The procedure for my dismissal due to redundancy was violated. Filed a complaint with the labor inspectorate. There is an order to reinstate him at work. The order has not yet been canceled, but a personal conversation with the director showed the hellish prospect of my exit - either voluntary dismissal or an article would follow. Today baked 2 months after my dismissal. Can I, without waiting for a written invitation to my previous job (from day to day), get a job in another place?
- Question: No. 611 dated: 2014-04-23.
In accordance with Art. 353 of the Labor Code of the Russian Federation, federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms is carried out by the federal labor inspectorate in the manner established by the Government of the Russian Federation.
By virtue of Art. 354 of the Labor Code of the Russian Federation, the federal labor inspection is a single centralized system consisting of a federal executive body authorized to conduct federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms, and its territorial bodies (state labor inspectorates).
In accordance with Art. 357 of the Labor Code of the Russian Federation, state labor inspectors, when exercising federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms, have the right:
present to employers and their representatives mandatory regulations on eliminating violations of labor legislation and other regulatory legal acts containing labor law norms, on restoring the violated rights of employees, bringing those responsible for these violations to disciplinary liability or removing them from office in the prescribed manner.
By virtue of Art. 394 of the Labor Code of the Russian Federation, if the dismissal is declared illegal, the employee must be reinstated in his previous job by the body considering the individual labor dispute.
The body considering an individual labor dispute makes a decision to pay the employee the average salary for the entire period of forced absence or the difference in earnings for the entire period of performing lower-paid work.
At the request of the employee, the body considering an individual labor dispute may limit itself to making a decision to collect compensation in favor of the employee.
If the dismissal is declared illegal, the body considering the individual labor dispute may, at the request of the employee, decide to change the wording of the grounds for dismissal to dismissal of one’s own free will.
By virtue of Art. 395 of the Labor Code of the Russian Federation, if the body considering an individual labor dispute recognizes the employee’s monetary claims as justified, they are satisfied in full.
According to Art. 396 of the Labor Code of the Russian Federation of an illegally dismissed employee, on reinstatement of the employee to his previous job subject to immediate execution. When delayed the employer of the execution of such a decision, the body that made the decision makes a determination to pay the employee for the entire time of delay in the execution of the decision the average earnings or the difference in earnings.
In accordance with Art. 392 of the Labor Code of the Russian Federation, an employee has the right to apply to the court for resolution of an individual labor dispute within three months from the day he learned or should have learned about a violation of his right, and in disputes about dismissal - within one month from the date he was given a copy of the order dismissal or from the date of issue of the work book.
Thus, in order to receive an order for reinstatement at work, to receive compensation under Art. 396 Labor Code of the Russian Federation. After being reinstated at work, write a letter of resignation of your own free will, agree with the employer on the date of dismissal and look for another job.
Attention! The information provided in the article is current at the time of publication.
Monitoring the implementation of the norms and provisions of labor law is assigned, in accordance with Art. 353 of the Labor Code of the Russian Federation, to the State Labor Inspectorate. Employees have the right to file complaints to this supervisory body when labor rights and interests are violated by the employer.
Often, during a staff reduction or liquidation of an enterprise, a manager, reducing paperwork and personnel work, may dismiss an employee inappropriately, which is a gross violation of labor law. Then the employee can file a complaint with the labor inspectorate at the place of registration of the employer.
Within one month from the date of receipt of the request, inspectors will check the actions taken by the employer. If they find these violations, an order for reinstatement will be issued based on the decision of the labor inspectorate. In addition, the employer is obliged to issue the employee a salary for a given period, which is calculated based on the employee’s average income before dismissal.
Compliance with the instructions of the labor inspectorate
In accordance with the provisions set out in Art. 396 of the Labor Code of the Russian Federation, the decision on reinstatement at work is subject to immediate execution. If completion is delayed due to the fault of the employer, he compensates the employee for the days of forced downtime in the amount of the average salary or pays him the difference. However, in addition to the fact that there is reinstatement at work by the labor inspectorate, other options are possible:
- based on the submission of the prosecutor's office;
- by decision of a judicial authority;
- after staff reduction.
Each of them requires separate consideration.
