Does an employer always have the right to deprive an employee of a bonus who has an outstanding penalty When an employee can count on a bonus, even if he was absent from work In what cases is it possible to pay a bonus to an employee in a smaller amount than other employees

Bonuses at the end of the year are not only a method of stimulating employees, but also a pleasant surprise for employees when their pockets are already empty from spending on gifts and festive events. However, quarterly and monthly bonuses please no less.

However, in practice, it is not uncommon for one or more employees to be deprived of bonus payments. It is unlikely that any of them will agree with the legitimacy of such a decision. Particularly principled employees defend their case in court.

Consider what arguments the parties cite in support of their positions and how the court reacts to them.

Story 1. About the missed deadline

If the employer has a bonus system, then sooner or later there will definitely be a “dissatisfied” employee. The first thing an employer needs to do in such a situation is to find out whether the employee can count on judicial protection. After all, the deadlines for applying for it are strictly limited. Therefore, it is possible that the application for a deadline will be the only document that the employer will have to spend time preparing.

The essence of the dispute. B., who served in the internal affairs bodies from November 1990 to July 2008, was deprived of her bonus for the fourth quarter of 2007 due to the fact that she violated official discipline. And in July 2011, she went to court, demanding to cancel the relevant clause of the order on incentive payments issued on 11/30/2007.

Employee arguments. On the content of the order by which she was deprived of the bonus for the IV quarter of 2007, which relies on exemplary performance official duties, B. found out only at the beginning of 2011.

Employer arguments. The representative of the Department of the Ministry of Internal Affairs for the Belgorod Region stated that the claims of the plaintiff could not be satisfied, since B. had missed the deadline for applying to the court to protect her rights. Referring to the Labor Code of the Russian Federation, the defendant's representative recalled that B. had three months to file a statement of claim with the court. Given that the content of the disputed order B. became known for certain from a letter signed by the acting head of the URLS of the Ministry of Internal Affairs for the Belgorod Region dated 12/28/2010, which she received in January 2011, and applied to the court only in July 2011, given term was skipped by her.

Court verdict 1 . In accordance with the Labor Code of the Russian Federation, an employee has the right to apply to the court for resolution of an individual labor dispute within three months from the day he learned or should have learned about the violation of his right, and in disputes about dismissal - within one month from the date he was given a copy dismissal order or from the date of issuance work book. It follows from the materials of the case that B. violated this deadline. She did not provide evidence of valid reasons for this. As a result, the court verdict was in favor of the employer.

Story 2. About the “less than others” award

In practice, a situation is common when the requirements related to the payment of bonuses are not the main ones in the employee's claim. But from this they do not lose their sharpness. Especially if the employee uses the words "bonus" and "discrimination" in combination.

The essence of the dispute. In addition to other requirements, V. asked the court to oblige the employer, the Peterhof State Museum Reserve, where she worked as a watchman, to recalculate her monthly bonuses for the entire 2010. As she indicated, other employees were awarded a bonus of 500 rubles during the specified period. more than her. Since V. performed the same work with these workers, she considered that the employer thereby discriminated against her.

Employer arguments. In accordance with the Decree of the Government of St. Petersburg dated January 17, 2006 No. 5 “On the peculiarities of remuneration of employees public institutions financed from the budget of St. Petersburg "bonuses to employees of the institution are carried out within the funds allocated for wages on the basis of the bonus system established by collective agreements, agreements, local regulations in accordance with labor legislation and other regulatory legal acts containing norms labor law. In accordance with the Regulations on the systems of remuneration of employees of the Peterhof State Museum-Reserve, a bonus based on the results of work for the month is paid in order to encourage employees for overall results labor, taking into account various indicators of work within the limits of available funds. The specific amount of the bonus can be determined both as a percentage of the employee's salary, and in absolute terms. According to the same provision of the Regulations on the decision CEO museum employees who grossly violated labor or production discipline, who systematically did not fulfill the tasks assigned to them, who made production omissions, can be de-bonded in whole or in part by issuing an order indicating specific reasons. That is, determining the amount of the bonus payable to a particular employee is within the competence of the employer.

Employee arguments. Regulations on the system of remuneration are subject to application, taking into account the norms of the Labor Code of the Russian Federation, which prohibits any kind of discrimination when establishing and changing the conditions of remuneration. General provisions on the prohibition of discrimination in the sphere of work as a basic principle legal regulation labor relations and other directly related relations are also contained in Art. and the Labor Code of the Russian Federation. In addition, when resolving a dispute, the recalculation of the premium was not subject to application, since the Peterhof State Museum Reserve is financed from the federal budget, and not from the budget of St. Petersburg.

Court verdict 2 . The court dismissed the employee's claim on the following grounds:

assessment of the results of the employee’s labor activity and determination of the amount of the bonus are within the competence of the management of the institution; debarment of any of the employees should be carried out on the basis of the order of the general director in the presence of violations specified in the Regulations on wage systems. However, the employer did not make a decision on the deduction of bonuses for V.; - the accrual of bonuses in different amounts does not in itself indicate discrimination. The materials of the case do not provide sufficient grounds for the conclusion that there was discrimination in relation to the plaintiff when bonuses were paid to employees.

Story 3. On the risk of lower premiums

Many employers consider the bonus solely as an incentive-encouragement tool (after all, the employee is paid a salary for work). As a result, they believe that they can change its size at will - usually in the direction of reduction. This position leads to the courtroom.

The essence of the dispute. From 06/01/2005 to 09/30/2005, B. worked as a conductor for passenger cars at ZTK Express Chita LLC. Under the terms of the concluded employment contract, her official salary (tariff rate) was 10 rubles. per hour, bonus - 31 rubles. at one o'clock. However, for four months wages were not paid in full. Despite the fact that in employment contract the size of the bonus is precisely fixed; during the period of work, B.'s bonus was paid in the amount of 1.61% of the specified amount. In addition, B. was not reimbursed for the expenses she incurred in connection with the medical examinations.

Employer arguments. The employment contract with B. mentioned the payment of bonuses in the manner and under the terms of the Regulations on wages. According to the relevant Regulations, approved by the director of ZTK-Express Chita LLC on May 25, 2005, a performance-based bonus is paid in the amount of 1.61% of the amount stipulated in the employment contract. B. knew about the existence of this Regulation and had no obstacles to familiarizing herself with it.

Employee arguments. As indicated by B., she was not acquainted with the Regulations on remuneration, to which the defendant referred when justifying the payment of a bonus in a smaller amount than established in the employment contract. And she recalled that the amount of remuneration is one of the essential conditions of the employment contract and it could not be changed unilaterally (Article and Labor Code of the Russian Federation).

Court verdict 3 . By virtue of the Labor Code of the Russian Federation, it is mandatory to include in an employment contract, in particular, the terms of remuneration (including the amount tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments. It follows from the meaning of this norm that the employee has the right and must clearly represent the amount of remuneration (in absolute terms). At the same time, the condition on remuneration is not limited to the size of the tariff rate (salary). By virtue of the ILO Convention of 1949 No. 95 "On the Protection of Wages", the employer is obliged to inform workers in a convenient and easily understandable way about the conditions for calculating the wages due to them before they start working, and every time these conditions change .

