Self-defense of labor rights by employees. Forms, methods

What is self-defense of labor rights by employees

The right to self-defense is enshrined in Article 352 of the Labor Code of the Russian Federation. It sets out all possible methods of protecting labor rights. In particular, these are:

Self-protection of rights by employees themselves.
Protection of workers' rights by trade unions.
Protection of rights at the state level.
Defending your rights in a judicial body.

Obviously, self-defense of workers' rights is the simplest option. This concept first appeared in the Labor Code. However, it still does not have a precise definition of self-defense. The term is expanded upon by some authors. Self-defense of labor rights by employees is the active actions of employees aimed at protecting labor and health. In this case, appeals to higher authorities are not expected: trade unions, courts, government agencies. Accordingly, only the employee himself has the right to self-defense. The employee is solely concerned with protecting his individual rights. The measures under consideration help stop various violations.

ATTENTION! Self-defense is carried out within the framework established by law.

Main characteristics of self-defense by workers

Self-defense of labor rights by employees is characterized by the following characteristics:

The employee exercises the right on an individual basis. At the same time, he does not apply to government agencies, courts and other competent structures.
There are many forms of labor rights protection. This could be a strike, protest events, etc. A distinctive feature of self-defense is the passivity of the employee. That is, inaction is used to eliminate violations. As part of self-defense, the employee refuses to comply with the employer's demands. The period of inactivity is not limited. The self-defense period ends when the violation is eliminated.
As part of self-defense, an employee cannot force the employer or other persons to eliminate the offense. There are other tools for this.
Self-defense is a method used exclusively by workers. It is not used by employers.

IMPORTANT! For some workers, waiving demands in the name of self-protection is very attractive. However, this tool cannot be used without reason. It is relevant only if the employee’s rights are really grossly violated. If there is nothing of the kind, the actions, or rather the inaction of employees, is completely unlawful.

Typical mistakes:

Error:

An employee, as part of self-defense of labor rights, goes to the trade union organization and to the court.

A comment:

Self-defense is a tool used by enterprise employees to protect their labor rights. At the same time, appealing to the competent authorities, courts and government agencies is not allowed - otherwise the employee’s actions will not be recognized as self-defense.

Error:

The employee exercised the right to self-defense of his labor rights when it seemed to him that he was being overloaded with work more than another employee of a similar position.

A comment:

Despite the fact that the list of reasons for using self-defense is open, this tool should not be used without good reason. The employer, of course, does not welcome such actions on the part of workers, and therefore it is better to prepare documentary justifications for their actions in advance in order to defend themselves in court.

In what cases is self-defense legal?

Self-defense can be used in the following cases:

Assigning an employee tasks that are not provided for in the employment agreement.
In connection with the employer's instructions, there is a threat to the life and health of the employee.
The employer refuses to provide protective equipment if it is required to perform the job.
Failure to pay wages on time. The delay must exceed 15 days.
Wrongful transfer to another position.
Unlawful demands of the employer that do not comply with the employment agreement with the employee.
Sending on a business trip without the employee’s written consent (if provided).
Illegally engaging an employee to work overtime, work on weekends and holidays.
The employer asks the employee to leave his vacation early.
The manager unlawfully requests documents and information.

Self-defense is also used in some other cases.

IMPORTANT! The TD does not indicate a list of situations in which the instrument in question can be used. Therefore, the employee himself must make the decision to protect himself. However, he must keep in mind that the employer is unlikely to be happy with the employee's decision. You need to be prepared for legal proceedings and formulate arguments in support of the validity of self-defense.

Methods of self-defense should not contradict the following characteristics:

Compliance with legislation.
Lack of contact with government or other competent structures.

If the employee’s actions do not correspond to these signs, self-defense is not considered lawful.

Basic forms of employee self-defense

As mentioned, the primary and only form of self-defense is inaction in the workplace. However, the forms of inaction can take many different forms. Let's look at the most common ones:

Refusal to receive a work book due to the fact that an incorrect entry was made in it.
Refusal to return to work after 2 weeks from the date of filing a resignation letter of one's own free will.
Refusal to carry out instructions from the manager if they pose a threat to health or are not provided for in the employment agreement.
Refusal of overtime work and business trips.
Refusal to work without protective equipment.

It is assumed that the employee will refuse precisely those instructions that are not lawful. If the employer obliges the employee to perform work, you should contact the labor dispute commission. However, in this case, self-defense ceases to be self-defense.

