Theoretically and practically, this is a fairly common occurrence, but everything initially depends on the nature of the work and the employee’s function. In work practice without any official registration The following categories of people work:
- freelancers;
- student interns;
- trainees in companies.
Without employment contract Freelance employees can easily work. They most often do not formalize their employment relationships in any way, since they plan their time and choose orders themselves. They de facto have no employer.
From a legal point of view, this is completely acceptable. In some cases, these may be couriers or assistants to certain specialists.
As for student interns and interns, the law does not oblige them to enter into an employment contract, since everything depends on the will of their superiors. The employer, however, can meet them halfway and conclude an agreement, as well as pay wages.
IMPORTANT! Trainees and probationary employees are different legal categories.
By agreement, an employment contract may not be concluded with any employee. If the applicant is satisfied with such conditions, then he will work in the organization. However, problems with employment may arise in the future, so you need to think carefully about everything.
In any case, the employer is obliged to formalize its relationship with the employee as follows:
- conclude a government contract;
- conclude a civil contract (, etc.).
The law provides for situations when, instead of an employment contract, management can enter into another type of agreement - a civil contract.
A civil law contract is far from identical to an employment contract, but is concluded with an employee who, in fact, is not a full-time employee, performs strictly limited functions or works on a specific project (courier, specialist assistant, operator, etc.).
An employment contract is not always concluded immediately and immediately. According to the general rule of Art. 67 of the Labor Code of the Russian Federation, management must conclude an agreement with an employee within 3 working days. This means that an employee can initially work without a signed employment contract, but subject to certain conditions.
Legislator in in this case still believes that it has been concluded, therefore the employer remains obliged to draw up the agreement in writing as soon as possible.
IMPORTANT! An employment contract is concluded if the employee actually carries out labor activities with the consent or on behalf of management and other responsible persons in accordance with Art. 67 Labor Code of the Russian Federation.
Often in practice it turns out that the employer deliberately hesitates and postpones the conclusion of the contract, citing a probationary period, employee audit, non-payment of taxes or other reasons.
First of all, this is illegal, since an employment contract must be concluded even if the organization has a probationary period and any other cases. If this is just a paid short-term internship, then such an approach on the part of management is acceptable.
Disadvantages of informal employment for an employee
Working without an employment contract is extremely unprofitable for the employee himself. For the employer, this is an opportunity to circumvent the law and avoid liability, while the employee has the burden of proving that he actually worked in the organization and has experience.
Without a contract and work book he is practically defenseless. In more detail, the disadvantages of such informal labor include the following points:
- lack of length of service (experience) recorded in the work book;
- impossibility of making pension contributions to the employee;
- unstable wages;
- lack of guarantees, benefits, bonuses, as well as the opportunity to go on paid annual leave, employment leave, maternity leave;
- no social and health insurance employee;
- no sick pay;
- dismissal at any time at the request of the employer without following the labor procedure;
- lack of a standardized working day, since the employee is not officially subordinate to the PVTR.
As a conclusion, we can say that there are actually a lot of disadvantages of such work, so the future employee needs to carefully weigh everything. Initially, everything depends on the goal that the employee sets for himself.
If he nevertheless decides to work without an employment contract, then it will not be easy to prove the fact that he has relevant experience with another employer. However, this is possible if you have, for example, .
However, often the employee is not registered at all. And in this case, how can one prove that he worked in the organization at all? Alternatively, you can write a statement to your employer demanding payment of the remaining wages.
You must have a copy of this document with you. Then you need to submit the paper in person to the office, where the relevant employees will register the application and submit it to the employer.
The above actions can also be done via mail with a receipt receipt and a list of attachments. It is advisable to wait for the official response from the employer, since in any case he will mention in passing that the employee worked in the organization.
As another possible option, you can collect all the remaining documents received during work (orders, powers of attorney from the employer, invoices for goods, contracts, etc.).
This will be a good evidence base for the court. It is also possible to use the fact of photography and video recording, but they rarely help in such matters, because the employer may respond by saying that the employee stole photos from other employees, etc.
ATTENTION! For reinsurance, it is necessary to save or copy all working documents to make it easier to prove in court the fact of work at the enterprise.
Testimony - another one possible variant evidence of work in the organization. To do this, you can invite company employees or other persons to the court who can confirm that the employee actually worked in the institution on a regular basis and carried out the instructions of the employer.
What to do if the employer does not conclude a contract?
According to the general rule, Article 67 of the Labor Code of the Russian Federation, the employer must conclude an agreement within 3 days. It is quite possible that some minor difficulties may arise, but if the employer has not concluded an employment contract for a month and is constantly delaying this moment, then the alarm should be sounded.
To solve this problem, you can contact the following authorities:
- Labour Inspectorate;
Labor inspection is the initial stage of an employee’s application to protect their labor rights. This organization exists in every city, which is authorized to initiate administrative proceedings against the employer in case of violations of the Labor Code of the Russian Federation.
You can contact this institution either in person or via electronic application on the official website https://onlineinspektsiya.rf. However, before this you need to register on the government services website. Within 30 days, the request will be reviewed by competent persons and a response will be given.
If the labor inspectorate does not help in solving the problem, then all that remains is to go to court. Moreover, labor disputes are considered only by the district court. To do this, you need to contact a judicial institution of your choice: both at the employee’s place of residence and at the location of the employer.
REFERENCE! There is a special limitation period for labor disputes. The employee must go to court within 3 months from the day he became aware of a violation of his rights in accordance with Art. 392 Labor Code of the Russian Federation.
Article 392. Time limits for applying to court for resolution of an individual labor dispute
An employee has the right to go to court to resolve an individual labor dispute within three months from the day he learned or should have learned about a violation of his rights, and in disputes about dismissal - within one month from the date he was given a copy of the dismissal order or the day of issue of the work book.
To resolve an individual labor dispute regarding non-payment or incomplete payment of wages and other payments due to an employee, he has the right to go to court within one year from the date of the established deadline for payment of these amounts, including in the case of non-payment or incomplete payment of wages and other payments due to an employee upon dismissal.
The employer has the right to go to court in disputes regarding compensation by the employee for damage caused to the employer within one year from the date of discovery of the damage caused.
If, for good reason, the deadlines established by parts one, two and three of this article are missed, they may be restored by the court.
Responsibility and fine for not concluding a TD
Failure to comply with the norms of the Labor Code of the Russian Federation on the part of the employer usually entails administrative liability. According to Part 4 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, an employer who does not want to conclude an employment contract in writing must pay a fine in the amount of 10 to 20 thousand rubles. Moreover, legal entities pay a much larger fine - from 50 to 100 thousand rubles.
Article 5.27. Violation of labor legislation and other regulatory legal acts containing standards labor law
Part 4
Evasion or improper execution of an employment contract or the conclusion of a civil contract that actually regulates the labor relationship between the employee and the employer:
- shall entail the imposition of an administrative fine on officials in the amount of ten thousand to twenty thousand rubles;
- on persons carrying out entrepreneurial activity without forming a legal entity - from five thousand to ten thousand rubles;
- for legal entities - from fifty thousand to one hundred thousand rubles.
If the employer has already been held accountable for a similar incident or still does not intend to enter into an employment contract, then the fines increase (for legal entities - from 100 to 200 thousand rubles), and officials can be disqualified for a period of 1 to 3 years. ex years.
Such tough measures were taken relatively recently, since reluctance to enter into employment contracts has already become a national problem among employers.
Arbitrage practice
Considering judicial practice, we can come to the conclusion that it is not always the court is on the employee's side. As a rule, unofficial worker There are several requirements for employers in addition to the lack of a contract.
For example, delays in salaries or certain payments, which further complicates the matter. In this case, it is important to collect all possible evidence and involve as many witnesses and concerned company employees as possible.
Any documents can be presented, and even a pass with a photo to the enterprise will do to prove the fact of a working relationship. As a rule, this puts the employer at a dead end.
Previously, the courts refused to satisfy the demands of such persons due to the absence of an order for their enrollment in the state, as well as a position in the staff list. However, this is not a problem, since many positions in a particular company are not listed in the staffing table.