The contract with the employee mentioned the payment of bonuses in the manner prescribed by the Regulations on wages. The employer's compliance with this Regulation resulted in a 62-fold decrease in the amount of the bonus, which she expected, for the plaintiff. He did not familiarize B. with this local act, which caused her erroneous idea of ​​the amount of remuneration due. This means that the employer has not fulfilled the duty assigned to him by law to reliably inform the employee about his wages. Based on this, the court recognized that the condition for the payment of a premium in the amount of 1.61% of the contractual value was not agreed upon by the parties to the contract.

Story 4. On internal contradiction

Even if the organization has adopted all the personnel documents required by law, and the employee is familiar with all local acts relating to remuneration, in particular bonuses, against signature, the employer is not immune from the court. Errors can be detected by GIT.

The essence of the dispute. During the audit, the State Inspectorate established that Ecotrans OJSC violated the requirements of labor legislation on the calculation and payment of wages to employees, established by Art. , Labor Code of the Russian Federation. Thus, according to the terms of the employment contract with R., his salary is 20,000 rubles, which corresponds to the order "On the establishment of official salaries for employees of OAO Ecotrans". According to the staffing table of December 31, 2009, the salary was set at 10,000 rubles. and monthly bonus - 10,000 rubles. At the same time, the staffing table in terms of establishing the size of the salary does not correspond to the employment contract. In violation of the above norms of R., the bonus for December 2010 was not paid, while there are no grounds for depriving him of the bonus in whole or in part, which are defined in the Regulations on wages and material incentives for employees, approved by the General Director of Ecotrans OJSC on February 13, 2009 , – sick leave, an order to apply a disciplinary sanction to an employee.

Court verdict 4 . The court established the following violations committed by the company:

according to the terms of the employment contract with the employee and on the basis of the order, he is given a salary. According to the staffing table, salary and bonus are established. staffing in terms of establishing the size of the official salary, it does not comply with the employment contract; in violation of the LNA, the bonus was not paid, but there are no grounds (sick leave, order to apply a disciplinary sanction to the employee) to deprive the employee of the bonus in full or in part, which are defined in the Regulation on wages and material incentives for employees, approved by the General Director; in violation of the Labor Code of the Russian Federation, the company does not fully comply with the requirements of the said norm on the obligation of the employer to notify the employee in writing of the components of his salary, since the employee's pay slips do not indicate all the components of the salary, namely, the surcharge for harmfulness established by the order of the general director is not indicated in a separate line.

On the basis of these violations, the court found it unlawful to deprive the employee of the bonus.

Story 5. Contradiction to the law

If the Regulation on bonuses is contrary to federal law or, then its norms will be recognized by the court as not applicable.

The essence of the dispute. Order of the Federal Registration Service (currently - federal Service state registration, cadastre and cartography) approved on the terms of payment monthly allowance for special conditions of civil service, bonuses for performing particularly important and complex tasks, a one-time payment when providing annual paid leave, financial assistance and a one-time incentive for federal state civil servants of the central office and territorial bodies of the Federal Registration Service (hereinafter -). According to clause 2.5 of the Regulations, civil servants who have an outstanding disciplinary sanction are not subject to bonuses. According to I., this rule is contrary to the requirements federal law dated July 27, 2004 No. 79-FZ “On the state civil service Russian Federation”, which includes a bonus for the performance of particularly important and complex tasks as part of the salary of an employee, and the norms of the Labor Code of the Russian Federation - according to them, each employee has the right to timely and in full size payment of fair wages. On the basis of the contested norm, no bonus has been paid to him since March 2011 due to the imposition of a disciplinary sanction, as a result of which his right to receive a financial allowance is violated.

Employee arguments. The presence of an unremoved disciplinary sanction applied for a disciplinary offense committed outside the period for which bonuses are made does not in itself affect the degree of participation of a civil servant in the performance of particularly important and complex tasks and cannot serve as a basis for depriving him of a bonus that is part of monetary content.

Court verdict 5 . In accordance with the challenged norm, bonuses were excluded for civil servants who had an unremoved disciplinary sanction, regardless of when the disciplinary offense was committed and whether it affected the performance of the employee during the period for which the bonus was paid. The court agreed with the arguments of the plaintiff and recognized this provision as unlawful.

No court can oblige the employer to reward employees, since according to the law this is only his right. But there are situations when an employee fulfilled the conditions for receiving a bonus related to performance, but quit before the incentive payments were made to his already former colleagues. Most employers don't pay anyone who quits. Do employees have a chance in court?

Constitutional law

Don't discriminate!

<…> .

So why are they winning?

can use incentive payments (highlighted by me. - Auth.), including making bonus payments to its employees based on performance (for the quarter, for the past year, for individual personal achievements, high results of labor activity, etc.). "The same Regulation at the time of the dispute provided that" the accrual of bonuses ( remuneration) is not made, among others, to employees whose employment contract was terminated for other reasons during the probationary period. "Given these two conditions, the court of first instance concluded that the Regulations on the system of remuneration of workers of the defendant did not provide for an unconditional the obligation of the employer to pay bonuses to the plaintiff, and dismissed the claim former employee and the board dismissed the appeal against this decision.

The simplest thing that the IGU could offer was to calculate the statute of limitations from the moment the employment contract was terminated, since it is on the day the employment relationship with the employee is terminated that the final payment should be made. And this approach is visible both in the recent Appellate ruling of April 22, 2016 N 33-14649 / 2016, and in earlier ones (for example, the Appeal ruling of May 20, 2015 No.

Payment of a bonus after the dismissal of an employee - mandatory conditions and features of accrual and issuance

in case N 33-11649/2015).

The St. Petersburg City Court in the Appeal ruling dated 14.05.2014 N 33-7325 / 2014 in case N 2-1623 / 2014 concluded that the employee could not have known about the violation of his right before the bonus was accrued, especially since the order to the award came out in violation deadlines. As a result, the decision of the court of first instance was canceled and the case was sent for a new trial.

Judicial practice non-payment of premium

In accordance with Article 57 of the Labor Code of the Russian Federation, when registering an employee for work, an employment contract must be drawn up. This document certainly reflects information about wages. In addition to the standard salary, the employee is entitled to a bonus, and if it is not systematically paid, the employee can sue. Judicial practice on non-payment of bonuses suggests that this particular reason is considered the main element in the emergence of complex disputes between the employee and the employer. It is established that the bonus is not the obligation of the employer, if this is not established by the employment contract. If the employment contract indicates that the bonus is paid by the head regularly, then in this case, there is an opportunity for the employee to file a claim for recovery Money, in the absence of their payment.

Prize and its payments

Initially, it is established that the premium is not considered the main amount of a person's earnings. It is for this reason that it is paid only if there is a possibility of making a kind of contribution on the part of employees towards the development of the enterprise and obtaining more substantial profits. At the same time, the company's management decides on the award itself. If the bonus is paid to everyone, and one employee does not receive this bonus, although he worked in the same way as all other employees, then, in principle, it is possible to file a claim for this issue.

