Dispute about establishing the fact of labor relations (based on the judicial practice of the Moscow City Court)

What relationships are labor relations?

Labor relations are formed between the employee and the employer on the basis of an agreement (Article 15 of the Labor Code). Their main features and differences from relations regulated by civil law are considered in the table:

How to prove that a citizen worked

In a claim for recognition of the fact of labor relations, the plaintiff must prove that:

• obeyed the internal regulations and local acts of the defendant;
• received payment for work on the days established for the payment of wages to the defendant’s employees;
• carried out instructions from his immediate supervisor and was subject to disciplinary action;
• had established working hours, days off, worked according to the schedule approved by the defendant;
• the employer trained the plaintiff in labor safety rules and provided PPE and overalls.

These facts are confirmed by the following evidence:

• witness's testimonies;
• power of attorney from the employer to represent interests in court, in government bodies, indicating the position of the employee;
• acts of completed work, invoices, in which the employee signed on behalf of the individual entrepreneur or organization;
• pass to the employer's premises;
• a room cleaning schedule or shift schedule indicating the position and surname of the employee;
• orders on disciplinary action, on sending on a business trip;
• email correspondence discussing work;
• certificate of certification, testing of knowledge on labor protection;
• a sheet of familiarization with local acts signed by the employee;
• card confirming the issuance of special clothing with the signature of the employee;
• memos of an employee with an employer visa;
• power of attorney to receive material assets of the employer.

Why do you need a sample application for the court to establish the fact of work?

There are no great difficulties in drawing up the application itself. You can prepare a claim by independently carefully monitoring compliance with the requirements listed in the Code of Civil Procedure of the Russian Federation. And also seek help from a lawyer.

In addition, it is possible to use the link to a sample statement of claim to establish the fact of performing labor functions at the enterprise, provided below.

Having a form will help you clearly follow the form and describe the situation that occurred in a document drawn up by a professional.

This preparation option will save money, as it will cost less than the assistance of a lawyer throughout the entire consideration of the case. However, we emphasize that the stingy pays twice; it is better to use the help of a labor law lawyer.

This means that a claim to recognize the relationship as an employment relationship is much more likely to be considered in favor of the applicant.

What documents to provide

When submitting a statement of claim to the court to establish the fact of work, it is necessary to attach to it the documents provided for in Art. 132 Code of Civil Procedure of the Russian Federation:

• notification of delivery, postal receipts or other documents confirming the sending to the employer of copies of the statement of claim and documents attached to it;
• a copy of the power of attorney for the representative;
• documents on the completion of actions aimed at reconciliation (if any), for example, a letter from an employee with a request to conclude an agreement with him;
• copies of documents confirming the official relationship: a pass to the employer’s territory, a certificate, official notes, the employer’s orders regarding the employee, a sheet of familiarization with local acts, a notary’s protocol on the inspection of e-mail with attached printed e-mails.

How to prove the fact of fulfilling labor duties

In such a difficult situation, the main thing is to start acting. And the very first step is the preparation of evidence confirming the performance of labor functions for a specific employer.

To do this, it is necessary to carry out a number of activities that will help find documents for a positive outcome when considering the case.

Such evidence can be taken from the employer; it is likely that he will agree to provide some certificates that can confirm the fact of working for him. But that rarely happens.

However, this is not always so easy to do; you may have to act differently. And he will contact the potential defendant with an application for the issuance of documents related to the performance of work without a contract.

Expert commentary

Roslyakov Oleg Vladimirovich

Lawyer, specialization civil law. More than 19 years of experience.

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Another option for finding evidence is to write a complaint to the labor inspectorate and a statement to the prosecutor's office about non-payment of wages to the employer. In the future, at the request of the applicant, documents on the inspection may be provided to the court for examination.

How to file a claim

To draw up a statement of claim to establish an employment relationship, you must adhere to certain rules.