Thus, in addition to the labor inspectorate, the employee has the right to write a complaint to the prosecutor’s office at the place of registration of the employer company. In it, he points out all possible violations and necessarily provides their evidence base. Then the prosecutor carries out an inspection at the enterprise - if these violations are detected, an order will be issued to reinstate the employee to his position. Like the decision of the labor inspectorate, it is subject to immediate implementation.
If reinstatement at work is carried out through the court, then the employee must contact this body no later than 1 month from the date of illegal dismissal. This period begins to count from the day the order is delivered to him.
The judicial authority considers such cases on the merits, but the employee must himself collect evidence of illegal dismissal and present it along with the application. In this case, the employee must comply with all personnel procedures upon dismissal - for example, sign the familiarization order.
The signature does not mean that he agrees with the order, but that he has familiarized himself with it. A copy of the order can be kept by the employee, as well as other documentation related to his work activity and subsequent dismissal. The employer has no right to prohibit this.
Features of recovery after reduction
Staff reduction is a fairly common reason for dismissal, and the procedure itself is very lengthy. The employer and personnel officer have the obligation to prepare a huge amount of documentation, which gives rise to so many violations of labor legislation. Employees dismissed in this way have the right to file a complaint with the labor inspectorate, court or prosecutor's office.
Article 179 of the Labor Code of the Russian Federation regulates the categories of employees who have preferential rights at work during layoffs. If the employer did not take this right into account, then they can write a complaint. In the provisions set out in Art. 396 of the Labor Code of the Russian Federation, it is stated that the execution of court decisions on reinstatement to a position is subject to immediate execution by the employer. The requirement is considered satisfied if the employee is reinstated at his previous job or the dismissal order is canceled.
The employer must follow the following algorithm of actions when reinstating employees:
- issuing an order to cancel the decision to dismiss the employee;
- familiarization of the employee with the order against signature;
- making appropriate changes to the work book;
- actual admission of an employee to perform his direct functions.
These actions should be carried out no later than the first working day from the moment the employer receives a writ of execution or a decision of a judicial authority.
Most problems usually arise in the case of reinstatement at work by court decision if the position has been reduced. Then the employer should issue another order that a new position is being introduced into the staffing table.
At the same time, wages should not be lower than they were before the reduction. In addition, the employer should pay the employee compensation for forced absences. Payments are made based on average earnings before layoffs.
Experienced lawyers of our company will provide competent assistance in resolving such issues. We will not only advise and inform, but also represent the interests of our customers when contacting higher authorities, regulatory authorities, courts and the prosecutor's office. Our lawyers have extensive experience in the labor field, so they offer comprehensive and effective solutions. Contact us!
Supervision over the implementation of norms and the provisions of labor law, according to Art. 353 of the Labor Code of the Russian Federation, carried out by the State Labor Inspectorate. An employee has the right to file a complaint with this government supervisory body in cases where the employer violates his labor rights and interests.
Often, when downsizing or liquidating an enterprise, an employer, trying to reduce paperwork and personnel work, fires employees inappropriately. This is a violation of labor law. An employee can write a complaint to the labor inspectorate at the location of the employer.
Within 30 days of receiving the complaint, inspectors must conduct an audit of the employer's actions. If these violations are discovered, an order will be issued to the employer to reinstate the illegally dismissed employee in the workplace. In addition, the employer will have to pay the employee wages for forced downtime, calculated based on the employee’s average earnings before dismissal.
According to Art. 396 of the Labor Code of the Russian Federation, the decision on reinstatement in case of illegal dismissal is subject to immediate execution. If the execution of the decision is delayed due to the fault of the employer, he will be obliged to compensate the employee for days of forced downtime in the amount of average earnings or pay him the difference in earnings.
Reinstatement at work on the basis of the prosecutor's office
In addition to the labor inspectorate, the employee has the right to write a complaint to the prosecutor’s office at the employer’s location.
He writes a complaint to the prosecutor's office, indicating all violations and, without fail, provides evidence of these violations. The prosecutor is conducting an inspection at the enterprise. If these violations are revealed, the prosecutor will issue an order to reinstate the employee in his workplace.
The order of the prosecutor, as well as the labor inspector, is subject to immediate implementation.
Reinstatement by court decision
In addition, the employee can go to court within 1 month from the date of illegal dismissal. The “countdown” of time begins from the moment the employee is given the dismissal order.
