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Review of court practice on disputes related to the employment termination at the initiative of the employer


 
In its recent review of judicial practice on employment cases by Russian courts2, the Supreme Court of the Russian Federation (the Supreme Court) defined legal strategies that should be guided when considering disputes related to the termination of an employment contract at the employer’s initiative. Below we consider the main conclusions of the Supreme Court.
 
1. An employee may file a labor lawsuit at the place of performance of labor duties
 
According to Аrt. 28 of the Civil Procedure Code at the employee’s choice labor lawsuits may be filed either at the place of residence of the Employee, or at the place of company’s location. Factually the employee has the right to choose the following jurisdiction:
 
at the place of employee’s registration;
at the place of actual residence (e.g. according to a lease agreement);
at the employer’s place of business. 
 
Case law shows and Supreme Court affirms that a labor lawsuit may also be filed with the court at the place where employee carries out his work. According to the review such jurisdiction can be chosen if the workplace is spelled out in the employment contract. This opportunity both provides additional guarantees for the employee and creates the employee’s possibility to abuse their rights. For example, if there are several claims against the employer, the employee can file them with three different courts. Such situation may entail additional costs on the side of the employer due to the need to ensure the attendance of representatives in the courts in different regions. 
 
2. Repeated failure by the employee to perform his employment duties without good cause if he has a disciplinary action (dismissal under clause 5 of part 1 of Art. 81 of the Labor Code)
 
2.1. It is forbidden to demand explanations from the employee during the period of his temporary disability
 
When requesting written explanations, the employer must give the employee an objective opportunity to provide them. The Supreme Court notes that in case of temporary disability, an employee cannot exercise his right to provide explanations regarding the disciplinary offense in question. Requesting explanations from an employee during the period of his temporary disability and the subsequent dismissal on the day commencement after the end of the temporary disability period can be qualified as intentional actions to dismiss an employee from his position. Such employer’s actions can be considered an abuse of the right, which is the basis for the court to recognize such dismissal as illegal.
 
2.2. The order of dismissal must include the specific disciplinary offense
 
Considering the conclusions of the Supreme Court, the order must include the following:
 
An offense that served as a basis for dismissal;
Circumstances of the offense;
Assessment of the employee’s previous behavior and attitude to work;
All previous disciplinary measures applied to the employee, which confirm the fact of repeated failure to perform duties and are not repaid (not removed) at the time of dismissal.
 
The order must also include all documents that justify the employer’s choice of a penalty measure against the employee (including details of orders on previous cases of imposing disciplinary liability, provisions of internal policies, etc.).
 
2.3. It is required to consider the severity of the alleged disciplinary offense, and the circumstances of misconduct. Also the employee's preceding behavior and his attitude to work should be taken into account
 
When deciding on the application of a disciplinary penalty, as well as when determining its type, the employer must consider, inter alia, the presence of a long work experience, during which the employee has established himself as a responsible employee without being brought to disciplinary responsibility, as well as commendations and honorary titles. Besides, do not forget that the employer must also consider the provisions of local regulations when assessing the illegality of the employee's actions.
 
3. Absenteeism (dismissal under subparagraph “a” of clause 6 of part 1 of Art. 81 of the Labor Code)
 
3.1. Establishing the circumstances and reasons for the employee’s absence from the workplace is mandatory
 
Dismissal for absenteeism is allowed if the reasons for absence from the workplace are disrespectful.  Accordingly, the assessment of the conditions and circumstances of the employee's absence is one of the key points when deciding on dismissal for absenteeism. Moreover, when assessing the circumstances and reasons for absence, the employer must evaluate them objectively, and not on a formal basis. The lack of approval from the employee’s direct manager itself is not a ground for recognizing the reasons as disrespectful. As an example, the Supreme Court cites a case where an employee was illegally dismissed for absenteeism due to the need to accompany a minor nephew to the hospital. The employee notified his supervisor of the reasons for the absence but did not receive approval.
 
Besides, when dismissing for absenteeism, it is also necessary to consider the previous behavior of the employee and his attitude to work.
 
