Establishing the fact of labor relations and subsequent layoffs. How to establish the fact of labor relations? The procedure for establishing the fact of labor relations

Sample statement of claim to establish a fact labor relations taking into account latest changes legislation of the Russian Federation.

Establishing the fact of labor relations is a very common matter in modern Russia, since employers are not always in a hurry to register employees officially, that is, to enter into an employment contract and make the appropriate deductions.

As a rule, establishing the fact of an employment relationship is accompanied by specific, often material claims against the employer. For example, such situations often arise due to illegal actions of the employer, that is, dismissal of an employee without clear reason, non-payment of wages, withholding work book etc.

Therefore, one claim often contains several claims of both a property and non-property nature. A sample of such a statement of claim is presented below and it concerns the 2 most common situations: illegal dismissal and non-payment of wages. If there are other violations on the part of the employer, this sample can be easily transformed to suit the specific situation.

Employees need to remember that an employment contract is not the only basis for the establishment of an employment relationship. Since according to Article 16 Labor Code Russian Federation, the actual admission of an employee to work is also the basis for the emergence of labor relations. It is on this norm that all such claims are based.

As for the technical side of the claim, it is not a property claim. However, it becomes such if we are talking about collecting money from the employer. Therefore, the cost of the claim will be determined by the sum of all the employee’s claims. In any case, no fee is charged to the plaintiff in such cases.

The claim is filed only in the district court at the location of the defendant, and if it cannot be determined, then at the place where the work is carried out.

IN______________________________________
(Name of court, address)

Plaintiff_________________________________
(full name, phone number, address)

Defendant_______________________________
(full name, phone number, address)

Cost of claim __________________________
(Full amount of claims)

Statement of claim

on establishing the fact of labor relations

Since “___” “_________” 20___ I have been implementing labor activity ____________________ (indicate place of work, name and address of the enterprise, full name of individual entrepreneur) in the position of _________________ (indicate the position or nature of work activity). My work activity consists of _______________ (indicate what work the employee performs).

The employer did not conclude an employment contract with me, due to ___________________ (indicate the reason for not concluding the contract). Further, the application must reflect the following questions:

a) Did the employee write a job application;

b) Did he hand over the work book to the employer;

c) Were any documents drawn up instead of employment contract. It often happens that labor relations are disguised as civil contract etc.

When applying for a job at an interview, the employer (his representative) _____________________ (full name of the person) promised to pay me wages monthly (or piecework, in lump sum, using a different calculation scheme) in the amount of ___ rubles. ___ kop.

Behind previous periods I was accrued and paid ________________ (indicate the payment method: through accounting, on a card, in person, etc.) salary in the amount of ___ rubles. ___ kopecks, based on ________________ (indicate the methodology for determining wages).

“___” “__________” On 20__, the payment of wages to me was stopped (if wages for a similar amount of work decreased, indicate how much). At the same time, I was fired from my job due to _____________________________ (indicate another reason for termination of payment or reduction in salary). At the same time, the employer did not draw up any documents regarding me, I was not informed of the dismissal order, I was not given a work book, and there were no payments for the period actually worked from “___” “________” 20 __ to “___” “________” 20 __ produced.

I believe that the illegal actions of the employer, which are expressed in ___________________ (indicate specific actions, for example, illegal dismissal, non-payment of wages and other violations) my labor rights provided for by ____________________ were violated (indicate the norms of the Labor Code of the Russian Federation, according to which the employer’s actions are illegal).

As a result of the employer’s illegal actions, I suffered moral damage, which is expressed in _________________ (indicate physical and moral suffering in connection with the employer’s illegal actions), which I estimate in the amount of ___ rubles. ___ kop.