The court will consider the case on its merits. But the employee must himself collect evidence of his illegal dismissal and present it to the court along with the claim.
The employee must follow all personnel procedures upon termination of employment. He must sign the order for familiarization. The employee’s signature on the dismissal order does not mean his consent (as many people think), but acquaintance. The employee has the right to keep a copy of the order, as well as other documents related to his work activity and subsequent dismissal. The employer has no right to interfere with him.
Reinstatement after layoff
Reducing the number of employees is the most common reason for dismissal. This procedure is quite lengthy. The employer, together with the personnel officer, must prepare a lot of papers and documents. This is why so many violations of labor laws occur during staff reductions. An employee can file a complaint with the labor inspectorate, the prosecutor's office or the court.
In Art. 179 of the Labor Code of the Russian Federation lists the categories of employees who have a preferential right to remain at work during layoffs. If the employer does not take into account this right of the employee, then the employee can write a complaint.
According to Art. 396 of the Labor Code of the Russian Federation, execution of a court decision on reinstatement at work is subject to immediate execution by the employer. The request for reinstatement is considered satisfied if the employee is reinstated to his previous job or the order to dismiss him is cancelled.
The employer must take the following actions when reinstating an employee:
- Issue an order to cancel the order to dismiss the employee. The employee must also be familiarized with this order by signing
- Make appropriate changes to the employee’s work book
- Actually allow the employee to perform his direct job duties
These actions must be carried out no later than the first working day from the date the employer receives a writ of execution based on a court decision.
Difficulties arise when reinstatement at work by court decision, when the position is reduced. In this case, the employer must issue an additional order to introduce this position into the staffing table. The remuneration for the newly introduced position cannot be lower than it was before the reduction.
In addition, the employer must pay the employee compensation for forced absence. Compensation is paid based on the employee’s average earnings before his reduction and dismissal.
The powers of the state labor inspection are established in paragraph 2 of Article 356 and paragraph 6 of Article 357 of the Labor Code of the Russian Federation.
State labor inspectors, when supervising compliance with labor legislation, have the right to present mandatory orders to employers and their representatives to eliminate violations of labor legislation and other regulatory legal acts containing labor law norms, to restore the violated rights of workers, to bring those responsible for these violations to disciplinary action responsibility or their removal from office in accordance with the established procedure.
On this basis, we can conclude that the state labor inspector has the right to eliminate violations committed against an employee, including during his dismissal, by the administrative and legal method inherent in this body - by issuing a mandatory order for the employer to cancel the employer’s order to apply disciplinary action against the employee or an order to dismiss the employee.
These powers were confirmed in the Review of Judicial Practice of the RF Armed Forces for the first quarter of 2011 (approved by the Presidium of the RF Armed Forces on June 1, 2011).
The Supreme Court of the Russian Federation, in Ruling No. 19-KG12-5 dated July 20, 2012, noted that within the meaning of these provisions of the law, when conducting inspections, the state labor inspector issues a mandatory order for the employer only in the event of an obvious violation of labor legislation.
That is, if there are compelling reasons, the labor inspectorate may issue an order to the employer to cancel the order to dismiss the employee for absenteeism.
The courts also believe that the state labor inspectorate has the authority to reinstate workers at work by sending mandatory orders to the employer.
FOR EXAMPLE
According to the Moscow City Court, the argument of the supervisory complaint that the state labor inspectorate does not have the right to reinstate and collect wages for forced absence is untenable, since it contradicts clause 2, part 1, article 83 of the Labor Code of the Russian Federation, as well as art. .357 of the Labor Code of the Russian Federation (Determination of the Moscow City Court dated March 28, 2011 No. 4g/5-2017/11). The Appeal Determination of the Trans-Baikal Regional Court dated March 30, 2016 No. 33-1461/2016 also noted that the order to eliminate the violation of the employee’s labor rights was issued by the state labor inspector within the limits of the powers granted to him by labor legislation, if there are legal grounds for this established by Art. . 357 Labor Code of the Russian Federation.
The employer, in turn, can appeal in court the order issued by the state labor inspector to the employer to cancel the order to dismiss the employee by filing an application within ten days from the date of receipt of the order (Article 357 of the Labor Code of the Russian Federation).