The Supreme Court of the Russian Federation ruled that the absence of an order to enroll an employee in the workforce, as well as a work book and contract, is not a basis for refusing the employee any claim against the employer.
In conclusion, it must be said that working without an employment contract is an extremely risky and dangerous business for the employee himself. If there is the slightest suspicion that the employer is not going to formalize the employment relationship, then it is necessary to immediately contact government authorities, and also collect all available documents at the same time.
The outcome of the court case will depend on whether the employee can collect evidence of the fact of working at a particular enterprise.
Permission to work as a basis for occurrence labor relations provided for in Art. 67 Labor Code of the Russian Federation. However, the lack of clear legal regulation of this institution leads in practice to situations, some of which do not end in favor of workers, and similar situations are resolved in different ways. Let us consider this issue in more detail and give examples from judicial practice.
Permission to work must be carried out by the employer or his representative
According to Art. 67 of the Labor Code of the Russian Federation is concluded in writing, drawn up in two copies, each of which is signed by the parties. If the employment contract was not drawn up in writing, but the employee began work with the knowledge or on behalf of the employer or his representative, then the employment contract is considered concluded. In this case, the employer is obliged to draw up an employment contract with this employee in writing no later than three working days from the date the employee is actually allowed to work.
So, the most important questions are who the employer’s representative is and in what form the consent or instruction of the employer or his representative to begin work must be expressed. Let's answer them in order.
According to paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by courts Russian Federation Labor Code of the Russian Federation" (as amended on December 28, 2006), the representative of the employer in this case is a person who, in accordance with the law, other regulatory legal acts, constituent documents of a legal entity (organization) or local regulations or, by virtue of an employment contract concluded with this person, is vested with the authority to hire workers, since it is in this case that when an employee is actually allowed to work with the knowledge or on behalf of such a person, labor relations arise (Article 16 of the Labor Code of the Russian Federation) and the employer may be required to draw up an employment contract with this employee properly. If the employment contract is signed by the first person, then he acts on the basis of the charter, if someone else - on the basis of a power of attorney. Thus, if, for example, the head of one of the organization’s divisions allows an employee to work without having the appropriate authority, then the employer will not have the obligation to conclude an employment contract with this employee. Let us illustrate this with an example from judicial practice.
Example. According to the decision of the Zlatoust City Court of the Chelyabinsk Region dated 04/08/2010, S. performed the duties of a cook in cafe "A" CJSC from 10/19/2009. Before the start of the employment relationship, there was a verbal agreement on the terms of remuneration: the main part of the salary was 4,330 rubles, additional monetary remuneration was 10% of the actual products produced and sold. The employment relationship was not properly formalized, wages were not paid, and therefore, from December 27, 2009, the plaintiff refused to continue the employment relationship with the defendant. The plaintiff asked to recognize the employment contract between him and the company as concluded from the moment of actual admission to work, to recover from the defendant wages in the amount of 11,120 rubles, additional monetary remuneration - 23,178.038 rubles, payment for the work of a dishwasher performed part-time - 9670 .33 rub.
The representative of the defendant ZAO indicated in a written response that he did not agree with the claim, since the ZAO did not have and does not have an employment relationship with the plaintiff. In October 2009, S. applied for the position of production manager, but S. was denied this because he did not meet the requirements for the head of a structural unit. Subsequently, the plaintiff expressed a desire to get a job as a cook, but S. was not satisfied with the form of the contract concluded during employment, as well as the requirements for financial liability, and therefore the plaintiff did not begin to perform his job duties, the order to hire the plaintiff was not issued, the salary no fees were assessed or paid.
The court, having examined the presented materials, found S.’s claims not subject to satisfaction. In particular, attention was drawn to the fact that a written employment contract was not concluded with the plaintiff, and no order for his employment was issued. From the explanations of the plaintiff, witnesses T., Kh., D., N. it follows that he was allowed to work in the cafe by the founder I., who verbally reported the amount of wages.
The court indicated that the plaintiff was allowed to work by an improper person, since I., being the founder of the closed joint-stock company, did not have the right to hire and fire employees of the organization, or the right to set wages. No evidence was presented to the court that founder I. was authorized to enter into employment contracts on behalf of the company.
The court decided that the employment contract between S. and the closed joint-stock company cannot be recognized as concluded, since the plaintiff did not provide reliable evidence confirming his admission to work by an authorized representative of the employer. Consequently, interrelated claims for the collection of arrears of wages cannot be satisfied.
The given example indicates that the provision of Art. 67 of the Labor Code of the Russian Federation on the admission of an employee to work can be used to evade the employer from complying with labor law standards, such as: concluding a written employment contract, paying wages. In this case, even the presence of evidence of permission to work is not taken into account. In addition, in practice there are situations when the employer denies even the fact of concluding an employment contract, the employee’s permission to work is attributed to an inappropriate person, while the employer avoids providing the employee with social insurance guarantees. Let's look at an example.
Example. According to the ruling of the Lipetsk Regional Court dated February 24, 2010 in case No. 33-.../2010, I. was in an employment relationship with LLC " Cozy home", worked as a janitor from 05/05/2009. When she was hired, a written employment contract was concluded with her, she wrote an application for employment and handed over her work book to the personnel department employees. On May 18, 2009, the defendant paid her an advance payment according to the statement in the amount of 2380 rubles. She believed that in fact, deputy director P., chief accountant, head of the personnel department O., foreman F., who provided I. with equipment and special clothing, were allowed to work. After treatment from 05.21.2009 to 07.03.2009, the defendant refused to fulfill his duties, including payment of benefits for temporary disability, unreasonably denying the employment relationship between the parties. I. filed a lawsuit to establish the fact of being in an employment relationship, to recognize the illegal dismissal from work, to recover benefits for temporary disability, lost wages and vacation pay, recovery of earnings for forced absence, for delay in issuing a work record book, compulsion to restore the work record book with the appropriate entries made in it, recovery of compensation for moral damage.
Representatives of the defendant Cozy House LLC, by proxy G., M., O., did not recognize the claim, referring to the fact that the plaintiff was allowed to work by an unauthorized person, but the defendant was not hired and no employment contract was concluded with I.
When considering the case, the court was critical of the testimony of witnesses who confirmed the plaintiff’s arguments. It was also noted that there were no vacant positions in the staffing list of Cozy House LLC, one of which the plaintiff applied for. The plaintiff’s argument about the conclusion of an employment contract is refuted by the submitted timesheets for the period from May to June 2009, and salary slips. The fact that the plaintiff was allowed to work as site foreman F. on the instructions of the deputy. director of general issues P., does not confirm the conclusion of the employment contract. Witnesses F., P. testified that the admission took place at the request of the plaintiff, who wanted to try herself as a janitor, and did not take place for the purpose of fulfilling the employee’s labor function.
In rejecting the claim, the court of first instance was guided by paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.” In accordance with the Charter of Cozy House LLC presented to the court, only the director of the company, V., has the exclusive right to hire and dismiss employees, who denied at the court hearing that the plaintiff was hired, P. is the deputy director of Cozy House LLC for general issues, and She does not have the right to hire and fire employees, just as the site foreman at Cozy House LLC F. does not have such powers. For unauthorized admission of I. to work, by order of the director of the company, the deputy director of Cozy House LLC P. was reprimanded, which also confirms Arguments of the director of Cozy House LLC about his ignorance of the plaintiff’s permission to work.
Having considered the arguments set out in the cassation appeal, the court did not find any grounds for canceling the court decision, left it unchanged, and left the cassation appeal unsatisfied.
At the same time, certain court decisions suggest that the provisions of Art. 67 of the Labor Code of the Russian Federation can be interpreted in two ways, namely: the admission of an employee to work by an inappropriate person is regarded as an omission of the employer and it is indicated that it was the employer who did not take all measures within his power to comply with labor law standards. The result is that the employer is brought to administrative responsibility, in particular for violating the norms of migration legislation.
