Wage disputes jurisprudence

Lack of supporting documents for business transactions.

All business transactions carried out by the organization must be documented by supporting documents. In particular, for the calculation and payment of wages through the cash desk of the enterprise, the payroll (form T-49) or payroll (form T-51) and payroll (form T-53), approved by the Decree of the State Statistics Committee of the Russian Federation of 01/05/2004, are used. No. 1 "On the use of unified forms of primary accounting documentation for the accounting of labor and its payment." Statements are compiled in one copy in the accounting department. If there are no such documents, it is very difficult to prove the fact of the issuance of wages.

V. N. N. applied to the Pervomaisky District Court of Izhevsk with a claim against the individual entrepreneur K. R. N. for the recovery of wages for September and October 2010, vacation pay for 2009-2010, compensation for non-pecuniary damage, reimbursement of expenses, associated with payment for the services of a representative. Since 2004, she has worked for an individual entrepreneur as a sales assistant in a store. In receiving earnings, V.N.N. signed in a notebook, which reflected the revenue for the month, there were no statements on the payment of wages. The defendant did not pay wages for September and October 2010, as well as vacation pay for 2009-2010.

  During the trial, it was established that the amount of wages depended on the turnover (salary + 1% of turnover per month). On September 10 and 25, 2010, V.N.N. received wages for August, and on October 1 - for July vacation. On October 12, 2010 the advance payment for September was paid. In September and October 2010, V.N.N. worked for 26 days. In 2009, V.N.N. was on vacation for two weeks, in 2010 - for a week.

  The individual entrepreneur considered the demands unreasonable and explained that the salary had been paid in full.

  From the content of Art. 129 of the Labor Code of the Russian Federation it follows that wages are remuneration for work - for the performance by the employee of the duties assigned to him by the employment contract. The fact that the plaintiff fulfilled her labor duties as a seller of IP is not disputed.

  In accordance with Art. 22 of the Labor Code of the Russian Federation, the employer is obliged to pay the wages due to employees in a timely manner and in full. According to Art. 136 of the Labor Code of the Russian Federation, wages are paid at least every half a month on the day established by the internal labor regulations, the collective agreement, the employment contract.

  As the participants in the process explained, the payment of earnings was carried out by making appropriate entries in the “Revenue” notebook. From the contents of this notebook for a controversial period of time, it follows that V. N. N. received the following amounts in her hands: on September 10 and October 12 - advance payment, on September 25 and October 1, the remaining salary amounts. That is, the advance payment for the month worked was paid to employees at the beginning of the next month. The rest of the salary was paid to employees at the end of the month following the month worked.

  The court of first instance rightfully came to the conclusion that on October 12, 2010, V.N.N. received an advance payment for September 2010. No evidence to the contrary was presented by the respondent. Therefore, the court satisfied the claim for the recovery of wages for September and October 2010, vacation pay for 2009-2010, compensation for non-pecuniary damage and the amount of payment for the services of a representative. Satisfying the claim for the recovery of wages, the court pointed out that the IP did not provide evidence of the issuance of V. N. N. wages in the amount due to her.

  Disagreeing with this decision, the individual entrepreneur filed a cassation appeal, however, the Supreme Court of the Udmurt Republic, in its Ruling dated July 27, 2011 in case No. 33-2627/11, refused to satisfy it and left the decision of the district court in force.

 
Incorrect payroll in case of special conditions.

If an employee works in special climatic conditions, if he fulfills the labor norm and the norm of working hours within a month, he is guaranteed the payment of not only the minimum wage, but also allowances for working conditions (Article 148 of the Labor Code of the Russian Federation).

G. went to court, because she believed that the employer had incorrectly calculated wages - the regional coefficient and the "northern" allowances were included in the minimum wage. The Perm Regional Court considered the case on the complaint of the medical institution of the Kosinsky District of the Komi-Permyatsky Autonomous Okrug (hereinafter - MU) against the decision of the Kosinsky District Court, which recovered from the MU in favor of G. underpaid wages for the period from October 2010 to January 2011, compensation moral damage and payment for the services of a representative.

