A new HR employee, Nina B., came to Vesna LLC. While taking over the business from her predecessor, she discovered that the head of the sales department, Margarita A., who has been working in the organization for about 20 years, was missing employment contract.
The employment contract is concluded in writing and drawn up in two copies (Article 67 of the Labor Code of the Russian Federation).
Margarita got a job at Vesna LLC in 1991 as a sales manager. At that time, the legislation did not contain rules on the mandatory execution of a written employment contract, so the manager and employee limited themselves to an oral agreement, an order for employment and an entry in the work book. In September 1992, the Labor Code introduced a strict requirement for an employment contract to be in writing. But they never signed him with Margarita - the company was worried hard times, and the employer simply forgot to formalize the relationship properly.
In 2004, the employee got married and changed her last name, and on January 11, 2005, she took the position of head of the sales department. The transfer was carried out in the same way as hiring - they prepared an order and made an entry in the work book. An additional agreement to the employment contract was not concluded, since there was no contract itself. Thus, Nina was faced with an unusual situation: it was necessary to conclude an employment contract with Margarita, but both her personal data and her job function had changed. What date should the contract be signed? What surname? How to sign an additional agreement with an employee on a transfer that was not issued in a timely manner? She decided to consult on these issues with a more experienced colleague from another company.
What to do first?
If any of the employees in your organization do not have a written employment contract, this could be a source of trouble for you. It is quite possible that this fact will be discovered during an inspection by the State Labor Inspectorate, and then the head of the company, head of the personnel department or other responsible employee will be fined for violating Article 67 Labor Code for an amount from 1000 to 5000 rubles (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).
Of course, the employment contract with Margarita should have been concluded back in 1992. And since the employer has not fulfilled this requirement to date, the situation should be corrected as soon as possible. But first, Nina, as a new employee taking over the case, must reflect the absence of an employment contract with Margarita A. in the act of acceptance and transfer of personnel documents and then write memo addressed to the general director of the organization to inform him of the results of the transfer of cases. If Nina does this, she will not be responsible to management or inspection bodies for the mistakes of the personnel officers who worked before her and ignored this situation.
We arrange it correctly
To sign an employment contract with Margarita, you must first talk to her and get her consent. Then draw up an agreement for the position for which she was hired by the company in 1991 - sales manager. It is advisable to indicate the salary received by the employee at that time. The date of the document should be set to the current one, and indicated in the text of the agreement actual start date of work, for example January 11, 1992 (see example above). You can often hear from personnel officers the opinion that it is permissible to draw up an agreement in such a situation retroactively. However, the legislation does not provide for such a possibility, so you should not use such methods for correcting errors. It would be correct to write the employee’s surname in the contract with the one that is currently indicated in her passport, because the contract is already concluded with a woman who bears a different surname. Do not forget that both copies of the agreement must be signed by both the employee and the employer. One copy remains with the employee, the other is stored in the personnel department (Article 67 of the Labor Code of the Russian Federation).
The same should be done with the additional agreement to the employment contract on transfer to the position of head of the sales department. It can be issued with the same current date, and in the text indicate the real day the changes entered into force: January 11, 2005. A new position is a new job function, so it is important in the agreement to in full reflect the changes that occurred in Margarita’s working conditions in connection with the transfer (Article 72 of the Labor Code of the Russian Federation). The agreement must also be published in two copies and signed by the parties.
Changing the terms of the employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract (Article 72 of the Labor Code of the Russian Federation).
Note that even this is quite legal way correction of an error does not exclude claims from inspectors from the State Labor Inspectorate. Indeed, according to the rules of Article 67 of the Labor Code, with an employee who has begun to perform a labor function (with the knowledge or on behalf of the employer or his representative) without a contract, it must be concluded in writing no later than three working days from the date of actual start of work. And in our case, there is a large time gap between the start date of work and the day the written document is issued. This may entail a fine for violation of labor laws (for officials - from 1000 to 5000 rubles (Article 5.27 of the Code of Administrative Offenses of the Russian Federation)).
