An employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work on a conditional basis. labor function ensure the working conditions provided for Labor Code Russian Federation dated December 30, 2001 No. 197-FZ (Labor Code of the Russian Federation) (hereinafter referred to as the Labor Code of the Russian Federation), laws and other regulatory legal acts, a collective agreement, agreements, local regulations, containing the norms of labor law, pay wages to the employee in a timely manner and in full, and the employee undertakes to personally perform the labor function determined by this agreement, to comply with the internal labor regulations in force in the organization.
Mandatory conditions of the employment contract are named in Art. 57 of the Labor Code of the Russian Federation. Thus, it is necessary to specify in the employment contract:
1) last name, first name, patronymic of the employee and the name of the employer (last name, first name, patronymic of the employer - individual) who entered into an employment contract.
2) place of work (indicating the structural unit);
3) date of commencement of work;
4) the name of the position, specialty, profession, indicating qualifications in accordance with the staffing table of the organization or a specific labor function;
5) the rights and obligations of the employee;
6) the rights and obligations of the employer;
7) characteristics of working conditions, compensations and benefits to employees for work in difficult, harmful and (or) dangerous conditions;
8) the mode of work and rest (if it differs from the general rules established in the organization in relation to this employee);
9) conditions of remuneration (including the amount tariff rate or official salary of an employee, additional payments, allowances and incentive payments);
10) types and conditions of social insurance directly related to labor activity.
Place of work . The place of work is essential condition of the employment contract and the rule that decides where the employee should work must be included in the text of the employment agreement. It would seem that the settlement of the issue of the place of work is not difficult. But, at the same time, in the future it is the norm about the place of work that causes a lot of trouble.
There are two main extremes that employers tend to go to when concluding an employment contract:
1) the place of work is indicated too specifically (for example, the direct address of the enterprise is fixed in the employment contract);
2) the place of work is indicated very abstractly or not indicated at all.
In the first case, the employer runs the risk that if the organization moves, the employee will refuse to move and he will need to pay serious monetary compensation. Why is this happening? As already noted, the place of work is an essential condition of the employment contract. If the essential condition of the employment contract is subject to change (including when moving), then when making such a change, one should be guided by Art. 73 of the Labor Code of the Russian Federation. Thus, if the employment contract provides for a specific address of the organization as a place of work, then when changing it, the following rules will need to be observed:
1) changing the essential terms of the employment contract at the initiative of the employer is possible only for reasons related to changes in organizational or technological conditions labor;
2) about the introduction of these changes, the employee must be notified by the employer in writing no later than two months before their introduction, unless otherwise provided by the Labor Code of the Russian Federation or other federal law;
3) the employee may not agree to continue working under new conditions (at a new address). At the same time, the employer is obliged in writing to offer him another job available in the organization that corresponds to his qualifications and state of health, and in the absence of such a job, a vacant lower position or lower-paid work that the employee can perform taking into account his qualifications and state of health. Suggest another vacant position is possible only if not the whole organization moves to the new address, but only part of it (for example, several departments). The old address as a whole remains with the organization, and individual services of the employer continue to function there. In this case, the employee can be offered a similar position in the services left at the old address.
If it is impossible to offer a vacant position at the old address to the employee, or if the employee refuses the offered job, the employment contract is terminated in accordance with paragraph 7 of Art. 77 of the Labor Code of the Russian Federation (refusal of the employee to continue work due to a change in the essential terms of the employment contract). If the change of address is also associated with the relocation of the organization to another locality (for example, from the city to a nearby suburb), then the employee will also be entitled to receive a severance pay in the amount of two weeks of average earnings in accordance with Art. 178 of the Labor Code of the Russian Federation.
If a change in the essential terms of an employment contract may lead to a mass dismissal of employees, the employer, in order to save jobs, has the right, taking into account the opinion of the elected trade union body of this organization, to introduce a part-time regime for up to six months.
The other extreme is the desire of the employer to indicate the place of work in the employment contract as abstractly as possible. In this case, problems may arise when the employee is dismissed due to absenteeism.
If an employee whose contract is terminated under sub. "a" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation, will appeal against the actions of the employer's administration in court, then it will be necessary to prove that the dismissal was lawful.
As a rule, if in the employment contract the condition on the place of work is fixed in a streamlined form (for example, by indicating only the city in which the organization is located), then the employee gets the opportunity to refer to the fact that he was present at the workplace. The employee indicates that workplace, indicated by the employer in the course of the trial and the workplace at which he should have been (and was) significantly different.
For example, if an organization has several sites where the main economic activity(several objects where repairs are carried out, several points of distribution of goods, etc.), then the employee has a real opportunity, in the event that the employer indicates his absence at one such object, to talk about his work at another.
In accordance with all of the above, when fixing a place of work in an employment contract, the necessary balance between concreteness and abstractness should be observed.
In our opinion, the best option would be to indicate in the employment contract that the employee is obliged to perform his labor function at the actual location of the employer organization. In this case, the employer's administration needs to draw up an additional document - a form for familiarizing the employee with the actual location of the organization. This is necessary so that in the future, in the event of a dispute, the employee does not declare his ignorance of the actual address of the enterprise. If, in the process of further work, the organization moves, that is, the place of actual location changes, the employee will need to be familiarized with the new place of work against signature. Legally (that is, in accordance with the employment contract), the place of work does not change (after all, the employee, as before, continues to perform his labor function at the actual location of the employer), in practice, the employee will follow his organization during all its moves (of course, within one locality).
Job title . IN Lately there has been a tendency to change the names of various positions and professions. And it is not always clear what is hidden under this or that name. If, as an advertisement for work or motivation of employees, such catchy job titles as supervisor, merchandiser, etc. quite justified, then from a legal point of view a more conservative approach would not hurt. Especially if work in a certain position is associated with some kind of benefits and compensation. In particular, Decree of the Cabinet of Ministers of the USSR of January 26, 1991 No. 10 approved the lists of industries, jobs, professions, positions and indicators that give the right to preferential pension provision. These lists (No. 1 and No. 2) establish positions, work in which gives the right to an old-age (old age) pension for preferential terms. If the name of the position occupied by the employee does not match the name of the position named in these lists (for example, instead of a master blaster, a worker is hired by the profession of a blaster), the employee will not have the right to a preferential pension. So, in Art. 57 of the Labor Code of the Russian Federation stipulates that if, in accordance with federal laws with the performance of work in certain positions, specialties or professions, the provision of benefits or the presence of restrictions is associated, then the name of these positions, specialties or professions and qualification requirements to them must comply with the names and requirements specified in qualification guides. The qualification directory for the positions of managers, specialists and other employees was approved by the Decree of the Ministry of Labor of the Russian Federation of August 21, 1998 No. 37.
Terms of payment . The most typical mistake when specifying the procedure for remuneration of an employee in an employment contract is the refusal to fix the sizes wages directly to labor agreement. And the inclusion in the employment contract of the standard phrase "remuneration is made according to the staffing table."
Article 57 of the Labor Code of the Russian Federation classifies the conditions of remuneration (including the size of the tariff rate or official salary of an employee) as one of the essential conditions of an employment contract. Thus, the issues of remuneration should be regulated by the employment contract in without fail.
So, the employment contract must contain an indication of the direct amount of wages (salary) or a clear procedure for determining the employee's salary (for example, if the employee is not hired for time payment labor, but on piece work).
In addition, it should be remembered that if the employment contract contains references to any other regulatory legal acts of local regulation (internal labor regulations, job descriptions, staffing), then the employee, when hiring, must be familiarized with all these documents against signature.
If, however, the employment contract, when determining wages, nevertheless includes a reference to the staffing table, then the employee must be familiarized with the staffing table when hiring. In addition (because the employment contract must be drawn up in 2 copies, and part of the terms of the employment contract is contained in another local regulatory legal act), the employee must be given an extract from the staff list against signature.
Form of an employment contract. It is well known that an employment contract must be drawn up in writing, this is expressly stated in Art. 67 of the Labor Code of the Russian Federation. But unlike civil legal relations, in relations in the labor sphere, the condition on the invalidity of the contract in case of non-compliance with the conditions on its form does not apply.
Employment contract is considered concluded either from the moment the parties (employer and employee) sign a single written document, or from the moment when the employee begins the direct performance of his labor duties.
In the latter case we are talking O actual admission to work. The problem here arises only when proving the very fact of admission to work. In this case, both witness testimony and documentary evidence can be used (for example, a pass issued by order of the management, letters signed by the employee and sent to the employer’s counterparties, letters addressed to the employer, where the position and surname of the employee are indicated as the recipient, testimonies employees, employees of neighboring firms, clients of the employer, etc.). In this situation, it is useless for the employer to refer to the absence of a single document signed by the parties, this can only lead to fines under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation (violation of labor legislation and labor protection).
In addition, it should also be remembered that the employment contract in accordance with Art. 67 of the Labor Code of the Russian Federation must be drawn up in two copies. As a rule, this provision of the Labor Code of the Russian Federation is violated by employers, but at the same time it is illegal.
It also happens that when concluding an employment contract, an agreement with an employee is actually drawn up in two copies, one of which is issued to the employee. However, in the future, the employee loses his copy and, in the event of a labor dispute, refers to the absence of the text of the employment contract due to the fact that the employer did not hand over this document to the employee when hiring.
Labor legislation does not provide for the obligation of the employer to obtain additional evidence of the issuance of a second copy of the agreement with the employee in the hands of the latter. It is enough to indicate in the text of the agreement the standard phrase "the agreement is made in two copies: one for each of the parties." The signing of the contract by the employee in this case indicates that the second copy was, and it was with the employee.
However, in order to protect yourself in the future from the claims of the employee, it makes sense to obtain his additional signature in the fact that he received the contract. The signature on receipt of the second copy of the employment contract may be placed on the first copy of the agreement, which is with the employer.
Cancellation of the employment contract. Very often, employers forget about the possibility of canceling an employment contract. Therefore, if the person with whom the employment contract was concluded never went to work, the administration dismisses him under subpara. “a”, paragraph 6, article 81 of the Labor Code of the Russian Federation (truancy).
Meanwhile, dismissal due to absenteeism is always associated with compliance with a rather complicated procedure. And very often, dismissal due to absenteeism in court is recognized as illegal, and the employee is reinstated at work. In addition, if a person was fired, then it is assumed that for some time (even if only 1 day), but he was an employee of the organization. And therefore, it is necessary to have a personal card on it, a personal account in the accounting department, information about it must be submitted to the pension fund of the Russian Federation, etc., that is, to perform a number of administrative actions.
To avoid this procedure, it is much easier to cancel an employment agreement with a person who did not go to work in accordance with par. 4 tbsp. 61 of the Labor Code of the Russian Federation.
In order to be able to cancel an employment contract, the simultaneous presence of two conditions is sufficient:
1) the employee, within a week from the day specified in the contract, did not begin to perform his labor duties;
2) the reasons why the employee does not go to work are not valid (for example, an employment contract with a sick employee cannot be canceled).
12.2. Mistakes when signing an employment contractThe age at which the conclusion of an employment contract is allowed. By general rule, the conclusion of an employment contract is allowed with a person who has reached the age of 16.
With regard to age restrictions in labor relations, employers most often make two main mistakes:
1) on the grounds of being a minor, unreasonably refuses to hire a person aged 16 to 18;
2) a person under the age of 16 is unlawfully hired.
The Constitution of the Russian Federation establishes that all citizens of the Russian Federation are equal among themselves. Therefore, a person who has reached the age of 18, in labor relations should not have any advantages over a minor who has reached the age of 16.
In practice, since the work of minors is associated with a number of additional guarantees, the employer tries not to hire persons aged 16 to 18. However, it should be said that the refusal to hire on this basis will be lawful only if the position necessarily requires the applicant to reach the age of majority. This may be related to the liability of the employee. For example, the job description of a cashier may provide for a rule that an employee must reach the age of 18, since an agreement on full liability can only be concluded with an adult employee.
So, it is impossible to officially refuse to hire a candidate aged 16 to 18 on the grounds of their minority. How can I legally circumvent this rule?
There is the following possibility: in the job description, the most important personnel positions should be indicated as mandatory requirement presented to the employee, the presence of higher (or secondary) education and (or) work experience. Most likely, a person under the age of 18 will not have the necessary education and (or) work experience, and the law allows refusing to be hired on the grounds of professional unsuitability.
Naturally, such a solution to the issue is connected with another problem: it will be impossible to hire a suitable person who does not have education or experience. However, job descriptions may be revised at any time. And the requirements for education and experience that are mandatory today may not be necessary tomorrow. It should only be remembered that when hiring a person who does not pass the education requirements, you should first make changes to job descriptions, and only then conclude an employment contract. In addition, you should not change job descriptions too often - this can lead to accusations of illegal actions when hiring. Suspicions can also be aroused by the fact that not too much time has passed between the refusal to hire one person due to his lack of the necessary education and changing the job description and hiring another employee who also does not have education.
Mistakes are also allowed when concluding an employment contract with a person under 16 years of age.
In cases of receiving the main general education or leaving, in accordance with the federal law of a general educational institution, an employment contract may be concluded by persons who have reached the age of fifteen.
In cinematography organizations, theaters, theater and concert organizations, circuses, it is allowed, with the consent of one of the parents (guardian, trustee) and the guardianship and guardianship authority, to conclude an employment contract with persons under the age of 14 years to participate in the creation and (or) performance of works without prejudice to health and moral development.
Thus, the employment of persons before they reach the age of 16 is associated with the need to comply with certain special rules. In particular, an employment contract may be concluded with a student who has reached the age of 14 only if the following conditions are simultaneously met:
1) he will work only in his free time from study, work should not disrupt the learning process;
2) an employee between the ages of 14 and 16 is entitled to perform only light work;
3) work must not cause harm to the health of the child.
4) the employer must obtain the consent of one of the parents (guardian, custodian) and the guardianship and guardianship authority.
Guarantees at the conclusion of the employment contract. Article 64 of the Labor Code of the Russian Federation prohibits an unreasonable refusal to conclude an employment contract. At the request of the person who was refused to conclude an employment contract, the employer is obliged to inform the reason for the refusal in writing. Refusal to conclude an employment contract may be appealed in court.
The question immediately arises when the refusal will be justified, and when not. Let us make a reservation right away that any direct or indirect restriction of rights or the establishment of direct or indirect advantages when concluding an employment contract depending on race, skin color, nationality, language, origin, property, social and official position is illegal.
As a rule, the above rules are observed by employers, and refusal to work directly due to the fact that a candidate for a position is a representative of an Arab country is very, very rare.
Much more often they are refused on the grounds of gender, age and place of residence (including the presence or absence of registration at the place of residence or stay), on grounds related to the pregnancy of a woman or the presence (absence) of children.
This is also illegal, although in some cases it is quite justified. For example, employers prefer young men (anywhere from 20 to 35 years old) as security workers. This is not due to the discriminatory attitude of the employer towards women or older men, but with the great physical stress inherent in this work. In some cases, it will be quite reasonable to want to find an employee living in a particular locality (for example, social worker it will be much easier to carry out his labor functions if he lives in the same area with his wards). But, after all, justice is one thing, and the laws still need to be observed.
Therefore, in the case when it is necessary to refuse the provision of work, an appropriate legal basis must be brought under such a refusal. Thus, the Labor Code of the Russian Federation is allowed to select employees solely on the basis of circumstances related to their business qualities. Thus, if the conclusion of an employment contract is refused, this should be explained precisely by the lack of necessary professional qualities. In the above example with the security service, when refusing to hire a 55-year-old man, one should refer not to his age, but to his lack of physical qualities necessary for work (strength, speed, vigilance, etc.).
13. Typical mistakes of employers when issuing work books for employees
The main document on labor activity and seniority of an employee is employment history. Employment records for all their employees working at their main place of work for more than 5 (five) days must be maintained by all employers, with the exception of individual entrepreneurs and individuals.
From the correctness of making entries in work book currently depends on a lot, such as inclusion (or exclusion) certain period in seniority, and hence the right to receive a pension.
At the same time, the number of errors in the design of work books not only does not decrease, but increases. Therefore, in 2003, two legal document, designed to resolve the main problems that arise when filling out work books: Government Decree of April 16, 2003 "On work books" and Instructions for filling out work books, approved by Decree of the Ministry of Labor of the Russian Federation of October 10, 2003 No. 69.
Entering resignation records . The fact that entries in the work book about the reasons for the termination of the employment contract are made in strict accordance with the wording of the Labor Code of the Russian Federation or other federal law is well known. The problem arises when it is necessary to decide which article of the Labor Code of the Russian Federation (for example, 77th or 80th) should be referred to in a particular case.
The Decree of the Government of the Russian Federation "On work books" gives an unequivocal answer to this question:
1) upon termination of the employment contract at the initiative of the employer, an entry is made in the work book about the dismissal (termination of the employment contract) with reference to the relevant paragraph of Art. 81 of the Labor Code of the Russian Federation;
2) upon termination of the employment contract due to circumstances beyond the control of the parties, an entry is made in the work book on the grounds for termination of the employment contract with reference to the relevant paragraph of Art. 83 of the Labor Code of the Russian Federation;
3) upon termination of the employment contract on other grounds provided for in Art. 77 of the Labor Code of the Russian Federation (agreement of the parties, expiration of the employment contract, the desire of the employee, transfer to work with another employer, etc.), an entry is made in the work book about the dismissal with reference to the corresponding paragraph of Art. 77 of the Labor Code of the Russian Federation;
4) upon termination of an employment contract on other grounds provided for by the Labor Code of the Russian Federation or other federal laws, an entry is made in the work book about dismissal with reference to the relevant article, paragraph of the Labor Code of the Russian Federation or other federal law.
Entering an entry on the date of dismissal in the work book . The date of dismissal is considered the last day of work. Therefore, when drawing up an agreement on termination of an employment contract, an order to dismiss and making an entry in the work book, no pretexts are allowed before the date of dismissal.
An indication in the dismissal order (agreement on termination of the employment contract) that “the employment contract is terminated from May 27, 2005.” is incorrect. A more correct wording is "the employment contract terminates on May 27, 2005". In the first case, based on the literal meaning of the phrase, it should be recognized that on May 27, 2005, the employee no longer performs his labor function. In fact, as noted above, on the day of his dismissal, the employee is obliged to work.
Special mention should be made of cases where the issuance of a work book upon dismissal is delayed against the deadlines established by labor legislation. Thus, the Labor Code of the Russian Federation provides that a work book must be issued to an employee on the day of dismissal. If on the day of the employee’s dismissal (termination of the employment contract) it is impossible to issue a work book due to the absence of the employee or his refusal to receive the work book in his hands, the employer sends the employee a notice about the need to appear for the work book or agree to send it by mail. Sending a work book by mail to the address indicated by the employee is allowed only with his consent.
