Labor lawyer

Usefull

date 15 Sep 2019

Simple logic says that the fewer contact points between the employee and the employer, and with four days they will be reduced by at least on one day, the fewer reasons for labor disputes to remain.

Whether they will institute a four-day working week or not, we will leave it behind the scenes, and we turn our fiery eyes to such a category of lawyers and attorneys as labor.

By the way, at what point does a labor issue become a labor dispute? Or does it become right away?

 

Our interest will be not the plane of everyday work-employer relations, but the judicial plane of labor relations. Today in the legal field there are so many entities intended to protect the rights of workers that, it would seem, labor lawyers are not needed from the word at all. However, either these entities are not very interested in protecting labor rights, or for some other reason, but practice shows that they still turn to the last ones, at least for advice. However, in many enterprises there are labor lawyers, but you can say it, not labor but just lawyers, who also deal with employment issues as necessary. Somewhere there are entire labor departments. It is they who cover most of the labor, so to speak, issues, such as: they offer candidates to sign a letter of resignation without indicating the date of drawing up, retroactively sign service instructions, or implement on an already signed sheet with those duties that were not originally; draw up acts about what was not, draw up tasks for the employee that are obviously impossible, instruct the witnesses before the trial, and much more interesting and necessary is the responsibility of labor lawyers.

This, of course, is a joke, and the labor lawyer at the enterprise is really under the permanent pressure of demanding workers, because a lot of questions come precisely in connection with the behavior of an employee. And the workers come across inadequate and, in addition, literate not only in terms of the Russian language, but also legally savvy.

Toxic employees - that's what they seem to be called. However, it should be noted that in a company where all labor issues are clearly (sometimes tightly) regulated, toxic guys either turn into goodies, or do not last long, since each newcomer is covered with instructions, rules, regulations, obligations and other papers so that immediately make it clear: you cant walk around with us. Indeed: well-adjusted personnel policies and documentation in the company provide many advantages over employees.

Just a little bit wrong: Bag and baggage! - but in court all those trying to re-establish are completely cooled down, refusing everything that is possible. But it happens if all labor issues in the company are closed. Another layer of situations is when nothing is closed, there are not even job descriptions. An employment contract is the only thing that an employee has in his hands. And here, any, even non-toxic, employee will be tempted to have something on top of a salary from a simple employer. Often, when they invite a lawyer, he just shrugs his arms: they say, what can you do if the employee was not provided with elementary labor duties?

In the courts, everything ends sadly, not in favor of the employer. And often one omission pulls another along the chain. The employee is reinstated, he is working again, but, of course, does not sign anything (because he should not), he is dismissed again and the court reinstates him again. Extraordinary efforts are required to prevent re-recovery, and the unwritten rule that the courts supposedly do not reinstate the same employee twice in the same job does not always work.

However, let us leave this aspect of the problematic and move on to another. Everyone today knows the Labor Code of the Russian Federation. There is simply a myriad of clarifications on the Net, there is judicial practice, but ... but still, in reality, labor disputes have such a feature that every time it comes out differently. Even almost identical situations result in opposite results. Well, you ask, it turns out that this is just some kind of unpredictable thing - labor legislation?

Labor legislation is in fact a polar thing: at the first reading everything is clear, but with a second, or more thoughtful, all its postulates begin to blur. So, the point is not in the Labor Code of the Russian Federation itself, but in the specific cases and circumstances that accompany these cases. We can take as an example at least the norm of dismissal for failure to perform work duties. Here, in general, some kind of philosophy is obtained when the worker fulfills, and at the same time does not fulfill his duties, or performs them improperly and the question arises: why is this manner recognized as inappropriate (improper)?

An employee says one thing, an employer says another. And both have arguments that cannot be dismissed. Funny huh? In general, in fact, it is unpredictable because it occurs here, when a dispute arises about whether or not an employee has fulfilled a certain duty here, it is, in essence, an assessment, which, of course, is different for everyone. Its simpler if something just hasnt been done - and then, immediately a host of questions arises: whether he should have done it, and if he could have done it (was the task able and capable) and so on.

