In Art. 373 of the Labor Code of the Russian Federation refers to the procedure for taking into account the views of a professional organization (trade union) when terminating a contract with an employee on the initiative of management. The rights of a trade union organization are established by both the Labor Code and the Law on Trade Unions, Their Rights and Guarantees No. 10-FZ. Moreover, if there are contradictions, the norms of the Labor Code of the Russian Federation are used. In the article, we will talk about how the right of this organization to protect an employee when he is dismissed is realized. Consider Art. 373 of the Labor Code of the Russian Federation with comments.
Joint consideration of issues by the employer and the elected body of the trade union organization
Although the employer manages the organization, in some cases he can make his decisions only after taking into account the opinion of the elected body of the union. The same applies to the adoption of some local acts. If they are drawn up without taking into account the opinion of the relevant authority, such decisions shall be deemed invalid.
The Labor Code refers to the joint consideration of the trade union body with the employer of issues such as:
- The introduction and cancellation of a part-time job if there is a mass layoff of employees due to changes in contracts. This is stated in Article 74 of the Labor Code.
- Implementation of certification, according to Art. 82 Codex.
- Attracting employees to work overtime, in accordance with Art. 99 of the Labor Code.
- Definition of positions with irregular working hours, referred to in Art. 101 of the Code.
- The definition of a working day, divided into parts. This is stated in Art. 105.
- Establishment of the amount and procedure for remuneration for work on holidays, in accordance with Art. 112. Code.
- Attracting employees to work on holidays in other cases than provided for in Art. 113 of the Code.
- Determination of additional holidays, if the company's capabilities allow, according to Art. 116 shopping mall.
- Approval of vacation schedules, based on Art. 123 of the Code.
- The establishment of measures to prevent mass dismissal, according to Art. 180 TK.
- Establishment of rules within the company. This is provided for by Art. 190 Code.
- Approval of how vocational training, retraining and advanced training of employees should be carried out, establishing lists of relevant specialties. This is indicated by art. 196 TC.
- Approval of the rules for the issuance of overalls, shoes and other personal protective equipment to employees that improve the protection of employees from harmful and dangerous factors, or temperature free of charge, according to Art. 221 of the Code.
- Determining the use of the shift method, in accordance with Art. 297 of the Code.
- The increase in the duration of the shift to 3 months, as mentioned in Art. 299 TC.
- The establishment of a work schedule for the shift method, according to Art. 301 Code.
- Approval of a shift allowance if the employer is not a budget organization, in accordance with Art. 302 shopping mall.
- Approval of the amount, conditions and procedure for compensating the cost of travel and baggage allowance when applying vacation to employees working in the Far North and not related to the budget organization, in accordance with Art. 325 Labor Code.
- Determination of the amount, conditions and procedure for reimbursement of expenses associated with the relocation of employees employed in work in the Far North to a non-budget company. This is stated in Art. 326.
- The adoption of acts that establish the peculiarities of the regulation of labor activity of athletes and coaches at the organization level on the basis of Art. 348.1 of the Labor Code of the Russian Federation.
- Finally, questions of termination of employment contracts with employees - members of the trade union, as indicated in Art. 82 and in Art. 373 of the Labor Code of the Russian Federation.
Let us consider in more detail how the joint solution of the issue of the elected body of the trade union and the employer is carried out on the basis of the latter.
Union member
In Art. 3 of Law No. 10-FZ states that a member of a trade union is an employee. It is provided with additional protection tools upon termination of the contract with the employer at the initiative of the latter. For example, according to article 373 of the Labor Code of the Russian Federation, an employer has the right to terminate an employment contract with an employee. Often, when dismissing their employees, management evaluates the situation subjectively. This is especially common when dismissed on the basis of paragraph 5 of Article 81 of the Labor Code, when even for a minor violation of labor discipline, which sometimes seems very doubtful, a decision is made to dismiss. However, a member has a special termination procedure, and employers must adhere to it.
Transfer of the order to the elected body
According to Art. 373 of the Labor Code of the Russian Federation, the procedure for dismissing employees who are members of a trade union organization is carried out taking into account the views of this organization on the basis of the established procedure. If the employer decides to terminate the contract, based on clause 1, 2, 3 or 5 of article 81 of the Labor Code with who is a member of the organization, he must transfer the draft order and paper, on the basis of which the corresponding decision was made, to the elected body of the primary trade union. An elected body is the structure in which a particular employee is a member of a union. Upon dismissal for the above reasons of employees working in branches or other separate structures, the draft order with the remaining necessary documents is sent to the elected body of the relevant unit.
Union opinion preparation
After receiving the draft order and other documents, the elected body is obliged to consider this issue within 7 days, as a result of which it is necessary to prepare its opinion and send it to the company's management. This opinion should:
- Touch the issue specified in the draft order.
- Be motivated, that is, outlining the arguments that justify the position on this issue.