The claim must be submitted in writing. The algorithm for drawing up a statement of claim is as follows (Article 131 of the Code of Civil Procedure of the Russian Federation):

1. Indicate the name of the court in which the claim is being filed.
2. Write the plaintiff's details: full name, address, phone number, email (if any).
3. Indicate the details of the defendant, for an organization - name, address, telephone number, email address, INN or OGRN (if known), for an individual - full name, address, telephone number, email address, INN (if known).
4. Describe what the violation of employee rights is.
5. List evidence of the existence of an employer-employee relationship.
6. Describe the requirements: recognize the actual relationship as an employment relationship or reclassify a civil law contract into an employment contract; make entries in the work book; pay wages (if they have not been paid), pay social contributions; compensate for moral damage.
7. Provide information about any attempts at reconciliation (if any).
8. If additional claims are made for payment of wages, compensation for unused vacation, then make a calculation of the amounts recovered and indicate the amount of the claim.
9. List of attached documents.
10. Signature of the plaintiff or his representative.

If a worker does not have documents confirming work in a particular organization, or they contain erroneous data, and it is impossible to correct them, since the employer has been liquidated, then an application is submitted to the court to establish a fact of legal significance. There is no one to file a claim with, the organization no longer exists, so there is no dispute about the right. But it is impossible to restore the documents, so the fact of work is established by the court.

Sample application for establishing the fact of labor relations

For refusal to recognize an employment relationship, the employer will pay more than 2.1 million rubles

The Moscow City Court recovered from a dental clinic that denied the fact of an employment relationship with a woman who was disabled as a result of an accident at work, three years' salary in the amount of more than 1.3 million rubles, interest for late payments in the amount of almost 235 thousand rubles, and also 600 thousand rubles. compensation for moral damage. The woman’s interests were represented by the chairman of the Dynasty Agency, Boris Asriyan, and the lawyer of the board, Elena Manenkova, who spoke about the details of the case. “AG” has all the documents.

Case history

At the beginning of November 2021, L., without concluding an employment contract, went to work as a nurse in the treatment room at the Shifa Medical and Dental Clinic LLC. The employer promised that the contract would be concluded after the expiration of the probationary period, and gave her a special uniform.

And on November 15, while performing her work duties, L. fell into an unfenced open inspection hatch and received injuries in the form of a compression-comminuted fracture of the spine and a fracture of the epicondyle of the left tibia.

Since the clinic insisted that L. was not its employee, the woman filed a complaint with the police in 2021, which no one considered. After that, she turned to lawyers for help - in November 2021, Boris Asriyan sent an application to the Investigative Directorate for the Closed Administrative District of Moscow of the Main Investigative Directorate of the Investigative Committee of Russia and contacted the Moscow Prosecutor's Office. Next, the lawyer represented L.’s interests at the pre-investigation stage.

On December 10, 2021, an inspection report was issued at the scene of the incident, which established the presence of a hatch in the clinic premises. The investigator found that the hatch did not have a reinforced concrete covering, and the hole itself was covered with a piece of polystyrene material, from which the smell of fresh glue emanated. A ventilation duct and electrical panel were found in the room, indicating that the hatch was opened for the purpose of routine maintenance of utility systems, including ventilation and electrical equipment. However, on December 14, 2019, the investigator issued a decision to refuse to initiate a criminal case, which indicated the circumstances of the injury.

Going to court

Next, L. appealed to the Butyrsky District Court of Moscow with a claim against the clinic, in which she asked to establish the fact of labor relations, to make an entry in the work book about employment as a nurse in the treatment room from November 11, 2021, to establish the fact of an accident at production and oblige the defendant to properly draw up documents regarding this fact. The plaintiff also asked to recover from the defendant unpaid wages from November 11, 2021 to the day of the judicial act, monetary compensation for violating the terms of its payment, compensation for moral damage, and also to oblige the defendant to make insurance contributions to the social insurance authorities. In the civil process, her interests were represented by Elena Manenkova.

