In the Resolution No. 45 of December 23, 2021, of the Russian Supreme Court Plenum (“Resolution”) the Russian Supreme Court clarified some issues of bringing to administrative liability under Articles 5.27, 5.27.1 of the Administrative Code of the Russian Federation (“Code”). The main conclusions of the Resolution are as follows:
A. Persons who may be held liable on behalf of the employer
- During the introduction of bankruptcy procedures against the employer company (external management or bankruptcy proceedings), an external / bankruptcy / financial manager may be held liable if he/she exercises the rights and obligations of the employer.
- The state registration of the termination of the activities of an individual entrepreneur does not prevent him/her from being brought to administrative liability within the limitation period for the committed administrative offenses.
- Employment termination with a company official (as it is defined by the Code) does not exclude the possibility of initiating proceedings against him/her on an administrative offense and bringing him/her to liability if: (a) the violation was committed during the performance of official duties; and (b) the statute of limitations for bringing to administrative liability, which is 1 year, has not expired.
B.Commission of an administrative offense by a person previously subjected to punishment for a similar offense
- Non-fulfillment (improper fulfillment) of the same obligation within the period during which a person is subjected to administrative punishment for committing the same administrative offense is recognized as a similar offense.
- When qualifying as a similar offense, it is important whether the period during which a person is considered to have been subjected to administrative punishment has expired as of the date of the commission of a new similar offense.
- When bringing to administrative liability, it is irrelevant whether similar offenses have been committed at the same place of work or in different companies.
C. Evasion from execution of an employment contract
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Evidence that can be used to confirm the existence of an employment relationship:
- Oral explanations and testimony
- Written evidence, e.g.: an identification badge to enter the employer’s premises; record of arrival and departure of employees; correspondence of the parties, including by e-mail; electronic documents systematically exchanged between the employee, the employer, other employees; documents confirming the exchange of tasks and the results of their control in the service programs used by the employer, etc.
- Physical evidence, e.g.: photo materials, audio and video recordings, equipment provided by the employer to the employee during remote work, etc.
- This offense is recognized as completed after 3 business days from the date of the employee’s actual employment authorization.
D. Liability for violation of salary payment terms
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1) The employer shall be deemed to have fulfilled its obligation to pay on the day of the transfer of the payment order to the bank for the transfer of the amounts due to the employee, provided that the necessary funds amount is available on the employer’s current account. The date of the actual transfer of funds to the employee’s current account is irrelevant to the qualification of committed actions (inaction).
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Liability also occurs in case of non-payment of salary to the employee with whom an employment contract was not signed, but he/she started the employment in fact.
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The limitation period for bringing to administrative liability for this offense begins to run from the day following the day when the corresponding obligation must have been fulfilled.
E.Сontinuousand non-continuous offenses
The qualification of an offense as “continuous” or “non-continuous” is required for correct calculation of the limitation period for bringing to liability and the general rules for the appointment of administrative punishment (Articles 4.1, 4.5 of the Code). In the Resolution, the Russian Supreme Court clarifies:
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1) Continuous offenses, i.e. those offenses that are expressed in long-term continuous non-fulfillment or improper fulfillment of the statutory obligations:
- Admission of an employee to perform his/her work duties without passing the necessary training, knowledge testing, as well as mandatory examinations or if there are medical contraindications (clause 3 of Article 5.27.1 of the Code)
- Failure to provide employees with personal protective equipment (clause 4 of Article 5.27.1 of the Code)
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Non-continuous offenses:
- Work authorization by a person not authorized by the employer, if the employer or its authorized representative refuses to recognize these relations as employment relations (clause 3 of Article 5.27 of the Code)
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Evasion from the execution or improper execution of an employment contract or the conclusion of a civil contract that covers employment relations (clause 4 of Article 5.27 of the Code)
- Late payment of salary, other payments within the framework of employment relations (clause 6 of Article 5.27 of the Code)
- Violation of the procedure for conducting a special assessment of working conditions in the workplace or its non-performance (clause 2 of Article 5.27.1 of the Code)
Thus, the Resolution establishes the rules on issues of bringing to administrative liability for violations of labor laws that courts should be guided by when considering cases. These rules are useful for employers and employees as well.