Violation of the order of dismissal judicial practice. Illegal dismissal from work: what to do, term of restoration, claim. Illegal dismissal under the Labor Code of the Russian Federation

The term "illegal dismissal" is a common phrase used to describe situations when an employee was dismissed for no apparent legal reason or in violation of the termination procedure. In order to protect the interests of the employee, the legislator limited the grounds for dismissal and complicated the process of implementing this procedure. Illegal dismissal from work is a fairly common case.

To understand what the illegal dismissal of an employee is, you need to understand the legal grounds. These provisions are contained in labor laws and are not subject to expansion by the employer itself.

Grounds for dismissal

The list of reasons for dismissing an employee is rather small.

So, the employer is entitled to dismiss in the following cases.

When the employing organization ceases to exist. The reasons may be different: bankruptcy, voluntary liquidation, termination of activities by the decision of a government agency, and so on.
When by objective reasons there is a reduction in the number of employees - staff at the enterprise. The reason, for example, can be financial position, changing the type of activity and the like.
If the employee is not qualified for the position held. This is revealed in the certification of employees. Moreover, if the enterprise has vacant position for which the qualifications are considered sufficient, the employer is obliged to offer the employee this vacancy.
A change in the ownership of a business in itself cannot be a legitimate reason, but it is always accompanied by re-certification and redundancies.
When an employee does not follow the internal order at the enterprise many times.
If the position implies the financial responsibility of the employee, then he can be dismissed if the manager's trust is lost in case of repeated violations of the order of business in the position held.
Some businesses have employees who are responsible for compliance corporate ethics or safety precautions. If they violate the rules for which they are responsible, they can also be fired.
When an employee entered the position illegally: provided incorrect information or fake papers.
In case of a one-time gross violation of the rules at the enterprise.

It is illegal to fire a person for other reasons. Each reason for dismissal must be supported by appropriate documents or testimony.

What is a gross violation

The order at the workplace is established by the head, the legislator has limited situations that are recognized as a gross violation. This is done so that any minor violations or non-fulfillment of the employer's requirements do not become a reason for dismissal.

Cases of gross violation of the rules by the following actions of the employee are presented.

Absent from work for insignificant reasons or absence from the workplace for no particular reason for more than 4 hours in one shift.
Coming to work drunk, under the influence of drugs or psychotropic substances.
Disclosure of information that is an object of commercial or state secrets. Also disclosure of information about other employees, their personal data and other personal information.
Causing property damage to an enterprise by deliberate damage, waste or misinformation. The premeditated nature of such an act is the determining factor.
Violation of safety precautions and other labor protection rules, which entailed serious consequences or became the cause of an accident or emergency.

In addition to dismissal, employees who admit such situations are brought to financial, administrative or even criminal liability.

Loss of trust

The loss of trust by the employer implies the commission of a certain culpable act on the part of a financially responsible employee. However, the very fact of the act is not a reason for dismissal, unless, of course, it is qualified as a criminal offense.

Grounds for dismissing an employee due to loss of confidence:

the employee did not take the necessary measures to minimize the consequences of his actions, did not notify the employer in time;
the employee refused to provide the employer with information about his income and property.

However, this does not exclude the fact that the employer is obliged to prove the employee's guilt.

Special reasons for dismissal

The reason for dismissal selected categories employees may be on the following grounds:

For teachers:

non-compliance with the statutory provisions of the educational institution;
violent actions of a mental or physical nature against schoolchildren, students, etc .;
substitution by age.

For athletes:

disqualification for more than six months;
violation of the prohibition on the use of doping.

Such actions of these categories of workers are a reference to their professional unsuitability.

However, if their innocence is revealed, employees are entitled to proportionate compensation.

Examples of illegal dismissal

Termination employment contract for any reasons not specified in the law is considered unlawful. However, as practice shows, this is not an obstacle for employers to fire their employees.

Most often, the following circumstances of illegal dismissal are encountered:

dismissal under duress;
dismissal in violation of the procedure established by law;
dismissal without proof of reason.

Dismissal under duress

Unfortunately, the mentality of the common people is such that, under minimal threats from the leadership, they write letters of resignation according to on their own... Such coercion is completely illegal.

However, in order to prove their case, the employee must present convincing facts of coercion. A simple statement by the employer about this can be regarded not as coercion, but as an offer.

An excellent solution would be audio and video materials that recorded this fact. But it's best not to succumb to such threats and persuasions from the employer.