Example. According to the Resolution of the Federal Antimonopoly Service of the Moscow District dated March 19, 2009 N KA-A40/1989-09 in case N A40-73086/08-120-396 of the Federal Migration Service of Russia in the Eastern Administrative District on October 2, 2008, an inspection of Belstroy LLC was carried out for compliance with the migration legislation of the Russian Federation. During the inspection, it was revealed that the company involved V.R., a citizen of the Republic of Kyrgyzstan, in labor activities as an auxiliary worker. M. in the absence of a permit to carry out labor activities. On 10/03/2008, the migration service drew up a protocol on an administrative offense under Part 1 of Art. 18.15 Code of Administrative Offenses of the Russian Federation. On October 17, 2008, the company was found guilty of committing this administrative offense, and a sanction was imposed in the form of a fine in the amount of 300,000 rubles.
Believing that there were no grounds for prosecution due to the lack of proof of the alleged administrative offense, the company went to court. In particular, it was indicated that between 000 "Belstroy" and LLC "ArtBusinessStroy" an agreement dated 01.08.2008 N 103/BL was concluded on the provision of labor resources, guided by which "ArtBusinessStroy" together with the foreman M.D. V. recruited citizen V.R. to work. M. without direct participation and knowledge general director LLC on permission to work V.R. M. However, this argument was rejected by the court of cassation.
The court stated that the involvement of a foreign citizen in work as a foreman without the knowledge of the general director of the company in this case does not exclude the company’s guilt, since Belstroy LLC did not take all measures depending on it to comply with the rules and regulations, for violation of which Part 1 Art. 18.15 of the Code of Administrative Offenses of the Russian Federation provides for administrative liability. At the same time, there is no evidence in the case that he lacks the ability to comply with the violated rules and regulations.
Under such circumstances, there are no grounds for canceling judicial acts: Decisions of the Moscow Arbitration Court dated December 15, 2008, Resolutions of the Ninth Arbitration Court of Appeal dated February 10, 2009 in case No. A40-73086/08-120-396, which refused to declare illegal and cancellation of the decision in the case of an administrative offense.
Evidence of permission to work
In addition to the question of the person who has the right to allow an employee to work, the question of what is considered admission to work remains controversial. Let's consider a decision in which the court did not take into account the fact that the person had access to the employer's territory after the expiration of the employment contract, and these actions, in the court's opinion, did not indicate the employee's permission to work and the existence of an employment relationship.
Example. From the Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated October 09, 2007 in case No. A82-15771/2006-9, it is known that municipal institution Health Care Clinical Hospital of Emergency Medical Care named after N.V. Solovyova (hereinafter referred to as the Institution, Hospital) appealed to the Arbitration Court Yaroslavl region with a statement of claim against the limited liability company "Yartrans-2001" (hereinafter - the Company) for recovery on the basis of Art. 67 Fundamentals of the legislation of the Russian Federation “On the protection of the health of citizens” the cost of services when providing medical care to the Company’s employee, Sergei Ivanovich Dzhurkin, injured as a result of an industrial accident.
It was established that on September 21, 2005, gas-electric welder Makarov carried out electric welding work metal structure on the territory of the Company. Manager Nesterov, who determines the scope of work, went on vacation on September 21, 2005. Dzhurkin independently decided to help the gas-electric welder, for which he climbed onto the stage. Makarov refused Dzhurkin's help. The latter fell while descending from the scaffolding, as a result of which he was seriously injured and was taken to the Hospital, where he received medical assistance (in the amount of 93,880 rubles. 54 kopecks). Having considered that the costs for medical service Dzhurkin should be borne by the Society. The Institution filed a claim with the arbitration court, citing, in particular, paragraph 1 of Art. 5 Federal Law dated July 24, 1998 N 125-FZ “On compulsory social insurance against accidents at work and occupational diseases”, according to which, in particular, individuals performing work on the basis of an employment contract are subject to compulsory social insurance against accidents at work and occupational diseases (contract) concluded with the policyholder.
Having refused to satisfy the Hospital's claims, the court concluded that the Company did not enter into any civil law agreements with the victim. The entrepreneur and Dzhurkin entered into an employment contract for the period from 05/03/2005 to 08/03/2005 (on the day of the incident the contract expired).
Since Dzhurkin S.I. was not an employee of any of the defendants and the injury he received cannot be classified as industrial - this conclusion of the court was justified, in particular, by the fact that from the documents submitted to the case it followed that manager Nesterov did not have the authority to conclude an employment contract. There is no evidence in the case materials that Dzhurkin was allowed to work with Godovikov’s knowledge. The entrepreneur notified Dzhurkin about the termination of the fixed-term employment contract. The FAS of the Volga-Vyatka District ruled that under these circumstances, the Arbitration Court of the Yaroslavl Region rightfully rejected the Hospital’s claims to recover the costs of medical care for citizen Dzhurkin at the expense of the Company and the entrepreneur. The cassation appeal was rejected.
At the same time, the applicants’ arguments were not taken into account that Dzhurkin was allowed to work with the knowledge of the employer’s representative - manager M.I. Nesterov; guards freely allowed him into the territory; the victim had his own changing room, which indicates that the parties had concluded an employment contract, and also that, according to the conclusion of the state labor inspector responsible person For violations of the requirements of legislative and other regulatory legal acts, local regulations that led to the accident, P.I. Godovikov was recognized.
However, another court decision indicates that even the issuance of a pass to enter a building for the purpose of performing labor functions is an actual admission to work and obliges the employer to comply with labor legislation.
Example. FAS North Kazakhstan Region, by a Resolution dated May 12, 2009, in case No. A53-20105/2008-C4-4, refused to satisfy the application of the NOU VPO "Institute of Management, Business and Law" (hereinafter referred to as the institution) to recognize as illegal and cancel the decision of the Federal Migration Service on Rostov region dated 08.10.2008 N 021168 on bringing to administrative responsibility for committing an administrative offense under Part 1 of Art. 18.15 Code of Administrative Offenses of the Russian Federation, in the form of 250 thousand rubles. fine
In the Resolution of the FAS SKO indicated that the institution was brought to administrative responsibility in connection with its violation of the rules for attracting and using foreign labor established by Federal Law of July 25, 2002 N 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation” (as amended. dated June 28, 2009) (hereinafter referred to as Law No. 115-FZ). In particular, the institution hired a citizen of the Republic of Azerbaijan, Mamedova, as a cleaner, who did not have a work permit issued in accordance with the requirements of the law. In addition, according to paragraph 4 of Art. 13 of Law N 115-FZ, the employer and customer of work (services) have the right to attract and use foreign workers only if they have permission to attract and use them.
When drawing up a protocol on an administrative offense, it was indicated in paragraph 1 of the note to Art. 18.15 of the Code of Administrative Offenses of the Russian Federation: the involvement of a foreign citizen or stateless person in labor activities in the Russian Federation means admission in any form to the performance of work or provision of services or other use of the labor of a foreign citizen or stateless person.
The arguments set out in the cassation appeal about the absence of an imputed offense in the company’s actions due to the fact that Mamedova is not an employee of the company were not accepted as justified. In accordance with Art. Art. 16, 67 of the Labor Code of the Russian Federation, the basis for the emergence of labor relations between an employee and an employer is the actual admission to work with the knowledge or on behalf of the employer or his representative, regardless of whether the employment contract is properly drawn up. Mamedova was given a pass to enter the building in order to carry out her work duties. Under the above circumstances, the court came to the conclusion that bringing the institution to administrative liability under Part 1 of Art. 18.15 of the Code of Administrative Offenses of the Russian Federation is lawful, but the applicant’s argument that in the case under consideration the institution is not an employer is untenable.