To substantiate the claim, L. indicated that she was given a uniform, an ambulance took her from the defendant’s premises, and her phone contains work correspondence with a colleague. Moreover, based on the nursing staff time sheet, the plaintiff worked on November 11, 12 and 15, 2021, and her entries are entered in various log books. The claim noted that since there was an employment relationship between her and the defendant, the bodily injuries she received constituted an industrial injury, and the accident was subject to registration and investigation in accordance with the provisions of Art. 226–231 Labor Code of the Russian Federation. L. insisted that she received bodily injuries as a result of violations committed during repair work in the utility room, that is, in the course of activities that pose an increased danger.

The lawsuit also noted that due to the installation of a metal structure on the spine, L. cannot bend over, sit or walk for a long time. Since she is not allowed to lift more than 2 kg, her elderly mother goes to the grocery store. In addition, due to health restrictions, the woman cannot get a job.

L. emphasized that the fact that representatives of the clinic not only did not take the measures required by law to properly formalize labor relations and document the accident that occurred, but also did not provide moral or material support, causes her moral suffering.

The court granted the claim partially

In court, the defendant’s representative referred to the lack of proof of the fact of labor relations, since an employment contract was not concluded between the parties, the plaintiff was not allowed to perform any work either with the knowledge or on behalf of management, and on the day of the injury she was on the defendant’s territory solely for the purpose of interviews, and the signature of an unidentified person on the waybill for the transportation of biomaterials is not evidence of the existence of an employment relationship between the parties. He pointed out that there was no causal connection between the injury and the time of onset of disability, since the plaintiff's testimony about the scene of the incident was contradictory and unproven. In addition, the representative of the defendant noted that the plaintiff missed the deadline for filing a lawsuit under Art. 392 of the Labor Code, which is an independent basis for refusal to satisfy claims. At the same time, the prosecutor believed it was possible to satisfy the claim in part.

The first instance found unfounded the defendant's arguments that the employment contract between the parties was not concluded in writing, and the hiring order and other documents related to labor activity were not signed by the plaintiff, since the obligation to properly formalize labor relations with the employee within the meaning of Part 1 Art. 67 of the Labor Code is assigned to the employer. At the same time, from the contents of Art. 11, 15, part 3 art. 16, art. 56 of the Labor Code in conjunction with the provisions of Part 2 of Art. 67 of the Labor Code follows that an employment contract that is not drawn up in writing is considered concluded if the employee began work with the knowledge or on behalf of the employer or his authorized representative.

The court did not accept the time sheets, staffing schedules, and job descriptions of the nurse presented by the defendant as evidence of the absence of labor relations between the parties, since they do not exclude the existence of labor relations between the parties, taking into account the actual circumstances of the case. “These circumstances only indicate improper fulfillment by the defendant of the obligation to formalize labor relations,” he noted.

The court indicated that the day of the occurrence of an insured event in case of damage to health due to an accident at work or an occupational disease is the day from which the fact of temporary or permanent loss of professional ability by the insured was established. He noted that in order to record an accident as occurring at work, it is necessary that the injury was sustained by the employee on the territory of the organization or in another place of work during working hours or while following the employer’s orders to the place of work and back, including on foot.

Due to the controversial nature of the legal relationship and the circumstances that arose, as well as in order to establish the degree of loss of professional ability, the court ordered a forensic medical examination, which was entrusted to experts from the Federal Bureau of Medical and Social Expertise of the Ministry of Labor. According to the conclusions of the conclusion, by the time the dispute was considered, the degree of disability was 30%; the injury allowed the victim to perform work in her profession at 0.5 rate.

The court found that the employment relationship between the parties arose from November 11, 2021, the plaintiff’s salary was 45 thousand rubles, and in fact the plaintiff worked three days. Under such circumstances, the clinic is subject to collection of arrears of wages for the period from November 11, 2021 to November 15, 2021 in the amount of almost 10 thousand rubles. At the same time, the court did not agree with the presented calculations of the parties, since they are based on an incorrect understanding of the rules of substantive law, were made over a different period of time and, as a result, are arithmetically incorrect.