Do they pay a bonus upon dismissal?

If the bonus for the working period of time was accrued after the dismissal of the employee, then there is a high probability that the dismissed employee will not receive the bonus, and it will be almost impossible to prove that it should be paid in court.

On the pages of our Internet resource, you can view various solutions courts on this issue. You need to use the search term correctly to get the desired search results. you can use keyword: premium, you can specify the exact data of the decision made or the norm of the law. It is these requests that will help you find court decisions on this issue.

Judicial practice on the payment of bonuses

1. The Judicial Collegium of the Supreme Court of the Republic of Sakha (Yakutia) issued an appeal ruling dated September 11, 2013 in case No. 33-3558/2013. In this case, a case was considered on the recovery of bonuses from the employer. The worker was fired, after a while everyone was given a bonus, which she did not receive. As a result of studying the case, it was decided that the employer himself had the right to appoint a bonus and refuse to pay it to an already dismissed employee;
2. Appeal ruling dated 06/28/2013 in case N 11-20219. This case considered the partial withdrawal of the bonus amount, taking into account the fact that the employee had a disciplinary sanction, which entailed a reduction in the bonus amount. After studying the materials of the case, it was decided that the court of first instance, which determined the need to pay the bonus, made the right and adequate decision.

No court can oblige the employer to reward employees, since according to the law this is only his right. But there are situations when an employee fulfilled the conditions for receiving a bonus related to performance, but quit before the incentive payments were made to his already former colleagues.

Dismissing an employee: we pay a quarterly bonus

Most employers don't pay anyone who quits. Do employees have a chance in court?

Constitutional law

The right of employers to stimulate their employees is enshrined in Part 1 of Art. 191 of the Labor Code of the Russian Federation, the constitutional basis is Art. Art. 34 and 35 of the Constitution of the Russian Federation. However, Part 3 of Art. 55 and part 3 of Art. 56 of the Constitution of the Russian Federation provides that the rights guaranteed by the above articles may be limited by federal law. These restrictions must pursue at least one of the legitimate goals listed in Part 3 of Art. 55 of the Constitution of the Russian Federation. In addition, Part 3 of Art. 17 of the Constitution of the Russian Federation contains a general legal prohibition on the abuse of the right, the violation of which has the consequence, as a rule, of the refusal to satisfy the demands of the abused party.

The right of employers to establish a specific incentive system is provided for in Art. 57 of the Labor Code of the Russian Federation on the content of the employment contract, as well as Art. Art. 8 (the right to adopt local regulations) and 135 of the Labor Code of the Russian Federation (on the establishment of wage systems).

At the same time, neither the terms of the employment contract nor the provisions of the local regulatory act may contradict the norms of the federal law, otherwise the norms of the federal law are applied.

Thus, formal logic leads to the conclusion that the right of the employer to establish an incentive system and its application is not absolute. However, in practice, the legislator is in no hurry to limit the powers of the owner, and the generally recognized principles of law (the inadmissibility of abuse of the right and good faith) are too streamlined, which makes their application difficult. That is why the legitimacy of the incentive system is so hard to disprove.

Don't discriminate!

Another common principle of law is the prohibition of discrimination, which is an international industry principle and is also enshrined in Art. 3 of the Labor Code of the Russian Federation, according to part 2 of which no one can be limited in labor rights and freedoms or receive any benefits depending on gender, race, skin color, nationality, language, origin, property, family, social and official position, age, place of residence, attitude to religion, beliefs, membership or non-membership in public associations or any social groups, as well as other circumstances not related to business qualities worker.

To apply this principle, it is necessary that the employee has the right to receive an incentive payment. Literally according to Art. 191 of the Labor Code of the Russian Federation, the employer encourages employees who conscientiously perform labor duties (declares gratitude, issues a bonus, awards a valuable gift, a certificate of honor, presents them to the title of the best in the profession).

Most employers interpret it as not containing the obligation to pay bonuses to employees who quit before a decision on payment is made. At the same time, the emphasis is on the phrase "acting", which, according to most employers, directly relieves them of the obligation to pay something to those who quit before paying bonuses for any period worked. Formally, they are right. But judicial practice still knows the decisions in favor of employees.

Thus, the Moscow City Court in the Appeal ruling of August 2, 2013 in case No. 11-22649 expressed its position on the controversial issue, recognizing that "inclusion in the local normative act on wages, the conditions under which an employee who has worked the entire period of time required for bonuses is deprived of the right to receive bonuses solely in connection with dismissal due to own will, indicates discrimination, since termination of the employment contract at the initiative of the employee is his exclusive right, and the employer cannot, by his actions, create conditions under which dismissal on this basis will lead to negative consequences for the employee, including in the form of depriving the latter of the right to bonus for the period fully worked out by him, since the realization of the right to dismiss at his own request is in no way connected with the business qualities of the employee ".

Considering that the practice of the IGU for many courts in Russia acts as a kind of compass, a similar approach was applied by the courts of other regions. For example, the Krasnoyarsk Regional Court in the Appellate Ruling dated December 23, 2013 in case No. 33-12282 also qualified the defendant's actions in not accruing bonuses to the plaintiff for the worked period as illegal, violating the rights of the plaintiff, guaranteed to her by Part 3 of Art. 37 of the Constitution of the Russian Federation and art. 3 of the Labor Code of the Russian Federation. The reason for the claim was that the resigned employee actually worked out the period for which the bonus was accrued to other employees. The court noted that any evidence indicating the absence of the plaintiff's personal contribution to the performance of work, bad faith or inefficiency in the performance of job assignments not presented by the respondent.

Non-payment of the bonus to the plaintiff who worked the period for which the bonus was paid to other employees and later was considered as discrimination. The decisions in favor of the employees were upheld by the courts of the constituent entities of the Russian Federation and in 2015 the Collegium of the Khabarovsk Regional Court, in the Appellate Ruling dated January 16, 2015 in case No. 33-117 / 2015 (33-8289 / 2014), reacted to the arguments of the defendant's complaint as follows: "The defendant's allegation that bonuses to employees is the exclusive right of the employer, who used it at his own discretion in relation to individual workers, is a manifestation of discrimination of the right of other employees to monetary incentives with equal positive performance indicators ". A similar conclusion is contained in the Appeal ruling of the Chelyabinsk Regional Court dated April 2, 2015 in case N 11-3327 / 2015. The collegium noted that the termination of the employment contract with the employer, in the general sense of the law, does not deprive employees of the right to receive appropriate incentive payments.

Finally, the collegium of the Trans-Baikal Regional Court in the Cassation ruling of May 16, 2012 in case N 33-1550-2012 recognized the employer’s argument about the inappropriateness of stimulating laid-off workers as untenable, since "in accordance with part 3 of article 37 of the Constitution of the Russian Federation and article 3 of the Labor Code of the Russian Federation, everyone has equal opportunities to exercise their labor rights. No discrimination is allowed when establishing wage conditions (part 2 of article 132 of the Labor Code of the Russian Federation ) The plaintiff actually worked out the period for which other employees received a bonus in the amount of<…>from salary. No evidence was presented by the defendant to show that there was no personal contribution to the performance of the work ... ".