Taking into account the above, guided by the requirements of Articles 16 of the Labor, 131, 132 Civil Procedure Codes of the Russian Federation,

ASK:

1. Establish the fact of the existence of an employment relationship between __________________ (full name of the employee) and __________________ (name of the organization or full name of the individual entrepreneur) in the period from “___” “________” 20__ to “___” “_______” 20__ year;

2. Oblige __________________ (name of organization or full name of individual entrepreneur) to send information about the period of my employment from “___” “_______” 20 __ to “___” “_______” 20__ to ______________ (indicate position), and also make the necessary insurance contributions to the Pension Fund of the Russian Federation;

3. Oblige ____________________ (name of the organization or full name of the individual entrepreneur) to make appropriate entries in the work book about hiring from “___” “_________” 20 __ to the position ________________ (indicate the position held), as well as about dismissal due at will with “___” “_______” 20 __;

4. Collect from ____________________ (name of organization or full name of individual entrepreneur) lost wages and other charges in the amount of ___ rubles. ___ kop.;

5. To recover from _________________ (name of organization or full name of individual entrepreneur) compensation for moral damage caused in the amount of ___ rubles. ___ kop.

Applications:

1. A copy of the statement of claim;

2. Documents confirming the existence of an employment relationship (payment of wages);

3. Calculation of lost wages;

4. Documents confirming the presence and extent of moral damage;

5. Other documents confirming the plaintiff’s arguments.

“___” “________” 20__ ________________ (signature)

Creation: 06/14/2011

Update: 04/03/2018

A large number of employers, trying to evade fulfillment of tax and other social obligations imposed on them by law, do not draw up an employment contract with the employee. Since finding a job is quite difficult, people agree to work under any conditions, including without concluding an employment contract. And then they have difficulties receiving wages, and they are forced to prove the fact of their employment relationship in court.

The employer refused to conclude an employment contract?

The fact of an employment relationship will have to be proven in court. File a claim to establish the fact of labor relations.

The employer does not recognize the fact of the employment relationship?

What to do if the employer does not recognize the fact of the employment relationship?

Vera Ivanovna. Rostov

It is necessary to establish the fact of labor relations in court. You can find out what steps you need to take to establish the fact of an employment relationship by reading this article. It is advisable to contact a lawyer labor disputes, at least for an initial consultation. If the claim is satisfied, you can recover from the employer:

• wages and other obligatory payments;
• compensation for moral damage;
• court expenses.

Reason to think

Contacting a lawyer to protect your rights in court in a claim to establish the fact of labor relations increases the likelihood of winning the lawsuit. If the claims are satisfied, the costs of paying for the services of the representative are recovered from the losing party.

When does an employment relationship arise?

In accordance with Part 2 of Art. 67 Labor Code of the Russian Federation

an employment relationship is considered to have arisen and an employment contract to be concluded only if the employee has begun work with the knowledge or on behalf of the employer or his representative.

Thus, if you were assigned to perform any work, and you began to perform it, the employment contract is considered concluded. Although it is not on paper, it is concluded! Moreover, even though the employer did not promise you anything personally, his representatives are quite sufficient.

In accordance with Art. 16 Labor Code of the Russian Federation

The representative of the employer in this case is a person who, in accordance with the law, other regulatory legal acts, constituent documents either by local regulations or by virtue of an employment contract concluded with this person, is vested with the authority to hire employees.

In accordance with paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2

When an employee is actually allowed to work with the knowledge or on behalf of such a person, an employment relationship arises, and the employer may be obligated to formalize an employment contract with this employee properly

However, when you are hired, you do not ask the person who allows you to work to confirm their authority in writing, it seems inconvenient to somehow show distrust... Therefore, you do not know whether a person acts within the limits of his powers or exceeds them. The error is common, but easily corrected. When applying for a job, actively get to know people and do not hesitate to find out in a friendly manner not only the surname, first name, patronymic, but also the position of the interlocutor. This is useful for various reasons:

• You will quickly understand the hierarchy of the company, understand who you can contact and with what questions;
• People love to talk about their work achievements. With your question about the position, you will arouse additional favor towards yourself;
• The title of the position, as a rule, makes clear the powers of a particular employee. In any case, the authorities can and should be clarified.

Don't be afraid to be considered caustic. This behavior won’t hurt – it’s been tested.

But let’s assume that there is no written evidence of the existence of an employment relationship between you and the employer. There is no entry in the work book, there is no employment contract, with job description They didn’t introduce me, the salary is given in an envelope, so there are no pay slips either.

And suddenly, for some reason, you need to prove that there was a fact of labor relations!

We prove the fact of labor relations without documents

In this case, it is very difficult to prove the fact of an employment relationship. But even in this, it would seem, hopeless situation you can try to win.

