Employee bonuses stimulates his work. The employee gets used to high, fixed earnings and stops striving to achieve better work results. Therefore, in many companies bonuses for employees widely practiced.

For this purpose, there is a bonus part, which is paid to the employee only after the employer has positively assessed his work. However, non-payment of a bonus to an employee will be legal if a number of conditions are met:

Firstly, in the employment contract, the bonus clause should not be formulated as a guaranteed payment to the employee, which does not depend on any indicators.
Secondly, the bonus regulations must include detailed list cases when the bonus is not paid to the employee.

Judicial practice follows the path that if an employer acts in full compliance with its local act regulating bonus payments to employees, then the employee will not be able to win the dispute in court.

Thirdly, the local regulatory act regulating bonuses for employees should not contradict labor legislation. Often complaints from the courts are caused by provisions that allow not to pay a bonus to an employee if he has an outstanding penalty.

In judicial practice, there are examples where the refusal to pay a bonus due to the employee having an outstanding penalty was declared illegal by the court. At the same time, deprivation of a bonus during the billing period when the employee was subject to disciplinary action was recognized by the courts as lawful.

An employee's bonus in an employment contract should not be guaranteed.

There are two options for fixing the conditions for paying a bonus to an employee:
1. in the employment contract;
2. in the bonus regulations.
If the condition for paying a bonus to an employee is specified in the employment contract, it is more profitable for the employer not to indicate the specific amount of the bonus. This is due to the fact that Art. 57 of the Labor Code of the Russian Federation, the terms of remuneration are specified in the employment contract. If the contract specifies a specific amount of the premium, then this condition can be changed either in accordance with Art. 74 of the Labor Code of the Russian Federation, or only by agreement of the parties (Article 72 of the Labor Code of the Russian Federation). Therefore, if the employer decides that the employee did not earn a full bonus in a particular month and wants to reduce its size, this may lead to a dispute. Moreover, if the employment contract states the bonus as a fixed part wages, then the employer will lose the legal dispute...

A similar condition on bonuses in the employment contract improves the position of the employee and by virtue of Art. 8 Labor Code of the Russian Federation. Therefore, the employer in the employment contract should avoid language that can be interpreted as the employer’s obligation to regularly pay bonuses to the employee, regardless of any indicators. It is best to confine ourselves to indicating only the possibility of the employee receiving a bonus, and always subject to the achievement of those indicators that are specified in the bonus regulations.

Details of employee bonuses prescribed in the local act

It is preferable for the employer to specify the conditions and amount of the bonus in local act. Such conditions may be contained both in the provisions on remuneration and in the provisions on bonuses. The success of the employer in the event of a legal dispute with the employee depends on how correctly such a document is drawn up.

Of particular importance in such documents are:
Firstly, bonus indicators.
It is important to stipulate in the local act for which the employee can be paid a bonus. The clearer and more transparent the bonus criteria are defined, the less risk that conflicts will arise with employees. A bonus can be paid, for example, for fulfilling a production plan set for an employee. Note that if the employer sets the achievement of a certain value as a criterion for bonuses, then accordingly this value must initially be brought to the attention of the employee under signature. For a worker, such a criterion may be the number of parts produced per month without defects. For office employee a bonus can be paid for fulfilling a sales plan, attracting new clients, etc. For employees of the accounting department, legal department and human resources department, a bonus can be paid for timely submission of the necessary reports, correct design documents, successful resolution of disputes, compliance with cash and contractual discipline. Often bonuses are paid according to some subjective criteria that are evaluative in nature. For example, for successful and good faith performance their duties, for personal contribution to the overall results of work, etc. If the criteria for bonuses are formulated in this way, then in the event of a dispute it will be necessary to prove that the employee worked in bad faith and his contribution to the common cause was insignificant. Therefore, the employer’s task is to formulate them as objectively as possible. Then there will be fewer disputes with employees.

Secondly, the size of the bonus.
In the bonus regulations, it makes sense to indicate the maximum bonus amounts that can be paid to employees. Because the different categories workers can receive different amounts, then the document should show this differentiation. Note maximum sizes bonuses will save the employer from disputes with employees.

Regular bonus payments

As a rule, in the courts, employers try to prove that bonus payments are not mandatory and are not part of the remuneration system. Indeed, if a bonus is not provided for in the wage system, then the possibility of paying it remains entirely at the discretion of the employer. This is possible in relation to one-time bonuses, which are paid based on the employer’s decision. For example, a bonus in connection with an employee’s anniversary. But if the bonus is provided for by a local act of the company and is paid on a regular basis, then it is automatically included in the remuneration system and is integral part wages (Articles 129, 135 of the Labor Code of the Russian Federation). In this case, the employer may not pay it to the employee only on the grounds specified in the local act.

The procedure for paying bonuses to employees

The bonus regulations should also specify how bonuses are awarded to employees. As a rule, the head of a structural unit determines the size of the bonus for his subordinates and writes a memo or other document indicating the list of employees who are entitled to the bonus and its final amount. The specified amount must be agreed upon financial department. After this, the data is sent to the head of the company, who makes the final decision on paying bonuses to employees. The bonus itself is paid based on the order of the employer.

