Features of the actual admission to work of scientific or pedagogical staff of an educational organization of higher education: problems of law enforcement

The article is devoted to a special analysis of the problems of applying the institute of the actual admission of an employee to the work of scientific and pedagogical staff of educational institutions of higher education. The purpose of the work is to formulate proposals for improving labor legislation, as well as standards of law enforcement activities based on the adaptation in labor law of certain elements of the civil theory of transactions in the field of concluding an employment contract by actually admitting researchers or teachers to work. The objectives of the study involve a systematic interpretation of the substantive norms of labor law using elements of transaction theory, an analysis of current judicial practice and the formulation of proposals that promote effective law enforcement. The research is based on open sources of information, including statistical data, specialized literature, normative legal acts and judicial practice, using general scientific (theoretical and empirical levels: dialectical, logical, system-structural, observation, description) and special legal methods (comparative legal, formal legal, legal modeling) research. The paper describes the features of the application of Article 67.1 of the Labor Code of the Russian Federation to scientific and pedagogical staff of educational institutions of higher education. It is stated that when considering labor disputes arising from the employee's actual admission to work and the application of Article 67.1 of the Labor Code of the Russian Federation to such cases, it is necessary to proceed from the presumption of an employment relationship, which can only be refuted by the employer. At the same time, the application of this rule to these categories of employees who have successfully passed a competition or election should be considered an abuse of the right to manage by the employer, and the courts, in appropriate cases, should reject the defendant's objections to the claim with a formal reference to the lack of authority of the representative. It is proved that for the considered category of employees, special qualifications are always required for teaching or research staff from the moment they actually start working. In addition, the illegality of the application of Part 1 of art. 67.1 of the Labor Code of the Russian Federation to any persons (including teachers or researchers) employed in accordance with Part 4 of Article 64 of the Labor Code of the Russian Federation. Some proposals have been made to improve certain provisions of labor legislation and ensure the consistency of law enforcement in the field of concluding an employment contract by actually allowing them to work. The authors declare no conflicts of interests.

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