Disputes regarding the recovery of wages from an employer
Despite the agreement concluded by the employment agreement regarding wages: what it consists of, how many times it should be paid, disagreement often arises between the employee and the employer regarding wages.
After dismissal disputes, wage claims are the second most common among parties to an employment contract.
| Important! The employer's responsibility for paying remuneration for labor is regulated by Articles 236 of the Labor Code and 145.1 of the Criminal Code. |
If an employee has been accrued but not paid a salary, and the amount of debt does not exceed 500 thousand rubles, recovery of wages through the court is considered within the framework of Chapter 11 of the Code of Civil Procedure of the Russian Federation “court order”. This means that if an application is submitted along with documents that confirm the validity of the application, a court order to collect wages will be issued within 5 days after receipt of the application. The trial will not be scheduled, and the judge will not call the parties for hearings either - Art. 122 Code of Civil Procedure of the Russian Federation.
| Important! From the date of receipt of the court order, the employer will have 10 days to submit objections, if any, to the court. |
In other cases, it is necessary to prepare a statement of claim for recovery of wages and submit it to the court on a general basis.
Labor disputes are considered by the district court, the claim is filed at the place of residence of the employee or at the location of the employer. Art. 392 in the second part on the collection of wages determines the limitation period - 1 year from the date of the established payment deadline.
Judge Razumnykh N.M. Case No. 33-2964/2020 A-045g
Case No. 2-1814/2019 UID 24RS0046-01-2019-000479-37
KRASNOYARSK REGIONAL COURT
APPEAL DECISION
On May 27, 2021, the Judicial Collegium for Civil Cases of the Krasnoyarsk Regional Court, consisting of
presiding officer: Kiseleva A.A.,
judges: Baimova I.A., Belyakova N.V.,
when keeping the minutes by assistant judge Subbotin A.Yu.,
considered in open court based on the report of Judge I.A. Baimova.
civil case on the claim of Nikolai Viktorovich Kozulin against A Engineering LLC for the collection of arrears of wages, compensation for unused vacation, monetary compensation for late payment, average earnings during forced absence due to non-issuance of a work book, compensation for moral damage,
on the appeal of the plaintiff Kozulin N.V.,
on the decision of the Sverdlovsk District Court of Krasnoyarsk dated November 14, 2021, which decided:
“In satisfaction of the stated claims of Nikolay Viktorovich Kozulin against A Engineering LLC for the recovery of underaccrued wages for the period of work from 10/03/2016 to 08/10/2018 based on the minimum wage, compensation for unused vacation for the period of work from 10/03/2016 to 08/10/2018 in the amount of 32.67 calendar days in the total amount of 343,511.33 rubles, monetary compensation for late payment of underaccrued wages and compensation for unused vacation for the period from 11/06/2016 to 11/06/2019 in the amount of 861,833 .53 rubles, average earnings during forced absence due to the delay in issuing a work book for the period from December 2021 to October 2021 in the amount of 262,207.73 rubles, compensation for moral damage in the amount of 50,000 rubles, as well as legal expenses for legal services in the amount of 14,900 rubles. refuse"
After hearing the speaker, representative of the plaintiff Kozulin N.V. – Kalinina A.M. (based on order No. dated May 27, 2010) and the representative of A Engineering LLC - Rauta D.I. (based on the power of attorney dated May 1, 2019), judicial panel,
INSTALLED:
Kozulin N.V. filed a lawsuit against A Engineering LLC, in which, taking into account the clarification of the stated claims, he asked to recover:
- underaccrued and unpaid wages for the period of work from 10/03/2016 to 12/04/2017, based on the MRO (RUB 97,046.17 + RUB 221,248.93), additional payment for 14 days of used vacation (RUB 9,882.65) and compensation for 18.67 days of unused vacation upon dismissal (RUB 15,333.58), for a total of RUB 343,511.33,
— monetary compensation for late payment of underaccrued wages (RUB 20,937.18 + RUB 76,282.34), vacation pay (RUB 2,841.11), and compensation for unused vacation RUB 3,076.44) for the period from November 6, 2016 year to 01/10/2019,
— compensation for the delay in issuing a work book for the period from December 2021 to October 2021 in the amount of RUB 262,207.73,
— interest on debt for late work book for the period from 01/06/2018. until January 10, 2019 in the amount of 29081.08 rub.,
- compensation for moral damage in the amount of 50,000 rubles, as well as court costs for legal services in the amount of 24,900 rubles.