It should be noted that of all the cases considered above, only in the cases of the Khabarovsk Regional Court and the Trans-Baikal Regional Court, local acts did not contain a clause that the bonus was not accrued and not made to employees dismissed before the decision on payment was made. But even then, when it was, discrimination was ascertained automatically.

So why are they winning?

In order for the court not to see discrimination, it is necessary that the rights of the employee did not arise. This is easily achievable due to the appropriate wording in the local regulatory act on the stimulation of labor at the enterprise. Suffice it to recall that in a legal context, the indicative mood of most verbs means the imperativeness of the norm in which they are used. However, although Art. 191 of the Labor Code of the Russian Federation also uses the verb in the indicative mood (“stimulates”), this norm remains dispositive precisely because of the constitutional basis. With local regulations, which are documents not only legal, but also managerial, the situation is different: in the above judicial acts, the provisions of local acts are cited in which employers used verbs with the meaning "pay" precisely in the indicative mood, thereby obliging themselves to pay stimulating payments subject to certain conditions. Therefore, in order for the right to receive an incentive payment not to arise, next to the verb "pay" must be the verb "may". Evidence of the simplicity of depriving an employee of the right to bonuses "in the bud" is demonstrated by the practice of the Moscow City Court (hereinafter referred to as the Moscow City Court or MGS).

So, in the Appellate ruling of the IGU dated December 22, 2015 N 33-48637 / 2015, an excerpt is given from the Regulation on the system of remuneration of employees of the Central Bank of the Russian Federation (Bank of Russia) dated December 28, 2009 N 352-P, which provided that "the Bank of Russia can use incentive payments (highlighted by me.

- Auth.), including making bonus payments to its employees based on performance (for the quarter, for the past year, for individual personal achievements, high results of labor activity, etc.). "The same Regulation at the time of the dispute provided that "the accrual of a bonus (remuneration) is not made, among others, to employees whose employment contract was terminated for other reasons during the probationary period. " Given these two conditions, the court of first instance concluded that the Regulations on the system of remuneration of workers of the defendant the unconditional obligation of the employer to pay bonuses to the plaintiff was not provided for, and denied the claim to the former employee, and the board rejected the complaint against this decision.

A similar case was previously investigated by the Moscow City Court on October 14, 2015 in case No. 33-22083/2015. the regulation on remuneration and bonuses for employees of the GBU MFC of Moscow, approved by order No. MFC 01/1-58 dated March 20, 2014, at the time of the dispute provided that the institution could use incentive payments, including bonus payments based on the results of work (for month, quarter, semester, year). This provision called the order of the director of the institution the basis for paying the bonus. Bonuses were carried out taking into account the proposals of managers structural divisions by submitting a memo on the distribution of bonus amounts to their subordinates. The specific amount of the employee's bonus was determined by the results and quality of individual and collective work, the availability and volume of funds for the stimulating part of the institution's wage fund. The panel's conclusion is that there is no unconditional obligation to pay bonuses. The plaintiff lost the case.

But when adopting the Appeal ruling of December 22, 2015 in case N 33-47178 / 2015, the MGS again sided with the defendant, since the local act on bonuses provided that "the employees of the company are paid bonuses, the amount of which, the procedure for accrual and frequency payments are determined by the results economic activity of the enterprise and key performance indicators of the employee, which are approved by order of the general director. "Taking into account that the employer did not make a decision on the payment of a bonus to the plaintiff, and the assessment of the employee's performance is the prerogative of the employer, the courts first denied the claim, and then satisfied the complaint.

Thus, protection against loss in court in disputes on the recovery of bonus payments for employers is not only the use of certain sentence structures, but also the installation of a large number of internal filters in the form of orders, memos, etc. In these situations, the right of an employee to a bonus no longer has a regulatory basis, but a law enforcement one (for example, a decision of a management body), challenging the absence of which has no legal meaning.

Limitation periods for claims

The practice of courts in disputes on the recovery of bonus payments knows different approaches to calculating the statute of limitations, which, before the entry into force of Federal Law No. 272-FZ of 03.07. legislative acts of the Russian Federation on Increasing the Responsibility of Employers for Violations of the Legislation Regarding Remuneration" dated 10/03/2016 was three months and was calculated from the moment when the employee found out or should have found out about the violation of his right.

Let us first turn to the practice of the Moscow City Court.

The simplest thing that the IGU could offer was to calculate the statute of limitations from the moment the employment contract was terminated, since it is on the day the employment relationship with the employee is terminated that the final payment should be made. And this approach is visible both in the recent Appellate ruling of April 22, 2016 N 33-14649 / 2016, and in earlier ones (for example, the Appeal ruling of May 20, 2015 in case N 33-11649 / 2015).

There is another approach based on the study of the defendant's local regulations.

The St. Petersburg City Court in the Appeal ruling dated 14.05.2014 N 33-7325 / 2014 in case N 2-1623 / 2014 concluded that the employee could not have known about the violation of his right before the bonus was accrued, especially since the order to the award came out in violation of the deadlines.

As a result, the decision of the court of first instance was canceled and the case was sent for a new trial.

The board of the Omsk Regional Court also came to the conclusion that before the date of issuance of the order, the plaintiff could not have known about the violation of his right, in connection with which the limitation period was not missed by the plaintiff, the collegium of the Omsk Regional Court also came, which was reflected in the Appeal ruling of December 30, 2015 in the case N 33-10012/2015.

So, the chances of an employee in court depend solely on the wording in the local regulatory act on labor stimulation. The courts, having barely come to the conclusion that there was no general obligation to pay bonuses, did not analyze the validity of differences in approaches to paying bonuses to working and laid-off employees in any of the decisions and did not automatically recognize discrimination, although discrimination occurs more often when exercising the right. Compliance with the balance of interests of the parties to the employment contract, which is a response to the principle of good faith, was not checked either. In disputes over the recovery of bonus amounts, courts prefer to apply the law, rather than the named principle of law, considering discrimination against resigned workers to be immoral, which is also true, especially in conditions when labor legislation guarantees only 1 minimum wage, which does not even reach the subsistence level.

They don't get paid at work. What to do with it?

Any employee is happy about the bonus. But without receiving it, it is important to understand whether the employer has thereby violated your rights or not.

Premium payment

Initially, the payment of a bonus (an incentive payment to an employee who conscientiously fulfills his labor duties, which is part of the salary (Articles 129, 191 of the Labor Code of the Russian Federation)) is the right of the employer, and not his obligation. Employers who decide to periodically pay bonuses to their employees usually document this fact in an employment contract, a collective agreement, in a bonus provision, etc. If in such a situation the employee did not receive the required bonus, the decision on whether to take any action should be taken depending on the “bonus” wording.

