Claim for reinstatement at work, recovery for forced absence

In what cases to apply

A labor dispute occurs when the parties do not reach an agreement. Common reasons: labor law has been violated, the application of Labor Code norms has been violated, and working conditions have been changed.

Let us list the areas of labor conflicts:

• dismissal and employment;
• labor conditions and safety;
• training;
• relations between the team and management;
• violation of social guarantees.

Types of labor disputes:

• individual (Article 381 of the Labor Code of the Russian Federation). They are determined by the employer-employee relationship;
• collective (one side of the conflict is the collective, the trade union).

Where to submit

The jurisdiction of labor disputes is regulated by Art. 23-32 Code of Civil Procedure of the Russian Federation.

The bulk of conflicts (Article 60 of the Labor Code of the Russian Federation) are considered by labor commissions of enterprises or in territorial inspectorates. But they do not resolve the following issues:

• about reinstatement after dismissal;
• payment of arrears of wages;
• for unreasonable refusal of employment;
• about illegal transfer to another position;
• about changing the article and date of dismissal;
• disciplinary claims;
• disputes regarding confirmation of the existence of an employment relationship;
• on payment of wages for forced absence;
• for violation of the rules for the use of personal data;
• in cases of discrimination of various types.

To protect the listed rights of an employee, send a statement of claim regarding a labor dispute to the district court (clause 1, part 1, article 22 of the Code of Civil Procedure of the Russian Federation). The court is considered as the last resort. The union representative will provide you with support - this is permitted by the procedure.

The following persons apply to the magistrate's court (Article 23 of the Code of Civil Procedure of the Russian Federation):

• to issue a court order in a labor dispute;
• for the purpose of collecting unpaid wages, vacation pay, compensation and other amounts due.

The employer also has the right to file a claim in the district court:

• to recover material damage from the guilty employee;
• if it is registered as an individual entrepreneur or is a religious organization.

A few words about territorial jurisdiction: starting from 2021, an employee has the right to go to court at his place of residence (Part 6.4 of Article 29 of the Code of Civil Procedure of the Russian Federation). This applies to work in branches and representative offices of non-resident organizations. To recover material damage from the guilty employee, the employer files a claim in the district court at the place of residence of the defendant or at the location of the organization, and the plaintiff chooses to appeal the place of execution of the contract or employment contract (Part 9 of Article 29 of the Code of Civil Procedure of the Russian Federation).

Main part

After filling out the introductory part, the main part is filled in. To begin with, the text: “Statement of Claim” is written in the center of the sheet. Below it is an explanation of what was the reason for the appeal (for example, non-payment of salary, maternity benefits, etc.).

Next, from a new line, there is a description of the circumstances due to which the labor dispute arose. All information is presented briefly, but in an understandable form, so that the judge has the opportunity to understand what actually happened. It is necessary to write from the very beginning, or rather from the moment when the relationship with the employer arose (the moment the contract was signed). If the question concerns wages, then the amount indicated in this document should be indicated.

IMPORTANT !!! Particular attention should be paid to the moment that the employee has the right to receive compensation payments. This requirement is based on the Labor Code, and more precisely on Articles 236, 21 and 22. To apply them, it is recommended that you carefully read them, as well as read the comments and legal practice on these articles.

What documents to collect

Prepare evidence to litigate the dispute. They will confirm the facts stated in the application. Verify written explanations with oral explanations in court.

We list the documents to substantiate the plaintiff’s position:

• copies of the plaintiff’s pre-trial appeals to the defendant (with seals, signatures and marks of acceptance for consideration);
• copies of pre-trial written responses;
• evidence of the facts stated in the claim (extracts of documents, copies of contracts, orders, receipts, salary slips, etc.);
• calculation of collected payments and their justification.

IMPORTANT!

Please note: copies of materials are submitted according to the number of parties to the proceeding.

The employer’s materials, which he refuses to provide for the consideration of the claim, are requested by the court after the petition of the plaintiff.

Procedure for forming a commission

Inspections can be created at an enterprise on the initiative of workers, a trade union or the company administration. Regardless of who wished to form the commission, it makes decisions, the implementation of which is mandatory for all participants in the controversial situation.

You may be interested in: The procedure for conducting a special labor assessment

Stages of formation:

Sample order to create a commission

The procedure for considering conflicts comes into legal force only after the corresponding order is signed. It must contain the following information:

• Title of the document;
• date and place of compilation;
• the name of the enterprise within which the inspection operates;
• who initiated the formation;
• list of powers;
• rules of conduct of business;
• the procedure for forming and changing the composition;
• liability for violation of established rules;
• list of members and procedure for their appointment;
• the competence of each participant;
• company seal and signatures of all participants.

