Pre-trial dispute settlement procedure for reinstatement of dismissed employees with payment of wages
In accordance with paragraphs 1 and 2 of Article 159 of the Labor Code, individual labor disputes are considered by conciliation commissions, and on unresolved issues or non-compliance with the decision of the conciliation commission - by the courts, with the exception of small businesses and heads of the executive body of a legal entity. Conciliation commissions are permanent bodies established in organizations, its branches and representative offices on a parity basis from an equal number of representatives from the employer and employees. Consequently, the conciliation commission considers all disputes, except for disputes with the heads of the executive body and employees of a small business entity.
According to paragraph 2 of Article 161 of the Labor Code, the decision of the conciliation commission or the court for the consideration of an individual labor dispute on the reinstatement of an employee at his previous job is subject to immediate execution. If the employer delays the execution of the decision on reinstatement, the conciliation commission or the court decides to pay the employee the average salary or the difference in wages during the delay in the execution of the decision.
Despite this imperative requirement of the Labor Code, in practice there are issues related to the employer's refusal to comply with the decisions of the conciliation commissions.
We believe it is possible at the legislative level to consolidate the execution of the decision of the conciliation commission as an executive document, which, by its very nature, is subject to strict enforcement, which, of course, will increase both the effectiveness of the commission's work and its real importance in resolving labor disputes. In such cases, for example, disputes over claims for the recovery of wage arrears or other labor disputes that are not particularly difficult would eventually find a real solution directly in the labor collective. In such cases, it would not be necessary to re-apply to the court for dispute resolution already in the context of the issue of non-compliance with the decision of the conciliation commission.
The practice of those courts that have ruled out the return of claims in this category of cases on grounds related to non-compliance with the pre-trial dispute settlement procedure seems to be correct. This indicates the absence of a formal approach when accepting statements of claim, since the issue of the plaintiff's pre-trial dispute resolution procedure and the assignment of the defendant to small, medium or large businesses can be resolved at the stage of preparing the case for trial.
There is a different approach to resolving the issue of the need for a pre-trial settlement of a dispute in the practice of courts.
For example, by the decision of the Ekibastuz city Court, the claim of A.T.F. for recognition of the illegal order, reinstatement at work, recovery of wages for the time of forced absenteeism and compensation for moral damage was left without consideration.
When reviewing this ruling on appeal, the Judicial Board found that plaintiff A.T.F. applied to the conciliation commission of JSC Ekibastuzskaya GRES-2 Station for resolution of this labor dispute on March 01, 2016. The Conciliation Commission, which is obliged to consider the dispute within 15 working days from the date of registration of the application and provide the parties to the dispute with copies of the decision within three days from the date of its adoption, did not comply with the requirement of the law.
The Board pointed out that the absence of a response from the conciliation commission could not serve as a basis for leaving the claim without consideration under subparagraph 1) of Article 279 of the CPC. In such circumstances, the plaintiff's complaint was found to be justified and the court ruling was overturned, with the issue being referred for reconsideration to the court of first instance.
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