Grounds for non-payment of bonus to an employee.

The bonus regulations must specify cases in which a bonus is not paid to the employee. If there are no such conditions, then this may become a reason for the employee to challenge the non-payment of his bonus.

Traditionally, the basis for non-payment of bonuses is failure to fulfill the production plan, violation job description, the presence of production omissions, failure to comply with management decrees on time, non-compliance with labor discipline, etc. It would also be useful to indicate the criteria for reducing the bonus depending on the misconduct committed and the grounds for deprivation of the bonus. It is unlikely that completely depriving an employee of a bonus for a minor omission in work will be considered lawful. Therefore, you can specify by what percentage the premium is reduced depending on the violations committed. Please note that the employer will have the right to reduce the bonus or not pay it at all only for the reasons specified in the local act. If some arbitrary basis is chosen, then most likely the employee will be able to challenge the company’s actions in court.

Payment of bonuses depending on the availability of the necessary funds in the organization

Of no small importance is the indication in the regulations on remuneration (on bonuses) that the bonus is paid to the employee if the company has economic opportunities. If there is no such condition, then employees will be able to claim these payments from the employer even if the company is experiencing serious economic difficulties.

Payment of a bonus to a dismissed employee

The local act should regulate the issue of how a bonus will be paid to an employee who quit but who has a right to it. If the employee has fulfilled the conditions for the bonus, then the employer has no right not to pay him the bonus, even though he quit. By virtue of Part 2 of Art. 132 of the Labor Code of the Russian Federation prohibits any kind of discrimination in the payment of wages. Since the bonus is also part of the salary, the employer has no right not to pay the employee the bonus he has earned. Because then he will be in an unequal position with the employee who continues to work in the company.

Thus, bonuses must also be paid to dismissed employees. But at the same time, the employer does not have to pay it in full if the employee worked only half of the pay period. In such a situation, the bonus should be calculated to the employee in proportion to the time worked.

At the same time, it is worth noting that the provisions on wages and bonuses often stipulate that bonuses to dismissed employees are paid in proportion only if they left the company for good reasons (moving, conscription into the army, retirement, etc.) .d.). In other cases, this issue remains at the discretion of the employer.

Failure to pay an employee a bonus for non-compliance with labor discipline

If the bonus regulations indicate the reasons why the employee may not be paid bonuses, then in such a situation the employer has the right to reduce or not pay the bonus to the employee. Employees often evaluate the employer’s actions in non-payment of bonuses as the application of some kind of penalty, which, in their opinion, contradicts the Labor Code of the Russian Federation. But actually it is not. If deprivation of a bonus is not named in the company’s internal documents as a disciplinary sanction, then it cannot be said that the company unreasonably deprived the employee of these payments.

Often the possibility of depriving an employee of a bonus is associated with the presence of a disciplinary sanction. Let us note that the employer, indeed, has the right to provide that an employee committing an offense for which he is subject to disciplinary liability is also grounds for depriving him of his bonus. In addition, he can simply deprive the employee of a bonus for those omissions in work that formally constitute the basis for issuing a reprimand or reprimand (if there are appropriate conditions in the bonus regulations). In this situation, the choice of a specific course of action is the absolute right of the employer. At the same time, non-payment of a bonus for committing a disciplinary offense is completely justified, and is also accepted loyally by the courts, since it is obvious that if an employee violates labor discipline, performs his duties poorly, then there is no reason to pay him a bonus. Especially if it is fully documented. Let us note that depriving an employee of a bonus and bringing him to disciplinary liability is not double punishment for committing one disciplinary offense. Failure to award a bonus is not a type of disciplinary sanction; it is simply a statement that the employee did not fulfill the terms of the bonus in a particular month. Therefore, the employer has the right to provide in the bonus regulations the appropriate grounds for non-payment of the bonus to the employee. The courts share a similar point of view.

For how long does a disciplinary sanction give the employer the right to deprive an employee of a bonus? By general rule the employee is deprived of bonus payments in the period in which he was reprimanded or reprimanded. But theoretically, taking into account the severity of the offense, the employer may decide not to pay the bonus in subsequent periods. In particular, some employers stipulate a condition in the local act that the bonus, in principle, is not paid if the employee has an outstanding disciplinary sanction. It seems that the presence of such formulations is not entirely legitimate. After all, a bonus should not be a punishment for the employee committing any offense, but an incentive for impeccable work during the pay period. The presence of a penalty indicates that during the billing period the employee worked far from brilliantly. But it is not entirely clear why the employer does not pay the employee a bonus, for example, next month, if he did not commit any offenses during this period. Let us note that such situations have already become the subject of legal proceedings and the courts have sided with the employee.