Employment contract and new name
According to part one of Article 57 of the Labor Code, two types of information are included in the employment contract: information and conditions. To change the terms of the contract, it is necessary to conclude an additional agreement to it (Article 72 of the Labor Code of the Russian Federation). The missing conditions are determined by an appendix to the employment contract or a separate agreement of the parties, which are an integral part of the employment contract (part three of article 57 of the Labor Code of the Russian Federation). According to the mentioned norm, the missing information is entered directly into the text of the employment contract. As for changing information, nothing is said about this. But in this case it will not be an error make amendments directly to the text of the contract. To do this, you need to cross out outdated information and write new information on top.
Thus, in connection with a change in the employee’s surname, it is not necessary to conclude an additional agreement to the employment contract.
agreement. If an employee changes his last name or other personal data, the personnel officer must make appropriate amendments to the contract, certifying the new information with the signatures of the employee and the employer. The basis is an order “to amend documents containing the employee’s personal data.” Such an order is issued on the basis of a passport and registry office certificates presented by the employee to the personnel department.
An agreement is not a sentence
Nina followed the recommendations of her colleague and as soon as possible completed all the missing documents. Fortunately, Margarita treated the situation with understanding, but it often happens differently. Workers who are accustomed to working without contracts do not agree to conclude them, believing that this will somehow limit their freedom in relations with the administration. In this case, there is only one piece of advice: to convince the employee that a written employment contract, on the contrary, serves as a guarantee of strict observance of his rights, makes labor Relations more transparent and allows the parties to more easily agree on improved working conditions. If the employee categorically refuses to enter into an agreement, we recommend drawing up a statement about this.
To avoid the situation we described, we recommend periodically auditing personnel documentation. This will allow HR to identify and correct such errors in a timely manner.
And how are you?
We asked employers: do you have employees in your organization who work without written employment contracts?
Ksenia Pavlovna, HR specialist, commercial kindergarten(Saint Petersburg):
– We have a newly created organization, and all employees have employment contracts. In order not to forget about this, we keep a log of employment contracts, where we enter the date of conclusion of the contract, its number and ask the employee to sign for receipt of his copy.
Svetlana, HR manager, consulting company (Volzhsky):
– A couple of years ago, we accidentally discovered that three employees (the first persons of the company who have worked since its founding) did not have written employment contracts. We signed contracts with two of them on the current date, but one employee refused - no arguments helped. I had to draw up an act of refusal to conclude an employment contract. We hope that this will remove responsibility from the personnel service in the event of an inspection by the State Labor Inspectorate.
Yulia, HR inspector, organization retail(Perm):
- At one time our CEO delayed the signing of employment contracts - they could have been lying on his desk
for weeks. The workers asked why they were working without a contract, were indignant, and threatened to complain. Then we wrote
a memo to the director with a request to speed up this process. Now the terms for concluding employment contracts are within the framework of the law.
Olga GUREVSKAYA, leading specialist of the personnel department of Sigma LLC, OMNI group of companies (Angarsk, Irkutsk region)
How to act. The young man was hired, but an employment contract and employment order were not drawn up, although official employment was discussed at the interview. After a month and a half, the young man left this job. The final settlement with him was not made on time, then they paid a certain amount, but still not in full. A complaint was sent to the prosecutor's office and at the same time contacted labor inspection. TI refused to accept the complaint. justifying his refusal by the fact that there was no official hiring. Are TI's actions legal? And is it necessary to also complain about TI?
Answer
Answer to the question:
Labor relations can arise without. An agreement that is not drawn up in writing is considered concluded if the newcomer actually began work with the knowledge or on behalf of the employer or his authorized representative ().
The authority to admit newcomers to work can be enshrined in job descriptions (employment contracts) of responsible employees or in a separate local act - an order of the employer.
The Labor Code of the Russian Federation does not provide for special documentation of the actual admission of a newcomer to work. Admission will be confirmed with the date of actual start of work and the work performed by the employee (labor activity). At the same time, if necessary, the employer can draw up additional document in any form about the admission of a newcomer - a memorandum, agreement, etc. Such a preliminary document is necessary if the employer plans to install an employee. If the condition of the test is not previously recorded in the document, then include it in the employment contract already ().
Attention: if a newcomer was allowed to work by an unauthorized employee of the organization and the employer refuses to conclude an employment contract, then the employer is obliged to pay the newcomer for the time he actually worked and the work he performed (). At the same time, the employer who has carried out unlawful admission can be brought to justice, and the regulatory authorities - to (, Labor Code of the Russian Federation, Part and Article 5.27 of the Code of Administrative Offenses of the Russian Federation).
2. Answer:During what period can an employee file a lawsuit against the organization if the employer has violated his rights? For example, illegally fired or failed to pay compensation due upon dismissal
Ivan Shklovets, Deputy Head Federal service on labor and employment
To protect his right, an employee can go to court 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 of delivery to him of a copy of the order of dismissal or issuance work book ().
So, for example, three month period appealing the illegal, in the opinion of the employee, order to impose a disciplinary sanction dated March 4, 2011 expired on June 4, 2011, and in the case of appealing the dismissal order dated January 23, 2007, which the employee was familiarized with on January 24, 2007, the one-month period for appealing the grounds the layoffs expired on February 24, 2007.
The three-month period for non-payment of wages begins to run from the day the employee was supposed to be paid. For example, the payday is April 5, 2015, then the three-month period expired on July 5, 2015.
The legitimacy of this position is also confirmed by the courts, see, for example, the appellate rulings of the Murmansk Regional Court, the rulings of the Moscow City Court,.
If an employee decides to challenge the basis on which he was dealt with, and such disputes, as a rule, arise only at the end of the contract, then the employee has three months from the date of conclusion of the fixed-term contract, and not from the date of his dismissal, to appeal the reason itself. The courts also point to this, see, for example,.
If these deadlines are missed for valid reasons, for example, the illness of the employee himself or a family member who required care, the employee being on a business trip, force majeure circumstances, etc., they can be restored by the court (,). This position is reflected in practice, see, for example,.
If the employee misses the deadline for going to court without good reason, the employer can win the case only on this basis. The legitimacy of this position is also confirmed by the courts, see, for example,.
It should be noted that an employee’s ignorance of the law regarding the benefits and compensation entitled to him is not a valid reason for missing the deadline for filing a claim if it later turns out that the employee’s rights were violated. An employee can freely learn about violations of his rights from regulations that are in the public domain. In this regard, the period begins not from the moment the employee actually familiarizes himself with the document where benefits and compensation are stated, but from the moment when he could learn about such benefits and compensation and conclude that the employer is violating his rights. The legitimacy of this position is confirmed by arbitrage practice. If an employee was entitled to compensation, which he learned about during work or after dismissal (for example, from former colleagues), then the period should be calculated not from the moment when the employee actually learned about the existence of his right to compensation, but from the moment when he could find out about this from an officially published document establishing compensation in open information sources (see, for example, ).
3. Magazine: Personnel file, no.
Document flow / Samples and comments
Actual permission to work: important changes
Do labor relations arise if a person is allowed to work by an authorized person?
Yes, they do arise.
Is it possible to bring an employee to disciplinary liability for allowing him to work without the employer’s knowledge?
Yes, you can.
Does an employee have to work two weeks if he decides to quit the day after being allowed to work?
Yes, I should.
On January 1 of this year, changes to the Labor Code regarding admission to work came into force, in particular, it specifies who has the right to admit individuals to work, what are the consequences of actual admission to work by an unauthorized person ().
You can also empower an employee by issuing an order. Indicate in the order the new rights of the representative and familiarize him with the administrative document (sample below). Since this function will be new for such an employee, it is necessary to obtain his consent.
Advice
If you want to establish a probationary period for an employee, enter into an employment contract with a probationary clause until the employee is actually admitted to work (part two of Article 70 of the Labor Code of the Russian Federation)
If a person begins to perform job responsibilities with the knowledge or on behalf of the employer or his authorized representative, an employment contract with a citizen is considered to have already been concluded, even if it is not drawn up in writing (). From the moment of admission to work, the employee acquires all rights and obligations provided for by labor legislation. An employment contract must be drawn up in writing within three working days from the day the employee was actually allowed to work. In this case, the employment contract must indicate the start date of work, that is, the date of actual admission to work ()
The Labor Code now expressly provides that actual admission to work without the knowledge or instructions of the employer or his authorized representative is prohibited ().
We issue actual permission to work
To formalize an employment relationship with a person admitted to work, an authorized representative of the employer must draw up a memorandum on admission to work addressed to the person responsible for processing the employment (for example, the head of the personnel department). It is also advisable to notify the accounting department about the actual admission of the employee to work. The memorandum is drawn up in any form indicating the full name. new employee and actual start date (sample below).
Based on the specified memorandum, an employment contract is concluded with the new employee and an employment order is issued according to the unified form No. T-1 or another sample accepted in the organization (sample below)
Confirmation of actual permission to work
How can an employee prove that he was actually allowed to work if an employment contract was not concluded with him and an employment order was not issued? There is a lot of evidence that an employee can resort to if a dispute arises.
In the "Personnel Documents" section
you will find samples: employment contract (help..site/vk/item6568), entry in the work book (help..site/vk/item6330)
If the employee worked with documents, evidence will be that he has copies of documents or reports that he prepared for the employer. Perhaps the employee will be able to provide registration numbers and names of documents that he prepared for the employer, written instructions or resolutions of the manager addressed to the employee.
If an employee, in the course of his activities, manufactured certain products, the numbers or codes of the parts that he manufactured may serve as evidence.
The most difficult thing is to prove the fact of performing work that is not related to material production. This work is performed by consultants, sales representatives, etc. They can prove the work was performed in the interests of the employer by presenting photographs or videos from the workplace. Today, almost any phone has photo and video capabilities. You can also use video surveillance installed by the employer. If an employee declares in court that the employer has video surveillance, the court has the right to request from the employer a video recording for those days when the employee worked without formalizing an employment relationship.
Attention!
The burden of proving the existence of an employment relationship upon actual admission to work lies with the employee (cassation ruling of the Nizhny Novgorod Regional Court dated December 27, 2011 No. 33-12786/2011)
In addition, employees are often given a pass to enter the employer’s territory and may be given uniforms containing elements corporate identity employer. Perhaps the employee received equipment or keys for which he signed in the employer’s documents
Evidence may include confirmation by colleagues (witness testimony) of the fact that the employee is on the employer’s premises and performing work for the employer (cassation ruling of the Krasnoyarsk Regional Court dated January 11, 2012 No. 33-77). The presence of the above evidence will help the employee prove in court that he was actually allowed to work and performed work for the employer without concluding an employment contract.
Payment for work performed upon actual admission by an unauthorized person
Changes to the Labor Code provide that if an employer refuses to formalize an employment relationship with a citizen who has been allowed to work by an unauthorized person, the employer is obliged to pay the employee (). Payment is made for the time actually worked or work performed.
However, the law does not establish the amount of remuneration without formalizing an employment relationship. The employer can pay for the work based on the salary of the position in which the person admitted to work actually worked.
In any case, the wage must be no less than the federal or regional one (if the organization has joined the regional tripartite agreement on the minimum wage) minimum size remuneration calculated in proportion to time worked (Article , Labor Code of the Russian Federation). Please note that if the employee does not agree with the amount of payment for his work, he can go to court.
Advice
Pay for the actual work performed based on the regional minimum wage
Responsibility for allowing a person to work without formalizing an employment relationship
Responsibility for allowing a person to work without formalizing an employment relationship may be borne by the employer, his authorized representative, as well as the employee who allowed the individual to work without being authorized by the employer.
If an employer has not drawn up a written employment contract within three days, he may be held administratively liable for violating labor laws. In this case, officials face an administrative fine in the amount of 1,000 to 5,000 rubles, legal entities - from 30,000 to 50,000 rubles or administrative suspension of activities for up to 90 days ().
Attention!
From menstruation wages an employee can be retained no more than 20 percent (part one of Article 138 of the Labor Code of the Russian Federation)
Bringing an employer to administrative liability does not relieve him of the obligation to draw up an employment contract with an employee in writing. An unauthorized employee who allowed a person to work without formalizing an employment relationship may be held liable by the employer, including financial liability, if the employer does not recognize the employment relationship ().
The rules for bringing an employee to financial liability are provided for in the Labor Code. The employee must compensate the employer for the damage caused to him in connection with unlawful actions. In this case, the amount of damages to be compensated should not exceed the average monthly earnings of the guilty employee ().
The employer is obliged to find out the causes of the damage. To do this, you must request written explanations from the employee. If the employee refuses to give an explanation, a corresponding act must be drawn up ().
If the amount of damage does not exceed the employee’s average monthly earnings, the damage caused can be recovered from the employee by order of the employer. This must be done no later than one month from the date of final determination of the amount of damage ().
Also, the tortfeasor can compensate for the damage voluntarily. If the guilty employee has agreed to voluntarily compensate for the damage caused, he must submit a written undertaking to the employer.
If the month period from the date of final determination of the amount of damage has expired or the employee does not agree to voluntarily compensate for the damage, the amount of which exceeds his average monthly earnings, the employer must go to court to recover damages ().
Also, an unauthorized employee may be subject to other types of liability - disciplinary or administrative. In particular, an administrative fine in the amount of 1000-5000 rubles () may be imposed on officials for violating labor legislation.
Remember the main thing
Note the experts who took part in the preparation of the material:
Tatiana VASILYEVA,
lawyer, leading expert of the magazine “Personnel Business”:
- The employer or his authorized representative has the right to allow a person to work. The employer must specifically authorize its representative to allow new employees to work. Actual admission to work without the knowledge or instructions of the employer or his authorized representative is prohibited ().
Margarita ERMOLAEVA,
lawyer, consultant, independent expert (Moscow):
When allowing someone to work as an unauthorized employee, the employer is obliged to pay for the work of the person actually admitted. Payment is made for time worked or work performed. In this case, an unauthorized employee may be held liable by the employer, including financial liability.
Related documents
| Document | Will help you |
| Federal Law of December 28, 2013 No. 421-FZ “On Amendments to Certain Legislative Acts” Russian Federation in connection with the adoption of the Federal Law “On Special Assessment of Working Conditions” (hereinafter referred to as Law No. 421-FZ) | Find out what changes regarding the actual admission of workers to work have been made to the Labor Code |
| Articles, Labor Code of the Russian Federation | Remember the requirements for the content and form of an employment contract |
| Code of Administrative Offenses of the Russian Federation | Learn about liability for violation of labor laws |
The material was prepared by Irina PODLESNYKH, Head of the Human Resources Department of Quality Supervision Agency CJSC (Moscow)
With respect and wishes for comfortable work, Yulia Meskhia,
HR System expert
Rarely, when filling out documents and concluding contracts, a person carefully checks the text for the presence of possible errors and pitfalls.
As a rule, we check the “papers” on the run, glancing briefly at the beginning and ending, and hoping for the integrity of the other side. For which we then pay with our nerves and “rubles”.
Types of employment contract with an employee - how do they differ?
According to the law, the employee-employer relationship must be formalized by certain documents. Namely, an employment contract, according to which (Article 56 of the Labor Code) the employee must perform his labor functions and comply with the rules of the organization, and the employer must pay him his salary without delay and in full.
That is, employment contract- This important document, clearly defining the rights and obligations of both parties.
What an employment contract can be in practice and according to law:
- Civil law. This version of the contract takes place when the manager is “backed up”. It is concluded for the provision of specific services in order to easily fire an employee in a “you are not suitable for us” situation. If the employee manages to prove himself, they move on to an employment contract.
- Urgent. IN in this case The contract secures the employee’s work for a certain, very specific period, and not indefinitely. And after its completion, management can legally dismiss the employee. Or rehire him by issuing a dismissal order and concluding a contract again. True, the employer must have good reasons for concluding such an agreement. Otherwise, these actions will be considered illegal.
- Labor. The most common type of contract, which involves indefinite work under certain conditions specified in the document. This agreement, drawn up in writing, is a guarantee of respect for the employee’s rights.
Labor or civil law - differences in contracts:
- TD is work in a specific position according to existing qualifications. GPA is the implementation of certain tasks with an end result.
- According to TD - salary in the amount specified in the document, according to GPA - remuneration.
- With TD, the work is carried out personally by the employee; with GPA, only the final result is usually important.
- Failure to fulfill duties under TD may result in discipline, reprimand or dismissal. Failure to comply with civil regulations is already a matter of civil liability.
Important points when concluding an employment contract - how to prevent mistakes and deception by the employer?
Found a new job? Is the signing of an employment contract approaching?
Let's study the pitfalls to protect ourselves from mistakes and unscrupulous employers!
So, you are required to sign an employment contract within 3 days maximum from the moment you start work. Moreover, in 3 copies and in handwritten form.
And - regardless, whether you were invited by transfer from another place of work, whether you have small children, and whether you have registration at your place of residence.
If they don’t sign a contract with you, think about whether it’s worth continuing to work. After all, TD is a guarantee of your rights.
But don’t rush to sign an agreement without looking at it either!
First, read it carefully and pay attention to the most important points:
- Compliance of the order and the contract. When the employer includes important clauses in the contract, they are also included in the order to hire you. And the primary one (note - in controversial situations) will always be the employment contract. Therefore, ensure that these 2 documents correspond to each other. Let the information in the order be in an abbreviated version, but it must fully reflect the conditions specified in the contract. Any inconsistencies (note: provisions in the order that are not specified in the contract) have no legal force.
- Probation. It must be specified in the contract. Maximum period – 3 months. In the absence of this clause, the employee is considered hired without probationary period and, accordingly, they have no right to dismiss him later, as he has not completed this period.
- Specific place of work. If it is not clearly defined by the employer in the contract, then it will be extremely difficult to fire an employee for “absenteeism” - after all workplace not specified. That is, if you are fired for absenteeism, in the absence of this clause in the employer’s contract, the employer will be obliged through the court to reinstate you at work.
- Responsibilities. They must also be spelled out clearly and specifically. Otherwise, the employer simply does not have the right to demand that the employee perform certain tasks “in accordance with the contract.” The employee can safely declare that the work that he is required to perform is not included in the scope of his duties. And it is also impossible to fire an employee for failure to complete tasks not included in the contract.
- Salary limit. It must also be stated in the contract. And if this maximum limit is underestimated, the employee can safely go to court. It is worth noting that your bosses should notify you of all changes in your pay only in writing and a couple of months before the change itself. One cannot fail to mention payment in kind. It happens that instead of a salary, employees are given products produced by the company. This “method”, alas, has not yet become obsolete. It is considered legal if “in kind” does not exceed 20% of the salary, and is also suitable for consumption (use) of the employee and his family.
- Rules. Before concluding a contract, your management must familiarize you (exclusively against signature) with the company’s internal labor regulations and other acts/regulations that are directly relevant to you.
- Contents of the agreement. Read the document carefully! It should contain not only your place of work and position, but also a list of responsibilities, payment terms (including all bonuses with allowances) and the issue of social insurance, the start date of work. Additional conditions may also be specified: rest/work schedule (if it does not coincide with the regime of other employees), the issue of compensation for “harmful work”, special conditions(business trips, etc.).
- Responsibilities. Demand that they be spelled out clearly and in as much detail as possible. That is, the position itself, the specific type of work and the department itself in which the work is expected. If the contract states that you will fulfill your duties, “according to job description", then ask for instructions - they must be attached to the contract with your signature (note - a copy is kept in your hands).
- Social insurance. Important point of the contract! And the information from this paragraph must be entered in accordance with federal laws. This clause is a guarantee of compensation for damage in the event of a force majeure situation, as well as temporary disability, maternity, etc.
- Recycling. The contract must specify the exact number of working hours. And when overworked, you will be paid for the extra time worked in 1.5 or double the amount.
And finally, it’s worth reminding that the agreement is signed only by the director and only in your presence, and the name of the company appearing in the papers must be the same everywhere.
Duration of an employment contract – what should you pay attention to?
When hiring, a contract is concluded for a specific or indefinite period, depending on the job.
- Classic contract (for an indefinite period). In this case, the period for which you are hired is not specified or specified at all. That is, you are hired on a permanent basis, and termination of the employment relationship is possible only in accordance with the procedure established by law.