Is it really possible to prove the fact of labor relations in this case?
In this case, as a rule, the fact of an employment relationship is proven by testimony. People who have worked with you can confirm that you had an employment relationship with a specific employer. However, the court can accept their testimony only if they themselves are officially registered to work for this employer.

Check the evidence base

There was a case where people worked in the same room and received instructions from the same boss. And when it came to proof in court, it turned out that the person who came to confirm the employment relationship of his office neighbor with employer A., ​​according to the work book, was listed with employer B., so the court did not take into account his testimony.

Ask the employees sitting in the same office with you what organization they work for. If they find it difficult to answer, or the name of the organization differs from what was announced to you when you were hired, this is a serious reason for reflection. Ask your employer a direct question about your doubts, find out from him who else works with you in the same organization.

Another difficulty is that your co-workers are afraid of losing their jobs, so they refuse to come to court and testify against their employer. Only your personal good relationships will help here. They can tip the scales, because tomorrow they themselves may find themselves in your current situation.

If you are satisfied with “gray” labor relations, then at least try to provide evidence that you worked in a specific company and the fact of labor relations took place.

What else can prove the fact of labor relations?

In addition to witness testimony, these may be documents that you prepared, the presence of your name and position in the list of employees allowed at any facility, email correspondence with the immediate boss or the head of the company on work issues, etc. Naturally, only the originals of the above documents are suitable for court.

Take note!

• The best job for you from a security point of view would be official employment. Sign that you have read the employment order and ask for a second copy of the employment contract... just as a keepsake.
• Build good relationships with your co-workers trusting relationship. They can seriously help in protecting your rights in general and in proving the fact of an employment relationship in particular.
• Do not be afraid to involve a lawyer as soon as you feel that your rights may be violated.

The main stages of protecting your rights in proving the fact of an employment relationship

1. Preparatory stage;
2. Pre-trial settlement stage;
3. Stage of writing legal documents;
4. Trial.

Establishing the fact of labor relations occurs in cases where a person needs to confirm the implementation of professional activities in a particular company. The beginning of an employment relationship between a person and an employer always involves the preparation of the necessary documentation. This approach allows us to record the fact that the parties have assumed certain obligations and acquired certain opportunities. However, in practice there are often situations where relationships can arise without any documentation.

To resolve any issues related to, a whole system of general and internal regulations and rules.

This system covers the following areas:

• provision of people with jobs;
• working conditions and internal security;
• change of place of residence by people and change in population size.

The list of such rules is quite diverse.

First of all, this is the basic law of the Russian Federation, that is, the Constitution. It contains all the basic capabilities of a person to freely exercise his professional activity and choose a place of work.

This system also includes international agreements that the Russian Federation has entered into. They largely regulate the work of citizens outside the country, as well as the work of foreigners on its territory.

The main legislative act that covers all issues related to labor relations is the Labor Code. This regulatory act covers all areas of professional activity of any worker, regardless of the form of ownership and subordination of the company in which he works, as well as his position and the specifics of his professional activity.

It should be noted that the Labor Code of the Russian Federation does not disclose in detail all aspects of working interaction. For these purposes, rules and regulations are adopted at the structural level that describe in more detail certain labor procedures.

This also applies to the internal rules of the organization. For example, internal regulations are drawn up taking into account the specifics of the organization's activities.

Regulatory documentation also includes orders from the head of the company on core activities and personnel.

Unofficial employment

The emergence of labor relations occurs on the basis of drawing up mandatory documents– agreement and order of appointment to a position. However, sometimes in practice there are cases when a person carries out his professional activities without completing the specified documents.

In most cases, this happens in situations where the manager seeks to save the company’s expenses as much as possible.

The absence of an official appointment of a person to a position makes it possible not to make tax payments, transfers to Pension Fund, and in the event of a decrease in the number of workers or a change in the staffing structure of the organization, there will be no need to provide financial assistance to the person being fired. However, this approach entails certain problems. If the competent authorities reveal such a fact, then administrative measures will be applied to the manager. Such measures are most often expressed as imposition.

The initiative to carry out work without completing the necessary documentation can also come from a person. The thing is that sometimes an applicant for a position may not have any document. In such cases, in order not to waste extra time, the interested person himself offers the manager an unofficial way of doing the work. In such a situation, consent carries a risk for both parties. For a worker, this means receiving a smaller amount of earnings than was initially agreed upon, as well as the inability to compensate for damage to one’s health, if any. In turn, it will be extremely difficult for the boss to demand from the employee of proper quality work.

