How to draw up a motivated opinion of a trade union when reducing staff: rules for registration and sample

If the organization has a trade union, then when resolving certain issues it is obliged to take into account its opinion (Article 371 of the Labor Code of the Russian Federation). The primary trade union organization represents the interests of the organization’s employees through its elected body (Articles 372, 373 of the Labor Code of the Russian Federation). In practice, such a body is the trade union committee (trade union committee).

Situation: is the organization obliged to create a trade union?

No, I don't have to.

A trade union is considered a voluntary public association of citizens bound by common production and professional interests based on the type of their activity. A representative body (trade union) is created in order to protect the social and labor rights and interests of the organization’s employees. This is stated in Article 2 of the Law of January 12, 1996 No. 10-FZ. At the same time, trade unions are independent in their activities from the organization (organization management) (Article 5 of the Law of January 12, 1996 No. 10-FZ). When resolving certain issues, the organization is obliged to take into account the opinion of the trade union (Article 371 of the Labor Code of the Russian Federation). In particular, this must be done when adopting local regulations (Article 372 of the Labor Code of the Russian Federation). However, this condition must be met only if there is a trade union body in the organization (Article 8 of the Labor Code of the Russian Federation).

Thus, the management of the organization does not have the right to oblige employees to create a representative body (trade union). In turn, employees of an organization cannot have an obligation to unite in a trade union.

Grounds for dismissal that require approval

When dismissing a member of a trade union on his own initiative, in connection with the end of a fixed-term contract, by agreement of the parties and other similar grounds, agreement with the trade union is not required. The need arises in cases specified in Art. 82 Labor Code of the Russian Federation.

The trade union, protecting the rights of members of the organization, participates in the procedures:

• Documenting the reduction by including members in the liquidation commission.
• Conducting certification to determine a person’s suitability for the position held. A trade union representative is also required to be a member of the commission.
• Assessing the need for disciplinary liability of a person and making a decision on the need for dismissal. A member of the organization is a member of a permanent or temporarily organized labor commission.

Measures to control the actions of the employer and render an opinion on consent to dismissal are carried out on the basis of decisions of the general meeting of members of an independent organization.

Example of non-compliance with quorum

Trade union member R. has been notified of the layoff. The general meeting of the trade union decided that the procedure was incompetent. The head, having studied the minutes, determined that the quorum was insufficient to make an opinion. The deadline for making a valid decision was missed. The employee was dismissed without the consent of an independent authority.

Features of the trade union's work

Persons over 14 years of age who are engaged in labor activities have the right to join the organization . Every employee can become a member of a trade union.

To do this you need to write a statement:

• on joining a trade union organization;
• on the collection of membership fees in the accounting department.

If there is no trade union in the organization, then the employee can initiate one. At least 3 people from the organization are required.

The presence of a representative body in an organization requires that the employer coordinate with it the termination of employment relationships with employees. The procedure for dismissal is established by law and provides for mandatory prior notification of the trade union. This makes it possible to consider the situation and take preventive measures to protect rights and interests.

Trade union members must oppose any actions that violate or infringe on the legal rights of workers.
Because of this, conflicts with the employer are possible. But dismissal based on the activities of employees in a representative organization is considered a violation. The Labor Code establishes that the dismissal of leaders of an elected trade union body who are not released from their main job is possible only after prior notification to the superior trade union.

The law provides for situations where an employer does not have the right to dismiss an employee who is a member of a trade union without representation from the trade union organization, without setting out the circumstances that constitute the basis for termination of the employment relationship.

How the trade union committee’s opinion is developed

The employer must take into account the opinion only of the trade union organization acting at the enterprise to protect the interests of employees. A person’s membership in other bodies (for example, professionally oriented) is not taken into account. A reasoned opinion is issued by the trade union subject to the following conditions:

1. Conducting a general meeting of members.
2. Compliance with a quorum of more than half of the participants gathered or in another quantity that allows decisions to be made in accordance with the Charter of the organization.
3. Determining the number of participants present from the total number, regardless of the validity of the reasons for the absence of members.

The discussion procedure is recorded in a protocol, and the opinion expressed is drawn up in writing. In contrast to operations of terminating a contract with members of an organization, the chairman and his deputy are dismissed with the consent of a higher body (Article 374 of the Labor Code of the Russian Federation).

Sample of a motivated opinion of a trade union

The procedure for taking into account the opinion of the elected trade union body upon dismissal

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1. Articles
2. Labor law
3. Guarantees and ways to protect the interests of the parties

Procedure for the approval procedure

The director of the company must notify the trade union body of his intention to terminate the contract with the member of the organization. After reviewing the submitted documents, the body issues an opinion on whether it agrees or disagrees with the dismissal. Features of the procedure in accordance with Art. 373 Labor Code of the Russian Federation:

• The head informs the body about the planning of dismissal of its member and submits for consideration a draft order and copies of accompanying documents.
• The trade union body draws up a written opinion on the issue under consideration.
• In case of disagreement with dismissal, consultations are held between the parties to reach agreement on the validity of dismissal. When the parties reach agreement, the trade union committee issues a reasoned consent.

If no agreement is reached between the parties, the manager’s decision can be appealed to the State Tax Inspectorate or a judicial authority. Simultaneous appeal to all authorities defending the interests of the employee within the framework of the implementation of labor legislation is allowed.

