The limitation of actions in the recovery of earnings for the time of forced absenteeism. Calculation of forced absenteeism court decision Fees for forced absenteeism plaintiff

Department of Tax and Customs Tariff Policy<…>on the issue of taxation of personal income tax on the amount of the average earnings of an employee during forced absence, collected from the organization on the basis of a court decision, in accordance with article 34.2 of the Tax Code of the Russian Federation (hereinafter - the Code) explains the following.

According to Article 210 of the Code, when determining the tax base for tax on personal income, all income of the taxpayer, received by him both in cash and in kind, or the right to dispose of which he has arisen, as well as income in the form of material benefits, are taken into account. in accordance with article 212 of the Code.

The grounds for exemption from personal income tax on the amount of average earnings during the forced absence from the organization on the basis of a court decision, article 217 of the Code does not contain.

These amounts are subject to personal income tax in accordance with the established procedure.

When paying natural person income in the form of average earnings for the period of forced absence, subject to taxation, an organization on the basis of paragraph 1 of Article 24 and Article 226 of the Code is recognized as a tax agent and it is charged with calculating, withholding and paying the amount of personal income tax.

In accordance with Articles 21 and 34.2 of the Code, the Ministry of Finance Russian Federation gives written explanations to taxpayers and tax agents on the application of the legislation of the Russian Federation on taxes and fees.

These written explanations are provided to taxpayers only in connection with the fulfillment of their obligations under the Code.

In connection with the above, the issue of liability for tax offenses committed by an organization recognized by a tax agent may be considered by the Ministry of Finance of the Russian Federation upon receipt of an appropriate request from such an organization.

Deputy Director of the Tax and Customs Tariff Policy Department of the Ministry of Finance of the Russian Federation S.V. Razgulin

Expert commentary

On taxation of average earnings during forced absences

If the employer in the work book incorrectly indicated the reason, date or basis for dismissal, or did not issue the work book on time, the court decides to pay the employee the average earnings for the entire period of the forced absence.

Amounts of average earnings during forced absence from the employer by a court decision are subject to tax taxation of personal income tax... This means that the employer in relation to this type of payments is recognized as a tax agent and is obliged to calculate, withhold and pay to the budget the amounts of personal income tax collected at a rate of 13 percent.

This is not difficult to explain. The fact is that article 217 of the Tax Code of the Russian Federation lists the types of income exempted from personal income tax. Among such payments, the amount of average earnings during the forced absence is not indicated. This means that it is necessary to withhold personal income tax from them in the general order.

In addition, in favor of the fact that the amounts of wage arrears collected on the basis of a court decision are subject to personal income tax, is evidenced by the fact that when determining the base for an employee's personal income tax, all his income, both in cash and in kind, is taken into account.

Execution wages job responsibilities personal income tax is subject to the general procedure.

The fact that the amount of wage arrears was collected in court does not relieve the employee of the taxpayer's obligation. At the same time, withholding tax amounts and transferring them to the budget The Tax Code of the Russian Federation obliges a tax agent, that is, an employer (letter of the Ministry of Finance of Russia dated 25.07.2008 No. 03-04-05-01 / 273).

In accounting, the amount of average earnings for the time of forced absenteeism, paid by a court decision, is referred to as expenses for ordinary activities. The employer recognizes them in the month in which the court decision came into force on the payment to the employee of the amount of average earnings during the forced absence.

When calculating the amount of average earnings, an accounting entry is made on the debit of account 20 "Main production", 26 "General business expenses", 44 "Expenses for sale" and credit of accounts 70 "Payments with personnel for wages".

Since the disputed amounts of average earnings for forced absenteeism are recovered by an individual in court, they are transferred to the account of the bailiff service. In accounting, the transfer of these amounts to the account of the department of bailiffs is made out by an entry on the debit of account 76 "Settlements with different debtors and creditors" and the credit of account 51 "Settlement accounts".

The payment of the amount of average earnings to an employee is accompanied by an entry on the debit of account 70 and credit of account 76 "Settlements with different debtors and creditors."

Not to be confused with compensation

It is important here not to qualify the amount of wages for the time of forced absence as compensation payments.

Since all types of established compensation payments related to the performance of labor duties, and in particular to the dismissal of an employee, are exempted from personal income tax. This is directly spelled out in paragraph 3 of Article 217 of the Tax Code of the Russian Federation.

At the same time, according to Article 394 of the Labor Code of the Russian Federation, the payment to an employee of the average earnings during the forced absence from work may be initiated by the body considering an individual labor dispute. For this reason, the amount of average earnings for the period of forced absence is often taken as a compensation payment, since it is related to the performance of the employee's labor duties and is directly established by labor legislation.

Moreover, the regulatory authorities declare that the payment of average earnings for the time of forced absence is not compensation associated with the performance of an individual's work duties, since the employee does not fulfill his work duties during a forced absence from work. Also, this payment is not related to the dismissal of the employee.

Consequently, the amount of the average salary for the time of forced absence from the employing organization in favor of its employee by a court decision is included in the personal income tax base (letters of the Ministry of Finance of Russia dated 05.04.2010 No. 03-04-05 / 10-171, dated 22.09 .2009 No. 03-04-05-01 / 705).

In other words, the amounts of average earnings collected by a court from the employer do not fall under paragraph 3 of Article 217 of the Tax Code of the Russian Federation on exemption from personal income tax and are taxed in the generally accepted manner (letter of the Federal Tax Service of Russia dated November 16, 2011 No. ED-3-3 / 3745 ).

Thus, article 217 of the Tax Code of the Russian Federation contains an exhaustive list of taxpayer incomes that are not subject to personal income tax. And if this article does not contain any type of payments, then they are subject to personal income tax. Like, for example, monthly supplements to retirement pension. Even though labor pensions are not subject to personal income tax, the amounts of monthly surcharges to labor pensions paid by a court decision are subject to personal income tax (letter of the Ministry of Finance of Russia dated June 19, 2009 No. 03-04-06-01 / 141).

However, it will be useful to say that in some court decisions there is an opinion that

payments for the time of forced absenteeism are compensatory.

The reason for the arbitrators was the fact that compensation for the time of forced absenteeism was awarded to the employee by a court decision, and transferred by the company to the account of the bailiff service within the framework of enforcement proceedings.

For these reasons, the judges decided that since the employer was not the source of the actual payment, the calculation and payment of personal income tax should not be made.

They also believe that compensation payments, including compensation for the time of forced absenteeism, are not subject to personal income tax in accordance with paragraph 3 of Article 217 of the Tax Code of the Russian Federation (resolution of the Federal Antimonopoly Service of the Moscow District of 08.12.2008 No. KA-A40 / 11341-08).

If the amounts are not divided

One more important point, to which we draw your attention.

So, the court recognized the amount of average earnings for forced absenteeism. An entity that pays such amounts to an employee is recognized as a withholding agent. This means that the employer is obliged to withhold the accrued amount of personal income tax directly from the employee's income when they are actually paid, and at the expense of any Money due to the employee.

The Tax Code of the Russian Federation does not provide for the specifics of how a tax agent fulfills his duties when paying income by a court decision.

Therefore, the employer, at the stage of considering a civil case to recover from him the amount of average earnings, has the right to draw the attention of the court to the fact that it is necessary to determine the debt to be collected. That is, it is more expedient that in the operative part of the decision the judges indicate the amount of income collected in favor of the employee and the amount of personal income tax that must be withheld and transferred to the budget.