From the date of sending the said notification, the employer is released from liability for the delay in issuing a work book to the employee. If this does not happen, then the employer who violates his duties will have to compensate the employee for forced absenteeism. As a rule, an employee's salary is accrued on the day the work book is actually issued.
If an employee protests against the delay in his work book, then, as a rule, this happens, i.e. wages are actually calculated and paid. But at the same time, as the date of dismissal in the work book, as, indeed, in all other personnel documents, the date of termination of the employment contract is indicated (fixed in the order, agreement on termination of the contract, application for own will).
However, this is illegal. Paragraph 4, clause 35 of the Rules for maintaining and storing work books, making blank work books and providing them to employers expressly states that the day of dismissal (termination of the employment contract) in the event of a delay in issuing a work book is considered the day of its actual issuance. An order (instruction) of the employer is issued on the new day of dismissal of the employee (termination of the employment contract), and an entry is made in the work book. An earlier entry on the day of dismissal is invalidated in the manner prescribed by the Rules.
Making a record of part-time work . Prior to the entry into force of the Decree of the Government of the Russian Federation “On work books”, information about part-time work was entered at the place of part-time work.
Despite the fact that this Decree has been in force for quite a long time, employers at their main place of work still very often find themselves unwilling to enter information about part-time work on their own.
The basis for making an entry in the work book about part-time work is a certificate (or other document) confirming part-time work.
In addition, it should be remembered that the initiative to make an entry about part-time work in accordance with paragraph 20 of the Rules for maintaining and storing work books, preparing work book forms and providing employers with them should always belong to the employee, i.e. the employer does not have the right to independently decide on making an entry about part-time work, even if he has information about part-time work and they are presented personally by the employee. In any case, in order to be able to make such a record, the employer must obtain a written application from the employee himself. In the work book, as the basis for making an entry, the details of the certificate of part-time work should be indicated.
Making corrections to the workbook. If an erroneous entry was made in the work book: it does not correspond to the actual circumstances, the law, or the document on the basis of which it was entered was invalidated (for example, upon reinstatement), the error must be corrected.
There are two main types of fixes:
1) it is possible to cross out, certified by signature authorized person and sealed with the seal of the organization;
2) strikethrough is unlawful, it is necessary to recognize the entry as invalid and make the correct entry.
Changing entries by strikethrough incorrect and the introduction of new ones is allowed in the following sections:
1) information about full name and date of birth;
2) information about the education, profession and specialty of the employee.
The basis for making changes to the specified information is a passport, birth certificate, marriage certificate, divorce certificate, change of surname, name, patronymic, and other documents.
Changes to the last name, first name, patronymic and date of birth are made on the first page ( title page) work book. The former surname or first name, patronymic, date of birth is crossed out with one line and new data is recorded. Links to the relevant documents are made on the inside cover of the work book and are certified by the signature of the employer or a person specially authorized by him and the seal of the organization (or the seal personnel service).
Change (addition) on the first page (title page) of the work book of records of new education, profession, specialty received is carried out by supplementing existing records (if they already exist) or filling in the corresponding lines.
Strikethrough of previously made entries is not allowed. .
If inaccurate information about the last name, first name, patronymic, date of birth, education, profession and specialty was previously entered, then the correction of inaccurate entries can be made either by the employer who made these entries in the work book or by the employer at the last place of work, on the basis of an official document the employer who made the mistake.
Corrected information must fully comply with the document on the basis of which they were corrected. In the event of the loss of such a document or its inconsistency with the actual work performed, the correction of information about the work is carried out on the basis of other documents confirming the performance of work not specified in the work book.
In sections of the work book containing information about work or information about awards, it is not allowed to cross out inaccurate or incorrect entries. Changes to entries are made by invalidating them and making correct entries. In the same order, a change is made to the record of the employee's dismissal (transfer to another permanent job) in case of recognition of the dismissal (transfer) illegal.
If during the work of the employee the name of the organization changes, then a corresponding entry is made about this in column 3 of the section "Information about work" of the work book.
Example.
If there is an entry in the work book about dismissal or transfer to another job, recognized as invalid, the employee, upon his application, is issued at the last place of work duplicate work book. All entries made in the work book are transferred to the duplicate of the work book, with the exception of the entry declared invalid. The work book is issued in the prescribed manner and returned to its owner. In the same order, a duplicate of the work book is issued if the work book (insert) has become unusable (burned, torn, soiled, etc.).
The book of accounting for the movement of work books and inserts to it. Instructions for filling out work books put into effect a new form of the book of accounting for the movement of work books and inserts to it. In accordance with the specified instruction, the accounting book cannot be kept in free form, all the columns provided for in Appendix No. 3 to the Decree of the Ministry of Labor of the Russian Federation of October 10, 2003. No. 69 must be filled in without fail.
14. Procedure for handling employee applications
Currently, labor relations, as well as civil law, are mostly based on the principle of reconciling the interests of the employee and the employer. And only in some cases, the initiative of one of the parties to the employment contract has a coercive value.
Employer instructions regarding labor relations in the organization are fixed by the issuance of internal documents of local regulation, in particular, orders. The employee's initiative is always expressed in statements.
The employer has no right to ignore the statements of his employees. Regardless of what decision (positive or negative) is made on the application, the administration of the company in any case must consider it and, by imposing a resolution on it, either send it for execution or report a refusal.
Applications of employees submitted by them in the process of work can be divided into three groups:
1) application for employment, transfer to another job;
2) application for leave;
3) a letter of resignation.
14.1. How to work with job applicationsAs a rule, in small organizations, a candidate for a position writes an application for a job already when the decision to enroll him in the state has already been made. At the same time, immediately (within 1-3 days), an order for employment is drawn up and an employment contract is signed.
IN large firms, where the decision on hiring is taken collectively (for example, based on the results of an interview with the immediate head of the department, the head of the personnel service and the head of the enterprise itself), in order to enroll in the state, it is necessary to obtain a visa for all persons on whom employment depends.
Depending on how the organization has organized the workflow on labor relations, the visas of persons who have the right to make a decision on hiring can be affixed either on the application form of a candidate for a position or directly on the job application itself.
The application on the basis of which the order for employment is issued must contain the following.
1. Destination information, i.e. the person in whose name the application is being made. If in an organization one person has the right to vote when hiring new employees and he is known, the application can be written directly to his name.
Example 14.1. To the General Director of Vector LLC Demidov O. A.
If the decision to enroll in the state depends on several executives, each of whom will later affix their visa on the application, then it makes sense to indicate only the name of the employing organization as the addressee.
Example 14.2. Limited Liability Company “Vector.
2. Information about the applicant: last name, first name, patronymic, year of birth, passport data, place of residence (information on registration at the place of residence and address of actual residence), pension insurance certificate number, TIN (if any).
Example 14.3. Kovalenko Dmitry Alekseevich, born August 05, 1971, passport 4512 457597, issued by the Internal Affairs Directorate of the Kirovsky district of Tyumen, February 14, 2003, registered at the address: Tyumen, st. Neftekhimikov, 15, apt. 5,
No. SPS ________________ TIN ________________".
3. Application for a job.
4. Job title, for which the applicant is applying. At the same time, it should be remembered that the name of the position in the application and the order for employment must match.
5. Date of intended employment. The date of employment indicated in the order and the date indicated in the application must also match.
6. The number of writing the application, which may be earlier than the date of employment.
7. Applicant's signature.
The application may be accompanied by copies of documents confirming the information specified in it: a copy of the passport, SPS, TIN, diploma of education, etc.
14.2. How to work with vacation requestsOne of the documents of internal regulation of the organization is vacation schedule, on the basis of which the provision of annual paid holidays to employees is carried out.
But in addition to annual paid leave, in cases provided for by law, the employee is entitled to provide additional rest time. In these cases, as well as in organizations where there is no vacation schedule, vacation is granted on the basis of a personal application of the employee.
In most cases, the heads of employers' organizations assume that the right to make the final decision (to release or not the employee on vacation) belongs to them. However, this is not always the case. Many situations, in accordance with the law, imply not only the right of the employee to receive leave, but also the obligation of the employer to provide such leave.
The employer does not have the right to refuse to provide the employee with annual paid leave. by statement:
1) an employee to send him on vacation in accordance with a properly approved vacation schedule - clause 1 of Art. 123 of the Labor Code of the Russian Federation;
2) husband while his wife is on maternity leave (regardless of the time of work in the organization) - paragraph 2 of Art. 123 of the Labor Code of the Russian Federation;
3) a part-time worker during the vacation at the main place of work - Art. 286 of the Labor Code of the Russian Federation;
4) a minor employee - art. 122 of the Labor Code of the Russian Federation;
5) women before maternity leave or immediately after it - Art. 122 of the Labor Code of the Russian Federation;
6) employees who have adopted a child under the age of three months - Art. 122 of the Labor Code of the Russian Federation;
7) the spouse of a serviceman during the period of vacation of a serviceman - paragraph 11 of Art. 11 of the Federal Law "On the status of military personnel";
8) citizens awarded the badge "Honorary Donor of Russia" - art. 11 of the Law of the Russian Federation "On donation of blood and its components".
Additional leave with the preservation of the average salary, the employer is obliged to provide, upon written application of an employee who is successfully studying :
1) for part-time and part-time education at a university, educational institution of secondary vocational education who has state accreditation for passing intermediate and state exams, as well as for writing a thesis;
2) in an educational institution of primary vocational education that has state accreditation for passing exams;
3) in an evening (shift) school, which has state accreditation, to pass final exams.
Unpaid leave, the employer is obliged to provide at the request of the following categories of employees:
1) article 128 of the Labor Code of the Russian Federation:
a) participants of the Great Patriotic War;
b) working old-age pensioners (by age);
c) parents and wives (husbands) of military personnel who died or died as a result of injury, concussion or injury received in the performance of military service duties, or as a result of an illness associated with military service;
d) working disabled people;
e) employees in cases of the birth of a child, marriage registration, death of close relatives;
2) paragraph 2 of Art. 17 of the Federal Law "On higher and postgraduate education":
a) to persons admitted to entrance examinations to higher educational institutions;
b) students of preparatory departments at higher educational institutions for passing final exams;
c) students of higher educational institutions full-time training, combining study with work, for passing tests and exams, for preparing and defending a graduation project (work) with passing state exams, for passing state exams.
The application of a woman for maternity leave, as well as leave to care for a child, is also obligatory for execution; application for leave of persons who have adopted a child.
In cases where the employer cannot refuse to grant leave, the corresponding application must contain:
1) information about the addressee, i.e. the person in whose name the application is being submitted;
2) information about the applicant: full name, position
Example 14.4. Kildimova Olesya Vladimirovna, who holds the position of a design engineer;
3) a request to be sent on leave;
4) the date of the intended leave on vacation. The date of employment indicated in the order and the date indicated in the application must match;
5) the reason why the employer cannot refuse to grant leave
Example 14.5. I ask you to grant me maternity leave in the manner prescribed by Art. 255 of the Labor Code of the Russian Federation.
I ask you to provide me with additional leave with the preservation of the average salary for passing the state certification in ________________ (name of educational institution).
6) the date of writing the application, which may be earlier than the date of employment;
7) signature of the applicant;
8) applications: documents confirming the right to receive leave. In the first example above, a medical report should be presented as such a document, and in the second, a call certificate.
14.3. Procedure for handling resignationsThe application for dismissal is considered by the person having the right to decide on the hiring of new employees and the dismissal of others. As a rule, this is the head of the organization.
As a general rule, an employee must submit an application for dismissal of his own free will 2 weeks before the proposed dismissal. For longer than two weeks, provided by law, the employer has no right to detain the employee. Therefore, upon receipt of such a statement, the employer needs to perform several sequential actions in order to ensure the normal functioning of the service in which the resigning employee occupies.
Upon receiving a letter of resignation, the employer must:
1) provide the resigning employee with the opportunity to transfer his affairs (documents and commodity- material values). Finding a new employee for a vacant position is the task and problem of the employer. The decision on the dismissal of an employee who wrote a letter of resignation cannot be made dependent on whether a new employee is found or not. Therefore, if the employer cannot find a suitable replacement within the 2 weeks provided by law, he has two options:
a) appoint a person who in the future (before hiring a new person) will be responsible for the area of work that was previously led by the dismissed person from among other employees (of course, with the consent of this employee) and oblige the dismissed person to transfer the affairs to this person;
b) either to accept the affairs of the dismissed person personally.
If the employer has not taken measures within 2 weeks to ensure the possibility of the dismissed person to transfer cases, and subject to the availability of memos from the latter on the need to appoint a person to whom documents and material assets could be transferred, the dismissed person will not be responsible for the shortage;
2) make a calculation Money owed to the dismissed employee. At the same time, it is necessary not to ignore the advance reports that were submitted (or should be submitted by the employee), but were not taken into account. Full settlement (issuance of funds) with the employee must be made on the day of dismissal;
3) on the day of dismissal (but not earlier!) A dismissal order must be issued, an entry in the work book must be made and the work book must be handed out. Also on the day of dismissal, upon a written application of the dismissed person, copies of all documents related to work (orders for admission, transfer, vacations, etc.) must be issued to him.
When making a dismissal of one's own free will, one should especially pay attention to the dates indicated in the application. If the employee in his application prescribed a clear number by which he wants to be dismissed, then it is impossible to terminate the employment contract with a different number. But in this case it is impossible to talk about dismissal of one's own free will, it would be more correct to terminate the contract by by agreement of the parties.
Example 14.6. The following statement was submitted to the head of Zarnitsa LLC.
Director of Zarnitsa LLC
Filkin L.V.
Ryazantseva Zh.A.,
holding the position of a salesperson
Statement
Dismissal of one's own free will is possible after 14 days from the date of notification, i.e. V this example October 13, 2005 But on October 13, 2005, the management of Zarnitsa LLC has no right to dismiss Ryazantseva, because the application indicates the exact date of dismissal of October 15.
October 15, 2005 the dismissal of Ryazantseva cannot be done voluntarily, because the condition of a two-week warning period is not observed (more time has passed, but Ryazantseva continues to work). Therefore, the most rational solution in this case would be the dismissal of Ryazantseva on October 15, 2005 by agreement of the parties.
Example 14.7. If Ryazantseva insists on dismissal of her own free will, then the statement should look like this:
Director of Zarnitsa LLC
Filkin L.V.
Ryazantseva Zh.A.,
holding the position of a salesperson
Statement
I ask you to dismiss me from Zarnitsa LLC at your own request
15. The procedure for issuing orders for personnel
Any action of the employer in relation to the employee is carried out on the basis of an order. Orders must be in writing. Orders on personnel are kept in the organization for 75 years.
The order of acceptance to work . The employment order is issued in accordance with the employment contract concluded with the employee. The content of the order must fully comply with the terms of the employment contract.
Unified forms of orders for the employment of an employee (employees) No. T-1 (No. T-1a) were approved by the Decree of the State Statistics Committee of the Russian Federation of January 5, 2004 No. 1.
When issuing an order (instruction) on hiring an employee (s) for work, the name of the structural unit, position (specialty, profession), probation period, if the employee is placed on a test when hiring, as well as the conditions for hiring and the nature of the upcoming work (according to part-time, in the order of transfer from another organization, to replace a temporarily absent employee, to perform certain work, etc.). When concluding an employment contract with an employee (s) for an indefinite period, in the details “date” (form No. T-1) or “Work period” (form No. T-1a), the line (column) “to” is not filled.
An order (instruction) signed by the head of the organization or an authorized person is announced to the employee (s) against receipt. On the basis of an order (instruction), an employee of the personnel service makes an entry in the work book about hiring an employee and fills in the relevant information in a personal card (form No. T-2 or No. T-2GS (MS), and the employee’s personal account is opened in the accounting department (form No. T-54 or No. T-54a).
However, it should be noted that not all details required by an individual employer are included in Forms T-1 and T-1a. Naturally, within the framework of a whole country, it is not always possible to satisfy the needs of everyone and everyone. But directly the employer is not always satisfied. For example, in unified forms there is no column for indicating information about education
Therefore, by Decree of the State Statistics Committee of the Russian Federation of March 24, 1999 No. 20, organizations are allowed to use unified forms of primary accounting documentation(except for forms for accounting for cash transactions), approved by the State Statistics Committee of Russia, if necessary, enter additional details.
At the same time, all the details of the unified forms of primary accounting documentation approved by the State Statistics Committee of Russia remain unchanged (including the code, form number, document name). Removal of individual details from unified forms is not allowed.
The changes introduced must be formalized by the relevant organizational and administrative document of the organization.
The formats of forms indicated in the albums of unified forms of primary accounting documentation are recommended and may change.
When preparing blank products based on unified forms of primary accounting documentation, it is allowed to make changes in terms of expanding and narrowing columns and lines, taking into account the significance of indicators, including additional lines (including free ones) and loose sheets for ease of placement and processing of the necessary information.
The order (instruction) of the employer on hiring is announced to the employee against receipt within three days from the date of signing the employment contract. At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order (instruction).
15.1. Order on the transfer of employees to another jobOrders of this kind are used to process and record the transfer of an employee (s) to another job in the same organization or to another location together with the organization. Filled in by an employee of the personnel service, taking into account the written consent of the employee, signed by the head of the organization or a person authorized by him, declared to the employee (s) against receipt.
In the event that an employment contract was not concluded with the employee (the employee was hired before October 6, 1992) and his employment is formalized by order, when filling out the unified form No. T-5 “Order (instruction) on transferring the employee to another job” the line "Reason" indicates specific documents on the basis of which the employee will be transferred to another job (application, medical report, memo and etc.). In this case, the props “Change to the employment contract” are not filled in.
On the basis of the order (instruction) on the transfer to another job, the following marks are made:
1) in the employee's personal card (form No. T-2 or No. T-2GS (MS);
2) personal account (form No. T-54 or No. T-54a);
3) an appropriate entry is made in the work book.
15.2. Order to send on a business tripThe order to send on a business trip is used to register and record the direction of the employee (s) on a business trip (s). Filled in by an employee of the personnel service on the basis of a job assignment, signed by the head of the organization or a person authorized by him. The order on sending on a business trip indicates the surname (s) and initials, structural subdivision, position (specialty, profession) of the seconded person(s), as well as the purpose, time and place(s) of the business trip.
If necessary, sources of payment for travel expenses, other conditions for sending on a business trip are indicated.
15.3. Leave orderThe leave order is used to register and record the holidays granted to the employee (s) in accordance with the law, the collective agreement, the organization's local regulations, and the employment contract.
