Order an application to establish the fact of labor relations! Free case consultation! In our difficult times, you can often find yourself in a situation where it is necessary to prove that a person actually worked in an organization or for a private entrepreneur.
This may be required if an injury occurs during work or the employer refuses to pay the required wages.
When resolving labor disputes, other unforeseen situations may arise, for example, when registering a labor pension. The court will help resolve the problem. To do this, it is necessary to prepare a statement of claim confirming the fact of the employment relationship.
What relationships are labor relations?
Labor relations are formed between the employee and the employer on the basis of an agreement (Article 15 of the Labor Code). Their main features and differences from relations regulated by civil law are considered in the table:
| Signs | Labor Relations | Civil relations |
| Type of agreement concluded between the parties | Employment contract | Civil contract |
| Parties | Employee and employer | Customer and performer (contractor) |
| Subject of the agreement | Performing a specific work function in a specific position in accordance with the staffing table, the labor process itself | Providing a service, performing a certain job, the result itself is important, not the process |
| Position of the parties | The employee works under the control and on behalf of the employer | The parties are equal, the customer has no right to interfere with the work of the performer (contractor) |
| Degree of freedom | The employee is subject to the PVTR and local regulations, has days off, a break for rest and food, paid leave, the employer keeps records of the time worked of each employee | The performer (contractor) independently performs work, provides services, and regulates the time of his work |
| Terms of payment | The employee receives wages twice a month on the days established by the PVTR | The customer pays the performer (contractor) the cost of services (works) on the basis of the act within the terms stipulated by the contract |
| Risks | The employer is obliged to train the employee in labor safety rules and provide him with special clothing and personal protective equipment. | The contractor (contractor) is responsible for compliance with labor safety, fire, and sanitary regulations. |
| Contributions and taxes | The employer pays contributions for compulsory social insurance and injuries for each employee | The performer (contractor) pays contributions to the Social Insurance Fund himself |
How to prove that a citizen worked
In a claim for recognition of the fact of labor relations, the plaintiff must prove that:
- obeyed the internal regulations and local acts of the defendant;
- received payment for work on the days established for the payment of wages to the defendant’s employees;
- carried out instructions from his immediate supervisor and was subject to disciplinary action;
- had established working hours, days off, worked according to the schedule approved by the defendant;
- the employer trained the plaintiff in labor safety rules and provided PPE and overalls.
These facts are confirmed by the following evidence:
- witness's testimonies;
- power of attorney from the employer to represent interests in court, in government bodies, indicating the position of the employee;
- acts of completed work, invoices, in which the employee signed on behalf of the individual entrepreneur or organization;
- pass to the employer's premises;
- a room cleaning schedule or shift schedule indicating the position and surname of the employee;
- orders on disciplinary action, on sending on a business trip;
- email correspondence discussing work;
- certificate of certification, testing of knowledge on labor protection;
- a sheet of familiarization with local acts signed by the employee;
- card confirming the issuance of special clothing with the signature of the employee;
- memos of an employee with an employer visa;
- power of attorney to receive material assets of the employer.
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
- Performing part of the work by a third party for the employee
- “free” employee work schedule
- Dependence of remuneration for work only on the result (for example, drawing up one contract - one thousand rubles)
- Absence of any mention of the employee in all internal company documentation (hiring order, staffing table, familiarization with the job description, etc.)
- Transfer of remuneration with the purpose of payment - “according to agreement No. .....” (in no case “salary”)
- Lack of requirements (even verbal) for the employee to comply with the work schedule, clothing style, etc.
- No income tax payment for an employee
- 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 documents to provide
When submitting a statement of claim to the court to establish the fact of work, it is necessary to attach to it the documents provided for in Art. 132 Code of Civil Procedure of the Russian Federation:
- notification of delivery, postal receipts or other documents confirming the sending to the employer of copies of the statement of claim and documents attached to it;
- a copy of the power of attorney for the representative;
- documents on the completion of actions aimed at reconciliation (if any), for example, a letter from an employee with a request to conclude an agreement with him;
- copies of documents confirming the official relationship: a pass to the employer’s territory, a certificate, official notes, the employer’s orders regarding the employee, a sheet of familiarization with local acts, a notary’s protocol on the inspection of e-mail with attached printed e-mails.
How to file a claim
To draw up a statement of claim to establish an employment relationship, you must adhere to certain rules.
The claim must be submitted in writing. The algorithm for drawing up a statement of claim is as follows (Article 131 of the Code of Civil Procedure of the Russian Federation):
- Indicate the name of the court in which the claim is being filed.
- Write the plaintiff's details: full name, address, phone number, email (if any).
- Indicate the details of the defendant, for an organization - name, address, telephone number, email address, INN or OGRN (if known), for an individual - full name, address, telephone number, email address, INN (if known).
- Describe what the violation of employee rights is.
- List evidence of the existence of an employer-employee relationship.