The requirements are motivated by the fact that Kozulin N.V. from 10/03/2016 to 12/04/2017, he was in an employment relationship with A Engineering LLC, working as an engineer. The amount of his salary during this period of work in violation of the requirements of Part 3 of Art. 133 of the Labor Code of the Russian Federation, taking into account the standard working time, was 6,500 rubles, that is, less than the minimum wage established in the territory of the Russian Federation, which was subsequently subject to a northern allowance of 30% and a regional coefficient of 30%. Since the employer did not pay wages in full for the period of work, vacation pay for two weeks of July 2021. were not paid, payment for 3 months and 4 days before dismissal was not made (taking into account the plaintiff’s suspension of work from November 10, 2017 due to non-payment of wages), compensation for unused vacation upon dismissal was also not paid, the work book upon dismissal was not given to the plaintiff was issued, in connection with which he has the right to compensation for average earnings for the period of delay in its issuance, the plaintiff determined the total amount of the defendant’s debt to him as of 08/10/2018. in the amount of 605,719.06 rubles, and taking into account the amount paid to him 36,466.47 rubles, the principal debt as of 01/10/2019. amounted to 569,252.59 rubles, the amount of interest as of 01/10/2019. - 217,680.94 rubles, and the total amount of debt for all payments, according to the updated claims, amounted to 786,933.53 rubles, and in total the plaintiff asked to recover from the defendant, taking into account compensation for moral damage and legal costs, 861,833.53 rubles.
The court made the above decision.
In the appeal, the plaintiff Kozulin N.V. asks to cancel the court's decision and make a new decision to satisfy the claims, citing the court's incorrect conclusion that there were no valid reasons for missing the deadline for filing a lawsuit regarding some of the claims, since the plaintiff applied to the labor inspectorate 9 months after his dismissal. In addition, the fact that the employer delayed the issuance of a work book to the plaintiff upon dismissal was confirmed, and therefore, the demands for compensation for the period of delay were wrongfully refused.
Having checked the case materials and the decision of the court of first instance in accordance with Part 1 of Art. 327.1 of the Code of Civil Procedure of the Russian Federation, within the limits of the arguments of the plaintiff’s appeal, having heard the representative of the plaintiff, who supported the arguments of the appeal, the representative of the defendant, who agrees with the court’s decision, having discussed the arguments of the appeal, the judicial panel comes to the following.
The provisions of Art. 22, art. 129, art. 135, art. 136 Art. 148, art. 140 of the Labor Code of the Russian Federation establishes the employer’s obligation to pay the employee in full the wages due, established by the employment contract in accordance with the current employer’s remuneration systems, including compensation payments for work in special climatic conditions within the time limits established by the internal labor regulations, collective agreement, employment contract, and upon termination of the employment contract, pay all amounts due to the employee from the employer on the day of dismissal.
By virtue of Art. 127 of the Labor Code of the Russian Federation, upon dismissal, an employee is paid monetary compensation for all unused vacations.
Part 2 of Art. 392 of the Labor Code of the Russian Federation as amended by Federal Law No. 272-FZ, in force since October 3, 2016, it is established that to resolve an individual labor dispute regarding non-payment or incomplete payment of wages and other payments due to an employee, he has the right to go to court within one years from the date of the established deadline for payment of the specified amounts, including in the case of non-payment or incomplete payment of wages and other payments due to the employee upon dismissal.
The case materials confirm that Kozulin N.V. from October 3, 2016 to December 4, 2017, he was in an employment relationship with A Engineering LLC as an engineer, and was dismissed under clause 3, part 1, art. 77 Labor Code of the Russian Federation.
According to the terms of the parties’ employment contract dated September 30, 2016, the plaintiff’s place of work was Krasnoyarsk, which obligated the employer to calculate and pay wages, taking into account compensation payments in the form of a regional coefficient of 30%.