This order is drawn up by an employee of the personnel service or a person authorized by him, signed by the head of the organization or a person authorized by him, and announced to the employee against receipt.
On the basis of the order (instruction) on granting leave, the following marks are made:
1) in a personal card (form No. T-2 or No. T-2GS (MS);
2) in a personal account (form No. T-54 or No. T-54a);
3) the calculation of wages due for vacation is carried out according to the form No. T-60 “Note - calculation on granting leave to the employee”.
15.4. Dismissal orderThe dismissal order is used to register and record the dismissal of the employee (s). It is drawn up by an employee of the personnel service, signed by the head of the organization or a person authorized by him, declared to the employee (s) against receipt in the manner established by the legislation of the Russian Federation.
In the line (column) of forms No. T-8 and T-8a “The basis for termination (termination) of the employment contract (dismissal)”, an entry is made in strict accordance with the wording of the current legislation of the Russian Federation with reference to the relevant article. In the line (column) "Document, number and date", a reference is made to the document on the basis of which the order is prepared and the employment contract is terminated, indicating its date and number (employee's statement, medical report, memo, summons to the military registration and enlistment office and other documents) .
Upon dismissal of a financially responsible person, a document confirming the absence of material claims against the employee is attached to the order (instruction).
When terminating an employment contract at the initiative of the employer in cases specified by the current legislation of the Russian Federation, a reasoned opinion of the elected trade union body (if the latter is available) is attached in writing to the order (instruction) on termination (termination) of the employment contract with the employee (s) this organization.
On the basis of an order (instruction) to terminate (terminate) an employment contract with an employee (s) (dismissal), an entry is made in a personal card (form No. T-2 or No. T-2GS (MS), personal account (form No. T-54 or No. T-54a), work book, a settlement is made with the employee in the form No. T-61 “Note-calculation upon termination (cancellation) of the employment contract with the employee (dismissal)”.
15.5. Order for encouragementThe incentive order is used to draw up and account for incentives for success in work. It is compiled on the basis of the presentation of the head of the structural unit of the organization in which the employee works. Signed by the head of the organization or a person authorized by him, declared to the employee (s) against receipt.
Based on the order (instruction), an appropriate entry is made in the employee's personal card (form No. T-2 or No. T-2GS (MS) and the work book of the employee.
When registering all types of incentives, except for monetary rewards (bonuses), it is allowed to exclude from form No. T-11 “Order (instruction) on employee incentives” the requisite “in the amount of ________________ rub. ________________ cop.".
16. Errors in the preparation and use of the vacation schedule
Article 123 of the Labor Code of the Russian Federation establishes the obligation to approve a vacation schedule in each organization, in accordance with which the order in which vacations are granted to employees of the organization is determined. When approving the vacation schedule, the opinion of the trade union body (if it exists at the enterprise) should be taken into account.
Holidays are scheduled annually. As a rule, organizations make the same mistake when compiling vacations: the schedule for the current year is drawn up in January of this year. However, this is wrong: paragraph 2 of Art. 123 of the Labor Code of the Russian Federation clearly establishes that the vacation schedule must be approved no later than 2 weeks before the onset calendar year, i.e. . for the next year, the schedule is drawn up no later than December 17 of the previous year.
The requirements of paragraph 3 of Art. 123 of the Labor Code of the Russian Federation to provide certain categories of workers with leave at any time convenient for them. So, for example, if the organization has minor employees with such a right, when drawing up a vacation schedule for the next year, it is necessary to request an application from an employee under 18 years old, which should indicate what time it is convenient for him to go on vacation. And already on the basis of this statement, fix the time of the minor's vacation in the schedule. But at the same time, it should be remembered that, if necessary, a minor employee may well change his mind and write an application for leave at a completely different time than recorded in the schedule. In this case, the employer will be forced to comply with the employee's application.
Example. G.N. Ryzhikov, 17, works at Drake LLC as a courier. December 15, 2004 the vacation schedule was approved, in accordance with which G.N. Ryzhikov has been on vacation since July 01, 2005. Attached to the vacation schedule is a personal statement by G.N. Ryzhikov about granting him leave at that particular time.
April 15, 2005 G.N. Ryzhikov submits an application to the management, in which he asks for annual paid leave from May 01, 2005.
Guidelines under Art. 267 of the Labor Code of the Russian Federation must provide G.N. Ryzhikov vacation since May 1, 2005
According to many employers, the vacation schedule is drawn up in a free form, but this is not so. Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1 approved the unified form No. T-7 (vacation schedule).
The vacation schedule is used to reflect information about the timing of the distribution of annual paid vacations for employees of all structural divisions of the organization for the calendar year by months. Holiday schedule - summary schedule.
When compiling it, the provisions of the current legislation of the Russian Federation, the specifics of the organization's activities and the wishes of employees are taken into account.
The vacation schedule is signed by the head of the personnel service and approved by the head of the organization or a person authorized by him.
When the vacation period is postponed to another time, with the consent of the employee and the head of the structural unit, appropriate changes are made to the vacation schedule with the permission of the person who approved the schedule or a person authorized by him to do so. The transfer of vacation is carried out in the manner prescribed by the legislation of the Russian Federation, on the basis of a document drawn up in any form.
Changes to the vacation schedule are also made when a new employee is hired, whose right to use the vacation may arise in the current year.
In addition to the fact that each employee must be warned at least 2 weeks in advance about the start of annual leave, at the beginning of each year, employees must be familiarized with the approved vacation schedule.
There are two options for this:
1) if there are few employees in the organization, you can familiarize yourself with the schedule of each employee individually, while receiving a signature from the familiar employee;
2) if there are a lot of employees in the organization and familiarization of each employee individually with the schedule can take a significant amount of time, it would be more appropriate to post the document in a public place, for example, on a bulletin board or next to the office of the personnel department.
17. Documentation of the probationary period and the procedure for its passage
A probationary period condition is a fairly common condition when concluding an employment contract. The right of the parties to include a test clause in the text of the labor agreement is expressly provided for in Art. 70 of the Labor Code of the Russian Federation. At the same time, the legislation also establishes a number of binding rules which must be observed by both the employer and employees in the event of a probationary period.
All requirements for testing when applying for a job can be conditionally divided into two groups:
1) material requirements;
2) procedural requirements.
The first category includes rules relating to the very essence of the test, including: in which cases the test can be applied and in which it is forbidden to do so, the rights and obligations of the test subject, the duration of the test. The second includes the rules for issuing a probationary period.
material requirements. The Labor Code of the Russian Federation provides for the only situation in which the conclusion of an employment contract with a probationary condition becomes lawful - the need to check the compliance of the employee with the assigned work. It is impossible to establish a trial period in order to assess the corporate loyalty of a new employee, psychological compatibility with other team members and other psychological factors.
The test for employment is not established:
1) for persons applying for a job through a competition for the corresponding position held in the manner prescribed by law;
2) for pregnant women;
3) for persons under the age of 18;
4) for persons who have graduated from educational institutions of primary, secondary and higher vocational education and for the first time entering a job in their specialty;
5) for persons elected (chosen) to an elective position for paid work;
6) for persons invited to work in the order of transfer from another employer as agreed between employers;
7) in other cases provided for by the Labor Code of the Russian Federation, other federal laws and a collective agreement, including:
a) when hiring temporary workers (concluding an employment contract for up to 2 months) - Art. 289 of the Labor Code of the Russian Federation;
b) when concluding an employment contract after the end of the apprenticeship period - Art. 207 of the Labor Code of the Russian Federation;
c) for citizens and civil servants when filling civil service positions of the categories "leaders" and "assistants (advisers)", who are replaced for a certain term of office - sub. 3 p. 3 art. 27 of the Federal Law of July 27, 2004 No. 79-FZ "On the State Civil Service in the Russian Federation";
d) when hiring graduates of educational institutions of the Federal Customs Service, as well as citizens holding a position on a competitive basis - paragraph 3 of Art. 9 of the Federal Law of July 21, 1997 No. 114-FZ “On Service in customs authorities Russian Federation".
Like any other employee, the provisions of the Labor Code of the Russian Federation, laws, other regulatory legal acts, local regulations containing labor law norms, a collective agreement, and an agreement also apply to the test subject during the test period.
Thus, during the trial period, a person is the same worker as everyone else, which means that he has the following rights:
1) to maintain all requirements regarding the mode of work, the normal duration of working hours and rest, etc. requirements of the Labor Code of the Russian Federation;
2) to receive wages. The salary of the probationer may be significantly lower than the expected income that the same worker will receive at the end of the probationary period. But not at all to pay for the work of the test subject, as happens in many organizations, the law prohibits;
3) to receive all types of guarantees and compensations. For example, when sending a test subject on a business trip, he, like everyone else, is supposed to pay travel allowances, the test subject has the right to additional paid leave in connection with studying at an educational institution, despite the probationary period, a period of temporary disability is paid, etc.;
4) to terminate the employment contract at their own request. The probationary period is characterized, first of all, by the fact that the employer receives broader rights when the employee is dismissed due to his professional unsuitability. However, at the same time, the employee is not deprived of his right to independence in choosing a place of work. If it were otherwise, then it would be about forced labor, which is prohibited in the Russian Federation by the Constitution of the Russian Federation. Thus, the employee has the right to terminate the employment contract with the condition of a probationary period at his own request. At the same time, since the test condition is associated with additional risks for the employee, the Labor Code of the Russian Federation reduces the time before the expiration of which the employee must notify of his dismissal up to 3 days.
In addition to the powers, an employee on probation has main responsibilities inherent in the party of labor relations.
So, the subject is obliged to conscientiously fulfill his labor obligations, comply with internal labor regulations and labor discipline, comply with established labor standards, comply with labor protection and labor safety requirements, treat employers' property with care, etc.
With an employee holding a position with a probationary condition, an agreement on full individual (or collective - brigade) liability may be concluded.
The probation period is established by agreement between the employer and the employee, but cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices and other separate structural divisions of organizations - six months, unless otherwise established by the federal by law.
Special rules on the period of probation when hiring workers for seasonal work are established in Article 294 of the Labor Code of the Russian Federation. So, testing of seasonal workers cannot exceed 2 weeks.
Test period is established at the time of employment and cannot be changed in the course of employment.
The period of temporary disability of the employee and other periods when he was actually absent from work (for example, additional leave for passing exams at an educational institution, other periods of absence from work with the permission of the administration, etc.) are not counted in the probationary period.
The test results can be either satisfactory (if the test period has expired, and the employee continues to work), or unsatisfactory.
In the first case, the employee continues to work, the employment contract with him is subject to termination only on a general basis. In case of an unsatisfactory result of the test, the employer has the right to terminate the employment contract with the employee before the expiration of the test period.
procedural requirements. When hiring an employee with a test condition, it should be remembered that an indication of the test must be included in the employment contract with such a person. The absence of a probation clause in the employment contract means that the employee is accepted without probation.
The employment contract in this case must contain an exact indication, allowing you to decide until what point the test continues. In this case, the probationary period in the contract can be by specifying:
1) the date of termination of the probationary period (for example, “until May 31, 2005” or “until September 20, 2004”);
2) the time period during which the employee is subject to a probationary period (for example, for 2 months).
In addition, the probationary period should also be indicated in the order for employment. In principle, the relevant requirement of the Labor Code of the Russian Federation does not contain. However, the unified form of the order for employment, approved by the Decree of the State Statistics Committee No. 1 of January 5, 2004, contains a special column in which the test period should be indicated if an agreement is reached between the employer and the employee on such a period.
Since an employee accepted on a probationary period differs from other employees only in that the contract with him can be terminated in a simplified manner, and other differences in their legal status No, the employer, when applying for such an employee, is obliged to:
1) make an entry in the work book or start a work book for a person hired for the first time;
2) create a personal card and personal account;
3) obtain a certificate of pension insurance for a person who did not have it;
4) calculate and pay wages and other mandatory payments;
5) report for this employee when submitting individual information to the Pension Fund of the Russian Federation.
In our opinion, it is necessary to pay special attention to the legal assessment of those cases when an employee is hired with a probationary condition, but without drawing up any documents (without drawing up an employment contract, making an entry in the work book, etc.). In many organizations, this practice is widespread. This is due, first of all, to the desire to reduce the amount of taxes calculated on wages and an attempt to further simplify the process of dismissing such an employee. At the same time, the administration does not always represent the consequences of such actions. And at the same time, the employee in this case receives much more rights than the test subject, hired according to all the rules.
Let us make a reservation right away that in the case described above, we are talking about the actual admission to work, which, according to its own legal consequences for the employee is equivalent to the conclusion of an employment contract. At the same time, the only problem for a person hired is proving the very fact of the performance of his labor duties.
In most cases, any circumstance confirming the actual conclusion of an employment contract can always be found. These can be witness statements, and a pass to the administrative building of the employer and documents endorsed by such an employee (for example, letters to counterparties, and vice versa, documents sent by partners of the employer to him in the name of such an employee). Thus, the fact that a person fulfilled his labor duties will be proved. It is impossible to prove the fact of concluding an employment contract with a condition on a probationary period, since the Labor Code of the Russian Federation directly requires an indication of this condition in a written employment contract.
Thus, if there is no written employment contract with an employee accepted with a probationary condition, then in fact it turns out that the employee was hired without such a condition, which means that he can be fired only on a general basis.
If the test result is satisfactory, no additional documents are required. In the event that the employee continues to work at the end of the probation period, he is automatically recognized as having passed the probation.
If the results were unsatisfactory, then the employee is dismissed as not having passed the test. At the same time, the employer must comply with the procedure provided for this by the Labor Code of the Russian Federation.
1. The dismissal of an employee, as not having passed the test, is possible only before the expiration of the probationary period.. As already mentioned, the trial period can be set in two ways: either by the exact date of its end or by a period of time. In any case, determining the exact date for the end of the probationary period is of great importance when deciding whether it is possible or not possible to dismiss a person who has not passed the test. It is during dismissal on the last day of the test that most disputes arise about the legality of such actions. This happens mainly because the same day from the point of view of the employee and the employer can be presented either as the last day of the test or as the day following the last day, that is, already as the first day of work on a general basis. The procedure for calculating terms in labor relations is determined by Art. 14 of the Labor Code of the Russian Federation. Paragraph 1 of this article establishes that the period with which the Labor Code of the Russian Federation connects the emergence of labor rights and obligations begins from the calendar date on which the beginning of the emergence of these rights and obligations is determined. Thus, the course of the probationary period begins on the first day of work of the subject. Terms calculated in years, months, weeks expire on the corresponding day of the last year, month or week of the term. That is, if an employment contract with a probationary condition was concluded on May 28, 2005, and the probationary period was set at 2 months, then it will expire on July 28, 2005. In this case, the last day of the probation will be exactly July 28, 2005. Within the period calculated in calendar weeks or days, including non-working days. If the last day of the term falls on a non-working day, the expiration date of the term shall be the next working day following it. A slightly different situation arises when the end date of the test is determined by the exact date. In this case, you should pay Special attention a preposition that comes directly before a date. So, if the probationary period is established by the contract "until August 15, 2005", then August 14, 2005 should be considered the last day of the test. On August 15, the employee continues to work on a general basis. If the deadline is set "until August 15, 2005", then the last day of the test should be recognized as early as the 15th of August. If the employment contract contains a condition according to which the probationary period "ends on October 21, 2005", then the first working day on a general basis will already be October 22. If the agreement with the employee establishes that the trial period "ends on October 21, 2005", then on the 21st it will no longer be possible to dismiss the employee as having failed the test.
2. Dismissal on the basis of the results of the probationary period is possible only after sending the appropriate notice to the employee. Notification of the negative results of the test and termination of the employment contract on this basis must be sent to the employee no later than 3 days in advance. In this notice, the employer must clearly state the reasons why the employee is deemed to have passed the test. At the same time, abstract formulations (for example, “the employment contract with Ivanov V.A. will be terminated due to his professional unsuitability”) are not allowed. The employer is obliged to directly point out the shortcomings in the work of the subject, which led to his dismissal. For example, "V.A. Ivanov does not have the skills to draw up business contracts necessary to hold the position of a lawyer." A good proof of the inconsistency of the test subject with the position can be orders to impose disciplinary sanctions on such an employee. However, it should be remembered that the test is established solely for the purpose of assessing the professional qualities of the employee. Therefore, dismiss the subject as not having passed the test, referring to his violation of the internal labor regulations, and providing evidence of an order to impose an appropriate disciplinary action, impossible.
3. Termination of the employment contract with an unsatisfactory test result is made without taking into account the opinion of the relevant trade union body and without paying severance pay.
4. Decision of the employer to terminate the employment contract may be challenged by the employee in court.
18. The procedure for imposing and documenting a disciplinary sanction
One of the main duties of an employee is to comply with the internal labor regulations of the organization in which he works, and labor discipline. For violation of labor discipline, as well as for other non-performance or improper performance by him through his own fault of the labor duties assigned to him (that is, for committing a disciplinary offense), the employee may be subject to disciplinary action.
Article 192 of the Labor Code of the Russian Federation establishes an exclusive list of disciplinary sanctions:
1) remark;
2) reprimand;
3) dismissal on appropriate grounds.
Federal laws, statutes and discipline regulations for certain categories employees may also be subject to other disciplinary sanctions. For example, in accordance with Art. 14 of the Federal Law of January 8, 1998 No. 8-FZ “On the Fundamentals of Municipal Service in the Russian Federation”, types of disciplinary sanctions against municipal employees may be provided for by regulatory legal acts of bodies local government. With regard to prosecutors, in addition to general penalties under Art. 41.7 of the Federal Law of January 17, 1992 No. 2202-I "On the Prosecutor's Office of the Russian Federation" a reduction in class rank may be applied; deprivation of the badge "For impeccable service in the prosecutor's office of the Russian Federation"; deprivation of the badge "Honorary Worker of the Prosecutor's Office of the Russian Federation"; warning about incomplete service compliance. A strict reprimand and a warning about incomplete service compliance can also be applied to a member of the crew of a Navy vessel (clause 14 of the Charter for Discipline of the Crew of the Navy Support Vessels, approved by Decree of the Government of the Russian Federation of September 22, 2000 No. 715).
The application of other disciplinary sanctions not provided for by federal laws, charters and regulations on discipline (including temporary transfer to a lower-paid job, reduction in wages, severe reprimand, etc.) is not allowed.
The Labor Code of the Russian Federation strictly regulates the procedure for imposing a disciplinary sanction. The process of applying any of the disciplinary measures can be conditionally divided into several stages.
1. It is necessary to document the fact of the commission of the offense. So, absence from the workplace can be confirmed by a time sheet, being late for work by a memorandum of the person responsible for admitting employees to the administrative building. In addition to direct (primary) documents confirming a disciplinary offense, it would be useful to draw up an appropriate act (on being late, absent from the workplace, appearing at work with obvious signs of alcohol intoxication, etc.).
