisprudence, we will explain the difference between controversial and lawsuit proceedings very simply, using examples.

Example 1 – claim

If it is necessary to establish the fact of being in an employment relationship with a living and healthy employer who did not make an entry in the employee’s work book, did not issue an order for employment and did not pay him wages, then this is a claim.

In this case, the employer committed an illegal act, and the employee enters into a legal dispute with him through a lawsuit. The claim itself, in this case, will be called a statement of claim for the employer’s obligation to make an entry in the work book, or for his obligation to issue an order, or for the recovery of wages from him.

The employer must be named as a defendant in the case. Moreover, in such a case, you can write a statement not to the court, but to the prosecutor’s office. The methods of the prosecutor's response, in this case, will be very effective, up to and including bringing the employer to criminal liability.

Example 2 – statement of fact

If it is necessary to establish the fact of labor relations with a non-existent or liquidated enterprise, or with an enterprise whose archives were destroyed due to the employee’s lack of documents confirming these labor relations, then an application for establishing the fact (without the word “claim”) is drawn up.

Expert opinion

Semenov Alexander Vladimirovich

Legal consultant with 10 years of experience. Specializes in the field of civil law. Member of the Bar Association.

As a rule, the need for these actions arises when preparing documents for the assignment of a pension, including an early one, or to receive benefits and compensation required by law.

Sometimes, in order to be assigned a special pension, a citizen must prove that he worked in hazardous industries or in the Far North, etc.

The fact is proven in a special proceeding, and no one is brought in as a defendant. Let's put it this way - the applicant proves to the court the fact of the existence of a one-on-one employment relationship.

A wide variety of documents may be included as evidence, including:

1. extracts from medical records documenting harmful working conditions;
2. pay slips, a pass that was accidentally preserved and any other paper confirming the fact of the employment relationship;
3. archival certificates and extracts;
4. certificates, diplomas, certificates of completion of special courses;
5. photos;
6. witness's testimonies.

Another difference

In addition to issues of registration, there is another important difference between special and claim proceedings, namely the presence and absence of statutes of limitations.

As a rule, legal websites, lumping the Civil and Labor Codes into one pile, give advice on the fact that for applications to establish the fact of labor relations there is a statute of limitations limited to three months. Such statements are fundamentally incorrect and, moreover, extremely harmful, since an interested reader, having received incorrect advice, may abandon the idea of ​​​​going to court, believing that he has missed the statute of limitations.

If we return to the above examples, we can say that in the first example the statute of limitations will indeed be 3 months from the date of violation of the employee’s rights. Let us recall once again that in the first example we were talking about controversial (claim) proceedings.

As for the second example, that is, an application considered in special proceedings, it is not limited by the statute of limitations.

That is, no matter how long you have been working in, for example, the Far North, you can safely go to court with a statement, because for facts, statute of limitations simply cannot exist.

Which court should I go to?

Claims to establish facts of legal significance are considered in special proceedings by district or city courts at the place of residence of the plaintiff (employee) or the location of the defendant (organization).

Practice shows that in most cases, plaintiffs prefer to apply to the court at their place of residence.

This is most likely due to convenience, since in some cases the direct employer is located tens or hundreds of kilometers from the place where his employee lives.

Making a statement

So, having decided what exactly should be written - a claim or a statement, you can begin to draw up an appeal to the court. It is not difficult to draw up, especially if the applicant has sufficient evidence.

The main difference between a statement and a claim is the absence of a defendant. However, interested parties may be involved in the process, for example, the employer's successor, or the territorial branch of the pension fund.

However, if the applicant does not indicate an interested person, and the court considers it necessary to involve him, then the application will not have to be redone. The court will carry out the involvement independently.

In addition to the documents already listed above, you will also need to attach to the application:

• archival or other certificate stating that a certain enterprise where the applicant worked actually existed;
• a copy of the applicant's passport.

If the applicant plans to prove through testimony, then it should be taken into account that the witness invited to the court will have to have confirmation that he lived in the area in which the applicant worked, or worked with him at the same enterprise.

The persons whom the applicant requests to be invited to court as witnesses must be listed in the text of the application.