Underpayment

The concept of “delay in payment of wages” also raises many questions.
In particular, if the employer has paid the employee wages, but not in full, can the employee suspend work? It seems to us, since the law speaks of the possibility of suspending work until the delayed amount is paid, partial payment of wages does not prevent the employee from exercising his right to self-defense. However, this situation does not apply to cases of dispute between an employee and an employer regarding the amount of wages. For example, if an employee believes that the amount of wages paid to him is less than what he is entitled to by law. Let's give a specific example. Thus, S. N. Matveeva filed a lawsuit against Tander CJSC to cancel the dismissal order, change the grounds and date of dismissal to dismissal from February 9, 2011 at her own request, make an appropriate entry in the work book, and collect wages for time of forced absence from February 9, 2011 to the day the entry in the work book was changed. In support, she indicated that since May 27 <...> she worked in the defendant’s division - a store as a seller of grills and baked goods. In August 2010, in connection with the replacement of another employee, the plaintiff worked a monthly standard of working hours - 176 hours and an additional 76 hours on weekends. On August 16, 2010, when the salary was received on the bank card, the plaintiff learned that she had been credited 6,776 rubles for August. 25 kopecks - less than for sellers who worked a monthly standard of time. Having found out that receiving a lower salary was permanent, the plaintiff tried for 3 months to resolve the dispute with the administration to no avail. On December 15, 2010, she notified the administration in writing about the temporary suspension of work. As a result of the conflict, the plaintiff was dismissed by order No. <...> dated June 2, 2011, which she considers illegal. In the current conflict situation, the plaintiff cannot work for the defendant, so she asks to change the grounds for dismissal to her own desire.

The court of first instance rejected the plaintiff's claim, concluding that in this case there was a dispute between the employee and the employer about the amount of wages due to the employee for the previous period, and not about a delay in payment, and therefore the plaintiff did not have the right to suspend work.

In this case, the plaintiff’s arguments were related to the fact that she performed the duties of a temporarily absent employee and for this she was entitled to an additional payment to her salary. However, according to Art. 151 of the Labor Code of the Russian Federation, the amount of such additional payment is established by agreement of the parties to the employment contract, taking into account the content and volume of additional work. In other words, based on the circumstances of the case, it is impossible to judge the amount of additional payment for performing the duties of a temporarily absent employee, since no such agreement was reached between the employee and the employer. In such situations, the employee can go to court, the labor inspectorate, or the labor dispute commission, but cannot suspend work in order to self-protect labor rights.

However, what to do in the case when the law determines the minimum level of additional payments, for example, for performing work in conditions deviating from normal? A dispute about the amount of wages paid may arise, for example, in the case of payment for overtime work, work on weekends or non-working holidays, payment for downtime, etc. As practice shows, the courts proceed from the fact that if the employer paid wages in accordance with employment contract, but in a smaller amount than provided by law, then there is a dispute about the amount of remuneration and the employee does not have the right to suspend the work.

Thus, A.V. Ivanov and G.V. Ivanova filed a lawsuit against the agricultural service processing consumer cooperative "Clover" for the recovery of wages and compensation for moral damage. The claims were motivated by the fact that they worked in the cooperative: A.V. Ivanov from October 1, 2009 as a driver-milk collector, and G.V. Ivanova from January 13, 2010 as a chief accountant. They were not paid wages in full and on time for the work they performed.

Due to the presence of arrears in wages, in September 2010 they notified the management of the cooperative in writing about the application of measures to protect labor rights in the form of suspension of work. Despite the use of self-defense measures, they were fired on November 23, 2010 for absenteeism, which they did not actually commit.

As established by the court, the terms of the employment contracts with the plaintiffs established the amount of their wages, which were accrued and paid by the employer on time and in full, in accordance with the employment contracts concluded between the parties; there was no arrears in remuneration for the plaintiffs based on the terms of the employment contracts .

The fact of under-accrual and underpayment of wages to A.V. Ivanov and G.V. Ivanova in connection with the establishment of its amount below the minimum wage in the territory of the Russian Federation was established only by a court decision. Thus, the right of A.V. Ivanov and G.V. Ivanova to demand other amounts from the employer as of September 13, 2010 was not confirmed, the fact of accrual and payment of wages to the plaintiffs in an amount less than that provided for by labor legislation, as of September 13. 2010 was not established, while the law does not provide for the possibility of an employee suspending work until the employer pays him the disputed amounts.

Nuances of implementing self-defense

As part of the implementation of the right to self-defense, several questions arise:

Is it necessary to pay wages during the period when an employee does not fulfill his duties?
Does the employee have to be present at the workplace?