According to the entries in the work book of N.V. Kozulin, born 07/05/1990, before being employed by the defendant, he had no work experience, which was confirmed by the plaintiff in the court of first instance, in connection with which, the defendant, taking into account the decisions of the CPSU Central Committee, the Council of Ministers USSR and All-Union Central Council of Trade Unions dated April 6, 1972 No. 255; Council of Ministers of the USSR and the All-Russian Central Council of Trade Unions dated September 24, 1989. No. 794, instructions “On the procedure for providing employees of enterprises, institutions, organizations located... in the southern regions of the Krasnoyarsk Territory...", approved by order of the Ministry of Labor of the RSFSR dated November 22, 1990. No. 3 was obliged to accrue and pay wages to the plaintiff who had not reached 30 years of age, taking into account the percentage bonus for work in the southern regions of the Krasnoyarsk Territory after six months of work, that is, from 04/03/2017. in the amount of 10%, after another six months of work, that is, from 10/03/2017. – in the amount of 20%.
According to the parties’ employment contract, the plaintiff’s salary is 6,500 rubles.
There are no documents on the amounts accrued to the plaintiff for the period of work in the case materials, with the exception of the period September-December 2021.
Based on the calculation of compensation for unused vacation upon dismissal of the plaintiff, the amount of his salary from December 2021 until November 2021 was 8000 rubles. monthly.
Information about the amounts of wages paid to the plaintiff during the period of work was not presented in the case.
The plaintiff filed claims for the collection of arrears of wages, based on their non-payment during the entire period of work.
Resolving the dispute, the court of first instance came to the conclusion that the plaintiff, without good reason, missed the deadline for filing demands for the collection of unpaid wages for the period from October 2016 to October 31, 2017, based on the appeal of N.V. Kozulin. to the court with these requirements on January 28, 2019, established by clause 5.4 of the employment contract of the parties, the deadline for payment of full wages is the 05th day of the month following the settlement month, and the periods of inspections by the State Labor Inspectorate in the Krasnoyarsk Territory and the prosecutor's office of the Sverdlovsk district of Krasnoyarsk according to the plaintiff’s statements (within a total of 82 days), which the court deducted from the established Art. 392 of the Labor Code of the Russian Federation, a one-year period for an employee to go to court on claims for the recovery of wages.
In this regard, the court came to the conclusion that the period calculated on a monthly basis, including for October 2021 - until November 5, 2018 to January 28, 2019. expired taking into account the one-year period + 82 days attributable to the above checks, and was missed by the plaintiff for the entire previous period.
Taking into account the defendant’s statement about missing the deadline for the specified claims, the lack of evidence of valid reasons for missing this deadline by the plaintiff, the court refused to satisfy the demands of N.V. Kozulin. for the period from 03.10.2016 until 31.10. 2017.
In this regard, the court determined the defendant’s debt to the plaintiff for wages only for November and December 2021. (before the day of dismissal), calculating it in the amount of 13,668.57 rubles, based on the size of the minimum wage with the addition of a “northern” bonus of 30% and a regional coefficient of 30%, according to the detailed calculation given in the court decision.
The panel of judges cannot agree with such conclusions of the trial court, since they do not correspond to the norms of substantive law.
So, by virtue of Part 4 of Art. 392 of the Labor Code of the Russian Federation, if the deadlines established by parts one, two and three of this article are missed for good reasons, they can be restored by the court.
In paragraph 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” it is explained that circumstances that prevented the employee from filing a complaint in a timely manner may be regarded as valid reasons for missing the deadline for applying to the court. filing a lawsuit to resolve an individual labor dispute.
According to paragraph 16 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2018 No. 15 “On the application by courts of legislation regulating the labor of workers working for employers - individuals and for employers - small businesses that are classified as micro-enterprises”, valid reasons for missing the deadline for filing an appeal in court for the resolution of an individual labor dispute, the timely application of an employee with a written statement of a violation of his labor rights to the prosecutor's office and (or) to the state labor inspectorate - bodies authorized to protect the labor rights of the employee before the employer, which in relation to the employer was accepted an appropriate decision to eliminate violations of the employee’s labor rights, as a result of which the employee has legitimate expectations that his rights will be restored out of court.
The case materials contain indisputable information about the plaintiff’s initial appeal on June 13, 2018. to the State Labor Inspectorate in the Krasnoyarsk Territory with a statement about non-payment of compensation upon dismissal (wages for 3 months 4 days, vacation pay for 2 weeks, compensation for unused vacation) and non-issuance of a work book, as well as an appeal on 08/09/2018. to the prosecutor's office of the Sverdlovsk district of Krasnoyarsk with a similar statement, as well as indicating non-payment of wages for the entire period of work in an amount not less than the minimum wage.