3.2. The employee cannot be dismissed for absence in the office if there is agreement on performing work remotely
 
The absence of a corresponding addendum to the employment contract on the performance of work remotely signed by both parties is not a reason for the dismissal of an employee for absenteeism if there is actual approval by the employer of such a work procedure. A non-written agreement between the parties on changing the terms of the employment contract, including the performance of the employee’s work function remotely, is considered concluded if the employee started working under such changed conditions with the knowledge or on behalf of the employer or its authorized representative.
 
3.3. Unpaid leave that is agreed with employee but not based on employee’s order cannot be considered as a ground for dismissal 
 
The Supreme Court noted the following:
 
Failure to provide unpaid leave to an employee if there are valid reasons for such leave cannot serve as a basis for dismissal for absenteeism;
According to the established practice in the organization, employees used vacation days without waiting for the issuance of an official order. It was sufficient to obtain the consent of CEO.
The absence of an employee’s order to grant unpaid leave in case of actual approval of such leave by the employer is an abuse of the right.  In such a situation dismissal of the employee for absence without official leave is illegal
 
3.4. The absence of an employee at the workplace during a work shift is not considered absenteeism if the employee acted in accordance with the procedure established in the local regulatory act
 
A local regulatory act may provide that an employee must notify his or her direct supervisor of absence from the workplace for a valid reason. If the employee has fulfilled the requirements of such an act and the leave was confirmed by the direct supervisor, the absence of the employee cannot be a ground for dismissal.
 
4. Redundancy (dismissal under clause 2 of part 1 of Art. 81 of the Labor Code)
 
4.1. The employer’s obligation to offer all available vacant positions does not imply the employer’s right to choose the specific reduced employees to offer these vacant positions
 
All redundant employees must be offered all available vacant positions corresponding to the qualifications of these employees, vacant lower-level positions, or lower-paid work. If several employees apply for one vacant position, the question of which of the employees to transfer to this position should be decided considering the provisions of Art. 179 of the Labor Code (on the preferential right to remain at work during the redundancy).
 
If the redundant employees have no preferential right a vacancy can be offered to all redundant employees simultaneously. 
 
4.2. When reducing an employee whose place of work is a branch or other subdivision, the employer is obliged to offer him all vacant positions available both in the employer’s company itself and in all its other branches and subdivisions located in this area
 
The presence in a branch or other subdivision of an independent staffing table, separate property, as well as the implementation of the branch’s personnel management by its head, does not exempt the employer (company) when carrying out redundancy measures in its branch or other subdivision from fulfilling the obligation to offer the employee all vacant positions in other branches and subdivisions of the company located in the same area. The Employer still has no obligation to offer vacancies in another area.
 
5. Upon termination of the company’s branch, or representative office, or separate subdivision the termination of an employment contract is carried out according to the rules for liquidation
 
The Supreme Court emphasized that in the event of relocation of separate subdivision (branch or the representative office), the parent company’s address does not actually change. The employees who work in separate subdivisions cannot be dismissed on the grounds of refusal to transfer to work in another locality together with the employer (clause 9 of part 1 of Art. 77 of the Russian Labor Code) as far as the Employer (the parent company) does not actually change the place of registration. 
 
6. Failure of the employer to comply with the three-day notice period for informing the employee of the unsatisfactory result of the probation period cannot per se indicate the illegality of the dismissal
 
If the employer has established the fact of improper performance of labor duties closely before the end of the probationary period but has notified the employee less than three days in advance, the actions of the employer may be considered lawful. In such a case, the court should determine whether the rights of the employee were violated by late notification.
 
7. An appeal to the State Labor Inspectorate and the public prosecutor's office is considered a valid reason for omission of the time limit for applying to the court for the resolution of an individual labor dispute
 
Before filing a lawsuit, the employee has the right to address the issue of illegality of dismissal to the State Labor Inspectorate and the public prosecutor's office. Such extrajudicial procedure is a valid reason for the failure to comply with the deadline for applying to the court. The deadline for applying in such cases is subject to restoration.
 
_____
1Review of practical experience of cases associated with disputes related to the employment termination at the employer’s initiative by courts (approved by the Presidium of the Supreme Court of the Russian Federation on 09.12.2020)
 


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