So, do you need to pay a salary? In essence, self-defense is actually downtime due to the fault of the employer. According to Part 1 of Article 157 of the Labor Code of the Russian Federation, in this case the employee receives a salary, since the downtime did not arise through his fault. However, there are exceptions:

The procedure in question does not apply if the employee refuses to be transferred to another position. In this case, he is unable to work. In this situation, it makes sense to pay for the period as forced absence (Articles 72 and 394 of the Labor Code of the Russian Federation).
If work is suspended due to late pay, no payments are guaranteed.

Should an employee remain at work? The law does not clarify this issue in any way. Therefore, the decision is made on an individual basis. The employee must be guided either by the employer’s recommendations or by the internal regulations of the company.

Non-payment of wages

Another opportunity for an employee to self-protect his labor rights, as we mentioned above, is provided for in Art.
142 Labor Code of the Russian Federation. According to this provision of labor legislation, in the event of a delay in payment of wages for a period of more than 15 days, the employee has the right, by notifying the employer in writing, to suspend work for the entire period until the delayed amount is paid. Here the question arises: can an employee, in accordance with this norm of labor legislation, stop performing work in the event of a delay in any other payments to him (payment of travel expenses, delays in vacation pay, etc.). It seems to us that the literal interpretation of Part 2 of Art. 142 of the Labor Code of the Russian Federation provides for the employee’s right to self-defense in the event of a delay in actual wages. Delay in any other payments is not grounds for suspension of work.

On the other hand, some payments may be equivalent to wages. For example, payment for forced absence. In these cases, the provisions of Art. 142 of the Labor Code of the Russian Federation are quite applicable. Let's illustrate this with a specific example.

V. G. Kiryushkin filed a lawsuit against the Fedoskino Engineering Systems Municipal Unitary Enterprise for the cancellation of the order, reinstatement, recovery of wages for the period of forced absence, compensation for delayed payment of wages, compensation for moral damage, and underpayment.

In support of the claim, he indicated that he had an employment relationship with the defendant and worked as a labor safety engineer. On 03/07/2011, he received a registered letter, which was notified of the termination of his employment contract under sub. "a" clause 6 of Art. 81 of the Labor Code of the Russian Federation in connection with a one-time gross violation of labor duties by an employee (absenteeism).

He considers the dismissal illegal, citing the fact that he did not commit absenteeism, but suspended work, since his payment of wages was delayed by more than 15 days, which the employer was notified about on January 11, 2011.

V. G. Kiryushkin received a monthly bonus of 9,900 rubles. By decision of the Mytishchi City Court of the Moscow Region dated September 30, 2011, the premium was collected from the defendant in his favor for the period from April 2010 to July 2010. These funds were received by him under a writ of execution only in May 2011.

The court of first instance rejected the claim because it concluded that the debtor’s failure to comply with the court order did not give the plaintiff grounds for suspension of work in accordance with Art. 142 of the Labor Code of the Russian Federation, in connection with which the defendant justifiably and legally dismissed the plaintiff for absenteeism. However, the cassation instance did not agree with this court decision, pointing out that, in accordance with Art. 129 of the Labor Code of the Russian Federation, wages are remuneration for work, as well as compensation and incentive payments. In accordance with Art. 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work. From the content of this article it follows that the legislator, obliging the employer to compensate the employee for lost earnings, restores the violated right of the employee to receive payment for work.

Based on the current labor legislation, the meaning of the reinstatement procedure is precisely to cancel the legal consequences of dismissal by canceling the dismissal order (and not by issuing an order for reinstatement after the court has made a decision on reinstatement). Consequently, the employer’s obligation to pay wages for the period of forced absence occurs simultaneously with the cancellation of the dismissal order and the restoration of the employee to his previous position, being an integral part of the process of reinstatement at work.

In our opinion, a similar argument applies to the employer’s delay of other payments that are equivalent to wages, that is, they are intended to compensate for the employee’s earnings that he did not receive for a good reason. For example, the employer must provide additional leave while maintaining average earnings for employees studying in educational institutions of higher professional education. Failure to pay these amounts entails the employee's right to self-defense.

Who does not have the right to self-defense

There are some categories of employees who do not have the right to self-defense due to the special nature of their work. In particular, these are:

Law enforcement officers responsible for the security of the country.
Employees of the Ministry of Emergency Situations.
Emergency services specialists.
Government employees.
Employees of public utilities and communications services.
People involved in emergency medical care.
People responsible for ensuring the stable operation of hazardous industries.
Fire service workers.
Employees of all other professions and positions whose actions are related to ensuring safety.

Restrictions on self-defense are due to the fact that refusal to work in this case may provoke a threat to the population. However, employees do not lose their right to protection completely. To assert their rights, they can contact the labor inspectorate, judicial authorities, and the prosecutor's office.