At the same time, the first instance decided that there were no grounds for satisfying the plaintiff’s demands regarding the collection of arrears of wages from November 16, 2021 to the day of the decision due to the provisions of Art. 129 of the Labor Code, which stipulate that wages are remuneration for work, but the plaintiff did not work for the defendant during the specified period.

The first instance indicated that, in accordance with Part 1 of Art. 14 of the Labor Code, the period with which the Code connects the emergence of labor rights and obligations begins with the calendar date that determines the beginning of the occurrence of these rights and obligations. The relationship between the plaintiff and the defendant acquired the status of labor after it was established as such in court. After this, they are subject to registration in the manner established by labor legislation, and also after they are recognized as such, the plaintiff has the right to demand the extension of labor legislation to existing labor relations, and in particular to demand the collection of arrears of wages, compensation for unused leave upon dismissal, and other claims. requirements related to labor relations.

The court came to the conclusion that the requirements for establishing the fact of labor relations, the obligation to make an entry about employment in the work book, establishing the fact of an industrial accident, the obligation to draw up a report on an industrial accident, recovery of wages and monetary compensation for violation of deadlines its payment, compensation for moral damage within the terms provided for in Art. 392 TC, not applicable.

Thus, the court partially satisfied the claims. He also recovered 600 thousand rubles in favor of L. for compensation for moral damage.

Appeal

In her appeal to the Moscow City Court, Elena Manenkova noted that the first instance, referring to the provisions of Art. 129 of the Labor Code, indicated that salary is remuneration for work, which is not payable due to the fact that the plaintiff did not work for the defendant during the specified period. At the same time, the court did not take into account that L. was not allowed to perform work activities, since no response was received to the letters sent to the defendant asking her to pay for sick leave as a clinic employee. The obligation to provide evidence confirming the legality of the employee’s removal from work lies with the employer. However, the defendant did not provide evidence of the legality of the plaintiff’s exclusion.

Due to the fact that the court unreasonably refused to collect wages, the amount of monetary compensation provided for in Art. 236 TC, subject to recalculation. The complaint emphasized that the court's decision regarding the refusal to collect interest (monetary compensation) from the defendant is subject to cancellation with the issuance of a new decision to collect monetary compensation from the defendant, provided for in Art. 236 TK, in the amount of almost 235 thousand rubles.

In addition, when deciding on the amount of compensation for moral damage caused, the court did not fully take into account all the circumstances of the case, the complaint noted. According to the established practice of the ECtHR, compensation for moral damage in connection with the infliction of moral suffering due to infringement of the civil rights of plaintiffs ranges from 6,500 to 50,000 euros. L. suffered not only moral, but also physical suffering, and therefore compensation for moral damage in the amount of 600 thousand rubles. (approximately 6,600 euros) does not comply with the principle of fairness and does not take full account of the suffering caused.

The plaintiff asked for a new decision in the case and to satisfy the demands for the recovery of wages for the period from November 15, 2021, taking into account temporary disability from June 1, 2021 to December 1, 2020 (the day of the court decision of the first instance) in the amount of more than 1, 3 million rubles, recovery of compensation provided for in Art. 236 TK, in the amount of almost 235 thousand rubles. and compensation for moral damage in the amount of 2 million rubles. The rest of the court decision remains unchanged.

Having studied the case, the Moscow City Court considered that the first instance correctly determined the amount of compensation for moral damage. At the same time, the appeal indicated that the fact of the labor relationship was established by the court. Meanwhile, in the period from November 15, 2021 to May 31, 2021, the plaintiff had certificates of incapacity for work, which were not paid for by the defendant, and from June 1, 2021, the plaintiff was not allowed to work, which was not refuted by the defendant.