Formation and significance of the motivated opinion of the trade union

The Constitutional Court, in its ruling No. 568-O-O dated July 17, 2007, indicated that trade unions are self-governing and independent. It follows that employees themselves organize their activities, including determining the order in which legally significant actions are performed. This means that the procedure for forming an opinion regarding the dismissal of a union member is also determined by the union itself. Establishing such an order in the law would violate the principle of independence of the trade union body.

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Dismissal of an employee in these cases without taking into account the motivated opinion of the trade union organization is a violation of the law, therefore, when appealing against the dismissal, it most often leads to the reinstatement of the employee to his previous position. In such cases, by virtue of Art. 394 of the Labor Code, an employee can be compensated for moral damage and paid for the time of forced absence. This decision, for example, was upheld by the Supreme Court in the appeal ruling dated November 9, 2012 No. 60-APG12-7. Dismissal a month after the union expressed its opinion is also considered unlawful, since this would be a violation of Art. 373 of the Labor Code (see the appeal ruling of the Chelyabinsk Regional Court dated June 22, 2015 in case No. 11-6384/2015).

Deadlines to be observed

When dismissing a member of the organization, the employer and the trade union body are obliged to comply with the deadlines specified in the Labor Code of the Russian Federation.

Failure to meet deadlines allows dismissed employees to challenge the termination of the contract.

Dismissal for absenteeism: there is no person - but there is a problem

The article from the magazine “MAIN BOOK” is relevant as of May 13, 2011. Questions were answered by E.Yu.

But if he disappears and doesn’t answer phone calls, he’s probably playing truant.

Zabramnaya, lawyer, PhD n. It is common knowledge that the main asset of any company is its employees.

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Absenteeism is the absence of an employee from the workplace without good reason:

1. throughout the working day, if the working day is 4 hours or less;
2. more than 4 hours in a row, if the working day is more than 4 hours.

Workplace is a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer.

However, not all employees understand that their job duties must be performed in good faith. And persistent violators of labor discipline, such as absentees, become a headache for the employer.

But in practice, difficulties arise: is it possible for an employee’s absence to

Features of the reduction procedure

When carrying out a reduction in numbers or staff, the manager is obliged to:

1. Send the draft order and relevant documents to the trade union committee at least 2 months (3 in case of mass layoffs) before the date of dismissal. The mass scale of the procedure for a particular enterprise is established depending on the number.
2. Obtain approval for each employee.
3. Warn the employee about the planned reduction.
4. Determine persons who have a preferential right to remain at work (Article 179 of the Labor Code of the Russian Federation).
5. Offer the person vacancies that match their qualifications.

Documentary support of the procedure for laying off workers with the participation of a trade union is of great importance for obtaining the consent of the organization. The employer must attach to the draft order the staffing table in the existing and modified versions, a list of vacancies, preferential categories of persons who have a preferential right to continue working.

Position of the Constitutional Court of the Russian Federation

An employment contract can be terminated by the employer in cases of a single gross violation of labor duties by the employee - absenteeism.

They want to fire me under clause 5 of Article 81 of the Labor Code of the Russian Federation. I was not informed about the collective agreement. In order to fire me, does my dismissal need to be coordinated with the trade union or not? I'm not a union member. The law does not contain a specific list of documents that must be sent to the trade union, but despite this, it is obvious that these documents should be sufficient to understand the situation with the dismissal of an employee and express a reasoned opinion.

Compliance with deadlines when coordinating dismissal issues with the trade union

Following deadlines in accordance with the Labor Code of the Russian Federation is the main condition for interaction with the trade union. In the absence of the body's agreement with the current validity period, the dismissal will be considered illegal. Thus, on the issue of non-compliance with the one-month deadline for using a reasoned decision of the trade union, the Appeal Decision of the Investigative Committee was adopted on May 28, 2013 in case No. 33-1790-2013.

The Investigative Committee determined a violation of the dismissal procedure in connection with the reduction of the position of an employee, a member of a trade union. The reasoned opinion of the body was presented to the employer. Municipal educational institution "Olochinskaya secondary school" has exceeded the monthly period for using the opinion. In connection with the identified violation, the decision of the court of first instance to reinstate the employee was confirmed.

Investigative Committee for Civil Cases of the Trans-Baikal Regional Court.

If the validity period of the issued opinion of the trade union body expires, the procedure will need to be repeated. The monthly period is determined without taking into account vacations, employee notices and other periods of absence for valid reasons.

How to file a dismissal for absenteeism

January 16, 2021 at 5:27 pm The procedure for dismissing an employee for absenteeism requires very strict compliance with the norms and rules of the law. Incorrectly executed dismissal for absenteeism may result in the employee being reinstated at work through legal action.

Related articles Contents If you find an error in the text, please let us know by highlighting it and pressing Ctrl+Enter According to the Resolution of the Plenum of the Supreme Court No. 2 dated February 17, 2004, truancy is recognized as:

1. unauthorized use of rest days;
2. absence from work (outside the workplace) without good reason for more than 4 hours in a row during the working day;
3. unauthorized leave.

A normal and responsible employee will always warn the employer if something happens to him and he does not come to work.

Read on to find out how to avoid this.

Structure and content

At the top of the paper is the name of the organization and the full name of the responsible official. Then the title of the document is written in the middle of the sheet - “Motivated opinion”.

The main part of the text sets out the circumstances: the number of the order, who considered the issue of drawing up an opinion, in relation to whom the order was issued (name of the employee). References to labor law standards must be included. At the very end, the trade union committee states its opinion and thoroughly argues for it.