  In the cassation complaint, the MU asked to cancel the decision of the district court, believing that the district coefficients and percentage allowances have a special calculation procedure and are set for salaries. The latter, in turn, may be less than the minimum wage (justification - the rulings of the Constitutional Court of 01.10.2009). Claims that accrued wages to the plaintiff were not lower than the minimum wage.

After checking the case materials and discussing the arguments of the cassation appeal, the panel of judges found no grounds to cancel the district court's decision, and here's why.

  Article 37 of the Constitution of the Russian Federation provides that everyone has the right to remuneration for work not lower than the minimum wage established by federal law. According to part 3 of Art. 133 of the Labor Code of the Russian Federation, the monthly salary of an employee who has fully worked out the norm of working hours for this period and fulfilled labor standards (labor duties) cannot be lower than the minimum wage.

  Part 1 Art. 129 of the Labor Code of the Russian Federation defines wages as remuneration for work depending on the qualifications of the employee, the complexity, quantity, quality and conditions of the work performed, as well as compensation payments (surcharges and allowances of a compensatory nature, including for work in conditions that deviate from normal, in special climatic conditions and in territories exposed to radioactive contamination, and other payments of a compensatory nature) and incentive payments (additional payments and allowances of a stimulating nature, bonuses and other incentive payments). It also contains definitions of the concepts of the tariff rate, salary (official salary), base salary (base official salary), base wage rate.

  In accordance with Art. 146, 148 of the Labor Code of the Russian Federation, the labor of persons employed in work in areas with special climatic conditions is paid at an increased rate. By virtue of Art. 316 of the Labor Code of the Russian Federation, remuneration in the regions of the Far North and equivalent areas is carried out using regional coefficients and percentage bonuses to wages.

  The court established that G. works under an employment contract in the Moscow Region. In addition to her salary (the amount of which is less than the minimum wage), she was paid a Ural coefficient of 20% and a “northern” percentage allowance of 50%, in addition, she additionally performed the duties of an absent worker (laundress) with an additional payment of 50% in accordance with Art. 151 of the Labor Code of the Russian Federation. Wages in the period indicated by the plaintiff (from October 2010 to January 2011) for the main job were calculated by the employer incorrectly. The district coefficient (20%) and the “northern” percentage allowance (50%) were calculated by the defendant on the official salary and included in the minimum wage. However, in this case, the meaning of applying the coefficient and the allowance is lost.

  Resolving the dispute that has arisen, guided by the requirements of Art. 146, 148 and 315 of the Labor Code of the Russian Federation, the court came to a reasonable conclusion that the plaintiff, as working in special climatic conditions (if he fulfills the labor norm and working hours within a month), is guaranteed wages not only in the minimum amount (in the amount of 4,330 rubles .), but also in an increased one, which is ensured by the payment of allowances (in this case, the district coefficient and the "northern" percentage allowance).

  The arguments of the cassation complaint of the Moscow Region that regional coefficients and percentage allowances for work in special climatic conditions are set for salaries, wage rates and are an integral part of wages, do not refute the court’s conclusions (Determination dated 15.03.2011 in case No. 33-2403 / 2011).

 
Additional payment in case of increase in the volume of work.

For combining professions (positions), expanding service areas, increasing the volume of work or performing the duties of a temporarily absent employee without exemption from work specified in the employment contract, an additional payment is made, the amount of which is established by agreement of the parties to the employment contract, taking into account the content and (or) volume of additional work .

Coca-Cola HBC EURASIA LLC applied to the court to declare illegal and cancel several points of the order issued by the State Labor Inspectorate in Primorsky Krai on the basis of an inspection report on the application of O., according to which Coca-Cola LLC is obliged to decide the issue of additional payments for combining professions and increasing the volume of work for forwarding drivers and not requiring employees to perform work not stipulated by an employment contract.

  The district court dismissed the claims of Coca-Cola LLC.

  The Perm Regional Court, in its ruling dated 12/15/2010 in case No. 33-10823, considered the cassation complaint of Coca-Cola LLC, which considered that the requirements for establishing an additional payment were contrary to Art. 60.2, 151 of the Labor Code of the Russian Federation, since the forwarding driver O. performs only the duties stipulated by the employment contract, and when his position as the driver of the delivery department was renamed in 2008 to the driver-forwarding agent of the distribution department, his functional duties did not change.