Collection of bonus payments in court

The employee must file a claim for recovery of accrued but unpaid bonuses within 3 months.
If the employee missed the deadline to go to court. Often employees believe that they will go to court after leaving the company and will be able to recover all bonuses that were not paid to them during their work. This is wrong. You can file a claim for recovery of the bonus before the expiration of three months from the moment when, according to the company’s rules, it should have been paid. But there is an exception to this rule. If we are talking about an accrued but not paid bonus, then the employee can go to court at any time while working in the company, and after dismissal - within 3 months (clause 56 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2.)

It is often not always clear what is meant by an accrued but not paid premium. There must be documented evidence that a decision was made to pay the employee a bonus, but for some reason it was not implemented. If the employer, in principle, decides not to pay the employee a bonus, then in this case there is a dispute about the amounts due to the employee and a general 3-month period for going to court applies

Every employee has the right to complain about his employer in labor inspection, if the latter violates labor rights. Such violations include:

• Non-payment of wages
• Violation of the vacation schedule by the employer;
• Failure to pay compensation benefits;
• Violation of the work schedule of your employees, as well as their rest schedule;
• Other violations that are related to labor activity employee

Failure to pay a bonus is considered a violation only if the obligation to pay it is specified in the employment contract. In other cases, the bonus is paid to one or another employee at the discretion of the employer.
However, if an employee believes that he was undeservedly not paid a bonus, he has the right to write a complaint to the labor inspectorate at the place of registration of the employer.

The law does not establish a fixed form of complaint, but it must meet the requirements for registration business correspondence, as well as paragraph 1 of Art. 11 of the Law of May 2, 2006 No. 59-FZ “On the procedure for considering appeals from citizens of the Russian Federation.”
A written application to the labor inspectorate must contain the following information:

• Full name territorial body Federal Labor Inspectorate. A complaint against employers registered in Moscow and the region is filed with the State Labor Inspectorate of Moscow
• Information about the applicant - his full name, address of residence, place of work, as well as the position he holds;
• "Body" of the complaint. Here it is necessary to state the essence of the problem in concise language. The use of jargon and profanity is not permitted. The following must be specified in detail:
  • start date labor relations
  • Position and full name of the manager not only on behalf of the employer, but also on behalf of the structural unit
  • Date of violation of labor rights
  • The essence of the violation. Here you need to indicate why the employer was obliged to pay the bonus to the applicant, under what circumstances it was paid to other employees (if such a fact occurred), the reasons for refusing to pay the bonus
  • Applicant's requirements. As a rule, this is to conduct an inspection and restore the violated rights. In this case, pay the premium
  • The employee has the right to demand that the inspectorate maintain confidentiality of the complaint
  • The method in which the applicant asks for a response message to be sent to him. It could be mailing address or electronic. Inspectors do not give answers by phone
  • List of documents that the employee attaches to support his words
  • Date and signature

If the obligation to pay a bonus is specified in the employment contract, and the employer did not pay it, he had to somehow motivate his refusal. An employer could deprive an employee of a bonus for disciplinary action. For example, for being drunk at work, an employee will lose a quarterly bonus.
Such a “punishment” must be formalized by an order from the employer, which the employee must also sign on. In addition, the fact of violation of labor discipline by an employee must also be documented.

It is these documents that labor inspectors will check. Inspectors are given 30 days to consider the complaint. During this period they must make a decision on the complaint. Typically this implementation unscheduled inspection at the employer.
If violations are found during the inspection, the inspector will issue an order to eliminate them. If the refusal to pay the bonus is illegal, the employer will be held administratively liable by the inspector.

Non-payment of bonus (Ovsyannikova E.)

Date of article posting: 08/25/2012

Article 129 Labor Code The Russian Federation includes incentive payments (additional payments and bonuses of an incentive nature, bonuses and other incentive payments) as part of wages, which, in accordance with labor legislation, are mandatory for payment.
Articles 22, 191 of the Labor Code of the Russian Federation establish that the employer has the right to encourage employees.
Payment of bonuses - a right or an obligation?

The Ministry of Finance of the Russian Federation, by Letter dated February 21, 2011 N 03-03-06/4/12, distinguishes for tax purposes two types of incentive payments to employees - directly related to the performance of job duties and tasks and not related to the performance of job duties. Incentive payments (additional payments and allowances of an incentive nature, bonuses and other incentive payments) are elements of the remuneration system in the organization and are taken into account as expenses for profit tax purposes, since they are related to the production results of employees.
Expenses in the form of payments in connection with professional holidays, significant dates, personal anniversaries and other similar payments do not relate to incentive payments; therefore, the corresponding payments cannot be taken into account as part of the employer’s labor costs.
The same opinion was expressed in its Resolution of the Federal Antimonopoly Service of the Central District dated May 22, 2009 N A68-7207/07-277/13.
The Moscow City Court, by its ruling dated November 18, 2010, in case No. 33-35837, expressed the following opinion. The awards specified in Art. 129 of the Labor Code of the Russian Federation, are included in the remuneration of workers; their payment does not depend on the discretion of the employer and is the responsibility of the latter. At the same time, Art. 191 of the Labor Code of the Russian Federation, in addition to bonuses included in wages, other incentives for work are established that are not included in the remuneration of workers, and their payment depends on the discretion of the employer.
The remuneration system includes, among other things, bonus systems and is established by collective agreements, agreements, and local regulations. Establishing a bonus system is the prerogative of the employer (Article 135 of the Labor Code of the Russian Federation).