If the opinion is not motivated or the trade union organization does not meet the deadline of 7 days, this document will not be taken into account when deciding on dismissal.
Counseling
If the union disagrees with the dismissal, this organization must hold a meeting with the employer or his representative within three days, in accordance with Art. 373 TC. What is it? In fact, the meeting is a consultation in which the elected body of the union explains its position. The results are written in writing by keeping a record. Even if the parties fail to reach an agreement, the employer finally decides what to do in ten days (workers) from the moment the draft order is sent to the union.
Employer Final Decision
Based on Part 5 of Art. 373 of the Labor Code of the Russian Federation, management is given one month to make a decision after he receives the appropriate opinion of the elected body. This time period does not include the time the employee was on sick leave, on vacation, and other days during which the employee was absent, and at the same time kept his workplace. This norm is combined with clause 27 of the RF Armed Forces PP No. 2, which states that termination of the contract with the employee should not be accompanied by abuse of the right on the part of both the employer and the employee. So, the latter should not hide temporary disability or his membership in a trade union organization.
Other nuances of the procedure
When considering the procedure for termination of the contract with the employee on the basis of Art. 373 TC, the description of which is indicated above, it is necessary to take into account the norms of Part 4 of Art. 82 of the Code, which indicates a different procedure for participation of the elected body of the trade union in relation to issues related to the termination of the contract on the basis under consideration. For example, a collective agreement may speak of terminating an agreement with an employee only with the agreement of the elected body of the union.
The decision was made: what next?
The employee has the right to complain about the employer in the State Inspectorate (State Labor Inspectorate). In this structure, the issue of dismissal of an employee should be considered within 10 days after receipt of the application. If a decision is made that the dismissal is illegal, then an order is issued to reinstate the employee with payment of involuntary absenteeism. The legislation provides for a limited period of 1 month for appeal to the court upon dismissal under Art. 373 of the Labor Code of the Russian Federation. How to understand - no later than one month? The comments in this case are as follows: if the dismissed citizen applies later than this, the application will not be accepted.
However, the employee can also contact GIT after this period. Then, in the event of a violation, representatives of the State Inspectorate themselves initiate a lawsuit, and will protect the interests of the employee. This tool provides additional protection for the employee whom the employer decided to dismiss on his own initiative.
Appeal to the court and evidence of compliance with the provisions of the Constitution
An employee or his representative on the part of the trade union at the same time as filing a complaint with the State Customs Inspectorate has the right to appeal to the court. So, clause 53 of the RF Armed Forces' Claims No. 2 “On the Application by the Courts of the Russian Federation of the Labor Code of the Russian Federation” states that the court as a body that resolves individual labor disputes, on the basis of part 1 of Art. 195 of the Code of Civil Procedure must make an informed decision on the consideration of cases of disciplinary sanction (according to Article 373 of the Labor Code of the Russian Federation). Judicial practice shows that the employer must prove the fact that a penalty arises from the provision of one of the following articles of the Constitution: 1, 2, 15, 17, 18, 19, 54 or 55. Thus, it is established that principles such as equality, justice, legality, proportionality, humanism and guilt.
Appeal to the court and evidence of compliance with the order of consideration of the issue
In considering the case, the court takes into account the fact that when dismissing an employee - a member of a trade union organization, it is important to take into account the opinion of the elected body, as described in Art. 373 of the Labor Code of the Russian Federation. In addition, the employer will have to submit the following evidence to the court:
- When an employee is dismissed, for example, under paragraph 2 of Article 81 of the Code, the established period for notifying the elected body that a staff reduction is ahead is observed. This must be done in writing.
- Upon termination of the contract with an employee due to his insufficient qualifications, which was identified during certification (according to Article 373 of the Labor Code), this commission included a representative of the elected body.
- Prior to the dismissal of the employee - a union member - the employer sent the draft order and the necessary copies of the documentation to the elected body. After that, the employer held additional consultations with his representatives if the organization did not agree with the decision. Further, a period of 1 month was observed to terminate the contract, which was calculated from the moment the opinion of the elected body was received.
Recovery at work
If the employer has not complied with at least one of the above conditions prescribed by Art. 373 of the Labor Code of the Russian Federation, the current dismissal is considered unlawful, and the employee will not only be reinstated at the workplace, but also paid cash for involuntary absenteeism. True, the employer may appeal this decision within 10 days.
Conclusion
Having become acquainted with Art. 373 of the Labor Code of the Russian Federation and with comments, we can conclude that workers - members of a trade union organization, are more likely to defend their rights in case of threat of dismissal at the initiative of the employer. The latter, in turn, is obliged to follow a special procedure, which differs from the dismissal of an ordinary employee. If you do not follow the appropriate procedure, the dismissed employee can easily be reinstated at the workplace, as well as pay money for involuntary absenteeism.
For this purpose, the employee can apply to the State Customs Service, as well as to the court. As a result, the employer will have to go through checks and spend additional time and money to prepare the evidence base.