Probation
According to Art. 70 of the Labor Code of the Russian Federation, when concluding an employment contract, by agreement of the parties, it may provide for the condition of testing the employee in order to verify his compliance with the assigned work. In the case where an employee is actually allowed to work without drawing up an employment contract, a probationary clause can be included in the employment contract only if the parties formalized it in the form of a separate agreement before starting work. If such an agreement was not reached before the employee was allowed to work, it is considered that the employee began work without testing. Let's consider the Decision of the Sovetsky District Court of Krasnoyarsk dated January 25, 2010 in case No. 2-126/2010, according to which an employee who was actually admitted to work and dismissed due to an unsatisfactory test result was reinstated at work, in particular, due to the fact that that no probationary period was established upon hiring.
Example. T. from May 27, 2009 to July 31, 2009 worked for S. as a storekeeper in a household goods warehouse. When applying for a job, I did not enter into any contracts and was not familiar with the employment order. According to an oral agreement with the defendant, the salary should have been 15,000 rubles. monthly, but after two months T. never received a salary. Upon returning to work on August 1, 2009, the employer reported that T. had been fired, without explanation, and that the work book would be given to him later. Subsequently, on 08/03/2009, the defendant handed over his work book, which contained a record of dismissal on the basis of order dated 07/01/2009 No. 15 under clause 4, part 1, art. 77 of the Labor Code of the Russian Federation, despite the fact that T. actually worked until 07/31/2009 inclusive. In connection with the above, T. considered his dismissal illegal, since the employer did not comply with the dismissal procedure, since T. was not notified of the dismissal three days in advance. In this regard, he asked the court to reinstate him at his previous job as a storekeeper and to recover unpaid wages for time worked in the amount of RUB 32,565.39. and during forced absence - 19,888.42 rubles. based on 15,000 rubles. per month on the day of the decision, compensation for moral damage in the amount of two monthly salaries.
The defendant S. and her representative Z. did not recognize the claim and asked to refuse it. Z. explained that the plaintiff was hired on May 26, 2009 as a storekeeper apprentice with a probationary period of three months, wages 5000 rub. per month (employment order dated May 26, 2009 N 12). The entry in the work book about the plaintiff’s acceptance to the position of storekeeper was made erroneously, since, according to order No. 12 dated May 26, 2009, T. was accepted as a storekeeper’s apprentice with a probationary period of 3 months. Individual Entrepreneur S. has an institutional order that all persons hired must undergo a probationary period, and a payment system has been established, according to which the salary is 5,000 rubles. In this regard, the plaintiff’s demands for the recovery of wages at the rate of 15,000 rubles. considers unfounded. Also, from the expenses provided by the employer cash orders it follows that the plaintiff’s salary was 5,000 rubles. per month. The plaintiff finds the plaintiff’s reference to a certain note, a digital record indicating the amount of wages of 15,000 rubles, unfounded, since the record does not contain indications of who compiled it, there is no date, time period for which the cash. Considers demands for compensation for forced absence and moral damage to be unfounded. The plaintiff refers to the fact that he was not notified three days in advance, the order was violated, and this could not entail a violation of his personal non-property rights.
IP S. additionally explained that the plaintiff was dismissed as having failed to complete the probationary period due to the fact that on July 31, 2009 T. tried to steal from the territory of the warehouse entrusted to him a bag containing 25 packs of women's tights belonging to IP E., but, being noticed by S.’s husband, he returned this package to the warehouse, having previously left it in his room for changing clothes. On this fact, S. drew up an act in the presence of the plaintiff and witnesses, but T. refused to sign the act and give any explanations on it. Not wanting to spoil the plaintiff’s work record, S. decided, without involving the police, to terminate the employment relationship with the plaintiff as someone who had not completed the probationary period, having previously notified T. about this. An employment contract was not concluded with the plaintiff. Regarding wages, S. explained that for June 2009 the plaintiff received wages in the amount of 4,072 rubles, but the plaintiff did not sign the statement and did not appear for wages for July 2009. Tax deductions for T. were made in a timely manner and in in full based on the salary of 5000 rubles. S. agrees that she made a mistake in the entry in the work book about the plaintiff’s dismissal; instead of the date 08/01/2009, 07/01/2009 was indicated, and is ready to correct the mistake voluntarily. By order of December 30, 2009 N 6, T. was reinstated at work as a storekeeper apprentice from December 30, 2009 with a salary of 5,000 rubles, a copy of the order and the employment contract were sent to the plaintiff by registered mail, however, to date the plaintiff has not begun to fulfill his duties.
The court, having examined the case materials, made a decision to partially satisfy T.’s demands. The following was noted: according to the entry in the work book, on May 26, 2009, T. was hired by IP S. as a storekeeper with a probationary period of 3 months, dismissed under clause 4, part 1, art. 77 of the Labor Code of the Russian Federation on the basis of order No. 15 dated 07/01/2009. In addition, the staffing table dated 01/01/2009 contains 2 storekeeper units and 2 seller units, each with a salary of 5,000 rubles, while there is no storekeeper apprentice unit. From the pay slips, cash receipts and time sheets submitted to the court for the period from May 26 to July 2009, it followed that T.’s salary for the specified period amounted to 11,040.53 rubles, but no evidence was provided of its receipt plaintiff.
The fact that the plaintiff was in an employment relationship with the defendant in the period from May 26 to July 31, 2009, as well as the non-conclusion of an employment contract with the employee, was not disputed at the court hearing by IP S. Regarding the probationary period, the court noted that if the probationary period was not agreed upon when hiring, the employee is considered accepted without probation. The employer does not have the right to set a probationary period for the employee by order of hiring, if the employment contract does not provide for a probationary period.
Taking into account this, the court decided to partially satisfy T.’s demands, namely: to reinstate him at work with IP S. as a storekeeper from 08/01/2009, to collect from IP S. in favor of T. arrears of wages in the amount of 11,040 .53 rubles, wages for the period of forced absence in the amount of 24,401.52 rubles, compensation for moral damage in the amount of 2,500 rubles. In addition, a state fee in the amount of 1263.26 rubles was collected from IP S. to the federal budget.
The Labor Code of the Russian Federation does not indicate in what form such a testing agreement should be concluded. It would seem that the wording of the article indicates the need for a written agreement. However, the decision of the Tevriz District Court dated 03/09/2010 indicates the opposite. When making a decision, the employment contract proposed for conclusion and signed by the employer, but not signed by the employee, was taken into account.
Example. G.V. F. worked in the defendant’s organization as a foreman of industrial training from 06.11.2009. By order of January 29, 2010, he was dismissed on the basis of clause 4, part 1, art. 77 Labor Code of the Russian Federation. He considers the dismissal illegal, since he was hired for a probationary period of three months, during this period there were no disciplinary sanctions and no grounds for dismissal under clause 4 of part 1 of Art. The director did not have 77 of the Labor Code of the Russian Federation, and has not worked since January 30, 2010. He asked to be reinstated as a master of industrial training at the BOU NPO "P." and to recover from the BOU NPO average earnings for the period of forced absence from January 30, 2010 until the day of reinstatement at work, to recover compensation for moral damage in the amount of 12,000 rubles.
At the court hearing G.V. F. additionally explained that he actually started working on November 6, 2009, read the hiring order against signature, and received a copy job responsibilities. Before hiring a group of welders G.V. F. fulfilled the duties agreed upon when hired, in particular, improved the material resources of the laboratory. An employment contract signed by the employer personally with him, G.V. F. refused to sign because he was not satisfied with clause 7.3 regarding the possibility of involving the employee in other work outside his profession. With the remaining terms of the employment contract, including probationary period, agreed.
Compiled in relation to G.V. F. considers the reports of being late for work to be far-fetched and untrue, since he warned the employer's representative - the secretary - about the reasons for the delay. With an order to warn about the dismissal of G.V. F. was informed, but no one introduced him to the dismissal order. Orders on instructions to G.V. F. considers other work, not in line with his official duties, illegal, since there were no emergency incidents that allowed him to be transferred to other areas. Believes that he was illegally dismissed, including under clause 4, part 1, art. 77 of the Labor Code of the Russian Federation, since it refers to Art. 81 of the Labor Code of the Russian Federation, and when applying for employment to other organizations, questions arose as to what exactly was the reason for his dismissal.
