Analysis of judicial practice in cases related to discrimination at work. Discrimination under the Labor Code of the Russian Federation and methods of protection against it in the world of work

Judge of the Surgut City Court
Address: 628426, Surgut, st. Profsoyuzov, 37

Plaintiffs: Kuleshov Pavel Nikolaevich
Resident's Address: I indicate here
Defendant: OJSC "Surgutneftegaz NGDU Fedorovskneft"
Address: Address: Flegonta Pokazanieva street, 2

STATEMENT OF CLAIM
(About protection labor rights from discriminatory actions on the part of the employer, master and workers)

Plaintiffs: their name is in an employment relationship with the defendant - OJSC Surgutneftegaz NGDU Fedorovskneft.

The plaintiff is a member of the primary trade union organization
The defendant admitted the facts in relation to the plaintiff, and this is the violation of the employee’s rights. Here at work in our brigade, from instrumentation mechanics and A, namely from A.V. Agafonov, one often has to listen to insults, kicks, claps, approaches and whistles right in the ear. From A.A. Ismailov often slams, pushes too, whistles in the ear, rude and harsh insults. AV Agafonav and AA Ismailov. They also allow themselves to smoke in cars on the way to the bush, deliberately not allowing the window to be opened, while they claim that their bosses allow them to smoke evidence on the disk. When I informed our Master Georgy Viktorovich Mantsarev, he did not take any measures, but said threatening, don’t be afraid, that we will take you to the bush and spank you so hard that you will not return from it, say, get on the bus and go to the city. It happened that Georgiy Viktorovich Mantsarev said if we eat in the bush then don’t complain, as they clap you and they will clap you, there is a recording on the disk. Then came constant nagging from the master and from the workers. From AV Agafonav and AA Ismailov various kinds attempts to set me up, preventing me from completing tasks. When I told my superiors about obvious violations, they told me if I didn’t like it, quit, and they deliberately did not take any measures. Because of this, the workers began to behave even more impudently? The bosses of Yu A Zadorozhny, together with the foreman GV Mantsarev, with threats of dismissal, forced me to sign as punishment for the reduction of the KTU on January 26, 2015, they refused to accept the act of refusal to sign, but they said we would sew such an article and fire him according to the article, Yuri Alekseevich Zadorozhny said, he threatened to call criminologists and fire him, he said For the foreman, call the criminologists, we will draw up a refusal to work; this is the fact of discrimination; there is a record on the disk. AV Agafonava and AA Ismailova are inciting the entire brigade against me and seeking my dismissal. It happened that Yuri Alekseevich Zadorozhny did not let me go to general meeting. In the operational department, a week later the foreman corrected the task for it was not completed and this Wrote statements addressed to the head of the VV Deis department, but this did not lead to anything, it became even worse; and by the topic of the conversation, the boss, Yu A Zadorozhny, made it clear that since I am complaining, it means I am not a person and should not work here, and the workers came to the same opinion, this is discrimination. They began to find fault with everything even more about the snow and forced them to chisel the ice down to the asphalt and so on. There are logs at the workplace as evidence of the issuance of a shift assignment, that I am the only one clearing the snow in the team.
Having waited for leave, I went to the office and wanted to make an appointment with the head of the VV department, Deis was not allowed in, received his deputy. For all of the above, he took measures against me, namely, he said that he would establish control over the supervision of standardized tasks, and since before that the management had rudely threatened to fire me for article, having established supervision and forced dismissal in place of the foreman, I regard this as discrimination for complaining. There is evidence on audio recordings, all the insults are clearly visible and there is a video of smoking in a public place at work. I ask for help and to understand the current situation, since when I contact my superiors, measures are taken only against me, namely, constant attempts to punish me for nothing and they want to establish supervision over my work. The bosses openly force me to resign, I think there are signs of discrimination here. And the employer’s complete inaction in this situation.
In accordance with Article 3. Prohibition of discrimination in the sphere of labor (extract) Should only the professional qualities of the employee be of interest?
I beg
Recognize that discriminatory actions were made in my relationship
Collect cash, which I lost as a result of discrimination, lowering the KTU by 50% The cost of the claim is calculated by the organization. Eliminate discriminatory requirements and conditions, and compensate for moral damage in the amount of 50,000 Rubles

Attachments: A copy of the not accepted act of refusal to review the reduction in the labor participation rate (KTU) 01/26/15
Copy of the Explanatory Note dated January 19, 2015 addressed to the head of the VV Deisu department
All evidence on the disc of audio and video recordings on the disc and photographs of evidence of the insult of smoking in a public place are also indicated and the sources of the recording
All the magazines at the workplace can be seen there; I am the only one cleaning the snow.
A copy of the claim for the defendant.

Signature Date

Tell me what’s wrong here, why doesn’t the court accept it?

You are presenting everything too chaotically. First, the claims must be clearly stated. In your case, you need to ask the court to establish the fact of discrimination in labor relations, stop discrimination in labor relations, compensate for lost earnings, and compensate for moral damage. The statement of claim itself should also be called “a statement of claim to establish the fact of discrimination in labor relations, to stop discrimination in the field of labor relations, to compensate for lost earnings, and to compensate for moral damage.” Secondly, it is necessary to express your thoughts more clearly and closer to the rules of office work. You describe many facts that have nothing to do with discrimination at all. For example, systematic kicking, slapping, pushing, whistling in the ear, smoking in your presence in a car with closed windows- this is not discrimination, but torture and is a criminal offense. In this regard, you need to write a separate statement to the police. As for discrimination, it can only include the obligation of you alone to do the hardest work (clearing snow, breaking ice) with a simultaneous reduction in wages. Further, threats to fire you are also not discrimination, but psychological pressure from the outside for the purpose of your voluntary dismissal. Threats to swat you are already a threat to life, physical harm, which is also not discrimination, but a criminal offense. This should also be included in the statement to the police, indicating the specific perpetrators who made such threats against you. So, remove everything unnecessary from the statement of claim. Leave only the facts of forcing you alone to do the most difficult work, the failure of your superiors to respond to your complaints about such actions on the part of the foremen, the illegal reduction of your wages for the same work performed.

Discrimination in labor is a fairly common practice in Russia. But in fact, proving its presence is a rather labor-intensive process, and in some cases impossible. Therefore, it is important to understand what discrimination at work is and what to do about it.

Regulatory regulation

Inadmissibility different types discrimination in general in the Russian Federation is enshrined in a number of laws. International legal acts also play a role. Among them are:

Article 2-4 of the Labor Code of the Russian Federation;
Universal Declaration of Human Rights of 12/10/48;
ILO Declaration of June 19, 1998;
Article 37 of the Constitution of the Russian Federation;
Art. 132 Labor Code of the Russian Federation.

All of these laws and regulations spell out types of discrimination. But in fact, the list is not just broad, but quite often applicable to employees of various organizations.