2. The employer must request an explanation from the employee in writing. In the specified explanation, the employee must explain his behavior, indicate its reasons (for example, the employee may indicate that he was absent from work due to illness, or that he could not fulfill his labor obligation to draw up a report due to failure to provide the necessary information to other departments, etc. .P.). It should be noted that the provision of evidence of their explanations is the right of the employee. So, he has the right to attach a certificate of incapacity for work or a copy of the memorandum to a written explanation, but he may not do this. The employer is not entitled to demand the indicated actions from him and, on the basis of refusal to perform them, not to accept an explanation. There are two ways to request an explanation from an employee: either send him the corresponding letter in person, having received his signature on the second copy, or by sending the same letter by registered mail with notification. However, in practice, the question often arises: is the employer obliged to obtain evidence of the employee's receipt of the requirement to provide explanations, or is it enough for him to perform all the necessary actions for this. Most often, such a question arises when the employee does not come to work and does not receive mail. In this case, the employer is actually deprived of the opportunity to request explanations. The best option in this situation would be to send a request to the employee for an explanation telegram .
3. An act is drawn up on the refusal of the employee to give explanations. This step is optional, that is, it may not be applicable in a particular situation. It is not uncommon for an employee to refuse to provide any explanation for their misconduct. However, the Labor Code of the Russian Federation establishes that the refusal of an employee to give an explanation is not an obstacle to the application of a disciplinary sanction. But if the employee refuses to give the specified explanation, the employer must draw up an appropriate act.
4. An order (instruction) of the employer on the application of a disciplinary sanction is drawn up and signed. There is no unified form of such an order. Therefore, the employer has the right to draw up such an order in any form. However, the following information should be indicated in the order: the employee subjected to disciplinary liability, the content of the disciplinary offense committed by him, the type of disciplinary sanction and the details of the document confirming the commission of this offense (for example, an act on a disciplinary offense, a time sheet, etc.). It is advisable to file a photocopy of the document confirming the disciplinary offense with the order.
5. The order (instruction) of the employer on the application of a disciplinary sanction is announced to the employee against receipt within three working days from the date of its publication. If the employee refuses to sign the specified order (instruction), an appropriate act is drawn up.
6. There is an appeal of the disciplinary sanction by the employee to the state labor inspectorates or bodies for the consideration of individual labor disputes(for example, in the commission on labor disputes). A separate authority of an employee to protect his labor interests is his right to go to court. At the same time, the employee is not required to comply with any pre-trial procedure dispute settlement. So, the employee, at his choice, decides where to turn for support: first to the labor inspectorate, and then to the court, or immediately to the judicial authorities. This stage, as well as drawing up an act of refusal to give explanations, is optional, and may be absent in specific labor relations.
7. The disciplinary sanction is repaid or removed. If within a year from the date of application of the disciplinary sanction, the employee is not subjected to a new disciplinary sanction, then he is considered not to have a disciplinary sanction. In addition, the employer, before the expiration of a year from the date of application of a disciplinary sanction, has the right to remove it from the employee on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees.
A disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees. A disciplinary sanction may not be applied later than six months from the day the misconduct was committed, and based on the results of an audit, audit of financial and economic activities or an audit, later than two years from the day it was committed. The above time limits do not include the time of criminal proceedings.
For each disciplinary offense, only one disciplinary sanction may be applied.
Disciplinary responsibility can be subjected not only to an ordinary employee, but also to the head of the organization. Thus, the employer is obliged to consider the application of the representative body of employees about the violation by the head of the organization, his deputies of laws and other regulatory legal acts on labor, the terms of the collective agreement, agreement and report the results of the consideration to the representative body of employees.
If the facts of violations are confirmed, the employer is obliged to apply a disciplinary sanction to the head of the organization, his deputies, up to and including dismissal.
Considering that in this case there is a clear interest of the manager in the decision of the employer, and as a general rule, the representative of the employer is himself (i.e. the manager), then it is more expedient to resolve the issue of imposing a disciplinary sanction on the manager general meeting founders of the organization and draw up accordingly by the decision of such a meeting.
19. The procedure for the redundancy procedure
Termination of an employment contract due to a reduction in the number or staff is one of the grounds for the dismissal of an employee at the initiative of the employer (clause 2, article 81 of the Labor Code of the Russian Federation).
Here it is necessary to define the concepts. Under reduction in the number of employees in labor law, a general decrease in the number of employees is understood, while all positions that existed before are retained; the dismissal occurs from among several employees occupying the same position (for example, previously there were 5 design engineers, after the reduction there should be 2). The reduction in staff implies the exclusion of some positions from the staff list, and accordingly, the termination of the employment contract with persons who previously held these positions. For example, earlier in the organization there was a position of commercial director, but the head decided that this position was not necessary, the position was reduced, and the person occupying it was fired.
In practice, there are often cases when there is a mixed reduction, when at the same time there is both a reduction in some positions and a reduction in the number of employees in some personnel positions.
Example 19.1 B Severyanka LLC worked:
1) CEO;
2) Accountant - 2 people;
3) legal adviser;
4) sales manager - 5 people;
5) psychologist;
6) secretary - 2 people.
After the reduction should remain: CEO, Accountant, legal adviser, three sales managers and one secretary. In this case, along with a reduction in the number of employees (there were 12 people, and now there are 7), there is a reduction in positions (there were 6, there are 5 left).
With a mixed reduction, it is necessary to pay attention to which employees should be fired for what reason:
In example 19.1, one accountant, two managers and one secretary are fired to reduce the number of employees. An employment contract with an employee replacing the position of a psychologist is terminated due to a reduction in staff.
Since the termination of an employment contract due to a reduction in the number or staff is not due to either the guilty actions or the unprofessionalism of the employee or his desire, the legislator establishes a number of guarantees provided to the weaker side of labor relations - the employee. At the same time, the Labor Code of the Russian Federation clearly regulates the procedure for the ongoing reduction in the number or staff, which can be divided into several stages.
Stage 1. At the first stage, it is necessary to determine which positions are subject to reduction (in the event of a reduction in staff) or how many employees should remain (if a reduction is carried out).
Stage 2. An order is issued on the need for a reduction in the number or staff, which indicates the period for such a reduction, the measures that should be taken in preparation for such a dismissal, as well as the results that should be achieved through such a reduction (a new staffing table is approved, the number is indicated employees who must stay at work, etc.).
Stage 3. It is determined which particular of the workers falls under the reduction. The employer does not have the right to resolve this issue at his own discretion: the Labor Code of the Russian Federation establishes the rules that should be followed in determining who will be fired and who will remain. So, with a reduction in the number or staff of employees of the organization preemptive right for retention at work is provided to employees with higher labor productivity and qualifications. Higher labor productivity is determined by output in those cases where any standards are established for workers, or piecework wages are paid. If the employee is on a salary and there is no control over his labor productivity, then attention should be paid only to the professional level of the employee. Higher professionalism can be indicated by the presence of a special education (if another employee does not have such education), the presence additional education in a related specialty, an academic degree, longer work experience, etc. characteristics. Special mention should be made of work experience. As a general rule, all work experience in the specialty is taken into account. But in practice, a situation may arise when one employee has a longer length of service, but at the same time he worked in another organization, or even in a different industry (but in the same or similar position), and another employee has a shorter total length of service, but in He has been with this organization for a long time. As a rule, management strives to leave the person who has worked in this organization for the longest time. This position of the administration is not always justified. In cases where the professional performance of one's duties is in one way or another related to the specifics of the enterprise, such an approach is quite legitimate, the employer only needs to better substantiate his position. So, an accountant with a total experience of 10 years, of which only 1 year - in the gambling business (previously worked in wholesale trade), in our opinion, is not more professional than an accountant with a total experience of 8 years, of which 7 worked in the gambling business. And therefore, with a reduction in the number of employees, the latter may well have the preferential right to remain at work. If little depends on the specifics of the enterprise, then it will be useless to refer to the longer duration of work of a certain employee with this particular employer.
Example 19.2. S.V. Kalinina got a job at Adagio LLC as a computer operator immediately after school and worked for 3 years. T.M. Sviridova has been working at Adagio LLC for only half a year, but she has 7 years of experience in this profession. With the same education and production (speed and accuracy of printing). T.M. has the right to be left at work. Sviridov.
With equal labor productivity and qualifications, preference in remaining at work is given to:
1) family - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood);
2) persons in whose family there are no other self-employed workers;
3) employees who have received a labor injury or occupational disease in this organization;
4) invalids of the Great Patriotic War and invalids of combat operations for the defense of the Fatherland;
5) employees who improve their skills in the direction of the employer on the job.
The collective agreement may provide for other categories of employees of the organization, enjoying the priority right to remain at work with equal labor productivity and qualifications. In this regard, it should be noted that the right to settle the issue by the collective agreement is granted to the employer only in the case when the candidates for dismissal have the same professional level.
Example 19.3. The collective agreement of Zarya LLC provides that persons awarded by the organization with a diploma “for special merits” have the priority right to remain at work. O.I. Lazarev and T.P. Potapov, hold the position of a PTO engineer, one of them should be fired due to a reduction in the number of the organization. O.I. Lazarev has a diploma "for special merits", but at the same time T.P. Potapov has higher education, which Lazarev does not have, and his work experience exceeds Lazarev's experience by 3 years. Thus, the employment contract should be terminated with Lazarev, since Potapov's professionalism is much higher.
Lazarev would have had the preferential right to leave due to his diploma only if he and Potapov had the same level of education and the same work experience.
It should also be noted that the legislation does not provide for the possibility of resolving issues related to layoffs at the level of employment contracts. That is, it is impossible to fix in the labor agreement that the person hired, in the event of a reduction, will have the pre-emptive right to leave, it is impossible.
Stage 4. It is necessary not less than two months before the dismissal to warn the employees of the organization about the upcoming dismissal due to a reduction in the number or staff. Employees are warned by the employer personally and against receipt at least two months before the dismissal. However, the employer, with the written consent of the employee, has the right to terminate the employment contract with him without a two-month notice of dismissal with the simultaneous payment of additional compensation in the amount of two-month average earnings.
Stage 5. When deciding to reduce the number or staff of employees of the organization and the possible termination of employment contracts with employees, the employer is obliged not later than two months before the start of the relevant activities, inform about it:
1) the elected trade union body of this organization;
2) employment service bodies.
The said notice must be in writing. The notification to the employment service authorities must also contain indications of the position, profession, specialty and qualification requirements for them, the terms of remuneration for each specific employee to be dismissed.
If the decision to reduce the number or staff of the organization's employees may lead to mass layoffs of workers such notification must be made no later than three months prior to the commencement of the relevant activities.
It is the obligation to notify the trade union body and employment service bodies that is most often violated in practice.
Stage 6. The employer is obliged to offer the employee, whose employment contract will be terminated by reduction, another available job (vacant position) in the same organization, corresponding to the qualifications of the employee.
Stage 7. If it is planned to dismiss a member of the employer's trade union body due to a reduction in the number or staff, then the employer's administration must take into account the opinion of this trade union body itself. In an organization, a collective agreement may establish a different procedure for the mandatory participation of the elected trade union body of this organization in considering issues related to the termination of an employment contract at the initiative of the employer. For example, if the collective agreement stipulates that the opinion of the trade union body must be taken into account in any case when reducing the number or staff, then this will have to be done even if an employee who is not a member of the trade union is dismissed.
Stage 8. In the event of a threat of mass layoffs, the employer, taking into account the opinion of the elected trade union body, takes the necessary measures provided for by the Labor Code, other federal laws, a collective agreement, an agreement.
The criteria for mass dismissal are given in the Regulations on the organization of work to promote employment in conditions of mass dismissal, approved by the Decree of the Council of Ministers - the Government of the Russian Federation of February 5, 1993 No. 99. So, mass layoffs of workers should be discussed if:
1) within 30 calendar days it is supposed to dismiss 50 and more people;
2) within 60 calendar days it is planned to dismiss 200 or more people;
3) within 90 calendar days it is planned to dismiss 500 or more people;
4) within 30 calendar days in regions with a total number of employees less than 5 thousand people, it is planned to dismiss workers in the amount of 1% of the total number of employees.
Stage 9. An order (instruction) is issued to terminate an employment contract with a specific employee (employees) in connection with a reduction in the number or staff in the form No. T-8 and No. T-8a. The details of the order (instruction) of the head on the reduction in the number or staff are given as the basis for dismissal. In cases where it is necessary, a note is made that the opinion of the trade union body has been taken into account.
Stage 10. The employee must be familiarized with the order (instruction) on termination of the employment contract with him in connection with the reduction in the number and staff. If the employee refuses to get acquainted with the order, an appropriate act must be drawn up about this.
Stage 11. Upon termination of an employment contract due to a reduction in the number or staff of employees of the organization, the dismissed employee is paid severance pay in the amount of the average monthly salary.
Stage 12. On the last day of work, an entry is made in the work book about the termination of the employment contract in strict accordance with Art. 81 of the Labor Code of the Russian Federation and the work book is issued to the employee. If the employee refuses to receive a work book, then the address of the place of residence (if it differs from the address of registration, then the place of registration) is sent ordered letter with a notification of receipt of the need to appear for a work book or give permission to send it by mail.
Stage 13. When terminating an employment contract due to a reduction in the number or staff, the dismissed employee retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay). In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the public employment service agency, provided that the employee applied to this agency within two weeks after dismissal and was not employed by him.
20. Registration of dismissal by agreement of the parties
The Labor Code of the Russian Federation provides for four groups of grounds for terminating an employment contract, which include:
1) employer's initiative;
2) employee's initiative;
3) circumstances beyond the control of either the employee or the employer;
4) mutual decision of the employer and the employee to terminate the employment relationship.
Despite the fact that the procedure for concluding and executing an employment contract is generally regulated by labor legislation, an agreement between an employee and an employer still belongs to the category of contracts, the main provisions of which are established by the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) (parts one, two and third). The civil law establishes the principle of freedom of contract, which established not only the rule on the voluntary nature of the conclusion of contracts, but also the possibility, by mutual agreement, to terminate obligations and terminate the contract.
Thus, the right to terminate the employment contract by agreement of the parties, meets not only the principles labor law but also civil.
Termination by agreement of the parties is possible not only in relation to open-ended contracts, but in relation to agreements between the employer and the employee, limited time actions.
At present, termination of employment contracts by agreement of the parties is not quite common, employers prefer to dismiss employees either at their own request or at the initiative of the employer's administration. At the same time, termination of an employment contract by agreement of the parties has a number of advantages:
1. When terminating an employment contract by agreement of the parties, the parties have the right to indicate from what moment mutual obligations between the employee and the employer should be considered terminated. So, if, when an employee submits an application for resignation of his own free will, termination of the employment contract is possible only after 14 days from the date of filing the application, then when terminating the employment contract by mutual agreement, the parties have the right to independently determine the date.
Example. V.A. Ivanova on May 15, 2005 filed a letter of resignation of her own free will, where she indicated that she was asking to terminate the employment contract with her on May 20, 2005. In accordance with the labor legislation, V.A. Ivanova had to apply 14 days before her dismissal, i.e. the 6th of May. If the application was submitted on May 15, then terminate the employment contract of your own free will with V.A. Ivanova is possible on May 29, 2005. However, if the employer does not mind, the contract can be terminated on May 20, but by agreement of the parties. The only condition is that the parties to the employment contract are not entitled to terminate their employment relationship “retroactively” if the employee has actually been fulfilling his labor duties all this time.
2. An agreement on termination of an employment contract by mutual agreement may also contain conditions for termination of employment relations. So, the employer can assume the obligation to pay the employee amounts in excess of the accrued wages, and the employee to transfer cases to a new employee.
3. When terminating an employment contract by agreement of the parties, the employee practically does not have the opportunity to make claims to the employer regarding illegal dismissal. So, if dismissal of one's own free will leaves the employee a chance to declare the forced filing of such an application, then termination by agreement of the parties does not provide such an opportunity.
4. In accordance with the Law of the Russian Federation of April 19, 1991 No. 1032-1 "On Employment in the Russian Federation".
5. Cancellation of an agreement regarding the term and grounds for dismissal is possible only with the mutual consent of the employer and employee. For comparison: when submitting an application for dismissal of his own free will before the expiration of the 14-day notice period, the employee can withdraw his application and continue working (if another employee is not invited to work in the order of transfer).
The termination of the employment contract is formalized by agreement of the parties by drawing up a single document signed by the parties. The agreement on termination of the employment contract is drawn up in two copies, one for the employee and the employer.
An entry is made in the employee's work book about the termination of the employment contract by agreement of the parties with reference to paragraph 1 of Art. 77 of the Labor Code of the Russian Federation.
21. Voluntary dismissal
Forced labor in the Russian Federation is prohibited by paragraph 2 of Art. 37 of the Constitution of the Russian Federation. Therefore, the Labor Code of the Russian Federation gives the employee the right to terminate the employment contract at any time by notifying the employer in writing two weeks in advance.
By agreement between the employee and the employer, the employment contract may be terminated before the expiration of the notice period, however, in this case, the rules on termination of the employment contract by agreement of the parties will apply.
Labor legislation establishes two cases in which the termination of the employment contract at the request of the employee must be made by the employer within the period specified in the application for termination of employment:
1) if the dismissal of his own free will is due to the impossibility of continuing his work (enrollment in educational institution, retirement and other cases);
2) in cases of established violation by the employer of laws and other regulatory legal acts containing labor law norms, the terms of a collective agreement, agreement or employment contract (for example, in case of delay in payment of wages).
Prior to the expiration of the notice of dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out if another employee is not invited to his place in writing, who, in accordance with the Labor Code of the Russian Federation and other federal laws, cannot be refused to conclude an employment contract.
Upon the expiry of the termination notice period, the employee has the right to stop work. On the last day of work, the employer is obliged to give the employee a work book, other documents related to work, at the written request of the employee, and make the final settlement with him. An entry in the work book about dismissal is made with reference to paragraph 3 of Art. 77 of the Labor Code of the Russian Federation.
If the employment contract has not been terminated after the expiration of the term of notice of dismissal and the employee does not insist on dismissal, then the employment contract continues.
22. How to properly document absenteeism
Truancy is one of the most common violations of labor discipline, in particular the working hours. Under absenteeism in the theory and practice of labor law, the absence of an employee in the workplace without any legal grounds is understood.
