Labor contract - court practice. Termination of an employment contract at the initiative of the employer - judicial practice Judicial practice of termination of an employment contract

An employment contract is the main document concluded between an employer and an employee when applying for a job. Depending on the term, a contract is distinguished, concluded for an indefinite period, and a fixed-term employment contract (Article 58 of the Labor Code of the Russian Federation).

The 1982 Recommendation of the International Labor Organization No. 166 "On the termination of employment on the initiative of an employer" indicates the need to limit the use of fixed-term employment contracts: under the Termination of Employment Convention, 1982 and this Recommendation. "

In Art. 13 Resolutions of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 "On the Application by the Courts of the Russian Federation of the Labor Code of the Russian Federation" states that when deciding on the appropriateness and objectivity of concluding a fixed-term employment contract with an employee, it must be borne in mind that an agreement of this type is drawn up in if the labor relationship between the employee and the employer cannot be formalized for an indefinite period, taking into account the conditions of the forthcoming work or the specifics of its performance.

In this regard, a fixed-term employment contract is considered as an exception to the general rule, according to which an employment contract should be concluded with an employee for an indefinite period, because it is more in line with the interests of protecting the labor rights of workers. The procedure and conditions for concluding a fixed-term employment contract are governed by Art. 59 of the Labor Code of the Russian Federation.

The norms of the Labor Code of the Russian Federation prohibiting the execution of a fixed-term employment contract without sufficient grounds for this, as well as, for example, with the aim of evading the granting of rights and guarantees enjoyed by employees working under an employment contract concluded for an indefinite period, are fully consistent with international law.

The initiative to restrict labor relations to a certain period often belongs to the employer. In these conditions, it is necessary at the legislative level to guarantee the rights of an employee with whom an employment contract has been concluded for a certain period.

Unjustified execution of an employment contract for a certain period is one of the most frequent violations of the labor rights of workers.

Part 1 of Art. 59 of the Labor Code of the Russian Federation lists the cases in which a fixed-term employment contract can be concluded. Part 2 of Art. 59 of the Labor Code of the Russian Federation gives a list of possible grounds according to which a fixed-term employment contract can be drawn up by agreement of the parties. Nevertheless, in practice, there are cases when a fixed-term employment contract is concluded in the absence of such grounds. In this case, the question arises of the legality of dismissal in connection with the expiration of the term of the employment contract (clause 2 of part 1 of article 77 of the Labor Code of the Russian Federation). There is a judicial practice, according to which dismissal in such a situation is unlawful.

So, for example, P. filed a lawsuit against JSC AtompromBezopasnost for recognizing the employment contract as concluded for an indefinite period, reinstatement at work, collection of payment for forced absence from work, court costs, compensation for moral damage, in support of these requirements, stating that he was accepted to the position of director of a separate division under a fixed-term employment contract. According to the plaintiff, a fixed-term employment contract was concluded with him in violation of the requirements of Art. 58-59 of the Labor Code of the Russian Federation, and there were no legal grounds for establishing the term of an employment contract concluded with him.

The court made a decision on the illegality of the dismissal. The worker's demands were met. When making a decision, the court proceeded from the fact that on the basis of the provisions of Part 2 of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract can be drawn up by agreement of the parties with the heads, deputy heads and chief accountants of enterprises, regardless of their organizational and legal forms and forms of ownership. In this case, the employer had no grounds for concluding a fixed-term employment contract with the head of a separate subdivision. Since this agreement was concluded in violation of the law, its termination due to the expiration of the term is illegal. The court adopted a ruling on recognizing the employment contract as concluded for an indefinite period, reinstating the plaintiff at work, collecting payment for the time of forced absenteeism, court costs, and compensation for moral damage.

Along with this, an analysis of court decisions of the appellate instance shows that lower courts sometimes make decisions in favor of the employer, based on a misinterpretation of substantive law.

Another common violation is the failure of the employer to comply with the mandatory conditions to be included in a fixed-term employment contract.

If a violation is revealed, the State Labor Inspectorate has the right to issue an order to eliminate it or bring the employer to administrative responsibility6.

In this regard, it is important to note that in addition to the general rules established by Art. 57 of the Labor Code of the Russian Federation, when concluding a fixed-term employment contract, two additional mandatory conditions should be included in such an agreement:

- on the reason and grounds for concluding a fixed-term employment contract with reference to the relevant article of the Labor Code;
- about the term of the agreement.

Equally important is the question of the possibility of extending the term of an employment contract concluded for a certain period. As a general rule, such contracts cannot be extended.

At the same time, there are exceptions fixed in the legislation, according to which the employer can, and in some cases is obliged to extend the term of the contract7.

In the first case, this is the procedure for selecting a university employee by competition for filling the position of a scientific and pedagogical worker previously occupied by him under a fixed-term employment contract (part 8 of article 332 of the Labor Code of the Russian Federation), as well as extending the contract with athletes. In the second case, the prolongation of the expiring fixed-term employment contract until the end of the woman's pregnancy upon her written application and a medical certificate confirming the state of pregnancy (Article 261 of the Labor Code of the Russian Federation).

At present, the situation on the labor market in Russia has significantly deteriorated. Deputy Prime Minister of the Russian Federation Olga Golodets, speaking at the opening of the XVI April International Conference on Social and Economic Development, noted that the number of offered vacancies compared to December 2014 had more than halved8. Russian President V.V. At a meeting on the situation on the labor market, Putin emphasized that “we need to be very careful with highly qualified workers, they cannot be lost” 9. In these conditions, in our opinion, it is especially important to comply with the requirements of the law when registering labor relations, to prevent infringement of the rights of workers, including through the conclusion of fixed-term employment contracts.

To prevent infringement of the rights of workers associated with the conclusion of fixed-term employment contracts, in our opinion, it is necessary:

- to limit the list of grounds for concluding a fixed-term employment contract only by legal obligatory grounds provided for by the Labor Code of the Russian Federation and other federal laws, abandoning contractual grounds. In such cases, it is possible to use a civil contract;
- to toughen the punishment of employers for the unjustified conclusion of fixed-term employment contracts;
- in cases permissible by law, you should use the opportunity to amend the employment contract, including in terms of changing its expiration date.

Alexey Rusin, Legal Advisor, Melt LLC

The employment contract is the main document concluded between the employee and the employer, art. 56 of the Labor Code of the Russian Federation defines it as an agreement between an employer and an employee.

According to Art. 58 of the Labor Code of the Russian Federation, employment contracts can be concluded for an indefinite period and for a specific period of not more than five years (fixed-term employment contract).

A fixed-term employment contract is concluded in special cases, namely:

when labor relations cannot be established for an indefinite period, taking into account the nature of the work ahead or the conditions for its performance, namely in the cases provided for in part one of Article 59 of the Labor Code of the Russian Federation.
when a fixed-term employment contract is concluded by agreement of the parties to the employment contract without taking into account the nature of the work ahead and the conditions for its implementation in the cases provided for in Part 2 of Art. 59 of the Labor Code of the Russian Federation.