Violation of the dismissal procedure

Even if there are legal grounds, violation of the dismissal procedure is a reason for the recognition of such dismissal as illegal.

So, the following procedure for dismissal is established by law:

in case of staff reduction, employees must be notified no later than one month in advance;
upon dismissal for other reasons, the employee must be notified two weeks in advance;
you can not fire an employee who is on vacation or undergoing treatment;
the employee must provide a copy of the order;
after the dismissal of the employee, no later than two weeks, it is necessary to settle with him and return the work book.

Failure to comply with this procedure is illegal dismissal of an employee. The order on such dismissal, upon consideration by the court, is invalidated.

Dismissal without proof

Each reason specified in the employer's order of dismissal as a basis is confirmed accordingly.

So:

When the dismissal is justified by repeated violations of the order, each of them must be marked with a reprimand or other disciplinary sanction, which are reflected in the registration book of orders of the head. In this case, a copy of each order must be handed over to the employee.
Material harm caused by the employee must be recorded by the assessment report and by the order of the head.
The absence of an employee at the workplace must be recorded in the attendance sheet, which is maintained by the accounting department.
The inconsistency of the employee with the position held must be confirmed by the conclusion of the attestation commission.
The reduction in staff should be reflected in the accounting records and the decision of the head of the enterprise.

Failure to properly confirm the grounds entails the invalidity and unlawfulness of the dismissal.

Where to complain?

Of course, when an employee is illegally fired, he begins to seek help from government agencies... Protecting the interests of the employee is a top priority for labor law. So what to do and where to go?

The following can help in the implementation of these provisions of the Labor Code:

trade union of the enterprise;
federal labor inspectorate;
bodies of the prosecutor's office;
district court.

Each of these institutions has a mandate to protect the interests of workers.

Union

Almost every permanent employee of the enterprise is a member of the trade union. Such an employee cannot be fired without the consent of the trade union body. If this happened, then a claim must be sent to this authority.

The trade union, in turn, is entitled to file a complaint with the Labor Inspectorate, which may compel the employer to return the employee to his position.

Labor inspectorate

As already mentioned, the Federal Labor Inspectorate, or as it is also called - "labor police", has the power to coerce the employer. In addition, this body can bring the leader to justice.

However, the activity of the inspection ends with the verification of the fact that the grounds for dismissal comply with the requirements of the law, as well as compliance with the legal procedure. Other facts: the testimony of witnesses, the illegal reduction, this body does not study.

Prosecutor's office

This body has general oversight powers, and in case of violation of legal requirements, it should be contacted first. In addition to checking the documentation, the prosecutor's office can carry out some investigative measures to establish the truth. Therefore, this body should be contacted if there is a fact of distortion of information, presentation of unfounded accusations to an employee by the enterprise, and so on.

Court

As practice shows, the highest efficiency in solving cases of illegal dismissal is given by filing a statement of claim in court. Most court decisions in such cases are in favor of the employee.

The statement of claim is submitted to the district court in the jurisdiction of which the enterprise is located. The judgment is binding on everyone, and its execution is under the control of the bailiffs.

It is necessary to apply to the prosecutor's office or labor inspectorate while simultaneously filing a claim with the court, since the first two bodies do not thoroughly study the issue.

Terms of application

Timing is also important when challenging illegal orders to dismiss an employer. Passing them out deprives the employee of the right to appeal against unlawful deprivation of work.

The following deadlines are set for filing an application with the relevant authorities.

The Federal Labor Inspectorate must file a complaint within one month from the moment the employee receives a photocopy of the dismissal order. It is impossible to extend this period.
A claim to a judicial authority must also be filed no later than one month. However, if the employee succeeds in presenting evidence that he found out about the illegality of his dismissal much later, and applies as soon as he found out, then the term may be extended.

Missing the allotted time and the absence of the fact of the appeal does not relieve the employer from liability for the unlawful dismissal of an employee.

Recovery at work

In the event that the court recognizes the dismissal of an employee as illegal, the return to work takes place as follows:

Together with the court decision, the court issues a document for executive body, which immediately needs to be sent to the bailiffs. The head of the enterprise is obliged to execute the decision no later than one day after that.
The hiring of another employee or the fact that the position has been made redundant does not preclude the return of the unlawfully dismissed employee.
It is necessary to ensure that the manager cancels the termination order, and does not reinstate the employee. This is important when receiving compensation for involuntary unemployment.
The person must be notified in writing of the start of work. In the same letter, you must indicate the cancellation of the resignation order.
The inscriptions in the labor book are being corrected. The letter of dismissal is invalidated. Also, a person has the right to update the work book with the restoration of all existing records.
None of working conditions, for which the employee worked before the unlawful termination of work, does not change for any reason.
The employee's personal file at the enterprise is also restored and corrected, with a separate note on the court's decision.
The work record is corrected and supplemented. The time during which the person was unemployed is counted as seniority with the corresponding remuneration.