The procedure for establishing the fact of labor relations

To prove the very fact of professional cooperation with the company, the interested person must adhere to a certain procedure. It should be noted that separate order the solution to this problem has not been determined by the current regulations. Proceedings take place according to general rules consideration of work-related disputes.

First of all, the initiator must file a claim to establish the fact of labor relations. It is on such a document that the entire subsequent procedure for the proceedings will be based.

To draw up such a paper, it is necessary to decide what exactly the person wants to justify and confirm. This will allow the applicant to understand for himself what supporting data needs to be collected for the court.

After registration of all necessary documents they must be submitted to the court within the period prescribed by law. Based on the above, it will happen trial and a decision accordingly will be made.

Going to court is impossible without registration in writing statement of claim.

The clear form of such a document is not defined by the current regulations. It is compiled in random order. It would be correct to include in the content information of a nature that will most fully and comprehensively reveal the essence of the appeal.

According to established practice, the content of the petition always indicates:

• the name of the court that will consider the appeal;
• information about the compiler – full last name, first name, patronymic, address of actual location, contact numbers;
• reason for going to court;
• detailed circumstances of the current situation, that is, when, where and in what capacity the person worked, the period of work;
• measures taken to resolve the problem peacefully;
• whether the worker contacted other competent authorities to resolve the issue;
• the request itself, which the initiator wants to satisfy;
• list of attached supporting documentation;
• signature of the originator and date of execution of the document.

Going to court

To petition the court to conduct a hearing on his issue, the interested person has three months. This statute of limitations begins its calculation from the moment when a person became or could become aware of violations of his rights.

Please also note that requirements of this kind fall under the jurisdiction of district (city) courts.

To establish the fact of professional interaction, it is necessary to submit the completed appeal together with the available supporting documentation to the court. There are several ways to do this.

First of all, the initiator can submit the entire package of documents in person. This option is the most common and convenient for humans. The thing is that the drawn up claim and the collected documentation may have inaccuracies or errors. If the initiator brought everything collected himself, then it will be possible to eliminate all the shortcomings on the spot or get the necessary clarifications from a specialist.

The information package can be transmitted through your authorized representative. But in this case there is a risk of either rendering the latter unusable. The interested party will incur extra costs for the services provided by the notary, since the representative must have in his hands a certified power of attorney that confirms his authority.

It is also possible to use mail as a method of transmission. However, in this case, the person may simply be refused consideration of the claim if there are errors in the information collected.

It should be noted that in this situation the initiator is exempt from consideration of the appeal.

Circumstances to be proven

A claim filed by the initiator to establish labor relations is considered in court in the manner established by the current regulations.

In order for a conclusion to be reached based on the results of the discussion, the existence of certain circumstances must be established during the proceedings.

First of all, it is necessary to find out whether there really was an agreement between the person and the manager on professional cooperation. That is, even if the parties did not sign an agreement, it is possible to interview witnesses and establish this fact.

Then it would be correct to find out whether the necessary documentation was actually not completed, or whether the initiator applied to the court for far-fetched reasons.

At the end, you should find out whether the person actually performed his duties, that is, whether he came to his place and did the work. It would be useful to find out whether the official with whom the person has reached an oral agreement has the authority to appoint to a position and conduct any negotiations on behalf of the company.

Presentation of evidence

Any court decision is made only if the necessary information and data are available that confirm or refute any circumstances.

In this situation, the initiator is obliged to provide such information, first of all. Any documentation must be submitted either in the original or its copies must be properly certified. Although in conditions of unofficial work it will be extremely difficult to submit any documents. In most cases, a person can refer to the explanation of other workers. Of course, the initiator is not given the opportunity to call witnesses to court.

If for some reason a person cannot provide the court with the necessary evidence, he is obliged to draw up a petition asking to request the necessary information in an official manner. That is, the applicant will be given a request on the basis that he may require the provision of the necessary information, or such a request will be sent directly to the organization.

When it is not possible to fulfill a received request within a certain period or it cannot be done at all, the manager is obliged to inform the court about this no later than five days.

