Translated material
If you did not take off 505 days of vacation ...
On November 23, 2017, lawyers of the joint project of the Memorial human rights center and European Human Rights Advocacy Center (Ehrac) appealed to the European Court of Human Rights (ECHR) in the interests of the famous physicist of the Russian Academy of Sciences Mikhail Danilov. For about 40 years he worked at the Institute of Theoretical and Experimental Physics (ITEF). In the 1990s, Mikhail Vladimirovich did a lot in order to save the ITEF from the collapse, from 1991 to 1997 he was the deputy director, and from 1997 to 2001-the director of the institute.
Since 1997, Danilov did not use the days of vacation laid down by the law. On October 29, 2015, Mikhail Vladimirovich received a notification of the upcoming dismissal from the ITEF in connection with the staff reduction; The notification said: "There are currently no vacancies corresponding to your qualifications."
In November 2015, the Department of Physical Sciences of the Russian Academy of Sciences and the Council for Science under the Ministry of Education and Science of the Russian Federation also made statements in support of Danilov. “The logic of ITEF leaders who dismiss the most active scientist who created an international reputation to the institution and, among other things, providing a significant contribution to the number of high -rated scientific publications of the ITEF,” the council of the Council emphasized [2].
After the reduction in 2015, the scientist tried through the court to achieve compensation for unused vacation, because over 16 years (1997–2013) he accumulated 505 indented days! On March 11, 2016, Danilov appealed to the Zyuzinsky court of Moscow demanding to recover one and a half million rubles from the ITEF, but on June 9 was refused. The court referred to Art. 9 of the Convention No. 132 of the International Labor Organization (ILO), according to which the unused part of the vacation should be used no later than a year and a half after the end of the year, into which this vacation was not taken. Danilova’s interests were represented by a lawyer of the Memorial human rights center Galina Tarasova (see her comment below).
Mikhail Danilov appealed the decision in the Moscow City Court, indicating that Russian legislation does not establish temporary restrictions for the requirements for compensation for unsuccessful leave, and in accordance with the Charter of the ILO (Article 19, paragraph 8), if national norms provide a citizen with more favorable conditions than the ILO convention, national legislation should apply.
On January 16, 2017, the Moscow City Court rejected Danilov's appeal. On March 6, the scientist filed a cassation for the Presidium of the Moscow City Court and was refused on the same grounds. Appeal to the Supreme Court of Russia also did not bring a positive result.
However, the scientist does not intend to give up. He filed a complaint with the ECHR under Articles 6 (the right to a fair trial) and under Article 1 of Protocol 1 (Protection Protection) of the Convention on the Protection of Human Rights and Fundamental Freedoms.
“In Russia, at the moment there has been an amazing practice to recover compensation for unused vacations ,” said Marina Agaltsova, lawyer of the Memorial PC, the leading Danilova case in the ECHR. - In some regions, the courts recover over all the years, and in some (for example, in Moscow) - only in a year and a half. At the same time, refusing to recover compensation, the courts refer to Article 9 of the ILO Convention No. 132. This Convention entered into force for Russia since 2011. Until 2013, all Russian courts recovered compensation for all unsuccessful vacations ” [3].
M. AGALTSOVA draws attention to the fact that a person who has worked for decades at one enterprise who has accumulated an unsuccessful vacation in his entire long career, after 2013, lost not only him, but also compensation. At the same time, the Russian authorities, after the signing of the Convention, assured that it would not affect unsuccessful holidays [4].
The lawyer of the human rights center is perplexed why judicial practice began to develop in line with the openly incorrect application of international law. Indeed, as a result of such law enforcement, employers win, and workers suffer. It is interesting that for the first time the provision on the possibility of obtaining compensation for all unsuccessful vacations appeared in our country in 1930. It is noted that the Stalinist rules on the next and additional vacations were more favorable than the judicial practice prevailing after 2013.
It is upset that the decisions in the case of the ECHR can be expected for years. Within three months, they send the plaintiffs the answer whether the complaint was recognized unacceptable or is put in line for adoption. In this line you can stand for several years.
Comment by Galina Tarasova, lawyer of the Hot Pots program of the Human Rights Center "Memorial":
Until 2013, the plaintiffs in labor affairs did not have any special problems with the recovery of unscrupulous employers of compensation for all unused leave without restriction of any period. A man who did not go on vacation for 10-15 years quit or used vacation only in parts - for all the unused leaves he was supposed to compensate. If the employer did not pay this compensation, the employee filed a court within three months after the dismissal (the total limitation of the Labor Code of the Russian Federation) and received compensation by decision of the court.
Back in 2012, during the validity of and the Convention on paid leave, and the Charter of the ILO, the Moscow City Court reviewed the decisions of lower vessels trying to apply, for example, a three-year limitation period from the Civil Code of the Russian Federation to refuse to recover compensation for unused leave (appeal ruling of the Moscow City Court of November 22, 2012 in case No. 11-8853/12). The higher court pointed out the courts that there were no additional restrictive terms, including the limitation periods, to recover compensation for unused leave.
And since 2013, in the decisions of the district courts of Moscow and the appeal rulings of the Moscow City Court, the same type of paragraph containing a mathematical calculation began to appear: “By virtue of the norms of paragraph 1 of Article 9 of the Convention No. 132, the continuous part of the annual paid vacation, consisting of two continuous working weeks, is provided and used no later than one year, and the remainder of the annual paid vacation vacation No later than within 18 months, counting from the end of the year for which vacation is granted. From this it follows that the employee should rest for at least two weeks in a row, and use the remaining vacation days within 18 months after the end of the year for which they are accrued. Thus, the employee’s limit for the requirements for compensation for unused leave in accordance with clause 2 of Art. 9 of the Convention on paid leave, is calculated equal to 21 months. After the end of the year for which vacation is granted (18 months + 3 months). ”
Thus, the courts “invented” the new limitation period, limiting the possibility of recovering compensation for unused leave. They put the period specified in the Convention prescribed for the provision of vacations with the total limitation period established by the Labor Code of the Russian Federation. Further, the Moscow courts began to make such decisions massively. A similar judicial practice has spread in many other subjects of Russia.
If you carefully read the text of paragraph 1 of Article 9 of the Convention, then you can notice that there is no indication of restriction of any period of payment of compensation for unused leave.
At the same time, in certain regions of Russia (for example, in the Sverdlovsk and Samara regions), quite reasonable court decisions continue to make such claims. The courts indicate that Article 9 of the Convention on paid leave to the issue of compensation for unused leave is not applied, since it is not at all about their compensation in it; And according to the Labor Code of the Russian Federation, a citizen has the right to receive monetary compensation for all dispensed during the period of vacation. (Full text of the comment, see [5].)
Based on the materials of the Human Rights Center "Memorial"
1. Www.gpad.ac.ru/info/proposals/decision_danilov.pdf
2. Sovet-po-nauke.ru/info/04112015-declaration
4. Rg.ru/2010/07/07/rabota.html
5. Memohrc.org/news/rospravosudie-zloupotreblenie-mezhdunarodnym-pravom