In accordance with paragraph 2 of Art. 77 of the Labor Code of the Russian Federation, a fixed-term employment contract is terminated upon the expiration of the term of the employment contract, except for cases when the employment relationship actually continues and none of the parties demanded their termination.

Thus, the difference between the termination of a fixed-term employment contract and the termination of an employment contract for an indefinite period is that it terminates with the expiration of its validity period.

According to Art. 79 of the Labor Code of the Russian Federation on the termination of an employment contract due to the expiration of its validity period, the employee must be warned in writing at least three calendar days before dismissal, except for cases when the term of the fixed-term employment contract concluded at the time of the performance of the duties of the absent employee expires ...

An employment contract concluded for the duration of a certain job is terminated upon completion of that job.

An employment contract concluded for the duration of the performance of the duties of an absent employee is terminated with the release of this employee to work.

An employment contract entered into for seasonal work during a certain period (season) terminates at the end of this period (season).

In this article, we want to review and analyze the judicial practice related to the termination of fixed-term employment contracts today.

Termination of a fixed-term employment contract is not an initiative of the employer, but is a circumstance that does not depend on the will of the parties, as a result of which it does not apply to the guarantee of non-termination of an employment contract on the initiative of the employer with a woman who has a child under three years of age.

The following case is indicative of this position. Thus, N.V. Roshchina appealed to the Dzerzhinsky District Court of St. Petersburg with a claim against JurL 1, asked to reinstate her at work in her previous position and to collect the average wage during her forced absence from work.

The essence of the case: between JurL 1 and JurL 2 (the defendant's client) an agreement was concluded to provide support to clients for the sale of the client's products in retail outlets, the term of service is temporarily for the period until the client completes the project "Development and implementation of measures to promote the brand's promotion" and receiving a notice from the client about the termination of the service or a change in its volume. Taking into account the complex nature of services and the need to provide them at the location of the client, JurL 1 provides services to the client by sending its employees to him. In pursuance of this agreement, a fixed-term employment contract was concluded between YurL 1 and N.V. Roshchina, according to which the employee is admitted to the unit to perform his labor function directly on the territory of the organization, which is served by the employer of YurL 2 (the defendant's client). According to clause 11.1 of the employment contract, the latter is concluded for the period of performing a known job. By a notification from JurL 2 (the client) informed JurL 1 of the end of the project "Development and implementation of measures to promote the brand" and termination of the contract. In connection with the receipt of a notification from the client, JurL 1 notified the plaintiff by notification of the termination of the employment contract.

The claim was rejected by the decision of the court of first instance. The plaintiff filed an appeal, in which she believes that the dismissal is illegal, since at the time of termination of the contract she was on parental leave until the child reached the age of 1.5 years.

Rejecting the appeal, the court noted that the conclusion of an employment contract in fulfillment of obligations under a civil contract is not prohibited by law. The event provided for by a fixed-term employment contract occurred with the plaintiff, which, according to clause 11.1 of the contract, resulted in its termination. Dismissal of an employee while on vacation is not allowed at the initiative of the employer, while the plaintiff was dismissed on the grounds of clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation in connection with the expiration of the employment contract, that is, in connection with the onset of a certain event that does not depend on the will of the parties, and not on the initiative of the employer. (Determination of the St. Petersburg City Court dated December 17, 2012 No. 33-17802 / 2012)

We would like to note the following that according to clause 14 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation", if a fixed-term employment contract was concluded to perform certain work in cases where its completion was not can be determined by a specific date, such a contract is terminated upon completion of this work. In this case, the termination of a fixed-term employment contract did not occur at the initiative of the employer, but in connection with the occurrence of an event due to which the employee is deprived of the guarantee provided for in par. 4 tbsp. 261 of the Labor Code of the Russian Federation.

The employer technically changed the first page in his copy of the employment contract in order to avoid the consequences provided for in Art. 58 of the Labor Code of the Russian Federation, namely, a situation where none of the parties demanded termination of a fixed-term employment contract after its expiration, and the employee actually continues to work, the condition of the urgent nature of the employment contract becomes invalid and the employment contract is considered concluded for an indefinite period.

So, E. Yu. Roizman filed a lawsuit against LLC "Animator" with demands for reinstatement at work and compensation for material damage.

The essence of the case: the plaintiff was hired by LLC "Animator". A fixed-term employment contract was concluded with her. By order, the plaintiff was dismissed due to the expiration of the employment contract, paragraph 2 of Art. 77 of the Labor Code of the Russian Federation. The plaintiff did not agree with the dismissal and went to court. By the decision of the Nevsky District Court of St. Petersburg, the claims were partially satisfied. The defendant did not agree with the conclusions of the court and filed a cassation appeal.

Refusing to satisfy the cassation appeal, the court noted that the court of first instance examined the employment contracts presented by the plaintiff and the defendant, which differ from each other by the first sheet, in which, in Art. 2 indicates:

That this contract is concluded for a specified period of 4 months (in the employment contract of the plaintiff);

That this contract is concluded for a specified period of 11 months (in the defendant's employment contract).

Having established this fact, the court, at the request of the plaintiff, ordered a forensic technical examination of the documents.

As follows from the expert opinion, the printed texts on sheet No. 1 and sheet No. 5 of the employment contract (a copy of the plaintiff) were made on the same printing device. The printed texts on sheet no. 1 and sheet no. 5 of the employment contract (the defendant's copy) were made on different printing devices. The time of the signature on behalf of L., the imprint of the round seal of LLC "Animator" on the last sheet and handwritten entries on the first sheet of the defendant's employment contract does not correspond to the date specified in the document.

Thus, the court found it established that the fixed-term employment contract with the plaintiff was concluded for a specified period of 4 months, the plaintiff actually worked in LLC "Animator" after the expiration of the employment contract, receiving wages. Among other things, the court took into account the fact that in the order of dismissal, which was signed by the plaintiff, there was already a date imprinted by the employer. In turn, in the employee's personal card of the T-2 form, there are no signatures of the plaintiff and the date, including in section 11 on familiarization with the basis for terminating the employment contract. (Determination of the St. Petersburg City Court dated February 28, 2012 No. 33-2971 / 2012)

The multiple conclusion of fixed-term employment contracts and the successful implementation of the latter by the employee are not circumstances that entail the unconditional recognition of the employment relationship as concluded for an indefinite period.

The following civil case is indicative of this legal position. Thus, D. I. Lebedev applied to the Dzerzhinsky District Court of St. Petersburg with a claim against the limited liability company "Haskoning Consultants, Architects and Engineers" to reinstate the plaintiff at work in the position held before dismissal, to recognize fixed-term employment contracts as concluded for an indefinite period, recognition of the dismissal as illegal.