According to the requirements of the law, each member of the work collective must familiarize himself with the order on the formation of the CCC for signature. Therefore, an additional statement is prepared on which each employee signs.

Sample order for the creation of a CTS:

Procedure for drawing up a statement of claim

In accordance with the requirements of civil procedural legislation, there are general rules for drawing up statements of claim.

The structure of the document consists (conditionally) of 4 parts:

1. Introductory.
2. Descriptive.
3. Motivational.
4. Resolute.

The first indicates: name, details of the parties, cost of the claim. It is located in the upper right part of the form.

In the second, the name is written in the center. The essence of the claim and the circumstances are described briefly but completely.

The third contains legal norms that substantiate the legality of the applicant’s claim.

The fourth part consists of a generalization and presentation of requirements to the defendant. Start with the word “please.”

We fill out the application in writing or electronically on the court’s website (Article 131 of the Code of Civil Procedure).

Step-by-step instructions for filing a labor claim

Step 1. Enter the name of the court to which the application was sent.

Step 2. Enter information about the plaintiff. For an individual this is full name, passport details, residential address, for an organization - name, location and legal address, information about the representative - name and address.

Step 3. Provide similar information about the defendant.

Step 4. Point out the non-compliance with labor laws that resulted in a violation of the plaintiff’s rights and formulate demands.

Step 5. You should describe the circumstances of the dispute - the grounds for filing an application. Give facts to prove them.

Step 6. Report the monetary value of the claim and the total amount to be recovered or disputed.

Step 7. In accordance with the law, provide information about the measures you have taken to resolve the dispute out of court.

Step 8: Make a complete list of applications.

Step 9. Enter the date of the application and sign the plaintiff (or his representative).

Include additional points in the application yourself:

• contact details of the plaintiff and his representative (telephone numbers, emails, etc.);
• other information for use in legal proceedings (for example, video and photographic documents, links to the media);
• The plaintiff's motions are submitted if available. These include requests to call witnesses and request evidence held by the defendant.

Mandatory applications are determined by law (Article 132 of the Code of Civil Procedure of the Russian Federation):

• copies of the claim are attached to the number of defendants and third parties;
• receipt of payment of state duty (for the organization);
• representative's power of attorney;
• documents confirming the circumstances and facts of violation of the applicant’s rights;
• pre-trial settlement documents;
• calculation of recovered wages, damages, disputed amounts of remuneration, etc.

Deadlines for filing a claim

In the event of an individual conflict, filing a claim for a labor dispute with the labor commission is possible at any time.

Deadlines for filing a claim in court for an employee:

• for the resolution of an individual dispute - 3 months from the date when he learned or should have learned about the violation of rights;
• for disputes about dismissal - 1 month from the date of delivery of a copy of the order or issuance of the work book;
• on the issue of non-payment (incomplete payment) of wages and other charges - one year from the date of the established deadline for receiving payment.

The employer has the right to file a claim for damages within 12 months from the date of discovery.

The limitation periods are restored in accordance with the Civil Code of the Russian Federation. The circumstances to justify their extension are documented.

Is it possible to appeal a decision made by the commission?

If one of the parties to the labor relationship does not agree with the decision made by the commission, it may be subject to appeal. However, for this, the interested person will have to independently apply to the judicial authority. Applying there occurs through the preliminary preparation of a competent statement of claim. It indicates all the important details of the current situation, namely, the essence of the decision previously made by the commission, as well as the reasons why the applicant cannot agree with it.

If there is a need to challenge, the interested party needs to pay very close attention to the deadlines established by law. The fact is that the filing of a statement of claim will have to be made within two weeks from the moment the commission body officially makes a decision. If the deadline is missed, the employee will lose his right to challenge.

The application for challenge will necessarily need to be accompanied by various additional papers that can confirm that the employee is right. If the evidence is really strong and undeniable, the court will definitely make a decision in favor of the plaintiff. This means that the decision previously made by the commission on the dispute will be officially canceled.

Time limits for consideration of disputes

The following terms of consideration apply in court (Article 154 of the Code of Civil Procedure of the Russian Federation):

• reinstatement at work - 1 month;
• other disputes - 2.

The procedure for considering collective disputes is regulated by Art. 402-404 Labor Code of the Russian Federation.

Valid reasons for missing the deadline for filing a claim are listed in paragraph 5 of the Resolution of the Plenum of the Supreme Court No. 2 of March 17, 2004.

In difficult cases, it takes more than one year to resolve the conflict.

Limitation periods:

• for reinstatement at work - 30 days;
• for repayment of arrears of wages and other financial obligations and requirements - 12 months;
• other labor disputes - 90 days.