Taking into account that as a result of the inspections carried out by these bodies, response measures were taken, including the submission of the prosecutor to pay the plaintiff a settlement upon dismissal in the amount of 30,115.15 rubles, as well as monetary compensation under Art. 236 of the Labor Code of the Russian Federation for September-December 2021, and Kozulin N.V. 01/10/2019 the defendant transferred 30,115.15 rubles accordingly. as arrears of wages and 6351.32 rubles. as a penalty for delayed payment of wages, after which the plaintiff 01/28/2019. filed this claim in court, the specified circumstances indicate that the plaintiff missed the deadline for filing a lawsuit on those requirements for which established by Art. 392 of the Labor Code of the Russian Federation, the deadline was not missed for the dates of his appeal to the State Inspectorate of the Territory and the district prosecutor's office.
In addition, it follows from the case and the materials of the inspections of the above authorities confirmed that the employer accrued to the plaintiff the amounts of wages for September-December 2021 and compensation for unused vacation upon dismissal on December 4, 2017, in connection with which the deadline for applying to the court was subject to these amounts calculated from December 4, 2017, and not monthly.
Under such circumstances, the panel of judges comes to the conclusion that the plaintiff, for good reasons, missed the deadline for filing a claim with the court for the recovery of unaccrued wages in the amount of at least the minimum wage, starting in August 2021, for claims for vacation pay in July 2021. , as well as on claims for accrued wages and compensation for unused vacation.
In this regard, based on the size of the minimum wage in the Russian Federation, the regional coefficient -30% and the northern bonus, respectively, 10% when calculating the plaintiff’s wages for August and September 2021. and in the amount of 20% for the period from October to December 2021, the amount of the defendant’s debt to N.V. Kozulin. for wages for the period from August to December 2021 will be 46,354.29 rubles, according to the following calculation: 7,800 rubles. x1.4 = 10920 rub. x2 (August – September) +7800 rub.x1.5= 11700 rub. x2 (October-November) + 1114, 29 rub. for 2 working days in December (11700:21x2).
Since the plaintiff’s employer, based on the prosecutor’s submission on January 10, 2019. wage arrears for the same period were partially paid: September-December 2021. (until December 4, 2017) in the amount of 30,115.15 rubles, which also includes 8,551.44 rubles. compensation for unused vacation, paid on account of wages in the amount of 21,563.71 rubles. (30115.15 – 8551.44) is subject to offset.
Thus, the defendant’s wage arrears to the plaintiff, subject to recovery, amount to RUB 24,790.58.
In this regard, the court decision regarding the refusal to satisfy the claims of Kozulin N.V. to LLC "A Engineering" for the collection of arrears of wages is subject to cancellation with the adoption of a new decision to collect from LLC "A Engineering" in favor of the plaintiff arrears of wages for the period from August 1, 2021 to December 04, 2021 in the amount of 24790.58 rubles (46357.29-21603.71)
There is no evidence of granting the plaintiff a two-week vacation in July 2021 in the case materials; accordingly, there are no grounds for collecting the amount of their payment.
Based on the calculation of compensation for unused vacation provided by the defendant in the case materials, the amount of the plaintiff’s salary for the period from December 2021 until November 2021 was 8,000 rubles monthly, taken into account when calculating average daily earnings.
Taking into account the amount of wages to be recovered in favor of the plaintiff for August-November 2017 - 42,240 rubles. and the amount of wages indicated by the employer Kozulin N.V. for December 2021 – July 2021 – 64,000 rubles, the amount of compensation due to the plaintiff for 18.67 cal/days of unused vacation (within the stated requirements) will be 5,641.35 rubles. = 106240 rub. (42240 rubles + 64000 rubles): 29.3612= 302.16 rubles x 18.67k\day.
Since the employer accrued and paid the plaintiff (as part of the amounts transferred on January 10, 2019) compensation for unused vacation in a larger amount, the defendant owes such payment to N.V. Kozulin. is absent, and therefore, the court decision in this part is essentially correct and cannot be canceled or changed.
