Practice of the Supreme Court of Russia – 2013: new positions on labor disputes

The Chair of Labor Law of the National Research University “Higher School of Economics” held on September 18 a round table with the participation of Boris Gorokhov, Chairman of the court jury on labor and social matters of the Court Board on civil cases of the Supreme Court of Russia. Distinguished representatives of scientific community, trade unions, employers, law firms and advocates’ community were among those invited. Lawyers Arthur Sabitov and Tatiana Samarina represented the Law Firm "YUST".

Professor, Doctor-at-Law Yury Orlovsky delivered the welcoming speech and pointed out that the controversy of the court practice still exists, even though the same provisions of labor law are concerned. For example, the principle of non-admission of abuse of law in cases with similar circumstances is applied by some judges and avoided by other judges. The situation with the disputes on restoring the downsized employees is similar: he reminded about the determination No. 867 by the Constitutional Court of Russia dated 18.12.2007, according to which downsizing is the sole competency of the employer. However, the courts have started again to analyze the causes of the management decision to downsize the staff. In his turn, Boris Gorokhov provided the participants of the event with over a dozen of examples of the Supreme Court position expressed in 2013 on acute matters of application of law, including:

• In what cases the employer’s refusal to accept the recall of the letter of voluntary resignation will be ruled illegal (determination №5КГ-13-43 of the Supreme Court of Russia dated 31.05.2013);
• What claims should be presented to the employer during a joint labor dispute and in what order (determination №80-АПГ13-1 of the Supreme Court of Russia dated 21.06.2013, not published yet);
• What actual circumstances prove discrimination against the employee (determination №77КГ12-8 of the Supreme Court of Russia sated 19.10.2012);
• When fake education documents prevent from dismissing the employee for a special reason – clause 11 of Article 81 of the Labor Code of Russia (determination №26-КП2-12 of the Supreme Court of Russia dated 08.02.2013) etc.

The discussion of the court practice of exaction of “golden parachutes” attracted special attention of the participants. There were stories of situations, when respective agreements “are somewhere in a drawer” and are not registered by the GR services, and later presented to the court as direct proof of the right to receive a large amount of money.

The Chairman also told those present of the pending consideration by the Board of cases containing other problems of similarly important significance for the practice. In particular, a session will be held on October 25 that will discuss the issue whether the employer may recover the vacation pay paid in advance, since the employee who quit had not worked the required period. The format of the event allowed the participants to gain answers concerning the legality of contractual jurisdiction in labor relations, calculation of the periods for resorting to courts etc.