If an employee extends her maternity leave, the temporary employee hired as cover can not be dismissed. 1
An employee was hired to cover for an employee who was on maternity leave. The date when the absent employee was intended to return to work was set as the date of expiry of the fixed-term employment agreement with the temporary employee.
The absent employee asked the employer for child care leave and did not return to work on the specified date. Despite this, the fixed-term agreement with the temporary employee was terminated on the date specified in the agreement. The employee went to court to be reinstated at work.
The court ruled in favor of the employee, indicating that an employment agreement concluded for the performance of duties of an absent employee may be terminated only when the absent employee returns to work. Expiration of the absent employee's period of leave, if she did not return to work, does not terminate the employment agreement of the temporary employee.
Inaccuracy in the employment agreement in stating the particular date when the absent employee is expected to return to work does not change the nature of the employment agreement of the parties and does not turn it into an agreement concluded for the performance of temporary work.
Differences between a civil-law contract and an employment agreement (practice of the Federal Arbitrazh Court)2
While considering a tax dispute between a company and the tax authorities, the court found that the company had entered into a civil services agreement with its former general director (now an individual entrepreneur) according to which he was to manage the financial and business operations of the company.
The court found that the parties did not define the terms for performance of the stages of work, the possible number of stages of work, the completion date and the result achieved on completion of all stages of the work in the services agreement, which showed that the company wanted the former general director to perform employment functions. The decisive factor in the agreement was the provision of labor rather than the provision of civil services and their results.
The duties, the place of actual performance of work, working hours, working conditions under the civil services agreement did not differ from the working regime and job duties under the employment agreement with the former general director.
Based on the above, the court ruled that the civil services agreement bore signs of an employment agreement provided for in Article 56 of the Labor Code of the Russian Federation and that the actual employment relations in this case were documented in the form of civil relations and hidden from tax inspections.
An employer has the right to reclaim money paid to a former employee as the result of a technical error 3
Due to a technical error, a dismissed employee incorrectly received a large sum of money from the employer. The employee believed that he had received a bonus for his employment and took the money from his account. He refused to return it to the employer. The employer filed a claim to recover unjust enrichment and interest on borrowed funds from the employee.
The court ruled in favor of the employer and based its decision on the following. Due to the fact that there was no payment order for the transfer, the transfer was a technical error. The court recognized the employee’s arguments that he received the money as a bonus for his work as invalid. Based on the amount of the employee’s salary and duration of his employment his bonus could not have exceeded a certain sum. Thus the employee did not have reason to believe that the received money was a bonus for his work.
An employment agreement requiring a severance payment if an employee resigns is an abuse of the parties’ rights 4
An employee was hired in the position of chief accountant. Under the employment agreement, the employee was entitled to a severance payment of twelve times the average monthly wage if the employee resigned. The employee resigned two months after hiring, but the severance payment was not made. The employee went to court.
In court the employer claimed that the term of the employment agreement was invalid.
The court ruled in favor of the employer and pointed out that the payment of any compensation to the employee must be provided for by law or by the employer’s internal regulations. The payment in question was not compensation due to dismissal, it was not a mandatory severance payment, nor was it designed to compensate the costs associated with the performance of employment or other duties. Moreover, it was not foreseen in the employer's internal normative acts, and therefore was of an arbitrary character and was an abuse of law committed at the conclusion of the employment agreement.
The court ruled that establishment of a severance payment of twelve times the average monthly wage did not comply with the general principles of labor relations, the principles of proportionality, rationality and reasonableness.
The employer is entitled to discipline an employee for use of the Internet for personal purposes during working hours 5
An employer found out that one of its employees misused the Internet during working hours from his work computer. The employee was disciplined and partially stripped of his bonus for non-compliance with the conditions of his employment agreement. The employee considered the disciplinary sanction illegal and went to court.
The court found that the employee used less than 10 percent of all Internet traffic for performance of his job duties. The rest of the Internet traffic was used to visit social networks, blogs, news and advertising portals and websites with video content.
Since such use of the Internet had nothing to do with the performance of the employee’s job functions and was against the interests of the employer, the court concluded that the employer took lawful disciplinary action.
The amount of severance paid to the head of the organization can not be determined arbitrarily, regardless of the employer’s actual economic performance 6
The plaintiffs appealed to the court to invalidate the decision of the board of directors on payment of severance compensation to the head of the organization due to his early termination. According to the plaintiffs’ claim the contested decision entailed losses for the employer and its shareholders.
The court ruled in favor of the plaintiffs and indicated that the amount of compensation can not be determined arbitrarily, regardless of the organization's actual economic performance. As such, payment can not be calculated based on assumptions about future opportunities to achieve the highest possible performance indicators of the organization.
In this case the defendants failed to prove that the payment was economically feasible.
The Court concluded that the decision to pay compensation to the head of the organization isn’t adequate or reasonable and fails to meet the criteria of reasonableness and good faith.
The employees’ strike was declared legal by the court for the first time in recent years 7
The employer’s representative asked the court to rule the strike illegal. Due to violations of Section 61 of the Labor Code of the Russian Federation (Review and resolution of collective employment disputes) the plaintiff considered a number of the demands made by the employees to be insufficient for meeting the characteristics of a collective labor dispute; moreover, the labor collectives of employees were not aware of the agenda of the conference, where strike matters were discussed.
The court ruled in favor of the employees, finding the strike to be legal. The court concluded that prior approval of strike matters in the conference’s agenda is not required by applicable law.
Moreover, the court ruled that the employees are entitled to outline claims during collective labor disputes which are not based on the statutory labor rules, but are still significant for employees.