The consequences of absenteeism are very diverse: from imposing various kinds disciplinary action before dismissal under sub. "a" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation. However, one should not forget about separate form truancy, not enticing negative consequences for the employee - forced absenteeism. Types of employee absence from the workplace can be divided into three main groups:
1) the employee's legal absence from the workplace;
2) forced absenteeism;
3) absenteeism committed through the fault of the employee himself.
In accordance with labor legislation, an employee may be absent from the workplace without any negative consequences for himself in the following main cases:
1) in case of illness;
2) in case of leave;
3) in case of performance by the employee of state or public duties;
4) in other cases when the absence from work is justified.
Absence from work due to temporary disability. Temporary disability of an employee is the most common reason for his absence from work. A sick employee of the Labor Code of the Russian Federation provides the right not to come to his workplace, and at the same time receive temporary disability benefits.
Temporary disability benefit is issued:
1) in case of illness (injury) associated with disability;
2) with sanatorium-and-spa treatment;
3) in case of illness of a family member in case of need to care for him;
4) during quarantine;
5) at temporary transfer to another job due to tuberculosis or an occupational disease;
6) during prosthetics with placement in a hospital of a prosthetic and orthopedic enterprise.
The basis for the appointment of temporary disability benefits is a sick leave issued in the prescribed manner (sick leave certificate).
As a rule, temporary disability benefits are issued from the first day of disability and until its restoration or until the establishment of a medical labor expert commission disability, even if the employee was fired at that time.
However with household trauma benefits are issued starting from the sixth day of incapacity for work. If the injury was the result of a natural disaster (earthquake, flood, hurricane, fire, etc.) or an anatomical defect of the victim, the benefit is issued for the entire period of disability according to general rules.
An abortion benefit is issued for the first three days of temporary incapacity for work. In cases of surgery for artificial termination of pregnancy for medical reasons and in case of spontaneous abortion, as well as for women whose wages do not exceed the minimum wage established by law, benefits are issued for the entire period of temporary disability on a general basis. In other cases, if temporary incapacity for work due to an abortion operation lasts more than 10 days, benefits are issued starting from the 11th day of incapacity for work.
Benefit for sanatorium-resort (outpatient-resort) treatment issued if the next and additional holidays the employee does not have enough for treatment and travel to the sanatorium and back, and if the voucher (travel) is issued at the expense of social insurance funds free of charge or with payment of 30% of its cost. Employees sent for follow-up care to a sanatorium directly from hospitals of medical institutions after suffering an acute myocardial infarction receive benefits for the entire stay in the sanatorium.
One of the working parents (guardian or custodian) raising a disabled child under the age of 16 is granted an allowance for the entire period of sanatorium treatment of a disabled child (including travel time) if there is a medical opinion on the need for individual care for him.
On leave to care for a sick family member the allowance is issued if the lack of care threatens the life or health of the sick person and if, if there is evidence, it is impossible to place him in a hospital, and there is no other person among the family members who can care for the sick person. When a child under the age of 2 falls ill, mothers receive benefits regardless of whether there is another family member capable of caring for the sick child.
Benefit for caring for a sick family member issued no more than three calendar days in advance. The extension of the period for issuing benefits beyond three calendar days is made only in exceptional cases, depending on the severity of the illness of a family member and the household situation, and not more than up to seven calendar days in total.
Benefit for caring for a sick child under the age of 14, issued for the period during which the child needs care, but not more than 14 calendar days.
Mother released from work to stay with a sick child in a hospital, the allowance is issued for the entire time of release from work.
Benefit for working people caring for a child under the age of three or a disabled child under the age of 16, in case of illness of the mother for a period when she cannot take care of the child.
Quarantine help issued if the employee was suspended from work by the sanitary and epidemiological service due to a contagious disease of those around him.
When placed in a hospital prosthetic and orthopedic enterprise the allowance is issued for the entire time spent in the hospital and for the time of travel to the hospital and back, but not more than 30 calendar days.
Working disabled people temporary disability benefits, except in cases of industrial injury or occupational disease, issued no longer than 2 consecutive months and no more than 3 months in a calendar year. Working invalids of the Patriotic War and other invalids equated in terms of benefits to disabled veterans of the Patriotic War, temporary disability benefits, except for cases of industrial injury or occupational disease, are issued up to 4 consecutive months or up to 5 months in a calendar year.
If temporary incapacity for work for a working disabled person has come from an industrial injury or an occupational disease, the benefit is issued until recovery or until the disability group is revised due to an industrial injury or occupational disease.
Working disabled people (with the exception of those recognized as disabled from tuberculosis) in the event of temporary disability due to tuberculosis, benefits are issued until recovery or until the disability group is revised due to tuberculosis, but not longer than 10 consecutive months and not more than 12 months in total within two calendar years .
Employees recognized as disabled due to tuberculosis are granted temporary disability benefits in case of exacerbation of this disease for no longer than 4 consecutive months and no more than five months in a calendar year.
Temporary disability benefit is not issued:
1) employees who intentionally harmed their health in order to evade work or other duties or pretended to be sick (simulators). The amounts of benefits previously issued to them are subject to recovery in court;
2) in case of temporary disability due to diseases or injuries resulting from intoxication or actions related to intoxication, as well as due to alcohol abuse;
3) employees whose temporary incapacity for work occurred as a result of injuries received when they committed crimes.
The following categories of workers are also deprived of benefits:
1. Those who have committed absenteeism without good reasons immediately before the onset of temporary disability.
Example 22.1. R.P. Kabanov from June 15-16, 2005 was absent from the workplace without good reason. From 16 to 25 June R.P. Kabanov was ill, about which a sheet of temporary disability was drawn up. However, the allowance will not be paid to him for the entire period from 15 to 25 June.
2. Violating the regime established for them by a doctor;
3. Not appearing without good reason at the appointed time for a medical examination or for examination by a medical and labor expert commission.
The deprivation of benefits in these cases occurs from the day when the violation was committed, and for a period established by the trade union committee of the enterprise, institution, organization or the social insurance commission created by it, assigning benefits.
At the same time, it should be noted that for an unscrupulous employee, illness becomes a very attractive explanation for a guilty absence from work, and unscrupulous employers often use the illness of their employees to dismiss them on guilty grounds.
This is due, first of all, to the fact that after the onset of the disease, the employee does not always have the opportunity to inform the employer about his illness, documents confirming temporary disability, and are completely provided by the employee to the employer's administration after he returns to work. Therefore, the employer, before the employee appears at work, is actually deprived of the opportunity to find out what his absence is: absenteeism or sickness. In this regard, the dismissal of an employee for absenteeism in cases where the true reason for his absence from the workplace is not known may lead to the recognition of the dismissal order as illegal and the reinstatement of the employee at work.
In this situation, even full compliance with all procedural requirements of labor legislation when registering a dismissal does not guarantee that the employee will not be reinstated in the future. If an employee is provided with a certificate of incapacity for work at the court session, then dismissal for absenteeism will be declared illegal.
In the event of temporary disability during the period of a dispute about the correctness of the dismissal, the allowance is issued in case of reinstatement at work. At the same time, temporary disability benefits are issued from the date of the decision to reinstate at work.
22.1 Absence from work due to leaveAs a rule, employers believe that an employee has the right to go on vacation only with the consent of the employer, which means that until the application for vacation is signed, the absence of an employee at work with reference to his vacation status is illegal, which means that we are talking about absenteeism, for who can either be sanctioned or fired.
However, this is not the case in all cases.
In cases where the employer must grant the employee leave, the employee has the right not to come to work without the risk of applying any disciplinary measures to him. For example, an employee who combines work with studying at a university in the evening or part-time form of study has the right to additional paid leave for the period of passing intermediate exams, writing a thesis, state. certification. The employer has no right to refuse to grant such leave to him. Therefore, if an employee writes an application for leave, to which he attaches all supporting documents (in particular, a certificate of call from the university) and hands it over to the representative of the employer against signature, then such an employee will have the right to go on vacation even in the absence of direct permission from the management. Such absence from work cannot be recognized as absenteeism.
According to the labor legislation of the Russian Federation, the employer is obliged to provide leave to the following categories of employees:
1) the next annual leave to the husband during the period when his wife is on maternity leave. In addition, the right to receive such leave for an employee does not depend on the duration of his work in this organization - par. 3 art. 123 of the Labor Code of the Russian Federation;
2) before the expiration of 6 months of work at a specific place of work, leave must be granted (Article 122 of the Labor Code of the Russian Federation):
a) women - before maternity leave or immediately after it;
b) employees under the age of 18;
c) employees who have adopted a child (children) under the age of three months;
d) persons working part-time, annual leave must be provided simultaneously with leave at the main place of work - Art. 286 of the Labor Code of the Russian Federation;
3) spouses of servicemen are granted leave simultaneously with the leave of the serviceman himself - clause 11, article 11 of the Federal Law of May 27, 1998 No. 76-ФЗ “On the Status of Servicemen”;
4) the employer is obliged, on the basis of a written application of the employee, to grant unpaid leave Art. 128 of the Labor Code of the Russian Federation:
a) participants of the Great Patriotic War - up to 35 calendar days a year;
b) working old-age pensioners (by age) - up to 14 calendar days a year;
c) parents and wives (husbands) of military personnel who died or died as a result of injury, concussion or injury received in the performance of military service duties, or as a result of an illness associated with military service - up to 14 calendar days a year;
d) working disabled people - up to 60 calendar days a year;
e) employees in cases of the birth of a child, marriage registration, death of close relatives - up to five calendar days;
f) an employee with 2 or more children under the age of 14, an employee with a disabled child under the age of 18, a single mother raising a child under the age of 14, a father raising a child under the age of 14 without a mother, if the right to leave is established by the collective agreement.
22.2 Absence from the workplace in case of performance of state or public duties by the employeeThe employer is obliged to release the employee from work with the preservation of his place of work (position) for the period of his performance of state or public duties in cases where, in accordance with federal law, these duties must be performed during working hours.
Members of commissions on labor disputes shall be given free time from work to participate in the work of the said commission while maintaining their average earnings.
On the day of donation of blood and its components, as well as on the day of the related medical examination, the employee is released from work.
If, by agreement with the employer, the employee went to work on the day of donating blood and its components (with the exception of heavy work and work with harmful and (or) dangerous working conditions, when it is impossible for the employee to go to work on that day), he is provided with his wish for another day of rest.
In the case of donating blood and its components during the period of annual paid leave, on a weekend or non-working holiday, the employee, at his request, is provided with another day of rest.
After each day of donating blood and its components, the employee is given an additional day of rest. The specified day of rest, at the request of the employee, can be attached to the annual paid leave or used at another time during the calendar year after the day of donating blood and its components.
In addition to the legal grounds for the absence of an employee from the workplace discussed above, the labor legislation of the Russian Federation establishes several more cases in which dismissal for absenteeism becomes impossible.
For example, in accordance with Art. 142 of the Labor Code of the Russian Federation In the event of a delay in the payment of wages for a period of more than 15 days, the employee has the right, by notifying the employer in writing, to suspend work for the entire period until the payment of the delayed amount.
Suspension of work is not allowed:
22.3. Forced absenteeismThe application of disciplinary measures for absenteeism is possible only if the employee has committed an official misconduct. Thus, if the fault of the employer himself is that the employee was actually deprived of the opportunity to work, there are no negative consequences for the subordinate.
You can talk about forced absenteeism in the following cases:
1) in case of unlawful suspension from work;
2) upon illegal dismissal;
3) with a delay in issuing a work book.
The time of forced absenteeism is always paid by the employer. Yes, Art. 234 of the Labor Code of the Russian Federation provides that the employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, arises if the earnings are not received as a result of:
1) illegal removal of an employee from work, his dismissal or transfer to another job;
2) the employer's refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee in his previous job;
3) delays by the employer in issuing a work book to an employee, entering into the work book an incorrect or inconsistent wording of the reason for dismissal of an employee;
4) other cases stipulated by federal laws and the collective agreement.
Of particular note is another case where the absence of an employee at the workplace is not illegal, and accordingly, wages must be accrued and paid, and disciplinary sanctions cannot be imposed on the employee. This case is expressly provided for in Art. 142 of the Labor Code of the Russian Federation, which establishes the right of an employee in the event of a delay in the payment of wages for a period of more than 15 days, the employee, having notified the employer in writing, suspend work for the entire period until the payment of the delayed amount.
However, suspension of work is not allowed in the following cases:
1) during periods of introduction of martial law, a state of emergency or special measures in accordance with the legislation on a state of emergency;
2) in the bodies and organizations of the Armed Forces of the Russian Federation, other military, paramilitary and other formations and organizations in charge of ensuring the defense of the country and state security, rescue, search and rescue, fire fighting, work to prevent or eliminate natural disasters and emergency situations , in law enforcement;
3) civil servants;
4) in organizations that directly serve especially dangerous types of production, equipment;
5) in organizations related to ensuring the life of the population (energy supply, heating and heat supply, water supply, gas supply, communications, ambulance and emergency medical care stations).
22.4. Absenteeism committed through the fault of the employeeIn the case of guilty absenteeism, i.e. absence from the workplace without good reason, the employee may be subject to appropriate disciplinary measures: reprimand, reprimand or dismissal. At the same time, the right to choose a specific measure of punishment from among those provided for by the Labor Code of the Russian Federation and other federal laws belongs to the employer. The employer also has the right to completely refuse punishment, in this case, there are no negative consequences for the employee.
Regardless of what measure of disciplinary action the employer has chosen, the administration must strictly follow the procedure provided for by the Labor Code of the Russian Federation. We considered the procedure for imposing disciplinary sanctions earlier, so in this chapter we will dwell in more detail on the features of termination of an employment contract for absenteeism.
Absenteeism is one of the guilty grounds for terminating an employment contract with an employee at the initiative of the employer. In accordance with sub. "a" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation absenteeism the absence of an employee from work without good reason for more than four hours in a row during the working day is recognized.
Naturally, absenteeism must be properly documented. The main document confirming absenteeism is the time sheet. In order for this document not to raise doubts, it must be drawn up in accordance with the law and without errors.
The unified form T-13 (time sheet) is provided for by the Decree of the State Statistics Committee of the Russian Federation dated January 05, 2004 No. 1.
The time sheet is used to record the time actually worked and (or) not worked by each employee of the organization, to monitor compliance with the established working hours by employees, to obtain data on hours worked, as well as to compile statistical reporting on labor.
The time sheet is drawn up in one copy by an authorized person, signed by the head of the structural unit, an employee of the personnel service and transferred to the accounting department.
Notes in the Time Sheet on the reasons for absenteeism, part-time work or outside the normal working hours at the initiative of the employee or employer, reduced working hours, etc. are made on the basis of duly executed documents. Such documents may include: a certificate of incapacity for work, a certificate of the fulfillment of state or public duties, a written warning of downtime, a statement of part-time employment, a written consent of the employee to overtime work in cases established by law, etc.
To reflect the daily cost of working time per month for each employee, four lines are allocated in the time sheet (two for each half of the month) and the corresponding number of columns (15 and 16).
In form No. T-13 (in columns 4, 6), the top line is used to mark the symbols (codes) of working hours, and the bottom line is used to record the duration of hours worked or not worked (in hours, minutes) according to the corresponding codes of working hours for each date. If necessary, it is allowed to increase the number of columns for affixing additional details on the working hours, for example, the start and end time of work in conditions other than normal.
The costs of working time are taken into account in the Timesheet either by the method of continuous registration of attendances and absences from work, or by registering only deviations (absences, lateness, overtime hours, etc.).
When reflecting absences from work, which are recorded in days (vacation, days of temporary disability, business trips, leave in connection with training, time for performing state or public duties, etc.), only codes symbols, and the columns in the bottom line remain empty.
Form No. T-13 "Time sheet" is used for automated processing of credentials. When compiling a spreadsheet form No. T-13:
1) when recording credentials for payroll for only one type of payment and a corresponding account common to all employees included in the Timesheet, the details “type of payment code”, “corresponding account” are filled in above the table with columns 7-9 and column 9 without filling column 7 and 8;
2) when recording credentials for payroll for several (from two to four) types of payment and corresponding accounts, columns 7-9 are filled in. An additional block with identical column numbers is provided for filling in data on types of payment if their number exceeds four.
Timesheet forms in the form No. T-13 with partially completed details can be made using the means computer science. These details include: structural unit, last name, first name, patronymic, position (specialty, profession), personnel number, etc. - that is, the data contained in the directories of conditionally permanent information of the organization. In this case, the form of the time sheet changes in accordance with the accepted technology for processing credentials.
In cases where the time sheet was not kept in the organization, or the compiled time sheet is in doubt, it is required to draw up an act on the absence of the employee at the workplace. The specified act must contain at least three signatures of responsible persons (for example, the head of the department - the immediate supervisor of the absent employee, the employee of the personnel service and the head of the organization - the employer).
Restoration of an employee at the workplace, upon termination of the employment contract for absenteeism, is possible in three cases:
1) the very fact of the absence of the employee from the workplace is recognized as unproven;
2) the reason for the absence from the workplace has been recognized by the court as valid;
3) the reason for the absence from the workplace was recognized by the court as disrespectful, the absence was proven, but the procedure for imposing a disciplinary sanction in the form of dismissal was not observed.
If, when resolving a dispute on the reinstatement of a person dismissed for absenteeism, and collecting the average earnings for the period of forced absenteeism, it turns out that the absence from the workplace was caused by an unexcused reason, but the employer violated the dismissal procedure, the court, when satisfying the stated requirements, must take into account that average earnings in such cases, a reinstated employee may be charged not from the first day of absenteeism, but from the date of issuance of the dismissal order, since only from that time absenteeism is forced.
When resolving the issue of paying for forced absenteeism, one should be guided by Art. 139 of the Labor Code of the Russian Federation and the Regulation on the peculiarities of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of April 11, 2003 No. 213.
In accordance with these documents, the calculation of the average earnings of an employee, regardless of the mode of his work, should be made based on the wages actually accrued to him and the time he actually worked for the 12 months preceding the moment of payment (Determination of the Armed Forces of the Russian Federation No. 53-G03-25).
As noted in paragraph 5 of the Review judicial practice Supreme Court of the Russian Federation "Some Issues of Judicial Practice in Civil Cases of the Armed Forces of the Russian Federation" (BVS RF 2002 No. 5, BVS RF 2002 No. 6) forced walk time.
Thus, when determining the amount of wages to be collected in favor of B. during the forced absenteeism, the court ruled out unemployment benefits received at the employment center.
At the protest of the Vice President Supreme Court RF decision in this part is canceled.
According to the explanations contained in paragraph 50 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On Certain Issues of the Application of Legislation by the Courts of the Russian Federation in the Resolution of Labor Disputes”, when collecting average earnings in favor of an employee reinstated in his previous job, he is subject to offset the severance pay paid to him, as well as wages for work in another organization and temporary disability benefits paid to the plaintiff within the period of paid absenteeism.