The employee has the right to compensation for all types of damage caused to him by unlawful deprivation of a job. The fact of compensation for damage and the return of an unlawfully dismissed person does not exempt the employer from liability for illegal actions.

Thus, every unlawfully dismissed person is protected by the law. It remains only to competently exercise their legal rights. A qualified lawyer can help you with this. The most important thing is not to give up and not succumb to the persuasion of the leader, who can end everything peacefully, even during the trial.

In accordance with the law, an employee can be dismissed only on the grounds provided for in the Labor Code of the Russian Federation. But after all, the human factor has not yet been canceled, therefore, many are often dismissed precisely for psychological reasons, adjusting them to the required article of labor legislation.

In such a situation, everyone has the right to challenge the decision of the management in court, because you can only be fired for violations of labor laws, and not for the tendency to always tell the truth, which is inconvenient for the manager.

Regulation according to the Labor Code of the Russian Federation

An almost complete list of grounds for dismissal is given in article 77 of the Labor Code of the Russian Federation, which, in particular, says that an employee can be fired for:

violation labor discipline(theft, alcohol intoxication, immoral behavior, disclosure of commercial secrets,);
non-fulfillment of assigned duties (presence of reprimands, certification results, violation of safety rules);
upon liquidation and and office.

In accordance with the norms of the law, some employees mean their social status or the status can be dismissed only in rare cases, since they belong to the preferential categories. In particular, it is prohibited to terminate labor cooperation with:

pregnant women;
workers with small children under 3 years old, or mothers or single fathers of children under 5 years old;
parents of disabled children;
the only breadwinners of the family who support at least 3 children.

Also on the basis of Art. 81 of the Labor Code of the Russian Federation, you cannot dismiss an employee during a period of incapacity for work or while on vacation. However, as practice shows, many employers ignore the norms of the law and still cut unwanted persons who are not suitable for them for one reason or another.

Examples of common illegal situations

As a rule, the most common case is the termination of cooperation with a woman in maternity leave... In such a situation, many company executives are trying to get rid of maternity wards by cutting their jobs, which is a direct violation of Art. 256 of the Labor Code of the Russian Federation, which says that a woman in the decree should retain her workplace before the end of the vacation.
An equally common case is the termination of a relationship with a single mother who is raising a small child. Indeed, as a rule, young children are often sick, and there is no one to leave them with, which entails endless sick leave and leave from work. Of course, not everyone likes this situation, which is why workers with small children are not hired at all or they are very quickly dismissed on a far-fetched occasion.
But with objectionable truth-lovers, men are dealt with in a different way. For the slightest offense, for example, being 5 minutes late for work, not wearing a helmet at the workplace and violating safety rules, they are immediately reprimanded, and one after another, so that after the third penalty they will be dismissed with a clear conscience.
An equally common way is to conduct an extraordinary one in order to reduce the existing qualifications of the employee to a minimum and thus find a reason for dismissal on completely legal grounds. But for each procedure, the desire of the management alone is not enough, there must also be documentary registration, which, by the way, is established by law.
Another way to get rid of unwanted employees is to reduce the nominal position with the introduction of new vacancy with similar responsibilities, which again is a violation of labor laws.
Finally, it is worth mentioning the conclusion, even if the duties of the future employee will be performed on an ongoing basis. In such a situation, the situation can be resolved and the agreement is recognized as indefinite only through the courts.

You can learn about all the nuances of such a procedure from the following video:

Where to go in this case?

In accordance with Art. 392 of the Labor Code of the Russian Federation, an employee has the right to resolve any labor dispute in court, in particular, in case of illegal dismissal, everyone can go to court to defend their own innocence, but only within a month from the date of receipt of the order for dismissal.

If the agreed deadline is missed, and former employee will not be able to confirm the existence of valid reasons that prevented him from exercising his right within the prescribed period, when considering the issue of recognizing the termination as illegal, the worker will be denied due to missing the claim period, regardless of whether he is right or not.