If, when making a decision, the courts do not separate the amounts due to the employee and to be withheld from the employee, the tax agent cannot withhold personal income tax from the taxpayer.

And this despite the fact that the employer is obliged, within a month from the moment of occurrence of the relevant circumstances, to notify the tax authority at the place of his registration in writing about the impossibility of withholding personal income tax and the amount of the taxpayer's debt.

In this case, the payer independently pays personal income tax from such income by filing a declaration with the tax authority at the place of residence (letter of the Federal Tax Service in Moscow dated 11.03.2010 No. 20-14 / 024761).

Expert "NA" E.M. Yudakhina

Calculation of the amount of compensation (regulatory framework)

The first and foremost source of regulation for any labor rights of relations - the Labor Code of the Russian Federation. It was he in Art. 139 and part 2 of Art. 394 determines the procedure for calculating the amount of compensation for absenteeism due to the fault of the employer, and the grounds for such payment.

The amount of payments due to forced absenteeism is calculated taking into account the average earnings. The features of its calculation to determine the amount of compensation are considered in the decrees of the Government of the Russian Federation "On the specifics of the calculation procedure ..." dated 24.12.2007 No. 922 and the Plenum of the Supreme Court of the Russian Federation dated 17.03.2004 No. 2.

A collective agreement may also contain conditions regarding the calculation of average earnings when determining the amount of compensation. However, this is permissible only if they do not worsen legal status employees in comparison with the Labor Code of the Russian Federation and do not contradict its provisions.

When is compensation for forced absenteeism due to illegal dismissal

As the name of the payment implies, this kind of compensation is due to the employee in the event of involuntary absenteeism. No one normative act at the same time, it does not provide a decoding of the concept of "forced absenteeism", therefore its meaning is derived on the basis of an analysis of the articles of the Labor Code of the Russian Federation and the above-mentioned decrees. Taking this into account, we can say that forced absenteeism is a period during which the employee was unlawfully deprived by the employer of the opportunity to conduct labor activity and, as a result, get paid.

Illegal dismissal is one of the cases when we can talk about forced absenteeism. Decision on payments related to illegal dismissal, the court accepts, he also indicates their size directly in the text of his decision. By filing a statement of claim, the plaintiff can either independently calculate the amount of compensation with the attachment of documents confirming the size of the average wage, or limit himself to the requirement to pay for the forced absenteeism for a certain period of time.

The court may decide to pay compensation not only for illegal dismissal, but also in other cases:

When an employee is deprived of the opportunity to work as a result of suspension from work, transfer to another or delay in issuance work book(Article 234 of the Labor Code of the Russian Federation).
If the employer refuses to conclude an employment contract with an employee invited in writing on the terms of transfer from another organization (Article 64 of the Labor Code of the Russian Federation). In this case, we are talking about a violation of the employee's right to work. He has the right through the court to demand employment and compensation for the forced absence from the period from the date of refusal to hire him until the date of the court decision.

Calculation of the amount of payment

When deciding on compensation for forced absence from work, the court applies the provisions of Art. 139 of the Labor Code of the Russian Federation. For the calculation, all types of payments are accepted that were used by the employer in the wage system for the employee. This means that the popular pay system with a minimum salary and large bonuses, which is often used to reduce tax deductions, will not help reduce the size of the payments in question. They are compensated within the limits of the average earnings for the entire time during which the employee could not work due to the fault of the employer.

The issues of determining the average earnings are covered in detail in the Decree of the Government of the Russian Federation No. 922. Based on its provisions, as well as the norms of the Labor Code, we can formulate the basic rules for calculating the payment of forced absenteeism:

The calculation is made for the last 12 months before the illegal dismissal or for a shorter period if the employee has worked for less than a year.
For the calculation, the actual hours worked and the paid wage... The mode of operation does not matter.
The month is considered calendar - from the 1st to the 30th or 31st, with the exception of February, in which there are 28 or 29 days.

In addition, it is necessary to take into account the norms of clause 17 of Resolution No. 922, which establish that such payments should be increased if during the absence the tariff rates and salaries were increased. The multiplying coefficient is calculated by dividing the amount of the employee's wages during the period of the actual start of work after his restoration by the wage rate in force during the forced absence.

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Calculation example

For example, consider the calculation of compensation for forced absenteeism for an unlawfully dismissed employee who has worked in the organization for more than a year. Let's say Ivanov I.I. was dismissed from work on January 1, 2019, after which he went to court and was reinstated on April 1, 2016.

Ivanov's salary was 30,000 rubles. for each month of the previous year. In total, there were 247 working days in 2015. There were 57 working days from January 1 to April 1, 2019.

Thus, the calculation will be performed in the following order:

30,000 × 12 = 360,000 (rubles) - the employee's earnings for the previous year;
360,000 / 247 = 1,457.48 (rubles) - average daily earnings over the past year;
1457.48 × 57 = 83 076.38 (rubles) - the amount of compensation.

Is it possible to reduce the amount of compensation?

By dismissing an employee, the employer can make the necessary payments, in particular, severance pay and compensation for unused vacation. In accordance with paragraph 62 of the Resolution of the Plenum of the Supreme Court No. 2, the funds paid as severance pay are subject to offset when determining the amount of compensation for absenteeism. Thus, the amount of payment for forced absenteeism will decrease.

In this case, the following payments are not subject to offset:

salary paid to an employee by another employer, regardless of the time of employment and work schedule;
benefits for temporarily disabled persons, including for disability;
unemployment benefits.

Neither the Labor Code of the Russian Federation nor other acts contain instructions on how to deal with money paid as compensation for unused vacation, which means that they do not provide an opportunity to reduce compensation for forced absenteeism by these amounts. It remains only to refer to the explanations in the letter of Rostrud "On the provision of annual paid leave ..." dated June 14, 2012 No. 853-6-1, according to which the employee reinstated at work acquires all the rights that he had before the illegal dismissal. The uninterrupted course of work experience is restored and, consequently, the right to the provision of annual paid leave.

Thus, the employee has 2 options:

After returning to work, write a statement and return the amount equal to the compensation for the vacation to the organization's cash desk (when the vacation period comes, he will be able to receive all vacation pay in full). The employer should be careful in this matter and accept money only if there is a written application from the employee explaining what amounts he returns to the cashier and what is their purpose.
Do not refund compensation. In this case, this amount will be deducted from his vacation pay and he will receive only the part that is formed taking into account the illegal dismissal.

Taxation when paying for involuntary absenteeism

Employers often have a question regarding the payment of personal income tax from the amounts paid to employees after reinstatement at work as payment for forced absenteeism. In addition, some accountants mistakenly believe that such amounts are not taxed on the basis of paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, and refer to the fact that the mentioned amounts are paid in connection with dismissal.

However, the provisions of the article speak only about the amounts associated with dismissal and compensation payments... At the same time, forced absenteeism is paid for by a court decision due to the recognition of the dismissal as illegal, therefore, it seems wrong to apply the rules on preferential taxation of payments upon dismissal to it.

Confirmation of this position can be found in the letter of the Federal Tax Service in Moscow dated March 11, 2010 No. 20-14 / [email protected] It says that the Tax Code of the Russian Federation does not imply separate taxation for obligations imposed on the employer by a court decision, and Art. 210 of the Tax Code of the Russian Federation indicates that all income received by a person in cash or in kind is subject to taxation.