Writing sample

The chairman of the trade union committee usually entrusts the preparation of documents to a certain specialist of this public organization. If this is the first time such a response has been issued by a union representative, then it is recommended to use an example.

This will help you make the right arguments and correctly reflect all the necessary information. Also, having a template reduces time costs. Below is a sample of a motivated opinion of a trade union when reducing staff.

General Director of JSC Magistral

Tigrov Alexander Alexandrovich

MOTIVATED OPINION

trade union organization JSC "Magistral"

according to draft Order No. 56-k dated November 23, 2019

on reducing the number and staff of employees

The trade union committee of JSC Magistral, with its authorized staff, considered the employer’s appeal No. 98 dated November 25, 2021 on draft order No. 56-k dated November 23, 2019.

The draft order (instruction) provided by the employer on the termination of the employment contract with specialists of the procurement department of Magistral CJSC Viktor Aleksandrovich Sidorov and Alexey Petrovich Antonov in accordance with paragraphs 2, 3, 5 of part one of Article No. 81 of the Labor Code of the Russian Federation and copies attached to it documents confirm the legality of its adoption.

Based on the above, the primary trade union organization of JSC Magistral considers it possible for the employer to make a decision to issue an order to lay off specialists from the procurement department of JSC Magistral, Viktor Aleksandrovich Sidorov and Alexey Petrovich Antonov.

Chairman of the primary trade union organization of JSC Magistral

11/26/2019 (signature) A.P. Petrov

Reasoned opinion of the elected body of the primary

of the trade union organization was received by the General Director of JSC Magistral

11/26/2019 (signature) A.A. Tigers

Often large companies, together with public organizations, reduce their workforce. The director of the enterprise may not like the motivated opinion of the trade union when reducing staff. The manager will have a sample response upon approval first.

Regulatory regulation

Part 4 of Article 82 of the Labor Code of the Russian Federation gives a company the right in a collective contract to provide for another process for the mandatory participation of a trade union in resolving problems affecting the termination of an employment contract at the will of the employer. For example, it can be stipulated that reduction for a number of reasons can only be carried out with the permission of the competent authority. If a special procedure is established in a collective agreement, the employer will be obliged to comply with all provisions.

The Constitutional Court, in a ruling dated July 17, 2007, noted that trade unions are independent and governed without external influence. This means that the procedure for drawing up an opinion is determined by the union itself. If a precise procedure were established at the legislative level, the principle of independence would be violated.

Retrenchment of an employee without taking into account the opinion of the trade union is a gross violation, therefore in most cases the worker is returned to his position if the situation is subject to appeal. In this case, the employer has to compensate for moral damages and pay for forced absenteeism.

Factors influencing reduction

The necessity and legality of the employer’s actions may be caused by a decrease in the volume of work and services performed, as well as a reduction in the wage fund. To protect its employees from unreasonable actions of the employer, the primary professional organization concludes or renegotiates collective agreements and industry agreements.

According to the Labor Code of the Russian Federation (Article 81, Part 2), the employer does not have the right to transfer an employee to another position without his consent, if he refuses the transfer in writing. The volume of reduction of labor units is affected by:

• state;
• actual number of employees;
• the number of employees who committed various types of violations.

The trade union committee individually prepares a separate opinion of the trade union committee for any employee of the enterprise who is a member of the trade union.

Dismissals are not allowed during the period of annual leave or temporary disability - illness or force majeure. Socially vulnerable categories of employees have a priority right to remain at their workplace, since they are limited in their actions due to family, personal or other circumstances.

If such a response is not prepared within 7 days, then it is considered that the primary public organization has no objections to dismissal.

Compilation rules

The procedure for taking into account the opinion of the trade union is regulated by Article 373 of the Labor Code of the Russian Federation. According to its provisions, the opinion must be sent to the employer no later than a week from the moment of familiarization with the order program and photocopies of documents that serve as the basis for the implementation of the employee’s dismissal.

The employer must take into account the opinion of the trade union submitted in advance. But if the union sends its submission later than 7 days or does not properly justify its position, then the employer has every right not to take the opinion into account.

In a situation where the elected trade union has shown disagreement with the employer’s planned project, then it carries out methodological consultations with the employer’s representative for 3 days, the results of which are recorded in the minutes.

If, after consultations, the parties have not found a compromise solution, the employer, after 10 days from the date of sending the draft order, has the right to approve the final decision of his own free will. This decision can be appealed to the authorized labor inspectorate.

Following the rules for submitting opinions specified in Article 373 of the Labor Code of the Russian Federation does not deprive the employee or his representative of the right to appeal the layoff directly in court, or the employer to challenge the instructions of the labor inspectorate in court.

The employer has the right to terminate the employment contract no later than 1 month from the date of accepting the motivated view of the trade union. This rule also applies to the termination of an employment contract with an employee whose dismissal has been approved by a higher-level trade union. In other words, the reduction of such employees can be carried out no later than 1 month from the date of receipt of approval.

A video describing the procedure for taking into account the motivated opinion of the trade union.

The passage of a month’s period is not stopped by the worker’s temporary incapacity for work, or by his being on long-term vacation, or by any other reason. In this regard, if more than 30 days have passed since the employer accepted the substantiated opinion of the trade union, and the worker was not fired for any reason, then the process of submitting a reasoned opinion must be started from the very beginning.

Justification for a trade union organization is not necessary when dismissing employees who are not members of a trade union at the will of the employer.