Arbitrage practice. N., A. filed a lawsuit against OJSC "Moskovsky jewelry Factory" regarding the collection of unpaid premiums.
By the decision of the Simonovsky District Court of Moscow dated May 31, 2010 in case No. 33-28059, the claims made by N. and A. against OJSC Moscow Jewelry Factory were denied.
Refusing to satisfy the claims, the court came to the conclusion that there were no grounds for collecting premiums in favor of the plaintiffs, since during the trial it was established that general director no decisions were made on the payment of bonuses to the plaintiffs and this bonus is not an integral part of the remuneration system of this employer, since there are no local regulations, establishing the procedure and amount of bonuses paid to employees.
By the ruling of the Moscow City Court dated September 23, 2010, the decision of the Simonovsky District Court of Moscow dated May 31, 2010 was left unchanged.

Thus, if the bonus is included in the salary, is established by the employer’s local regulations, agreement or collective agreement, is directly related to the performance of job duties, then the payment of such a bonus does not depend on the discretion of the employer and is mandatory.
One-time bonuses that are not included in the remuneration system are not established by local regulations, agreements, collective agreements, are paid at the discretion of the employer and are not a mandatory payment.
Employer approval of bonus regulations has become common practice. The employer has the right to adopt local regulations and introduce conditions into such acts that do not contradict current labor legislation.
Employees who have fulfilled the conditions for bonuses, but have committed a disciplinary offense, as a rule, are not awarded a bonus or are paid a smaller bonus.

Arbitrage practice. P.D.H. filed a lawsuit against LLC NPK "Optolink" for recovery Money, including bonuses.
By the decision of the Zelenogradsky District Court of Moscow dated October 25, 2011 in case No. 33-42078 P.D.Kh. the claim was denied.
The case materials establish that by order of July 6, 2011 N<...>“On the application of disciplinary sanctions”, the plaintiff was brought to disciplinary liability due to her absence from the workplace during the working day on June 27, 2011.
The local regulatory act of the employer - the Regulations on bonus payments to employees of the company LLC NPK "Optolink" - with which the plaintiff was familiarized with signature, stipulates that the basis for reducing the size of the bonus is the employee's failure to comply with labor discipline.
Since the plaintiff committed a violation of labor discipline and was subject to disciplinary action, her bonus was reduced.
The Moscow City Court, by its ruling dated December 16, 2011, left the decision of the Zelenogradsky District Court of Moscow dated October 25, 2011 unchanged, indicating that the employer used its right to reduce the amount of the incentive payment to an employee who committed a violation of labor discipline, which does not contradict the meaning of this payment in accordance with the Regulations on bonus payments to employees of the company LLC NPK "Optolink" and the provisions of the Labor Code of the Russian Federation.

If a local regulatory act contains a condition that an employee who has committed a disciplinary offense is not paid a bonus or is paid a smaller amount, it must be remembered that when depriving/reducing the amount of a bonus on this basis, it is necessary to strictly follow the procedure for applying disciplinary sanctions established by Art. Art. 192, 193 of the Labor Code of the Russian Federation.

Arbitrage practice. T. filed a lawsuit against Moscow Plant Kristall OJSC for the cancellation of the disciplinary sanction in the form of a reprimand applied to her by order of Moscow Kristall Plant OJSC dated October 2, 2009 N 792-l, and the recovery of unpaid the presence of this disciplinary sanction, bonuses for key indicators economic activity. By the decision of the Lefortovo District Court of Moscow dated August 16, 2010 in case No. 33-32069, the claims for the cancellation of the disciplinary sanction and the recovery of the unpaid bonus were satisfied.
The case materials established that by order of 02.10.2009 N 792-l, a disciplinary sanction was applied to T. in the form of a reprimand for absence from work on 09.16.2009, in connection with which this order also decided not to pay the plaintiff a bonus for the main results of the business activities for September 2009
Having assessed the evidence collected in the case, the court found that the application of a disciplinary sanction to the plaintiff was unfounded, since the defendant did not take into account the valid reasons for the plaintiff’s absence from the workplace.
By the ruling of the Moscow City Court dated October 12, 2010, the decision of the Lefortovo District Court of Moscow dated August 16, 2010 in case No. 33-32069 was left unchanged.

In connection with the above, I believe it would be appropriate to include in the local regulations a clause stating that employees who have received a disciplinary sanction for the reporting period will not be paid a bonus.
The employer's local regulations stipulate that bonuses are not paid to employees undergoing testing.