The Labor Code of the Russian Federation states that every person has the right to work and its implementation. No one is limited in such a right, their freedoms, in receiving any benefits with other advantages, regardless of specific subjective factors: age, language, gender, nationality, and so on.

Accordingly, according to the law, work should be assessed only by the business qualities of the employee performing it. Therefore, violation of these statements is referred to as discrimination. Discriminatory criteria include:

Place of residence;
Origin;
Employee race;
Family status;
Religious and political beliefs;
Language;
Age;
Property status.

If, during an interview or in the process of performing work, the employer puts forward these points as criteria for selection, we will already be talking about discrimination in the labor sphere. But another type of discrimination that is often kept silent is when you compare it with the pay of other employees in the same position as the employee for biased reasons - a young employee, refusal of corporate events, and so on.

Important! It is considered a fairly common practice in relation to HIV-infected people. In fact, the diagnosis is not a factor influencing the business type of a person’s qualities. The legislation has introduced a ban on this - Law No. 38-FZ of March 30, 1995.

Today, the most common types of discrimination in the labor sphere in the Russian Federation are restrictions on gender, age or disability. Next, religious affiliation plays a role, appearance human and trade union activities. Discrimination is divided into three types:

Straight- that is, if there is a specific list of criteria-requirements for applicants, which may indicate the age range, gender, the employee does not have a car, and many other factors.
Indirect type can be discerned, for example, in the underpayment of homeworkers compared to office workers under the pretext of a lack of control by the employer over the presence of a subordinate in the workplace, or understatement of wages under the pretext of labor flow.
Gender type– refusal to hire women and girls who may have children or already have them, but of a small age.

Thus, discrimination can be considered to be a young mother (Article 64 of the Labor Code of the Russian Federation), applicants. Often, even if they are able to perform duties on an equal basis with healthy people. Moreover, for some employers it is easier to pay a small fine for this than to re-equip workplace and approach to it in accordance with legal requirements.

What to do if you have it

If such discrimination is detected, you can contact any of the following authorities:

Prosecutor's office.

But the problem often comes down to collecting the evidence base. The application must be accompanied by evidence of the manager’s misconduct, which was discriminatory in nature according to all required criteria, that is, it was a purely subjective opinion of the employer. The audio recording of the conversation is used as arguments, written explanation refusal to a desired position containing signs of infringement of the right to work.

An example of a court application is available for download.

Sample claim for employment discrimination

Liability for discrimination

If we start talking about responsibility, then in general the concept is relative. In reality, the employer has the right to select employees at his own discretion, but he also cannot refuse people based on subjective characteristics. According to the Code of Administrative Offenses of the Russian Federation Article 5.62, there are two types of fines for a violation of this type:

For civilians– 1000-3000 rubles;
– 50,000-100,000 rub.

In case of refusal, the applicant or employee is quite capable of counting on judicial procedure for the payment of funds falling under the ““ category. The amount will depend on the specific offense. But forced recruitment cannot be arranged, since the selection of specific candidates for the proposed positions is the prerogative of organizations and is more a right than an obligation.

Helpful information

According to the characteristics of work in the proposed position;
If increased social protection is necessary, if a specific range of responsibilities is required that is incompatible with it;
When national security interests are affected.

Judicial practice has shown that it is quite difficult to prove discrimination. In fact, a written, even verbal refusal by employers is not always motivated or explained by anything. At most they say that there is no required vacancy or there is a lack of qualifications, experience, and so on. Statistics show that in domestic courts such cases are most often decided in favor of the defendant.

How to combat discrimination in the labor market? Watch the video below:

SOLUTION

In the name of the Russian Federation

Severo-Yeniseisky District Court of the Krasnoyarsk Territory, Russian Federation, composed of:

presiding judge N.A. Timoshina, under secretary O.V. Shakhova,

with the participation of Deputy Prosecutor of the North Yenisei region Kokorin M.V.,

representative of the defendant D.N. Shakhova, acting on the basis of power of attorney No. 60D\13 dated April 25, 2013,

having considered in open court civil case No. 2-159/2013 on the claim of FULL NAME1 against LLC “FULL NAME11” about:

recovery of compensation for moral damage in the amount of 118,190 rubles 44 kopecks caused by discrimination in the form of involving an employee in forced labor;

Oblige to comply with the order of the State Labor Inspectorate in No.-OB\12 dated DD.MM.YYYY

Installed:

DD.MM.GGGGFIO1 appealed to the North Yenisei District Court with the above requirements (case sheets 3-8 v.1), the case was assigned number 2-93\2012. DD.MM.YYYY the plaintiff clarified his demands (case file 35 v. 1). DD.MM.YYYY the proceedings in the case were suspended until a decision was made on the complaint of LLC “FULL NAME11”. (case file 104 v.1). DD.MM.YYYY the proceedings in the case were resumed (case file 135) and DD.MM.YYYY a decision was made to refuse to satisfy the stated requirements (case file 152-155). The appeal ruling of the second court from DD.MM.YYYY canceled the decision and sent the case for a new trial, since no decision was made on the specified requirements sent by the plaintiff to the court DD.MM.YYYY (case sheets 169-172). The case is assigned No., accepted for proceedings DD.MM.YYYY

DD.MM.YYYY plaintiff FULL NAME1 again submitted a petition to the court with additions, clarifications and changes to the statement of claim, in which he asks:

Oblige LLC "FULL NAME11" to fulfill the order of the State Labor Inspectorate in No.-OB/12/3 dated DD.MM.YYYY, collecting from the Defendant in favor of FULL NAME1 172959 rubles 32 kopecks.

Oblige LLC "FULL NAME11" to independently accrue and pay interest for late payments under Art. Part III > Section XI. Material liability parties employment contract> Chapter 38. Financial liability of the employer to the employee > Article 236. Financial liability of the employer for delay in payment wages and other payments due to the employee" target="_blank">236 Labor Code of the Russian Federation, starting from the conditional date DD.MM.YYYY to the day of actual payment.

Attach, as evidence, the materials of civil case No. 2-238/2011.

Involve the State Labor Inspectorate as third parties (without stating independent requirements).

He asks to consider the case in his absence, in support of the claim he refers to the fact that in the framework of civil case No. “Additions to the statement of claim in civil case No. 2-93/2012” dated DD.MM.YYYY were sent to the North Yenisei District Court , with which he, FULL NAME1, changed and clarified his claims, namely:

“In civil case No. 2-26/2012, I filed claims against LLC “FULL NAME11” for the collection of overtime debt (this is the subject of the claim) as a result of violation of Art. (this is the basis of the claim). And in civil case No. 2-159/2013, I asked and ask that the basis of my claims be considered a violation of my intangible constitutional right to remuneration for work, without any discrimination, which is enshrined in Part 3 of Art. RF. The subject of my claims in civil case No. 2-159/2013 is literally interpreted differently.