The same letter provides an important explanation regarding the procedure for paying personal income tax from funds paid as compensation for forced absenteeism. As a general rule, the employer, as a tax agent, independently pays personal income tax on income transferred to the employee. The plaintiff has the right at the stage of the proceedings to appeal to the court with a request to allocate in the decision both the amounts directly owed to the employee and the amounts that must be transferred to the budget as tax payments.

In this case, the employer will not be able to pay the tax on his own. At the same time, according to clause 5 of Art. 226 of the Tax Code of the Russian Federation, he must inform the employee and the tax authority at the place of registration about the impossibility of paying tax. This must be done no later than one month after the end of the tax period. The employee will be obliged to independently pay the amount of personal income tax specified in the court decision.

It remains to add that under Art. 396 of the Labor Code decisions on reinstatement at work after the recognition of the illegality of the termination of the employment contract are executed immediately. In the event of a delay in reinstatement at work, the amount of compensation for forced absenteeism is increased taking into account this time.

Appeal ruling of the IC in civil cases of the Sverdlovsk Regional Court dated April 01, 2015 in case N 33-4234 / 2015

The Judicial Collegium for Civil Cases of the Sverdlovsk Regional Court composed of:

presiding judge Burmatova G.G.,

judges Ivanova T.S., Luzyanina V.N.,

at the secretary of the court session Razdyakonova N.A.

considered in open court in the premises of the court the materials of the civil case at the suit of AND.The. to the municipal unitary enterprise (MUP) "..." on reinstatement at work, collection of wages for the time of forced absence, compensation for moral damage

on appeal by the plaintiff

on the decision of the Verkhnepyshminsky City Court of the Sverdlovsk Region dated 05.11.2014.

After hearing the report of Judge Ivanova TS, explanations of the plaintiff Ichkova NV, who supported the arguments and requirements of the appeal; explanations of the representative of the defendant, Alekseeva E.Yu., who objected to the arguments and requirements of the plaintiff's appeal, the panel of judges

INSTALLED:

I.N.V. filed a lawsuit against the municipal unitary enterprise "..." (MUP "...") for reinstatement at work, for the recovery of wages for the time of forced absenteeism, compensation for moral damage.

In support of the stated requirements, she indicated that she worked for the defendant ... by Order No. N from "..." she was dismissed due to a reduction in the number (staff) of employees under paragraph 2 of Art. 81 of the Labor Code of the Russian Federation. She considered the dismissal illegal, asked to reinstate her at work, to collect wages for the period of forced absence from "..." to "..." in the amount of N rubles. N cop., Compensation for moral damage in the amount of N rubles.

The representative of the defendant MUP "..." did not admit the claim.

By the decision of the Verkhnepyshminsky City Court of the Sverdlovsk Region dated 05.11.2014 the claims AND.N.The. partially satisfied:

The plaintiff was reinstated as a deputy director of the MUP "...";

From the defendant in favor of the plaintiff, a salary was collected for the time of the forced absence for the period from "..." to "..." in the amount of N rubles. N cop.;

From the defendant in favor of the plaintiff, compensation for non-pecuniary damage was recovered N RUB.

The determination of the Verkhnepyshminsky City Court of the Sverdlovsk Region from "..." eliminated an arithmetic error in the calculation of wages for the period of forced absenteeism, corrected the amount of collected wages for the period of forced absenteeism in the amount of N rubles. N cop.

The defendant did not appeal against the court decision.

The plaintiff did not agree with the court decision in terms of the amount of wages collected during the forced absence, brought an appeal against him, in which she indicated that she did not agree with the court decision due to the court's incorrect application of norms substantive law: the court incorrectly calculated the average earnings during the forced absence, unreasonably applying in the calculation of paragraph 10 of the Decree of the Government of the Russian Federation of 24.12.2007 N 922 "On the specifics of the procedure for calculating the average wage", and not paragraph 9 of the said Resolution. In additions to the appeal, brought in the session of the court of appeal, she additionally indicated that the court had not unreasonably applied to the relations of the parties paragraph 17 of the said Resolution.

At the session of the court of appeal were: plaintiff AND.H.The., Who supported the arguments and requirements of the appeal; representative of the defendant Alekseeva E.Yew., who objected to the satisfaction of the appeal.

Having examined the materials of the case, having heard the explanations of the parties, having checked the legality and validity of the court's decision, the judicial board comes to the following.

According to Art. 328 of the Civil Procedure Code of the Russian Federation, based on the results of consideration of the appeal, the court of appeal has the right, inter alia, to cancel or change the decision of the court of first instance in whole or in part and make a new decision on the case. By virtue of Art. 330 of the Civil Procedure Code of the Russian Federation, the grounds for canceling or changing a court decision on appeal is the incorrect application of substantive law. Incorrect application of substantive law are: non-application of the law to be applied; application of the law not subject to application; misinterpretation of the law.

The judicial board believes that the court of first instance incorrectly applied the provisions of Art. Art. 139, 178 of the Labor Code of the Russian Federation and Resolution of the Government of the Russian Federation of 12.24.2007 N 922 "On the specifics of the procedure for calculating average wages", on which the court decision is based, and also did not take into account the legal position set out in paragraph 62 of the Resolution of the Plenum of the Supreme Court Of the Russian Federation dated 17.03.2004 N 2 "On the application by the courts of the Russian Federation Labor Code Russian Federation".

By virtue of para. 2 h. 2 tbsp. 327.1. In the Russian Federation, the court of appeal, in the interests of legality, has the right to verify the decision of the court of first instance in full. As follows from the legal position set out in clause 24 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 19, 2012 N 13 "On the application by the courts of the norms of civil procedural legislation governing proceedings in the court of appeal" in accordance with Part 1, Part 2 of Art. ... 327.1. Of the Civil Procedure Code In the Russian Federation, the appellate court verifies the legality and validity of the court ruling of the first instance court only in the contested part on the basis of the arguments set out in the appeal, presentation and objections to them. At the same time, the court of appeal on the basis of par. 2 h. 2 tbsp. 327.1. Of the Civil Procedure Code The Russian Federation has the right, in the interests of legality, to check the contested court decision in full, going beyond the requirements set forth in the appeal, presentation, and without binding itself to the arguments of the complaint, presentation.

Guided by the foregoing, coming to the conclusion that the arguments of the plaintiff's appeal that the court of first instance incorrectly calculated the average earnings for the time of forced absenteeism, unreasonably applying paragraph 10 of the Decree of the Government of the Russian Federation of 24.12.2007 N 922 "On the peculiarities of the procedure calculating the average wage ", which is used to calculate the average daily earnings for the payment of vacations granted in calendar days, and did not apply paragraph 9 of the said Resolution applicable in this case, which provides for the procedure for calculating the average earnings of an employee for other cases (including , for calculating the average earnings when paying for the period of forced absenteeism), guided by the legal position set out in paragraph 62 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation Labor Code Of the Russian Federation "the judicial board believes the decision of the court in terms of the amount of payment for the period of forced absenteeism to change.

As follows from the materials of the case, "..." the plaintiff was hired by the municipal unitary enterprise "..." GO "..." ..., an employment contract was concluded with her. "..." transferred to the position ... By order of the employer from "..." N N, the plaintiff was dismissed due to a reduction in the number (staff) of employees under paragraph 2 of Art. 81 of the Labor Code of the Russian Federation.

The court's decision regarding the recognition of the dismissal as illegal and the reinstatement of the plaintiff at work is not contested by the parties. The plaintiff disputes the court's decision only in the part of the wages collected in her favor for the period of forced absence.