- Describe the requirements: recognize the actual relationship as an employment relationship or reclassify a civil law contract into an employment contract; make entries in the work book; pay wages (if they have not been paid), pay social contributions; compensate for moral damage.
- Provide information about any attempts at reconciliation (if any).
- If additional claims are made for payment of wages, compensation for unused vacation, then make a calculation of the amounts recovered and indicate the amount of the claim.
- List of attached documents.
- Signature of the plaintiff or his representative.
If a worker does not have documents confirming work in a particular organization, or they contain erroneous data, and it is impossible to correct them, since the employer has been liquidated, then an application is submitted to the court to establish a fact of legal significance. There is no one to file a claim with, the organization no longer exists, so there is no dispute about the right. But it is impossible to restore the documents, so the fact of work is established by the court.
Sample application for establishing the fact of labor relations
Example of an application for establishing the fact of work
To the Kirovsky District Court of Kemerovo
Applicant: Popov Vitaly Andreevich,
This is important to know: How much does it cost to file a statement of claim in court?
650000, Kemerovo, st. Privolzhskaya, 7895
Interested person: OPFR Management
in the Astrakhan region in Kemerovo,
650000, Kemerovo, st. Kamenskaya, 415
STATEMENT ON ESTABLISHING THE FACT OF WORK
On September 17, 2015, I applied to the branch of the pension fund in the Kirovsky district of Kemerovo to calculate my old-age pension. When applying for a pension, my work experience did not include the period of work as a driver on the Oktyabrenok collective farm (Andreevka village, Kemerovo region) from 1988 to 1993.
According to department employees, the entry in the work book was incorrect: specific dates of hiring and dismissal were not indicated (numbers were missing), and the stamp of the collective farm “Oktyabrsky” was affixed, not “Oktyabryonok”.
In this regard, I was denied credit for the period of work from 01/15/1988 to 04/01/1993 on the Oktyabrenok collective farm and was recommended to establish through the court the fact of work on the specified collective farm.
The entry was completed incorrectly, since the HR department employee made a mistake; the renaming of the collective farm in 1991 was not indicated. Now it is impossible to correct the records, since the collective farm has been liquidated.
The fact of working on the Oktyabrenok collective farm can be confirmed by the former chairman of the Soviets, Roman Alekseevich, and the former personnel officer, Vasilisa Igorevna Popova.
To establish the fact of work from January 15, 1988 to April 1, 1993 on the Oktyabrenok collective farm in the village. Andreevka, Kemerovo region.
- Copy of application
- Receipt for payment of state duty to the court
- Copy of the order
- Copy of work book
- Copy of extract from the Unified State Register of Legal Entities
- Copy of the archive certificate
- Certificates, letters of gratitude
- Collective farmer's book
- Petition to call witnesses
12/20/2015 Popov V.A.
Where to file a claim
A claim to establish the fact of labor relations is filed with the district court at the choice of the plaintiff:
- at the location of the employing organization or at the place of residence of the employer - an individual (Article 28 of the Code of Civil Procedure);
- at the location of a separate unit, if the citizen worked in a branch or representative office of the organization (clause 2 of article 29 of the Code of Civil Procedure);
- at the place of execution of the contract, if indicated (clause 9 of article 29 of the Civil Procedure Code);
- at the place of residence of the plaintiff (clause 6.3 of Article 29 of the Code of Civil Procedure).
In what situations is confirmation required?
First of all, confirmation of the fact of employment is required in cases where the legal relationship of the parties has not been formalized.
For example, if a citizen is going to retire, he will need to confirm his length of service in order to receive the right to receive payments.
In addition, establishing the fact of an employment relationship is necessary when dismissing an employee. Based on the court decision, the employer will make an appropriate entry in the work book, after which the employee will be able to demand the payments due to him, for example, wages or severance pay.
In addition, confirmation of this fact is required when, after dismissing an employee, the employer illegally withholds and does not issue a work book.
Resolution of such conflicts is also possible pre-trial, for example, by filing a claim, but in practice, workers’ appeals, for the most part, remain unattended. That is why it is more advisable to file a claim in court rather than engage in meaningless disputes with the employer.
Watch the video. Establishing the fact of labor relations:
Legal costs
In accordance with Art. 393 of the Labor Code of the Russian Federation for disputes regarding the protection of labor rights, plaintiffs are exempt from paying state fees and court costs. Moreover, even if the employee loses the dispute, the employer still does not have the right to recover legal costs from the losing party (determination of the Supreme Court of the Russian Federation of July 15, 2019 No. 75-KG19-3).
An employee who has paid for the services of a representative has the right to recover their cost from the employer, expenses for accommodation and travel if the claim to establish the fact of labor relations is being considered in another city, expenses for witnesses (accommodation, travel expenses), a translator, an expert, postal expenses, expenses for execution of a notarized power of attorney.
When submitting an application to establish the fact of work in a special proceeding, the state fee is provided in the amount of 300 rubles.