  Challenging the prohibition to require the performance of work not stipulated by an employment contract, Coca-Cola LLC referred to the fact that the functional obligation “delivery and transfer of inventory items to customers, execution of relevant documentation” includes the obligation to transfer products to the client, in connection with which there is no reason to believe that a forwarding driver, setting off on a delivery route without a loader, performs work not stipulated by an employment contract.

The judicial board, having studied the written materials of the case, having discussed the arguments of the cassation appeal, considers the decision of the district court lawful and justified in connection with the following.

  The obligation to make an additional payment for the performance of additional work, that is, work in conditions deviating from normal, including when performing work of various qualifications, combining professions (positions), is established by Art. 149 of the Labor Code of the Russian Federation. The court correctly proceeded from the fact that the professions of a car driver and a freight forwarder, according to the All-Russian classifier of professions of workers, positions of employees and wage categories OK 016-94, put into effect by Decree of the State Standard of the Russian Federation of December 26, 1994 No. 367 from 01/01/1996, are two independent positions with various labor functions, are independently certified as jobs and require the establishment of a specific separate payment.

  Since when transferring O. from the position of a driver to the position of a forwarding driver, the issue of additional payment for combining professions and increasing the volume of work was not resolved, the court correctly pointed out the validity of the order in terms of establishing additional payments for O.

  Taking into account that according to the tariff and qualification characteristics for industry-wide professions of workers, approved by the Decree of the Ministry of Labor of the Russian Federation of November 10, 1992 No. 31, the labor functions of a loader are designated as loading, unloading, shifting, carrying, etc., and the transfer of inventory is the labor function of the freight forwarder and implies the execution of acceptance documentation, the court correctly recognized the applicant's arguments as unfounded that the job description of the forwarding driver provides for the fulfillment of the duties of a loader.

  In view of the foregoing conclusion of the court that the order issued by the state labor inspector is lawful and subject to execution, the judicial board considers it correct and sees no grounds for canceling the decision. The complaint of Coca-Cola LLC was dismissed.

 
Compensation for overtime work.

Overtime work is paid for the first two hours of work at least one and a half times, for subsequent hours - at least twice the amount. The specific amount of payment for overtime work may be determined by a collective agreement, a local regulation or an employment contract. At the request of the employee, overtime work can be compensated by providing additional rest time.

A. filed a lawsuit against Stroitelnaya Kompaniya LLC for the recovery of arrears in wages, court costs and compensation for non-pecuniary damage. From July 13, 2010 to August 10, 2010 the plaintiff worked as a finisher. According to the terms of the employment contract, the official salary was 30,000 rubles, while A. worked from 8.30 to 20.00 daily, seven days a week, with an hour break for lunch. Processing during each day was 2 hours and 30 minutes, which LLC was not paid. In addition, LLC did not charge a regional coefficient and a percentage allowance for work in the southern regions of the Far East.

  The Ussuriysk City Court of Primorsky Territory partially satisfied the claims. OOO "Construction Company" filed a cassation appeal. After checking the case file, after listening to A., discussing the arguments of the complaint, the panel of judges did not find grounds for canceling the decision made by the city court. The court fully and objectively checked the relevant circumstances and recognized that the LLC had arrears in A.'s wages, after the termination of the employment contract, the final payment was not made in full, which was not disputed by the parties.

  A. was in a fixed-term employment relationship with the defendant from July 13 to August 10, 2010 with an official salary of 30,000 rubles. According to Art. 129 of the Labor Code of the Russian Federation, wages include remuneration for work depending on the qualifications of the employee, the complexity, quantity, quality and conditions of the work performed, as well as compensation and incentive payments. Checking the arguments of the parties regarding the amount of wages, the court indicated that the amount of the plaintiff's earnings should be calculated taking into account 20% and 30% bonuses to his salary.

  The court found that A. did indeed work overtime and on weekends. This is confirmed by the registration log of persons through the checkpoint of the closed military camp where work was carried out, as well as the testimony of witnesses who confirmed that the plaintiff had performed work outside the working day established by the employment contract.