The dispute can be resolved not only in court. If the employee has not yet been dismissed, but he has already been informed about the imminent layoff, it is advisable to first collect evidence, which can then be submitted as confirmation of his innocence to the competent authorities, namely to the Labor Inspectorate or the prosecutor's office:

Nowadays everyone has mobile phones that have a voice recorder function. On the eve of the dismissal, it is advisable to stock up on several recordings of the conversation with the management with direct threats to dismiss on a far-fetched reason.
You also need to make copies of all documents that will be the basis for the reduction. For example, an order to issue a reprimand, explanatory, acts of violations, that is, all documents that confirm the fact of a disciplinary offense.
In accordance with Art. 84.1 of the Labor Code of the Russian Federation, upon dismissal, an employee has the right to demand any copies of documents that confirm him labor activity- from to the report card of exits to work or documents on the imposition of a penalty. If the management refuses to issue copies, it is advisable to ask for a written refusal or, again, record the conversation on a dictaphone.

Further, in the course of the trial, it is possible to appeal not only the dismissal, but also the reprimand, which served as the basis. In such a situation, if the disciplinary sanction is canceled or at least one of them, the employee will be reinstated in the previous position automatically, since in the absence of a reason and the presence of violated employee rights, the court will in any case make a decision on granting the person the previous position.

Terms and procedure for recovery at work

As mentioned above, the employee is given 1 month to prepare and file a statement of claim in court. But the consideration of the claim itself, depending on the complexity of the case and the claims made, may take from two months to six months with the involvement of both witnesses and labor law consultants.

The former employee also has the right to file an additional claim for the recovery of non-pecuniary damage for the suffering caused and to compensation in accordance with Art. 234 of the Labor Code of the Russian Federation.

As a rule, the court in most cases satisfies all the claims of the plaintiff, including the payment of compensation, the amount of which in some cases may be reduced depending on the specific circumstances of the case.

In case of a positive outcome of the case, the employee can count on reinstatement in his previous position and on the payment of compensation for deprivation of the right to work for each day in the amount of the average earnings from the moment of dismissal until the date of the court decision, which the employer must comply with immediately.

After receiving a court decision, an order must be issued at the enterprise to cancel the order to dismiss and reinstate the employee in his previous position. Then you need to make changes to the work book and make the appropriate payments agreed by the court.

V documenting the restoration procedure is simple, but problems may arise if another employee has already been hired for the position, who will have to be fired, or if the position is completely excluded from. In such a situation, first you will need to make changes to the agreed document, and then accept former employee, and all personnel procedures will need to be carried out in an extremely short time.

Employer's responsibility

In case of illegal dismissal, the court will not only restore the violated rights of the former employee, but will also decide on the punishment of the negligent employer. Of course, the penalty will be calculated based on the severity of the guilt and the specific circumstances of the case, but, in general, for violation of labor legislation, the management of the enterprise is threatened fines up to 50 thousand rubles on the basis of Part 1 of Art. 5.27 of the Administrative Code of the Russian Federation.

Also, the employer will be obliged to pay all the amounts of compensation that were established to be paid in the course of the court proceedings.

After the completion of the case, the bailiffs will not only check the execution of the will of the court, but will also issue an order on a new punishment, already more severe, if the decision is not executed at all or in violation of the terms.

It should be noted that any enterprise that violated the rights of workers will be registered by the labor inspectorate, which will entail frequent unscheduled inspections and new penalties. In order to avoid the stipulated sanctions, each employer should think about the fact that any violation of personnel rights will primarily affect financial activities organizations.

22.05.2013 22:33

SOLUTION

IN THE NAME OF THE RUSSIAN FEDERATION

June 19, 2012 Chertanovsky District Court of Moscow, composed of the presiding judge Badova O.A., with the participation of the prosecutor M.Yu. Popik, lawyer A.V. Khokhlov, with the secretary E.A. Savelyeva, having examined in open court session civil case on the claim of Pak FULL NAME14 to HOA "Oasis Park" about reinstatement at work, recovery of average earnings, compensation for moral damage

INSTALLED:

The plaintiff filed this claim with the court. He justifies his requirements by the fact that he has been working in the Oasis Park Homeowners Association since 2009. in the position of commandant, he performs his work in accordance with job description... DD.MM.YYYY he became aware that he was relieved of his post from the announcement, which was posted for the residents of the house. He was not familiarized with the order of dismissal, and the act of denial of acquaintance was not drawn up either. Considers that the defendant violated the procedure. The plaintiff is still not aware of the grounds for dismissal. According to the defendant, the plaintiff became aware that he was dismissed for alleged absenteeism DD.MM.YYYY However, DD.MM.YYYY he was in Chertanovskiy OSP. Thus, through the fault of the defendant, the plaintiff is illegally deprived of the opportunity to work. He asks to recognize the dismissal as illegal and reinstate him at work as commandant of the Oasis Park Homeowners Association, to recover the average earnings during the forced absence, compensation for moral damage in the amount of 100,000 rubles.