At the same time, taking into account that the amount of wages due to the plaintiff for payment for August-December and compensation for unused vacation upon dismissal were not paid in a timely manner, the court decision regarding the refusal to collect from the defendant also monetary compensation for late payment of wages and compensation for unused the vacation is subject to cancellation with the adoption of a new decision on recovery from A Engineering LLC in favor of N.V. Kozulin. monetary compensation for delayed payment of wages and compensation for unused vacation in the amount of 5551.61 rubles, based on the following calculation.
Start of delay: 06.09.2017 End of delay: 10.01.2019 Calculation of interest on salary arrears for August 2017 Debt Overdue period Bid Share bet Formula Interest With By days 10 920,00 06.09.2017 17.09.2017 12 9,00 % 1/150 10 920,00 * 12 * 1/150 * 9% RUB 78.62 10 920,00 18.09.2017 29.10.2017 42 8,50 % 1/150 10 920,00 * 42 * 1/150 * 8.5% RUR 259.90 10 920,00 30.10.2017 17.12.2017 49 8,25 % 1/150 10 920,00 * 49 * 1/150 * 8.25% RUB 294.29 10 920,00 18.12.2017 11.02.2018 56 7,75 % 1/150 10 920,00 * 56 * 1/150 * 7.75% RUB 315.95 10 920,00 12.02.2018 25.03.2018 42 7,50 % 1/150 10 920,00 * 42 * 1/150 * 7.5% RUR 229.32 10 920,00 26.03.2018 16.09.2018 175 7,25 % 1/150 10 920,00 * 175 * 1/150 * 7.25% RUB 923.65 10 920,00 17.09.2018 16.12.2018 91 7,50 % 1/150 10 920,00 * 91 * 1/150 * 7.5% RUR 496.86 10 920,00 17.12.2018 10.01.2019 25 7,75 % 1/150 10 920,00 * 25 * 1/150 * 7.75% RUB 141.05 Total: RUB 2,739.64 Calculation of interest on salary arrears for September 2017 Debt Overdue period Bid Share bet Formula Interest With By days 10 920,00 06.10.2017 29.10.2017 24 8,50 % 1/150 10 920,00 * 24 * 1/150 * 8.5% RUB 148.51 10 920,00 30.10.2017 17.12.2017 49 8,25 % 1/150 10 920,00 * 49 * 1/150 * 8.25% RUB 294.29 10 920,00 18.12.2017 11.02.2018 56 7,75 % 1/150 10 920,00 * 56 * 1/150 * 7.75% RUB 315.95 10 920,00 12.02.2018 25.03.2018 42 7,50 % 1/150 10 920,00 * 42 * 1/150 * 7.5% RUR 229.32 10 920,00 26.03.2018 16.09.2018 175 7,25 % 1/150 10 920,00 * 175 * 1/150 * 7.25% RUB 923.65 10 920,00 17.09.2018 16.12.2018 91 7,50 % 1/150 10 920,00 * 91 * 1/150 * 7.5% RUR 496.86 10 920,00 17.12.2018 10.01.2019 25 7,75 % 1/150 10 920,00 * 25 * 1/150 * 7.75% RUB 141.05 Total: RUB 2,549.63 Calculation of interest on salary arrears for October 2017 Debt Overdue period Bid Share bet Formula Interest With By days 11 700,00 06.11.2017 17.12.2017 42 8,25 % 1/150 11 700,00 * 42 * 1/150 * 8.25% RUB 270.27 11 700,00 18.12.2017 11.02.2018 56 7,75 % 1/150 11 700,00 * 56 * 1/150 * 7.75% RUB 338.52 11 700,00 12.02.2018 25.03.2018 42 7,50 % 1/150 11 700,00 * 42 * 1/150 * 7.5% RUR 245.70 11 700,00 26.03.2018 16.09.2018 175 7,25 % 1/150 11 700,00 * 175 * 1/150 * 7.25% RUB 989.63 11 700,00 17.09.2018 16.12.2018 91 7,50 % 1/150 11 700,00 * 91 * 1/150 * 7.5% RUB 532.35 11 700,00 17.12.2018 10.01.2019 25 7,75 % 1/150 11 700,00 * 25 * 1/150 * 7.75% RUB 151.13 Total: RUB 2,527.60 Calculation of interest on salary arrears for November 2017 Debt Overdue period Bid Share bet Formula Interest With By days 11 700,00 04.12.2017 17.12.2017 14 8,25 % 1/150 11 700,00 * 14 * 1/150 * 8.25% 90.09 rub. 11 700,00 18.12.2017 11.02.2018 56 7,75 % 1/150 11 700,00 * 56 * 1/150 * 7.75% RUB 338.52 11 700,00 12.02.2018 25.03.2018 42 7,50 % 1/150 11 700,00 * 42 * 1/150 * 7.5% RUR 245.70 11 