INSTRUCTION GIT

The Defendant’s position regarding the order of the State Labor Inspectorate in No. OB/12/3 dated DD.MM.YYYY is clear to me. I consider this position to be erroneous, unfounded and unlawful. I filed a complaint with the State Labor Inspectorate while I was still in an employment relationship with LLC “FULL NAME11”. The inspection of my complaint to LLC “FULL NAME11” was started when I was still in an employment relationship with the Defendant, namely with DD.MM.YYYY (this is reflected in the inspection report No. OB/12/2 from DD.MM.YYYY, which is in the case). Inspection report No.-OB/12/2 dated DD.MM.YYYY and order No.-OB/12/3 dated DD.MM.YYYY were sent to the Defendant in April 2011. Since the Defendant did not even try to appeal the order of the State Tax Inspectorate No. dated DD.MM.YYYY within the time period established by law (10 days), it was already in May 2011. automatically came into force. The date of my dismissal is DD.MM.YYYY (indicated in the work book, a copy of which is on file), the date I received work book- DD.MM.YYYY I provide these dates in order to once again confirm that, by applying to the State Labor Inspectorate (one of the ways to protect violated rights provided for by law), I did not violate the deadlines for applying for my protection, provided for in Art. Part V > Section XIII. Protection of labor rights and freedoms. Consideration and resolution of labor disputes. Responsibility for violation of labor legislation and other acts containing labor law norms > Chapter 60. Consideration and resolution of individual labor disputes > Article 392. Time limits for applying to court for resolution of an individual labor dispute" target="_blank">392 Labor Code of the Russian Federation, for which The Defendant persistently refers. Protecting my rights, the State Labor Inspectorate conducted an inspection and issued an order No. dated DD.MM.YYYY, obliging the Defendant to correct all violations of labor legislation, also without violating these deadlines. At this time, there are no disputes between me and the LLC "FULL NAME11" was not considered in court in a lawsuit and there were no court decisions that entered into legal force. The State Labor Inspectorate issues orders only if the facts of violation of labor legislation are obvious, which is what was done in my case.

Is it possible to doubt the fact that overtime hours are paid in accordance with Art. or that vacation pay is accrued in accordance with Decree of the Government of the Russian Federation No. dated DD.MM.YYYY? The answer to this question is obvious - there are no other ways provided for by the legislation of the Russian Federation!

The order of the State Labor Inspectorate in No. OB/12/3 dated DD.MM.YYYY was not canceled by anyone and the courts of four instances (dated 1901/2012 - Kirovsky District Court) were recognized as legal and justified, therefore, by virtue law, namely: ILO Convention No., ratified by Federal Law dated DD.MM.YYYY No. 58-FZ; Art. , Part V > Section XIII. Protection of labor rights and freedoms. Consideration and resolution of labor disputes. Responsibility for violation of labor legislation and other acts containing labor law norms > Chapter 57. State control (supervision) and departmental control over compliance with labor legislation and other regulatory legal acts containing labor law norms > Article 357. Fundamental rights of state labor inspectors" target ="_blank">357 of the Labor Code of the Russian Federation; Art., Russian Federation, must be complied with by the Defendant.

The Defendant's opinion that compliance with the instructions of the State Labor Inspectorate is voluntary is erroneous. Not only Art. Part V > Section XIII. Protection of labor rights and freedoms. Consideration and resolution of labor disputes. Responsibility for violation of labor legislation and other acts containing labor law norms > Chapter 57. State control (supervision) and departmental control over compliance with labor legislation and other regulatory legal acts containing labor law norms > Article 357. Fundamental rights of state labor inspectors" target ="_blank">357 of the Labor Code of the Russian Federation provides for the mandatory execution of the GIT order, but also:

Protection of rights and freedoms by all means not prohibited by law (Part 2 of Art. RF).

The representative of the Defendant in his response refers to the Appeal ruling of the first court dated DD.MM.YYYY No. regarding the fact that it is not possible to enforce the order of the State Tax Inspectorate in court by filing an independent statement of claim. Only Ms. FULL NAME4 slightly confuses the meaning of these words. This restriction applies to the State Labor Inspectorate itself, but not to the employee in whose favor the order was issued.

The order of the State Labor Inspectorate in No. OB/12/3 from DD.MM.YYYY was issued in relation to LLC “Full Name11”, but in defense of my violated labor rights, and it still has legal force, and to this day ignored by the Respondent. GIT really cannot put forward independent claims in favor of third parties, but can only administratively demand payment of a fine, which the GIT actually did back in 2011 (in court a fine of 10,000 rubles was collected from LLC "FULL NAME11" for late execution instructions No.-OB/12/3 dated DD.MM.YYYY But payment of an administrative fine does not entail the repayment of this instruction and, on the basis of Part 2 of Article, retains the employer’s obligation to fulfill it.

I, as a person in whose favor the order No.-OB/12/3 dated DD.MM.YYYY was issued, have the legal right to file a civil claim in court against LLC “FULL NAME11” to compel compliance with this order in order to protect my rights and freedoms violated by the Defendant.

Failure by the Defendant to fulfill his direct duties regulated by Part 2 of Art. , including failure to comply with the instructions of the State Tax Inspectorate, must be assessed as unlawful actions (inaction) of the employer, by which the Defendant places himself above all the Laws of the Russian Federation, and drives me into the status of a powerless citizen, which brings me enormous mental suffering and humiliates me as a person. Therefore, in accordance with Art. and Art. The defendant must bear the burden of financial responsibility.

Violating our Russian legislation, the Constitution of the Russian Federation, ignoring the responsibilities outlined in Part 2 of Art. , The defendant belittled my rights and freedoms given to me under Part 3 of Art. ; Part 2 Art. RF and regulations international law, thereby placing me in less profitable terms in comparison with those employees of the Russian Federation who work in organizations where the rights and freedoms of citizens of the Russian Federation are not infringed. And this is nothing more than signs of discrimination.

DISCRIMINATION.

For some reason, the Respondent's response does not in any way address the issue of discrimination. But discrimination against me by the Defendant is obvious and continues to this day.

!) Part 2 of Article 23 of the “Declaration of Rights and Freedoms of Man and Citizen” from DD.MM.YYYY establishes the right of everyone to equal remuneration for equal work, without any discrimination.

2) Convention No. dated DD.MM.YYYY “On discrimination in the field of work and occupation” in paragraph 1 of Article 1 gives an explanation of the term “discrimination” - this

a) any distinction, exclusion or preference based on race, color, sex, religion, political opinion, nationality or social origin and resulting

elimination or violation of equality of opportunity or treatment in labor and occupation;

B) any other distinction, exclusion or preference having the effect of eliminating or impairing equality of opportunity or treatment in the field of employment or occupation.