The representative of the defendant is the director of the BOU NPO "P." K.V. A. did not admit the claim at the court hearing. In particular, he explained that during November 2009 G.V. F. worked flawlessly. In December 2009, repeated delays to work and unauthorized departures from work without explanation, and refusals of instructions to carry out work began. G. required explanations about the reasons for his delays, which he submitted untimely, with persuasion; he received reports and reports from employees; personal conversations did not lead to consensus. G.V. F. did not survive the probationary period, and therefore was dismissed at the initiative of the employer before the expiration of the probationary period - for violations of labor discipline, violations of labor regulations, and refusal to carry out assignments.
Having considered the case materials, the court refused to satisfy the claims of G.V. F. to the BOU NPO Omsk Region "P.", recognizing the employment contract dated November 6, 2009 as concluded, since it was drawn up by the employer, signed by the director, but despite the fact that it was not signed by G.V. F., the latter agreed with all the terms of the employment contract, including the establishment of a probationary period of three months. Disagreement with the content of clause 7.3 of the employment contract cannot be considered a basis for recognizing the employment contract in question as not concluded. In addition, an analysis of the issued order for the employment of G.V. F. and an employment contract with G.V. F. shows their compliance with each other according to the basic conditions of labor relations.
Order No. 03 dated January 22, 2010, issued by acting. O. director, in accordance with Art. 71 Labor Code of the Russian Federation G.V. F. was warned of his upcoming dismissal on January 28, 2010 due to an unsatisfactory test result. The reasons given in this order are: violation of internal labor regulations and labor discipline, refusal to carry out assignments. With the said order G.V. F. is familiar with personal painting 01/22/2010, did not agree with the order.
By order of January 29, 2010 No. 7 G.V. F. dismissed as not passed the test according to clause 4, part 1, art. 77 Labor Code of the Russian Federation. This order provides as a basis a personal warning about impending dismissal due to an unsatisfactory test result. The order was issued and signed by the director. This order by G.V. F. refused to sign, as evidenced by the act dated January 29, 2010, drawn up by the employees of the institution. Work record book of G.V. F. was received on the day of dismissal, January 29, 2010, as evidenced by the logbook for the issuance of work books at the BOU NPO and the signature of the person responsible for issuing, G.’s personal signature in receiving the work book. The work book also contains an entry dated January 29, 2010 No. 20 about “dismissal under clause 4, part 1, article 77 of the Labor Code of the Russian Federation after the expiration of the probationary period.”
Acts of absence from work without a valid reason were recognized as legal and justified. The court is critical of the plaintiff’s arguments that he was not brought to disciplinary liability for violations, and therefore there were no grounds to dismiss him as having failed the test, since the imposition of disciplinary sanctions is the right of the employer, the employer took these circumstances into account in the conclusions about the results tests.
Assessing the evidence collected in the case in its totality and interrelation, the court came to the conclusion that recognizing the plaintiff’s test results as unsatisfactory in this case is justified. Under such circumstances, the court found no grounds to satisfy G.V.’s claim. F. for reinstatement at work, recovery of earnings for the period of forced absence and compensation for moral damage.
At the same time, the court believes that when issuing the order dated January 29, 2010 No. 7 on termination of the employment contract (employment relationship) with the employee, clause 4, part 1, art. 77, not Art. 71 of the Labor Code of the Russian Federation, which has a more precise basis, and not common ground termination of the employment contract. Taking into account the above and Part 5 of Art. 394 of the Labor Code of the Russian Federation, the court changed the wording of the grounds for dismissal of G.V. F. from clause 4, part 1, art. 77 of the Labor Code of the Russian Federation to the following: “Dismiss the master of industrial training by profession “welder” G.V.F. in connection with an unsatisfactory test result, according to the first part of Article 71 of the Labor Code of the Russian Federation.”
Taking into account the above, in order to avoid possible legal disputes when the employee is actually admitted to work, it is recommended to enter into a written agreement with him on a probationary period. In addition, it is possible to indicate the probationary period in the internal labor regulations or other local regulations, which the employer is obliged to familiarize the employee with when hiring (Article 68 of the Labor Code of the Russian Federation).
Material liability of the employee
The conclusion of a liability agreement has great importance for both the employee and the employer. How is this issue resolved when an employee is allowed to work? If, in accordance with regulatory legal acts, the person being hired belongs to the category of employees with whom an agreement on full financial liability can be concluded, does this mean that the employer must conclude this agreement before this employee is allowed to work? How will this issue be resolved if, before the employee was allowed to work, an agreement on financial liability was not concluded and subsequently the employer indicates the need to conclude one, and the employee refuses to sign the corresponding agreement?
Let us turn to the explanation given in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (as amended on December 28, 2006). From paragraph 36 of the said Resolution it follows that if the performance of duties for the maintenance of material assets is the main labor function of the employee, which is agreed upon when hiring, and in accordance with the current legislation, an agreement on full financial responsibility can be concluded with the employee, about which the employee knew that refusal to conclude such an agreement should be considered as a failure to fulfill labor duties with all the ensuing consequences. If the need to conclude an agreement on full financial liability arose after concluding an employment contract with the employee and is due to the fact that, due to changes in current legislation, the position held by the employee or the work performed is included in the list of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full financial responsibility, but the employee refuses to enter into such an agreement, the employer, by virtue of Part 3 of Art. 74 of the Code is obliged to offer another job, and in the absence of it or the employee refuses the proposed job, the employment contract is terminated with him in accordance with clause 7 of part 1 of Art. 77 of the Code (an employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties).
Taking into account the above, we recommend that when admitting an employee to work, separately stipulate that his position is classified as one of those positions for which it is possible to conclude an agreement on full financial liability, and confirm this by familiarizing the employee with the relevant local regulations or indicating this provision in a written agreement.
Example. B. worked for G. as a salesperson in the store "M" from 08/28/20** to 10/03/20**, B. was provided with a passport, a new work book (B. had never worked anywhere before) and later an INN, but G. ... did not conclude a written employment contract with B., did not issue an order to hire him, out of the promised salary of 8,000 rubles. paid only an advance in the amount of 2000 rubles, in addition, she allowed me to take food for lunch in the amount of 830 rubles. 03.10.20** B. resigned due to at will, however, G. refused to give B. a calculation and work book, citing the fact that B. had a shortage of goods and did not have a pension insurance certificate.
B. asked to recover in his favor arrears of wages, taking into account overtime work, average earnings for the period of forced absence from 10/04/20** to 12/14/20**, compensation for moral damage, average earnings for the delay in issuing his work book from 10/03. 20** on the day of the decision.
G. filed counterclaims for recovery material damage, caused as a result of a shortage of goods, indicating that during the period of B.’s work as a seller in the “M” store, two audits of the goods were carried out: 08.30.20** an audit was carried out on the transfer of material assets under financial responsibility to sellers N. and B., after that, in the period from 08/30/20** to 10/01/20** they sold the goods at retail. Based on the results of the second audit, a shortage was identified. G. decided to withhold part of B.’s wages, and asked to recover the other part of the shortfall from B.
The court, having examined the case materials, decided to partially satisfy B.’s claims. It was stated that, despite the fact that the employment contract between individual entrepreneur G. and B. was not properly drawn up, during judicial trial it was established with certainty and was not denied by defendant G. that employee B. actually started work with G.’s knowledge (confirmed by B.’s pay slips, as well as time sheets for August, September and October 20**), therefore the employment contract is considered concluded and, accordingly, a labor relationship has arisen between employee B. and employer G., which is regulated by the Labor Code of the Russian Federation and other labor legislation of the Russian Federation. It was noted that G. violated the procedure for hiring B. (after actually being allowed to work, she did not draw up an employment contract with B. in writing, did not issue an order to hire B., did not draw up a work book in the manner prescribed by law, and insurance certificate state pension insurance).