700,00 26.03.2018 16.09.2018 175 7,25 % 1/150 11 700,00 * 175 * 1/150 * 7.25% RUB 989.63 11 700,00 17.09.2018 16.12.2018 91 7,50 % 1/150 11 700,00 * 91 * 1/150 * 7.5% RUB 532.35 11 700,00 17.12.2018 10.01.2019 25 7,75 % 1/150 11 700,00 * 25 * 1/150 * 7.75% RUB 151.13 Total: RUB 2,347.42 Calculation of interest on salary arrears for November 2017 Debt Overdue period Bid Share bet Formula Interest With By days 8 665,73 04.12.2017 17.12.2017 14 8,25 % 1/150 8 665,73 * 14 * 1/150 * 8.25% RUB 66.73 8 665,73 18.12.2017 11.02.2018 56 7,75 % 1/150 8 665,73 * 56 * 1/150 * 7.75% RUB 250.73 8 665,73 12.02.2018 25.03.2018 42 7,50 % 1/150 8 665,73 * 42 * 1/150 * 7.5% RUB 181.98 8 665,73 26.03.2018 16.09.2018 175 7,25 % 1/150 8 665,73 * 175 * 1/150 * 7.25% RUR 732.98 8 665,73 17.09.2018 16.12.2018 91 7,50 % 1/150 8 665,73 * 91 * 1/150 * 7.5% RUR 394.29 8 665,73 17.12.2018 10.01.2019 25 7,75 % 1/150 8 665,73 * 25 * 1/150 * 7.75% RUB 111.93 Total: RUB 1,738.64 Principal amount: RUB 53,905.73. Amount of interest on all debts: RUB 11,902.93. Considering that the employer transferred the amount of 6351.32 rubles to the plaintiff. as a penalty for delay in payment of wages, the amount of monetary compensation to be recovered from the defendant in favor of the plaintiff will be 5551.61 rubles. (11902.93- 6351.32).
Taking into account the established fact of violation of the employee’s labor rights, the judicial panel also believes that the court decision regarding the refusal of N.V. Kozulin’s demands should also be cancelled. on the collection of compensation for moral damage with the adoption of a new decision to collect in his favor from LLC A Engineering monetary compensation for moral damage in the amount of 5,000 rubles, in proportion to the violations of the employee’s labor rights, the requirements of reasonableness and fairness.
In the remaining part, there are no grounds for canceling or changing the court's decision.
The provisions of Art. 84-1, art. 234 of the Labor Code of the Russian Federation establishes the financial liability of the employer for the delay in issuing a work book to an employee upon dismissal in the form of payment of average earnings for the period of such delay due to deprivation of the opportunity to work.
Refusing to satisfy the claims of Kozulina N.V. on the recovery of average earnings from A Engineering LLC for the period of delay in issuing a work book from 12/05/2017 to 10/18/2018, the court rightfully proceeded from the absence of grounds for the employer’s financial liability, since the plaintiff, who was absent from the workplace on the day of his dismissal - 12/04/2017, the next day 12/05/2017, he was employed at Inzhstroykom LLC as the head of the production and technical department, with the establishment of another work book at the new place of work, where he worked until 09/28/2018, hiding these circumstances when applying with a lawsuit.
Since the employer’s responsibility for the delay in issuing a work book is established for the actual deprivation of the employee to work during such a period, which the plaintiff was not deprived of, the judicial panel considers it possible to agree with the conclusions of the court, and does not take into account the arguments of the plaintiff’s appeal in the specified part about the defendant’s formal violation of the provisions part 6 art. 84-1 Labor Code of the Russian Federation.