3) The Universal Declaration of Human Rights (adopted by resolution 217A (III) by the UN General Assembly from DD.MM.YYYY) in Part 2 of Art. 23 enshrines the right of every person, without any discrimination, to equal pay for equal work. A Art. Article 30 of this Declaration states: “Nothing in this Declaration shall be interpreted as granting to any State, group of persons or individuals the right to engage in any activity or take any action aimed at the destruction of the rights and freedoms set forth in this Declaration.

2. Did not pay for sick leave in full (violation of Art. ; ; ; Law No. 255-FZ; Part 3 of Art. RF)

3. Deliberately underestimated the amount of payment for overtime hours for more than 5 years and this was proven during an inspection by the State Labor Inspectorate (violation of Art. ; ; ; Part 3 of Art. RF)

4. He underestimated the amount of average earnings when paying for vacation and severance pay upon dismissal, and this is confirmed in a visual calculation given in the “Additions to the statement of claim for the year / dated DD.MM.YYYY (violation of Art. ; ; ; ; Labor Code of the Russian Federation; Part. 3 Article of the Russian Federation)

5. Violation of the terms of payment upon dismissal and this was confirmed in the “Additions to the statement of claim...” dated DD.MM.YYYY (violation of Art. 3;22;135;139;140; Labor Code of the Russian Federation; Part 3 of Art. RF )

6. And to top it all off, the Defendant neglected my right to defense (Part 2 of Art. RF) and ignored his duties enshrined in Part 2 of Art. - this is expressed in the failure to comply so far with the instructions of the State Tax Inspectorate in No. dated DD.MM.YYYY.

I hope that, dear court, will agree that the Defendant’s guilt in these violations is obvious and proven and that discrimination on the part of the employer took place and has not stopped to this day.

The Defendant elevated his interests above my rights and freedoms given to me by the Constitution of the Russian Federation and other Russian laws and regulations. Thus, he not only worsened my financial situation, but also significantly reduced my standard of living compared to those employees whose employers conscientiously comply with all the laws of the Russian Federation and do not violate the Constitution of the Russian Federation. And this puts a lot of pressure on me as an individual, I feel limited in my rights and freedoms due to the actions of the Defendant, which humiliates me as an individual, as a citizen of the Russian Federation. I feel very ashamed that our country allows such discriminatory acts on the part of some employers.

Taking into account all the above facts of violations of my non-property (intangible) constitutional right (good), enshrined in Part 3 of Art. RF and Part 2 of Art. RF and the blame for this undoubtedly falls on the Defendant, then, in accordance with Art. and Art. , I have the right to compensation for moral damage caused to me by the discriminatory actions of the Defendant (clause 2 of the Plenum Resolution Supreme Court RF from DD.MM.YYYY No., as amended from DD.MM.YYYY).

By virtue of clause 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated DD.MM.YYYY No. moral damage is recognized by law as non-property damage, despite the fact that it is compensated in monetary or other material form. It follows from this that if my non-property constitutional right to wages without any discrimination is violated, I have the right to compensation for moral damage, which is also recognized as a non-material benefit, which means Art. (Clause 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. dated DD.MM.YYYY).”

The representative of the interested party, the State Labor Inspectorate, did not appear and asked to consider the case in their absence. In support of the claim, they explained: an order from the State Labor Inspectorate to pay for overtime work, recalculate vacation pay, and pay compensation for the delay on the basis of Art. , Part III > Section XI. Material liability of the parties to an employment contract > Chapter 38. Material liability of the employer to the employee > Article 236. Material liability of the employer for delay in payment of wages and other payments due to the employee" target="_blank">236 of the Labor Code of the Russian Federation has actually been recognized as legal. Until now, in due to the lack of a mechanism for implementing the employer’s instructions, the order was not fulfilled.

The representative of the defendant, Shakhova D.N., did not object to considering the case in the absence of the plaintiff and the interested party.

“to charge FULL NAME1 monetary compensation in the amount of 1/300 of the refinancing rate, for each day of delay for late payment of overtime work outside the accounting time, underestimation of average earnings, when paying vacation pay, the requirement of Art. Part III > Section XI. Material liability of the parties to the employment contract > Chapter 38. Material liability of the employer to the employee > Article 236. Material liability of the employer for delay in payment of wages and other payments due to the employee" target="_blank">236 of the Labor Code of the Russian Federation for the period of work from December 2006" .

Prescription in deadlines was not appealed. DD.MM.YYYY LLC "FULL NAME11" was brought to administrative responsibility under Part 1 of Article 19.5 of the Code of Administrative Offenses of the Russian Federation, for failure to comply on time with the instructions of the State Labor Inspectorate by the Decision of DD.MM.YYYY of the Kirov District Court, which entered into legal force by an appeal ruling from the DD. MM.YYYY, in satisfaction of the application of LLC "FULL NAME11" to cancel the decision of the State Labor Inspectorate dated DD.MM.YYYY

In accordance with paragraph. 1 part 1 article Part V > Section XIII. Protection of labor rights and freedoms. Consideration and resolution of labor disputes. Responsibility for violation of labor legislation and other acts containing labor law norms > Chapter 57. State control (supervision) and departmental control over compliance with labor legislation and other regulatory legal acts containing labor law norms > Article 356. Basic powers of the federal labor inspectorate" target ="_blank">356 Labor Code The Federal Labor Inspectorate of the Russian Federation exercises federal state supervision and control over employers' compliance with labor legislation and other regulatory legal acts containing labor law norms, through inspections, issuing mandatory orders to eliminate violations, drawing up protocols on administrative violations within the scope of authority, training others materials (documents) on bringing the perpetrators to justice in accordance with federal laws and other regulatory legal acts of the Russian Federation.

DECIDED:

To satisfy the requirements of Full Name 1 to LLC “Full Name 11”:

Recognize the actions and decisions of the Defendant as discriminatory (not paying full wages, unlawful actions (inaction) of the employer to comply with the order of the State Labor Inspectorate in No. B/12/3 dated DD.MM.YYYY, etc.)

Stop discrimination against Full Name1 by LLC "Full Name11" and recover from LLC "Full Name11" in favor of Full Name1 compensation for moral damage caused by discriminatory and illegal actions (inaction) of the employer in the amount of 170,000 rubles.

Oblige LLC "FULL NAME11" to fulfill the order of the State Labor Inspectorate in No.-OB/12/3 dated DD.MM.YYYY, collecting from the Defendant in favor of FULL NAME1 172959 rubles 32 kopecks.

Oblige LLC "FULL NAME11" to independently accrue and pay interest for late payments under Art. Part III > Section XI. Material liability of the parties to the employment contract > Chapter 38. Material liability of the employer to the employee > Article 236. Material liability of the employer for delay in payment of wages and other payments due to the employee" target="_blank">236 of the Labor Code of the Russian Federation, starting from the conditional date DD.MM .YYYY on the day of actual settlement together with the amount of debt - refuse in full.

