of March 17, 2004 No. 2
About application by courts of the Russian Federation of the Labor Code of the Russian Federation
Due to the questions which arose at courts in case of application of the Labor Code of the Russian Federation enacted since February 1, 2002, the Plenum of the Supreme Court of the Russian Federation for the purpose of ensuring the correct application of provisions of the called Code in case of permission of employment disputes decides to make to courts the following explanations:
Jurisdiction and cognizance of labor cases. General rules of permission courts of employment disputes
1. Owing to Item 1 of part 1 of article 22 CCP of the Russian Federation and Articles 382, of 391 Labor code Russian Federation (further - the Code, the Labor Code of the Russian Federation) cases on the disputes which arose from employment legal relationship are subordinated to courts of law.
Considering it, in case of adoption of the action for declaration the judge needs to determine whether the dispute follows from employment legal relationship, i.e. from such relations which are based on the agreement between the worker and the employer on personal accomplishment by the worker for a fee of labor function (work on position according to the staff list, professions, specialties with indication of qualification; specific type of the work charged to the worker), subordination of the worker to employment policies and procedures when providing with the employer the working conditions provided by the labor law and other regulatory legal acts, the collective agreement, agreements, local regulations, the employment contract (article 15 Labor Code of the Russian Federation) and also whether case to this court is jurisdictional.
If there was dispute over occasion of non-execution or improper execution of the conditions of the employment contract having civil character (for example, about provision of premises, about payment to the worker of the amount on acquisition of premises), then in spite of the fact that these conditions are included in contents of the employment contract, they in character are civil employer obligations and, therefore, cognizance of such dispute (district court or the magistrate judge) should be determined proceeding from general rules of determination of cognizance of the cases established Articles 23by -24 of the CCP of the Russian Federation.
Cases on recognition of illegal strike are jurisdictional to the Supreme Courts of the republics, regional, regional courts, courts of the federal cities, courts of the autonomous region and autonomous areas (part four of the article 413 Labor Code of the Russian Federation).
2. Considering that article 46 of the Constitution of the Russian Federation guarantees everyone the right to judicial protection and the Code does not contain regulations on obligation of preliminary extrajudicial procedure for permission of employment dispute the commission on employment disputes, person considering that its rights are violated at own discretion chooses method of permission of individual employment dispute and has the right or to address originally to the commission on employment disputes (except cases which are considered directly by court), and in case of disagreement with its decision - in court in ten-day time from the date of delivery to it the copy of the decision of the commission, or directly to take a legal action (Article 382, Article part two 390, the article 391 Labor Code of the Russian Federation).
If the individual employment dispute is not considered by the commission on employment disputes in ten-day time from the date of submission of the statement by the worker, he has the right to transfer its consideration to court (Article part two 387, part one of the article 390 Labor Code of the Russian Federation).
3. The application of the worker for recovery at work is submitted to district court from the date of delivery to it the copy of the dismissal order or from the date of issue of the service record in a month, or from the date of when the worker refused receipt of the dismissal order or the service record, and about permission of other individual employment dispute - in three-months time from the date of when the worker learned or shall learn about violation of the right (part one of the article 392 Labor Code of the Russian Federation, article 24 CCP of the Russian Federation).
4. In sense of the subitem 1 of Item 1 of Article 333.36 of part two of the Tax Code of the Russian Federation and the article 393 Labor Code of the Russian Federation workers in case of appeal to the court with claims for recovery at work, collection of the salary (monetary pay) and other requirements following from employment relationships including concerning failure to carry out or inadequate accomplishment of the conditions of the employment contract having civil character are exempted from payment of court costs.
5. The judge has no right to refuse adoption of the action for declaration based on the omission without valid excuse of circulation period in court (parts one and the second the article 392 Labor Code of the Russian Federation) or term on appeal of the decision of the commission on employment disputes (part two of the article 390 Labor Code of the Russian Federation) as the Code does not provide such opportunity. Also the decision of the commission on employment disputes on refusal in satisfaction of the requirement of the worker in connection with the omission of term on its presentation is not obstacle to initiation of labor case in court.
Proceeding from content of paragraph one of part 6 of article 152 CCP of the Russian Federation, and also part 1 of article 12 CCP of the Russian Federation according to which justice on civil cases is performed on the basis of competitiveness and equality of participants the question of the omission by the claimant of circulation period in court can be resolved by court under condition if it it is declared by the defendant.
By preparation of case for legal proceedings it must be kept in mind that according to part 6 of article 152 CCP of the Russian Federation the defense statement concerning the omission the claimant without valid excuse of circulation period in court behind permission of individual employment dispute can be considered by the judge in preliminary judicial session. Having recognized the reasons of the omission of term valid, the judge has the right to recover this term (part three of Article 390 and part three of the article 392 Labor Code of the Russian Federation). Having determined that circulation period in court is passed without valid excuse, the judge makes the decision on refusal in the claim for this basis without research of other actual circumstances on case (paragraph two of part 6 of article 152 CCP of the Russian Federation).
If the defendant makes the statement for the omission by the claimant of circulation period in court (parts one and the second the article 392 Labor Code of the Russian Federation) or term on appeal of the decision of the commission on employment disputes (part two of the article 390 Labor Code of the Russian Federation) after purpose of case to legal proceedings (article 153 CCP of the Russian Federation), it is considered by court during legal proceedings.
As reasonable excuses of the omission of circulation period in court the circumstances interfering this worker timely can be regarded to appeal with the claim to court behind permission of individual employment dispute (for example, disease of the claimant, stay it in business trip, impossibility of appeal to the court owing to force majeure, need of implementation of care of seriously ill patients by family members).
6. For the purpose of the most bystry permission of the arisen employment dispute and recovery of the violated or disputed claimant's rights without consideration by court of case on being the judge needs to take measures to conciliation of the parties (Article 150, of 152, of 165, 172 and 173 CCP of the Russian Federation).
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