Anti-corruption legal education: Philosophy of law. Loss of trust under labor law, disciplinary responsibility (part 1)
In the prevailing number of employment contracts concluded, trust between the employee and the employer is assumed by default and is not stipulated in a separate clause. That being said, there are many reasons why an employment relationship can break down, including disciplinary action, poor performance, and more. Loss of trust can result from the actions or inactions of the employee, leading to a subjective negative attitude on the part of the employer, which becomes an obstacle to maintaining a healthy employment relationship. The legality of the actions of the parties to labor relations in this case is due, in particular, to the Labor Code of the Russian Federation, as well as other special regulations, including those of a local nature.
Dismissal due to loss of trust as a rather radical measure can lead to a conflict between the employer and the dismissed employee due to the clash of aspirations, on the one hand, to prevent damage to the organization and, on the other hand, to respect the legal rights of a citizen. The problem is also exacerbated by the subjective perception of the very concept of "trust" by the participants in the conflict.
Trust in labor relations can be formed at the emotional and professional levels. The emotional level is determined by the personal attitude to a particular person, his character and behavior. The professional level is based on the work activity of the employee, the performance of official duties, the achievement of a certain level of labor productivity, the compliance of labor qualities with the required and specified in the relevant personnel documents.
Although “loss of trust” is an evaluative concept and the employer, taking into account the personality of the employee and the circumstances of the misconduct committed by him, has the right to qualify them himself, the descriptive and evaluative nature of the wording “loss of trust” in the Labor Code of the Russian Federation allows for the presence of a large variability of these circumstances. This leads to the extremely difficult legislative consolidation of their exhaustive list and the employer's subjective assessment of the sufficiency of specific circumstances for making a decision on dismissal. In this regard, a special role in the settlement of this kind of labor disputes is assigned to the courts.
It is noteworthy that in the Soviet period, the topic of loss of trust was not immediately perceived as a separate practice, but was considered in the context of dismissal due to unsuitability, in which it was usually a question of systematic failure to perform job duties.
Today, in the labor legislation, the provisions on dismissal due to the loss of the employer's confidence in relation to the employee are enshrined in clauses 7 and 7.1 of part 1 of Art. 81 of the Labor Code of the Russian Federation. If the provisions of paragraph 7 of this article were inherited from paragraph 2 of Art. 254 of the Labor Code of the RSFSR of 1971, then clause 7.1 was introduced later by Federal Law No. 231-FZ, aimed at fixing the obligation of certain categories of persons to provide, in the event that an employer (manager or authorized person) requests information about themselves, their spouses and minor children relating to the legitimacy of the sources of funds in the event of the acquisition of land, real estate, vehicles, securities, as well as other transactions, the amount of which exceeds the income of the spouses for the previous three years.
As a result, in accordance with paragraph 7.1 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, grounds for loss of trust may arise when an employee:
- being a party to a conflict of interest, did not take measures to prevent or resolve it;
- did not provide or provided incomplete or false information about himself, his spouse or minor children regarding income received, expenses incurred, existing property and obligations of a property nature;
- owns an account, keeps money or other valuables in foreign banks outside the territory of the Russian Federation;
- personally or his spouse or minor children use foreign financial instruments.
Accepted abbreviations:
Labor Code of the Russian Federation - Labor Code of the Russian Federation;
Federal Law No. 231-ФЗ - Federal Law of 03.12.2012 No. 231-ФЗ On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Adoption of the Federal Law “On Controlling the Correspondence of Expenses of Persons Holding Public Positions and Other Persons with Their Income” ;
Labor Code of the RSFSR - Labor Code of the Russian Soviet Federative Socialist Republic.
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U 86. Loss of trust under the legislation of the Russian Federation: scientific and practical guide Yu.V. Truntsevsky, A.M. Tsirin and others; resp. ed. I.I. Kucherov. - Infotropic Media, 2022. - 184 p. - ISBN 978-5-9998-0401-3. Agency CIP RSL. URL: https://izak.ru/edition/books/ (date of access: July 28, 2022).