The decision can be appealed on appeal, within a month, to the judicial panel for civil cases of the Krasnoyarsk Regional Court, with the filing of a complaint through the North Yenisei District Court.

Judicial practice on the application of Art. 151, 1100 Civil Code of the Russian Federation

The right to work is one of the fundamental human rights, and the importance of working in order to meet one’s needs is undeniable. However, the undeniable significance of this right is not enough to prevent its restrictions.

In modern Russian conditions Cases of discrimination in labor relations occur every day on completely different grounds, and, most importantly, this behavior of employers has become quite familiar to employees. Thus, judicial practice on this issue is not extensive, which is not evidence of the absence of a problem, but rather illustrates workers’ ignorance of their rights and responsibilities and their reluctance to initiate labor disputes.

The problems of ensuring equal access to work and equal pay for it remain one of the most pressing social problems domestic and global scale. Labor discrimination is an unacceptable phenomenon that must be opposed.

The concept of discrimination in labor relations

Currently, discrimination is one of the most common violations of human rights, which occurs in almost all spheres of society. In a broad sense, discrimination (from Latin discrimination - difference) is the deprivation or restriction of human rights on any basis/motive. In the legal literature, various types of discrimination are distinguished depending on the area in which it occurs.

In this article we are only interested in discrimination in the field of labor relations. Let's take a closer look at this concept.

The problem of discrimination in labor relations is global in scope and occurs in all countries. In light of this, its regulation by international normative legal acts acquires special significance. Let us recall that Art. 17 of the Constitution of the Russian Federation recognizes and guarantees the rights and freedoms of man and citizen in accordance with the generally recognized principles and norms of international law, which also proclaim the human right to work.

Thus, turning to the Universal Declaration of Human Rights, it is necessary to note that the very concept of “discrimination” is not given in it, however, in Art. Article 7 states that: “All persons have the right to equal protection against any discrimination contrary to the Declaration and against any incitement to such discrimination.”

With the advent of the International Labor Organization, a specialized agency dealing with the regulation of labor relations, the concept of “discrimination” was formulated. In Art. 1 of the Convention on Discrimination in Employment and Occupation stipulates that the term “discrimination” includes:

a) any distinction, exclusion or preference based on race, colour, sex, religion, political opinion, national origin or social origin and having the effect of eliminating or impairing equality of opportunity or treatment in employment or occupation;

(b) any other distinction, exclusion or preference having the effect of eliminating or impairing equality of opportunity or treatment in employment or occupation, as may be determined by the member concerned in consultation with representative organizations of employers and workers, where such exist, and with others relevant authorities.

Also, any distinction, exclusion or preference based on specific requirements related to certain work, are not considered discrimination.

Besides, International organization Labor proclaimed principles concerning fundamental rights in the labor sphere, among which was the principle of non-discrimination in the field of work and occupation. It should be noted that the terms “work” and “occupation” include access to vocational training, access to work and various occupations, as well as working conditions.

When examining Russian legislation, first of all it should be noted that the Constitution of the Russian Federation enshrines the legal basis for preventing discrimination, including labor discrimination. According to Part 2 of Art. 19 of the Constitution, the state guarantees equality of rights and freedoms of man and citizen, regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, as well as other circumstances. Any form of restriction of the rights of citizens on the basis of social, racial, national, linguistic or religious affiliation is prohibited. Part 3 Art. 19 of the Constitution guarantees that men and women have equal rights and freedoms and equal opportunities for their implementation. At the same time, Part 3 of Art. 37 of the Constitution of the Russian Federation proclaims that everyone has the right to remuneration for work without any discrimination and not lower than that established by federal law minimum size wages.

In accordance with Art. 3 of the Labor Code of the Russian Federation, everyone has equal opportunities to exercise their labor rights. At the same time, no one can be limited in labor rights and freedoms or receive any advantages depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence, attitude towards religion, beliefs, membership or non-membership in public associations or any social groups, as well as other circumstances not related to the employee’s business qualities.

Clarifications regarding the concept of “business qualities of an employee” were made in the resolution of the plenum of the Supreme Court of the Russian Federation “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.” The business qualities of an employee should be understood as the ability of an individual to perform a certain job function, taking into account his existing professional qualifications (for example, the presence of a certain profession, specialty, qualification), personal qualities employee (for example, health status, presence of a certain level of education, work experience in a given specialty, in a given industry).

It should be noted that the Labor Code of the Russian Federation does not formulate a clear concept of “labor discrimination”, which gives additional opportunity unscrupulous employers to interpret the rules in a way favorable to themselves. A unified interpretation of this term was given in the resolution of the Plenum of the Supreme Court of the Russian Federation “On the application of legislation regulating the labor of women, persons with family responsibilities and minors.” Discrimination in the world of work should be understood as a difference, exclusion or preference that results in the elimination or violation of equality of opportunity in the exercise of labor rights and freedoms or the receipt of any advantages depending on any circumstances not related to the business qualities of the employee, other than those determined by the inherent this species labor requirements established by federal law, or due to the special care of the state for persons in need of increased social and legal protection.

Thus, having examined international and Russian legislation, it should be noted that only recently in the Russian Federation, through judicial practice The concept of discrimination in the world of work was established.

Discriminatory circumstances in practice

Having defined what discrimination in the world of work is, we need to move on to specific, frequently encountered practical situations. It is important to note that discriminatory circumstances can occur at different stages of the employment relationship, and the employee needs to constantly remember his rights and freedoms and not be afraid to defend them in cases of violation.

Recruitment

In accordance with Art. 64 of the Labor Code of the Russian Federation, any direct or indirect restriction of rights or the establishment of direct or indirect advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, family, social and official status is not allowed status, age, place of residence (including the presence or absence of registration at the place of residence or stay), attitude to religion, beliefs, membership or non-belonging to public associations or any social groups, as well as other circumstances not related to business qualities workers. Exception in in this case There are situations in which the right or obligation to establish such restrictions or benefits is provided for by federal laws.

To find discriminatory circumstances at the time of hiring, you don’t need to search for a long time, but just look at advertisements about vacancies in companies and requirements for applicants. The most common of them, which are discriminatory:

Gender requirements (except for areas where female labor is prohibited);
Age requirements (upper/lower limit or both);
Requirements for place of residence/place of registration;
Requirements to provide documents not required by law;
Requirements to undergo medical examinations (at your own expense) in those areas of work where they are not mandatory;
Requirements for the absence/presence of children for women. The most ambiguous category of discriminatory circumstances. In one case, employers do not like women with small children who may often get sick, which will lead to frequent absences and low productivity of the employee. In another case, young girls who are about to get married or have recently gotten married will want children in the near future, and therefore will not work in the company for long and will go on maternity leave, which will later become parental leave.

This list of discriminatory circumstances is not exhaustive and depends on the sophistication of the employer.