What mistakes do not allow the employer to recover damages from the employee? The financial liability of a party to an employment contract arises for damage caused by it to the other party as a result of its culpable unlawful behavior (actions or inaction), unless otherwise provided by the Labor Code of the Russian Federation or other federal laws (Article 233 of the Labor Code of the Russian Federation). 1. Limits of financial liability. 2. What documents must the employer prepare? When? 3. If an employee quits, is it possible to recover damages from him? 4. Is it possible to pay the employer for damages caused by the employee’s fault only with money? 5. Common mistakes of employers, due to which it is not possible to hold the employee financially liable. See the material about this prepared by the Managing Partner of the company "RosCo - Consulting and Audit" Alena Talash..su/kadry/kadrovoe-deloproizvodstvo/ https://site/kadry/trudovye-spory/
How to hire a company director?
The head of the company is both an employee in an employment relationship and the sole executive body of the company. Therefore, it is subject not only to the norms of the Labor Code, but also to civil legislation. 1. WHAT ARE THE MAIN FUNCTIONS OF A COMPANY DIRECTOR? 2. WHAT SHOULD BE DONE BEFORE HIRING A DIRECTOR? 3. HOW TO CHECK A POTENTIAL MANAGER FOR DISQUALIFICATION? 4. WHO MAKES THE DECISION ABOUT HIRING A COMPANY DIRECTOR? 5. WHAT DURATION IS THE EMPLOYMENT CONTRACT FOR? 6. WHO SIGNS THE EMPLOYMENT AGREEMENT WITH THE MANAGER OF THE COMPANY? 7. CAN A COMPANY DIRECTOR BE EMPLOYED WITH A PROBATIONAL PERIOD? 8. IS IT POSSIBLE TO BE A PART-TIME MANAGER? 9. CAN THE SOLE PARTICIPANT OF AN LLC BE THE MANAGER OF THIS COMPANY? 10. IF YOUR DIRECTOR IS A FOREIGNER. WHAT SHOULD BE CONSIDERED? See the material about this prepared by the Managing Partner of the company "RosCo - Consulting and Audit" Alena Talash..su/kadry/kadrovoe-deloproizvodstvo/
7 mistakes that will bankrupt your business if you employ foreigners
Starting from March 11, 2019, the Ministry of Internal Affairs will begin to use checklists for inspections of companies and institutions on migration issues (Order of the Ministry of Internal Affairs of the Russian Federation dated January 29, 2019 No. 42, hereinafter referred to as the Order). What questions are included in the checklists? Companies, by independently assessing compliance with mandatory requirements, can predict the results of inspections in advance. A few words about who has the right to check employers for compliance with migration legislation. On April 5, 2016, the Federal Migration Service of the Russian Federation was abolished, and all its powers were transferred to the Ministry of Internal Affairs of the Russian Federation, which created the Main Directorate for Migration Issues. From June 1, 2016, the functions of the Federal Migration Service of the Russian Federation were finally transferred to the Ministry of Internal Affairs of the Russian Federation (Decree of the President of the Russian Federation dated April 5, 2016 No. 156). Answers to what questions may indicate a violation of immigration laws? Questions No. 1 and No. 2 - has permission to attract and use foreigners been obtained and have employment contracts or civil service agreements been concluded with foreigners? Questions No. 3 and No. 4 - are there valid work permits or patents for labor activities and has the employer submitted notifications to the territorial body of the Ministry of Internal Affairs about the conclusion (termination) of employment contracts or civil servants' agreements with foreigners? Questions No. 5 and No. 6 - do foreigners carry out labor activities within the constituent entity of the Russian Federation specified in the work permit or patent, in the profession (specialty, position, type of labor activity) specified in the work permit or patent? Questions No. 7 and No. 8 – does the employer submit notifications for the payment of wages (remuneration) to HQS and for the provision of unpaid leave for more than one calendar month during the year to foreigners studying in the Russian Federation? Question No. 9 - are employment contracts or civil service agreements concluded with a foreigner terminated in the event of cancellation of the work permit or expiration of the term? Question No. 10 - is an employee involved in work activities without obtaining permits by the employer a citizen of a member state of the EAEU? (Clause 1 of Article 97 of the Treaty on the EAEU, signed in Astana on May 29, 2014)? See the material about this prepared by the Managing Partner of the company "RosCo - Consulting and Audit" Alena Talash.
Judge Bychkov A.V.
