Art. 391 TC RF with comments

In the current legislation, there are cases when labor lawsuits are examined in court. It should be borne in mind that such applications can be submitted to the general jurisdiction. The grounds for filing suits are set in Art. 391 of the LC RF. With comments to the article we will get acquainted further.

Common Grounds for Applying to a Court

As you know, the employer has the right to applyemployee who has committed a violation of the law or the provisions of other normative (local, including) acts, disciplinary action. One of them is dismissal.

TC There are several articles in whichthere are grounds for termination of the contract. However, not in all cases the employee agrees with the actions of the employer. The law grants the employee the right to challenge dismissal. TC, in particular, fixes the possibility of applying to the labor inspectorate. However, as practice shows, in this body collective disputes are most often considered. What to do if you are fired from work without reason? Apply to the court. This form of protection is precisely stipulated in the Art. 391 TC RF.

The grounds for applying to the common jurisdiction are cases when:

The employee, employer, trade union, defending the interests of the employee, do not agree with the resolution of the Dispute Commission.
The employee sends the application bypassing labor inspection.
The application is submitted by the prosecutor, if the resolution of the commission contradicts the labor legislation and other acts containing the norms regulating labor relations.

Categories of claims

According to 391 Article TC, courts directly consider disputes on applications of the employer for compensation to employees of the harm caused to them, unless otherwise established by law.

The list of reasons why an employee can apply to a court is somewhat larger. In particular, instances are considered in disputes about:

Recovery at work. At the same time, the reason for the termination of the contract does not matter.
Change the wording of the grounds and the date of dismissal.
Transfer to another job.
Payment of the time of forced absenteeism or difference for the period of performance of the below-paid work.
Illegal behavior direct employer in the process of processing and protecting the personal data of the employee.

Additionally

A citizen can protect himself if his do not take to work on disrespectful, in his opinion, reasons. Article 391 of the Code provides for the additional rights of persons whose interests in the labor sphere are infringed.

According to the norm, persons working for citizens who do not have entrepreneurial status, as well as those in the state of religious organizations, can apply to the court.

Art. 391 TC RF also allows the consideration of individual disputes on applications of citizens who believe that they have been discriminated against.

Explanations

As stated above, Art. 391 TC RF can be applied when applying to the general jurisdiction. This means that the judge, having accepted the claim, must determine whether he follows from the employment relationship. Let us recall their signs.

Labor relations are based on an agreement between the employer and the employee on:

personal execution we will follow the established fee for a specific task;
submission of the employee to the rules established at the enterprise;
providing the employer with proper working conditions, stipulated by the legislation, local acts, agreement, collective agreement.

In addition, the court determines the jurisdiction of the case.

Important point

In accordance with Federal Law No. 147, 6 point 1 of part 23Articles of the CPC has lost its force. In accordance with this provision, previously all disputes arising from labor relations were considered in the world court as a first instance.

Currently, such cases are heard by the district court.

Individual labor disputes: deadlines

Article 46 of the Constitution guarantees the right of citizens to judicial protection. In the TC, in turn, there are no reservations about the mandatory nature of pre-trial treatment in labor inspection.

A citizen who believes that his right has been violated,can choose the way to protect. In particular, he has the right to apply to the dispute settlement commission first. The exception is those cases that are dealt with directly by the court. If the decision of the commission does not satisfy the citizen, he can file a claim. This must be done no later than 10 days from the date of the decision.

If the commission did not consider the submitted application within ten days, the interested subject has the right to transfer the case to the court.

Nuances

According to Art. 391 TC RF, the court can apply not only the employer and employee, but also the trade union and the prosecutor.

Let us turn to federal legislation. According to Article 23 of Federal Law No. 10, if the employer has committed a violation of the labor legislation, the trade union has the right, on its own initiative or at the request of members of the trade union or employees, to apply to the structures considering labor disputes.

In part 2 of article 390 of the TC there is a time limitto contact the employer or employee in court in case of their disagreement with the decision of the commission. It is 10 days. For the trade union and the prosecutor, the period is not fixed. It seems that they should also be guided by the provisions of Part 2 of Article 390 of the TC.

Discrimination

It can also take place within the professional activity of a citizen, and when the subject illegally dismissed. What to do in such situations, whom to contact? In such cases, a direct road to the court. It should be remembered that the fact of discrimination must be proved. It is advisable to take a copy of the tenant's instruction. If necessary, the employee may well take additional written explanations of the manager.

Discrimination can, for example, be expressed in that,that increase of salaries, tariff rates has concerned all employees, except the person who has reached a pension age. In the second situation, the employer who decided the employee dismiss, which provides for the possibility of a reduction, did not take into account the preemptive right of an employee to remain in office. About it it is spoken in 179 article of the Code.

Of course, not everyone knows, What to do if you are fired from work Without explaning the reason. First of all, it is necessary to understand that such actions of the employer are illegal. To begin with, you can consult the Labor Disputes Commission. In such cases, the help of a qualified lawyer will also be useful.