Here in this mess of ambiguity the lawyer (well, or the attorney) is called to understand. It is clear that they are far from always understanding, but in any case this is a rather interesting topic. Each litigation arising from labor relations has little to do with the legal aspect of the situation, since there, as a rule, everything is more or less clear, but almost always there is leapfrog with actual circumstances: how and what happened or did not exist. And they, facts, are the foundation for applying to them the legal norms from the Labor Code of the Russian Federation.

And labor relations, or rather a specific dispute, often have an extremely vague factual basis, it is not clear or can be revealed in a rather indirect way, what was and how to understand it (in fact, you have to speculate what happened so and not otherwise). In fact, the Labor Code of the Russian Federation does not offer so many instruments for recording what happened. Act, for example. That acts fix everything that is possible: lateness, failure to appear at work, refusals from anything (signing documents). And if subsequently the content of the act is confirmed (and by what and by whom it is confirmed - also a question), then it becomes quite a document for itself, proving these or other things, facts, taken into account by the court. It turns out that the act is a very convenient document with which you can prove almost everything!

By the way, in fact, this is what happens: you dont have to really be late or not get to work - the act will be done on behalf of you by the trained personnel from the labor department who will sign this act. You can perfectly come to yourself on time, work out what is supposed to, and then, if you fall into disgrace, it turns out that you were not at work that day! Here, in fact, an act confirming this. And the signatories will confirm! And all your letters will disappear from the mail program, and you wont have access to it at all (if you use a computer at all), and the video cameras will be inactive, and there will be no other witnesses, and if they will, they will be recognized as interested party. And then try to prove the opposite.

Orders, notes - all this is also a kind of evidence, but because of their low information content, they do not always carry weight. Understanding all this, it is the lawyer who has taken up the labor dispute who presents the court with the contents of the documents, testimonies, records, interpreting them and preliminary evaluating them (as if hinting to the court about what these or those documents are and whether they should be taken into account ), which in turn requires a considerable involvement of a lawyer in the process.

It also requires the formation of a closed, consistent and logically verified structure of arguments, united in a certain general outline called the legal position. The legal position, even when formed and written down, further requires reporting to the participants in the process, who are not always able to perceive its content and meaning properly, and are often opposed to having it conveyed to the court as such. Why is it important to have the skills to participate in the process, and especially labor?

The fact is that the alleged protection of the interests of the principal, whether it is the employee or the employer, requires the lawyer to be able to penetrate as quickly and as deeply as possible, to find the most important moments of the situation that underlies the labor dispute, and also involves the ability to look at this situation from several angles at once, for the one-sidedness of consideration almost always leads to the failure of the whole position as a whole. Even more radical is that it is in labor disputes that the course of consideration can turn in such a way that it requires instant reorientation from a labor lawyer, up to and including abandonment of a previously chosen position and a transition to another and vice versa.

Such transitions, in order to simply present to the judge the paradoxicality, ambiguity of the situation, the arguments of the opponent, and thereby knock out the prejudice from the head, may require several; however, subsequently, one must be able to return to the source. Such flexibility, more precisely the ability to be flexible, even, one might say, the courage to be flexible, is not a frequent occurrence in the process of considering a labor dispute. Often the opposite takes place: the absolute rigidity of the representative, which, with the non-obvious rightness of the labor lawyer, sets the judge against him.

However, flexibility is a rather dangerous thing, because you can accidentally get confused and get bogged down in this flexibility by being accused of lack of specificity and the absence of a polar position, or even break down. This kind of skill is called art, moreover, the art of advocacy (and maybe jurisprudence - hello, Dmitry Anatolyevich! 😊))).

In general, the need for labor lawyers can be recognized as established, even with a truncated work week))) Not even because of the foregoing, but simply because such a need is dictated by the psychological properties of a person in a conflict situation, expressed in the need to look for allies. Which, however, should not allow labor lawyers to use this circumstance in an unfair manner.

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