(name of the draft local regulatory act)

The project complies (does not comply) with the requirements established by articles of the Labor Code of the Russian Federation, other federal laws (and other) regulatory legal acts containing labor law norms governing the adoption of this regulatory act), paragraphs (articles) of the ________________________________ agreement, paragraphs (articles) of the ________________________________ Collective Agreement , does not worsen (worse) the situation of workers.

Based on the above, we consider it possible (impossible) for the employer to adopt (name of the trade union body) ____________________ (name of the draft local regulatory act)

Chairman of the primary trade union organization (signature, seal) (full name)

Reasoned opinion of the elected body of the primary trade union organization

(name of the elected body) dated “___” _________________ 200 __

Received (full name of the employer's representative)

" ___ " ___________________ 200 __ (signature)

The draft order issued by the employer to terminate the employment contract should be considered justified (why it is described in detail).

Dismissal for absenteeism 2021

» Contents: One of the most common grounds for dismissal at the initiative of the employer is the dismissal of an employee for absenteeism, that is, under paragraphs.

“a” clause 6, part 1, art. 81 of the Labor Code. It is included in the usual formulation of “dismissal under an article.”

The full definition is:

“Absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day (shift) )"

To make such a decision, the employer must take certain actions, which we will discuss below. Failure to comply with the established rules leads to the recognition of the dismissal as illegal, with the subsequent reinstatement of the employee or changing the wording to “dismissal at will” and the payment of significant amounts of compensation and costs associated with the consideration of the dispute.

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Seven steps for a hassle-free dismissal for absenteeism

The percentage of an employee being reinstated to his previous place of work after dismissal for absenteeism is high. In most cases, this is caused by a violation of the dismissal procedure.

Judicial practice and the accumulated experience of companies will help eliminate the “blind spots” of legislation. The employer’s right to dismiss an employee in the event of a single gross violation of labor duties, including due to absenteeism, is enshrined in Article 81 of the Labor Code of the Russian Federation.

The article defines truancy as

“absence from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day (shift)”

. Additional explanations can be found in judicial practice, in particular, an employee can be dismissed in such cases (paragraph 39 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2): absenteeism

Dismissal of trade union leaders - disputes and their analysis

Author: Ekaterina Uvarova, Head of the Legal Department of the Autonomous Non-Profit Organization of Additional Professional Education Institute of Advanced Training and Certification “Expert”

[email protected]

When dismissing an employee if he holds the position of leader of a trade union body, in practice many difficulties arise, which are associated with the fact that the legislation of the Russian Federation establishes a requirement to obtain consent for said dismissal from a higher trade union organization. So what should the head of an organization/enterprise do if this consent has not been obtained? In this case, can the employer dismiss an employee - the leader of a trade union organization on legal grounds, without violating the rights of the employee, but also without harming the activities of the organization in which this employee works?

Due to the specific nature of the work of trade union leaders, in practice many problems arise related to both their labor activity and their dismissal.

The problem of improving the work of trade union bodies is the selection of a trade union leader, who is a key figure in any trade union.

The trade union leader plays the role of an oppositionist to the employer, its representative body, administrative bodies, as well as government bodies. No matter how socially and democratically inclined the representatives of the opposition side may be, the trade union always acts as a critic of these bodies, opposing itself to them.

Therefore, the role of the trade union leader and his work is associated with eternal criticism both from the opposition and from those who elected him, since he deals with hired workers, whose role is not always beneficial in relations with government officials and employers.

The presence of a trade union organization in a company has two sides for the employer: both positive and negative. On the one hand, the employer has the opportunity to find out the position of employees on certain important issues of labor activity, establish a dialogue with the team when making important decisions, promptly identify existing problems in the team and dissatisfaction, enlisting the support of the trade union. On the other hand, the presence of a representative body of employees leads to the emergence of additional responsibilities of the employer, namely the obligation to take into account the special legal status of employees who are members of trade unions and are not exempt from their main work activities.

Thus, just as many difficulties arise during the work of a trade union leader, no less arise when he is fired. And this is due to some reasons.

Recently, legislation in this area has undergone significant changes, and disputes arise regarding its application and implementation of the norms contained therein.

If the organization has a trade union body, the dismissal of its member under clause 5, part 1, art. 81 of the Labor Code of the Russian Federation, namely, repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction, is possible only after receiving a reasoned opinion from the elected body of the primary trade union organization. This procedure is also established by Articles 82 and 373 of the Labor Code of the Russian Federation.

Article 374 of the Labor Code of the Russian Federation requires obtaining consent to dismissal from a higher trade union body. That is, in its content, this article is aimed at state protection from employer interference in the implementation of trade union activities, including through termination of employment contracts with members of the trade union organization and its leaders. In fact, this rule establishes an absolute ban on the dismissal of these employees without strict compliance with the special procedure for terminating the employment contract established therein, that is, in addition to the standard dismissal procedure, also the mandatory consent of a higher trade union organization .

When requesting consent to terminate an employment contract with the leader of a trade union organization, the employer must indicate the justification for such dismissal, namely that it is related to violation of labor discipline, economic, entrepreneurial and (or) other reasons, but not in any way with his trade union activities, which causes a number of problems in practice. Namely, it is difficult to give a substantiated conclusion about why exactly the position of the trade union leader should be reduced, or that the employee has repeatedly failed to fulfill his direct labor duties stipulated by the employment contract, while already having a disciplinary sanction, and indeed the justification for imposing a disciplinary sanction .