Labor legislation, based on the need to create legal conditions to achieve optimal coordination of the interests of the parties labor relations, the interests of the state, based on the principle of protecting workers from unemployment and assistance in finding a job, as well as the employer's right to terminate employment contracts with employees in the manner and on the terms established Labor Code Of the Russian Federation and other federal laws (Articles 1, 2, 22 of the said Code), provides guarantees and compensation for employees related to the termination of employment contracts on separate grounds. Such guarantees include, inter alia, the payment of severance pay provided for in Art. 178 of the Labor Code of the Russian Federation.

In accordance with Art. 178 of the Labor Code of the Russian Federation upon termination of an employment contract in connection with the liquidation of an organization or a reduction in the number or staff, the dismissed employee is paid severance pay in the amount of the average monthly earnings. He also retains the average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).

According to the legal position set forth in clause 62 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 17.03.2004 N 2 "On the application by the courts of the Russian Federation Labor Code Of the Russian Federation "the average earnings to pay for the time of forced absenteeism is determined in the manner prescribed by Article 139 of the Labor Code of the Russian Federation. Since the said Code established a single procedure for calculating the average wage for all cases of determining its size, the sums of money for the time of forced absenteeism caused by the delay in issuing a work book to a dismissed employee (Article 234 of the Labor Code of the Russian Federation), in case of forced absenteeism due to incorrect wording of the reason for dismissal (part 8 of Article 394 of the Labor Code of the Russian Federation). keep in mind that the specifics of the procedure for calculating the average wage established by Article 139 of the said Code are determined by the Government of the Russian Federation, taking into account the opinion of the Russian Trilateral Commission for the Regulation of Social and Labor Relations. state of the Russian Federation of 24.12.2007 N 922 "On the peculiarities of the procedure for calculating the average wages", according to which:

When determining the average earnings, the average daily earnings are used in the following cases: to pay for vacations and to pay compensation for unused vacations; for other cases provided Labor Code Of the Russian Federation, except for the case of determining the average earnings of employees for whom the summarized accounting of working hours is established. The average earnings of an employee is determined by multiplying the average daily earnings by the number of days (calendar, workers) in the payable period. Average daily earnings, except for the cases of determining the average earnings for paying vacations and paying compensations for unused vacations, is calculated by dividing the amount of wages actually accrued for days worked in the billing period, including bonuses and remuneration accounted for in accordance with clause 15 of this Regulation, by the number of days actually worked during this period (p. 9);

The average daily earnings for the payment of vacations provided in calendar days and the payment of compensation for unused vacations is calculated by dividing the amount of wages actually accrued for the billing period by 12 and by the average monthly number of calendar days (29.3). If one or several months of the billing period have not been fully worked or time has been excluded from it in accordance with clause 5 of this Regulation, the average daily earnings are calculated by dividing the amount of actually accrued wages for the billing period by the amount of the average monthly number of calendar days (29.3 ) multiplied by the number of complete calendar months and the number of calendar days in incomplete calendar months. The number of calendar days in an incomplete calendar month is calculated by dividing the average monthly number of calendar days (29.3) by the number of calendar days of this month and multiplying by the number of calendar days falling on the time worked in this month (clause 10).

The plaintiff and the defendant did not dispute that upon dismissal of the plaintiff and in the future, fulfilling the requirements of Art. 178 of the Labor Code of the Russian Federation Article 178. "Severance pay", the defendant paid the plaintiff severance pay in full, including:

Severance pay in the amount of average monthly earnings (upon dismissal) in the amount of N rubles. N cop.;

The parties also did not dispute that the plaintiff's income for the accounting period (for the period from "..." to "..." year) amounted to N rubles. N cop. The actual time worked for the accounting period is N day. These circumstances are confirmed by the written evidence available in the case materials.

When deciding to satisfy the claims for the recovery of average earnings for the period of forced absenteeism, the court of first instance reasonably proceeded from the fact that the plaintiff had the right to collect payment for the period of forced absenteeism according to the rules of Art. 234 of the Labor Code of the Russian Federation, in connection with the recognition of the dismissal as illegal, at the same time, when making a decision, the court did not deduct the severance pay paid to the plaintiff from the total amount of the penalty. In this connection, the court own initiative, in the order of art. 200 of the Civil Procedure Code of the Russian Federation, after the decision was made, a ruling was issued from "..." to correct an arithmetic error, in which the court deducted from the total amount of the collected average earnings for the period of forced absence from the amount of N rubles. N cop. (severance pay in the amount of average monthly earnings for N month). At the same time, this definition corrected a mistake in the name of the defendant organization. The plaintiff was present at the hearing; the defendant's representative, duly notified of the date and time of the consideration of the case, was not present at the hearing when the ruling was made to correct the arithmetic error. This determination was not contested by the parties and came into force.

"..." the defendant appealed to the court with a request to correct another arithmetic error in the court's decision: the defendant asked to deduct from the total amount of wages for the time of forced absence, collected in favor of the plaintiff, the severance pay actually paid to the plaintiff by the defendant upon dismissal for N months:

Average monthly earnings for the period of employment in the amount of N rubles. N cop (payment order from "...");

Average monthly earnings for the period of employment in the amount of N rubles. N cop. (payment order from "...").

The court issued a ruling from "...", which refused to satisfy this application, inter alia, due to the fact that the court of first instance did not have information about the above amounts.

The defendant filed an ancillary complaint against this determination, in which the defendant argues about the need to refuse to satisfy his application, substantiating his position with the provisions of Art. 178 of the Labor Code of the Russian Federation and the legal position set out in clause 62 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004 "On the application by the courts of the Russian Federation Labor Code Russian Federation".

By virtue of Part 2 of Art. 394 of the Labor Code of the Russian Federation The body considering an individual labor dispute decides to pay the employee the average earnings for the entire period of forced absenteeism or the difference in earnings for the entire period of performance of lower-paid work.

According to paragraph 62 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation Labor Code Of the Russian Federation "when recovering average earnings in favor of an employee reinstated in his previous job, or in the event that his dismissal is recognized as illegal, the severance pay paid to him is subject to offset. is subject to reduction by the amount of wages received from another employer, regardless of whether the employee worked for him on the day of dismissal or not, benefits for temporary disability paid to the plaintiff within the period of paid absence, as well as unemployment benefits that he received during the period forced absenteeism, since these payments are not referred to the number of payments subject to offset when determining the amount of payment for the time of forced absenteeism by the current legislation.

The judicial board notes that in the case file at the time of the court's decision, there was information about the accrual and payment of the severance pay by the defendant to the plaintiff in full: as severance pay in the amount of the average monthly salary upon dismissal in the amount of N rubles. N cop.; and average monthly earnings for the period of employment for N months (ld N). The fact that the amounts indicated by the defendant in the calculation (ld N) did not correspond to those actually paid to the plaintiff and were not confirmed by payment orders, was the basis for the court to establish this circumstance and verify it, since, by virtue of Part 2 of Art. 394 of the Labor Code of the Russian Federation and the legal position set forth in paragraph 62 of the said Resolution of the Plenum of the Supreme Court of the Russian Federation, part 1 of Art. 196 of the Civil Procedure Code of the Russian Federation, this circumstance was subject to mandatory establishment by the court in order to make a legal decision.