The Moscow City Court came to the conclusion that the decision regarding the refusal to satisfy demands for the recovery of wages for the period of forced absence in the period from June 1, 2021 to December 1, 2021 was canceled. It considered that a salary of more than 1.3 million should be recovered from the defendant RUB., based on the calculation presented by the plaintiff and not disputed by the defendant. In connection with the untimely payment of wages, the defendant must also be charged interest for late payments in accordance with Art. 236 TK in the amount of almost 235 thousand rubles.

Comments from lawyers and the employer's demand

In a commentary to AG, Boris Asriyan noted that in the course of appeals to the investigative committee, including at a personal reception with management, it was possible to achieve a full verification of the reported crime. It was the investigation that established permission to work and the existence of a labor function. The investigator also saw traces of a camouflaged hatch and received a conclusion about the nature of the traumatic injuries. “Although the initiation of a criminal case was refused due to the absence of serious harm to health necessary for criminal liability, the above factual circumstances were accepted by the court without additional verification,” he said.

In turn, Elena Manenkova noted that justice actually triumphed in this case: “The employee, abandoned by the employer to the mercy of fate with a serious spinal injury, not only received reinstatement at work, but also a salary and disability benefits for 3 years. Separately, I would like to note the amount of satisfied moral damage, which amounted to 600 thousand rubles.”

Meanwhile, as Boris Asriyan said, on May 12, the clinic sent L. a requirement to report to work to provide an explanation for his long absence from work. The company indicated the need to report to work within two working days and continue to perform labor functions. The woman has already sent an application for termination of the employment contract at the initiative of the employee and asked for a final payment.

Where to file a claim

A claim to establish the fact of labor relations is filed with the district court at the choice of the plaintiff:

• at the location of the employing organization or at the place of residence of the employer - an individual (Article 28 of the Code of Civil Procedure);
• at the location of a separate unit, if the citizen worked in a branch or representative office of the organization (clause 2 of article 29 of the Code of Civil Procedure);
• at the place of execution of the contract, if indicated (clause 9 of article 29 of the Civil Procedure Code);
• at the place of residence of the plaintiff (clause 6.3 of Article 29 of the Code of Civil Procedure).

Legal costs

In accordance with Art. 393 of the Labor Code of the Russian Federation for disputes regarding the protection of labor rights, plaintiffs are exempt from paying state fees and court costs. Moreover, even if the employee loses the dispute, the employer still does not have the right to recover legal costs from the losing party (determination of the Supreme Court of the Russian Federation of July 15, 2019 No. 75-KG19-3).

An employee who has paid for the services of a representative has the right to recover their cost from the employer, expenses for accommodation and travel if the claim to establish the fact of labor relations is being considered in another city, expenses for witnesses (accommodation, travel expenses), a translator, an expert, postal expenses, expenses for execution of a notarized power of attorney.

When submitting an application to establish the fact of work in a special proceeding, the state fee is provided in the amount of 300 rubles.

I ASK THE COURT:

1. Establish the fact of labor relations between N.T.M. and LLC "D."
2. Collect from LLC "D." funds as compensation for moral damage in the amount of 30,000 rubles.
3. Oblige LLC "F." allow N.T.M. to work on the basis of labor inspection regulations No. 3-467-33-13.
4. Collect from LLC "F." cash as compensation for forced absence in the amount of 300,000 rubles.
5. Collect from LLC "F." funds as compensation for moral damage in the amount of 30,000 rubles.
6. To recover from the Defendants damages in the amount of 20__ rubles, collected at the rate for issuing a power of attorney.
7. To recover from the defendant legal expenses for the services of a representative in the amount of 60,000 rubles.
8. To recover the costs of sending a telegram 420.50 rubles, sending a valuable parcel 134.07 rubles.
9. Recover legal costs from the Defendants in proportion to the satisfied portion of the claims.

1. Please notify the legal bureau “Moscow Legal” of the date and time of the court hearing, Moscow, st. Maroseyka, 2/15,