What can be written in personnel documents

Here are some examples of possible formulations related to the payment of a premium. For example, an employment contract states that an employee's salary consists of a salary and a monthly bonus, set either as a percentage of the salary or in a fixed amount. With this wording, non-payment of the bonus is a violation!

also in personnel documents it may be said that the bonus is due to the employee, but subject to certain conditions (for example, for overfulfillment production plan). Or the conditions for depriving the bonus / reducing its size can be prescribed, for example, in the presence of disciplinary sanctions (Letter of Rostrud dated December 18, 2014 N 3251-6-1). Accordingly, if the employee complied with the requirements established by the employer, then non-payment of the bonus is a violation. If these conditions are not met, then the employee who did not receive the bonus should only complain about you.

The employer still had to pay the bonus ...

If the employer nevertheless violated its obligation to pay bonuses to the employee, then such an employer can be complained to the labor inspectorate. This can be done through the site Onlineinspektsiya.rf. And if the inspectors find out that the employer really violated the rights of the employee, then this employer faces a fine (

The payment of bonuses is one of the methods of encouraging employees for the performance of their labor duties. And it is precisely on the topic of setting the frequency of payment of bonuses that labor disputes often arise between the employer and the employee. How are bonuses assigned to employees and is it possible to recover unpaid bonuses through the courts? We will talk about this in our article.

Well-executed work, as you know, should be encouraged by the employer with bonus payments. In accordance with the definition noted in the Labor Code of the Russian Federation, bonuses to employees are a wage supplement that is not fixed and has no restrictions on features. professional activity. The purpose of the bonus payment is based on labor and collective agreements and agreements that do not contradict legislative framework RF. The number and frequency of bonuses are not limited by any legal aspects, while these incentive payments can be accrued at the end of the year, quarter or month, depending on the desire of the employer. Differentiation of the amount of the bonus payment can be made taking into account the position and length of service of employees. Based on these nuances, an employee can recover unpaid bonuses from the employer in the manner prescribed by law. Bonuses fall into two main categories:

• the amount of money paid to the employee after achieving a certain result (the payment is distributed among all project participants, the amount of the bonus depends on the volume that the employee performed);
• a sum of money paid to employees as an incentive dedicated to holidays or memorable dates (payment is made to all employees, regardless of position and length of service).

The payment of additional cash incentives to employees is an independent decision of the employer, but at the same time, the legislation provides for some legal norms, the violation of which may be the basis for filing a claim for the recovery of unpaid bonuses through the court:

• in cases of delay or non-payment of the mandatory incentive payment to the employee upon achievement of a certain result production activities;
• in cases of non-payment monetary compensation, timed to coincide with holidays or memorable dates, to a specific employee, if the rest were paid in full.

Based on the terms of the employment contract or other local act of the organization, the court may make a positive decision on the claim with the award to the employer of the payment of bonus money and compensation for moral damage.

Employee bonuses and disciplinary actions

In accordance with the labor legislation of the Russian Federation, the fact that an employee has an outstanding disciplinary sanction is not a reason for refusing to pay bonuses. Accordingly, the decision on the issuance of an incentive cash bonus or the deprivation of it is entirely the responsibility of the employer (Article 8 and Article 191-194 of the Labor Code of the Russian Federation).

Note that before the entry into force of the new Labor Code Russian Federation, the Labor Code of the Russian Federation provided for a ban on rewarding employees if they had a disciplinary sanction that had not been lifted (Article 137). Starting from 02/01/2002, Article 422 of the new Labor Code of the Russian Federation, the Labor Code has lost its force, at the same time, the norm of the prohibition on encouraging employees has become invalid.

Important! The payment of bonuses to employees is provided for by the local act (Regulations on bonuses) of the organization and is not. In accordance with Russian labor legislation (Article 192 of the Labor Code of the Russian Federation), a disciplinary offense may entail such types of penalties as: remark, warning, reprimand, dismissal. The payment of bonuses is an incentive compensation that encourages employees to conscientiously fulfill their duties (part 1 of article 191 of the Labor Code of the Russian Federation). The procedure for paying bonuses to employees should be prescribed in the collective agreement or other regulatory act of the organization, indicating whether such payments are possible to employees who have a disciplinary sanction. Thus, according to the Labor Code of the Russian Federation, the deprivation of a bonus is not a disciplinary sanction, but at the same time this method impact on unscrupulous employees should also be spelled out in local act organizations. In accordance with Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, the application to employees of disciplinary sanctions that are not provided for by the Labor Code of the Russian Federation entails against the employer.

Claim for the recovery of unpaid premiums through the court

If the employee believes that his rights regarding the cash bonus payment have been violated, he has the right to apply to the court with a claim for the recovery of unpaid bonuses. Before filing a claim, an employee can try to resolve this dispute out of court: negotiate with the employer or file a complaint with the labor inspectorate located on the territory of the violating organization. Employees government agency are obliged to conduct an audit on the fact of violation of the rights of the employee-applicant, and if they are found, issue an order to the employer with the determination of the deadline for execution to be eliminated. In case of non-fulfillment of the requirements of the order, the labor inspectorate submits documents to the court at the location of the defendant (employer). In the statement of claim for the recovery of unpaid premiums through the court, the unpaid amount of the incentive payment must be indicated with reference to the organization's local regulatory act. The claim is signed by the applicant, the entire evidence base is attached to it. Claims for unpaid bonuses to employees are considered by justices of the peace. If the court does not satisfy the claim, the plaintiff does not pay the court costs.

Julia

Good afternoon The last working day on May 31, on which I worked (shift schedule), completed the plan for the indicator, plus individual remuneration for the goods and services sold, received a calculation on the same day, which did not include bonus and remuneration, this was explained by the fact that the last worker the day upon dismissal is counted when calculating the constant part of the salary and is not taken into account in the variable (bonus, etc.) We pay a bonus monthly based on the results of the month worked. I was not informed that the last working day was not taken into account. Is it legal? Why can't they recalculate and pay extra?

Sergey (senior lawyer)

Hello Julia! To assess the legality of refusing to pay a bonus, you need to look at the local acts of your organization regarding the legal regulation of the conditions for paying bonuses. If all the conditions were available, but you were not paid the premium, then such actions are clearly unlawful. The issue of recalculation must be resolved directly with the employer and the accounting department.

Irina

Good afternoon. On March 29, 2019, the organization paid a bonus based on the results of work for 2018. In accordance with the provision on bonuses, the formula for calculating the annual bonus includes the "Manager's assessment coefficient". In accordance with paragraph 3.2.9 "At the decision of the head of the employee, the bonus can be calculated taking into account the adjustment factor in the range of 0.7-1.3. It is possible to reduce the bonus to 0.1 of the calculated amount if there are objective reasons." In relation to me, when calculating the annual bonus, a coefficient of 0.1 was applied. All other employees in my department received a bonus with a factor of =1. With objective reasons, on the basis of which the coefficient of 0.1 was applied to me, no one explained to me. I learned about the fact of the reduction in the premium only when I received the pay slip in my hands. In accordance with the current regulation (approved on December 24, 2018), bonuses for the 4th quarter of 2018 were also paid. When calculating the bonus for the 4th quarter of 2018, in my case, the manager's assessment coefficient = 1. I have never had any disciplinary action. Is the premium reduction right in my case?