In addition, from the calculation given by the court in the decision, it follows that this calculation was made incorrectly, without taking into account the calculation procedure established in paragraph 9 of the Decree of the Government of the Russian Federation of 12.24.2007 N 922 "On the specifics of the procedure for calculating the average wage." The Judicial Collegium finds the procedure for calculating the average earnings, made in the plaintiff's appeal, to be correct, based on the correct application of the above norm. The judicial board notes that the procedure for calculating the average earnings, cited by the defendant during the consideration of the case in the court of first instance (ld N), also corresponds to this procedure for calculating (the parties applied a single mechanism (procedure) for calculating the average earnings, based on the correct application p. 9 of the Decree of the Government of the Russian Federation of 24.12.2007 N 922 "On the specifics of the procedure for calculating the average wages").

Taking into account the above, the calculation of the average earnings for the entire period of forced absenteeism should be made in accordance with the requirements of the law.

From the materials of the case it follows that the plaintiff's income for the period "..." of the year to "..." year amounted to N rubles. N cop. This amount is given in the calculation by the court, not contested by the parties (the calculation of the plaintiff and the calculation of the defendant are also based on the indicated amount).

The time actually worked by the plaintiff in the accounting period is N day (which is not disputed by the parties and is confirmed by the case materials).

The average monthly salary was N rubles. N cop. = N rub. / N.

Severance pay paid to the plaintiff: N rubles. N cop. + N rub. N cop (payment order from "...") + N rubles. N cop. (payment order from "..." = N rubles. N cop.

The number of days of forced absenteeism (including, according to the plaintiff's calculation) - N.

Consequently, in favor of the plaintiff, on account of wages for the time of the forced absence from work, the following should be collected: N

The panel of judges rejects the arguments of the plaintiff's appeal on the need to increase the amount recovered, taking into account paragraph 17 of the Decree of the Government of the Russian Federation of 24.12.2007 N 922 "On the specifics of the procedure for calculating the average wage", since it does not appear from the materials of the civil case that there were necessary legal and factual grounds for the application of this clause to the relations of the parties.

The judicial board also rejects the plaintiff's arguments regarding the absence of legal grounds for reducing the amount of average earnings during the forced absence from the amount actually paid to the plaintiff after dismissal in accordance with Art. 178 of the Labor Code of the Russian Federation, the amount of average monthly earnings for the period of employment in the amount of N rubles. N cop (payment order dated 09/11/2014) and in the amount of N rubles. N cop. (payment order dated 10.21.2014), since the above arguments of the plaintiff are based on an incorrect interpretation of the provisions of Art. 178 of the Labor Code of the Russian Federation, referring to severance benefits all payments specified in part 1 of this article, as well as on an incorrect interpretation of paragraph 62 of the said Resolution of the Plenum of the Supreme Court of the Russian Federation. The panel of judges notes that the only reason for all payments made to the plaintiff on the basis of Part 1 of Art. 178 of the said Code, was the order No. N from "..." on the dismissal of the plaintiff under paragraph 2 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, which, at the request of the plaintiff, was declared illegal by the court. There were no other grounds for making these payments, and therefore Part 2 of Art. 394 of the Labor Code of the Russian Federation, taking into account the legal position set forth in clause 62 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation Labor Code Russian Federation ", according to which, when collecting average earnings in favor of an employee reinstated in his previous job, the severance pay paid to him is subject to offset.

According to Art. 103 of the Civil Procedure Code of the Russian Federation, the costs incurred by the court in connection with the consideration of the case, and the state duty, from which the plaintiff was exempted, are recovered from the defendant, who was not exempted from paying court costs, in proportion to the satisfied part of the claim. In this case, the collected amounts are credited to the budget revenue, at the expense of which they were reimbursed, and the state duty - to the relevant budget in accordance with the deduction rates established by the budget legislation of the Russian Federation. According to Art. Art. 50, 61.1. Budget Code Of the Russian Federation, tax revenues from the state duty on cases considered by courts of general jurisdiction, justices of the peace (with the exception of the Supreme Court of the Russian Federation) are to be credited to the budgets of municipal districts. The size of the state fee is determined in accordance with Art. 333.19. Tax Code Russian Federation.

Since the amount to be collected by the judicial board has been reduced to N rubles. N cop., Then by virtue of the above regulatory provisions, a state duty in the amount of N RUB is subject to collection from the defendant to the local budget. N cop.

Guided by Art. 328 of the Civil Procedure Code of the Russian Federation, judicial board

DEFINED:

the decision of the Verkhnepyshminsky City Court of the Sverdlovsk Region 05.11.2014 regarding the amount recovered from the municipal unitary enterprise (MUP) "..." ("...") in favor of AND.The. to change wages for the period of forced absenteeism.

Reduce the size of wages for the time of forced truancy, subject to recovery in favor of AND.The. from the municipal unitary enterprise (MUP) "..." ("...") to the amount of N rubles N kopecks.

The decision of the Verkhnepyshminsky City Court of the Sverdlovsk Region on 11/05/2014 regarding the amount of the state duty collected from the municipal unitary enterprise (MUP) "..." ("...") to the income of the local budget of the state fee.

Reduce the size of the state duty collected from the municipal unitary enterprise (MUP) "..." ("...") to the income of the local budget to the amount of N rubles N kopecks.

Everyone knows the term "truancy". It is interpreted as skipping classes (work) without a valid reason. Now it is worth giving a definition to the concept of "forced absenteeism" considered in this article. This is a job skipping due to the employer (through his fault). For example, in a situation of unlawful dismissal of an employee. The time period until his reinstatement in his previous position according to a court decision is the time of forced absenteeism.

Payment for this work pass

In the above example, it is worth emphasizing the point that the employee has the right to file a lawsuit. If the result is positive (that is, it will be satisfied by the court), the employer is obliged to reinstate this employee in his previous position. In accordance with our labor legislation, he must also pay for forced absenteeism (for all time) in the amount of the average earnings that the employee could have received during the same period in the performance of previous labor duties.

An important point is the use in the calculation of the official average earnings. That is, in other words, in a situation where an employee receives a salary "in an envelope", in order to determine the amount that is intended for forced absenteeism, only "white" salary with all official bonuses and financial incentives will be taken into account.

In the situation under consideration, not only compensation for the time of forced absenteeism is due, but also compensation for moral damage. That is, the employee has the right to demand compensation for moral damage caused by unlawful dismissal.

Calculation of the time period of the considered absenteeism

The day of dismissal is the last work shift. Forced absenteeism (Labor Code of the Russian Federation) is calculated starting from the next day after receiving the corresponding order regarding dismissal. In the case when an employee leaves without leaving work after a vacation, the day of dismissal is the last vacation day.

It is worth clarifying that forced absenteeism is not always the result of illegal dismissal. For example, if the employer did not issue the work book to the employee upon dismissal (as he should have done by law). For this reason, the employee could not submit this document to the new organization the next day (which must be handed over to the personnel department when hiring). In this regard, the employee suffers losses that have arisen through the fault of former employer, in view of which he is entitled to compensation for forced absenteeism.

This is not the only situation when the employer must compensate the materially missed opportunity of the employee due to his incorrect actions. So, the recovery of compensation for forced absenteeism occurs if the employer incorrectly indicated the reason for the employee's dismissal in the work book, as a result of which the latter was not accepted to a new place of work. This, of course, is possible provided that the employee proves the fact of refusal to accept the new job precisely through the fault of the former employer.

Forced truancy: judicial practice

Cases related to the unlawful dismissal of employees can be said to be quite popular today. This can include the employers' incorrect execution of dismissals for absenteeism, and the illegal dismissal of pregnant women, threats to employees in order to sign their resignation letter of their own free will in order to avoid paying the due legal compensation to these employees. Therefore, forced absenteeism through the fault of the employer is also paid quite often (when the court makes a decision in favor of the unlawfully dismissed employee - the plaintiff).

