Art. 392 of the Labor Code of the Russian Federation. Terms of going to court for resolution of an individual labor dispute
Not always the relationship of the manager and employees flow smoothly. Often conflicts arise that cannot be resolved peacefully. The law establishesterms of going to court for resolution of an individual labor dispute.
In the current legislation is presentst. 392 of the Labor Code of the Russian Federation. It provides for periods during which the subjects may apply to the authorized instances with claims. ATPart 1 of Art. 392 of the Labor Code of the Russian Federationit's about employee rights. In accordance with the provisions of the norm, the employee may file a claim within 3 months. from the date when he became or could become aware of the infringement of his interests. If the conflict is associated with dismissal, then the period is reduced to a month. The calculation is carried out from the day they receive a copy of the order or employment record.If the conflict is related to non-payment (partial or total) of the amounts due, he may file a claim within a year.Part 2 of Art. 392 of the Labor Code of the Russian Federationwhich establishes this period determines that the calculation starts from the moment when the deductions were to be made. In some cases, conflicts are associated with harm to the employer. ATst. 392 of the Labor Code of the Russian Federation(Part 3) set the period in which the head of the organization can file a claim for compensation for losses. It is 1 year from the date the damage was discovered.Art. 392 of the Labor Code of the Russian Federationpermits the recovery of the period missed for a good reason for filing a claim.
Art. 392 of the RF Labor Code with comments
The consequence of skipping established periods is the loss of the opportunity to defend their rights. If the subject filed a statement after the expiration of the term, the court may refuse to accept it. Meanwhile, the legislation provides for the possibility of restoring the period. To do this, the subject must prove that the reasons for which he did not file an application within the prescribed period are valid. In practice, as noted by many lawyers, the employee is more likely to meet, because for him there are short periods in which he can complain.The exceptions are cases when the conflict is connected with non-payment of amounts due to the employee. In this situation, the court often does not recognize the reasons as valid. The same situation is with the employer who missed the established period. It is worth noting that the rules enshrined in Art. 392 of the Labor Code of the Russian Federation should be respected by representatives of the trade union acting on behalf of the employees.
In Resolution No. 2 of March 17, 2004, paragraph 56 states thatconsideration of individual labor disputeson claims of employees, relations with which the employer has not ceased, to recover the accrued but unpaid amounts, taking into account the fact that the statements of managers about the passage of employees of the established period to apply to the authorized institution, can not in itself act as a basis for refusing to satisfy requirements. This position Sun explains as follows. In this case, the violation has a lasting character. The duty of the employer for the timely and full payment of salaries and, moreover, the amounts delayed, will be maintained throughout the entire period of the contract.
Inspector General's Opinion
In addition to the provisions of the above Resolution, it is explained that the above-mentioned concept of “accrued” wages should not be taken as a mandatory norm, which excludes the application of legislation in cases of unfair behavior of an employer who did not calculate and hid this fact from the employee. The opinion of the SC should be regarded as an additional focus on the general nature of the principle of the inapplicability of limitation periods in cases involving the recovery of unearned income. The corresponding conclusion follows from the provisions of Article 395 of the Code governing the procedure for the satisfaction of the employee’s claims. In case of recognition of their justified, the recovery is made in full. Article 395 applies to system communications from art. 237, 142, 140, 139 and paragraph 57 of the above Resolution. They contain no mention of the “accrued” amount, but the employee’s rights and obligations of the employer for the timely and full payment of earnings, the value of which is calculated according to the established procedure.
The literal interpretation of Art. 392 of the Labor Code of the Russian Federation
The rule provides for periods in which the employer and the employee may file claims with the authorized instances.In this case, it is necessary to take into account the difference in formulations in the article regarding the beginning of their course for each of the subjects. In particular, for employers consideration of individual labor disputes can be carried out from the moment of detection of losses subject to compensation. As for the employees, they can file claims with the date when they could become or became aware of the violations committed. Such a formulation practically excludes the probability of non-compliance with the established periods. Every time an employee believes that his right has been violated, he cannot be sure of that or know it for sure until he has documentary evidence of the validity of his claims. It should not be forgotten that at the same time the defendant believes that he did not violate anyone’s right.