Unemployment benefit is not included in the number of payments subject to offset when determining the amount of payment for forced absenteeism.
Under such circumstances, the reduction of the plaintiff's wages during forced absenteeism by the amount of the allowance received by him at the employment center was declared illegal.
In the event that the court establishes the illegality of the dismissal, but the employee does not insist on reinstatement, the plaintiff's demand to change the wording of the dismissal on discrediting grounds to dismissal of his own free will is subject to satisfaction. If such a claim is satisfied, the court has no grounds for refusing to recover wages in favor of the plaintiff for the time of forced absenteeism and in terms of compensation moral damage.
Example 22.2 Perov, who worked as a senior detective of the first department of the department of the operational-search unit at the department for economic crimes of the criminal police of the Main Department of Internal Affairs of Moscow, by order of the head of the Main Department of Internal Affairs of Moscow on April 29, 1997, was dismissed from the internal affairs bodies under paragraph "k" of Art. 58 Regulations on service in the internal affairs bodies of the Russian Federation (for gross violation disciplines).
Disagreeing with the wording of the dismissal, Perov filed a lawsuit to change the wording of the dismissal to dismissal of his own free will, collect wages for the time of forced absenteeism, recover the costs associated with dismissal and the provision of legal assistance by a lawyer, compensation for moral damage.
The Moscow City Court changed the wording of Perov's dismissal to dismissal of his own free will, in his favor recovered wages for the time of forced absenteeism, the retained cost of uniforms, compensation for non-pecuniary damage in the amount of 500 thousand rubles and reimbursement of expenses incurred in connection with legal assistance by a lawyer.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation left the decision unchanged, pointing out the following.
As can be seen from the case file, Perov was fired in violation of the law. The respondent did not appeal this part of the decision.
As explained by the Plenum of the Supreme Court of the Russian Federation in paragraph 45 of the resolution of December 22, 1992 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes” (with subsequent additions and changes), at the request of an employee whose dismissal is recognized as illegal, the court may limit making a decision on the recovery in his favor of the average earnings for the time of forced absenteeism and on changing the wording of the grounds for dismissal to dismissal of his own free will.
The argument that when resolving the issue of changing the wording of dismissal, wages for the time of forced absenteeism cannot be recovered if the incorrect wording of the grounds for dismissal did not make it impossible to go to work in another enterprise, organization, is erroneous. This rule applies when the court recognizes that the administration had a reason for dismissal, but in the order gave the wrong wording of the reason for dismissal or referred to an inappropriate law.
According to the Labor Code of the Russian Federation, in cases of dismissal without a legal basis or in violation of the established procedure for dismissal or illegal transfer to another job, the court has the right, at the request of the employee, to make a decision on compensation to the employee monetary compensation moral damage caused to him by these actions. The amount of this compensation is determined by the court.
Thus, illegal dismissal entails causing moral suffering to the employee. The degree of physical or moral suffering can serve as a basis for determining the amount of monetary compensation for moral damage by the court (paragraph 2 of the Review of the Court Practice of the Armed Forces of the Russian Federation ”// BVS RF 1999. No. 12, 2000, No. 1).
In judicial practice, the question also arose: whether the wages received during the period of absenteeism for part-time work are subject to offset against the amount of payment for the time of forced absenteeism.
Example 22.3. Nifontov sued the Sputnik cafe for reinstatement and payment for forced absenteeism.
Nifontov's claim was satisfied by the decision of the Yakut City People's Court.
By the decision of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Sakha (Yakutia), the decision regarding the reinstatement of Nifontov at work was left unchanged, and regarding the payment for forced absenteeism, it was canceled and the case was sent for a new trial.
At a new consideration of the case in the Yakut City People's Court, the claim for payment of forced absenteeism was denied. At the same time, the court proceeded from the fact that during the forced absenteeism, Nifontov continued to work as chairman of the Yurist cooperative, where he received a salary exceeding the average salary at the place of work from which he was illegally dismissed.
Having considered the case in the order of judicial supervision, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation canceled the decision of the people's court, which refused to pay for the time of forced absenteeism. At the same time, it was indicated, in particular, that not all amounts received by the illegally dismissed person for work during the period of forced absenteeism are subject to offset against payment of the time of forced absenteeism, but only those received in another organization for the work for which he got a job after illegal dismissal. .
If, on the day of dismissal, the plaintiff, as noted in the ruling of the Judicial Collegium of the Supreme Court of the Russian Federation, worked part-time in another organization in which he also received wages, then this wage should not be counted towards payment for forced absenteeism. Otherwise, the employee would be unjustifiably deprived of compensation for damage caused by the non-receipt of wages at the place of work from which he was illegally dismissed.
This explanation is of fundamental importance for judicial practice. When resolving disputes over the payment of wages during forced absenteeism, courts should keep in mind that the responsibility for the illegal dismissal of an employee lies with the administration that allowed the illegal dismissal. By refusing to satisfy the claim, the court thereby deprived the plaintiff of the opportunity to receive compensation for damages resulting from illegal dismissal, despite the fact that, in accordance with the law, he has such a right. The salary received by the plaintiff for part-time work with another employer does not compensate for this damage, since this salary was received by the plaintiff before the illegal dismissal, and after the illegal dismissal, his income decreased by the amount of wages received from the defendant (paragraph 2 of the Review judicial practice of the Armed Forces of the Russian Federation // BVS for 1994 No. 7).
23. Registration of the appearance of an employee at the workplace in a state of intoxication
An employee who appears at the workplace in a state of intoxication must be suspended from work by the employer. This obligation of the employer is established by Art. 76 of the Labor Code of the Russian Federation. The type of intoxication (alcoholic, narcotic, toxic) does not matter. Also, the employer is not obliged to find out the nature of intoxication: pathological or simple. In any case, the employee must be suspended from work in order to prevent harm that such employee may cause to himself, third parties or the property of the employer.
In case of causing material damage employer by an employee who is in a state of intoxication, such an employee in accordance with sub. 4 para. 1 st. 243 of the Labor Code of the Russian Federation bears the full liability regardless of whether an agreement has been concluded with him or not. Also in this case, it does not matter whether the employee is a materially responsible person by position in accordance with the lists established by law or not.
In addition, if an employee appeared at work in a state of alcoholic, toxic or drug intoxication, the employer has the right to dismiss him under paragraph 6 (subparagraph "b") of Art. 81 of the Labor Code of the Russian Federation.
However, in order to be able to apply all these negative consequences in relation to the employee, the employer must comply with statutory the procedure for registering the fact of the appearance of an employee in a state of intoxication at the workplace.
The presence of the state of intoxication itself can only be confirmed medical worker V special order, approved by the Order of the Ministry of Health of the Russian Federation of July 14, 2003 No. 308 "On a medical examination for intoxication."
A medical examination for the state of intoxication of a person is carried out in healthcare organizations licensed to carry out medical activities indicating the relevant works and services.
The examination is carried out on the basis of a protocol on sending for examination, signed by an authorized official.
The examination is carried out by a doctor (in rural areas, if it is impossible to conduct an examination by a medical assistant), who has undergone appropriate special training on the basis of narcological institutions of the health authorities of the constituent entities of the Russian Federation.
The agent (substance) that caused intoxication is determined based on the results of a chemical-toxicological study conducted in the manner established by the Ministry of Health of the Russian Federation.
During the examination, technical means of indication and measurement are used, registered and permitted by the Ministry of Health of the Russian Federation for use in medical purposes and recommended for a medical examination for intoxication.
For the quantitative determination of alcohol in exhaled air, the quantitative determination of alcohol, narcotic drugs, psychotropic and other intoxicating substances in human biological media, technical means are used that meet the following conditions:
1) they have been verified in accordance with the procedure established by the State Committee of the Russian Federation for Standardization and Metrology;
2) the type of such technical means is included in State Register measuring instruments;
3) their verification during operation is carried out at intervals established by the State Committee of the Russian Federation for Standardization and Metrology when approving this type of measuring instruments.
Based on the results of the examination, an act of medical examination for intoxication is drawn up in 2 copies, indicating the date of the examination and the number corresponding to the registration number of the examination in the register of medical examinations for intoxication.
When filling out the act, the surname, name, patronymic of the person being examined are indicated on the basis of an identity document, and in the absence of such a document - from the words of the person being examined or the person accompanying him, with a corresponding entry about this in the act. All paragraphs of the act are filled out without any abbreviations and underlining. The act is signed by the doctor (paramedic) who conducted the examination, and certified by the seal of the healthcare organization in which the examination was carried out.
Based on the results of the survey, a conclusion is drawn up, in which the state of the person being examined at the time of the survey should be clearly described. If the examinee refuses to be examined (or from one or another type of examination as part of the examination) by the doctor (paramedic) conducting the examination, an entry “refused to be examined” is made in the registration log.
If the examination in full is not possible due to the severity of the condition of the person being examined, the report indicates the reasons why this or that examination was not performed.
The basis of the conclusion about the condition of the examined is the data of a comprehensive medical examination, taking into account the results laboratory research.
If there are clinical signs of intoxication and it is impossible to establish the substance that caused intoxication by a laboratory test, a conclusion about the presence of a state of intoxication is made on the basis of the established clinical signs of intoxication.
If, due to the severity of the condition of the person being examined, it is not possible to identify clinical signs of intoxication, it is allowed to make a conclusion about the presence of intoxication due to alcohol consumption based on the results of a laboratory blood test using analytical diagnostic methods. In this case, the conclusion about the presence of alcohol intoxication is issued when the concentration of alcohol in the blood is 0.5 or more ppm.
Upon completion of the entire certification procedure, including receipt of the results of laboratory tests, the original of the results of laboratory tests, certified by the signature of the specialist who conducted the study, is attached to the second copy of the act.
The first copy of the act is handed over to the representative of the employer. The second copy of the act remains in the healthcare organization in which the examination was carried out and is kept for 3 years.
Annex No. 6 to the said Order of the Ministry of Health contains a list of criteria, the presence of which is sufficient to believe that an employee is intoxicated and send such an employee for a medical examination. These signs include:
1) the smell of alcohol from the mouth;
2) posture instability;
3) speech disorder;
4) pronounced trembling of the fingers;
5) a sharp change in the color of the skin of the face;
6) behavior that does not correspond to the situation.
An employment contract is the main document regulating labor relations between an employee and an employer. And at the same time, this document carries significant risks for the employer in case of violation of the requirements for its preparation and content. Therefore, it is extremely important for the employer to draw up this contract correctly.
In fact, there are not many requirements in labor legislation that apply to employers when drawing up an employment contract. But, as noted earlier, it is extremely important to comply with them. After all, for miscomposition employment contract, the law provides for separate liability. This is stated in Part 3 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation, liability is expressed (in particular) in the form of a fine for legal entities in the amount of 50,000 to 100,000 rubles. At the same time, it is important to take into account that during inspections, the inspection body often attracts the employer for each incorrectly drawn up document separately. In this regard, the fine for such a seemingly insignificant violation can amount to hundreds of thousands, given the fact that employers make mistakes precisely when developing a standard form of an agreement, respectively, subsequently these errors are present in employment contracts with all employees.
In this article, we will analyze the conditions that must be contained in an employment contract without fail. If the employer correctly indicates at least the mandatory conditions, the risk of bringing to administrative responsibility will already be minimal.
So, the main article that regulates what should be spelled out in an employment contract is article 57 of the Labor Code of the Russian Federation. Let's dwell on it in more detail.
Article 57 of the Labor Code of the Russian Federation divides the employment contract into two parts: mandatory information and mandatory conditions. Information in this case refers to information about the employee and the employer, as well as information about the time and place of the conclusion of the contract. Conditions mean what the parties agree on.
The following information is required to be included in the employment contract:
- about the employer - the name of the employer (last name, first name, patronymic of the employer - an individual and information about his identity documents), an identification number taxpayer (for employers, with the exception of employers - individuals who are not individual entrepreneurs), information about the representative of the employer who signed the employment contract, and the basis by virtue of which he is endowed with the appropriate authority;
- about the employee - last name, first name, patronymic of the employee; information about the documents proving the identity of the employee;
- the date and place of conclusion of the employment contract.
These are required by law. Of course, in practice, employers are not limited to this and include in the employment contract a lot of additional information both the employer and the employee. Including additional information about the employer does not carry any risks. Care must be taken when including additional information about the worker. It is necessary to pay attention to the fact that, including information (which is not defined by law as mandatory), it is important to comply with the legislation on personal data, according to which, their processing is allowed only with the written consent of the employee. That is, before including information about the place of residence, place of birth, date of birth, telephone number, etc., into the employment contract, the employer must first obtain from the employee a written consent to the processing of personal data, drawn up in accordance with all the rules of the law.
Now consider the mandatory conditions that should be in every employment contract. So, the following conditions are mandatory for inclusion in an employment contract.
1. Place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another locality, the place of work indicating the separate structural unit and its location.
Please note that the law does not determine how in detail the place of work of the employee, the location of a separate structural unit should be indicated. That is, the employer can limit himself to only the name of the settlement (for example, Moscow), or he can indicate the place of work in detail, up to the street, house, office, etc. However, the possibility of moving the employee and the possibility of bringing him to disciplinary liability for disrespectful absence from the workplace depends on how detailed the place of work is indicated.
2. Labor function (work according to the position in accordance with the staff list, profession, specialty, indicating qualifications; a specific type of assigned work). If, in accordance with the Labor Code, other federal laws, the provision of compensations and benefits or the presence of restrictions is associated with the performance of work in certain positions, professions, specialties, then the names of these positions, professions or specialties and qualification requirements for them must comply with the names and requirements, specified in the qualification reference books approved in the manner established by the Government of the Russian Federation, or the relevant provisions of professional standards.
This is one of the most significant terms of the employment contract. Please note that the law does not disclose how detailed the labor function must be specified. But an important condition is that the labor function must be specified in the employment contract itself. Considering that the labor function actually consists of 2 parts (the name of the position and the type of work assigned to the employee), many employers make mistakes. Very often there is a case when part of the labor function, namely official duties employee, are prescribed in the job description, which is drawn up separately from the employment contract. This is a violation, since in fact the employment contract itself does not contain a condition on what kind of work the employee should perform.
Therefore, there are several options for the formulation of this condition. In particular, the job responsibilities of an employee can be spelled out in the very text of the employment contract, or they can be made separately in job description, but it is important to indicate that such a job description is an integral part of the employment contract.
3. The date of commencement of work, and in the case when a fixed-term employment contract is concluded, also the period of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with the Labor Code or other federal law.
An important point in this condition is the need to justify the conclusion of a fixed-term employment contract, in strict accordance with Art. 59 of the Labor Code of the Russian Federation. If this requirement is not met, there is a risk of recognizing a fixed-term employment contract as a contract concluded for an indefinite period. Accordingly, the employer will no longer have the right to terminate the employment contract with the employee on the basis of the expiration of the employment contract.
4. Terms of remuneration, including the size of the tariff rate or official salary of the employee, additional payments, allowances and incentive payments.
It is important to specify exactly the size of the salary or hourly tariff rate. In addition, it is recommended to at least name those payments that are provided for in the local regulations of the employer. The criteria themselves and other conditions for the payment of the incentive part of wages are recommended not to be indicated in the contract itself, but in local regulations that establish the wage system.
It is also important to note the importance of specifying payroll dates. This requirement to date, Art. 136 of the Labor Code of the Russian Federation. However, from October 3, 2016, employers can choose where to write this condition: in an employment contract or in a collective agreement. But at the same time, the requirement to indicate this condition in the internal labor regulations remains unchanged.
5. The mode of working time and rest time (if for this employee it differs from the general rules in force for this employer).
If the working hours do not differ from the general rules established by the employer, this condition may not be in the contract. However, in order to minimize possible risks, it is still recommended to indicate that the working hours are set in accordance with the internal labor regulations.
6. Guarantees and compensation for work with harmful and (or) dangerous working conditions, if the employee is hired in appropriate conditions, indicating the characteristics of working conditions at the workplace.
The condition is mandatory if the working conditions at the employee's workplace are recognized as harmful and (or) dangerous. The scope and nature of guarantees depends on the hazard class determined by the results special evaluation working conditions or certification of workplaces.
7. Conditions determining in necessary cases nature of work (mobile, traveling, on the road, other nature of work).
It is mandatory if the employee actually works in such conditions. In addition, it is more expedient for the employer to establish this condition if the employee actually periodically makes business trips so as not to arrange a business trip.
8. Working conditions at the workplace.
The condition is mandatory in all cases, including when, according to the results of a special assessment of working conditions or certification, working conditions are recognized as acceptable or optimal.
9. Condition on compulsory social insurance of an employee in accordance with the Labor Code and other federal laws.
It is important to consider that it is necessary to indicate all mandatory types of insurance that are provided for by law.
10. Other conditions in cases provided for by labor legislation and other regulatory legal acts containing labor law norms.
These include the condition on the norms for issuing flushing and neutralizing agents, the condition on permits for work and VHI (for foreign workers), and so on (depending on the characteristics of the workers).
The indication of the above conditions will already significantly reduce the risk of the employer during the passage of both scheduled and unscheduled inspections. Of course, you can specify other conditions in the employment contract, they are also listed in Art. 57 of the Labor Code. But additional conditions are not mandatory, and for the fact that the employer does not include them in the contract, there is no responsibility (at least from the side of the inspection bodies). However, it is important to take into account one more point. In the event that the employer decides to include an additional condition in the employment contract (in addition to the mandatory conditions), it is necessary to make sure that this condition does not worsen the position of the employee in comparison with the current legislation. Otherwise, such a condition may be invalidated, and additional questions may arise for the employer from the supervisory authorities.
Yuzhalin Alexander Consultant of the Valentina Mitrofanova group of companies, leading specialist in the field of labor legislation and personnel records management
Unlike other conditions listed in Part 2 of Art. 57 of the Labor Code of the Russian Federation, it cannot be considered as unconditionally mandatory, since Art. 61 of the same normative act allows the absence of a start date in the employment contract: “If the start date of work is not specified in the employment contract, then the employee must start work on the next working day after the entry into force of the contract.” Thus, it is still impossible to qualify the non-inclusion of a condition on the date of commencement of work in the employment contract as an unconditional mistake, at least in cases where the actual intention of the employer is to allow the employee to work on the day after the entry into force of the employment contract (i.e. e. the day after the signing of the document by both parties to the employment relationship).
9 mistakes employers make when drafting an employment contract
- having a technical nature.
