INDIVIDUAL LABOR DISPUTE AS A TYPE OF SELF-PROTECTION OF AN EMPLOYEE IN LABOR RELATIONS

Abstract

The article focuses on the fact that the Labor Code of Ukraine still: 1) lacks the definition of labor relations and their inherent characteristics; 2) only a certain procedure for consideration of an individual labor dispute, but does not explain what it is – an individual labor dispute; 3) it is not clear what is meant by self-protection in labor relations; 4) there is no mediation procedure in labor disputes. The terms of consideration of individual labor disputes (relevant at the moment and offered by the legislator) are considered. Both the causes of individual labor disputes and examples of common violations of workers' rights (in terms of working conditions and their remuneration) by the employer are given. Based on the analysis of court practice for the last 3 years, typical (generalized) cases of individual labor disputes are given. The following conclusions are made: 1) self-protection in labor relations, in our understanding, is the refusal to perform work not stipulated by the employment contract (Article 31 of the Labor Code of Ukraine), as well as the refusal to work, which is dangerous to life and health of the employee (Part 5 of Article 153 of the Labor Code of Ukraine); or negotiating with the employer (either independently or with the help of a specially trained specialist with the appropriate techniques for organizing and conducting negotiations) on the violated right with a demand to eliminate the violation; or seeking help from the Labor Dispute Commission or a court; 2) "self-defense against termination" is a situation where the employer wants to, but cannot, fire the employee (because he has not received full compensation for the damage caused), and the employee does not want to terminate his employment relationship with the employer because he is not sure that he will be able to find another job; 3) until mediation is regulated at the legislative level, it is advisable for the employer to independently anticipate at the local level (for example, in the collective agreement), in the employment contracts with employees; 4) in case of adoption of the Draft Law No. 5054, labor relations can be considered relations between the employee and the employer, providing for execution on behalf, under the guidance and control of the employer personally by the employee for remuneration of work determined by the employer; 5) in case of adoption of the Draft Law № 5555 an individual labor dispute will be considered as a disagreement between the employee and the employer, arising after the conclusion of the employment contract, before its conclusion or after its termination; 6) currently, court decisions in minor cases (which include cases on labor disputes) and in cases with a claim price not exceeding 250 minimum subsistence level for able-bodied persons are not subject to cassation appeal (hence, the losing party to the case, loses the sense to review the judgment of the court of first and appellate instance cassation court, which in turn violates the human right to a full judicial protection).