Salary

According to Art. 132 of the Labor Code of the Russian Federation, the salary of each employee depends on his qualifications, the complexity of the work performed, the quantity and quality of labor expended and is not limited to the maximum amount, except in cases provided for by law. At the same time, any kind of discrimination in establishing and changing wage conditions is prohibited. In addition, the employer is obliged to provide employees with equal pay for work of equal value (Part 2 of Article 22 of the Labor Code of the Russian Federation). The most common discriminatory circumstances in this case are:

Low salary for the employee during the probationary period;

Variation in the level of remuneration depending on the conclusion of a fixed-term/indefinite employment contract;

Remuneration systems with personal allowances, which also make up a significant part of the employee’s salary. It is also important to note that the criteria by which this allowance is assigned are, as a rule, rarely achievable. Also, if there is personal hostility towards an employee, the employer can always interpret these criteria not in his favor;

An increase in wages for all employees, except for those who were subject to dismissal due to a reduction in numbers or staff.

Trade union activities

At present, quite often at enterprises it is observed that the employer is pursuing an anti-union policy. Most often this is justified special significance trade union organizations in protecting the rights of workers in labor disputes. Belonging to a trade union organization/actively working in it or, conversely, not being a member of a trade union/refusal to work in one in a company can be a discriminatory circumstance. Employees who are/are not members of a trade union organization may be subject to restrictions on their rights at different stages of the labor process. Here are the most common ones:

Deprivation of an allowance or bonus;

Obtaining work on a residual basis, in cases of its distribution by management;

Reduced working hours;

Additional sudden certifications, which result in suspension from work;

Disciplinary sanctions in the absence of offenses.

Vocational training, retraining

In this part of the labor process, discrimination is usually associated with the personal hostility of the employer. So, as mentioned earlier, a young girl will sooner or later want to have children and will leave her job due to pregnancy and childbirth, which some employers do not want at all. Therefore, by not allowing a girl to take advanced training courses or retraining, the employer can cause such an employee to have a qualification mismatch, hinder his further career growth and ultimately fire him.

In addition, in the Russian Federation, in some areas of activity, mandatory retraining of employees is provided, carried out at the expense of the employer. Discrimination in this case is expressed, as a rule, in refusing to pay for retraining to undesirable employees or requiring them to undergo this training at their own expense. Also, situations quite often arise in which the employer deliberately delays the process of retraining an employee (does not inform about the deadlines, does not provide necessary documents), the latter’s special right (certificate) expires and he is fired. In addition, it is possible in principle to retain the employee in his position, refusal to improve his qualifications, which leads to an imbalance of professional characteristics: experience, length of service, etc., but at the same time the absence career growth.

Career advancement

The most common discriminatory circumstance in the process of career development is the provision of advantages or restrictions in this to employees not in connection with their business qualities and contribution to work, but with some other circumstances. These could be: friendly and other close relationships, support from management in “surviving from the team” of other employees, fulfillment of individual instructions from the manager, not related to work and outside work time, etc.

Dismissal

Discrimination during dismissal from an enterprise is also not uncommon. The most in a simple way is the decision to reduce the number or staff of the company. In this case, the manager can almost painlessly fire an employee he does not like.

However, it is important to note that labor legislation clearly regulates the procedure for layoffs during liquidation of an organization. The most common discriminatory circumstance in this case is the dismissal of women, disabled people and other representatives of special categories of workers who need additional protection, and who certainly are not the first to be laid off during layoffs.

Another example of discrimination during dismissal is refusal to re-sign fixed-term contract with an unwanted employee at the end of his term.

Ways to protect against discrimination in the world of work

If an employee nevertheless notices discriminatory violations of his labor rights, he needs to develop a further strategy for protection. The main difficulty in protecting employees from discrimination in this area is the employer’s concealment of its discriminatory motives and actions, as if within the framework of procedures provided for by law. That is, discriminatory circumstances are in most cases difficult to prove. The evidence in this case may be writing, in the form of witness testimony, material evidence, expert opinions. However, the specific means of proof in such labor dispute is a comparison of the employer’s actions in relation to the discriminated employee and in relation to other employees who are in the same conditions, but are not subject to discrimination.

Russian legislation provides for the following methods of protection against discrimination in the world of work:

1. Going to court

In accordance with Art. 3 of the Labor Code of the Russian Federation: persons who believe that they have been discriminated against in the sphere of labor have the right to apply to the court for restoration of violated rights, compensation for material damage and compensation for moral damage.

Labor disputes fall under the jurisdiction of courts of general jurisdiction and are considered in district courts at the location/legal address of the employer. The employee must go to court within three months from the day he learned or should have learned about the violation of his rights. However, if we are talking about the illegal dismissal of an employee, then the period is extended to one month from the date of delivery of a copy of the dismissal order or from the date of issue of the work book (Article 392 of the Labor Code of the Russian Federation).

An employee can choose one of the following options for a claim:

In the statement of claim, ask the court to recognize any action of the employer as illegal and provide arguments as the basis(s), including the discriminatory nature of this action;

State two demands at the same time: to recognize any action of the employer as illegal, for example, dismissal, and to recognize this action as discriminatory;

Bring a completely independent claim to recognize any action or system of actions of the employer as discriminatory.

In addition, it is necessary to file a claim for compensation for moral damage, justifying your moral and physical suffering in the claim. The amount of monetary compensation is independently determined by the employee, but the final amount will be determined by the court, taking into account how it evaluates the evidence presented. Also, if the dispute concerns the difference in wages, then it is logical to present an independent demand for recovery of this difference.

Thus, an employee goes to court, as a rule, after his rights are limited due to discriminatory circumstances and if his situation is controversial and ambiguous and an assessment is required.

2. Contacting the prosecutor's office

The Prosecutor's Office oversees compliance with the Constitution of the Russian Federation and the implementation of all applicable laws, and is obliged to respond to reports of violations of citizens' rights, including reports of discrimination in the world of work. Thus, after checking information about discriminatory situations received from a company employee, the prosecutor’s office can issue his employer a binding order to eliminate violations (or a warning against committing misconduct, as a measure of preliminary control). In addition, in accordance with Art. 5.62 of the Code of the Russian Federation on Administrative Offenses, the prosecutor may initiate a case of an administrative offense, and the employer may initiate proceedings for violation of the rights, freedoms and legitimate interests of a person and citizen, depending on his gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence, attitude to religion, beliefs, membership or non-belonging to public associations or any social groups are subject to punishment in the form of a fine: for citizens in the amount of 1,000 to 3,000 rubles, and for legal entities in the amount of 50,000 to 100,000 rubles.

In practice, an employee turns to the prosecutor's office when he first suspects that his rights are being limited by his employer due to discriminatory circumstances. In such a situation, when prosecutors intervene, their warning is usually sufficient to change the situation in favor of the employee’s rights.