Case No. 33-1730
Definition
Judicial panel for civil cases of the Moscow City Court, composed of presiding Zakharova E.A. judges Davydova I.N. and Neretina E.N.
under secretary Bondarenko K.V.
having heard in open court the report of judge Davydova I.N.
case on the cassation appeal of Zelenogradstroy LLC against the decision of the Nagatinsky District Court of Moscow dated October 28, 2010, which decided:
In satisfying the application of Firma Zelenogradstroy LLC to challenge paragraphs. 12.17 the order of the state labor inspector of the State Labor Inspectorate in Moscow No. 7-5257-10-OB/53/2 dated May 14, 2010 - refuse,
INSTALLED:
LLC "Firm Zelenogradstroy" filed a claim with the court to challenge paragraphs. 12, 17 of the order of the state labor inspector of the State Labor Inspectorate in Moscow No. 7-5257-10-OB/53/2 dated May 14, 2010, by which the applicant undertakes to eliminate violations of labor legislation and other regulatory legal acts containing labor law norms , considering this order illegal.
State Labor Inspector in Moscow Nikiforov E.V. - the official who issued the order appeared at the court hearing and objected to the satisfaction of the application, submitting a written response.
The court made the said decision, the cancellation of which is requested by Zelenogradstroy LLC based on the arguments of the cassation appeal.
Having checked the case materials, having listened to the representative of Zelenogradstroy Firm LLC, T.A. Vasilyeva, the representative of the State Labor Inspectorate in Moscow, E.V. Nikiforova, having discussed the arguments of the cassation appeal, the judicial panel finds no grounds for canceling the decision made taking into account the established circumstances of the case and the evidence presented.
According to Part 2 of Article 357 of the Labor Code of the Russian Federation, in the event of an appeal by a trade union body, an employee or another person to the state labor inspectorate on an issue that is being considered by the relevant body for consideration of an individual or collective labor dispute (with the exception of claims accepted for consideration by the court, or issues , for which there is a court decision), the state labor inspector, upon identifying an obvious violation of labor legislation or other regulatory legal acts containing labor law norms, has the right to issue an order to the employer that is subject to mandatory execution. This order may be appealed by the employer to the court within ten days from the date of its receipt by the employer or his representative.
The court found that on the basis of order No. 7-5257-10-OB/53/1 of the State Labor Inspectorate in Moscow dated April 15, 2010, an unscheduled documentary inspection of compliance with labor regulations was carried out at Zelenogradstroy LLC from April 15, 2010 legislation.
In accordance with paragraphs 12 and 17 of the contested order No. 7-5257-10-OB/53/2 dated May 14, 2010 (case sheet 65-67) of the state labor inspector in Moscow at Firma LLC Zelenogradstroy" is charged with the obligation to take measures to eliminate violations of labor legislation and other regulations containing labor law norms, namely:
Compensate Ariskin B.A. in accordance with Part 1, Clause 3, Article 234 of the Labor Code of the Russian Federation, the earnings he did not receive as a result of the employer’s delay in issuing B.A. to Ariskin. his work book and continue not to violate the deadlines for issuing work books to employees upon termination of employment contracts;
Cancel order No. 1044-k dated December 2, 2008 regarding the dismissal of B.A. Ariskin. from November 16, 2008 for absenteeism according to clause “a” clause 6 of Article 81 of the Labor Code of the Russian Federation and restore Ariskin B.A. as a third-class concrete worker. In accordance with Part 1, Clause 1, Article 234 of the Labor Code of the Russian Federation, compensate Ariskin B.A. the earnings he did not receive as a result of his illegal dismissal, and also recognize the entry in the work book of B.A. Ariskin. illegal.
In accordance with the order dated October 16, 2006, Ariskin B.A. was hired by Firma Zelenogradstroy LLC as a 3rd category concrete worker (case file 98).
According to clause 9.3 of the employment contract dated October 16, 2006, non-existent, concluded between Zelenogradstroy Firm LLC and B.A. Ariskin, a five-day work week with two days off was established - Saturday and Sunday (case file 99- 103).
According to clause 3.1 of the Internal Labor Regulations, approved on June 1, 2006, the said organization established a five-day work week with two days off - Saturday and Sunday (case file 104-111).
In accordance with Article 111 of the Labor Code of the Russian Federation, the general day off is Sunday.