According to the previously existing procedure, if the higher trade union body does not give its consent to the dismissal of the trade union leader, then it is impossible to dismiss the leader of the trade union organization. This distinguishes the position of a leader from just a member of a trade union body, when it is not necessary to obtain the consent of a higher organization, but simply an opinion is sufficient. At the same time, when making a decision, you need to take into account that giving consent to dismissal will take seven working days.

In the event of a refusal by a higher trade union body to consent to dismissal, the employer may, but is not obligated to, apply for recognition of such a decision as unfounded to the court, which, when considering the case, finds out whether a reduction in the number or staff of employees is actually being made (which is proven by the employer by comparing the old and the new number or staff of employees), whether the employer’s intention to dismiss a specific employee is related to a change in the organizational structure of the organization, whether the employee has repeatedly failed to fulfill his job duties, whether a disciplinary sanction has been justified, or whether the decision to dismiss is directly related to the work carried out by this employee trade union activities. In this case, the relevant trade union body is obliged to provide the court with evidence that its refusal is based on objective circumstances confirming the employer’s illegal decision to dismiss the specified employee due to his trade union activities, i.e. the dismissal is discriminatory. After a decision is made in favor of the employer, he can “calmly” dismiss the leader of the trade union organization.

However, the following should be considered here. By the ruling of the Constitutional Court of the Russian Federation dated November 3, 2009 No. 1369-O-P, the provision of Part 1 of Art. 374 of the Labor Code of the Russian Federation, which does not allow the dismissal of a trade union leader under clause 5 of part 1 of art. 81 of the Labor Code of the Russian Federation without the consent of a higher trade union was declared invalid. Thus, the refusal of a higher trade union body to give consent to the dismissal of the leader of a trade union organization does not prevent the termination of the employment contract with him .

This issue would have been resolved unambiguously and would have prevented the emergence of disputes, if not for one significant point. The Constitutional Court, in its ruling of November 3, 2009, did not directly indicate that the employer does not need to obtain the consent of a higher trade union and at the same time freely dismiss the leader of the trade union organization. In this ruling, the Constitutional Court merely clarified that refusal to give such consent does not prevent dismissal. A similar position is contained in the ruling of the Perm Regional Court dated June 8, 2011 in case No. 33-5325. Thus, we draw the appropriate conclusion that the employer, in any case, before terminating an employment contract with the leader of a trade union body must seek the consent of a higher-level trade union. And the consent or disagreement of a higher organization that has already been received does not affect the decision to terminate the employment contract.

The validity of this conclusion of the Constitutional Court lies in the fact that the ban on the dismissal of such workers, namely members and leaders of trade union organizations, distorts the very concept of economic (entrepreneurial) activity. That is, when limiting the employer’s rights to dismiss an employee under an article established by Russian legislation, there is an increased degree of protection of the rights of some, but at the same time derogation of the rights of others. Yes, it is undeniable that, as leaders of the “opposition camp,” the leaders of trade union organizations have the right to protection from unjustified dismissals, but not at the expense of diminishing the rights of employers who conduct legal activities in the state. And therefore, in order to ensure a real opportunity for workers elected to trade union bodies to quickly and effectively fulfill their duties to protect the labor rights and interests of workers, labor legislation provides them with additional guarantees in the field of labor relations, namely the specified protection from unjustified dismissals.

At the same time, members of trade union organizations refer to the fact that they are representatives of workers, namely the hired force, which initially puts them in a subordinate position, and the employer is stronger in these disputes, since he has administrative, financial resources, as well as specialists on his side. having the opportunity to protect his rights. However, this position is very controversial, since not knowing the laws, and, consequently, the inability to defend one’s position from the legal side does not relieve a citizen from responsibility. If an employer violates laws, including labor laws, when dismissing his employees, he must answer for his violations and restore the violated rights. It is up to the person whose rights have been violated to prove violations and hold them accountable. And nothing else. According to Russian trade unions, this bill significantly worsens the rights of trade unions. However, as mentioned above, this is not entirely true.

However, taking into account the above, we see that the position of employers who have entered into an employment contract with the leaders of trade unions is not so favorable, which is associated with a very complex procedure for dismissing these categories of workers, the need to comply with many rules, and appeal to various authorities to prove the validity of the dismissal , delaying this process.

A compromise solution to this dispute was also proposed, which, in particular, consisted in the fact that the employer had to contact the higher trade union when dismissing trade union leaders, but in case of refusal, he had the right to appeal this decision in court.

However, this option is also unlikely to be applicable. Most likely, the logical option would be the exact opposite, which is as follows. When an employer decides to dismiss the leader of a trade union body, he applies to a higher organization to obtain consent to such dismissal. If a higher organization refuses to dismiss a trade union leader, the employer may dismiss him, and the employee has the right to appeal the decision to dismiss him in court. Actually, this is exactly the procedure that is currently regulated by Russian legislation.

Thus, when dismissing an employee - the leader of a trade union organization, it is better for the employer to play it safe and follow the established procedure for his dismissal, namely, in addition to going through the standard dismissal procedures applied in accordance with current legislation when dismissing any employees, also attach to the personal file of the dismissed employee who is the leader of the trade union organization, confirmation of the fact that consent to the dismissal of the specified employee was requested from the higher trade union organization.

At the same time, a copy of the request must also be attached to the personal file of the dismissed employee, containing justified arguments for the need to dismiss the trade union leader, which allow us to conclude that this dismissal is in no way connected with his activities as the leader of the trade union organization, but is due only to production, material and/or other objective factors.

