Abuse patterns: how employees manipulate their rights – case studies
Natalya Pakhomova, a lawyer for Pervaya Liniya, warns employers of potential abuse by employees of their rights in the field of labor relations in order to obtain benefits
As practice shows, often there are situations when an employee abuses his rights in labor relations by unscrupulously using the norms of labor legislation of the Russian Federation. This article is intended to warn the employer of possible abuse by the employee of his rights in order to protect the interests of the employer in cases where the employee wishes to benefit from the employer.
If the employee is dismissed in violation of the labor laws of the Russian Federation, this can lead to the restoration of the employee in his current position, payment of wages for the time of forced absence, compensation for non-pecuniary damage and expenses for representing the interests of the employee in the judiciary. According to article 391 of the Labor Code of the Russian Federation, consideration of labor disputes is carried out in court.
The most famous type of abuse of law is the employee’s actions upon dismissal.
So, one of the grounds for termination of employment with the employer is the termination of the employment contract at the initiative of the employee (at his own request) on the basis of a written application of the employee. There are situations when the employee brings to the personnel department an already signed application, that is, drawn up and executed not in the presence of the employer’s employees. Subsequently, the employee appeals to the court to invalidate the order of dismissal, to restore him to work, to recover average earnings during forced absenteeism and compensation for non-pecuniary damage, motivating his claims by the fact that he did not sign the letter of resignation and the dismissal was completed without his consent. As a rule, a judicial handwriting examination confirms that the employee did not write a letter of resignation.
The Grandmother’s District Court of Moscow, satisfying the lawsuit of the employee to restore him to work and collect wages for a forced absenteeism, in the decision on Case No. 2-3357 / 14 indicated the following:
“The plaintiff claims that she did not sign the application and did not intend to resign, since she was pregnant at that time and wanted to take advantage of the guarantees provided for by the current legislation for women at the time of birth.
The defendant’s witness – the head of the personnel department – at the hearing testified that the plaintiff had signed a letter of resignation in her presence.
At the request of the plaintiff, the court appointed a judicial handwriting examination. At the expert’s conclusion, the signature made on behalf of the plaintiff and located in her statement to the general director was not executed by the plaintiff, but by another person.
The court trusts the conclusion of a judicial handwriting examination, considers it to be relevant and admissible evidence, since the study was conducted by a specialist with appropriate professional training … ”
Based on the foregoing, the employer, in the event of the dismissal of the employee of his own free will, it is recommended to accept the execution of the corresponding application, drawn up and signed personally by the employee only in the presence of the employer employee.
In practice, there are employees, mainly human resources managers, who create and simultaneously record violations by the employer of labor law requirements with subsequent appeal to the judiciary.
So, when applying for a job, an employee may not provide the employer with a work book, motivating his actions with various reasons or promising to provide a work book later. Subsequently, after dismissal, such employees file a lawsuit against the employer to issue a work book, as well as to collect wages for the period of delay in its issuance.
Accordingly, when hiring a specialist, the employer must require the employee to fulfill the requirements established by Article 65 of the Labor Code of the Russian Federation, in particular, presenting the work book, unless the contract is concluded for the first time or the employee goes to work on a part-time basis. If at the conclusion of the labor contract the employee did not provide the workbook, then the employer must request a written application from the employee for a new workbook in accordance with article 65 of the Labor Code of the Russian Federation.