By order of December 2, 2008 No. 1044-k Ariskin B.A. was dismissed on November 16, 2008 (which was a Sunday) according to clause “a” clause 6 of Article 81 of the Labor Code of the Russian Federation (absence from the workplace without good reason) on the basis of a memo from the head of contracts A.I. Serebryakova. dated November 17, 2008, according to which Ariskin B.A. subject to dismissal from November 16, 2008, since he did not show up for work on November 16, 2008. (case sheet 94-95).
In resolving the complaint, the court came to the correct conclusion that, since November 16, 2008 was B.A. Ariskin’s day off, his dismissal for absenteeism on the basis of the above order is illegal, and the dismissal order is subject to cancellation.
Work record book for Ariskin B.A. was issued not on the day of his dismissal, but later on December 4, 2008 (case sheet 72-73).
In accordance with Part 4, 6 Article 84.1 of the Labor Code of the Russian Federation, documents confirming the direction to Ariskin B.A. notification by mail of the need to appear for a work book or to agree to have it sent by mail was not provided during the inspection.
In accordance with Article 234 of the Labor Code of the Russian Federation, 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 earnings are not received as a result of:
Illegal removal of an employee from work, his dismissal or transfer to another job;
Delays by the employer in issuing a work book to an employee, or entering into the work book an incorrect or non-compliant formulation of the reason for the employee’s dismissal.
Under such circumstances, the court came to a reasonable conclusion that the state labor inspector lawfully issued an order obliging Firma Zelenogradstroy LLC to eliminate violations of labor legislation in relation to B.A. Ariskin.
In this connection, the court correctly recognized the requirements set out in the order of the State Labor Inspectorate in Moscow as justified.
In resolving the complaint, the court came to the correct conclusion that the procedure for checking compliance with labor legislation was not violated and information about the violation of such a procedure by the applicant was not indicated.
The order of the state labor inspector to eliminate violations of labor legislation was issued in accordance with the competence granted to the State Labor Inspectorate, Article 357 of the Labor Code of the Russian Federation.
The State Labor Inspector lawfully issued an order obliging Zelenogradstroy LLC to eliminate violations of labor legislation - to cancel the order regarding the dismissal of B.A. Ariskin. for absenteeism, reinstate Ariskina B.A. as a third-class concrete worker and in accordance with Art. 234 of the Labor Code of the Russian Federation to compensate Ariskina B.A. the earnings he did not receive as a result of illegal dismissal and the earnings he did not receive as a result of the employer’s delay in issuing B.A. to Ariskin. his work book, recognize the entry in the work book of Ariskin B.A. illegal.
Resolving the case, the court came to a reasonable conclusion that the inspection was carried out on the basis of an authorized body, by a competent official, within the time limits established by law, based on the results of the inspection, an appropriate act was drawn up, and based on the facts of violations identified, an order was issued to the applicant to eliminate violations of labor legislation.
The court came to a reasonable conclusion that during the inspection, the inspector found violations of Labor legislation.
The court's conclusions that the actions of the state labor inspector in the implementation of supervisory functions in the field of monitoring compliance with labor legislation are lawful, since the issuance of order No. 7-5257-10-OB/53/2 dated May 14, 2010 is aimed at achieving a fair balance of interests employer and employee, as well as to protect and restore the violated rights and interests of the employee.
The court's conclusion is motivated, corresponds to the factual circumstances and materials of the case, and there are no grounds for recognizing it as incorrect.
The court examined all the circumstances of the case with sufficient completeness, gave a proper assessment of the evidence presented, the court's conclusions do not contradict the case materials, the legally significant circumstances in the case were established by the court correctly, the rules of substantive law were applied correctly by the court.
The court carefully analyzed the case materials, correctly established the factual circumstances relevant to the case, gave a well-founded and motivated assessment of all the parties' arguments, and provided in the decision all the necessary references to legal norms.
Under such circumstances, the court's decision is legal and justified.
The arguments of the cassation appeal that the court incorrectly determined the circumstances relevant to the case, the court’s conclusions do not correspond to the circumstances of the case, cannot serve as a basis for canceling the decision, since they are aimed at a different assessment of the evidence examined by the trial court, do not contain new circumstances that refuted would be the conclusions of the court decision, and therefore cannot serve as a basis for its cancellation.