The main thing - when applying to the court to have evidence of discrimination. You can additionally take testimony from your colleagues.

It should be noted that a dismissed employee may direct employer several requirements. At the same time, with a part of them, he can apply to the dispute committee, with a part - directly to the court.

It should also be taken into account that the fact of termination of employment relationships does not affect the jurisdiction of claims.

In addition, if the employer decides to dismissarticle (regardless of what), it is necessary to check the correctness of the documentation, the employer observance of all the rules established by the TC.

Jurisdiction

Claims of the employer to the employee are sent to the place of residence of the latter. The employee submits an application for the location of the enterprise.

Meanwhile, the law provides for the possibility for an employee to choose the location of the case in cases when:

Professional activity of the plaintiffis carried out in the branch / representative office of the organization. Requirements for the enterprise arising from the activities of a separate subdivision may be sent to the court not only at the address of the head company, but also its subdivision.
The lawsuit relates to the restoration of labor rights,compensation for losses incurred by the employee in connection with his unlawful conviction, bringing to justice the Criminal Code, applying to him measures of restraint (a written undertaking not to leave, taking into custody), administrative sanction in the form of arrest. Such applications can be sent to the authority not only at the location of the organization, but also at the place of residence of the applicant.

This list is considered exhaustive.

Unreasonable refusal of admission to the enterprise

The Plenary Session of the Supreme Council in Resolution No. 2 of 17.03.2004

The court, in particular, points out that whenthe proceedings of such cases need to be taken into account that the right to work is enshrined in the Constitution. Citizens can freely dispose of their knowledge, abilities, choose a profession, occupation.

When concluding an agreement with the employerthe applicant has equal rights with other persons. No discrimination is allowed when citizens are employed. Any restrictions (direct or indirect), the establishment of benefits for individuals depending on race, sex, age, nationality, family, property, social status, place of residence and other circumstances not related to the professional qualities of a person are prohibited.

Meanwhile, when considering cases of denial ofhiring for the optimal coordination of the interests of the employer and the subjects wishing to conclude an employment agreement, one must take into account that, in accordance with the Constitution and the provisions of Article 22 of the TC (2 paragraph 1 of the part), the employer makes personnel decisions independently. The conclusion of the contract with the applicant is not the responsibility of the head. Moreover, there are no instructions in the Labor Code that the employer must immediately fill out vacancies when there are vacant positions.

In the dispute proceedings, the court must establish,whether the head of the vacancy available to him, through the placement of advertisements in the media, the notice to the employment service, the announcement in the speech before the graduates of educational institutions, etc., whether he held negotiations with a specific person (the claimant, in particular). The grounds for refusal to admit to work are determined without fail, and their validity and validity are checked.

In this case, the court must take into account that the failure towork on circumstances that are clearly discriminatory, is prohibited. For example, a woman can not be denied due to the fact that she is pregnant or has dependent children.

The current legislation containsan indicative list of grounds on which the employer can not refuse the applicant. In this regard, the court assesses the actions of the head and decides whether there are signs of discrimination in each case individually.

If it is determined that the refusal was related to the insufficient level of professional training of a person, the refusal is recognized as legitimate.

In the above Resolution,the attention of the courts to the fact that the refusal to employ people residing in the Russian Federation but not having a permanent registration at the address of residence / residence or the location of the enterprise is unlawful. Such actions of the employer violate the rights of individuals to freely move around the Russian Federation and choose a place of residence guaranteed by the Constitution. In addition, such a refusal contradicts the provisions of Part 2 of Article 64 of the TC, which do not allow to limit the opportunities or to establish benefits for individuals when applying for a job on this basis.

Special category of disputes

Often in practice, there are difficulties inconsideration of cases arising out of legal relations between a citizen shareholder and an AO or another participant in the company / partnership and this company / partnership. Such disputes are also subordinated to the courts of general jurisdiction.

The question of assigning such cases to the categoryLabor disputes are resolved on the basis of provisions of Article 381 of the LC. According to it, an unresolved disagreement between the employer and the employee on issues related to the application of labor standards, present in the legislation and other legal, including local acts, collective agreement, contract, which is declared to the body authorized by it, should be considered as an individual dispute. to solve.

Legal relationship between the sole executivethe structure of society (general director, for example), members of collegial structures on the one hand, and the societies themselves are based on labor contracts, cases are classified as labor disputes if they are related to the recognition of invalidity of decisions made by these executive bodies on:

early termination of powers;
restoration in posts;
payment of forced absenteeism.

The time for consideration of civil cases under the general rules is no more than two months from the date the claim was submitted to the court. Cases relating to recovery at work are studied and resolved within a month.

If within one dispute one partthe decision must be made not later than two, and on the other - one month, the case must be considered before the expiration of two months from the date of receipt of the claim in the court. That is, the general period provided by the legislation for the proceedings is valid.