Sergey (senior lawyer)

Hello Irina! Since the conditions for paying the bonus are extremely vague (this is what the employer is counting on for greater enslavement of employees), then formally there is no violation of the law in your situation. According to the meaning of the norm you cited, the application of one or another coefficient depends solely on the discretion of the employer or immediate supervisor.

Eugene

Good afternoon. And in continuation of the correspondence, I apply the DS to the TD. Your opinion?

DS bn to TD.pdf

Sergey (senior lawyer)

Hello Eugene! This does not change the essence of the previous consultation, since the employment contract does not speak about the obligation of the employer, but about his right to pay a bonus, and even in accordance with local acts. Therefore, the employment contract does not give anything in your favor.

Eugene

Good afternoon. The gist of my consultation is as follows. From November 2016 to January 11, 2019, I worked at T2 Mobile LLC. He resigned of his own free will and from January 14, 2019, he began to perform his labor duties at JSC "Moscow Energetics Communication Center". In addition to the monthly salary, T2 Mobile LLC is entitled to an annual bonus once a year (I was entitled to it for 2018 in the 1st quarter of 2019), according to the information from the employees of T2 Mobile LLC, it will be paid in March 2019. According to a message from my former leader through the WhatsApp messenger, the due annual bonus will not be paid to me, for a reason I do not understand (I have no penalties). I consider these actions unlawful and proceed from the fact that I will not receive an award, I would like to know the opinion of a specialist, get recommendations. Attached is a scanned copy of the annual bonus regulations. A scanned copy of the employment contract does not fit. Thanks in advance. Sincerely, Glazunov E.V.

Regulations on the annual bonus.pdf

Sergey (senior lawyer)

Hello Eugene! In accordance with clause 5.1.3. the payment of an annual bonus to laid-off employees is subject to the approval of the Head of the function. In addition, by virtue of the provisions of clause 5.2.1. document, the payment of the premium is not mandatory, but can only be paid. Therefore, if the payment of the bonus is not provided for by the employment contract, then we can assume that the refusal to pay it may be legitimate.

Anna

On January 18, 2019, she was fired on her own, in December 2018 she fell ill, because the head of the department arranged persecution, they needed a "place". She practically forced me to write a statement and leave. Worked for more than 3 years, complaints, etc. did not have. When calculating, I did not receive an annual bonus for 2018. in general, the rest of the staff clearly received. I didn't sign any withdrawal orders. I don’t have access to the Regulations on bonuses, personnel and accounting. information is not given. How to prove the illegality of the deprivation of the award? There is a high probability that the documents were "cooked up" by the former leadership retroactively.

Sergey (senior lawyer)

Hello Anna! Only by applying to the court or the prosecutor's office, which will be able to access the bonus documents. And there already further it is necessary to look at the conditions of these documents and their observance for the payment of bonuses to laid-off employees.

Oksana

Good afternoon, I have been working at the enterprise for 5 years, of which 2 years is a decree, I left the decree a year earlier (the baby is not yet three), I work for a distributor officially, but the commands are given out by the head documented at the factory (there are only a lot of emails from him mail) and many witnesses that he is in charge of the process. It so happened that after my release from the decree, they want to fire me and in every possible way put pressure on me morally by internal checks - which is not legal, they are not spelled out in my employment contract and its annexes, not paying bonuses (bonuses are paid officially, but at the discretion of the director) and threats of dismissal in written electronic form, I don’t sit on sick leave, I stay up late at work, I have no reprimands. Please tell me if I can lower him to the ground under the law, I don’t want someone else to quit or not receive wages because of this person. Thank you

Sergey (senior lawyer)

Hello Oksana! Just study the Labor Code, your employment contract and job descriptions and act strictly on them. Don't give in and don't agree to illegal demands. Let their demands of an illegal nature be made in writing with his signature. You can also team up with other workers to defend your rights.

Denis

Good afternoon Worked for the organization for 8 years. internal documents an additional remuneration (premium) is provided for a specific quantitative indicator. During the entire period, despite the fulfillment of the required indicator, the bonus was not paid in full for various reasons (financial condition of the organization, people factor). Upon dismissal (at his own request), he did not receive a full calculation (taking into account bonuses for previous periods). Can I recover the bonus I did not receive for the past periods due to me (the employee) upon dismissal? It hasn't been a year since I left. Thanks for the answer!

Sergey (senior lawyer)

Hello Denis! You can apply to the court for the payment of the premiums due, which must be paid no later than one year before applying to the court. For all 8 years, it will not be possible to collect the premium, the deadline for applying to the court has been missed.

Svetlana

In September 2015, a bonus was accrued to the management of our institution, but not paid due to lack of funds; in July 2016, the accrual of these bonuses was canceled. Those who sued were fired. Can I sue after the expiration of two years upon dismissal to restore these bonuses.

Sergey (senior lawyer)

Hello Svetlana! Unfortunately, you can't. The statute of limitations has long passed. It is one year from the date of violation of labor rights.

Michael

Good afternoon, please tell me, upon dismissal from Transneft, will I have the opportunity to appeal against all bonus deductions for the entire period of work, and if the bonus deduction is recognized as unlawful, return all the deprived bonuses? the bonus in Transneft is 70% of the salary, the deprivations occur unreasonably, simply at the discretion of the management, no one takes into account explanatory notes, complaining immediately after the deprivation means an early dismissal, and therefore the question of appealing the deprivations for the entire period of work is of interest.

Sergey (senior lawyer)

Hello Michael! The maximum can be demanded in one year, since according to the law (Article 392 of the Labor Code of the Russian Federation), the employee's claims related to incomplete payment of wages must be presented no later than one year.

Sergey (senior lawyer)

Hello Julia! There may or may not be a violation. Maybe there is a simple negligence of the accounting staff. Therefore, if you are on the lists for bonuses, you should have been given the bonus on the day of dismissal.

Julia

the issue of employee benefits. August 9 was the Day of the formation of the Yamalo-Nenets customs, by this date there was a bonus for all employees and workers. It was not paid to me. For what reason, the accounting department did not explain to me, although in the memorandum for the bonus, my head of the department included me on the list. I don’t have any disciplinary sanctions, I don’t have any comments on my work either. I associate this deprecation with my dismissal, since the order to pay the bonus was issued on August 07, 2018, and the order on my dismissal was issued only on August 09, 2018, I consider these actions in relation to me a violation.

Is it possible to recover a bonus from an employer after dismissal, if the IRR states that the bonus of a retired employee is divided by employees from his motivational group?

Sergey (senior lawyer)

Hello, Elena! To answer your question, it is necessary to familiarize yourself in detail with the employment contract on the subject of whether the payment of bonuses is the obligation of the employer or only his right. The decision on the payment of the due bonus after dismissal will depend on this.