Subsequently, he clarified his requirements, asked to recognize the dismissal as illegal and reinstate him at work as commandant of the Oasis Park Homeowners' Association, to recover the average earnings for the time of the forced absence from DD.MM.YYYY on the day of the decision by the court, compensation for moral damage in the amount of 5,000 rubles.

At the hearing, the plaintiff supported the stated requirements on the grounds set out in the statement of claim, taking into account the clarifications.

The defendant's representatives objected to the claims presented on the grounds set out in the response.

The court, having heard the parties, the witnesses, having examined the materials of the case, finds the claim to be satisfied partly on the following grounds.

According to Art. 77 of the Labor Code of the Russian Federation, Grounds termination of an employment contract are: 4) termination of the employment contract on the initiative of the employer (Articles 71 and 81 of this Code).

According to Art. 81 of the Labor Code of the Russian Federation, an employment contract can be terminated by the employer in the following cases: 6) a single gross violation of labor duties by an employee: a) absenteeism, that is, absence from the workplace without good reason during the entire working day (shift), regardless of his (her) duration, as well as in case of absence from the workplace without good reason for more than four hours in a row during the working day (shift)

According to Art. 84.1 of the Labor Code of the Russian Federation, Termination of an employment contract issued by the order (order) of the employer. The order (order) of the employer about the employee must be familiarized with signature. At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order (instruction). In the case when the order (order) on termination of an employment contract it is impossible to bring to the attention of the employee or the employee refuses to get acquainted with him against signature, a corresponding entry is made on the order (order). In a day termination of an employment contract the employer is obliged to issue a work book to the employee and make settlements with him in accordance with Article 140 of this Code. At the written request of the employee, the employer is also obliged to provide him with duly certified copies of documents related to the work.

According to Art. 192 of the Labor Code of the Russian Federation, For committing a disciplinary offense, that is, failure to comply or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions: 1) remark; 2) a reprimand; 3) dismissal on appropriate grounds. When imposing a disciplinary sanction, the gravity of the offense committed and the circumstances under which it was committed must be taken into account.

According to Art. 193 of the Labor Code of the Russian Federation, Before the application of a disciplinary sanction, the employer must request a written explanation from the employee. If after two working days the specified explanation is not provided by the employee, then an appropriate act is drawn up. The employee's failure to provide an explanation is not an obstacle to disciplinary action. A disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of the employee's illness, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees. The employer's order (order) on the application of a disciplinary sanction is announced to the employee against signature within three working days from the date of its issuance, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (order) against signature, then an appropriate act is drawn up.

According to Art. 234 of the Labor Code of the Russian Federation, the employer is obliged to reimburse the employee for the earnings not received by him in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, occurs if the earnings are not received as a result of: unlawful suspension of the employee from work, his dismissal or transfer to another job;

According to Art. 237 of the Labor Code of the Russian Federation, Moral damage caused to an employee by unlawful actions or inaction of the employer is reimbursed to the employee in cash in the amount determined by agreement of the parties to the employment contract. In the event of a dispute, the fact of inflicting moral harm on the employee and the amount of his compensation are determined by the court, regardless of the property damage subject to compensation.

According to Art. 392 of the Labor Code of the Russian Federation, the Employee has the right to apply to the court for resolution of an individual labor dispute within three months from the day when he learned or should have learned about the violation of his right, and in disputes about dismissal - within one month from the date of delivery of a copy of the order on dismissal or from the date of issue of the work book. The employer has the right to apply to the court in disputes for compensation by the employee for damage caused to the employer, within one year from the date of discovery of the damage caused.

According to Art. 394 of the Labor Code of the Russian Federation, In case of recognition of dismissal or transfer to another job as illegal, the employee must be reinstated to previous work a body considering an individual labor dispute. The body considering an individual labor dispute decides to pay the employee the average earnings for the entire period of forced absenteeism or the difference in earnings for the entire period of performance of lower-paid work. In cases of dismissal without a legal basis or in violation of the established procedure for dismissal or illegal transfer to another job, the court may, at the request of the employee, make a decision on recovery in favor of the employee monetary compensation moral harm caused to him by these actions. The amount of this compensation is determined by the court.