In connection with the partial satisfaction of the plaintiff’s claims to A Engineering LLC, a state duty in the amount of 1410.27 rubles is subject to recovery from the latter as local budget revenue.
Grounds for canceling or changing a court decision in another part based on the arguments of the plaintiff’s appeal, including with reference to the court’s unreasonable application of the provisions of Art. 392 of the Labor Code of the Russian Federation for the entire disputed period is not available.
The court did not commit any procedural violations leading to the cancellation of the decision.
Based on the above, guided by Article 328 of the Code of Civil Procedure of the Russian Federation, the judicial panel
O P R E D E L I L A :
Decision of the Sverdlovsk District Court of Krasnoyarsk dated November 14, 2019 regarding the refusal to satisfy the claims of Nikolai Viktorovich Kozulin against A Engineering LLC for the collection of arrears of wages, monetary compensation for late payment of wages and compensation for unused vacation, compensation for moral harm cancel. Make a new decision in this part.
To recover from A Engineering LLC in favor of Nikolay Viktorovich Kozulin wage arrears for the period from August 1, 2021 to December 4, 2021 in the amount of 24,790.58 rubles, monetary compensation for delayed payment of wages and compensation for unused vacation in the amount of 5,551 , 61 rubles, compensation for moral damage 5,000 rubles.
To collect from A Engineering LLC a state duty in the amount of 1410.27 rubles for the local budget.
In the rest of the court's decision, the appeal of the plaintiff Kozulin N.V. is left unchanged. - without satisfaction.
Chairman:
Judges:
If the employer does not agree with the court order
If the employer objects to the collection of unpaid wages, does not agree with the court order, he must provide evidence to the contrary.
| Attention! The courts believe that proving the absence of debt is the responsibility of the employer, since the calculation of amounts and execution of settlement documents is his direct responsibility. |
What documents can be presented to the court as evidence:
- statements reflecting the issuance of salaries or payment orders to the bank will prove the fact of the transfer;
- accounting information and payslips will confirm the correctness of the calculation of salary amounts;
- the employment contract, hiring order, regulations on wages and bonuses and other documents contain information about the size and structure of the employee’s salary.
Thus, the employer proves in court that the salary established by the employment agreement was paid on time and in full.
| Advice It should be borne in mind that disputes over delayed wages are often not limited only to the salary amount. According to Article 236 of the Labor Code, an employee has the right to recover compensation for delayed wages, which is calculated as 1/150 of the Central Bank key rate for all days of non-payment. |
Pre-trial practice
This method is considered the easiest. However, it is relevant only if both parties are not in conflict and the employer does not waive its obligations to pay the wages due to the employee. We can say that the problem is being resolved peacefully by mutual agreement. The pre-trial procedure for debt collection provides for two options.
Written agreement.
Both parties to the employment contract, based on negotiations, record all their rights and obligations in the document. Implementation occurs on a voluntary basis. That is, the employee and the employer indicate in writing the amount and terms of repayment of the debt. This document must suit both parties.
Contacting supervisory authorities.
In this case, it is assumed that the employee has a completely “white” salary, which is specified in the contract. If he was unable to reach a peaceful agreement with the employer, the person turns to the labor inspectorate and the Prosecutor's Office. The main task of the authorities is to clarify the obligations to pay the debt to the party violating the legislation of the Russian Federation. The employer is notified by the inspector of the amount of penalties in case of refusal to solve the problem.
What is a CTS certificate of wage collection?
Another way to recover wages is to contact a labor dispute commission, if one has been established in the organization. The certificate issued by the CTS regarding the collection of arrears of wages is also a document of execution. It can be presented to the bank or addressed to a bailiff for execution.
| Important! Currently, draft amendments to the Labor Code have been published, prohibiting the consideration of complaints about the collection of arrears of wages in the CTS. After the amendments are adopted, salary cases will be considered only by the courts. |
How to draw up a claim correctly
In this document, the employee must indicate in as much detail as possible all the circumstances on the basis of which the procedure for collecting wage debt is initiated. Be sure to note:
- job title;
- your responsibilities as an employee of this enterprise;
- type of payment;
- amount of debt (calculation attached);
- period for which the due income was not paid.