  Since the defendant did not pay the plaintiff's overtime work, A.'s claims in this part were satisfied correctly. Calculation court made in accordance with the requirements of Article. 153 of the Labor Code of the Russian Federation and the evidence presented and is recognized by the judicial board as reasonable.

  The arguments of the cassation appeal of the representative of the LLC in the court session and in the cassation appeal that the plaintiff was not involved in overtime work and work on weekends cannot be recognized as valid, since they are refuted by the evidence presented.

Therefore, the Judicial Collegium for Civil Cases of the Primorsky Regional Court left the decision of the city court unchanged, and the cassation appeal of Construction Company LLC was not satisfied (Determination of the Primorsky Regional Court dated March 10, 2011 in case No. 33-2068).

Payment deadline violations.

In case of violation of the established deadline for the issuance of wages, vacation pay, payments upon dismissal and other payments due to the employee, the employer is obliged to pay them with interest (cash compensation) in the amount of not less than 1/300 of the current refinancing rate of the Central Bank of the Russian Federation from unpaid in term sums for each day of delay. The obligation to pay the specified monetary compensation arises regardless of the employer's fault (Article 236 of the Labor Code of the Russian Federation).

P. appealed to the Babushkinsky District Court of Moscow with a claim against the defendant JSC Mostelefonstroy, indicating that he paid him wages untimely and not in full, and after P.’s dismissal of his own free will on August 14, 2010 JSC Mostelefonstroy did not made a final settlement with him. In this regard, the plaintiff asked the court to recover from the defendant wage arrears, a penalty for delaying the payment of earnings, compensation for non-pecuniary damage and legal fees.

OAO Mostelefonstroy requested that the wage arrears for August and July 2010 be refused, arguing that it had been paid to the plaintiff in full.

During the trial, it was established that P. had been working since March 2010 at OAO Mostelefonstroy as a communications installer - a 4th category jointer on the basis of an employment contract, according to clause 2.1 of which the employer undertook to pay him a tariff rate.

According to Art. 21 of the Labor Code of the Russian Federation, an employee has the right to timely and full payment of wages and annual paid leave. According to Art. 22 of the Labor Code of the Russian Federation, the employer is obliged to pay in full the wages due to employees within the time limits established in accordance with the Labor Code of the Russian Federation, the collective agreement, internal labor regulations, and the employment contract.

By virtue of Art. 136 of the Labor Code of the Russian Federation, when paying wages, the employer is obliged to notify each employee in writing of the constituent parts of the wages due to him for the relevant period, the amount and grounds for the deductions made, as well as the total amount of money to be paid.

After P.'s dismissal, Mostelefonstroy OJSC paid the salary due to P. for July and August 2010, which is confirmed by the lists of salaries transferred to the bank for July and August, statements on Sberbank operations, lists of wages transferred to the bank and payment orders. Therefore, the collection of arrears of wages is denied.

However, the salary was paid late. Based on Art. 236 of the Labor Code of the Russian Federation in case of violation of the established deadline for payments due to the employee, the employer is obliged to pay them with interest (cash compensation) in the amount of not less than 1/300 of the current refinancing rate of the Central Bank of the Russian Federation from the amounts not paid on time, for each day of delay, starting from the next day after the due date of payment up to and including the day of actual settlement. Therefore, in terms of collecting interest for the delay in paying wages, the court satisfied P.'s claims and collected compensation from Mostelefonstroy OJSC for the period from 08/14/2010 to 10/06/2010 (for 53 days of delay), as well as compensation for non-pecuniary damage. The Judicial Collegium of the Moscow City Court upheld this decision (Decision dated 06/06/2011 in case No. 33-14329).

Terms of payment for study holidays.

The employer, in the cases established by the Labor Code of the Russian Federation, is obliged to provide students with additional paid vacations - study. It is not allowed to recover the amount of payment for study leave from an employee after his dismissal.

The Judicial Collegium for Civil Cases of the Tambov Regional Court considered the cassation complaint of LLC P against the decision of the Pichaevsky District Court of the Tambov Region in the case of the claim of LLC P against F. R. Yu. expenses.

