Results of 2011. Labour disputes practice of the Supreme Court of the Russian Federation

The labour law chair of the National Research University (NRU) “Higher School of Economics” held a round table on November 09, 2011. Doctor at Law Boris Gorokhov, representing the labour and social cases judges of the Judicial Board on Civil Cases of the Supreme Court of the Russian Federation, delivered a report on topical issues of court practice of labour law application. Members of the State Duma of the Federal Assembly of the Russian Federation, representatives of the Central Bank of Russia, trade unions, prominent scientists, practicing lawyers were present at the event. Advocate, Doctor at Law, Associate Partner at the Law Firm "YUST" Anna Kotova-Smolenskaya represented the Firm.

Head of the labour law chair of the NRU HSE, Doctor at Law Yury Orlovsky gave start to the event. He noted: “Court practice links legal norms to actual life situations. That is why it helps us to resolve legal problems and controversies, which exist in the current legislation. However, it does not always give the same answer to the same question”. After that, Boris Gorokhov, the speaker, took the floor. He presented to the participants legal incidents, the solutions to which the Supreme Court of Russia suggested this year while considering labour disputes’ cases. One of these was connected with the application of Article 74 of the LCRF on the powers of the employer to unilaterally change the terms of an employment contract.

For example, if a position with the same responsibilities but lower salary is offered to an employee in the case of internal reorganization, the SCRF recommends the ex contrario way to examine, whether or not his labour function has changed.

Boris Gorokhov explained: “Had she aspired to another position and been refused, the employer would have been wrong. The opposite would also be wrong a fortiori”. This statement had been confirmed true before, on a labour dispute which had arisen as a result of a merger of two ventures. Following such provisions, the SCRF upheld the employer’s argument that there had been no change of the labour function.

When the speaker concluded his report, the round table participants discussed other legal gaps lacking uniform court practice. For example, Anna Kotova-Smolenskaya pointed out that the following issues required explanations of the supreme court instances:

• What criteria to use while dwelling upon the term of intention in the cases of bringing employees to full material responsibility;
• What the limits of proving of guilt in the actions (inaction) of a manager claiming “golden parachute” are ;
• How many times and at what intervals the employer is obliged to inform the downsized employee of the open positions.

Anna Kotova-Smolenskaya explained: “It is common practice for large organizations – commercial banks, for example – to have a widespread network of affiliates and repoffices. It is practically impossible to find out, where a position has become available, which may be offered to the downsized employee”.

She believes that, when settling labour disputes with such employers, the most acute issue is that of the court’s obligation to find out, whether or not the employer has complied with the legal requirements carefully enough, and whether or not there was an intention in his actions (inaction) to keep quiet about the job opening.

At the end of the round table, its participants thanked the organizers and the speaker for the unique opportunity to discuss the most topical problems of the labour legislation application and to try to jointly find their optimal solutions.