The arguments set out in the cassation appeal that the district court considered the case in the absence of a representative of Firma Zelenogradstroy LLC are not substantiated and cannot be a basis for canceling the court decision, since the applicant’s representative was duly notified, which is confirmed by receipts on p. d. 58, 59, did not appear at the court hearing, did not provide information about the valid reasons for failure to appear.
In accordance with Part 2 of Article 257 of the Code of Civil Procedure of the Russian Federation, the failure to appear at the court hearing of any of the persons specified in part one of this article, duly notified of the time and place of the court hearing, is not an obstacle to the consideration of the application.
The court did not commit any violations of the norms of procedural and substantive law leading to the reversal of the decision.
The argument of the cassation appeal that the order of the State Labor Inspector for Moscow No. 7-5257-10-OB/53/2 dated May 14, 2010 was issued in violation of the established procedure, was verified by the court, based on the evidence presented, assessed by the court in accordance with the requirements of Art. 67 of the Code of Civil Procedure of the Russian Federation, the court did not find this argument justified. The panel of judges has no reason to make a different assessment of the evidence presented.
The argument of the complaint is that the director of Firma Zeenogradstroy LLC, Yu.V., filed a statement with the court. Gorbunov, and the court considered the complaint of Zelenogradstroy Firm LLC, cannot be a basis for canceling the court decision, since the director of the company is the legal representative of the legal entity and acts in its interests as an authorized executive body. This circumstance violates the rights of neither the legal entity nor its legal representative - the director.
The argument of the complaint is that Ariskin B.A. worked on a rotational basis and for him Sunday was a working day in this mode of work, he is not wealthy, cannot be taken into account, since it contradicts the materials of the case. The court was not presented with evidence of changes to B.A. Ariskin. working hours. Working conditions Ariskina B.A. are recorded in the employment contract and in the internal labor regulations. Agreements on changing working conditions were not presented to the court.
The argument of the complaint that the state labor inspectorate does not have the right to carry out inspections, reinstate and collect wages during forced absence is not justified, since it contradicts the information contained in the order in which the State Labor Inspector in Moscow obliged the director of LLC " Firm Zelenogradstroy" restore Ariskina B.A. at work, cancel the dismissal order and make the payments due to him.
The order of the state labor inspector to eliminate violations of labor legislation was issued in accordance with the competence granted to the state labor inspectorate, Article 357 of the Labor Code of the Russian Federation.
Therefore, the reference of the applicant’s representative to the fact that between Ariskin B.A. and Zelenogradstroy Firm LLC have an individual labor dispute about reinstatement at work, which can only be resolved by a court, and the order was issued in excess of the powers granted and cannot be taken into account, since it is aimed at a different interpretation of the law.
According to Article 357 of the Labor Code of the Russian Federation, state labor inspectors, when exercising state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms, have the right:
Provide employers and their representatives with binding orders to eliminate violations of labor legislation and other regulatory legal acts containing labor law norms, to restore the violated rights of employees, to bring those responsible for these violations to disciplinary liability or to remove them from office in the prescribed manner.
The argument of the complaint that in this case there is an individual labor dispute that must be resolved by the court, whose competence includes the assessment of evidence, also cannot be a basis for canceling the court decision, since there is no evidence that Ariskin B.A. went to court to resolve a labor dispute. Ariskin B.A. applied for protection of his labor rights in a different manner, provided for by the norms of the Labor Code of the Russian Federation, the actions of the State Labor Inspector of Moscow are fully consistent with the norms of the Labor Code of the Russian Federation.
The reference to the fact that, in essence, there is a labor dispute does not affect the court’s conclusions about the legality of the order issued, since the State Labor Inspector of Moscow acted within the framework of labor legislation and its competence established by the norms of the International Labor Organization Convention No. 81 on Labor Inspection (1947), ratified by the Federal Law of April 11, 1998. No. 58-FZ.
The panel of judges does not see any grounds for canceling the court decision based on the arguments of the cassation appeal.
Based on the above and guided by Article 360, paragraph 1 of Art. 361 Code of Civil Procedure of the Russian Federation, judicial panel
DEFINED:
the decision of the Nagatinsky District Court of Moscow dated October 28, 2010 is left unchanged, the cassation appeal is not satisfied.
Chairman:
Judges:
