The Supreme Court summarized the practice of considering disputes on the conclusion of employment contracts

The Presidium of the Supreme Court approved the Review of the practice of considering cases by courts on disputes related to the conclusion of an employment contract. It included 22 legal positions of both the Supreme Court itself and various courts of general jurisdiction.

In the first paragraph of the Review, it is indicated that the refusal of the employer to hire a citizen for work without giving reasons violates the requirements of Part 1 of Art. 64 of the Labor Code, which prohibits an unreasonable refusal to conclude an employment contract, and therefore is illegal.

So, according to the materials of the Kostroma Regional Court, K. submitted all the necessary documents to the employer, including a positive reference from his previous place of work, but the defendant refused to find employment without explaining the reasons. Due to the fact that no official document on the refusal was issued, K. turned to the transport prosecutor's office, which revealed the fact of illegal refusal of employment. The prosecutor made a submission to the head of the structural unit of the company, but it was not executed.

Subsequently, the court of first instance, referring to the fact that the employer had negative information about K. from his previous place of work, noted that the employer independently, under his own responsibility, makes personnel decisions, including recruitment, and the conclusion of the transport prosecutor's office on the groundlessness of the refusal in accepting K. for work has no legal significance for the court.

Satisfying the claims of K. to declare illegal the refusal to hire him, the court of appeal referred to Art. 64 of the Labor Code of the Russian Federation and clarifications on its application contained in paragraph 10 of the Decree of the Plenum of the Supreme Court of March 17, 2004 No. 2, as well as the provisions of the local regulatory act of the employer on the procedure for hiring employees of locomotive crews. The court took into account the fact that K. underwent a mandatory preliminary medical examination, a psychiatric examination, a psychophysiological examination for employment at the direction of the employer, the provision of K. to the employer with all the necessary documents for employment and came to the conclusion that the employment procedure was agreed upon by the parties, however, the employer refused without giving reasons.

The appeal rejected the reference of the first instance that the employee of the personnel department of the employer received negative information about K. from the previous place of work, as unconfirmed, since the case file contains a positive reference to K., issued from the previous place of work. In addition, during the prosecutor's check of the employer, it was established that, in violation of Art. 64 of the Labor Code K. was unreasonably denied employment, in connection with which a specialist in personnel and social issues was brought to disciplinary responsibility. The appeal ruled that the employer's refusal to hire K. was unlawful.

In paragraph 2, the Supreme Court indicated that the guarantees established by labor legislation for job seekers about the inadmissibility of refusing to conclude an employment contract for circumstances not related to the business qualities of the employee apply, among other things, to persons working for the employer part-time and who have expressed a desire conclude an employment contract with this employer for the position held as at the place of the main job (Determination of the Supreme Court of March 15, 2021 No. 33-KG20-7-K3).

The third paragraph cites the practice of the Moscow City Court, according to which the refusal to conclude an employment contract with a woman for reasons related to pregnancy is discriminatory and must be recognized on the basis of Part 3 of Art. 64 of the Labor Code illegal.

Paragraph 4 of the Review notes that the guarantee established by labor legislation on the prohibition to refuse to conclude an employment contract for women for reasons related to pregnancy also applies to women entering the civil service (Determination of the Supreme Court of May 27, 2019 No. 5 -KG19-54).

Based on paragraph 5 of the review, the failure by an employer with a disabled person to conclude an employment contract for a vacant position at a quota job due to circumstances not related to his business qualities indicates discrimination against him in employment and violates his right to work (Definition of the Supreme Court of 22 July 2019 No. 5-KG19-71).

It follows from paragraph 6 that the refusal of the employer to conclude an employment contract with a disabled person sent for employment by the employment service to a quota special workplace, due to the impossibility of creating such a workplace, cannot be recognized as legal, since it is the employer who is obliged to allocate and creation of special workplaces, equipped taking into account the impaired functions of the disabled person’s body and restrictions on his life activity in accordance with the basic requirements for such equipment (Determination of September 30, 2019 No. 33-KG19-6).

According to paragraph 7 of the Review, if the court, when resolving the dispute, establishes that the employer refused to hire due to circumstances related to the business qualities of this employee, such a refusal is recognized as justified.

Thus, following the review by the employer of U.'s resume, he was denied employment for the position of the head of the trade sector of the company due to the inconsistency of his business qualities with the requirements provided for the vacancy "Head of the trade sector" and the job description for this position. W. went to court, but the court, with reference to Art. 64 of the Labor Code and clarifications of clause 10 of the Decree of the Plenum of the Supreme Court of March 17, 2004 No. 2 concluded that the employer’s refusal to hire U. for the position of “head of the trade sector” was justified, since he did not meet the requirements of the vacancy.

The appeal additionally noted that the requirements for the candidate were confirmed by those submitted by the employer and evaluated by the court of first instance in accordance with Art. 67 CPC evidence and upheld the decision of the first instance in force. The cassation recognized the conclusions of the lower courts as based on the correct application of the norms of substantive and procedural law and left the court decisions unchanged (based on the case law of the First Cassation Court of General Jurisdiction).