The essence of the matter: between LLC Haskoning Consultants, Architects and Engineers, represented by the St. Petersburg branch of the said company and D.I. the basis provided for by Art. 77 (clause 2, part 1) of the Labor Code of the Russian Federation. However, during the term of the fixed-term employment contract 1, the defendant and the plaintiff entered into another fixed-term employment contract 2 for a different period. By Order 2, DI Lebedev was dismissed on the same grounds.

By the decision of the Dzerzhinsky District Court of St. Petersburg, DI Lebedev was denied the claim. The plaintiff filed a cassation appeal.

Rejecting the arguments of the cassation appeal, the court noted that the labor contracts contested by D.I. In accordance with Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract may be concluded by an employer, in particular, with persons employed to perform a certain job. The repeated conclusion of fixed-term employment contracts does not indicate the permanent nature of the work for the employer. (Cassation ruling of the St. Petersburg City Court dated May 16, 2011 No. 33-7076)

It is necessary to agree with these conclusions of the court due to the fact that these fixed-term employment contracts were concluded on sufficient grounds and their repeated conclusion cannot be a circumstance for recognizing the latter as unlimited.

The lack of coordination of the forthcoming dismissal under a fixed-term employment contract with the board of directors is not a basis for recognizing the dismissal as illegal.

The following court case is indicative of this position. So, F.M.A. initiated legal proceedings against OJSC Penzagazifikatsiya on reinstatement at work, payment of wages for the period of forced absence from work.

The crux of the matter: between F.M.A. and OJSC Penzagazifikatsiya entered into a fixed-term employment contract, on the basis of which the plaintiff replaced the position of the deputy general director of the company. This employment contract was concluded for three years. By order of the General Director of OJSC Penzagazifikatsiya F.M. was dismissed from office on the basis of paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation due to the expiration of the employment contract.

By the decision of the Leninsky District Court of Penza the statement of claim F.M.A. left unsatisfied. The plaintiff did not agree with the decision, filed an appeal, in which he believes that serving him a notice of the upcoming dismissal is illegal due to the lack of prior approval of his dismissal with the company's board of directors, since by virtue of clause 10.9 and clause 9.5.20 of the Charter OJSC "Penzagazifikatsiya" the issue of dismissal must be agreed with the board of directors of the company. The decision to approve his dismissal was made by the board of directors after the actual dismissal.

The appellate court, refusing to satisfy the complaint, noted the following. The lack of such approval of the dismissal of the plaintiff by the board of directors of the company does not transform the fixed-term employment contract into an agreement concluded for an indefinite period, since the employer promptly demanded termination of the employment contract with F.M.A. Failure to comply with the requirements of the company's charter on the approval of the dismissal of the deputy general director of the company by the board of directors cannot be an unconditional and independent basis for recognizing the dismissal as illegal, since Art. 79 of the Labor Code of the Russian Federation, which regulates the procedure and procedure for terminating a fixed-term employment contract, regulates relations arising upon the occurrence of a certain event - the expiration of the established term of the employment contract. This circumstance is not connected with the initiative of the employer and occurs regardless of his will. (Appellate ruling of the Investigative Committee of the Penza Regional Court dated August 7, 2012 No. 33-1826)

One should agree with these conclusions of the court, since in accordance with Part 1 of Art. 79 of the Labor Code of the Russian Federation in conjunction with the provisions of Part 4 of Art. 58 of the Labor Code of the Russian Federation states that the employer loses the right to terminate a fixed-term employment contract with an employee upon the occurrence of an event associated with the expiration of its term only if he has not expressed his desire to terminate the employment relationship with the employee before the expiration of the employment contract, and the employee continues work and after the expiration of the contract. If the employer's desire to terminate the employment contract is expressed before the expiration of the employment contract and the dismissal order is issued no later than the last working day, then the dismissal is legal.

The current labor legislation relieves the employer from the obligation to warn the employee about the upcoming dismissal in case of termination of the fixed-term employment contract concluded during the performance of the duties of the absent employee.

The following civil case is indicative of this legal position. Thus, S.V. Emelyanova filed a lawsuit against Gazprom Komplektatsiya LLC for reinstatement at work, payment for the time of forced absence, compensation for moral damage. Considers the dismissal illegal, since the employer did not warn the plaintiff about the upcoming dismissal, the term of the contract expired later.

The crux of the matter: S. V. Emelyanova, on the basis of an order, was hired by OOO Gazprom Komplektatsiya as a chief specialist. By order of S.V. Emelyanova, on the basis of a personal application, she was transferred to the department for work with branches as a chief specialist on the terms of a fixed-term employment contract for the period of maternity leave, chief specialist T.M. Olenich. S.V. Emelyanova was personally acquainted with this order, and she signed it. S. V. Emelyanova signed an agreement to amend the terms of the contract. On the basis of TM Olenich's statement, by order of OOO Gazprom komplektatsiya, TM Olenich's leave to take care of the child was interrupted, and TM Olenich took up her job duties. On the basis of the order of S.V. Yemelyanova, she was dismissed from the post of chief specialist of the department for work with branches in connection with the expiration of the term of the employment contract.

The court, rejecting the requirements of S. V. Emelyanova, noted the following. The norms of the current labor legislation do not oblige the employer to warn the employee about the upcoming dismissal in case of termination of the fixed-term employment contract concluded at the time of the performance of the duties of the absent employee. (Determination of the Investigative Committee on Civil Cases of the Moscow City Court dated December 26, 2011 No. 33-39595)

We should agree with these conclusions of the court in full, since by virtue of Art. 79 of the Labor Code of the Russian Federation, a fixed-term employment contract is terminated with the expiration of its validity period. The employee must be notified in writing of the termination of an employment contract due to the expiration of its validity period at least three calendar days before dismissal, except for cases when the term of the fixed-term employment contract concluded at the time of the performance of the duties of the absent employee expires.

The absence of an employment contract helped the employee to prove in court the illegality of his dismissal under paragraph 2 of Part 1 of Art. 77 of the Labor Code of the Russian Federation.

So, B.A.V. applied to the court with a statement of claim for reinstatement at work as a primary school teacher.

The essence of the matter: according to the order of B.A.V. accepted to the defendant for work. From the content of the order, it follows that it was taken temporarily for the period of parental leave. The basis for hiring in the order indicates the employment contract and the statement of the plaintiff. However, the labor contract was not presented to the court by the parties. From the explanations of the defendant it follows that there is no employment contract and the latter with B.A.The. was not concluded. By order of the defendant B.A.The. dismissed in connection with the departure to work of the main employee under paragraph 2 of h. 1 of Art. 77 of the Labor Code of the Russian Federation. The plaintiff does not agree with this dismissal, considers it illegal, since an employment contract for an indefinite period was concluded between her and the defendant, a copy of which was not given to her by the employer, three days after the signing of the employment contract she was familiarized with the order for temporary employment absence of the main employee. The court of first instance dismissed the plaintiff's claims. However, the court of appeal canceled the decision of the first instance court and reinstated the plaintiff at work.

