Refusal to conclude employment agreement in Russia: how to make “No” an answer

Once the decision to turn the page and start my brand new self-employed career was taken, I did not hesitate to approach numerous companies in need of legal experts to offer my services. I combed through official job offers as published on numerous headhunting sites, spent some time analyzing the official sites and information on the employers — potential clients, the JD and offered salary package of the vacancies. After this short «due diligence» I finally elaborated individual commercial offers for each of them.  Further sent engagement letters stated my area of expertise, which perfectly fitted the open position, and my offer to sign a Services agreement, which, in my opinion, would better serve the needs of the client. Why was I so sure about the latter? Well, certain of the addressees were either freshly incorporated with little scope of work as of the date of the announcement, others looked for court representation which can be handled without the need to stay in the office from 9 a.m to 6 p.m. In each of the cases it seemed obvious that for most of the day the local Legal will have nothing to do but to stare in the monitor of the computer . To make my offer even more attractive – when the Labor Code of the Russian Federation sets very strictly the terms of employment like salary payment (twice per month), paid annual leave, social guarantees for employees, I not only made myself the exception from these, my terms stated first remuneration amount to be paid after closing first month of service. For each of the companies the amount of such was calculated to be less than the minimum salary suggested in the job offer published by the company.  Given the urgency, I supposed it was a perfect solution for any company  — it made possible the immediate legal support at a lesser price.

My intent seemed to be crystal clear – the companies are looking for lawyers when I am looking for clients, should not it be a perfect match.

Well, much I was wrong – one month of search left me with none of more than two hundred e-mails answered.

Sure, Russian companies are facing economic crisis and recent legal changes prohibiting out staffing agreements, so driven by the possible risks and my previous experience I further elaborated commercial proposals offering to enter employment agreements on the terms fully recognized by the Labour Code of the Russian Federation: a) distance work (home-office); b) flexible working hours; c) salary payment based on the scope of the job duties performed; d) combination of the terms enlisted.

I received four responses for another hundreds of e-mails. Long story short, we did not even get to the interview – it turned out, the HRs of the companies did not read my cover letters and somehow failed to understand the terms I suggested.

Another drastic experience is when a seemingly possible and beneficial cooperation is ruined due to the personality of the so-said HR expert or any other employee the potential client states to be the contact person. I spent more than three weeks trying to clarify the business needs and terms of cooperation as seen by the potential counterparty. In response to my questions I received very informal chat on the issues not even close to the ones I tried to make clear.

It would not be worth mentioning if not for the risks such personalities can drag the employer into.

As one might know the Labor Code of the Russian Federation entitles the potential candidates to seek written justification from the employer why the so awaited employment agreement was not sighed, and to further challenge it in court should the rejected person construe it as unlawful or discriminatory.

Brief overview of the Russian courts’ practice can provide you with perfect illustrations of different scenarios, how it can happen and what is the usual outcome. Both, automatic answers from the headhunting sites stating the candidate was declined and personal letters enlisting the particular requirements he or she failed to meet, are subject to court consideration. The usual claims are to recognize the refusal to conclude the employment contract discriminatory, to oblige the employer to sign the employment agreement, to recover monthly wages for the forced absence from work, to compensate emotional distress damages and court costs.

In most cases the court supports the employer, provided it proves its compliance with the provisions as follows.

Firstly, with parts 2 and 3 of Article 3 of the Labor Code of the Russian Federation which particularly states that no one can be constrained in his/her labor rights and freedoms or get any advantages irrespective of sex, race, color of skin, nationality, language, origins, property, social or position status, age, domicile, religious beliefs, political convictions, affiliation or non-affiliation with public associations as well as other factors not relevant to professional qualities of the employee. Establishment of distinctions, exceptions, preferences as well as limitation of employees’ rights which are determined by the requirements inherent in a specific kind of work as set by federal laws or caused by especial attention of the state to the persons requiring increased social and legal protection shall not be deemed discrimination.

Secondly, with Article 64 of the Labor Code of the Russian Federation, stating unjustified refusal to conclude a labor contract is be prohibited. All and any direct or indirect restrictions or granting direct or indirect advantages at concluding a labor contract depending on any factors not connected with professional qualities of employees shall not be permitted, except for the cases stipulated by the federal law.

Should you need the guidance as per which in particular qualities can be considered professional — it was given by the Plenum of the Supreme Court of the Russian Federation No 2 dated March 17, 2004, in its resolution “On implementation of the Labor Code of the Russian Federation by the Russian courts”. As per the provisions thereof such are the competence of the person to perform certain job duties according to his or her profession, specialization or qualification, as well as personal qualities (state of health, work experience).  The employer has the right to ascertain additional requirements should they be needed due to the position specifics (knowledge of foreign languages, for example). In order to confirm the presence of these particular requirements they should either comply with the professional standard for such qualification or specialization, or with the internal documents of the employer (local regulation on the position, or job description). When complying with the Russian Labor Code imperative to provide the candidate with written justification behind your decision I do recommend you to attach thereto an excerpt thereof to strengthen your position.

Basically, as an employer in Russia you can rely on provisions of the Constitution of the Russian Federation and of the Labor Code of the Russian Federation the employer has the right to make necessary decisions aimed to ensure its effective operation and asset management, at its own discretion and liability.  Thus signing employment contracts with candidates comprises the employer’s right, not its obligation. Part 1 of Article 22 of the Labor Code of the Russian Federation particularly states that the employer is entitled to conclude, amend and terminate labor contracts with employees in the manner and under the terms and conditions set by the Russian legislation.

Taking into consideration my personal experience I do believe that in each company special attention must be paid to communication with candidates. When delegating this task to amateurs you never know what the result may be. Lesser of the two evils, you lose a good candidate. Much worse – you receive unnecessary court proceedings with related expenses and loss of goodwill.

 



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