In an agreement between an employer organization and a citizen hired under Art. 57 of the Labor Code of the Russian Federation, the conditions for:
- the actual place for carrying out activities (address);
- date for starting activities;
- labor characteristics (specialty, staff positions, professions);
- mandatory social insurance of an employee, which must be carried out by the employer in accordance with the Federal Law of the Russian Federation;
- payment (on the payment procedure) for the work (labor) performed, indicating the tariff rate (salary) of the employee according to the staffing table, as well as other stipulated bonuses or incentive payments;
- date of issue of earnings.
Specified list mandatory conditions is not closed.
Errors in the employment contract for which the company and directors will be fined
The number of mistakes made in the content of the employment contract remains quite significant. In this case, the main content refers to the terms of the employment contract, as well as information about its parties. In addition, the employment contract may have an annex (s).
If necessary, the content of the employment contract can be supplemented (changed) in the prescribed manner. Content errors can (with a certain degree of conditionality) be divided into three groups: 1) errors associated with the non-inclusion of mandatory conditions or information in the employment contract; 2) errors related to the inclusion in the employment contract of conditions that restrict (or directly violate) the legal rights of a citizen entering a job; 3) errors of a technical nature. Let's consider them in order.
But general characteristics with the correct names must be present in the contracts.
- The position for which a person is hired differs from the staffing table. Paradoxically, the staffing table is an optional document in personnel records. There is no indication in the legislation that it must be. At the same time, the Labor Code definitely says that the positions according to the staff list must be indicated in the contract with the employee.
It turns out that the thing is optional, but without it in any way. The mistake of many personnel officers is that the staffing table and contracts with employees are not coordinated with each other. This is wrong and can lead to unpleasant consequences on the part of the regulatory authorities, especially if the employee makes a complaint.
Such conditions are not subject to application from the moment they are included in the content of the employment contract. If a condition is identified in the content that restricts (or directly violates) the legal rights of the employee, it is not required to renew the employment contract - it is enough to draw up a written agreement to change its conditions (in this case, to exclude the corresponding condition from it). If there are any of the above errors, then you need to get rid of them, because.
if they are not corrected and they are discovered by labor inspectors during an inspection, you may be fined for violating labor laws under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. Penalties for officials and individual entrepreneurs is from 1,000 to 5,000 rubles, for legal entities - a fine from 30,000 to 50,000 rubles or an administrative suspension of the employer's activities for up to 90 days is possible.
Errors in the content of the employment contract
According to the legislation of the Russian Federation, it is customary to consider an agreement of a number of persons concerning civil obligations or rights, their modification, establishment or termination. The contract is concluded on the basis of the will of the parties-participants, expressed orally or in writing. When drawing up an agreement in writing, there are often situations when errors are found in the text, due to which the very essence of the document may change.
General types of errors encountered in contracts Definition and regulation of situations with errors at the level legislative norms absent, but, based on contractual practice, their types are divided into:
- Actually errors.
- Inaccuracies due to misrepresentation (aggravated error).
- Misprints.
The first option is the most common type encountered in the execution of transactions.
Errors in the employment contract
A very common mistake is the absence in the condition under consideration of information about the name of the currency in which payment is made for the work performed, or an indication of the amount of payment in foreign currency(Article 131 of the Labor Code of the Russian Federation). Finally, another typical mistake of the type under consideration is the absence (inaccurate wording) in the employment contract of a condition on the place and timing of payment of wages (Article 136 of the Labor Code of the Russian Federation). In order to avoid such errors, one should be more careful about the inclusion of each of the mandatory conditions in the content of the employment contract.
If the wording of a particular condition does not seem obvious, it is better to once again look into the relevant regulatory act or consult with a more experienced colleague.
Errors in the employment contract: how to fix
As you can see, the list of mandatory conditions of an employment contract is small. The meaning of each of them is quite clear. Nevertheless, personnel officers manage to lose sight of one, and sometimes several, mandatory conditions. In particular, a very common mistake is the absence of an indication of the place of work in the employment contract, especially in cases where the actual place of work is a separate structural unit of the employer located in another area.
Another characteristic mistake is the inaccurate (incorrect) spelling of the name (compared to that indicated in the qualification reference book) of the position (profession, specialty), in the performance of which the employee is provided with compensation (benefits) (or any restrictions are imposed on him). Particular attention should be paid to the error related to the non-inclusion in the employment contract of the condition on the date of commencement of work.
How to fix mistakes in an employment contract
Attention
If the company hires many people for the same position (for example, Sales Representative or call center operator), then all their contracts must be similar in terms of terms, including positions and remuneration. In order not to be mistaken, again de, we recommend keeping one such employment contract in front of your eyes - a completed sample - and using it as a "cheat sheet".
- Bonus clause is unclear The contract may, but need not, include a bonus clause for company employees.
If it is impossible to return what was received in kind, compensation must be made at its value in monetary terms. If there are misprints The third option is inaccuracies found in the written copy of the contract (extra letter, omission of a word or letter, distortion of a word).
An example of an employment contract with errors
If, in accordance with federal laws, the performance of work in certain positions (professions, specialties) is associated with the provision of compensations and benefits or the presence of restrictions, the names of these positions (professions or specialties) and qualification requirements for them must comply with those specified in the qualification reference books approved in the manner established by the Government of the Russian Federation; - a condition on the date of commencement of work; - a condition on payment (on the procedure for payment) of labor (work performed) - indicating the size of the tariff rate (salary, official salary) of the employee, as well as the amount of additional payments due to him, allowances, incentive payments (bonuses, bonuses, etc.); - a condition on the dates of payment of wages; - a condition on compulsory social insurance of the employee, carried out by the employer in accordance with federal laws.
If it is impossible to return what was received in kind, compensation must be made at its value in monetary terms. If there are misprints The third option is inaccuracies found in the written copy of the contract (extra letter, omission of a word or letter, distortion of a word). As a result of misprints, the facts or the semantic content of the text may be distorted, due to which the conditions for the actions of the parties change.
Misprints found in the spelling of the names of the participants, in the details, in the amounts, in the indication of the subject of the contract, may have a certain legal significance, but do not serve as a reason for canceling the transaction. By agreement of the parties to the agreement, the detected typographical error is subject to correction. Important! An employment contract is not considered invalid even if it does not contain certain mandatory information.
Employment contract with errors example
It is a different matter if, for example, an employment contract is drawn up with the so-called retroactive effect - in a situation where the employee, with the knowledge of the employer, has already been admitted to work. In this case, the employment contract must indicate (as the start date of work) the date of the actual start of its implementation by the employee. We also recall that in the situation under consideration, the employer is obliged to draw up an employment contract in writing no later than three working days (from the date the employee was actually admitted to work) (Part 1 of Art.
2 tbsp. 67 of the Labor Code of the Russian Federation). In this case, the employment contract is considered actually concluded from the date the employee is admitted to work. The condition on the procedure for paying for the work performed is usually present in the employment contract, but in some cases it is still formulated with errors. This applies, for example, to the amount of additional payments due to the employee in addition to the main part of the earnings (allowances, incentive payments).
Everyone knows that labor relations arise on the basis of an employment contract. This is the main document regulating the relationship between the employee and the employer. The Labor Code defines the rules for concluding such an agreement. However, as the practice of checking companies state inspection labor, errors in the execution of an employment contract are quite common. After reading the article, you will learn about the most common mistakes employers make and understand how to fix the shortcomings.
In accordance with Art. 56 of the Labor Code of the Russian Federation, an employment contract is an agreement between the employer and the employee, according to which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure the working conditions provided for by labor legislation, the collective agreement, agreements, local regulations and this agreement, to pay the employee wages in a timely manner and in full, and the employee undertakes to personally perform the labor function defined by this agreement in the interests, under the management and control of the employer, to comply with the internal labor regulations applicable to this employer.
Mistakes made by employers when concluding a contract can be divided into two groups:
- errors in the preparation of the text of the employment contract;
- errors while signing.
Errors in the preparation of an employment contract
An employment contract must contain certain information, as well as a number of mandatory conditions. For clarity, we present them in a table.| Information to be included in the employment contract | Mandatory terms of the contract | Additional terms of the contract |
| Surname, name, patronymic of the employee and the name of the employer who entered into an employment contract | Place of work | About the specification of the place of work (indicating the structural unit) or about the workplace |
| Information about documents proving the identity of the employee and the employer - an individual | Labor function | On non-disclosure of legally protected secrets (state, official, commercial and other) |
| TIN of the employer | Terms of payment | About the test |
| Information about the representative of the employer who signed the employment contract, and the basis by virtue of which he is endowed with the appropriate authority | Start date, duration and validity fixed-term contract and the reasons for concluding such an agreement | On the obligation of the employee to work after training for at least the period established by the contract |
| Place and date of conclusion of the employment contract | Working hours and rest time | On the types and conditions of additional employee insurance |
| Guarantees and compensation for work with harmful and (or) dangerous working conditions, if the employee is hired for such work | On additional non-state pension provision for an employee | |
| Conditions determining, where necessary, the nature of the work | On improving the social and living conditions of the employee and members of his family | |
| Working conditions in the workplace | Clarification of the rights and obligations of the employee and the employer | |
| Condition on compulsory social insurance of an employee | ||
| Other conditions in cases provided for by labor legislation |
When specifying information about an employee or employer, errors are the least common. Most often, this is the lack of information about the place of conclusion of the contract, a document confirming the authority of the representative of the employer authorized to conclude an employment contract, or the address of registration is indicated instead of the passport data of the employee.
If the employment contracts do not contain any of the mandatory information (check them against Art. 57 of the Labor Code of the Russian Federation or the first column of our table), they must be added to the text. To do this, the missing information is entered into both copies of the employment contract without drawing up additional agreements. The entered information is certified by the signatures of the parties to the agreement, and the date of entry must be indicated.
There are many more errors related to prerequisites.
Place of work
The Labor Code does not disclose the concept of “place of work”, therefore, in practice, employers either do not indicate the place of work at all, or indicate it incorrectly - they prescribe the place of work in detail indicating the address of the organization or too abstractly.We emphasize: the name of the employer must be indicated as the place of work in the employment contract. In the Review of the practice of consideration by the courts of cases related to the implementation by citizens of labor activity in the regions of the Far North and areas equated to them, approved Presidium of the Armed Forces of the Russian Federation dated February 26, 2014, it is indicated that in the theory of labor law, the place of work is understood as located in a certain area ( locality) a specific organization, its representative office, branch, other separate structural subdivision.
If you specify the place of work too specifically, the employer risks the following: if the organization moves, the employee will refuse to move and will need to pay him compensation. Moreover, this is possible not only in the case of moving to another area, but simply when changing the location of the office or production. After all, the address of the company specified in the employment contract is an essential condition and the employer cannot change it unilaterally. Accordingly, even in the event of a change in the location of the office, it will be necessary to comply with the requirements Art. 74 Labor Code of the Russian Federation with all the ensuing consequences.
If the place of work is vague, for example, only the name of the company is given, the employer may have problems when dismissing an employee for absenteeism. In this case, the employee will say that the workplace named by the employer during the trial and the workplace at which the dismissed person should have been (and was) differ significantly. For example, if an organization has several sites where the main economic activity is carried out (several facilities where repairs are carried out, several points of distribution of goods, etc.), then the employee has a real opportunity when the employer indicates his absence at one such facility, talk about their work at another.
We offer the following wording of the place of work in the employment contract, which the controllers do not find fault with.
"Place of work of the employee: Pravda LLC, Nizhny Novgorod."If an employee is accepted into a separate structural unit, the condition can be formulated as follows:
“Employee’s place of work: Pravda LLC, Arzamas branch, Arzamas.”
Labor function
Very often, employers in an employment contract indicate only the name of the position. But, since employers currently determine the names of positions on their own, the same functionality can be called differently in different companies. For example, an employee with the functions of a secretary in one organization will be called that, and in another he may be called "assistant to the head" or "office manager". Therefore, controllers increasingly began to demand at least a small specification of the labor function. This condition can be formulated as follows."An employee is hired as a sales manager to find and attract new customers, promote the company's services."Note that you can list job responsibilities directly in the contract or make a link to the job description, if any are approved by the company.
If, in accordance with the Labor Code of the Russian Federation and other federal laws, the provision of compensations and benefits or the presence of restrictions is associated with the performance of work in certain positions, professions, specialties, then the names of these positions, professions or specialties and qualification requirements for them must correspond to the names and requirements specified in qualification handbooks, or the provisions of professional standards.
Start date or contract term
The date of commencement of work may differ from the date of conclusion of the contract. For example, if the parties entered into an agreement in advance, according to which the newcomer will start work in a month or two. Or at actual admission to the performance of work - the date of conclusion of the employment contract will be a little later than the date of commencement of work. If the contract does not specify the start date of work, then the employee must start it on the next business day after the entry into force of the contract.Why is the start date so important? Because if the employee does not start it on the day determined by the employment contract (if the contract does not specify the day the work starts, then the employee must start it on the next business day after the entry into force of the contract), the employer has the right to cancel the contract ( Part 4 Art. 61 Labor Code of the Russian Federation).
However, the most common mistake when specifying this condition concerns fixed-term employment contracts. Employers indicate the duration of the contract, but they are silent about the reasons for concluding this type of contract. Recall that this information is required if the term of the employment relationship is established. Moreover, the reasons for concluding a fixed-term contract are named in Art. 59 Labor Code of the Russian Federation and some federal laws.
Terms of payment
The most common mistake is to refuse to specify a specific amount of wages in the employment contract and include in it the phrase "Remuneration is carried out in accordance with the staffing table."The monthly salary of a person who has fully worked out the standard of working hours for this period and fulfilled the labor standards (labor duties) cannot be lower than the minimum wage. It is currently 7 800 rub.
According to Art. 57 of the Labor Code of the Russian Federation the employment contract must contain an indication of the direct amount of wages (salary) or a clear procedure for determining the employee's salary (for example, if he is accepted not for time wages, but for piecework).
As for additional payments, allowances and incentive payments, the Labor Code of the Russian Federation does not require that their specific amounts be indicated in the employment contract. This means that it is possible to list in the contract the types of such surcharges, allowances and payments (if they are established) and make references to the provisions of the collective agreement, agreement or local regulatory act that determine the amount and procedure for payments. In this case, the employee must be familiarized with the designated documents.
Also the error is:
No payroll dates. It's a violation Art. 136 Labor Code of the Russian Federation. According to this norm, the dates of payment are prescribed, including in the employment contract. IN LetterRostrud dated 06/20/2014 No. PG/6310‑6‑1 also stated that Art. 136 Labor Code of the Russian Federation is imperative and obliges the employer to establish the days of payment of earnings both in the internal labor regulations and the collective agreement (if any), and in labor contracts;
Failure to indicate the method of payment of wages. According to Art. 136 Labor Code of the Russian Federation the salary is issued to the employee, as a rule, at the place of work by him or transferred to the credit institution specified in the employee's application, on the terms determined by the collective agreement or labor contract. That is, if the organization does not have a collective agreement that specifies the method of paying wages, then this condition must be indicated in the employment contract.
Working hours and rest time
Here, the mistake is to use an employment contract template, which states common mode work or contains a reference to the internal labor regulations, for employees whose work schedule differs from the generally established in the company: part-time workers, part-time workers, etc. Unfortunately, there are such contracts where part-time workers are set to full time.Therefore, adjust the template for employees whose working hours differ from those generally accepted in the organization.
Condition on compulsory social insurance
Employers forget to indicate this condition, mainly because they do not know how to formulate it. However, if the employment contract does not contain a condition on employee insurance, then even if the company actually transfers contributions to all necessary funds, the employer can be fined for the absence of this clause. This condition can be formulated as follows:“The employee is subject to all types of compulsory social insurance in connection with labor activity. Types and conditions of compulsory social insurance of an employee in connection with labor activity are carried out by the Employer in accordance with the legislation of the Russian Federation.
Working conditions at the workplace, guarantees and compensations for work in harmful and (or) dangerous conditions
The inclusion of these mandatory conditions in the contract directly depends on the results of the special assessment. Moreover, working conditions must be prescribed even if they are recognized as optimal.If the organization has not yet conducted a special assessment, this can be done until 12/31/2018 in stages ( Part 6 Art. 27 of the Federal Law of December 28, 2013 No.426-FZ "On a special assessment of working conditions"), and specify working conditions on the basis of attestation of workplaces carried out before the entry into force of the said law.If, according to the results of the special assessment, harmful or dangerous factors of production, the employee is entitled to guarantees and compensations determined by the Labor Code, which must be fixed in the employment contract:
- reduced working hours;
- annual additional paid leave;
- increased wages.
…3. WORKING CONDITIONS
3.1. Working conditions at the workplace of the Employee are harmful - class 3.3 according to the card of a special assessment of working conditions dated November 12, 2016 No. 12.
3.2. The employee is set a reduced working time - 36 hours a week with the following work schedule:
Five-day work week with two days off - Saturday and Sunday;
The duration of work from Monday to Thursday is 8 hours, starting at 8.00, ending at 17.00;
The duration of work on Friday is 4 hours - from 8.00 to 12.00;
Break for rest and meals - 60 minutes from 12.00 to 13.00.
3.3. For work in harmful conditions Labor The employee is entitled to an annual additional paid leave of 7 calendar days.
3.4. For work with easily washable contaminants, the Employee is given free soap or liquid hand detergents - 200 g of toilet soap or 250 ml of liquid detergent in a dispenser.
Other conditions
When hiring a part-time job, the employment contract must indicate that the job is a part-time job ( Art. 282 of the Labor Code of the Russian Federation). If an employee is hired for home-based, remote, seasonal work, work on a rotational basis or to the regions of the Far North or areas equated to them, etc., this should also be indicated in the employment contract.If any of the mandatory conditions are missing in the employment contracts with your employees or they are indicated inappropriately, then it is necessary to conclude additional agreements with the employees and amend the relevant clauses of the contracts.
Additional terms
In addition to mandatory, additional conditions may be included in the employment contract. But, including them, it should be remembered that they should not contradict the current legislation. For example, the establishment of a test lasting 4 months for an employee who, according to Art. 70 of the Labor Code of the Russian Federation you can set the test for a maximum of 3 months, contrary to the provisions of the code.Often, employers include conditions for various penalties in the contract or fix a ban on part-time work. These are errors that may constitute an administrative offense, so be careful.
In any case, if an error is found - the absence of mandatory conditions or inaccurate wording - it is necessary to eliminate it by drawing up an additional agreement to the employment contract, which will be part of the contract.