Arbitrage practice. Sh. filed a lawsuit against PARI Synegeria in Medicine LLC, including for the payment of a bonus. By the decision of the Ostankino District Court of Moscow dated June 1, 2011 in case No. 33-39826, as amended by the Determination of the Ostankino District Court of Moscow dated September 16, 2011, the claim for payment of Sh.’s bonus was denied.
The court found that, according to the employer’s local regulations, all employees of the enterprise who are on staff for the full reporting quarter after passing the probationary period have the right to receive a bonus. The court came to the conclusion that the plaintiff was not among the employees entitled to receive a bonus, since after the expiration of the test period she did not work the full reporting quarter.
By the ruling of the Moscow City Court dated December 6, 2011. The decision of the Ostankino District Court of Moscow dated June 1, 2011 in case No. 33-39826, as amended by the Determination of the Ostankino District Court of Moscow dated September 16, 2011, was left unchanged.

Arbitrage practice. S. filed a lawsuit against Vostok-Zapad-Stolitsa LLC, including for payment of the bonus.
By the decision of the Savyolovsky District Court of Moscow dated June 16, 2010 in case No. 33-35033, the claim was rejected.
The court found that, by virtue of the Regulations on bonuses for employees of the sales department (hereinafter referred to as the Regulations), while an employee is undergoing a probationary period, bonuses are not awarded or paid to such employee.
The court concluded that since the plaintiff was hired on a probationary basis, during the period of probation in accordance with the Regulations, the plaintiff should not have been awarded or paid a bonus.
By the ruling of the Moscow City Court dated November 18, 2010, the decision of the Savyolovsky District Court of Moscow dated June 16, 2010 was left unchanged.

I believe that the establishment in a local regulatory act of the condition that a bonus is not paid to an employee who passes the test may be recognized by the court as discriminatory and in accordance with Art. 8 of the Labor Code of the Russian Federation is not subject to application.
Article 37 of the Constitution of the Russian Federation establishes that everyone has the right to work in conditions that meet safety and hygiene requirements, to remuneration for work without any discrimination.
Article 23 of the Universal Declaration of Human Rights states that everyone, without any discrimination, has the right to equal pay for equal work.
The Labor Code of the Russian Federation does not formulate the concept of discrimination in the sphere of labor, but defines it through the category of “restriction of rights.”
In this case, the court may come to the conclusion that failure to pay a bonus to an employee undergoing probation may be precisely a “restriction of rights,” since Art. 70 of the Labor Code of the Russian Federation establishes that during the probation period the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations, and Art. 132 of the Labor Code of the Russian Federation prohibits any kind of discrimination when establishing and changing wage conditions. Also, labor legislation does not provide that the payment of a bonus, which is part of the salary, during the period the employee undergoes testing has any specifics.
The employer’s local regulations stipulate that no bonus will be paid in the event of an employee’s dismissal.
The position on this issue is reflected in the response of the state labor inspector in Moscow Olga Yuryevna Eroshenkova: “The conditions for receiving a bonus, including upon dismissal of an employee, can be reflected in the employee’s employment contract, local regulations, or collective agreement” (http:// git77.rostrud.ru/questioner/xPages/page.5.html).

Arbitrage practice. B. filed a lawsuit against Atak LLC, including for the recovery of the premium.
By the decision of the Istra City Court of the Moscow Region dated September 8, 2010 in case No. 33-21939, B.’s claims were denied.
The court found that, in accordance with the Regulations on bonuses for employees of Atak LLC, the bonus is paid to employees on the staff of Atak LLC at the time the bonus order was issued.
At the time of the issuance of the bonus order, B. was not on the staff of Atak LLC, and therefore her claims were denied.
By the ruling of the Moscow Regional Court dated November 18, 2010, the decision of the Istrinsky City Court dated September 8, 2010 regarding the refusal to satisfy the claims for the recovery of the premium was left unchanged.

FULL NAME. 10 filed a lawsuit against ZAO Ostrov, including for the recovery of a bonus based on the results of work for 2010 in the amount of 41,250 rubles.
By the decision of the Mytishchi City Court of the Moscow Region dated September 20, 2011 in case No. 33-28296, the claims of F.I.O. 10 were left unsatisfied.
The court found that, in accordance with the Regulations on remuneration and bonuses for employees of ZAO Ostrov, bonuses are awarded to employees of the organization who work under employment contracts and are on the payroll of the organization as of December 31 of the year for which the bonus is paid.
The demands for the recovery of bonuses from the defendant based on the results of work for 2010 cannot be satisfied, since the plaintiff was not on the payroll as of December 31, 2010 due to her dismissal on December 26, 2010.
By the ruling of the Moscow Regional Court dated December 20, 2011, the decision of the Mytishchi City Court of the Moscow Region dated September 20, 2011 was left unchanged.

L. filed a lawsuit against the Ministry regional development RF, including the payment of bonuses at the end of the year.
The Tverskoy District Court of Moscow dated September 28, 2011 in case No. 33-5385 denied L.’s claims.
The court established, by Order of the Ministry of Regional Development of Russia dated December 10, 2007 N 114 “On payment and material incentives for labor (monetary support) of employees of the central office of the Ministry of Regional Development of the Russian Federation”, it was established that employees dismissed at the time of the decision to pay a bonus are not given a bonus and not paid.
The court came to the conclusion that the plaintiff’s demands for the recovery of bonuses based on work results cannot be satisfied.
By the ruling of the Moscow City Court dated February 20, 2012, the decision of the Tverskoy District Court of Moscow dated September 28, 2011 was left unchanged.