- Fixed-term contract. An option when you are hired for a period agreed upon by 2 parties to complete certain work. The maximum period is 5 years. In addition to the validity period, this agreement indicates the reasons for not concluding a regular contract (they are approved by law, and the employer has no right to expand the list of reasons). This contract is terminated upon expiration of its validity period by giving the employee at least 3 days written notice. In the event that the contract term has expired and the employee is still working, the contract automatically becomes “indefinite”.
It is worth noting that fixed-term contracts are divided, in turn, into...
- A contract with an absolutely definite duration. This type of agreement is applicable when a person is elected to a certain elective position. In particular, with governors, rectors, etc.
- A contract with a relatively specific duration. The case for persons admitted to a temporary organization created for specific work and for a specific period. Termination of the contract occurs after the end of the organization's existence.
- Conditional fixed-term contract. An option for the case when an employee is needed only temporarily - as a replacement for an employee who is temporarily absent for specific reasons (business trip, maternity leave etc.).
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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 the general rules in force for a given 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.
By general rule in case of termination of the 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 related to attracting labor activity 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 Offences, 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 activity without forming a legal entity - from 1000 to 5000 rubles. or administrative suspension of activities for up to 90 days;
On 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 entrepreneurial activities to manage a 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 to three years.
Good afternoon. I quit my job, didn’t receive a paycheck, received my work book after 20 days (the employer refused to give it back until I signed for the salary, which I didn’t receive). I contacted the labor inspectorate with a statement that my salary was not paid immediately. I got another job, because at my previous workplace they did not give me documents, and I was not officially employed at the new place. My former employer received a call from the labor office and threats began that if I did not withdraw the application, the accountant would write a counter-statement to my current employer stating that I worked unofficially, after which a fine would be imposed on him. I apologize for the chaotic letter, but I would like to know what the consequences might be?
Hello, Natalia.
Your new employer could conclude an employment contract with you without a work book confirming the insurance work experience, and after providing it, enter the necessary information into the personnel and accounting database.
For failure to conclude an employment contract with you, the employer may be held liable under Article 5.27 of the Code of the Russian Federation on Administrative Offences:
Article 5.27. Violation of labor legislation and other regulatory legal acts containing standards labor law
- 1. Violation of labor legislation and other regulatory legal acts containing labor law norms, unless otherwise provided by parts 2 and 3 of this article and article 5.27.1 of this Code, -
entails a warning or the imposition of an administrative fine on officials in the amount of one thousand to five thousand rubles; for persons carrying out entrepreneurial activities without forming a legal entity - from one thousand to five thousand rubles; for legal entities - from thirty thousand to fifty thousand rubles.
2. Actual admission to work by a person not authorized to do so by the employer, in the event that the employer or his authorized representative refuses to recognize the relationship that has arisen between the person actually admitted to work and this employer as labor relations (does not conclude with the person actually admitted to work, employment contract), -
entails the imposition of an administrative fine on citizens in the amount of three thousand to five thousand rubles; for officials - from ten thousand to twenty thousand rubles.
3. Evasion or improper execution of an employment contract or the conclusion of a civil contract that actually regulates labor relations between an employee and an employer -
shall entail the imposition of an administrative fine on officials in the amount of ten thousand to twenty thousand rubles; for persons carrying out entrepreneurial activities without forming a legal entity - from five thousand to ten thousand rubles; for legal entities - from fifty thousand to one hundred thousand rubles.
4. Commitment of an administrative offense provided for in Part 1 of this article by a person who was previously subjected to administrative punishment for a similar administrative offense -
shall entail the imposition of an administrative fine on officials in the amount of ten thousand to twenty thousand rubles or disqualification for a period of one to three years; for persons carrying out entrepreneurial activities without forming a legal entity - from ten thousand to twenty thousand rubles; for legal entities - from fifty thousand to seventy thousand rubles.
5. Commitment of administrative offenses provided for by part 2 or 3 of this article by a person who was previously subjected to administrative punishment for a similar administrative offense -
entails the imposition of an administrative fine on citizens in the amount of five thousand rubles; for officials - disqualification for a period of one to three years; for persons carrying out entrepreneurial activities without forming a legal entity - from thirty thousand to forty thousand rubles; for legal entities - from one hundred thousand to two hundred thousand rubles.