Refusing G.'s claims for recovery of damages from B. in connection with the shortage of goods, the court proceeded from the fact that the plaintiff in G.'s counterclaim did not present to the court evidence that she had concluded a written agreement with the seller B. in accordance with the procedure established by law an agreement on full financial liability, as well as a written agreement on collective financial liability, taking into account the fact that in the store "M" during the period of B.'s work there were also sellers, it was not possible to differentiate the responsibility between them due to the nature of the work he performed, as well as the force of the established procedure for maintaining financial reporting documentation for individual entrepreneur G. Since the materials submitted by G. from the audits carried out on 08/30/20** and 10/03/20** were not signed by any of the store employees, as well as by the entrepreneur G. himself, it is currently established that who, to whom and in what volume transferred material assets is not possible, therefore these documents do not confirm the fact that any inventory assets were transferred to B. under full financial responsibility. The invoices presented by G. for the period from August to October 20** do not confirm this circumstance, since these documents do not contain the signatures of the seller B. on his acceptance of the goods, and also since the goods indicated in the invoices were accepted during the specified time period by various persons, which also excludes the possibility of establishing the amount of B’s financial liability. There is also no evidence that indisputably demonstrates the guilt of employee B. in causing material damage.
Taking into account the above, the court decided to recover from G. in favor of B. unpaid wages for the period from 08.28.20** to 10.02.20** in the amount of 6292 rubles. taking into account income tax, the average earnings for the delay in issuing a work book for the period from 10/03/20** to 02/03/20** in the amount of 23,796.52 rubles. taking into account income tax, compensation for moral damage in the amount of 1000 rubles. In addition, a state fee in the amount of 1,302.66 rubles was collected from G. The rest of B.'s claims were denied. G.'s claims for recovery of material damage from B. were denied.
The second example considers a situation where, upon hiring, an agreement on financial responsibility was concluded with an employee, but when transferring to another department, a new agreement was not drawn up, and the transfer itself was not documented. The court refused to recover material damage caused to the employer by the lack of property, pointing out that the agreement on financial liability concluded when hiring in one department does not extend to labor relations after the employee is transferred to another department.
Example. According to the decision of the Gorno-Altai City Court of the Altai Republic in the case dated April 12, 2010, issued in accordance with the claim of LLC "***" for the recovery of the amount of material damage caused by an employee in the performance of work duties, the defendant has worked at LLC "** since * 2007 *" salesperson in the perfume department of the store. In 2007, she was transferred to the position of food seller and performed work related to the storage, packaging and distribution of food products. The transfer was not formalized by order, since an employment relationship arose with the defendant on the basis of actual admission to work as a salesperson in the grocery department. Since * 2008, the defendant began to go on sick leave and submit certificates of incapacity for work to the plaintiff. In * 2008, in connection with the defendant's submission sick leave for maternity leave became necessary inventory of inventory items, from which the defendant avoided participating (according to the plaintiff, notifications about the need to participate in the inventory were sent by telegram). Based on the results of an inventory carried out without the participation of the defendant in * 2008, a shortage was established in the amount of 129,158 rubles. 28 kopecks, which was recorded by the commission consisting of the director of LLC "***" S. and members of the commission T., U. and documented by the act of inventory of inventory items of the grocery department dated * 2008, the inventory sheet.
The court decided to refuse to satisfy the claims. Among the grounds on which the defendant cannot be charged with compensation for damage, the court indicated that financial liability in the full amount of damage caused can be assigned to the employee only in cases provided for by the Labor Code of the Russian Federation or other federal laws (Article 242 of the Labor Code of the Russian Federation) , in particular, this is possible in the event of a shortage of valuables entrusted to him on the basis of a special written agreement or received under a one-time document (clause 2, part 1, article 243 of the Labor Code of the Russian Federation). The List of works and categories of workers with whom contracts can be concluded for full individual financial liability (approved by Resolution of the Ministry of Labor of Russia dated December 31, 2002 N 85) also includes the position of a salesperson. At the same time, according to paragraph 4 of the Review of Legislation and Judicial Practice of the Supreme Court for the fourth quarter of 2009, failure to comply with the requirements of the law on the procedure and conditions for concluding and executing an agreement on full individual financial liability may serve as a basis for releasing an employee from the obligation to compensate for damage caused through his fault in the full amount exceeding the employee’s average monthly earnings.
The court found that the written agreement of LLC "***" with Kh. on the performance of her labor duties as a seller of the grocery department of the store of LLC "***" and the agreement on full financial responsibility as with the seller of the grocery department of the store of LLC "***" was not concluded, and therefore X. cannot be obligated to compensate the employer for the damage caused in full.
Arguments of the General Director of LLC "***" S. that the agreement on full financial liability dated * 2005, concluded with X. as a seller of the perfume department of the store 000 "***", applies to the entire period of work with the material assets of the enterprise entrusted to X., including food products, since there was a transfer of X. to another department, the court declared insolvent. In particular, it is indicated that there was a transfer from one department to another, and not a transfer. The plaintiff was hired as a salesperson in the perfume department. Subsequently, despite the fact that she was not familiar with the transfer order, she was actually allowed by the employer to work as a salesperson in the food products department. At the same time, attention is drawn to the fact that since * 2007, Kh.’s main place of work has been the grocery department of the LLC “***” store.
Since an agreement on full financial liability with X. as a seller of the grocery department of the store 000 "***" was not concluded, the agreement on full financial liability concluded with her as a seller of the perfume department cannot serve as a basis for engaging her as an employee, a seller of the grocery department store LLC "***", to full financial liability, therefore X. cannot be assigned the obligation to compensate for material damage caused to the employer. Moreover, an inventory of inventory items in the grocery department of the LLC "***" store was not carried out when X. was transferred from the perfume department to the grocery department; material assets - food products - were not entrusted to X. for reporting. No evidence to the contrary was presented to the court. From the case materials it follows that the inventory was carried out * 2009, a week before X. was transferred from the perfume department to the grocery department, without the participation of X. Evidence that in the period from * 2008 until the transfer of X. to the grocery department the store was closed, not represented. On the contrary, based on the explanations of witnesses K., T., it was established that the store was open during this period.
Regarding the inventory carried out in * 2008, the court indicated a violation of the procedure established by the Labor Code of the Russian Federation and Methodical instructions on the inventory of property and financial obligations, approved by Order of the Ministry of Finance of Russia dated June 13, 1995 N 49, and therefore its results cannot be taken into account.
Having examined the case materials and heard the explanations of the parties, the court came to the conclusion that the employer LLC "***" improperly fulfilled the obligation to provide appropriate conditions for storing accountable property, which, taking into account the provisions of Art. 239 of the Labor Code of the Russian Federation, excludes the financial liability of the employee.
An analysis of the above court decisions allows us to conclude that an employer who violates labor laws and attracts workers to work without concluding an employment contract can use the provisions of Art. 67 of the Labor Code of the Russian Federation for avoiding responsibility. This is facilitated not only by the small number of rules governing this institution of law, but also by the lack of unity in their interpretation by the court. An increase in the number of legal norms governing this issue can only lead to new disagreements. The most acceptable solution to this problem is to equate citizens working without an employment contract with those with whom an employment contract was concluded. Of course, following this, it will be necessary to resolve a number of issues regarding the provision of social guarantees provided for by law to employees. But the main goal is to achieve orderliness in the application of labor law in relation to workers with whom an employment contract was concluded and those who were actually allowed to work.
Sometimes situations happen when, it would seem, everything is going well - the interview was successful, you were hired, and you are coping well with your new responsibilities. But the bosses keep putting off signing the employment contract, which confuses you greatly. And rightly so, it’s confusing! After all, the relationship between employer and employee is regulated by him.
Of course, someone may be careless about his conclusion, believing that since wages are paid, then everything is fine. However, if the employer does not enter into an employment contract, then it may later turn out that pension contributions are not being made, and the time you worked will not be included in the length of service. In addition, in the event of a labor conflict, it is much easier to fire such an employee. In addition, you may not receive enough wages, and collecting it through the court without a signed agreement will be difficult or even impossible.
It is clear that in some cases the job is needed so badly that many are willing to abandon formalities just to get it. But at a minimum, you need to imagine possible consequences. In accordance with the law, a company or organization is required to enter into an employment contract with an employee. This must be done within 3 days from the moment you de facto began performing your duties. An order to hire you is issued precisely on its basis, after which the company must register you with the tax and social authorities.