According to clause 8 of the Review, a citizen who occupied a state civil service position included in the list of positions established by the regulatory legal acts of the Russian Federation, within two years after dismissal from this service, has the right to conclude an employment contract with an organization (employer) in respect of which he performed certain functions public administration, only with the consent of the relevant commission on compliance with the requirements for official conduct of civil servants and the settlement of conflicts of interest. The refusal of this commission to give consent to a former civil servant to conclude an employment contract with an organization can be appealed to the court (based on the case law of the Third Court of Cassation of General Jurisdiction).

In paragraph 9, the Supreme Court cited the practice of the Seventh Court of Cassation of General Jurisdiction, according to which the repeated conclusion by an employer of employment contracts with an employee for employment in the same position with the establishment of a probationary period condition in each new contract violates the labor rights of the employee and deprives him of the guarantee to limit the duration of the probationary period, established h. 5 Article. 70 TK.

Based on paragraph 10 of the Review, in the event that an employee was allowed to perform work without an employment contract and a separate agreement on a probationary period, he is considered to be hired without probation (based on the case law of the Third Court of Cassation of General Jurisdiction).

Further, the Supreme Court noted that the limited period of validity of contracts for the provision of paid services concluded by the employer with third parties in accordance with its statutory activities cannot serve as a sufficient legal basis for the employer to conclude, in order to secure obligations under these contracts with employees, fixed-term employment contracts and their subsequent dismissal. due to the expiration of the specified employment contracts (Determination of the Supreme Court of June 28, 2021 in case No. 43-KG21-2-K6).

Clause 12 states that if the court, when resolving a dispute on the legality of concluding a fixed-term employment contract, establishes that it was concluded by the employee involuntarily, then the rules on an employment contract concluded for an indefinite period should be applied to such an agreement (Determination of the Supreme Court of November 8, 2021 . in case No. 67-KG21-13-K8).

According to paragraph 13, when establishing during the trial the fact that the employer repeatedly concluded fixed-term employment contracts with an employee for a short period to perform the same labor function, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period (Determination of the Supreme Court of July 19 2021 in case No. 85-KGPR21-1-K1).

The Review includes the legal position of the Omsk Regional Court, based on which, if the labor function of an employee under a fixed-term employment contract for the performance of seasonal work does not correspond to the seasonal nature of the work, then such an employment contract is considered concluded for an indefinite period.

In paragraph 15, the Supreme Court indicated that the obligation to conclude an employment contract in writing is assigned by law to the employer. An employment contract that is not executed in writing is considered concluded if the employee has started work with the knowledge or on behalf of the employer or his authorized representative. In this case, the employer’s failure to draw up an employment contract in writing within the prescribed period, contrary to the employee’s intention to draw up an employment contract, may be regarded by the court as an abuse by the employer of the right to conclude an employment contract (Determination of the Supreme Court of April 13, 2020 No. 9-KG20-1 ).

According to paragraph 16 of the Review, if an employee with whom an employment contract has not been drawn up in writing has started work and performs it with the knowledge or on behalf of the employer or his representative and in the interests of the employer, under his control and management, then the existence of an employment relationship with such the employee is presumed and the employment contract with him is considered concluded. In this regard, the employer must provide evidence of the absence of an employment relationship (Determination of the Supreme Court of September 30, 2019 No. 3-KG19-4).

The Supreme Court noted that when resolving the issue of whether there were labor relations between the parties, the court has the right to accept any means of proof provided for by procedural legislation (Determination of November 9, 2020 No. 78-KG20-27-K3).

Clause 19 states that it is not allowed to conclude civil law contracts that actually regulate labor relations. If a civil law contract is concluded between the parties, however, during the trial it will be established that this contract actually regulates labor relations between the employee and the employer, the provisions of labor legislation and other acts containing labor law norms should be applied to such relations. At the same time, fatal doubts when considering by the court disputes on the recognition of relations arising on the basis of a civil law contract as labor relations are interpreted in favor of the existence of labor relations (Determination of the Supreme Court of November 8, 2021 No. 18-KG21-100-K4).

Based on paragraph 19, the failure to draw up an employment contract in writing by the employer, who actually allowed the employee to work, violates the fundamental right to work and related social and labor rights (to fair wages, to rest, to social security), which is the basis to recover from the employer in favor of the employee compensation for non-pecuniary damage. The amount of this compensation should be determined based, among other things, on the significance for the employee of the rights violated by the employer, the volume and nature of such violations, the degree of employer’s fault (Determination of the Supreme Court of June 29, 2020 No. 15-KG20-2-K1).

The Supreme Court included in the Review the practice of the Supreme Court of the Republic of Tatarstan, according to which claims for recognition of relations arising on the basis of a civil law contract as labor relations can be brought to the court of the plaintiff's choice, including at the place of performance of obligations under the contract.

In paragraph 21 of the Review, it is indicated that the dispute on the claim for the establishment of the fact of labor relations belongs to the category of labor disputes, in connection with which the plaintiff in this claim is exempted from paying court costs, regardless of the results of the consideration of the case by the court (Determination of the Supreme Court of July 15, 2019 No. 75-KG19-3).

The document ends with the practice of the Second Court of Cassation of General Jurisdiction, according to which the issue of the plaintiff missing the deadline for applying to the court with a claim for the protection of labor rights can be resolved by the court only if this is declared by the defendant.

Marina Nagornaya advgazeta.ru