Ignoring a court request or failing to execute it in a timely manner may result in a financial fine for the violator.

It should be noted that such a measure does not cancel the obligation to comply with the court's request.

Execution of a court decision

After judicial recognition of the existence of an employment relationship has occurred, the initiator’s requests must be satisfied to the extent determined by the court.

The basis for this is a court decision. However, the time period for executing such a conclusion depends on the content of the petition. The whole point is that the request of any person is expressed not only in recognition of the fact of labor relations. If the initiator wants the manager to formalize necessary documentation, that is, he was actually reinstated in his position, then in this case the court decision, which was made in favor of the worker, must be executed immediately upon receipt. Violation of deadlines will not only lead to penalties. The court may make a decision and oblige the manager to pay monetary compensation to the worker for the entire period.

Arbitrage practice

One of the courts of the Russian Federation considered an appeal from a worker with a request to confirm his work in the company and compensate for moral damage.

During the consideration of the appeal, it was established that the initiator had reached a verbal agreement with the head of the company that the person would perform the work. The chief has undertaken the following responsibilities:

• draw up all the necessary documentation, that is, an agreement, an order, make an entry in the labor record;
• pay the worker his earnings twice a month;
• provide two days off per week.

However, during the entire period of work, no documents were drawn up. There were cases of debt in payment of earned money.

The initiator petitioned the court to order the company to do the following:

• draw up the necessary documentation - agreement, order, submit;
• pay off wage arrears;
• compensate for moral damage.

The company representative did not appear for the hearing and did not report the reason for his non-appearance, despite the fact that the organization was informed of the time and location of the meeting.

The initiator presented documentary data that confirmed his work in the company - certificates of work performed, powers of attorney for the transportation of goods.

The company's financial specialist, invited to the court, confirmed that he actually executed powers of attorney for the worker, as well as accrued money earned. That is, the position of the initiator was confirmed not only by the oral explanations of the witness, but also by documentary data. In turn, the company did not provide any refuting information.

It is necessary to prove that a person worked in an organization in cases where an employment relationship was not officially formalized between him and the institution, that is, an employment contract was not concluded in writing. Unfortunately, lawyers are contacted with such a problem very often, since many employers do not formally register their employees, thereby violating the law. Typically, this fact allows the employer to evade taxes and additional payments to the employee, but the unofficial employee does not receive any advantages from such activities, except for the opportunity to quit at any day.

Once people need to confirm that they work for a given organization, problems arise and they have to defend their rights. It is usually difficult to resolve this problem pre-trial, so former employees such enterprises go to court.

We will tell you in this article how to demand recognition of an employment relationship with an employer through the court.

In what situations is confirmation required?

If the labor relationship between the employer and the employee has not been documented, then confirmation of the fact of performing labor activities at the enterprise may be required if the employee wants to apply for some payments, plans to retire, or requires entry of work records in the work book.

Also, if the employer has not paid wages or has delayed any payments, the employee will also need to first of all prove the existence of an employment relationship, and then collect the bottom cash. If an employer fires an employee without reason or withholds his documents, then the person can also defend his rights, but first he will have to initiate legal proceedings to confirm his work activity in this organization.

Info

Usually, confirmation of this fact requires writing claims to the employer, but since these claims are often ignored, proceedings and proof of the employment relationship through the court are usually required.

When does the employment relationship begin?

It is important to know that the fact of concluding an employment contract is not the only evidence of labor relations. According to Article 16 of the Labor Code of the Russian Federation, an employee’s admission to work is the basis for the beginning of an employment relationship.

Without evidence of an employment relationship, an employee will not be able to protect his rights in court, and will also not be able to claim the inclusion of this working period in his work experience.

Evidence that the person worked

When between a person who has worked certain period Since the organization and his direct employer did not enter into any official labor relations, it will be quite problematic to prove the fact of what salary the employee received, how long he worked, when he was hired and when he was fired.

But even if a person did not have an official entry in the work book, it is possible to prove the fact of work, if there is a concluded employment contract, there are witnesses to the performance of work at the enterprise by this employee, the organization has documents that confirm that this citizen was an employee of the company.

Info

If there is any of this evidence, then it will not be so difficult to prove the fact of work in court. It is especially easy to prove this fact when there are documents in which the signatures of you and other leading individuals of the organization appear.