Legal restrictions on workers' rights

Current Russian labor legislation allows for some legal restrictions on employee rights. As noted earlier, in accordance with Part 3 of Art. 3 of the Labor Code of the Russian Federation does not constitute discrimination by establishing differences, exceptions, preferences, as well as restricting the rights of workers, which are determined by the requirements inherent to this type of labor established by federal law, or due to the special care of the state for persons in need of increased social and legal protection. That is, legitimate restrictions in the world of work may apply to certain categories of workers or based on the characteristics of a particular type of work.

So, in accordance with Art. 253 of the Labor Code of the Russian Federation limits the use of women’s labor in hard work, work with harmful and (or) dangerous working conditions, underground work (except for non-physical work and work on sanitary and consumer services), as well as work associated with lifting and manually moving heavy loads in excess of the maximum permissible standards. In addition, pregnant women are not allowed to work overtime and work at night (Part 5 of Article 96 and Part 5 of Article 99 of the Labor Code of the Russian Federation). It is important to note that these restrictions are primarily related to the need to protect women’s health and maternity protection, and therefore are recognized by law as permissible.

Minor employees are classified as requiring special protection. This is primarily due to their age characteristics and the impossibility of their work on an equal basis with adult workers. Thus, in accordance with the provisions of the labor legislation of the Russian Federation, an employment contract with a minor is concluded only from the age of 16, and after early age an agreement can only be concluded when they work in certain areas of activity and with the consent of parents/guardians. As with women, the use of minors in work with harmful and (or) dangerous working conditions and in underground work is limited. Performance specified works may cause harm to the health and moral development of minors. In addition to this, in labor legislation there is a restriction on the labor of minors in work that involves carrying (moving) heavy loads in excess of the established maximum standards.

In relation to people with disabilities, the legislation of the Russian Federation establishes rules for increased protection and there are certain preferences. Disabled people who receive an advantage in employment over other people take their places in accordance with special quotas for hiring disabled people, which is not a discriminatory circumstance in relation to others. The minimum number of special jobs for employing disabled people is established by the executive authorities of the constituent entities of the Russian Federation for each enterprise, institution, organization within the established quota for hiring disabled people. For employers whose number of employees exceeds 100 people, the legislation of the constituent entity of the Russian Federation establishes a quota for hiring disabled people in the amount of 2% to 4% average number workers. For employers whose number of employees is no less than 35 people and no more than 100 people, the legislation of a constituent entity of the Russian Federation may establish a quota for hiring disabled people in the amount of no more than 3% of the average number of employees. In addition, in the process of work, the involvement of disabled people in overtime work, work on weekends and at night is allowed only with their consent and provided that such work is not prohibited for them due to health reasons.

Based on the characteristics of the types of work, a significant number of restrictions are enshrined in the legislation of the Russian Federation. So, according to Part 1 of Art. 16 of the Federal Law "On the State Civil Service of the Russian Federation" a citizen cannot be accepted into the civil service in the case of a close relationship or relationship with a civil servant, if the position is filled civil service associated with the direct subordination or control of one of them to the other. This restriction is legal and is directly aimed at protecting against corruption situations.

The legislation of the Russian Federation restricts the employment of foreign citizens and stateless persons for a number of jobs. These works are related to the state security of the Russian Federation. So, in accordance with Art. 17 of the Federal Law "On Foreign Intelligence" by an employee of the agency foreign intelligence A citizen of the Russian Federation may be a citizen of the Russian Federation who does not have citizenship (nationality) of a foreign state and who, due to his professional and personal qualities, age, education and health status, is capable of fulfilling the duties assigned to him. Similar provisions are found in Federal law"ABOUT federal service security", Federal Law "On State Security", etc.

In addition, foreign citizens do not have the right to: be in municipal or public service; to be members of the crew of a Russian warship, to be commanders of a civil aviation aircraft, to be employed at facilities and organizations whose activities are related to ensuring the security of the Russian Federation. The list of such objects and organizations is approved by the Government of the Russian Federation. Also, foreign citizens are prohibited from holding other positions; admission is limited by federal law.

Thus, the current legislation of the Russian Federation establishes the principle of equality of opportunity for the implementation of labor rights, prohibits discrimination in the sphere of labor and establishes reasonable restrictions and preferences that are not discriminatory. At the same time, there are a number of measures in the legislation that protect employees from discrimination, such as a closed list and procedure for acceptable grounds for dismissal at the initiative of the employer, transfers, cases of suspension from work, etc. However, these standards are designed specifically for a bona fide employer. In another case, the employer abuses his rights and, taking advantage of the legal illiteracy of his employees, creates the illusion of lawful actions in those moments when discriminatory circumstances clearly exist. Workers, most often, even knowing about labor discrimination in the direction of their rights and freedoms, do not react properly, since they value their work and earnings. In such a situation, the employee faces difficulties in proving discrimination, but this should not be intimidating. Judicial practice in these cases illustrates this.

Case No. 2-1183/15 Frolovo

SOLUTION

In the name of the Russian Federation

Frolovsky City Court of the Volgograd Region, consisting of:

presiding judge Gaeva V.P.,

under secretary Alexandrova G.M.,

with the participation of Assistant Frolovsky Interdistrict Prosecutor O.V. Strakhovaya,

Having considered in open court a civil case on the claim of Yuri Vladimirovich Chuvashin against the Administration of the urban district of the city of Frolovo, Volgograd Region, to challenge the order, recognize the dismissal as illegal, reinstatement, recovery of average earnings for the period of forced absence, compensation for moral damage,

installed:

Chuvashin Yu.V. filed this claim in court, indicating that from DD.MM.YYYY he worked as director of the municipal autonomous institution “Multifunctional center for the provision of state and municipal services» urban district, as confirmed by employment contracts from DD.MM.YYYY, from DD.MM.YYYY, from DD.MM.YYYY, from DD.MM.YYYY, from DD.MM.YYYY g., from DD.MM.YYYY g.

Based on the order of the head of the administration of the city district FULL NAME10 DD.MM.YYYY from DD.MM.YYYY on the termination (termination) of the employment contract with the employee (dismissal), the employment contract dated DD.MM.YYYY No. with him was terminated on the basis of clause 2 Art. Part IV > Section XII. Peculiarities of labor regulation of certain categories of workers > Chapter 43. Peculiarities of labor regulation of the head of the organization and members of the collegial executive body organizations > Article 278. Additional reasons to terminate an employment contract with the head of the organization" target="_blank">278 of the Labor Code of the Russian Federation (in connection with the adoption by the body authorized by the owner of a decision to terminate the employment contract).

He considers this order illegal, subject to cancellation due to the fact that the dismissal was discriminatory in nature, was groundless, did not pursue any rational goals and was not caused by any objective circumstances that would justify the reasons for the dismissal.

Deciding on early termination labor relations with the head of the organization on the specified basis, the owner is obliged to take into account the legitimate interests of the organization and citizens using state and municipal services.