Tatiana Gonina

Hello! The head of the department at the plant stopped paying the bonus to me, everyone in the laboratory receives it, and I only get a bare salary. She is forcing me to quit. After leaving parental leave, he does not reinstate him in his position, he simply lets him print documents, referring to additional duties. I have three children.

Sergey (senior lawyer)

Hello Tatiana! You need to look at the terms of your employment contract, as well as the provision on bonuses. If, according to these documents, you are required to pay a bonus, then you can appeal the refusal to pay them to the court or write a complaint to the prosecutor's office.

Elena

Good evening. There is a signed additional agreement to the employment contract for receiving the bonus, the conditions for receiving the bonus are spelled out with the proposal "at the discretion of the manager." There are letters from the manager about the amount of the bonus that needs to be paid. Finance refused to pay the bonus, citing the fact that the manager did not plan these expenses at the beginning of the year. Can I apply to the court for an award? There are no documents about the specific amount of the award, except for emails.

Many employers practice the payment of quarterly and annual bonuses. It is understood that such bonuses are paid to employees based on the results of work for the corresponding quarter or calendar year. But in this case, the question invariably arises, what about employees who have not fully completed the period for which the bonus is due?

Refusal to pay bonus for not fully worked period

A refusal to pay a bonus can be regarded as discrimination against a dismissed employee if, based on the results of his work, he objectively deserved it.

I must say that the courts often have to consider cases on claims of employees against former employers about the obligation to pay a monthly or annual bonus provided for by an employment contract or local regulations, but not paid due to dismissal before the end of the corresponding quarter or year. Most often, employers, defending their position, refer to the provisions of local regulations, according to which no bonus is charged to retired employees. They also refer to Art. 140 of the Labor Code of the Russian Federation, which states that upon termination of an employment contract, payment of all amounts due to an employee is made on the last day of work.

V. was fired at the end of September due to downsizing. During the period of work, he had no disciplinary sanctions, he was not deprived of the bonus, he considers the refusal to pay the bonus for the third quarter illegal and asks to recover it from the defendant. He, in turn, asks to refuse to satisfy the claims, since on the day the decision was made to pay the premium for the third quarter, the plaintiff was no longer in an employment relationship with the company.

The court of first instance noted that it was not economically feasible for the organization to incentivize laid-off workers. However, the court of cassation recognized this argument as not worthy of attention, since, in accordance with Part 3 of Art. 37 of the Constitution of the Russian Federation and art. 3 of the Labor Code of the Russian Federation, everyone has equal opportunities to exercise their labor rights. Any kind of discrimination is not allowed when establishing the conditions for remuneration (part 2 of article 132 of the Labor Code of the Russian Federation). The plaintiff actually worked the period for which other employees received a bonus in the amount of 50% of the salary. No evidence was presented by the respondent to show that he did not personally contribute to the performance of the work. In addition, in the regulation on remuneration there is no reference to the fact that employees dismissed at the time of the decision on the bonus are not paid.

Often, employers refer to the fact that former employees did not work out the full billing period for which the bonus is accrued. In this situation, the courts first of all pay attention to the content of the local regulation on bonuses: is there a clause on the payment of bonuses in proportion to the work done in the billing period of time and whether it is indicated at all how much you need to work to receive the bonus.

Note!

If an employee leaves before the end of the period for which the bonus is due, this does not mean that the bonus is not paid to him in principle.

How to properly resolve the issue of accruing bonus payments to employees who have not completed the full period in order to prevent discrimination?

We believe that the most fair in this case is the payment of bonuses in proportion to the hours worked.

By the decision of the court of first instance, the amount of the bonus was recovered in favor of the employee, which was not paid to him in connection with the dismissal before the end of the period for which it was appointed. When re-examining the case, the higher court generally agreed with the conclusions of the court of first instance on the obligation to pay the bonus, but indicated that its amount was calculated incorrectly. The court of first instance, which believed that the remuneration should be paid in full, did not take into account the requirements of the provision on bonuses and material incentives for employees in force in the organization, according to which employees who have worked an incomplete number of working days in a month are paid current bonuses in proportion to the hours worked .

For employees leaving before the end of the quarter, the corresponding bonus is calculated in proportion to the hours worked. However, in the regulation on remuneration, according to which such bonuses are accrued, there is no clause on the proportional calculation of bonuses upon dismissal. Is there a risk that our calculations will be recognized as illegal?

Such a risk exists, therefore, in the local regulatory act on the basis of which the bonus is paid, it is advisable to provide for a clause on the proportional calculation of the bonus upon dismissal before the end of the reporting period for which it is paid.

Let us give another example from judicial practice, when the absence of rules for calculating proportional bonus payments was not in the hands of the employer.

The employees applied to the court demanding that the former employer pay the annual bonus in full, despite the dismissal before the end of the corresponding calendar year.

During the consideration of the case, the court found the following. Clause 4.3 of the Regulations on the system of remuneration and stimulation of the work of the company's employees provides for a bonus for performance. This bonus is paid at the end of the year and applies to all employees of the company. At the same time, no restrictions on payment to employees leaving before the end of the calendar year were established.

At the same time, the court drew attention to the fact that clause 4.2 of the Regulations provided for another type of bonuses to employees - for personal performance. Interestingly, in paragraph 4.2.1.7 of the Regulations it was explicitly stated that the payment of bonuses for personal performance is not made if the employee has left the company (for any reason) before the decision on payment is made.

As a result, the court concluded that, since the employer did not provide for any specifics for paying a performance bonus to employees who left before the end of the year, it should be accrued to them in the usual amount.

The procedure for the proportional calculation of bonuses can also be established for cases of bonuses for employees who were absent from work during the reporting period due to illness. However, it should be borne in mind that the rules established in the organization must apply to all employees without exception, otherwise you may incur suspicion of discrimination.

Clause 8.8 of the Regulations on wages and bonuses for employees of the organization establishes that the bonus may not be paid in the event of a long absence of an employee from the workplace (more than 14 calendar days) due to temporary disability. The employee fell ill for 18 calendar days, and the employer refused to pay him a bonus.

However, when considering the case in court, it became known that another employee of the organization, who was absent due to illness for 17 calendar days, was awarded in full.

Referring to this circumstance, the court concluded that the inclusion in the Regulations on Wages and Bonuses of a condition under which an employee who has worked for the prescribed period of time is deprived of the right to a bonus solely due to temporary disability, and the employer, depending on personal preferences, with other equal decides to reward one employee who has been absent for more than 14 calendar days, and deprives the bonus of another, indicates discrimination, since the fact of absence from the workplace is not in itself related to business qualities.

Removal of award for violation of discipline

Let's say right away that in most cases the employer has the right not to charge a bonus if the employee was brought to disciplinary responsibility in the reporting period.

The first argument given by employees who challenge such a decision is that the employer, by depriving them of bonuses for a disciplinary offense, punishes them twice, while Art. 192 of the Labor Code of the Russian Federation allows only one disciplinary sanction to be applied for each disciplinary offense.