The panel of judges established that F.R.Yu. was hired by P LLC in 2009 as a machine operator for the period of spring field and harvesting until 10/31/2009. At the end of the term of the contract, F. R. Yu. was not fired and continued to work. LLC "P" paid him an advance on account of future spring field and harvesting work. From April 6 to April 25, 2010, F. R. Yu. was on study leave, which was paid for by P LLC. On May 1, 2010, P. resigned of his own free will. The company believes that the former employee is obliged to return the indicated amounts, since he did not fulfill the obligation to work for a certain period after training or to reimburse the costs to the employer upon dismissal before the deadline.

By decision of the Pichaevsky District Court, the claim was dismissed. In the cassation appeal, LLC “P” asked for the decision to be canceled, considering that it was not based on the law. After checking the case, discussing the arguments of the complaint, having heard LLC “P”, F. R. Yu., the panel of judges did not find grounds for canceling the decision.

In dismissing the claim for the recovery of the said amounts from F.R.Yu. in favor of P LLC, the court of first instance reasonably proceeded from the fact that there were no legal grounds for the return of the funds paid to the plaintiff: according to Art. 21, 22 of the Labor Code of the Russian Federation, an employee has the right to timely receive wages in full, and the employer is obliged to provide employees with equal pay for work of equal value.

Deductions from wages are made only in cases provided for by the Labor Code of the Russian Federation and other federal laws (Article 137 of the Labor Code of the Russian Federation).

The court of first instance noted: evidence that the amounts paid to the defendant were advance payments on account of wages with subsequent reimbursement of the unworked advance payment during the spring field and harvesting work of 2010, and not wages for January - March 2010, LLC "P" not presented to the court.

The issue of recovering from F. R. Yu. the costs incurred by the employer during the period of study at the university was resolved by the court in accordance with the requirements of Art. 173, 177 of the Labor Code of the Russian Federation and the claim for the recovery of wages, which is retained by the employee who is studying and receiving education for the first time during the study leave, was reasonably denied.

Evidence of the costs incurred by LLC "P", related to the training of F. R. Yu., is also not presented. The defendant himself paid for the education at the university.

Therefore, the decision of the district court was left unchanged, and the cassation appeal was not satisfied (Determination of the Tambov Regional Court dated March 14, 2011 No. 33-734).

Deductions from a dismissed employee.

If the employer has not made a withholding for unworked days upon dismissal of the employee, he is not entitled to recover from the dismissed person in court the money paid upon dismissal as wages for the leave granted.

The FSSP Department applied to the Petrodvortsovy District Court of St. Petersburg with a claim to recover from S. the amount paid for the vacation, which was provided in advance and was not worked out. The district court dismissed the UFSSP's claim. And that's why.

From the materials of the case it is seen that for the period of work from 12/22/2008 to 12/21/2009 S. was granted leave for 52 calendar days from 02/16/2009 to 04/10/2009 inclusive (including additional leave). On April 14, 2009, the service contract with S. was terminated by order at the initiative of a civil servant: he was relieved of his post and dismissed on April 20, 2009.

The FSSP motivated its claims to recover the amount of money from S. by the fact that S. quit before the end of the working year on account of which he received leave, that is, at the final settlement, a debt was formed, which they ask to recover from the defendant in accordance with Art. 4, part 2, art. 137 of the Labor Code of the Russian Federation.

Denying the FSSP in the claim, the court concluded that there were no grounds for recovering from S. the vacation pay paid to him, since there was no bad faith on the part of S. and a counting error in calculating the funds for vacation.

In paragraphs 2 - 4, part 2 of Art. 137 of the Labor Code of the Russian Federation lists the deductions that the employer has the right to make if the employee does not dispute their grounds and amount, and when the monthly period established for the voluntary return of the amounts has not expired. If at least one of these conditions is not met (the employee disputes the deduction or the monthly period has expired), then the employer loses the right to indefinite recovery of amounts and it can be carried out in court.

The court proceeded from the fact that if the employer did not deduct for unworked days upon dismissal of the employee, then he is not entitled to recover from the former employee in court the money paid to him upon dismissal as wages for the leave granted.

There was no dishonesty in the actions of S., as well as a counting error, which would have made it possible to recover overpaid wages from the defendant, the court did not establish. The supervisory authority of the St. Petersburg City Court, in Resolution No. 44g-111/2010 dated 08.12.2010, recognized the decision of the district court as correct.