Canceling the decision, the court noted that the plaintiff had not refuted the plaintiff's arguments that the employment contract between the parties was concluded for an indefinite period. An employment contract concluded with the plaintiff was not presented to the court, in which there would be an indication of the duration of its validity. The conclusion of the court of first instance that the proof of the conclusion between the plaintiff and the defendant of a fixed-term employment contract is the order for the plaintiff to be hired, which indicates that she was hired for the period of the employee's absence, and with which the plaintiff was acquainted against signature, the appeal court the instance rejected. The court indicated that this conclusion is not based on the requirements of the law, since the indication in the order for the recruitment of the plaintiff does not temporarily replace the inclusion of this condition in the employment contract, and the above local act of the employer is in essence derived from the agreement of the parties to the legal relationship (employee and employer ), drawn up in the form of a single document (employment contract), and the content of this order must comply with the terms of the employment contract and cannot replace them despite the fact that it contains a reference to a written employment contract concluded between the parties. (Appeal ruling of the Supreme Court of the Chuvash Republic dated February 27, 2012 in case No. 33-531-2012)

The conclusions of the court of appeal should be agreed in this case, since in accordance with Part 1 of Art. 68 of the Labor Code of the Russian Federation, hiring is formalized by an order (order) of the employer, issued on the basis of a concluded employment contract; the content of the order (instruction) of the employer must comply with the terms of the concluded employment contract. From this provision, we can conclude that without an employment contract there can be no order.

Let's summarize. Thus, according to the provisions of the Labor Code of the Russian Federation, two groups of circumstances are identified, in the presence of which fixed-term employment contracts can be concluded:

The nature of the work ahead or the conditions for its performance do not allow the establishment of labor relations for an indefinite period (part 1 of article 59 of the Code);
- agreement of the parties to the employment contract, on the basis of which a fixed-term employment contract can be concluded without taking into account the nature of the work ahead and the conditions for its performance (part 2 of article 59 of the Code).

In part 2 of Article 57 of the Labor Code of the Russian Federation, it is established that the reason that served as the basis for concluding a fixed-term employment contract in accordance with the provisions of the Code or other federal law must be indicated in the employment contract as its mandatory condition.

Article 79 of the Labor Code of the Russian Federation contains a prerequisite that an employer who decides to terminate an employment contract with an employee due to the expiration of its term must notify the employee in writing at least three calendar days in advance. However, this circumstance does not apply to cases of termination of a fixed-term employment contract concluded during the performance of the duties of an absent employee.

It should also be noted that the employee does not have the right to insist on the continuation of the employment relationship if the employer has decided to terminate the employment contract due to its expiration. However, in cases where the term of the employment contract has expired, but none of the parties demanded its termination, and the employee continues to work after the expiration of the established period, the condition on the urgent nature of the employment contract becomes invalid and the employment contract is considered concluded for an indefinite period.

Moreover, as follows from the content of these norms, the employer loses the right to terminate a fixed-term employment contract with the employee on the basis of the expiration of its term only if he has not expressed his desire to terminate the employment relationship with the employee before the expiration of the term of the employment contract, and the employee continues to work. and after the expiration of the contract. If such a desire in the form of a written warning by the employer was expressed before the expiration of the employment contract and the dismissal order was issued no later than the last day of work in accordance with the employment contract, then the employment contract is considered terminated and the dismissal is legal.

Termination of a fixed-term employment contract is not an initiative of the employer, but is an event that occurs regardless of the will of the parties, due to which it does not apply to the guarantee provided for in par. 4 tbsp. 261 of the Labor Code of the Russian Federation.

In particular, it should be noted that if the court establishes that a fixed-term employment contract was concluded in the absence of sufficient grounds for that, then such an agreement is considered concluded for an indefinite period.

Regulations

Labor Code of the Russian Federation of December 30, 2001 No. 197-FZ (Labor Code of the Russian Federation) // Access from information and legal support "Garant".

Arbitrage practice

Appeal determination of the IC of the Penza Regional Court dated August 7, 2012 No. 33-1826 // Access from the information and legal support "Garant".
Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" // Access from information and legal support "Garant".
Determination of the St. Petersburg City Court dated December 17, 2012 No. 33-17802 / 2012 // Access from the information and legal support "Garant".
Determination of the St. Petersburg City Court dated February 28, 2012 No. 33-2971 / 2012 // Access from the information and legal support "Garant".
Determination of the IC in civil cases of the Moscow City Court dated December 26, 2011 No. 33-39595 // Access from the information and legal support "Garant".
Appeal ruling of the Supreme Court of the Chuvash Republic dated February 27, 2012 in case No. 33-531-2012 // Access from information and legal support "Garant".
The cassation ruling of the St. Petersburg City Court dated May 16, 2011 No. 33-7076 // Access from the information and legal support "Garant".

I. Basic provisions on the consideration of cases by courts on termination of an employment contract at the initiative of an employee

One of the grounds for terminating an employment contract in accordance with clause 3 of part 1 of article 77 of the Labor Code of the Russian Federation is the termination of an employment contract at the initiative of the employee (at his own request). The provisions of clause 3, part 1 of article 77 of the Labor Code of the Russian Federation are clarified and detailed in article 80 of the Labor Code of the Russian Federation, which regulates the procedure for terminating an employment contract on the initiative of an employee. Let us briefly consider, based on the trends in judicial practice, the theoretical part of the issue of termination of an employment contract at the initiative of an employee.

In accordance with Article 2 of the Labor Code of the Russian Federation, the most important principle of legal regulation of labor relations is freedom of labor, including the right to work, which everyone freely chooses or to which everyone freely agrees, the right to dispose of their abilities to work, to choose a profession and occupation. In pursuance of this principle, in accordance with Part 1 of Article 80 of the Labor Code of the Russian Federation, the employee has the right at any time to express a desire to terminate labor relations with a specific employer by terminating the employment contract concluded between them. The employee is not obliged to explain the reasons for terminating the employment contract.

1.1. An important condition is voluntariness the expression of the will of the employee, pressure on the employee in order to force him to quit is not allowed. If the presence of pressure on the employee upon dismissal is proved, the dismissal will be recognized as illegal (subparagraph a) of paragraph 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" (hereinafter - Resolution of the Plenum of the RF Armed Forces N 2).

