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Establishment of the labor relations by the court and filing a claim
Labor legislation offers two options for the establishment of labor relations between an employee and an employer:
- Conclusion of an employment contract,
- The actual access of the employee to work with the consent or under instructions of the employer or his representative.
Sometimes the employer replaces labor relations with the employee with civil law relations. What is the difference between a civil law contract and a labor contract?
- Work under a civil law contract is not considered when calculating the length of service of an employee for receipt of a pension,
- The employer is not responsible for labor protection,
- Pension contributions are not paid by the employer,
- The employee is not provided with social guarantees.
n addition to the replacement of contracts, employers may generally refuse to formalize labor relations, which may cause the employer's refusal to make a record of hiring and dismissal in the employment record or payment of wages and compensation upon dismissal.
Employees usually think about establishing a labor relationship after the labor relationship is terminated, while the employer refuses to pay the employee a well-deserved salary and money due upon dismissal. The employee has no choice but to apply to the inspection authorities or to the court, demanding the establishment of labor relationship. When an employee applies to the court with a claim for the establishment of labor relations, he does not have to pay a state fee. Please note that if there is no such position in the staffing table, a written labor contract, an order for hiring and dismissal does not in itself exclude the possibility of establishing an employment relationship.
Disputes on the establishment of labor relations are not currently eligible for a special three-month statute of limitations for applying to a labor court, since at the time of filing a claim, the relationship is not an employment relationship.
What evidence can be used to support labor relations with employer
- Work schedules (shifts);
- Waybills, certificate of completion, invoices indicating the employee;
- Sheets of issuance of funds;
- Journal of introductory briefing;
- Pass to the territory of the employer;
- Journal of coming and leaving work.
- For remote workers: electronic correspondence with the employer indicating the execution of instructions, orders (instructions) with a list of employees working remotely, documents confirming the transfer of technical equipment, reporting at the end of the working day.
To recognize the relationship as labor in court, it is necessary to prove the following:
- The Plaintiff followed the rules of the internal labor regulations established at the enterprise;
- The relationship between the plaintiff and the defendant was business;
- The plaintiff was allowed to work with the full knowledge of the defendant and performed a certain labor function;
- The plaintiff was paid wages;
- The plaintiff had access to the defendant's territory, as well as to the defendant's system programs.
If the employee’s claim for the establishment of labor relations is satisfied, he has the right to demand that the employer draw up an employment contract and make a record about work in the employment record, pay wages for the period of work (if it was not paid), compensation for unused vacation upon dismissal and performance by the employer of other guarantees provided for by labor legislation. In addition, it does not matter if the relationship is recognized as labor relations in court or not, the employer does not have the right to recover legal costs from the plaintiff, because the dispute is due to labor relations. And according to the legislation, legal costs cannot be passed on to the employee.
Establishment of labor relations with the employer through the legal proceedings
Lawyers on labor law of the Tsentralny Okrug Law Firm are ready to advise on the establishment of labor relations, analyze documents confirming the labor relations with the employer and negotiate with the employer on pre-trial settlement of the dispute, represent the interests of the employee in the inspection authorities and in court. We achieve the establishment of labor relations in court and help to implement the enforcement of court decisions.
How can you contact us
You can call us + 7 (473) 20-30-161 or send a request using the feedback form on our website
Our e-mail: email@example.com
Office in Voronezh: lane Detskiy, b. 24, of. 44
Office in Moscow: Holodilny building 3, construction 8, of. 8304, phone number: + +7 (495) 118-27-79.
Author is Irina Volodina