If, after this period, an employment contract has not been concluded, try first to resolve this issue peacefully. Discuss this with management - perhaps the corresponding order has already been issued, but the personnel officer or accountant simply has not yet had time to draw up the agreement. However, if this is not the case, and it turns out that the company often practices this attitude towards employees, then you will have to move on to more stringent forms of resolving this issue.
First you need to write a request or complaint to the employer.. Try to register it with the secretary so that this document does not accidentally get “lost” among other papers. And if the issue is not resolved soon, you will have to contact labor inspection. Since the absence of employment contracts is a direct violation of the law, this regulatory body has the right to impose a fine on the employer and oblige him to conclude an agreement. Basically, at this stage, despite the fact that your bosses will be seriously dissatisfied with you, you still have the opportunity to keep your job and even prove yourself in the future as a good employee.
If the conflict between you and the employer has already escalated, and after working for a sufficient amount of time, you cannot receive wages, then you should contact the prosecutor’s office and the court, where you can restore legal right for registration of labor relations. It must be remembered that without a written agreement, your work activity is considered invalid. And even if you have excellent relations with your superiors and good salary, you will not be able to take advantage of the additional benefits that the contract provides. For example, no one will give you a salary certificate to obtain a loan. Therefore, it is in your interests to convince the employer of the need to conclude an employment contract.
It often happens like this: you start work, and the first thing you find out is that half of the employees do not have employment contracts, and the other ones were concluded with flagrant violations. Don't fall into despair prematurely. It is quite possible that everything is not so critical.
Of course, the Labor Code of the Russian Federation establishes a number of requirements for the preparation and conclusion of employment contracts, but the consequences of violating these requirements depend on what exactly was violated.
There is an employee, but there is no employment contract
This is an obvious violation of labor legislation, for which administrative liability is provided (see below), especially since in such a situation the employee finds himself in the most unenviable position.
An order (instruction) on hiring an employment contract will not replace an employment contract, since an employment contract is the main document regulating the relationship between an employee and an employer, and an order (instruction) on employment is issued on the basis of a concluded employment contract, and its content must comply with the conditions concluded employment contract (Part 1, Article 61 of the Labor Code of the Russian Federation). If the order (instruction) contains conditions that are not established by the employment contract, then they cannot be considered legally established and are not valid.
Conclusion: if there is no employment contract, then it must be drawn up and all the mandatory conditions provided for in Article 57 of the Labor Code of the Russian Federation, as well as other conditions that are important for the employer and employee, must be recorded in it.
The employment contract was signed... by whom?
The employment contract, as they say, is there, but whose signature is in the “Employer” column? Looks scary. If the employment contract was signed by an unauthorized person, then the employee need not be afraid of negative consequences: he started work with the knowledge or on behalf of the employer (his representative) (Part 3 of Article 16 of the Labor Code of the Russian Federation).
Missing this deadline by the administration is a violation of labor legislation and may entail administrative liability under Article 5.27 of the Code of Administrative Offenses of the Russian Federation. So the employer should still hurry up with drawing up an employment contract, which must be properly executed no later than three working days from the date the employee is actually allowed to work.
By virtue of Part 1 of Article 61 of the Labor Code of the Russian Federation, in the situation under consideration, the date of the employee’s actual admission to work with the knowledge or on behalf of the employer or his representative (the actual date of employment specified in the order) must be indicated as the start date of work.
Moreover, if we are talking about employees who were hired before February 1, 2002 (before the Labor Code of the Russian Federation came into force), then the Labor Code of the Russian Federation does not contain provisions obliging them to conclude written employment contracts with employees hired before its entry into force.
In addition, in accordance with Article 424 of the Labor Code of the Russian Federation, the provisions of the norms of the Labor Code of the Russian Federation apply to legal relations that arose after its entry into force. And if legal relations arose before the entry into force of the Labor Code of the Russian Federation, then it applies only to those rights and obligations that arise after its entry into force. That is, the provisions of the Labor Code of the Russian Federation do not have retroactive force.
So, if an employee was hired while the Labor Code of the Russian Federation was still in effect, then drawing up an employment contract in writing is not mandatory and is possible only with his written consent.
The employer is obliged to conclude employment contracts in writing only with those employees who were hired after February 1, 2002, which, of course, does not prevent the conclusion of an employment contract in writing if such employee has expressed written consent to its execution.
If the employment contract does not contain mandatory information and (or) conditions
There is an employment contract, but it doesn’t include mandatory conditions, such as:
Place of work indicating a separate structural unit and its location;
Labor function, i.e. work in a position in accordance with staffing table, profession, specialty indicating qualifications, the specific type of work assigned to the employee;
The start date of work, and in the case where a fixed-term employment contract is concluded, also its validity period and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract;
Conditions of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments);
Working hours and rest hours (if for a given employee it differs from general rules, operating with this employer);
Compensation for hard work and work with harmful and (or) dangerous conditions labor, if the employee is hired under appropriate conditions, indicating the characteristics of working conditions in the workplace;
Conditions governing necessary cases nature of the work (mobile, traveling, on the road, other nature of work);
Conditions on compulsory social insurance of the employee.
In such a situation, the employment contract should be supplemented with the missing information and (or) conditions.
Moreover, if we are talking about information (for example, full name or passport data), then they must be included directly in the employment contract.
If we are talking about the absence of a condition (for example, about a place of work), then an appendix or a separate agreement should be drawn up in which this condition will be spelled out. Both the application and the separate agreement must be signed by the parties.
If you don't have a diploma
You cannot fire someone for lack of qualifications simply because the employee does not have a diploma of special education, if it is not required by law.
When the law requires special education for a given job, and performing the work requires special knowledge in accordance with a federal law or other regulatory legal act, then the employment contract must be terminated due to a violation of the rules for its conclusion established by the Labor Code of the Russian Federation or other federal law under paragraph 11 of article 77 Labor Code of the Russian Federation.
However, termination of the employment contract in this case is carried out if it is impossible to transfer the employee with his written consent to another job available to the employer.
As a general rule, in the event of termination of an employment contract on this basis, the employer pays the employee severance pay in the amount of average monthly earnings.
Severance pay is not paid if a violation of the rules of imprisonment was committed through the fault of the employee - for example, if the employee presented a false diploma upon employment and this is confirmed by appropriate evidence:
Court decision;
Expert opinion;
Employee’s personal card (form No. T-2) with a signature confirming familiarization;
Autobiography indicating the fact of study and graduation educational institution provided to the HR department;
The original diploma and a certified copy of the diploma;
Resume indicating higher education.
Strictly speaking, even the presence of a fake diploma is not an unconditional basis for dismissal. Article 81 of the Labor Code of the Russian Federation says this: “An employment contract can be terminated by the employer.” So if the employer is happy with the employee, then there is no need to fire him.
Violation excludes the possibility of continuing work
It’s another matter if there is a violation that precludes the possibility of continuing work.
Thus, according to Article 84 of the Labor Code of the Russian Federation, an employment contract is terminated due to a violation of the rules for its conclusion established by the Labor Code of the Russian Federation or other federal law, if the violation of these rights excludes the possibility of continuing work, in the following cases:
Concluding an employment contract in violation of a court verdict depriving a specific person of the right to occupy certain positions or engage in certain activities;
Concluding an employment contract to perform work that is contraindicated for this employee for health reasons in accordance with a medical certificate issued in the manner established by federal laws and other legal acts of the Russian Federation;
Concluding an employment contract in violation of a resolution of a judge, body, official authorized to consider cases of administrative offenses, disqualification or other administrative punishment that precludes the possibility of an employee fulfilling duties under an employment contract, or concluding an employment contract in violation of the restrictions, prohibitions and requirements established by federal laws relating to the involvement in labor activities of citizens dismissed from state or municipal service;
In other cases provided for by federal laws.