Compilation

The claim has a standard form, like other applications to the court.

The statement states in the header:

• Where the claim was sent, name of the court and full name of the judge;
• Full name and contact details of the applicant;

In the main part of the statement:

• The essence of the problem;
• Legal acts that were violated;
• Requirements for the employer: to recognize the fact of an employment relationship, conclude relevant documents and pay due compensation;
• List of attached documents and evidence;
• Date and signature of the applicant.

The application must be accompanied by documents that confirm the information specified in the claim, as well as evidence that you have confirming the employment relationship. The claim is filed in three copies, one of which will be returned to you after stamping and acceptance of the application, one will be left in court, and the other will be sent to the defendant.

Sample

On the page below you will find a sample statement of claim drawn up by professional lawyers, which will help you establish the fact of an employment relationship. This sample can easily be adapted to a specific problem related to informal labor in an organization. Don't forget to make three copies of statements for the court.

Sample

IN _____________________________
(name of court)
Plaintiff: _________________________
(full name, address)
Respondent: _______________________
(full full name of the entrepreneur
or name of the company,
address)
Claim price: _______________________
(amount of earnings from requirements)

Statement of claim to establish the fact of labor relations

I worked at the company _________ from “___”_________ ____ in the position of _________. The employment relationship was not formalized and I was not given an employment contract. _________ (indicate the circumstances under which the plaintiff began to perform labor responsibilities, what agreements there were with the employer).

When I was hired, they promised to pay me a salary in the amount of _______ rubles, in fact, for the entire time they paid me _______ rubles. (indicate actual payments by amounts and dates), _______ rubles were not received.

The employment relationship with the employer is confirmed by _________ (indicate how the employment relationship is confirmed).

In accordance with Article 16 of the Labor Code of the Russian Federation, labor relations between an employee and an employer also arise on the basis of the employee’s actual admission to work with the knowledge or on behalf of the employer or his representative in the case where the employment contract was not properly drawn up.

“___”_________ ____ I was fired, but I was not informed of the dismissal order, I was not given a work book upon dismissal, and no payment was made for the time worked.

I consider the employer’s actions illegal because _________ (specify reasons).

Illegal actions of the employer caused me moral harm, which was expressed in _________ (indicate specific experiences, for example: stress, depression, insomnia, etc.). I estimate the moral damage caused to me at _______ rubles.

Based on the above, guided by Articles 131-132 of the Civil Procedure Code of the Russian Federation,

Ask:

1. Establish the fact of labor relations between _________ (full name of the plaintiff) and _________ (name of the defendant) in the period from _____ to _____ (indicate the period of labor relations).
2. Oblige _________ (name of the defendant) to make entries in the work book about acceptance and dismissal from work at his own request from _________ (indicate the date of dismissal).
3. To recover from _________ (name of the defendant) unpaid wages in the amount of _______ rubles.
4. To recover from _________ (name of the defendant) in my favor as compensation for moral damages _______ rubles.

List of documents attached to the application(copies according to the number of persons participating in the case):

1. Copy of the statement of claim
2. Earnings calculation
3. Documents confirming the fact of labor relations
4. Documents confirming the amount of established earnings

Date of application “___”_________ ____ Signature of the plaintiff _______

Filing an application to court

Once the claim has been filed, you must determine which court to file the claim in. The application for the employer must be submitted at its location, or at the place where the actual labor actions person Requirements for establishing labor relations fall under the jurisdiction of district and city courts. The magistrate will not consider such a claim.

Even before submitting the application, it is necessary to collect as much evidence as possible indicating that the work activity was carried out. In addition, you can try to file a complaint with the labor inspectorate, but if the inspectors are unable to solve your problem, you can immediately go to court so as not to waste time, since the period for consideration of applications in the Labor Inspectorate is at least 30 days. Labour Inspectorate can check the employer and, if violations are detected, fine it, but, for example, to make an entry in the labor record, you will still have to go to court if the employer does not want to do this.

State duty

As everyone knows, a state fee is usually charged in court for the consideration of claims. But if the case concerns the recognition of labor relations, the applicant is exempt from paying the state fee for filing a claim for recovery of wages, reinstatement at work or recognition of the fact of labor.