In the event of failure to obtain consent to dismiss the specified employee or if there are arguments from a higher trade union organization that the dismissal of the leader is illegal/unjustified, this does not deprive the employer of the right to dismiss the employee subject to the specified formalities and evidence that the dismissal is precisely a production necessity, and is not aimed at removing an “undesirable” person in this way.

However, you need to understand that it is necessary to accurately and clearly follow the specified procedure, so that you can subsequently prove your case when protecting the rights and interests of the employing company in court. Violation of this order will almost categorically lead to victory for the opposing side.

Natalya Leshukova, outsourced lawyer.

[email protected]

In the category “labor disputes with pregnant women and women with children under three years of age,” disputes about reinstatement at work most often arise.

On the part of employers, this is due to errors in the application of Art. 261 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), which establishes guarantees for pregnant women and persons with family responsibilities upon termination of an employment contract, namely: prohibitions on termination of an employment contract at the initiative of an employer with a pregnant woman, with the exception of cases of liquidation of an organization or termination of activities of an individual entrepreneur; as well as with a woman who has a child under three years of age, with the exception of cases of dismissal due to the fault of the woman.

These rules are special, that is, subject to priority application in relation to other provisions related to the termination of an employment contract at the initiative of the employer.

When making decisions on dismissal of pregnant women and women with children under three years of age, in order to avoid mistakes, an employer must have a clear understanding of the cases when such dismissal at the initiative of the employer is allowed in the Labor Code of the Russian Federation, and when the legislator establishes a ban on termination of an employment contract. The most common mistake in practice is the termination of a fixed-term employment contract due to its expiration during pregnancy.

Let's look at the case law below.

1. The ban on termination of an employment contract with pregnant women at the initiative of the employer applies to cases of termination of a fixed-term employment contract during the woman’s pregnancy.

Example 1.

G.M. filed a lawsuit against OJSC "MOEK" to declare the dismissal illegal, reinstated at work, recover average earnings for the period of forced absence, compensation for moral damage, citing the fact that she worked in the defendant's organization from a certain date in the position of leading economist . By order of the organization, she was dismissed under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation in connection with the expiration of the employment contract. She believed that the dismissal was illegal, the dismissal violated the labor legislation of the Russian Federation, and the employer did not take into account the fact of the plaintiff’s pregnancy when terminating the employment contract. According to the certificate issued by the Central Regional Hospital of the Balashikha Municipal Municipality as of the date of dismissal, G.M. Diagnosed 6 weeks pregnant. The Khamovnichesky District Court of Moscow, by a decision dated August 6, 2014, refused to satisfy G.M.’s claims, considering that the dismissal under clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation does not constitute dismissal at the initiative of the employer; in addition, the employer on the date of dismissal had no information about G.M.’s pregnancy. However, the judicial panel for civil cases of the Moscow City Court, having considered the plaintiff’s appeal, found the above conclusions of the trial court to be erroneous, based on a selective, selective interpretation of the rules of substantive law, contradicting the established circumstances of the case. According to the explanations given by the Supreme Court of the Russian Federation in paragraph 27 of the Resolution of the Plenum of January 28, 2014 No. 1 “On the application of legislation regulating the work of women, persons with family responsibilities and minors”, by virtue of part two of Article 261 of the Labor Code of the Russian Federation, a fixed-term employment contract cannot be terminated until the end of pregnancy. Based on all these circumstances, the Moscow City Court made a new decision: to declare the dismissal of G.M. illegal. according to clause 2, part 1, art. 77 Labor Code of the Russian Federation; change the date of dismissal of G.M., and also recover from OJSC MOEK in favor of G.M. average earnings during forced absence and compensation for moral damage.

Thus, in this case, the employer did not take into account that the obligation to extend the term of a fixed-term employment contract until the end of the woman’s pregnancy is directly provided for by labor legislation.

A fixed-term employment contract is extended until the end of a woman’s pregnancy, regardless of the reason for the end of the pregnancy (birth of a child, spontaneous miscarriage, abortion for medical reasons, etc.). In the event of the birth of a child, the dismissal of a woman due to the end of a fixed-term employment contract is carried out on the day the maternity leave ends. In other cases, a woman may be fired within a week from the day the employer learned or should have learned about the end of the pregnancy. A pregnant woman, whose employment contract was terminated at the initiative of the employer, is subject to reinstatement even if, by the time her claim for reinstatement is considered in court, the pregnancy has not persisted (Extract from the explanations of the Plenum of the Armed Forces of the Russian Federation).

Employers should also pay attention to: Art. 261 of the Labor Code of the Russian Federation, in addition to cases of liquidation of an organization or termination of activities by an individual entrepreneur, establishes another exception for termination of a fixed-term employment contract with a woman during her pregnancy: if the employment contract was concluded for the duration of the duties of an absent employee. However, if the employer does not provide as evidence the woman’s written refusal to transfer before the end of pregnancy to another job available to the employer (both a vacant position or work corresponding to the woman’s qualifications, and a vacant lower position or lower-paid job), which a woman can perform taking into account her state of health, the court can reinstate the dismissed woman at work (as was the case in Example 1). In order to avoid a negative result in the event of a controversial situation, the employer must stock up on evidence and document, in writing, record each fact of the offer of vacant positions and the refusals of the dismissed woman.