Pressure on the employee in any form is not allowed. In practice, controversial situations arise in cases when the employer reveals incriminating facts of the employee's failure to fulfill his labor duties (such as absenteeism, drunkenness in the workplace, theft, etc.), announces this to the employee with notification of the possible application of disciplinary measures to him. responsibility or appeal to the appropriate law enforcement agencies. The employee writes a statement of his own free will, and after a while he goes to court with a demand for reinstatement at work, since the dismissal was allegedly under pressure from the employer. Judicial practice is ambiguous, the court can side with both the employee and the employer.

The only "consolation" for the employer in this category of litigation is the distribution of the burden of proof between the parties: if the employee states that he was compelled to write a letter of resignation, the burden of proof of such a circumstance lies with the employee (subparagraphs a)).

When resolving cases of the above category, the courts always evaluate the actions of the employee and the actions of the employer. The reality of the facts discrediting the employee and the actions of the employer when they are revealed are also important.

The legislator, in addition to the voluntary expression of the will of the employee, puts forward two important requirements for the procedure for expressing the will, namely the requirements:

- in form;

By timing;

1.2. The form of the employee's will - written , i.e. the employee must notify (warn) the employer about his desire to terminate the employment contract in writing, oral forms of will are not allowed. At the same time, the legislator does not put forward specific requirements for the written form of a warning about dismissal, which means it can be any: a handwritten statement, typed on a printer or typewriter, filling in a stencil form, a telegram (see Determination of the Constitutional Court of the Russian Federation of 03/22/2011 N 394-O-O "On the refusal to accept for consideration the complaint of citizen Volynkin Vladimir Nikolaevich about violation of his constitutional rights by parts one and four of Article 80, part three of Article 84.1 and part two of Article 352 of the Labor Code of the Russian Federation"). However, the employer should remember that the greater the proportion of handwritten text written by the employee in the letter of dismissal, the less doubts the court has about the reality of the employee's will to dismiss. If possible, you should ask the employee to write a letter of resignation by hand.

The employer's absence of an application for dismissal of the employee may serve as the basis for the reinstatement of the employee by the court at work. The employer must have written confirmation of the employee's desire to quit, dismissal is not allowed in the absence of a written application from the employee, even if he verbally expressed a desire to quit.

The application itself must be formulated in such a way that no ambiguous interpretation is allowed, the will of the employee must be expressed clearly - "I ask to fire me", "I ask / demand to terminate the employment contract", etc. In this case, it is imperative to indicate the date of termination of the employment contract, for example: "I ask to fire me on October 10, 2014", it is undesirable to use the preposition "with" - "I will forgive to fire
me since October 10, 2014 "because in this case an intractable contradiction arises: either the employment contract must be terminated already on October 9, and from October 10 the employee wants to be" free ", or the last day of work will be October 10. The employer, no matter how entered, may get into a bad situation, and the dismissal may be recognized as illegal in court due to violation of the terms of dismissal (either the employee is dismissed too early and thereby violated his right to withdraw the application, or too late and the employee's right is violated, for example, to apply for work to another employer.) Therefore, the employer is advised to ask the employee to clarify the date of dismissal, including by rewriting the application.If the employee is not at the workplace, then it is advisable to send him a telegram with a request to drown the date of dismissal (or a registered letter with acknowledgment of receipt ).

Important: if the application does not indicate the date of termination of the employment contract (dismissal), the employer does not have the right to independently calculate and determine it! In practice, it happens that employees of the personnel department count off two weeks or another period, depending on the category of the employee, from the moment of writing / receiving the application and formalize the dismissal. Can you do this? The issue is controversial, since the will of the employee in this case is unclear about the terms of termination of the contract and the dismissal can be recognized as illegal in the event of legal proceedings, but there are often cases when the courts recognize the employer's rightness in this case. Here, the actions of the employee acquire decisive importance, which may indicate consent to the date of dismissal determined by the employer (the employee signs the dismissal order, takes the work book, signs the "detour sheet", does not go to work the next day, does not in any way express his disagreement with the date of dismissal etc.).

To avoid uncertainty about the outcome of the court case, upon receipt of an application without a date of dismissal, you must contact the employee and ask to clarify the desired date of termination of the employment contract.

An important aspect: the application must be signed by the employee ... The application is invalid without the employee's signature. Moreover, it is advisable to ask the employee not only to sign, but to write by hand a transcript of the signature - the name of I.O.)

The method of sending a written application by an employee is not regulated by law: it can be handed over to the employer (representative of the employer) personally by the employee or through a representative, sent by mail, fax, etc. (see Letter from Rostrud dated 05.09.2006 N 1551-6 "On the procedure for dismissing an employee at will"). The employee, if the application is sent by mail, should be sent in a way that would provide confirmation of the receipt by the employer of the application - by valuable or certified mail with a list of attachments and a receipt acknowledgment.

The employer must be able to identify the person from whom the written warning statement is issued. For example, if an employee sends a letter of resignation by telegram, then the employee's signature must be certified by the employee's affixing the "certified" mark (see paragraphs 108 -114 of the Order of the Ministry of Information Technologies of the Russian Federation of 09/11/2007 N 108 "On Approval of Requirements for the Provision of Telegraph Services regarding reception, transmission, processing, storage and delivery of telegrams ").

If there are doubts as to whether the application was sent by the employee himself (for example, the telegram is not certified), the decisive role is played by a set of actions taken by the employee himself and indicating his desire to terminate the employment contract (for example, repeated statements about the desire to terminate the employment contract, testimony about the fact that it was the employee who submitted the application; the employee's application for the issuance of a work book and wages, filling in the so-called roundabout sheets, arriving for check-out and work book on the last working day expected on the application, absence from work after the expiration of the period specified in the application , etc.).

The set of actions is also important when receiving a copy of the application by fax, via e-mail, etc. The fact is that the copies cannot be taken into account by the court, t.to. it is almost impossible to establish the prescription of the application, the authenticity of the employee's signature, etc. Therefore, the employer in this case must be especially careful and further clarify the will of the employee, incl. by sending him a written request to clarify the desire to quit. Upon receipt of a copy of the application by fax, e-mail, the employer must have the original of the employee's application.

1.3. The second requirement that the legislator makes is employer warning on termination of the employment contract in advance on time established by the legislation of the Russian Federation.

The term of the notice of dismissal of one's own free will may be common and special , those. differs depending on the category of employees and the circumstances of termination of the employment contract. General term established in part 1 of article 80 of the Labor Code of the Russian Federation - no later than two weeks until the day of termination of the employment contract. The word "not later" means the establishment minimal the duration of the term, the employee has the right to warn of dismissal and for a longer period.

Special dates warnings are established by the rules governing labor relations with a specific category of employees or in specific labor circumstances, incl. contained in other federal laws. Both a shorter and a longer minimum warning period can be set compared to the general one.