Unfortunately, not all dismissed workers have knowledge on this issue, and therefore cannot protect their rights to reinstatement in their previous positions and compensation for forced absenteeism.

In this regard, the injured employee should immediately contact an appropriately qualified lawyer.

Forced truancy through the fault of the employee

In fact, absenteeism is the absence of an employee at his workplace without good reason for more than 4 hours in a row. It is worth noting that if in a certain employment contract there is no clarification about the workplace, then it is impossible to count as absenteeism a situation when an employee is not at his usual workplace, but on the territory of the company.

Punishment for missing work - measures disciplinary action: reprimand, dismissal or remark. The employer has the right to choose the appropriate measure provided for by Russian labor legislation and other federal laws. He can also refuse any punishment altogether. The concept of "forced absenteeism that occurred through the fault of the employee" can be interpreted as missing work for a good reason.

Dismissal under the relevant article for absenteeism according to the law must be preceded by a written explanation of the employee. If the employer considers the reasons for absence from the workplace indicated by the employee disrespectful, he can order dismissal. The employee may disagree with this decision, then he should apply to the appropriate court, which will examine the issue of the validity of the specified reasons (whether it is considered absenteeism or not). However, there is a catch - there is no clear list of such valid reasons in our labor legislation. But it is still possible to single out several groups.

Good reasons: subjective, objective

The former are closely related to the personality of the employee himself. These include, firstly, the state of health. At the same time, evidence of a justified absence from one's workplace may be as follows:

doctor's appointment in the card (outpatient);
a certificate from the attending physician that this employee was at the reception;
sick leave.

Secondly, periodic checkups for certain categories of employees. Third, the state of health of the child (the evidence is the same). Fourth, an employee cannot be dismissed for absenteeism if he takes part in the court session as a plaintiff, witness, juror. Confirmation - subpoena. This can also include a call to the police, the activities of a member of the commission (electoral). Fifthly, the elimination of any communal accident in your home (except for scheduled inspections of housing and communal services).

Objective reasons why an employee cannot appear at work are circumstances caused by various kinds of force majeure. It:

weather;
man-made accidents, disasters;
emergency traffic situations;
military actions.

If the employer does not agree with these reasons, and the matter comes to dismissal, then when the employee goes to court, according to statistics, the decision will be made in his favor (reinstatement at the previous place of work). The main thing is not to delay with this, since the application for reinstatement at the previous job is submitted to the court within a month.

Reasons for the application, equated to valid

There are circumstances, the occurrence of which does not allow the employee to come to his workplace... The employer must be warned about them in advance, which is why the employee is obliged to write a statement requesting the provision of days off. According to our labor law, in response to it, the employer is obliged to provide several unpaid days (breaks):

up to 5 - in situations such as the death of a loved one, a wedding, the birth of a child;
up to 4 - for an employee - a parent of a disabled child;
1 per month - to an employee engaged in labor activities in rural areas;
breaks - for working employees with children under 1.5 years old who are breastfed (artificial).

Collection of wages for the considered type of work pass

As the saying goes Labor Code, forced absenteeism is a certain period of time during which the employee could not carry out his labor activity through the fault of the employer solely. Its reasons are also indicated there:

The consequence of the above reasons is the recovery for forced absenteeism in monetary form in the form of average earnings for the entire period in court. To do this, it is necessary to apply to the appropriate court within three months from the date of receipt of information regarding the violation of the right. In disputable situations regarding dismissal, the period for filing an application is reduced to a month (starting from the moment of delivery of the corresponding order and the issuance of a labor document).

Labor Code: List of Individual Disputes Based on Employee Claims

To be precise, this is the subject of Article 391. Such disputes are considered in courts of general jurisdiction. Our codified labor law provides the following list of disputes arising from claims of various employees regarding:

Their reinstatement at their previous job, regardless of the grounds for terminating the existing employment contract.
Changes to the date (wording) of a specific reason for dismissal.
Transfer to another kind of work.
Payment for the period of time that the forced absenteeism took (the definition of this concept was presented earlier).
Payment of the difference in wages for the time spent on performing lower paid work.
Inappropriate actions (inaction) of the employer in the process of processing, protection of personal data of employees.
Other individual labor disputes.

Calculation of the average amount of earnings from the point of view of the legal aspect

As mentioned earlier, the employee is entitled to compensation for forced absenteeism. The average amount of earnings required to determine the payment for the period of time spent on a given work pass is established on the basis of the Russian codified legislative act on labor and the existing Regulation on the specifics of the calculation procedure for this indicator, which is approved by our Government.

Its calculation - regardless of the working regime - is carried out on the basis of the employee's actual salary and the actual time worked by him for the year preceding the moment of payment. The relevant collective agreement may indicate other periods that serve as the basis for calculating the average salary (of course, provided that this does not worsen the already existing situation of employees).

The amount of payment, the period must be displayed in a court decision, a writ of execution. This amount can be reduced by the appropriate amount of the due severance pay that was paid to the employee upon dismissal.

It is worth noting that payments for forced absenteeism (Labor Code of the Russian Federation) are made at the same time as the issuance of an order regarding the cancellation of dismissal. The Supreme Court pointed out that the essence of reinstatement in the previous job is the abolition of the legal consequences of the dismissal procedure by precisely refusing the corresponding order, and not issuing another (on reinstatement) after the court rendered this decision.

Thus, the employer's obligation to pay wages for all forced absenteeism occurs during the cancellation of the order of dismissal and the reinstatement of the employee in the previously held position. This payment is an integral part of the recovery process at the previous place of work.

It is also worth noting that the employer does not have the right to independently reduce the amount that was assigned by the court. And the salary received by an unlawfully dismissed employee in another company (the Employment Center in the form of temporary disability benefits) does not reduce the amount of payment for forced absenteeism, as a result of which the employer also does not have the right to reduce the salary for this absence from work by the above amount.

Labor Code: moral harm caused to an employee by illegal actions (inaction) of the employer

This codified legislative act on labor, along with the above-mentioned responsibility of the employer regarding compensation for material damage caused, also establishes his liability related to compensation for moral damage to the employee.

According to Article 237, it is compensated in material form in such amounts, which are determined by agreement of the parties to the concluded employment contract. If a dispute arises regarding this issue, then the case goes to court, regardless of the property damage prescribed for compensation.

The essence of moral harm is represented by the suffering that the employee experiences as a result of the violation of his certain rights. To ensure the correct uniform application of the existing legislation, which regulates the issues of compensation for moral damage, as well as the most complete operational protection of the interests of those who became victims in the process of considering cases of this category by the courts, the Presidium of the Supreme Court of the Russian Federation gave a number of clarifications in the relevant Resolution.

Over the past few years, judicial practice has shown a steady trend aimed at an increase in the number of claims for compensation for moral damage that employees make in the process of labor disputes. However, in our country to this day there are some obstacles on the way to the formation of a unified judicial practice of the category of cases under consideration.

The very concept of “moral harm” is absent in Russian labor legislation. But taking into account the fact that his compensation in the field of labor relations is part of the general competence of compensation for moral damage caused, one should be guided by Article 151 of the Civil Code of the Russian Federation, in accordance with which this concept is the physical (moral) suffering of a certain citizen, which was the result of actions, violating his personal rights (non-property) and encroaching on other non-material benefits belonging to him.