At its core, the provisions of Part 2 of Art. 261 of the Labor Code of the Russian Federation are labor benefits, therefore the implementation of the provisions of Art. 261 of the Labor Code of the Russian Federation does not depend on the employer’s awareness of the fact of pregnancy at the time of making the decision to dismiss.

At the same time, from the analysis of the provisions of Art. 261 of the Labor Code of the Russian Federation it follows that these rules do not prohibit the termination of a fixed-term employment contract with women who have children under the age of three, including those on maternity leave. This is confirmed by judicial practice.

Example 2.

U. filed a lawsuit against Business Monitoring LLC for reinstatement at work and compensation for moral damages. In support of the claim, he refers to the fact that he was fired under clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation upon expiration of the employment contract, the dismissal is considered illegal, since at the time of dismissal she was on paid maternity leave. The Golovinsky District Court of Moscow, by a decision dated October 14, 2013, refused to satisfy the plaintiff’s claims, and the judicial panel for civil cases of the Moscow City Court, by an appeal ruling dated February 28, 2014 in case No. 33-4554, left the decision of the district court unchanged. Refusing to satisfy the stated demands, the court came to the conclusion that the dismissal of U. was legal under clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation, since the provisions of the Labor Code of the Russian Federation establishing the procedure for terminating a fixed-term employment contract, as well as guarantees for women with children, do not establish any restrictions for the dismissal of this category of workers due to the expiration of the fixed-term employment contract.

Thus, if the employment contract with a pregnant woman expires, the employer should extend it until the end of the pregnancy. In the future, the employer has the right to dismiss the woman in connection with the termination of a fixed-term employment contract on the day the maternity leave ends, and in other cases of the end of pregnancy - within a week from the day the employer learned or should have learned about the end of the pregnancy.

1. Part 1 of Article 261 of the Labor Code of the Russian Federation applies to women serving in state civil and municipal service

Example 3.

N. filed a lawsuit against the investigative department of the Investigative Committee of the Russian Federation for the Chechen Republic for reinstatement at work, recovery of wages for the period of forced absence and compensation for moral damage. She motivated her demands by the fact that, by order of the head of the investigation department, she was accepted into the federal civil service, and a service contract was concluded with her for an indefinite period. By order, she was dismissed from the civil service under clause 6, part 1, art. 33 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” - a civil servant’s refusal of a civil service position proposed for filling, or of professional retraining or advanced training in connection with the reduction of civil service positions, as well as when not providing him with another civil service position in such cases (Part 4 of Article 31 of the Federal Law). By decision of the Staropromyslovsky District Court of Grozny dated June 28, 2012, N.’s claims were denied. However, the Judicial Collegium for Civil Cases of the Supreme Court of the Chechen Republic did not agree with this decision, fairly applying the provisions of Article 73 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation”, according to which the Labor Code of the Russian Federation, other federal laws , other regulatory legal acts of the Russian Federation, as well as laws and other regulatory legal acts of the constituent entities of the Russian Federation containing labor law norms, may be applied to relations related to the civil service, to the extent not regulated by the above federal law. As a result, the Supreme Court of the Chechen Republic made a new decision to reinstate N. in his position, collect wages for the period of forced absence, as well as compensation for moral damage.

Please note that in paragraph 4 of the Plenum Resolution No. 1 of January 28, 2014 “On the application of legislation regulating the labor of women, persons with family responsibilities and minors” it is explained that the effect of the provisions of Art. 261 of the Labor Code of the Russian Federation applies to state civil servants, municipal employees, employees of state bodies, services and institutions that provide law enforcement service, to the extent that is not regulated by special federal laws or taking into account the specifics established by these special laws.

Thus, the ban on terminating an employment contract at the initiative of the employer with pregnant women (except for cases established by law) applies to women serving in state civil and municipal service, as well as to employees of state bodies, services and institutions that provide law enforcement service .

In this case, employers need to remember the priority of the provisions of Art. 261 of the Labor Code of the Russian Federation over other legal norms governing dismissal from the civil public service or municipal service, etc., if the dismissed person is a pregnant woman.

1. The rule providing for the dismissal of a person working part-time under Art. 288 of the Labor Code of the Russian Federation in the case of hiring an employee for whom this is the main job does not apply if the dismissed person is a woman with a child under three years of age.

Example 4.

G.A. filed a lawsuit against Agro OJSC for reinstatement at work, citing labor relations with the defendant, where she held a part-time position with her main place of work. G.A. was dismissed on the basis of Article 288 of the Labor Code of the Russian Federation (in connection with the hiring of an employee for whom this work is the main one), but considered the dismissal illegal, since she has a child under the age of three. The Pravoberezhny District Court of Lipetsk, by decision dated August 9, 2013, decided to reinstate G.A. in a previously filled position at Agro OJSC, to recover from the defendant in favor of G.A. average earnings during forced absence, compensation for moral damage, expenses for the services of a representative. The Judicial Collegium for Civil Cases of the Lipetsk Regional Court, in an appeal ruling dated October 9, 2013 in case No. 33-2698/2013, left the decision of the district court unchanged. Satisfying the plaintiff’s claims for reinstatement and recovery of related amounts, the court was guided by the provisions of Article 287 of the Labor Code of the Russian Federation, which provides for the provision of guarantees and compensation to persons working part-time in full, with the exception of guarantees and compensation to persons combining work with education, and also to persons working in the Far North and equivalent areas, which are provided to employees only at their main place of work; and the rules of Art. 261 of the Labor Code of the Russian Federation, according to which termination of an employment contract with women with children under three years of age on the initiative of the employer is not allowed (except for dismissal on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 of part one of Article 81 or paragraph 2 of Article 336 of the Labor Code of the Russian Federation).