So, for example, three calendar days in advance of the termination of an employment contract is obliged to warn:

- an employee engaged in seasonal work (Article 296 of the Labor Code of the Russian Federation);

- an employee during a probationary period (Article 71 of the Labor Code of the Russian Federation);

A longer period - one month is set for:

- an employee - the head of the organization (Article 280 of the Labor Code of the Russian Federation);

- an athlete, a coach (Article 348.12 of the Labor Code of the Russian Federation), except for the case when the employment contract is concluded for a period of less than four months).

Other federal laws regulating relations with employees of a special category may also regulate the terms of notice of dismissal. For example, in accordance with Part 1 of Article 84 of the Federal Law of 30.11.2011 N 342-FZ "On Service in the Internal Affairs Bodies of the Russian Federation and Amendments to Certain Legislative Acts of the Russian Federation", an employee of the internal affairs bodies must submit a report one month in advance. before dismissal.

By agreement the employment contract between the employee and the employer may be terminated and before the expiration date dismissal warnings. The requirement to comply with the warning period may also be ignored in the cases established by part 3 of article 80 of the Labor Code of the Russian Federation. First of all, the employer is obliged to terminate the employment contract with the employee within the time period indicated by the latter in the application in certain cases. Such cases may include:

- the impossibility of continuing to work for certain circumstances (retirement, enrollment in an educational organization, moving to another place of residence, election as a deputy, etc.). The main criterion here is the objective impossibility of continuing to work for the employer;

Violation of labor legislation by the employer (norms of the Labor Code of the Russian Federation, other legal acts, local regulations, collective agreement, labor agreement).

In all of the above cases, the employer is obliged to terminate the employment contract within the time limits specified by the employee (subparagraph b), clause 22 of the Resolution of the Plenum of the RF Armed Forces No. 2).

The difficulty lies in the fact that the employer needs to determine how justified the employee's demand is and whether his case falls within the grounds specified in part 3 of article 80 of the Labor Code of the Russian Federation. Each case must be considered individually, taking into account the established judicial practice and explanations of the RF Armed Forces. The Supreme Court of the Russian Federation in the above-mentioned Resolution of the Plenum No. 2 in subparagraphs b) of paragraph 22 indicated that the valid reasons due to which the employee cannot continue to work may be different; some of them are indicated above, the RF Armed Forces also cites as an example the sending of a husband (wife) to work abroad, to a new place of service.

The employee must, within the meaning of Part 3 of Article 80 of the Labor Code of the Russian Federation, indicate in the application the reason for terminating the employment contract within the period specified by him (if it is less than the statutory period). In any case, the employer is advised to resolve this issue with the employee in a peaceful manner in order to avoid unnecessary waste of time and legal costs.

As for the second reason - violation by the employer of labor legislation, such violations must be installed , i.e. confirmed, in particular, by the bodies exercising state supervision and control over the observance of labor legislation, by trade unions, labor dispute commissions, by the court (subparagraph b) of paragraph 22 of the Resolution of the Plenum of the RF Armed Forces No. 2, article 80 of the Labor Code of the Russian Federation). Such violations may include: non-payment of wages, violation of labor protection conditions, etc. In judicial practice, there are cases when violations of labor legislation were not established by the above bodies, but the court recognized the employee's demands for early termination of the employment contract as justified. The criterion for this was the reality and obviousness of violation of labor legislation, in particular, non-payment of wages.

The calculation of the warning period is carried out according to the rules established in Articles 14 and 80 of the Labor Code of the Russian Federation. The period begins on the next day after the employer receives the employee's letter of resignation. This rule must be taken into account by the employee when sending a letter of resignation by mail, and it is necessary to write a statement taking into account the time of postal delivery, "with a margin". Meanwhile, if the employer receives the application later than the date of dismissal indicated in it, he has the right to terminate the employment contract within the period specified by the employee, i.e. "retroactively", as agreed by the parties. Judicial practice in this regard is positive for the employer. But it is not worth counting a two-week new period from the date of receipt of the application, since the indicated date of dismissal in the application has passed, and the employer is not entitled to decide for the employee when to leave.

Violation by the employee of the term for the notice of dismissal is the basis for the employer to disagree with dismissal within the term specified by the employee. In this case, the employer may send a written notification to the employee with a request to clarify the date of dismissal in accordance with the deadlines established by labor legislation.

Important: it is erroneous to consider the term of the warning as "working off". An employee is not obliged to work off, he can warn about dismissal even when he is absent from the workplace (sick leave, vacation, etc.). At the same time, the term is not interrupted. Dismissal of his own free will is also possible during the period when the employee is on vacation, during the period of temporary incapacity for work (see Rostrud Letter of 05.09.2006 N 1551-6). Dismissal of one's own free will is also possible in the event of an employee's pregnancy, since the prohibition on dismissal during pregnancy, established in part 1 of article 261 of the Labor Code of the Russian Federation, does not apply to cases of termination of an employment contract on the initiative of an employee.

An employee can resign of his own free will and with the provision of leave with subsequent dismissal.

1.4. In accordance with part 4 of article 80 of the Labor Code of the Russian Federation, an employee has the right to a warning before the expiration of the period at any time withdraw your letter of resignation ... Dismissal in this case is not made, unless another employee is invited in his place in writing, who, in accordance with labor legislation, cannot be denied to conclude an employment contract. Important: we are talking about cases when the obligation to accept an invited employee follows by force of law, and is not voluntarily assumed by the employer.

The employee has the right to withdraw the application even on the last working day, including in the case of a dismissal order and an entry in the work book. In this case, the order is canceled and the record is canceled. Failure to do so by an employee may lead to the court declaring the dismissal unlawful. In the case of granting leave with subsequent dismissal, the employee has the right to withdraw the application before the day of the start of the vacation (subparagraphs c) of paragraph 22 of the Resolution of the Plenum of the RF Armed Forces No. 2).

The form of withdrawal of the letter of resignation is not established by law, which means that it can be oral. If the employee can confirm the fact of withdrawal of the application, then the court recognizes the withdrawal form as appropriate, even if it was oral.

The controversial situation in practice is connected with the moment of receipt of the withdrawal of the application for dismissal by the employer. If the response is received before the termination of the dismissal, then everything is clear, but there are cases when the employer receives a response to the application after the termination of the dismissal (for example, the employee sent it by telegram or other mail). Judicial practice is ambiguous: the courts can side with the employee, since the employee sent his response within the term of the notice of dismissal, but they may recognize the dismissal as legitimate, since in fact the response was received outside the term of the notice and it does not matter that the employee sent a review before the expiration date. In fairness, it should be said that the first position is more significant in the share of judicial practice.

1.5. Termination of an employment contract at the initiative of the employee is carried out on the last working day, within the time period specified by the employee in the application. Moreover, the termination of the contract occurs even if the day is a day off for the employee with a shift work schedule. If the term falls on a day off, common for all employees and the employer (for example, Sunday, i.e. the employer does not carry out activities on this day), then the termination is carried out on the next working day following the weekend (for example, on Monday ). If the employee is on vacation or on sick leave, then the dismissal is still made on the day specified in the application, since the prohibition on dismissal while the employee is on vacation or during a period of temporary disability does not apply to cases of dismissal of the employee of his own free will.