Then, in relation to the labor relations under consideration, moral harm is the physical (moral) suffering of the employee, which is associated with the illegal actions (inaction) of the employer. This must be supported by certain evidence provided by the employee. This could be:

disease;
impossibility of employment;
delay in the payment of wages, resulting in a difficult financial situation for the employee;
moral suffering due to the loss of a job and the inability to find a replacement for it;
obtaining unemployed status due to a delay in issuing a work book, etc.

In accordance with general rules, the obligation to compensate for moral damage is assigned to the employer, provided that it is his fault. There are exceptions that are stipulated by law (within the framework of our Civil Code) and are presented in the form of a number of cases when the payment of appropriate compensation is made regardless of the degree of guilt of the injurious entity, which often includes damage to the life, health of a citizen through

In our codified labor law, only a couple of cases are clearly spelled out in which an employee has the right to claim compensation for moral damage caused, namely:

Within the framework of discrimination in the labor sphere.
Upon dismissal without a legal basis (in violation of a certain order of the dismissal process, illegal transfer to another job).

The corresponding ruling of the Russian Supreme Court satisfied such claims as recognition of the illegality of the order of dismissal (reinstatement to the previous job), collection of wages for forced absenteeism, payment of compensation for moral damage. This is permissible in view of the fact that the termination of a previously concluded employment contract cannot act as a measure of specific legal responsibility and cannot be allowed without paying appropriate compensation in the amount established labor contract, and in disputable situations - by a court decision.

But the Supreme Court, in the relevant Resolution, clarified the following point: in view of the fact that our codified legislative act on labor does not contain restrictions on the issue of compensation for moral damage caused and in other cases of violation of the rights of employees in the labor sphere, the court has the right to satisfy a number of their claims regarding compensation for damage caused by any kind of illegal actions (inaction) of the employer, including violation of their property rights (for example, delay in the payment of wages).

Thus, to summarize all of the above, we will get the following: forced absenteeism is the absence of work by employees due to the fault of their employers, for which, according to an appropriate court decision, they can receive compensation for missed opportunities and for moral damage.

According to the current procedural legislation, the reverse recovery of amounts paid to an employee by a court decision is allowed when such a decision is canceled in a cassation or supervisory procedure, if the canceled decision was based on the employee reporting false information or submitting false documents to him.

Is such a reverse recovery possible if the court's decision on reinstatement at work and payment for the forced absence from work was canceled by the court of appeal?

RESOLUTION: Reverse recovery of funds paid to an employee is possible upon cancellation of both entered into legal force and not entered into legal force, but enforced court decisions. This means that recovery is also possible when the court decision is canceled on appeal, but only on the condition that this decision was based on false information provided by the employee or false documents presented by him. According to Art. 443 of the Civil Procedure Code of the Russian Federation, in the event of the cancellation of an enforced court decision and the adoption, after a new consideration of the case, a decision to dismiss the claim in whole or in part, or a determination to terminate the proceedings on the case or to leave the application without consideration, the defendant must be returned all that what was recovered from him in favor of the plaintiff by the canceled decision.

Reversal of the execution of a judgment

Such a reverse recovery of funds paid on the basis of a canceled court decision is called a reversal of the execution of the court decision.

The current procedural legislation is based on the fact that the reversal of the execution of a court decision is allowed when the decisions that have entered into legal force are canceled. Currently, court decisions that have entered into legal force are being reviewed in cassation and supervisory procedures.

At the same time, the courts themselves have repeatedly stated that a reversal of the execution of a court decision is also allowed in cases of cancellation of the decision on appeal, provided that it was brought by the court of first instance to immediate execution (see Review of the appeal practice of the Supreme Court of the Komi Republic on civil cases for May 2013, the appeal ruling of the Moscow City Court dated 04.09.2013 No. 11-23096).

In accordance with paragraph 1 of Art. 106 of the Federal Law of 02.10.2007 No. 229-FZ "On Enforcement Proceedings", the requirement to reinstate an unlawfully dismissed employee at work is considered to be actually fulfilled if the dismissal order is canceled and the employee is admitted to the previous labor duties.

Moreover, by virtue of Art. 234 of the Labor Code of the Russian Federation, in the event of illegal dismissal of an employee, the employer is obliged to compensate him for the unreceived earnings for the entire time of the forced absence. The decision to pay such earnings is made by the court in accordance with Part 2 of Art. 394 of the Labor Code of the Russian Federation.

As an integral part of the process of reinstatement at work, payment for forced absence is made simultaneously with the cancellation of the order of dismissal, that is, immediately after reinstatement at work (see the appeal ruling of the Irkutsk Regional Court dated 06.05.2013 No. 33-3538 / 13, the appeal ruling of the Moscow City court from 28.09.2012 No. 11-18545).

Thus, it can be argued that, as in the case of the cancellation of a court decision on reinstatement at work in cassation and supervisory procedure, in case of cancellation of a similar court decision on appeal, everything that he received on the basis of the canceled decision can be recovered from the employee. not entered into legal force, but executed by the employer, as provided for in Art. 396 of the Labor Code of the Russian Federation and 211 of the Code of Civil Procedure of the Russian Federation.

Attention!

It is necessary to pay for forced absenteeism simultaneously with the cancellation of the order to dismiss the employee

Restrictions on the recovery of payment for forced absenteeism

The main question that arises in this case: if the court's decision on the payment of money to the employee was canceled on appeal, should the restrictions on the recovery of such funds, provided for in Part 3 of Art. 445 Code of Civil Procedure of the Russian Federation and Art. 397 of the Labor Code of the Russian Federation?

So, in accordance with Part 3 of Art. 445 of the Code of Civil Procedure of the Russian Federation, a reversal of the execution of a court decision when canceling a decision on cases of collecting monetary amounts on claims arising from labor relations in a cassation or supervisory procedure is allowed if the canceled court decision was based on false information provided by the plaintiff or false documents submitted by the plaintiff. In turn, in Art. 397 of the Labor Code of the Russian Federation also states that the reverse recovery from the employee of the amounts paid to him in accordance with the decision of the body for considering the individual labor dispute, when canceling the decision by way of supervision, is allowed only in cases where the canceled decision was based on false information reported by the employee or submitted forged documents.

The Constitutional Court of the Russian Federation recognized the establishment of such restrictions on the rotation of the execution of a court decision in cases arising from labor relations, justified.

Our reference

According to Art. 211 of the Code of Civil Procedure of the Russian Federation, a court order or a court decision is subject to immediate execution:

on the recovery of alimony;
payment of wages to the employee within three months;
recovery at work;
inclusion of a citizen of the Russian Federation in the list of voters, referendum participants.

A court decision on the reinstatement of an unlawfully dismissed employee is subject to immediate execution and in accordance with Art. 396 of the Labor Code of the Russian Federation.

In such cases, an indication of its immediate execution must be made in the court's decision itself. But since court decisions are subject to immediate execution by virtue of a peremptory prescription of the law, such an instruction to apply them to immediate execution does not depend on the position of the plaintiff and the discretion of the court (clause 11 of the resolution of the Plenum of the Supreme Court of the Russian Federation of December 19, 2003 No. 23 "On a court decision") ... Moreover, even if the operative part of the decision does not contain an indication of an appeal to immediate execution, it is still subject to immediate execution.