I believe that if the employee fulfills the conditions established by the local regulatory act on bonuses, when the employee is dismissed before the bonus is paid, the bonus should be paid to him, since in the practice of regulating labor relations, a question may arise regarding the obligation to pay bonuses to an employee whose employment contract has been terminated.
The condition of the employer’s local regulatory act that a bonus is not paid to an employee in the event of his dismissal should not prevent the employee from receiving a bonus, since the employee’s contribution to the employer’s activities until the moment of dismissal cannot be denied.

Arbitrage practice. Thus, the plaintiff Kh. filed a lawsuit against the defendant OJSC Vympel-Communications, including the recovery of the bonus for November 2010 in the amount of 68,338 rubles. 90 kopecks
By the decision of the Savyolovsky Court of Moscow dated April 1, 2011, in case No. 33-24582, a premium in the amount of 27,769 rubles was recovered from the defendant in favor of plaintiff Kh. 19 kopecks
The court concluded that the bonus rules established by the defendant cannot violate the labor rights of employees who contributed to the final results of the defendant’s work aimed at achieving strategic goals and developing the company’s business, including fulfilling and exceeding revenue and sales plans.
In resolving the dispute, the court also came to the conclusion that a bonus for November 2010 should be collected from the defendant in favor of the plaintiff in an amount proportional to the time worked.
By the ruling of the Moscow City Court dated August 8, 2011, the decision of the Savyolovsky Court of Moscow dated April 1, 2011 was left unchanged.

One of the mandatory conditions for inclusion in an employment contract is the condition of remuneration, and the employee’s salary is established employment contract in accordance with the current remuneration systems of this employer (Articles 57, 135 of the Labor Code of the Russian Federation).

Arbitrage practice. Thus, by Decision of the Presnensky District Court of Moscow dated May 24, 2010 N 33-28025 in satisfaction of Ts.’s claim against OJSC “Special Economic Zones” for the recovery of a premium for the I, II, III quarters of 2009 in the amount of 170,040 rubles, premium for the fourth quarter of 2009 in the amount of 72,275 rubles, bonuses based on the results of work for 2009 in the amount of 41,300 rubles, monetary compensation moral damage in the amount of 50,000 rubles; in satisfaction of Sh.'s claim against OJSC "Special Economic Zones" for the recovery of bonuses for the I, II, III quarters of 2009 in the amount of 100,379 rubles, bonuses based on the results of work for 2009 in the amount of 31,200 rubles, monetary compensation for moral damage in the amount of 50,000 rubles. - refused.
The Moscow City Court, by its ruling dated 09/07/2010, left the decision of the Presnensky District Court dated 05/24/2010 unchanged.

The employment contracts concluded with plaintiffs Ts. and Sh. established that additional payments may be assigned to the employee based on the results of work for established periods (month, quarter, year).
The court indicated that the procedure for paying bonuses to the defendant’s employees is established by the Regulations on remuneration and bonuses for employees, which is an annex to the collective agreement and according to which the specific amounts of the current bonus for each employee are established taking into account the employee’s personal contribution to the implementation of the tasks facing structural unit, based on an objective approach to assessing the employee’s labor contribution to the achieved results of production and economic activity, however, there are no grounds for satisfying the plaintiffs’ claims, since payments based on the results of work for a month, quarter, or year can be assigned by the employer, while in the plaintiffs’ employment contracts there is no reference to the employer's obligation to pay a bonus to the employee, and payment of the bonus is a right, but not an obligation, of the employer.
Thus, the court indicated that if the employment contract with the employee does not establish a mandatory bonus, the employee does not have the right to demand it.
However, there is a different point of view of the court.

Arbitrage practice. By the decision of the Ostankino District Court of Moscow dated 04/05/2011 in case No. 33-23604, I.’s claim against Yuzhnorusskaya LLC industrial company"on the collection of wages in the amount<...>rubles, compensation for delayed payment of wages in the amount of<...>rubles, bonuses for the period from June to November 2010 in the amount<...>rubles satisfied.
By the ruling of the Moscow City Court dated August 22, 2011, the decision of the Ostankino District Court of Moscow dated April 5, 2011 was left unchanged.
According to the employment contract with I., the employee may be provided with additional payments, allowances, bonuses and other incentive payments. The amount and conditions of such payments are determined in the regulations on bonus payments to employees.
The Regulations on Remuneration and Bonuses establish that bonuses based on work results are paid monthly, quarterly or once a year at the discretion of the employer if the company achieves good results in its activities and makes a profit.
Since the defendant did not provide evidence that the employer had grounds for depriving the plaintiff of a bonus, and no copies of the manager’s orders were presented to deprive the plaintiff of bonuses for any production violations, the court concluded that the plaintiff’s demands for the recovery of bonuses must be satisfied .