The law establishes the ability of an employee to apply to the commission, state inspection, court and prosecutor's office. In these instances, a citizen can receive explanations on his questions, confirming the validity of claims against the employer. In practice, there may be certain risks of skipping the periods provided for in Art. 392 of the Labor Code of the Russian Federation.The most common situations are considered cases of contacting the KTS, the prosecutor's office or the IHT and rendering a decision in favor or not in favor of the employee. In addition, period skipping is possible when submitting an application to the court without complaining to the indicated authorities. Let us examine these situations.
Appeal to the prosecutor's office, the CTS, the IHT and the decision in favor of the applicant
In this case, the employee will have official confirmation of his assumption that the employer violated the rights. Referring to article 389. According to the norm, on the basis of a certificate provided by the CCC and submitted no later than 3 months. from the date of receipt, the bailiff enforces the decision. With regard to the GIT, in this case, the rule of subparagraphs 2 and 11 of the 83 article. The inspection decision is, among other things, a refutation of the employer's opinion that he did not violate the interests of the employee. From the date of the relevant decision, the period in which the subject may file a lawsuit begins. If the employer fails to comply with the prescriptions of the authorities within the specified period, the employee will lose his right to appeal to the court. In this regard, it is recommended to first make and sue, and then send applications to the CCC, the prosecutor's office or the GIT. Should consider one nuance.If a term is missed, if he first appeals to the commission, the inspection or the prosecutor’s office, the applicant’s arguments that he timely sent complaints to these bodies will be declared insolvent by the court.
The decision is not in favor of the employee
In this case, the following situation. When contacting the prosecutor's office, ITB or CTS, the employee does not know for sure if his rights were violated. If the decision is rendered against him, it also remains unknown to him. Rather, it will be the opposite. The employee knows that his rights are respected, although he himself believes that they have been violated. Naturally, the period that is set aside for filing an appeal to the court does not begin to flow.
Filing a lawsuit
When submitting the application directly to the court, the employee does not know about the infringement of rights, regardless of whether he assumes it or is deeply convinced of this. The employee will be aware of this only after the court makes a decision. The countdown of the established period for filing a claim is terminated on the day of its filing. In this case, it will not matter how the employee became aware of the infringement of his right: from the moment of the announcement of the decision or its entry into force.
If the employee has not sent a statement to the GIT, the prosecutor's office, the CCC, the court, then he cannot know for sure whether his right has been violated. Similarly, the employer does not know whether his actions against the employee are legitimate. Both of them can assume and consider anything, draw opposite conclusions. The employee will be able to learn about the infringement of rights in a particular conflict only after receiving the relevant decision, decision of one of the authorized bodies. Up to this point, all remain in ignorance. If the participants in the conflict, before receiving the decision, knew for sure about the violation of rights, the employer would take lawful actions, and the employee of the company would not file a lawsuit. Why do you need to sue, if everyone already knows who, to what extent and whose interests are infringed? From this we can conclude that the wording given in Art. 392 (Part 1), virtually eliminates the probability of missing a set period.
Quite often, the subjects of the relationship are interested in whether the norm has a retroactive effect? Art. 392 of the Labor Code of the Russian Federation applies to all situations arising after its introduction into action. The extension of the norm to cases that occurred before this point should be provided for in it itself.It is worth saying that the earlier current edition did not contain a clause establishing a period for filing a claim when the employee was not paid (in full or in part). Submitted to art. 392 of the Labor Code of the Russian Federation, changes are valid from 2016. The adjustments were made to Federal Law No. 272 dated July 3 of that year. Accordingly, the cases related to non-payment were not previously specified separately, and they were subject to a three-month period. Accordingly, the subjects after the entry into force of the amendments could not take advantage of them in the framework of the conflicts that arose earlier.
Thus, having analyzed the wording of the first part of Article 392, it can be said that it is almost impossible to miss the period set aside for filing a claim. The exceptions are cases when an employee first submits an application to the prosecutor's office, the IHT or the CCC. However, even in these cases, if the decision of the authorities is not in favor of the employee, the term of appeal to the judicial authority will not be missed. This is due to the fact that, upon receiving the order, the employee will not know whether his interests have been violated, as well as before sending the application. The employee will be reliably aware of the infringement of their rights only after a decision is made by the court, prosecutor's office, GIT or the CCC.In order to avoid uncertainty, people who often do not face conflicts, experts recommend to apply to the union. As a rule, in this body there are people who are better versed in such situations. In addition, if necessary, the interests of the employee may be represented by a member of the trade union. In some cases it is advisable to use the services of an experienced lawyer.