In accordance with Art. 5 of the City District Charter, issues of local importance include: ownership, use and disposal of property located in municipal property urban district.

By the decision of the Frolov City Duma “On the appointment to the position of head of the city district administration,” FULL NAME10 was appointed to the position of head of the city district administration.

The order for admission to municipal service from FULL NAME10 was appointed to the position of head of the city district administration for the term of office of the Frolov City Duma.

Resolution of the head of the city district administration 07.11.201-№ defines the powers of the head of the city district administration, according to which the head of the city district administration appoints and dismisses the heads of enterprises and institutions, the founder of which is the city district administration.

According to information about the legal entity of MAU "MFC", the founder of MAU "MFC" is the administration of the city district. It also follows from the charter of MAU “MFC” that the founder is the administration of the city district.

From the charter of MAU "MFC" it is seen that the competence of the founder in the field of management of MAU "MFC" includes the appointment of the head of the institution and the termination of his powers, as well as the conclusion and termination of an employment contract with him.

From the charter of the city district it follows that the functions and powers of the founder in relation to municipal enterprises and institutions, including approval of charters, appointment and dismissal of managers of these enterprises and institutions, hearing reports on their activities is carried out by the administration of the city district.

From the charter of the city district it follows that the administration of the city district is headed by the head of the administration of the city district, who manages it on the principles of unity of command.

Thus, the decision to terminate the employment contract with the plaintiff on the basis of clause 2 of Art. Part IV > Section XII. Peculiarities of labor regulation for certain categories of workers > Chapter 43. Peculiarities of labor regulation of the head of an organization and members of the collegial executive body of the organization > Article 278. Additional grounds for termination of an employment contract with the head of an organization" target="_blank">278 of the Labor Code of the Russian Federation adopted by an authorized person.

One of the plaintiff’s arguments in the demands for recognition of the dismissal as illegal, reinstatement, FULL NAME9 indicated that when he was dismissed from his position DD.MM.YYYY, the employer did not justify the early termination of the employment contract under clause 2 of Art. Part IV > Section XII. Peculiarities of labor regulation for certain categories of workers > Chapter 43. Peculiarities of labor regulation of the head of the organization and members of the collegial executive body of the organization > Article 278. Additional grounds for termination of an employment contract with the head of the organization" target="_blank">278 Labor Code of the Russian Federation.

According to the explanation of the constitutional and legal meaning of paragraph 2 of Art. Part IV > Section XII. Peculiarities of labor regulation for certain categories of workers > Chapter 43. Peculiarities of labor regulation of the head of the organization and members of the collegial executive body of the organization > Article 278. Additional grounds for termination of an employment contract with the head of the organization" target="_blank">278 of the Labor Code of the Russian Federation, given in the Resolution of the Constitutional Court Russian Federation No. 3-p dated March 15, 2005, as one of the foundations of the constitutional system of the Russian Federation, the Constitution of the Russian Federation enshrines freedom of economic activity, support for competition, recognition and protection of private, state, municipal and other forms of property (Article 8). The principle of economic freedom predetermines the main content of such rights enshrined in the Constitution of the Russian Federation, such as the right of everyone to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law (Article 34, part 1), as well as the right of everyone to own property, own , use and dispose of it both individually and jointly with other persons (Article 35, part 2).

By implementing these constitutional rights, citizens independently determine the scope of their economic activity, carry it out individually or jointly with other persons, in particular by creating commercial organization as forms of collective entrepreneurship, they choose an economic strategy for business development, using their property, taking into account constitutional guarantees of property rights and state support for fair competition.

This involves vesting the owner of the organization’s property with specific powers that allow him, in order to achieve maximum efficiency economic activity and rational use of property, both independently, under one’s own responsibility, appoint (select) a manager who is entrusted with managing the created organization, property belonging to the owner, ensuring its integrity and safety, and terminating the employment contract with him. However, the federal legislator, within the framework of appropriate regulation, must ensure a balance constitutional rights and freedoms, fair coordination of the rights and legitimate interests of the parties to the employment contract, which is a necessary condition for the harmonization of labor relations in the Russian Federation as a social legal state.

The legal status of the head of the organization differs significantly from the status of other employees, which is due to the specifics of his work activity, place and role in the management mechanism of the organization: he

manages the organization, including performing the functions of its sole executive body, and performs legally significant actions on behalf of the organization. By virtue of the concluded employment contract, the head of the organization in in the prescribed manner implements rights and obligations legal entity as a participant in civil circulation, including the powers of the owner to own, use and dispose of the organization’s property, as well as the rights and obligations of the employer in labor and other directly related to labor relations with employees, organizes management production process and joint work.

Speaking on behalf of the organization, the manager must act in its interests in good faith and reasonably. The quality of the manager’s work largely determines the compliance of the organization’s results with the goals for which it was created, the safety of its property, and often the very existence of the organization. In addition, the powers to manage property vested in the manager and the requirements placed on him in connection with this are assumed to be one of the necessary conditions successful cooperation between the owner and the person managing his property, the presence of trust in the relationship between them.

Therefore, the federal legislator has the right, based on the objectively existing characteristics of the nature and content of the work of the head of the organization, the labor function he performs, to provide for special rules for terminating an employment contract with him, which cannot be regarded as a violation of the right of everyone to freely dispose of their abilities to work, choose the type of activity and profession (Article, Part 1, Constitution of the Russian Federation) or as a violation of the equality of all before the law and the court and the equality of rights and freedoms of man and citizen guaranteed by the article of the Russian Federation. The restrictions on the labor rights of the head of the organization introduced by virtue of Article (Part 3) of the Constitution of the Russian Federation must be necessary and proportionate to constitutionally significant goals.

decided:

Declare illegal and cancel the order of the head of the administration of the urban district of the city of Frolovo, Volgograd Region, Full Name 10 No. 09.2015 on termination (termination) of the employment contract with the employee (dismissal).

To restore Yuri Vladimirovich Chuvashin to the position of director of the municipal autonomous institution “Multifunctional Center for the Provision of State and Municipal Services” of the urban district of the city of Frolovo, Volgograd Region, from DD.MM.YYYY.

To recover from the administration of the urban district of the city of Frolovo, Volgograd Region, in favor of FULL NAME1, wages for the period of forced absence in the amount of No., as well as compensation for moral damage in the amount of rubles.

The decision regarding reinstatement at work and recovery of wages for the period of forced absence is subject to immediate execution.

The decision can be appealed within a month from the date of production in final form to the Volgograd Regional Court by filing an appeal through the Frolovsky City Court

Judge V.P. Gaevaya

Court:

Frolovsky City Court (Volgograd Region)

Plaintiffs:

Chuvashin Yu.V.

Defendants:

Administration of Frolovo

Judges of the case:

Gaevaya V.P. (judge)

Judicial practice on:

Upon reinstatement at work

Judicial practice on the application of Art. 394 Labor Code of the Russian Federation