I believe that in the first case the court refused due to the fact that the employment contract with the employees does not contain a reference to the employer’s local regulations establishing the amount and procedure for paying bonuses.
It is also necessary to remember that for failure to pay a bonus to an employee, the State Labor Inspectorate has the right to issue a binding order to the employer to pay a bonus to the employee and hold the employer liable under Art. 5.27 of the Code of the Russian Federation on Administrative Offences.

Arbitrage practice. Thus, in the period from November 19, 2010 to December 3, 2010, the State Labor Inspectorate in Moscow carried out an inspection in the open joint-stock company "Sistema Mass Media", the basis for which was written request employee.
During the inspection, the following violations of labor legislation were identified: in violation of paragraph. 1 tsp. 2 tbsp. 22, part 1 art. 135 and part 1 of Art. 142 of the Labor Code of the Russian Federation, clause 9.5 and the Regulations on bonuses for employees of SMM OJSC, as well as the provisions of the employment contract, calculation and payment were not made monthly bonus employee R. In order to eliminate identified violations, the management of the open joint stock company"System Mass Media" issued a mandatory order. Entity brought to administrative liability in the form of a fine in the amount of 40,600 rubles. (http://git77.rostrud.ru/news.shtml/xPages/entry.10098.html).

So, payment of bonuses is both the right and the obligation of the employer.
Regular bonuses paid according to pre-approved indicators, in accordance with the approved local regulatory act of the employer, agreement, collective agreement, constitute the above-tariff (time-based) part of wages, are included in the wage system and are subject to mandatory payment. The employer has the right to establish the conditions for non-payment or reduction of the bonus in a local regulation, agreement, or collective agreement.
Bonuses that are one-time in nature and not included in the remuneration system, not established by the employer’s local regulatory act regulating the payment procedure and amount of the bonus, agreement, or collective agreement, cannot be considered as component wages, and their payment is the right of the employer.

In accordance with Article 57 of the Labor Code of the Russian Federation, when applying for a job, an employment contract must be drawn up. This document certainly reflects information about remuneration. In addition to the standard salary, the employee is due a bonus, and if it is systematically not paid, the employee can sue. Judicial practice regarding non-payment of bonuses suggests that this particular reason is considered the main element in the emergence of complex disputes between an employee and an employer. It is established that the bonus is not the responsibility of the employer, unless this is established by the employment contract. If the employment contract states that the bonus is paid regularly by the manager, then in this case, the employee has the opportunity to file a claim to recover funds in the event of failure to pay them.

Prize and its payments

On the pages of our Internet resource, you can view various court decisions on this issue. You need to use the search term correctly to get the search results you want. you can use keyword: bonus, you can indicate the exact data of the decision made or the legal norm. It is such requests that will help you find court decisions on this issue.

Judicial practice on payment of bonuses

1. The Judicial Collegium of the Supreme Court of the Republic of Sakha (Yakutia) issued an appeal ruling dated September 11, 2013 in case No. 33-3558/2013. In this case, a case was considered regarding the recovery of bonuses from the employer. The employee was fired, and after a while everyone was given a bonus, which she did not receive. As a result of studying the case, it was decided that the employer himself had the right to assign a bonus and refuse to pay it to an already dismissed employee;
2. Appeal ruling dated June 28, 2013 in case No. 11-20219. This case considered a partial withdrawal of the bonus amount, taking into account the fact that the employee had a disciplinary sanction, which resulted in a reduction in the bonus amount. After studying the case materials, it was decided that the court of first instance, which determined the need to pay the premium, made a correct and adequate decision.

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In many organizations, the remuneration system involves paying not only salaries, but also bonuses to employees. According to labor laws, employers are not required to pay bonuses, because this is their voluntary expression of will, however, in some cases disputes may arise on this issue:

• If a bonus should be transferred for achieving certain indicators in work under an employment contract, but the manager did not fulfill such an obligation;
• If payments were timed to coincide with a specific date or event, but some employees did not receive them.

To understand the issue in more detail, you need to know what a premium is and what types exist. From a legal point of view, a bonus is an additional allowance that does not have a fixed amount and is paid to employees at the discretion of the manager. There are some features of the payment of such incentives:

• Bonuses are established in accordance with the employment contract and other internal acts of the organization that do not contradict the legislation of the Russian Federation, which has the highest legal force;
• The number and frequency of bonus transfers are not limited by any legislative acts: everything happens by decision of the management;
• The director may appoint the payment of bonuses based on the results of a month, year or quarter at his own discretion, if his actions do not contradict legislative norms and are not carried out in violation of internal regulations;
• The bonus can be fixed, when it is transferred to all employees in the same amount, regardless of length of service or position, or differentiated. In the latter case, length of service, position or complexity of the job are taken into account.

There are actually two types of awards:

• Money accrued separate category employees for achieving certain performance indicators. The total amount can be either single or differentiated depending on the role played by a particular employee in achieving the goals;
• Funds transferred for a memorable or holiday date to all employees, regardless of length of service and position.