It happens that an employee lacks documentary evidence of the existence of an employment relationship with the defendant company. In this case, it is better to start looking for witnesses in advance. They can also be indicated in the claim. Auxiliary evidence will also include a time log and schedules in which the plaintiff’s data appears. In this case, the application must contain a requirement to establish the fact of an employment relationship between the parties. If desired, compensation claims can be included in the claim:
- moral damage received;
- unused vacation, benefits, bonuses and due allowances;
- delays in wages and causing financial inconvenience to the plaintiff.
Disputes regarding the collection of wages from an employee
Yes, there are such things too. Art. 137 provides for cases when overpaid amounts are withheld from an employee. There are only three of them:
- error in calculations - letter of Rostrud dated 01.10.2012 N 1286-6-1;
- when considering a labor dispute, the employee was found guilty of failure to comply with labor standards or idle time;
- The court established the employee’s unlawful actions, which led to the excessive payment.
| Important! Technical errors (for example, repeated payment of wages for one period) are not recognized as counting errors - Ruling of the Supreme Court of the Russian Federation N 59-B11-17 of 01/20/2012. |
If the amount of damage as a result of an overpayment exceeds the employee’s average monthly earnings or he does not agree with the amount and basis of the withholding, the employer will have to recover these amounts through the court.
An employer can make a deduction from wages if the following conditions are simultaneously met:
- one month has not passed since the end of the period specified for the return of incorrectly calculated payments;
- the employee does not dispute the grounds and amounts of the deduction.
In all other cases, collection is carried out in court.
How money is transferred
If the claim was satisfied by the court or the decision of the labor inspector came into force, the bailiffs request information about the defendant’s accounts and the movement on them. If the enterprise refuses to repay the debt, a resolution is issued according to which the bank where the account is opened for the legal entity will be obliged to transfer the amount due in favor of the employee. If there is not enough money in the account, collection will be carried out as soon as receipts begin on the account. When a company goes through formal bankruptcy, wage debts to employees are paid in advance of creditor claims and tax obligations. If the bank violates this priority, it will compensate losses to employees.
Collection of the premium portion
This is also part of the salary. However, with her everything is no longer so clear. Here everything will depend on the employment contract and the procedure for paying bonuses established in the company. If internal regulations establish certain target indicators, upon achievement of which additional funds are awarded to the employee, this means that the employer undertakes to pay them. But if the bonus portion is a simple incentive, which is issued entirely at the discretion of the company’s management, collecting it is extremely problematic. For example, in a company it is accrued after several reporting periods. In this case, the employer may not award a bonus to the resigning employee. Therefore, he is also not obliged to pay it.
Documents for court
In accordance with Article 132 of the Code of Civil Procedure of the Russian Federation, the statement of claim will need to be accompanied by:
- labor or collective agreement;
- agreement on the procedure for paying salary;
- The order of acceptance to work;
- evidence of non-payment of funds (based on accounting statements, written testimony of witnesses, notifications, etc.);
- other documents provided for by the Code of Civil Procedure of the Russian Federation.
To obtain all the necessary documents for the court, you need to contact your employer with a written application. Copies of documents must be certified by an authorized representative of the defendant. The employer, by virtue of Article 62 of the Labor Code of the Russian Federation, is obliged to provide documentation within 3 working days from the date of filing the application (registration, i.e. assigning it a number and date).
By virtue of Art. 28 of the Code of Civil Procedure of the Russian Federation and clauses 6.3, 9 of the Code of Civil Procedure of the Russian Federation, the claim is filed in the district court:
- at the place of the defendant - employer;
- at the employee's address;
- at the place where the employee’s work function is performed.
There is no state duty.
LABOR LAWYER
What liability can an unscrupulous employer bear?
If a company refuses to fulfill its obligations to an employee regarding the payment of wages, the legislation of the Russian Federation provides for three types of liability. Each of them carries certain consequences for the employer.
Civil liability.
It consists of paying the employee a certain amount of compensation not only for the delay in salary, but also for the moral damage received as a result.
Administrative responsibility.
This may involve either a simple warning to the official owner of the enterprise or the imposition of an impressive fine. Moreover, responsibility is implied not only for a legal entity, but also for an official, for example, a manager or director of a company.
Criminal liability.
If the non-payment of funds due to an employee occurred for personal gain (misappropriation by the management of the company), the court may impose a sentence of actual imprisonment for up to 5 years. There is also disqualification of the legal entity itself.