So, providing guarantees for the protection of the labor rights of workers when considering individual labor disputes, which, in particular, include the free appeal to the bodies considering labor disputes, the exemption of the employee from court costs, the imposition of individual cases burden of proof on the employer, appeal of certain types of court decisions on labor disputes to immediate execution (on reinstatement at work, on the payment of wages within three months), the legislator took into account not only the economic (material), but also the organizational dependence of the employee on the employer.

At the same time, limiting the recovery from the employee of the amounts paid to him on the basis of a court decision that entered into legal force, as indicated by the Constitutional Court of the Russian Federation, is one of such guarantees and is aimed at balancing the rights and interests of the employer and the employee, who, as a rule, does not have sources of income other than wages and payments that compensate for their loss, including in case of forced absenteeism in the event of dismissal, recognized by the court as illegal.

By itself, the consolidation of procedural guarantees of labor rights of workers who are conscientiously participating in the proceedings of an individual labor dispute is aimed at ensuring the implementation of their constitutional rights (as more weak side in labor relations) to judicial protection and is consistent with the provisions of the law, which provide, as one of the purposes of labor legislation, the establishment of state guarantees of the labor rights of workers. Therefore, the existing restrictions on the reverse collection of funds paid to an employee on the basis of a court decision cannot be regarded as violating the employer's rights (see the definition of the Constitutional Court of the Russian Federation dated 16.12.2010 No. 1650-О-О).

By the way, the turn of the execution of a court decision in cases on the recovery of alimony in accordance with Art. 445 Code of Civil Procedure of the Russian Federation is also allowed only on condition that the court's decision, canceled in cassation or supervisory procedure, was based on false information reported by the plaintiff or forged documents submitted by him. At the same time, in Art. 445 of the Code of Civil Procedure of the Russian Federation, a separate paragraph stipulates that in the event of a cancellation of a court decision in a case on the recovery of alimony on appeal, the reverse recovery of such alimony is possible if the revoked decision was based on false information reported by the plaintiff or false documents presented by him.

As it is easy to see, such a clarification with regard to the turn of the execution of a court decision in cases arising from labor relations, in Art. 445 Code of Civil Procedure of the Russian Federation is not contained. Nor is it in Art. 397 of the Labor Code of the Russian Federation, which establishes limits for the recovery of amounts paid by the decision of the bodies considering individual labor disputes.

By the way, in accordance with Part 9 of Art. 394 of the Labor Code of the Russian Federation, when an employee is reinstated, in addition to the average earnings during the forced absence from work, the employer may also oblige the employer to pay monetary compensation moral harm caused to the employee by illegal dismissal in the amount determined by the court.

Since in Art. 443 of the Code of Civil Procedure of the Russian Federation says that in the event of the cancellation of the court's decision, enforced, the defendant is returned everything that was recovered from him in favor of the plaintiff by the canceled court decision, we believe this also applies to compensation for moral damage.

That is, if the execution of the court decision on the reinstatement of the employee is reversed, the employer can actually return both the amount of average earnings during the forced absence and the amount of compensation for moral damage paid on the basis of the canceled court decision.

Therefore, if you literally interpret the provisions of the law, it turns out that such restrictions on the rotation of the execution of a court decision in cases arising from labor relations are established only in case of cancellation of decisions that have entered into legal force in a cassation or supervisory procedure and do not apply to cases where the court decision was canceled on appeal. Simply put, when a court decision is canceled by way of cassation or supervisory procedure, the reverse recovery of funds is allowed only provided that the canceled decision was based on false information provided by the employee or false documents submitted by him. And in case of cancellation of a court decision on appeal - in any case, regardless of the basis for cancellation.

I must say that this point of view is found even in judicial practice.

Example

The Ministry of Internal Affairs for the Kabardino-Balkarian Republic (hereinafter referred to as the Ministry of Internal Affairs) asked the court to reverse the execution of the court decision and to recover from the employees the money paid to them on account of their wages during the forced absence from work. The decision of the Nalchik City Court denied the application.

Disagreeing with the ruling, considering it illegal and unreasonable, the Ministry of Internal Affairs filed a private complaint, in which it asked for a new decision to reverse the execution of the court decision.

The court found that the decision of the Nalchik City Court regarding the reinstatement of employees and the collection of wages during the forced absence was subject to immediate execution.

In accordance with this decision, the Ministry of Internal Affairs issued an order to cancel the dismissal orders and paid wages for the period of forced absence from work on the basis of a writ of execution. The fact, stated in the statement of the Ministry of Internal Affairs, that the period of forced absenteeism was paid for by the employees, was not disputed by the parties and was confirmed by the materials of the case.

Refusing the Ministry of Internal Affairs to satisfy the application for the reversal of the execution of the judgment, the court of first instance indicated that the provisions of Art. 445 Code of Civil Procedure of the Russian Federation and Art. 397 of the Labor Code of the Russian Federation apply to cases of cancellation of the decision and on appeal, and the reversal of the execution of the decision in the absence of bad faith on the part of dismissed employees or a counting error is unacceptable.

However, the Judicial Collegium for Civil Cases of the Supreme Court of the Kabardino-Balkarian Republic did not agree with this conclusion, considering that it was based on the incorrect application of the norms of substantive and procedural law.

As a result, the decision of the Nalchik City Court, by which the employees were reinstated in the service, was canceled when the case was considered in the appeal, and not in the cassation or supervisory procedure, that is, it did not come into legal force, in connection with which the provisions of para. 2 h. 3 tbsp. 445 Code of Civil Procedure of the Russian Federation and Art. 397 of the Labor Code of the Russian Federation were not subject to application.

In such circumstances, the court's ruling on the impossibility of turning the execution of the court decision cannot be recognized as lawful and justified - it must be canceled (see the ruling of the Supreme Court of the Kabardino-Balkarian Republic of 09.10.2013 No. 33-4072 / 2013).

The Smolensk Regional Court came to a similar conclusion in its ruling dated 23.04.2013 No. 33-1992 / 2013. However, the majority of courts still adhere to the point of view that the turn of the execution of a court decision when the decision is canceled on appeal, although this is not directly stated in Art. 445 Code of Civil Procedure of the Russian Federation and Art. 397 of the Labor Code of the Russian Federation, is also allowed only if the court decision on the reinstatement of the employee is canceled in connection with the provision of false information or the submission of false documents.

Example

So, the Moscow City Court in the appeal ruling dated 09/04/2013 No. 11-23096, canceling the ruling of the Ostankino District Court of the city of Moscow on the reversal of the execution of the judgment, directly indicated that the provisions of Art. 445 Code of Civil Procedure of the Russian Federation and Art. 397 of the Labor Code of the Russian Federation, limiting the possibility of recovering funds from an employee, should also be applied in cases of cancellation of a court decision on appeal.

This position is reflected in the rulings of the Khabarovsk Regional Court dated 02.14.2014 No. 33-1251 / 2014, the Kursk Regional Court dated 04.02.2014 No. 33-298 / 2014, the Supreme Court of the Republic of Buryatia dated 09.12.2013 No. 33-4039 / 2013 and others. The courts insist that the provisions of Art. 445 Code of Civil Procedure of the Russian Federation and Art. 397 of the Labor Code of the Russian Federation should be applied in conjunction with the provisions of clause 3 of Art. 1109 of the Civil Code of the Russian Federation, according to which payments and equivalent payments, pensions, allowances, scholarships, compensation for harm caused to life or health, alimony and other monetary amounts provided to a citizen as a means of subsistence are not subject to return as unjust enrichment, if absence of bad faith on his part or counting error.