However, “bonus deprivation” is not a measure of disciplinary liability for improper performance or non-performance by an employee of labor duties. Article 192 of the Labor Code of the Russian Federation does not provide for such a type of disciplinary sanction as "deprivation of the bonus."

Non-payment of a bonus to an employee who has a disciplinary sanction does not mean that he is repeatedly brought to disciplinary responsibility for the same violation. Moreover, in this case it is generally incorrect to talk about any additional monetary punishment. In fact, we are not talking about depriving the employee of the bonus, but about the lack of grounds for paying it.

In the local regulatory act of the employer on bonus issues, we recommend that you indicate that the bonus is paid only if in the reporting period the employee did not violate labor discipline, did not have disciplinary sanctions, etc.

Why is it extremely undesirable to use the phrase “deprivation of bonus” in local regulations?

According to the Explanatory Dictionary of S. Ozhegov, the word “deprivation” means “loss, loss”, that is, the employee, as it were, loses what belongs to him. But as we have already found out, the violator of labor discipline does not lose anything - he does not earn the right to a bonus. Therefore, in local acts, it is necessary to fix in detail the conditions for calculating the bonus and provide, as one of the conditions, the absence of disciplinary sanctions in the period for which it is paid.

When deciding not to pay the employee the bonus for 2012, the employer took into account that in July of this year the employee was brought to disciplinary responsibility and he was reprimanded.

At the same time, the employer was guided by clause 5.4 of the Regulation on remuneration, according to which the employee could be completely or partially deprived of the annual bonus due to violations of labor discipline and improper performance of labor duties during the reporting year. In addition, in accordance with this Regulation, when a disciplinary sanction is applied to an employee during the reporting year in the form of a reprimand, bonus remuneration based on the results of work for the year is reduced by 100%.

Under such circumstances, the court recognized the non-payment of the annual bonus to the employee as lawful and justified.

Practical question on the topic of the cancellation of the premium

In February, the employee was reprimanded. According to the results of the first quarter, no bonus was accrued to him in connection with bringing him to disciplinary responsibility. In August, by order of the head of the organization, this penalty was removed from the employee. It turns out that now we have to pay him a premium for the first quarter as well?

According to Art. 194 of the Labor Code of the Russian Federation, a disciplinary sanction may be early withdrawn by the employer or repaid after a year from the date of its application. It is important that in both cases the fact that an employee committed a disciplinary violation is not questioned, and bringing him to justice is not recognized as illegal.

Therefore, the fact that the penalty was withdrawn or extinguished over time does not give the employee the right to a bonus for the reporting period when the penalty was applied to him in accordance with the law.

Another thing is if the disciplinary sanction was subsequently declared illegal. If the employee disputed not only the fact of “bonus deprivation”, but also the legality of bringing to disciplinary liability and the court recognized that the imposition of a disciplinary sanction was carried out in violation of the law, the bonus will most likely have to be accrued.

In May, the employee was reprimanded, and in June he was reprimanded. In accordance with the current regulation on remuneration in the organization, the amount of the monthly bonus to the employee in May was reduced by 50%, and in June the bonus was not paid at all.

The employee appealed both charges in court. The court found them illegal.

In addition, since the reduction in the bonus was the result of illegally bringing the employee to disciplinary liability, the court considered it fair to recover from the employer the amounts of bonuses that were not accrued to the employee for May and June.

If the employee missed the deadline for filing a lawsuit

A dispute related to the payment of a bonus is a disagreement between an employee and an employer on the application of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, an agreement, a local regulatory act, an employment contract, and therefore belongs to the category of individual labor disputes . This means that the provisions of art. 392 of the Labor Code of the Russian Federation, according to which the employee has the right to apply to the court for resolution of an individual labor dispute within three months from the day he learned or should have learned about the violation of his right.

In accordance with paragraph 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, based on the content of par. 1 hour 6 art. 152, as well as part 1 of Art. 12 of the Code of Civil Procedure of the Russian Federation, according to which justice in civil cases is carried out on the basis of adversarial and equal rights of the parties, the issue of the plaintiff missing the deadline for applying can be resolved by the court, provided that this is stated by the defendant. As court practice shows, employers, as a rule, declare that an employee has missed the deadline for applying for judicial protection, as a result, the judge has to find out whether he had good reasons for missing the deadline. If it turns out that it was not, the court refuses to satisfy the employee's requirements.

Employees, in turn, prove that the deadline for applying for judicial protection has not been missed, so it is fundamentally important to understand at what point should the three-month period start when the employee should have found out about the violation of his right to receive a bonus?

Subparagraph 2 of paragraph 5.1 of the Regulations on the remuneration of employees of LLC "M" establishes that bonuses for production results are paid based on the results of work for a certain period (month, quarter, year). Thus, the premium for the III quarter of 2011 was payable in October 2011, for the IV quarter and for the year - in January 2012, for the I quarter of 2012 - in April of the same year.

The plaintiff, knowing that no bonus was accrued to him during these periods, filed a lawsuit with the court only in September 2012. The fact that the plaintiff was on regular leave is not a basis for extending the period for applying to the court and cannot be regarded as a good reason for missing this period. Since April 2012, when the premium for the 1st quarter of 2012 was to be paid to the plaintiff, he was on sick leave for 1 month 14 days, while 5 months 24 days passed from the moment of non-payment to going to court, i.e. much more three months, even taking into account the days of disability.

The court came to the conclusion that the plaintiff missed the deadline for applying to the court with a claim for the recovery of unaccrued bonuses.

TO good reasons missed deadlines, the presence of which allows the court to resolve the issue of its restoration, include circumstances that objectively prevented the employee from timely filing a claim with the court for resolving an individual labor dispute (for example, the plaintiff’s illness, his being on a business trip, the inability to go to court due to force majeure, the need caring for seriously ill family members). There is no information about such circumstances in the case file, the plaintiff did not refer to them.

Summing up, we will once again list what circumstances the court will analyze when considering the case of “deprivation of the bonus”:

1. Is the bonus specified in the employment contract as a guaranteed payment with a fixed amount.
2. Whether the right or obligation of the employer to pay bonuses is fixed in the local regulatory act, whether he can independently determine its size, whether the conditions and indicators of bonuses are contained in the local act.
3. Are the requirements of Art. 72 of the Labor Code of the Russian Federation when changing the size of the bonus, if it was originally prescribed in the employment contract.
4. Does the employer formalize the "deprivation of the bonus" as a disciplinary sanction.
5. If the non-accrual of the bonus was due to a disciplinary offense, was the procedure for bringing the employee to disciplinary responsibility followed.
6. Is the payment of a bonus in a smaller amount compared to other employees a manifestation of discrimination on the part of the employer.
7. Whether the bonus was paid to the dismissed employees who worked the period for which the bonus is accrued. Is it accrued in proportion to the time worked, if such a calculation procedure is enshrined in a local regulatory act.
8. Has the employee complied with the deadline for applying for judicial protection, specified in Art. 392 of the Labor Code of the Russian Federation (if there is an application from the employer about his pass).