If it is impossible to transfer the employee with his written consent to another position available to the employer, then the employment contract must be terminated in accordance with paragraph 11 of part one of Article 77 of the Labor Code of the Russian Federation.
If the rules for concluding an employment contract were violated through the fault of the employee himself as a result of his submission of forged documents, then the employment contract with such an employee is terminated under clause 11 of part one of Article 81 of the Labor Code of the Russian Federation, and not under clause 11 of part one of Article 77 of the Labor Code of the Russian Federation (clause 51 of the resolution Plenum Supreme Court RF dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).
Finally
And you can’t do without this if you need to convince management that employment contracts need to be concluded - liability for violations when concluding employment contracts.
Violation of labor legislation, including violation of the rules for concluding employment contracts, entails administrative liability.
According to Article 5.27 of the Code of the Russian Federation on Administrative Offenses, violation of labor and labor protection legislation entails the imposition of an administrative fine:
For officials - in the amount of 1000 to 5000 rubles;
For persons carrying out entrepreneurial activities without forming a legal entity - from 1000 to 5000 rubles. or administrative suspension of activities for up to 90 days;
For legal entities - from 30,000 to 50,000 rubles. or administrative suspension of activities for up to 90 days.
Disqualification is deprivation individual rights (clause 1 of article 3.11 of the Code of Administrative Offenses of the Russian Federation):
Replace positions in the federal state civil service, positions in the state civil service of a constituent entity of the Russian Federation, positions in the municipal service;
Hold positions in the executive management body of a legal entity;
Be a member of the board of directors (supervisory board);
Carry out business management activities legal entity;
Manage a legal entity in other cases provided for by the legislation of the Russian Federation;
Carry out activities to provide state and municipal services or activities in the field of training athletes (including their medical support) and organizing and holding sporting events.
Margarita POLUBOYARINOVA, expert at Your Reliable Partner LLC
The Labor Code of the Russian Federation is initially focused on maintaining the stability of existing relationships, and in most cases the consequences of incorrect drafting and concluding an employment contract are not so critical.
If an employee is allowed to work before an employment contract is drawn up with him, the start date of work and the date of conclusion of the employment contract will be different (Articles 16, 61, 67 of the Labor Code of the Russian Federation).
Even having a fake diploma is not an absolute reason for dismissal. Article 81 of the Labor Code of the Russian Federation says this: “An employment contract can be terminated by the employer.” So if the employer is happy with the employee, then there is no need to fire him.
Violation of labor and labor protection legislation by an official who has previously been subjected to administrative punishment for a similar administrative offense entails disqualification for a period of one year to three years.
Any labor relations that arose upon the admission of an employee to perform his official duties are legitimate (legal) only in the case between the employee and the employer.
Until recently, the situation on the Russian labor market in the field of documentation of employees was not the most in the best possible way. Many employers tried (and some are still trying!) to avoid concluding contracts.
Thus, in 2014, every fifth working citizen received workplace without official employment, which caused a tightening in the order of imposition of those who committed such violations. In 2016, they face significant, and in some cases even criminal prosecution.
The concept of “labor contract” first appeared in the labor legislation of the Soviet Union (Law No. 1529-1), and in 1992 this term was recognized as synonymous with the corresponding agreement concluded between employees and employers.
In modern Labor Code All references to the word "contract" have been replaced by "", although the old definition still appears in certain articles.
Currently, the procedure for concluding contracts and their termination is regulated by the provisions of Federal Law No. 197, adopted in December 2001 and amended in July 2016.
Penalties for violations in the execution of contracts or in their absence are imposed in accordance with the Code of Administrative Offenses (article number 5.27). And article number 19.5 of the mentioned Code allows the representative of the labor inspectorate to record facts of violation when missing documents are discovered.
The main reason for imposing fines on the heads of organizations, enterprises and institutions is the deprivation of the employee of all social guarantees and additional compensation provided for by labor legislation.
Benefit for employers
The absence of a contract regulating labor relations allows employers to avoid the liability imposed by this document.
The main benefit for the organization (enterprise) and management is: 
- in the absence of responsibility for;
- in the ability to appoint, which will be smaller in size from the minimum established by the government ();
- the possibility of not including the employee in the staff (such an employee is automatically deprived of the protection of the trade union organization, since it actually does not know about his existence);
- the opportunity to refuse to an employee payment for vacation days, compensation for transportation expenses for, in;
- there is no need to ensure decent working conditions in the workplace;
- the ability not to deduct for the employee insurance premiums to the Pension and Insurance Fund.
In addition, the employer may dismiss such an employee on his own initiative without good reason or without giving notice.
The employee does not actually exist in this enterprise or organization! But his rights and obligations are not documented (theoretically, the employer does not violate anything).
Types of liability
The conclusion of an agreement allows the employee: 
- receive your monthly salary on time;
- apply for a full social package (for days off, for overtime pay, for compensation for periods of sick leave, for business trips and payment);
- obtain the insurance (pension) length of service necessary for calculating pension payments;
- receive medical and insurance coverage (the employer contributes
- certain amounts to the corresponding funds).
The employee will be deprived of all the listed guarantees if the contract is not signed.
According to the Code of Administrative Offenses (article number 5.27), a fine is paid for each illegally employed citizen:
- up to 20,000 rubles are paid by the head of an organization or enterprise who committed violations during the employment process;
- up to 100,000 rubles are paid by organizations, enterprises and institutions (individuals).
In addition, the perpetrators are subject to the obligation to compensate the injured employee for all income for the period of employment without documentation (arrears in wages, sick leave and vacation pay, bonuses and other payments required by law are eliminated).
If the instructions of a labor inspector or a judicial authority have not been fulfilled, and the fact of non-compliance is documented by the supervisory authority, the administrative penalty is increased and disqualification is added to it: 
- managers pay up to 50,000 rubles and are disqualified for a period of one to three years;
- a similar penalty is imposed on persons engaged in entrepreneurial activities;
- organizations and enterprises pay up to 200,000 rubles, and their activities may be suspended for 90 days.
Additionally, the tax authority may demand not only the payment of all due taxes, but also a penalty amount of 20% of unwithheld payments that did not reach the state treasury (Article 123 of the Tax Code).
Extra-budgetary funds may require the violator to pay contributions and a 20% fine.
And if the fact of a malicious violation was revealed, the amount of the fine will increase to 40%.
Criminal liability arises in accordance with article of the Criminal Code under number 199.1 for failure to fulfill all duties of a tax agent. If other violations were committed (for example), the issue of bringing to criminal liability is considered in each individual case, taking into account all the circumstances.
Thus, an employer who decides to save money on official employment of personnel will be held accountable not once, but several times at once.
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What should an employee do?
It is necessary to understand what threatens an employee with infringement of his rights in the event of an conflict situation, and sometimes without it.
Therefore he can: 
- Continue to work, simultaneously collecting evidence of violations for possible appeal to the courts.
- Contact the labor inspectorate or prosecutor's office with a corresponding complaint.
- Contact the local judicial authority with all previously collected documentary evidence of the employers’ guilt.
Documents confirming the absence of signs of labor relations serve as evidence of a violation.
These signs are:
- administrative orders received on behalf of the employer;
- labor activity in accordance with the regime established at the enterprise or organization;
- work activity in accordance with the existing specialty and specialization;
- a long period of labor relations, accompanied by all the necessary formal signs (for example, payment wages, bonuses and so on).
For an officially employed person, such relationships necessarily lead to the receipt of specific documents confirming activities (passes, insurance policies, orders, powers of attorney, etc.). If there are no official documents, the employee is employed unofficially and is in an illegal position.
In addition, colleagues or clients who appear in court may testify in favor of the victim. Current legislation allows the provision of any evidence: testimony, documents, video or audio files.
After hiring the employee, the employer is obliged to document the employee within three working days. If the agreement is not signed, you can submit a written request. This possibility is provided for by Article 62 of the Labor Code. The response from the HR department comes within another three days. Although, as follows from practice, such a request from an “illegal” is completely ignored. And then he has only one option left - to contact the labor inspectorate or the prosecutor's office (court).
