Pre-trial procedure of settling labor disputes

Jan, 19 2021

Contents:

Labor dispute is a disagreement between participants of employment relationship. As a rule, we are talking about conflicts between an employer and an employee, or between an employer and a group of employees. For the law to define a dispute as a labor dispute, it must necessarily affect work issues: personal differences between people do not belong to the category of labor, even if it is a personal conflict between colleagues.

Claims may arise from a subordinate to the management and vice versa. This may be a situation where a person was illegally fired, was not allowed to go on vacation, take a day off, or was not paid a salary. However, to the same extent, this may be the employer’s claims to the quality of work duties’ performance or an attempt to get compensation for the damage caused by employee.

Labor dispute can arise even before a person is enrolled. For example, refusal of employment can cause proceedings if a person is sure that his rights have been violated. But more often conflicts after employee’s dismissal are to be resolved. These are disputes over the wording of the reason for dismissal, severance payment, and so on.

Interested party to the conflict can resolve the issue in judicial or pre-trial procedure. The law provides for both methods. However, in most cases, it is much cheaper, faster and easier to come to an agreement and defend your interests without filing a lawsuit.

How does the type of dispute affect its resolution

Pre-trial procedure of settling labor disputes depends on the type of conflict: individual or collective. Individual labor disputes, that is, disputes between an employer and one employee, can be resolved by labor dispute commission. Collective proceedings are handled by mediators, conciliation commission and labor arbitration.

However, the dispute can also be resolved through negotiations with the employer. It is better to entrust this process to a lawyer or a trade union representative. If negotiations reach a deadlock, it is always possible to contact the commission. Its decision is binding, but it can be challenged. If this did not lead to a resolution of the problem, then it makes sense to file a lawsuit.

How does the Labor Dispute Commission work

Pre-trial settlement of labor disputes with the employer is most often handled by the commission: a special body that is formed on the initiative of the employee or employer. The commission is composed of an equal number of representatives from each of the parties to ensure its objectivity.

Employee can resort to the help of commission within three months from the day when he learned or should have learned about the violation of his rights, infringement of interests. However, if this deadline was missed for good reasons, the commission can restore it and start considering the case later.

The Labor Dispute Commission considers a wide range of issues. It can assume the role of an arbitrator in resolving conflicts related to the terms of the contract, failure to provide an employee with leave or days off, disciplinary penalties. It is also responsible for issues related to wages and provision of employee benefits guaranteed by law or contract. However, there are a number of conflicts that cannot be addressed to the commission.

In the competence of judicial authorities are disputes affecting the dismissal or reinstatement of a person to the position, changes in the wording and dates in employment records, compensation for damages and discrimination. Accordingly, if a person is not hired or dismissed because of discrimination, the case should be considered by the court, not the commission.

Procedure of settling individual labor dispute

To start the proceedings in a pre-trial order, it is possible to contact the second party directly. However, it is not necessary, you can immediately submit an application to the commission. It must register the application, otherwise the dispute will not be considered open. After that, the members of the commission will consider the problem. They have 10 working days to do this, and during the consideration of the case, commission has the right to call witnesses, demand certain documents and even invite specialists for consultation.

The decision will be made by secret ballot. The secretary of the commission will then prepare a written decision. The following issues are to be specified in this document:

  • Name of the organization and division.
  • Passport details and position of the person who applied for the commission’s assistance.
  • The date of the beginning of dispute, the date of consideration of the issue, the cause of the conflict.
  • Passport data of all participants of the commission, as well as other people who participated in the meeting.
  • The decision and its mandatory justification with references to legislation and internal regulatory documents.
  • The results of the vote.

After the commission makes a decision, the interested person can appeal it in court: there are only 10 days for this. After the specified period, the commission’s decision will have to be executed, unless the court has accepted the appeal. In fact, the decision is an executive document. On its basis, the bailiff enforces the decision in a compulsory manner. Of course, unless the defendant voluntarily fulfilled the conditions.

The advantages of pre-judicial order of labor dispute settlement

One of the main advantages of settling a labor dispute in a pre-trial procedure is the minimum period of consideration of the dispute. The court may consider the case for months, and in some cases, the proceedings stretch for years, while the commission will consider the case in 10 days.

In addition, it is elementary cheaper to resolve the conflict before going to court. Even if you involve a lawyer, his services in this case will not cost as much as representation in court.

How collective disputes are resolved

Pre-trial procedure of individual labor dispute settlement differs from the way the law proposes to settle collective disputes. A distinctive feature of collective dispute is the number of participants: several employees or employers participate in it at once. Solving the problem without going to court implies the creation of a conciliation commission or labor arbitration.

The commission, again, should include representatives of both sides to ensure objectivity. The conciliation commission is formed within three working days from the date of submission of the request by one of the parties. The authority then has 5 working days to review the issue and come to a conclusion. At the same time, the employer is obliged to facilitate the work of the commission in every possible way, to submit the necessary documents. Obstruction of its work may in itself serve as a reason for legal action.

Thus, Russian labor legislation provides for the possibility of resolving a dispute between an employee and an employer without going to court. This strategy undoubtedly has a number of advantages. If the dispute cannot be resolved and the parties cannot come to an agreement, it is always possible to work up a cause of action and file it in court. The court, in its turn, will consider the case in the ordinary course of proceedings.

Is pre-trial settlement of a labor dispute mandatory? In most cases, no. The interested party decides for itself what it should do: try to settle the issue through the commission or immediately draw up a claim.

Author of the article
Pre-trial procedure of settling labor disputes
Valentina Khlavich
Managing Partner
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