In this case, the employer made a mistake by considering the provisions of Art. 288 of the Labor Code of the Russian Federation takes priority over the provisions of Art. 261 Labor Code of the Russian Federation. In this case, the provisions of Art. 261 of the Labor Code of the Russian Federation, establishing guarantees for a woman who has a dependent child under three years of age.

Having examined the judicial practice in this category of labor disputes, I come to the conclusion that Part 1 of Article 261 of the Labor Code of the Russian Federation, which prohibits the dismissal of pregnant women at the initiative of the employer (except for cases established by the Labor Code of the Russian Federation), is one of the special norms that provides pregnant women with increased guarantees compared to with other norms of the Labor Code of the Russian Federation regulating the issues of termination of an employment contract - both general and providing for the specifics of regulating the labor of women and persons with family responsibilities. At its core, it is a labor benefit. However, this labor benefit is not provided to women after the end of their pregnancy. For women with children under three years of age, another benefit has been established - a ban on their dismissal at the initiative of the employer, if it is not the woman’s fault (Part 4 of Article 261 of the Labor Code of the Russian Federation).

The most common mistake employers make in practice is the incorrect application of special rules establishing labor benefits for women.

Thus, a clear understanding of the priority of special rules establishing labor benefits for pregnant women and women with children under three years of age will allow employers to apply them correctly in each specific case and avoid mistakes when dismissing this category of persons, and in the future - the corresponding legal proceedings with all the ensuing legal consequences.

Anastasia Shapovalova lawyer at Legal

In the article, the author says that the procedure for dismissing the leader of a trade union organization is quite complicated for the employer, and therefore many difficulties arise in practice.

Thus, labor legislation provides that the dismissal of a member of a trade union body under clause 5 of part 1 of art. 81 of the Labor Code of the Russian Federation (repeated failure by an employee to fulfill his job duties without good reason, if he has a disciplinary sanction) is possible only after receiving a reasoned opinion from the elected body of the primary trade union organization.

The author notes that if a higher trade union body refuses consent to dismiss an employee, the employer may, but is not obligated to, apply to the court to declare such a decision unfounded. In this case, the trade union body is obliged to provide the court with evidence that its refusal is based on objective circumstances confirming the employer’s illegal decision to dismiss the specified employee due to his trade union activities, i.e. the dismissal is discriminatory.

However, it is somewhat difficult to agree with this thesis. The established judicial practice in this category of disputes, on the contrary, proceeds from the fact that the refusal of the trade union body, even if it does not contain indications of the discriminatory nature of the dismissal, certainly prevents the dismissal of the leader of the trade union organization (see the ruling of the Supreme Court of the Russian Federation of October 3, 2008 No. 78 -B08-27).

In addition, judicial practice has confirmed that when making a decision on the possible termination of an employment contract with a trade union member under clause 5, part 1, art. 81 of the Labor Code of the Russian Federation, the trade union body has the right to investigate the issue of the fact of the disciplinary offense itself (see the appeal ruling of the Moscow City Court dated July 24, 2014 in case No. 33-29472). In other words, the restriction of the trade union’s right to express an opinion on the validity of bringing an employee to disciplinary liability under clause 5 of part 1 of art. 81 of the Labor Code of the Russian Federation and checking the existence of the very fact of a disciplinary offense constitutes unjustified interference in the activities of a trade union organization.

Trade union committee mediation service

The elected body of the primary trade union organization monitors order in all organizations where trade union cells operate. The opinions of such mini-organizations within the team are listened to.

Members of trade union committees themselves are also protected from unjustified dismissal. Members of trade union committees, as a rule, are more aware of the situation at their enterprise, so it is easier for the trade union organization to directly interact with them.

The consolidating role of the trade union committee makes it possible to rally the team around itself and reduce the risk of discontent among workers. The trade union committee of the primary organization monitors not only the dismissal of employees, but also, if possible, controls the family relationships of trade union members.

Work of the HR department

The HR department organizes the process of hiring and firing employees of large companies. This structural unit interacts directly with the head of the entire enterprise and directly with the primary public organization.

Administrative work on the proper dismissal of employees lies with department specialists. Not only do they perform their work here as performers, but they are also psychologists. When an organization's staffing levels are reduced, there are always many dissatisfied people. The individual opinion of the trade union on staff reduction that comes to the department relates to civil law, therefore the department must have a lawyer who understands the rights and represents the organization in court and other law enforcement agencies and organizations.

Taking into account the received opinion, the employee independently takes actions and prepares organizational procedures that make it possible, through membership in a trade union, to be reinstated in the work of his enterprise. In court cases, it is necessary to comply with deadlines, regulations, and it is advisable to independently collect a complete system of required evidence.

If all the above conditions are met, you are guaranteed to be reinstated at work. When the trade union is able to win a labor dispute during the legal proceedings, the employee will be reinstated in the workplace, and for forced absences he will be paid wages and even compensated for moral and psychological damage. A negative attitude towards an employee and a desire to get rid of him can lead to a violation of the established dismissal procedure.

Every laid off employee should know about this. A trade union can pick on any shortcomings and ultimately make the process of dismissing an employee undesirable. Violations of the provisions of the Labor Code can bring the head of the company himself to the dock.