Despite the fact that the payment of bonuses for managers is a voluntary desire, there are still claims in the courts for non-payment from employees. Before appealing a depreciation, it is necessary to familiarize yourself with the legal grounds on which the actions of employers will be considered lawful:

• If the employee systematically fails to comply with labor discipline or has committed one gross violation;
• If a citizen dishonestly observes job responsibilities provided for in the job description;
• If the employee did not fulfill the instructions of the manager, directly related to his work duties;
• If the employee was late or absenteeized, i.e. was absent from the workplace without a valid reason for more than 4 hours in a row;
• If, through the fault of an employee, damage was caused to the organization’s property or damage to his financial well-being.

Thus, deprivation of bonuses in most cases is associated with a disciplinary offense, but controversial situations often arise when the employee did not commit a violation, and the manager systematically deprives him of a bonus out of personal hostility or for other reasons.

Deprivation of bonuses and other types of disciplinary sanctions

As mentioned earlier, deprivation of a bonus is one of the ways to impose a disciplinary sanction against an offending employee, however, officially, according to the Labor Code of the Russian Federation, there are three types of disciplinary sanctions: reprimand, reprimand or dismissal. That is why, based on the norms of Art. 192 of the Labor Code of the Russian Federation, the court can establish that the decision to deprive an employee of the employer was illegal, but only when it is associated with another penalty.

In Art. 193 of the Labor Code of the Russian Federation states that only one method of punishment can be applied to an employee who has committed an offense, therefore the employer has no right to deprive a bonus and at the same time reprimand.

Not only absenteeism or dishonest performance can serve as grounds for deprivation of a bonus official duties, but also other violations, which are not entirely legal:

• Failure to comply with the dress code established by the company;
• Creation of conflict situations;
• Unfriendly treatment of the client (without rude insults).

It is precisely these reasons that employers most often talk about when imposing a fine in the form of deprivation of bonuses on their employees, but the court may declare such actions illegal, because the above circumstances are not a disciplinary offense under the Labor Code of the Russian Federation.

Having decided to deprive his employee of a bonus, the manager must take into account the severity of his offense, and also follow a certain procedure, otherwise his decision can be appealed in court:

• Having identified a violation, the employer must request an explanatory note from the subordinate. If he refuses to provide it, a corresponding act is drawn up about this in the presence of at least two witnesses;
• The absence of an explanation is not a basis for a ban on deprivation of bonuses, therefore the next action is a special order on deprivation of bonuses;
• If an explanatory note is present, a resolution is imposed on it, or a separate report is drawn up;
• Subsequently, the completed order is signed by the manager and then given to the disabled employee for signature.

To recognize as legal a penalty such as deprivation of a bonus, managers need to include the relevant information in internal regulations: for what offenses such a penalty can be applied, in what order it is carried out, what is the amount of the fine for a specific violation (in full amount or as a percentage of total amount). If there is no such data in any document, an employee illegally deprived of a bonus can go to court and win the case, because such monetary punishment is not official disciplinary action according to the Labor Code of the Russian Federation.

Is it possible to recover unpaid premiums through the court and how to file a claim?

To appeal an illegal deprivation of bonuses, citizens must have the following information:

• You can file a complaint both with the court and with the Labor Safety Inspectorate, and the application must indicate all the circumstances, references to legislation and the grounds on which the deprivation of bonuses can be considered a violation of the Labor Code of the Russian Federation;
• You can appeal the manager’s decision to deprive you of a bonus only within three months from the date of issuance of the relevant order. After this period, the statute of limitations expires, and it will be problematic to restore them if there was no good reasons for which the citizen could not contact the organization by labor disputes in a timely manner: illness, business trips, etc.;
• If the employer’s guilt is proven, the provisions of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, which require a warning, but most often the court is limited to imposing an administrative fine of up to 20,000 rubles. for officials.

It often happens that managers include a bonus as part of the salary, which is a violation of the requirements of Art. 129 of the Labor Code of the Russian Federation, according to which salary should be understood as a separate fixed payment for work done without taking into account incentive payments, which are bonuses. In this case, when issuing an order, the employer deprives the subordinate of the earnings established by the employment contract, and such actions on his part are unacceptable.

To resolve the issue of illegal deprivation of a bonus through the court, in addition to the statement of claim, you will have to provide other documents:

• Passport;
• Certificates containing the sequence and frequency of payments.

In general, the algorithm of action for an employee who has been illegally deprived of a bonus should be as follows:

• First you need to try to negotiate with the director yourself. If agreement cannot be reached, it is worth contacting a trade union or labor dispute commission and enlisting their support;
• The statement of claim should be filed in a district or arbitration court: the specific judicial authority depends on the place of registration of the defendant;
• The claim must contain comprehensive information: where, by whom and in relation to whom it is being filed, what the essence of the problem is, references to legislative acts and documents on the basis of which the employee should have been paid bonuses, as well as a list of attached documents. A receipt for payment of the state fee must be attached to the application.

If the court finds the employer’s actions to deprive the bonus unlawful, the entire amount that should have been paid to the employee will be recovered from him, and he will also be required to reimburse the employee for all costs incurred during the legal proceedings.