Errors at the conclusion of the contract
Here the range of errors is also diverse. Let's start with the form of the contract. The employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. One copy of the contract is transferred to the employee, the other is kept by the employer.The receipt of a copy of the employment contract by the employee must be confirmed by his signature on the copy kept by the employer.In addition to the form, you need to pay attention to the following points:
1. The age at which the conclusion of an employment contract is allowed. Recall that, as a general rule Art. 63 of the Labor Code of the Russian Federation this is possible with persons who have reached the age of 16, with the exception of cases provided for by the Labor Code of the Russian Federation, other federal laws. Employers make two mistakes:
Deny employment to minors;
Illegally enter into an employment contract with a teenager under the age of 16 years.
In the latter case, employers "forget" to obtain the consent of one of the parents, as well as that the children are studying. Meanwhile, teenagers under 16 can work only in their free time from school.
2. Acquaintance with local regulations. Many employers conclude an agreement and only then, when possible, introduce the employee to the instructions, regulations and other local acts that are necessary for a beginner to work. Meanwhile, this violation Art. 68 Labor Code of the Russian Federation. You need to familiarize yourself with the documentation before signing the employment contract.
3. Documents for concluding an employment contract. As we know, the list of such documents is in Art. 65 of the Labor Code of the Russian Federation. Requesting documents that are not named in this norm is a violation of the law. For example, if an employment contract is concluded with a girl, they often require a certificate of absence of pregnancy - this cannot be done.
4. Refusal to conclude an employment contract. As a general rule, an unreasonable refusal to conclude a contract is prohibited ( Art. 64 Labor Code of the Russian Federation). It would be a mistake to refuse women based on pregnancy or having children. Any restriction of rights or establishment of advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence (including the presence or absence of registration at the place of residence or stay), as well as other circumstances not related to the business qualities of employees, is not allowed, except in cases where the right or obligation to establish such restrictions or benefits is provided for by federal laws.
Responsibility
If, after reading the article, you realized that the company most likely made mistakes when concluding employment contracts, you need to correct the shortcomings. If you leave everything as it is, then the controllers from the GIT, having come with a check, will definitely issue a fine:By Part 4 Art. 5.27 of the Code of Administrative Offenses of the Russian Federation- evasion of registration or improper execution of the employment contract, for example, the failure to include any mandatory conditions. This may result in imposing administrative fine for officials in the amount of 10,000 to 20,000 rubles, for individual entrepreneurs - from 5,000 to 10,000 rubles, for legal entities - from 50,000 to 100,000 rubles;
By Part 1 Art. 5.27- Violation of labor laws. This rule will be applied if an error is detected when concluding an agreement - refusal to conclude, failure to draw up an agreement in two copies, etc. The punishment is a warning or an administrative fine on officials, as well as individual entrepreneurs in the amount of 1,000 to 5 000, for legal entities - from 30,000 to 50,000 rubles.
If such errors are repeatedly detected, the company may be fined up to 200,000 rubles.
Summarize
It is clear that only those who do nothing do not make mistakes. And when concluding an employment contract, even specialists with work experience can make a mistake. Many organizations have been using the same employment contract template for years, changing only the data of employees. But the legislation is being updated, and the terms of the contract must comply with it.To minimize the risk of errors, track changes in legislation, adjust document templates, and create a visual hint table indicating the required information and conditions. And do not be lazy - read the contract before signing. If you find an error before signing, correct the text and print the correct version of the contract. If the error was revealed after the signing and entry into force of the contract, then you can either make corrections to its text (if the information is corrected), or issue additional agreement(if the terms of the contract are correct).
_________________
The employment contract comes into force from the date of its signing by the employee and the employer, unless otherwise provided by the Labor Code of the Russian Federation, other federal laws.
Everyone knows that labor relations arise on the basis of an employment contract. This is the main document regulating the relationship between the employee and the employer. The Labor Code defines the rules for concluding such an agreement. However, as the practice of inspections of companies by the state labor inspectorate shows, errors in the execution of an employment contract are quite common. After reading the article, you will learn about the most common mistakes employers make and understand how to fix the shortcomings.
In accordance with Art. 56 of the Labor Code of the Russian Federation, an employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure the working conditions provided for by labor legislation, the collective agreement, agreements, local regulations and this agreement, in a timely manner and in full in the amount to pay wages to the employee, and the employee undertakes to personally perform the labor function specified by this agreement in the interests, under the management and control of the employer, to comply with the internal labor regulations applicable to this employer.
Mistakes made by employers when concluding a contract can be divided into two groups:
- errors in the preparation of the text of the employment contract;
- errors while signing.
Let's consider them in detail.
Errors in drafting the text of the contract
An employment contract must contain certain information, as well as a number of mandatory conditions. For clarity, we present them in a table.
|
Surname, name, patronymic of the employee and the name of the employer who entered into an employment contract |
Place of work |
About the specification of the place of work (indicating the structural unit) or about the workplace |
|
Information about the documents proving the identity of the employee and the employer - an individual |
Labor function |
On non-disclosure of legally protected secrets (state, official, commercial and other) |
|
TIN of the employer |
Terms of payment |
About the test |
|
Information about the representative of the employer who signed the employment contract, and the basis by virtue of which he is endowed with the appropriate authority |
Date of commencement of work, term and validity of a fixed-term contract and reasons for concluding such a contract |
On the obligation of the employee to work after training for at least the period established by the contract |
|
Place and date of conclusion of the employment contract |
On the types and conditions of additional employee insurance |
|
|
Guarantees and compensation for work with harmful and (or) dangerous working conditions, if the employee is hired for such work |
On additional non-state pension provision for an employee |
|
|
Conditions determining, where necessary, the nature of the work |
On improving the social and living conditions of the employee and members of his family |
|
|
Working conditions in the workplace |
Clarification of the rights and obligations of the employee and the employer |
|
|
Condition on compulsory social insurance of an employee |
||
|
Other conditions in cases provided for by labor legislation |
When specifying information about an employee or employer, errors are the least common. Most often, this is the lack of information about the place of conclusion of the contract, a document confirming the authority of the representative of the employer authorized to conclude an employment contract, or the address of registration is indicated instead of the passport data of the employee.
If any of the mandatory information is missing in employment contracts (check them against Article 57 of the Labor Code of the Russian Federation or the first column of our table), they must be added to the text. To do this, the missing information is entered into both copies of the employment contract without drawing up additional agreements. The entered information is certified by the signatures of the parties to the agreement, and the date of entry must be indicated.
There are many more errors related to prerequisites.
Place of work
The Labor Code does not disclose the concept of “place of work”, therefore, in practice, employers either do not indicate the place of work at all, or indicate it incorrectly - they prescribe the place of work in detail with the address of the organization or too abstractly.
We emphasize: the name of the employer must be indicated as the place of work in the employment contract. In the Review of the practice of consideration by the courts of cases related to the implementation of labor activities by citizens in the regions of the Far North and equivalent areas, approved by the Presidium of the Armed Forces of the Russian Federation on February 26, 2014, it is indicated that in the theory of labor law, a place of work is understood to be located in a certain locality ) a specific organization, its representative office, branch, other separate structural subdivision.
If you specify the place of work too specifically, the employer risks the following: if the organization moves, the employee will refuse to move and will need to pay him compensation. Moreover, this is possible not only in the case of moving to another area, but simply when changing the location of the office or production. After all, the address of the company specified in the employment contract is an essential condition and the employer cannot change it unilaterally. Accordingly, even in the event of a change of location of the office, it will be necessary to comply with the requirements of Art. 74 of the Labor Code of the Russian Federation with all the ensuing consequences.
If the place of work is vague, for example, only the name of the company is given, the employer may have problems when dismissing an employee for absenteeism. In this case, the employee will say that the workplace named by the employer during the trial and the workplace at which the dismissed person should have been (and was) differ significantly. For example, if an organization has several sites where the main economic activity is carried out (several facilities where repairs are carried out, several points of distribution of goods, etc.), then the employee has a real opportunity when the employer indicates his absence at one such facility, talk about their work at another.
We offer the following wording of the place of work in the employment contract, which the controllers do not find fault with.
"Place of work of the employee: Pravda LLC, Nizhny Novgorod."
If an employee is accepted into a separate structural unit, the condition can be formulated as follows:
“Employee’s place of work: Pravda LLC, Arzamas branch, Arzamas.”
Labor function
Very often, employers in an employment contract indicate only the name of the position. But, since employers currently determine the names of positions on their own, the same functionality can be called differently in different companies. For example, an employee with the functions of a secretary in one organization will be called that, and in another he may be called "assistant to the head" or "office manager". Therefore, controllers increasingly began to demand at least a small specification of the labor function. This condition can be formulated as follows.
"An employee is hired as a sales manager to find and attract new customers, promote the company's services."
Note that you can list job responsibilities directly in the contract or make a link to the job description, if any are approved by the company.
For your information:
If, in accordance with the Labor Code of the Russian Federation and other federal laws, the provision of compensations and benefits or the presence of restrictions is associated with the performance of work in certain positions, professions, specialties, then the names of these positions, professions or specialties and qualification requirements for them must correspond to the names and requirements specified in qualification handbooks, or the provisions of professional standards;
Start date or contract term
The date of commencement of work may differ from the date of conclusion of the contract. For example, if the parties entered into an agreement in advance, according to which the newcomer will start work in a month or two. Or, with the actual admission to the performance of work - the date of conclusion of the employment contract will be a little later than the date the work began. If the contract does not specify the start date of work, then the employee must start it on the next business day after the entry into force of the contract.
Why is the start date so important? Because if the employee does not start it on the day determined by the employment contract (if the contract does not specify the day the work starts, then the employee must start it on the next business day after the entry into force of the contract), the employer has the right to cancel the contract (part 4 of Art. 61 of the Labor Code of the Russian Federation).
However, the most common mistake when specifying this condition concerns fixed-term employment contracts. Employers indicate the duration of the contract, but they are silent about the reasons for concluding this type of contract. Recall that this information is required if the term of the employment relationship is established. Moreover, the reasons for concluding a fixed-term contract are named in Art. 59 of the Labor Code of the Russian Federation and in some federal laws.
Terms of payment
The most common mistake is to refuse to specify a specific amount of wages in the employment contract and include in it the phrase "Remuneration is carried out in accordance with the staffing table."
The monthly salary of a person who has fully worked out the standard of working hours for this period and fulfilled the labor standards (labor duties) cannot be lower than the minimum wage. Currently, it is 7,800 rubles.
According to Art. 57 of the Labor Code of the Russian Federation, an employment contract must contain an indication of the direct amount of wages (salary) or a clear procedure for determining the salary of an employee (for example, if he is accepted not for time wages, but for piecework).
As for additional payments, allowances and incentive payments, the Labor Code of the Russian Federation does not require that their specific amounts be indicated in the employment contract. This means that it is possible to list in the contract the types of such surcharges, allowances and payments (if they are established) and make references to the provisions of the collective agreement, agreement or local regulatory act that determine the amount and procedure for payments. In this case, the employee must be familiarized with the designated documents.
Also the error is:
- lack of payroll dates. This is a violation of Art. 136 of the Labor Code of the Russian Federation. According to this norm, the dates of payment are prescribed, including in the employment contract. The Letter of Rostrud dated 06/20/2014 No. PG / 6310-6-1 also states that Art. 136 of the Labor Code of the Russian Federation is imperative and obliges the employer to establish days for the payment of earnings both in the internal labor regulations and the collective agreement (if any), and in labor contracts;
- failure to indicate the method of payment of wages. In accordance with Art. 136 of the Labor Code of the Russian Federation, a salary is issued to an employee, as a rule, at the place of work or transferred to a credit institution specified in the employee’s application, on the terms determined by the collective agreement or labor contract. That is, if the organization does not have a collective agreement that specifies the method of paying wages, then this condition must be indicated in the employment contract.
Working hours and rest time
Here, the mistake is to use an employment contract template, which specifies the general mode of operation or contains a link to the internal labor regulations, for employees whose work mode differs from the generally established in the company: part-time workers, part-time workers, etc. Unfortunately, there are such contracts where part-time workers are set to work full time.
Therefore, adjust the template for employees whose working hours differ from those generally accepted in the organization.
Condition on compulsory social insurance
Employers forget to indicate this condition, mainly because they do not know how to formulate it. However, if the employment contract does not contain a condition on employee insurance, then even if the company actually transfers contributions to all necessary funds, the employer can be fined for the absence of this clause. This condition can be formulated as follows:
“The employee is subject to all types of compulsory social insurance in connection with labor activity. Types and conditions of compulsory social insurance of an employee in connection with labor activity are carried out by the Employer in accordance with the legislation of the Russian Federation.
Working conditions at the workplace, guarantees and compensations for work in harmful and (or) dangerous conditions
The inclusion of these mandatory conditions in the contract directly depends on the results of the special assessment. Moreover, working conditions must be prescribed even if they are recognized as optimal.
For your information:
If the organization has not yet carried out a special assessment, this can be done until December 31, 2018 in stages (part 6 of article 27 of the Federal Law of December 28, 2013 No. 426-FZ “On a special assessment of working conditions”), and working conditions are indicated on the basis of certification of workers places held prior to the entry into force of the said law.
If, according to the results of the special assessment, harmful or dangerous production factors are identified, the employee is entitled to guarantees and compensations determined by the Labor Code, which must be fixed in the employment contract:
- reduced working hours;
- annual additional paid leave;
- increased wages.
Let's give an example of this condition.
3. WORKING CONDITIONS
3.1. Working conditions at the workplace of the Employee are harmful - class 3.3 according to the card of a special assessment of working conditions dated November 12, 2016 No. 12.
3.2. The employee is set a reduced working time of 36 hours per week with the following work schedule:
– five-day work week with two days off – Saturday and Sunday;
– The duration of work from Monday to Thursday is 8 hours, starting at 8.00, ending at 17.00;
– working hours on Friday is 4 hours – from 8.00 to 12.00;
- break for rest and meals - 60 minutes from 12.00 to 13.00.
3.3. For work in hazardous working conditions, the Employee is entitled to additional annual paid leave of 7 calendar days.
3.4. For work with easily washable dirt, the Employee is given free soap or liquid hand cleaners - 200 g of toilet soap or 250 ml of liquid detergent in a dispenser.
Other conditions
When hiring a part-time job, the employment contract must indicate that the work is a part-time job (Article 282 of the Labor Code of the Russian Federation). If an employee is hired for home-based, remote, seasonal work, for work on a rotational basis or in the regions of the Far North or areas equivalent to them, etc., this should also be indicated in the employment contract.
If any of the mandatory conditions are missing in the employment contracts with your employees or they are indicated inappropriately, then it is necessary to conclude additional agreements with the employees and amend the relevant clauses of the contracts.
Additional terms
In addition to mandatory, additional conditions may be included in the employment contract. But, including them, it should be remembered that they should not contradict the current legislation. For example, the establishment of a test lasting 4 months for an employee who, according to Art. 70 of the Labor Code of the Russian Federation, you can set the test for a maximum of 3 months, contrary to the provisions of the code.
Often, employers include conditions for various penalties in the contract or fix a ban on part-time work. These are errors that may constitute an administrative offense, so be careful.
In any case, if an error is found - the absence of mandatory conditions or inaccurate wording - it is necessary to eliminate it by drawing up an additional agreement to the employment contract, which will be part of the contract.
Errors at the conclusion of the contract
Here the range of errors is also diverse. Let's start with the form of the contract. The employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. One copy of the contract is transferred to the employee, the other is kept by the employer.
The receipt of a copy of the employment contract by the employee must be confirmed by his signature on the copy kept by the employer.
In addition to the form, you need to pay attention to the following points:
1. The age at which the conclusion of an employment contract is allowed. We recall that, as a general rule, Art. 63 of the Labor Code of the Russian Federation, this is possible with persons who have reached the age of 16, with the exception of cases provided for by the Labor Code of the Russian Federation, other federal laws. Employers make two mistakes:
- refuse to employ minors;
- illegally conclude an employment contract with a teenager under the age of 16 years.
In the latter case, employers "forget" to obtain the consent of one of the parents, as well as that the children are studying. Meanwhile, teenagers under 16 can work only in their free time from school.
2. Acquaintance with local regulations. Many employers conclude an agreement and only then, when possible, introduce the employee to the instructions, regulations and other local acts that are necessary for a beginner to work. Meanwhile, this is a violation of Art. 68 of the Labor Code of the Russian Federation. You need to familiarize yourself with the documentation before signing the employment contract.
3. Documents for concluding an employment contract. As we know, the list of such documents is in Art. 65 of the Labor Code of the Russian Federation. Requesting documents that are not named in this norm is a violation of the law. For example, if an employment contract is concluded with a girl, they often require a certificate of absence of pregnancy - this cannot be done.
4. Refusal to conclude an employment contract. As a general rule, an unreasonable refusal to conclude an agreement is prohibited (Article 64 of the Labor Code of the Russian Federation). It would be a mistake to refuse women based on pregnancy or having children. Any restriction of rights or establishment of advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence (including the presence or absence of registration at the place of residence or stay), as well as other circumstances not related to the business qualities of employees, is not allowed, except in cases where the right or obligation to establish such restrictions or benefits is provided for by federal laws.
Responsibility
If, after reading the article, you realized that the company most likely made mistakes when concluding employment contracts, you need to correct the shortcomings. If you leave everything as it is, then the controllers from the GIT, having come with a check, will definitely issue a fine:
- according to part 4 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation - evasion of registration or improper execution of an employment contract, for example, the failure to include any mandatory conditions. This may entail the imposition of an administrative fine on officials in the amount of 10,000 to 20,000 rubles, on individual entrepreneurs - from 5,000 to 10,000 rubles, on legal entities - from 50,000 to 100,000 rubles;
- according to part 1 of Art. 5.27 - violation of labor laws. This rule will be applied if an error is detected when concluding an agreement - refusal to conclude, failure to draw up an agreement in two copies, etc. The punishment is a warning or an administrative fine on officials, as well as individual entrepreneurs in the amount of 1,000 to 5 000, for legal entities - from 30,000 to 50,000 rubles.
If such errors are repeatedly detected, the company may be fined up to 200,000 rubles.
Summarize
It is clear that only those who do nothing do not make mistakes. And when concluding an employment contract, even specialists with work experience can make a mistake. Many organizations have been using the same employment contract template for years, changing only the data of employees. But the legislation is being updated, and the terms of the contract must comply with it.
To minimize the risk of errors, track changes in legislation, adjust document templates, and create a visual hint table indicating the required information and conditions. And do not be lazy - read the contract before signing. If you find an error before signing, correct the text and print the correct version of the contract. If the error was revealed after the signing and entry into force of the contract, then you can either make corrections to its text (if the information is corrected), or draw up an additional agreement (if the terms of the contract are corrected).
The employment contract comes into force from the date of its signing by the employee and the employer, unless otherwise provided by the Labor Code of the Russian Federation, other federal laws.