According to part 6 of article 80 of the Labor Code of the Russian Federation, if after the expiry of the notice of dismissal, the employment contract was not terminated and the employee does not insist on dismissal, then the employment contract continues. Therefore, it is important to comply with the terms of registration of the dismissal.

The employer, in case of dismissal of the employee at his own request, draws up:

- an order to dismiss an employee under unified subparagraph 3 of paragraph 2 of article 4.1 of the Federal Law of December 29, 2006 N 255-FZ "On compulsory social insurance in case of temporary disability and in connection with motherhood."

The employee must be familiarized with the dismissal order against signature if the employee refuses or is unable to familiarize the employee with the order due to his absence from the workplace. In the order, the employer must make an appropriate note indicating the reasons for not acquainting the employee with the order.

It is important to comply with the dismissal procedure, especially in terms of the timing and correctness of the execution of orders, work book, since violations in this part can lead to the recognition of dismissal as illegal.

An order on the dismissal of an employee can be issued even before the last day of work specified in the employee's application, in order to prepare the relevant services of the employer for the dismissal of the employee (for example, so that the accounting department can carry out all the necessary calculations). If the employee withdraws the letter of resignation, the order is simply canceled.

On the last day of work, the employer is obliged to issue the employee a work book, other documents related to the work, upon written application of the employee and make the final settlement with him (part 5 of article 80 of the Labor Code of the Russian Federation).

If the employee is absent from the workplace, then the employer must send a notification to the employee about the need to appear for a work book or agree to send it by mail (part 6 of article 84.1 of the Labor Code of the Russian Federation). This must be done, even if the employer has discussed this issue orally with the employee (for example, by phone), because in the event of litigation, only a written notice will release the employer from liability for the delay in issuing a work book. If the employee does not agree to send the work book by mail, then the employer will be obliged to issue the work book within three working days from the date of receipt of the corresponding written request from the employee.

Settlement with the employee in the case under consideration is made no later than the day following the day the employee submits the corresponding request (Article 140 of the Labor Code of the Russian Federation).

1.6. An employer's violation of the procedure for dismissing an employee of his own free will can lead to negative consequences. In court proceedings, there are two possible outcomes for the employer: the decision is made in favor of the employee or the employer.

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How to challenge an employment contract? It is better to answer this question by clarifying other aspects: which structures to apply to, what requirements to file, what is the procedure for challenging and what positions the courts adhere to.

What cases of employment contracts are considered by the courts

The fact of concluding, changing and terminating an employment contract, as well as certain elements of its content, often become the subject of a dispute between workers and their employers. The resolution of individual conflicts between an individual employee and his employer is possible through negotiations or the application of a jurisdictional form of protection - an appeal to a labor dispute commission or to a court (Art. 382 Labor Code).

In addition, improper execution and evasion of an employment contract, as well as its substitution by a civil law agreement, are grounds for bringing employers to administrative responsibility under Part 4 of Art. 5.27 of the Administrative Code. In these cases, labor contracts or the fact of their absence are challenged on the initiative of representatives of executive authorities, and not participants in labor relations.

In order to assess the prospects for filing any claims on the basis of the revealed violation, it is necessary to study the existing law enforcement practice. Here are examples of challenging employment contracts in full and in part, successful and not.

Disputes about the conclusion of an employment contract: improper execution

The employer must understand that the use of an unexplored model form or sample from the Internet is fraught with trouble. The fact is that the inclusion of certain conditions in the text of the agreement may entail:

recognition of such a condition as invalid;
imposition of a fine on the basis of Part 4 of Art. 5.27 of the Administrative Code.

Based on judicial practice, improper execution of an employment contract may entail such consequences if it is expressed in the inclusion of conditions in it that:

Deprive employees of the choice provided by law. For example:

the rule on the granting of time off as compensation for overtime work in violation of Art. 152 of the Labor Code deprives the worker of the right to choose between receiving payment or additional rest time (appeal ruling (AO) of the Sverdlovsk Regional Court dated January 30, 2018 in case No. 33-593 / 2018);
the prohibition after dismissal to find a job with employers engaged in the same types of activities as the former employer, according to the Ministry of Labor, limits the employee's rights (letter dated 19.10.2017 No. 14-2 / B-942);
the clause on the jurisdiction of disputes arising from an employment contract restricts the constitutional right to access to justice and worsens the employee's position in comparison with the current legislation (definition of the Supreme Court of August 14, 2017 No. 75-KG17-4).

Reduce the level of guarantees and workers' rights, for example:

the rule on the amount of wages below the minimum wage in the constituent entity of the Federation (JSC of the Sverdlovsk Regional Court dated 06.04.2017 in case No. 33-5592 / 2017);
condition for an extended probationary period in violation of Art. 70 TC (JSC of the Moscow City Court dated 12.12.2017 in case No. 33-50578 / 2017).

Judicial practice on recognizing a fixed-term employment contract as indefinite

A properly executed agreement governing the legal status of an employee and an employer can cause disputes long after its conclusion. One of the stumbling blocks is the situation when a fixed-term contract acquires the status of an indefinite one.

On issues regarding the recognition of a fixed-term employment contract as an indefinite one, the courts concluded, for example, the following:

revealing the fact of multiple conclusion of fixed-term employment contracts for a short period to perform the same job function, taking into account the circumstances of the case, means that such an agreement is likely to be recognized as having an indefinite character (clause 14 of the resolution of the Plenum of the Supreme Court of 03.17.2004 No. 2);
the absence of the fact of timely notification of the expiration of a fixed-term agreement does not entail its recognition as indefinite and does not deprive the fact of dismissal of legal consequences (JSC St. Petersburg City Court dated May 23, 2012 No. 33-6551 / 2012);
if the event, taking into account the presence of which a fixed-term agreement was concluded, did not occur (for example, the main employee, during whose absence a temporary one was hired, quit before going to work), then the dismissal due to the expiration of the employment contract is unlawful, and such an agreement acquires an indefinite character (JSC of the Khabarovsk Regional Court dated 05.15.2015 in case No. 33-2752 / 2015).

Judicial practice on termination of an employment contract

Termination of the agreement between the employee and the employer can be made both by their mutual consent, and on the basis of the will of one of the counterparties. Despite the detailed regulation of the grounds and procedure for terminating the agreement, its legality is often called into question. The decisive opinion is usually made by the court, for example:

Upon dismissal for repeated failure to perform official duties, an employee who refuses to give explanations may be dismissed even before the expiration of 2 days from the moment of their reclamation. The Moscow City Court in the AO dated 26.10.2015 in case No. 33-35619 / 15 expressed the opinion that the employee, refusing to give explanations, exercises the right granted to him, and therefore it is not necessary to wait for the expiration of 2 days.
If there is no will of the employee expressed in the form of a written document about his intention to terminate professional legal relations with the employer, then the dismissal of the worker at his “will” will be illegal. So, the Nizhny Novgorod Regional Court in the AO dated March 29, 2016 in case No. 33-3645 / 2016 indicated that, since the application for termination of legal relations was signed by a third party, the employer was not entitled to dismiss the employee within the framework of paragraph 3 of Part 1 of Art. 77 TC.
In a situation where the employer dismisses an employee due to repeated failure to fulfill his job duties, and the employee, after reading the notice of the upcoming termination of legal relations, draws up a certificate of incapacity for work, the dismissal is recognized as lawful. The Moscow City Court in the AO dated November 18, 2015 in case No. 33-42423 / 2015 indicated that the worker's actions are an abuse of the right, since he intended to justify the illegality of the dismissal by the fact that on the day of dismissal he was on sick leave.

The procedure for considering a dispute and a court decision on changing the terms of an employment contract, terminating it, etc.

In order to know how to challenge an employment contract correctly, you should study the general procedure. If the parties apply for judicial protection, then it consists of the following stages:

Identification of violations and familiarization with the position of the law enforcement officer (court, labor dispute commission) regarding the consideration of similar disputes.
Going to court.

In accordance with Art. 22 of the Code of Civil Procedure, disputes arising from labor legal relations are considered by courts of general jurisdiction. In the first instance, these are district (city) courts.

The Supreme Court (SC) in paragraph 1 of the Resolution of the Plenum of 17.03.2004 No. 2 noted that the court, when accepting the statement of claim, must find out whether the dispute is a consequence of participation in labor relations and whether the case is subject to jurisdiction by a particular court. So, if the dispute concerns the terms of the employment agreement, which are of a civil nature (for example, the condition for the provision of housing to the worker), then the fact of their inclusion in the employment contract is not taken into account and the jurisdiction of the dispute (magistrate or district court) is determined according to general rules (Art . 23-24 CPC).

IMPORTANT! It is not worth making a claim to invalidate the employment contract.

Participation in court proceedings and obtaining a decision.

since changing the terms of the contract unilaterally is allowed only in cases directly provided for by law (Article 72 of the Labor Code), the court only evaluates the legality of the amendments made and may invalidate them;
if the court finds that the employee was unlawfully dismissed during the term of the fixed-term contract, and by the time the decision is made, the term has expired, then it recognizes the dismissal as illegal, and also orders to change the date and wording of the grounds for dismissal to terminate the employment contract due to the expiration of its term ( p. 60 of the resolution of the Plenum of the Armed Forces No. 2).

Judicial practice on recognizing an employment contract as invalid

Some participants in labor legal relations mistakenly believe that in a situation where an employment contract contains illegal conditions, the appropriate way to protect the right would be to invalidate such an agreement on the basis of an analogy with Art. 168 of the Civil Code, according to which a transaction that violates the requirements of a legal act is invalid.

However, the St. Petersburg City Court in its ruling dated 16.12.2010 No. 33-17080 / 2010 indicated that labor contracts are a special type, differing in their object. They are the performance of the labor function in compliance with the internal regulations established by the employer. The specifics of labor law in general and labor contracts in particular entails the impossibility of returning counterparties to their original position. This is due to the absence in labor legislation of norms on the invalidity of an employment contract.

The norms of Art. 168 of the Civil Code does not apply to the relationship between employees and the employer, therefore, instead of requiring the recognition of the agreement as invalid, one can state, for example, the following requirements:

on invalidation of certain conditions;
termination of legal relations, etc.

***

Summing up, we note that in general terms, you can find out how to challenge an employment contract successfully, guided by this article. However, in each specific case, it is necessary to take into account many factors - from identifying the nature of the dispute to assessing the prospects for challenging the provisions of the agreement, the facts of its conclusion, amendment or termination.

In accordance with Art. 20 of the Labor Code of the Russian Federation, an employer is an individual or legal entity (organization) that has entered into an employment relationship with an employee. Consequently, the lack of the status of a legal entity for an organization entails the impossibility of concluding both civil and labor contracts with individuals. 1_________________________1 Information on the results of generalization of the practice of consideration by the courts of the Rostov region of cases on claims of employees for the collection of wages ._________________________ By the way 1. An employee can apply for dismissal of his own free will during the period of absence from work (while on vacation, on sick leave). Having received it, the employer has the right to start looking for a new employee. 2. If the head of the organization is unable to satisfy the employee's request specified in his letter of resignation before the expiration of the two-week notice period, he must affix a “refuse” resolution on it and return it to the employee. At the same time, he should be explained that if he intends to resign of his own free will, he must submit a new letter of resignation with or without a mandatory warning period. The employer has the right to terminate the employment contract with the employee at the end of the term of the notice of dismissal of his own free will and in the event that during the warning period the employee fell ill and at the time of its termination continues to be ill, since the time of illness does not suspend the period after which the employee is subject to dismissal ._________________________ 1Definition The Constitutional Court of the Russian Federation of 19.05.2009 No. 597-O-O "On refusal to accept for consideration the complaint of citizen Ravinskaya Larisa Vadimovna on violation of her constitutional rights by Articles 11, 15, 16, 22 and 64 of the Labor Code of the Russian Federation." Rostov region for 2005 in cases of reinstatement at work. 3 E. A. Borisova, S. A. Gerasimenko, B. A. Gorokhov and others. Commentary on the decisions of the Plenum of the Supreme Court of the Russian Federation on civil cases / Ed. V. M. Zhuikova. 2nd ed., Rev. and add. Moscow: NORMA, 2008.4 Determination of the Supreme Court of the Russian Federation of 08.02.2008 No. 25-B07-22.5 Resolution of the Constitutional Court of the Russian Federation of 15.03.2005 No. 3-P paragraph 2 of clause 4 of Article 69 of the Federal Law "On Joint Stock Companies" in connection with the requests of the Volkhov City Court of the Leningrad Region, the Oktyabrsky District Court of the city of Stavropol and complaints from a number of citizens ".

6Definition of the Constitutional Court of the Russian Federation of 11/17/2009 No. 1375-O-O "On refusal to accept for consideration the complaint of citizen Anatoly Vasilyevich Kutikov on violation of his constitutional rights by part two of Article 76 of the Labor Code of the Russian Federation."

7Definition of the Constitutional Court of the Russian Federation of 13.10.2009 No. 1091-O-O "On refusal to accept for consideration the complaint of citizen Anatoly Nikolaevich Preminin on violation of his constitutional rights by Article 78 of the Labor Code of the Russian Federation."

Review of judicial practice of the Supreme Court of the Russian Federation for the fourth quarter of 2005.
_________________________