According to Art. 396 of the Labor Code of the Russian Federation, The decision to reinstate an unlawfully dismissed employee at work, to reinstate an employee who was illegally transferred to another job at his previous job, is subject to immediate execution. If the employer delays in the execution of such a decision, the body that made the decision shall issue a ruling on payment to the employee for the entire delay in the execution of the decision, the average earnings or the difference in earnings.

At the hearing it was established that DD.MM.YYYY between HOA "Oasis Park" and Pak FULL NAME15 was concluded an employment contract, according to which the plaintiff was hired as commandant of HOA "Oasis Park".

DD.MM.YYYY Pak FULL NAME16 was dismissed of his own free will from the post of commandant HOA "Oasis Park" under paragraph 3 of Art. 77 of the Labor Code of the Russian Federation.

DD.MM.YYYY between HOA "Oasis Park" and Pak FULL NAME17 an employment contract was concluded, according to which the plaintiff was accepted to the post of commandant HOA "Oasis Park".

DD.MM.YYYY the plaintiff on the basis of Order No. from DD.MM.YYYY was dismissed from the HOA "Oasis Park" in connection with the reduction of staff under paragraph 2 h. 1 Article. 81 of the Labor Code of the Russian Federation.

DD.MM.YYYY Order without number Pak In Su was reinstated in the HOA "Oasis Park" to work as a commandant with DD.MM.YYYY with a salary according to the staffing table.

DD.MM.YYYY addressed to the chairman of the HOA "Oasis Park" the plaintiff wrote a statement with a request to release for one hour, in connection with the summons to the bailiff-executor at 17 o'clock. 00 minutes DD.MM.YYYY

DD.MM.YYYY chairman of the board FULL NAME13, chief accountant FULL NAME12, HR inspector FULL NAME6, dispatcher FULL NAME7, security guard FULL NAME8 an act was drawn up that the worker Pak FULL NAME18 commandant HOA “Oasis Park” was absent from the workplace during the working day DD.MM.YYYY from 11 o'clock 00 minutes up to 18 hours. 00 minutes for no good reason. He refused to explain his absence.

DD.MM.YYYY addressed to the chairman of the HOA chief engineer FULL NAME20 was written a memo that Pak FULL NAME21 DD.MM.YYYY left the workplace without permission, including the territory of the house, he did not warn about his absence; did not follow the performance of his ward FULL NAME9, who was engaged in painting the elevators.

DD.MM.YYYY by order of the chairman of the board of the HOA "Oasis Park" Pak FULL NAME19 was presented a requirement to provide a certificate or other official document justifying his absence from the workplace, which has a mark of the chairman of the board FULL NAME13, chief accountant FULL NAME12, HR inspector FULL NAME6 about that that the plaintiff was familiar with the order, refused to receive the order in his hands.

DD.MM.YYYY chairman of the board FULL NAME13, chief accountant FULL NAME12, HR inspector FULL NAME6, security guard FULL NAME8 was drawn up an act that Pak FULL NAME22 refused to give oral and written explanations about the absence of DD.MM.YYYY

DD.MM.YYYY the chairman of the board FULL NAME13, the chief accountant FULL NAME12, the inspector of the personnel department FULL NAME6 was drawn up an act of refusal Pak FULL NAME23 to get acquainted with the order to request the provision of a certificate or other official document justifying his absence from the workplace DD.MM.YYYY

Also in the case presented acts from DD.MM.YYYY and DD.MM.YYYY, signed by the chairman of the board FULL NAME13, the chief accountant FULL NAME12, the inspector of the personnel department FULL NAME6 that Pak FULL NAME24 refused orally and in writing to give explanations about his absence DD.MM .YYYY

Order number from DD.MM.YYYY Pak FULL NAME25 was dismissed on p.n. "A" clause 6 of Art. 81 of the Labor Code of the Russian Federation on the basis of Act No. from DD.MM.YYYY On the order there is a mark from the chairman of the board of the plaintiff's refusal to sign in the order.

From the Order No. chairman of the HOA "Oasis Park" from DD.MM.YYYY it follows that Pak FULL NAME26 refused to familiarize himself with the order of dismissal.

From the response to the statement of the bailiff-executor of the Chertanovskiy OSB UFSSP in Moscow FULL NAME10 from DD.MM.YYYY it follows that on the execution of the Chertanovskiy OSP UFSSP of Moscow there was enforcement proceedings No. FULL NAME27. According to the materials of the enforcement proceedings Pak FULL NAME28 bailiff executor at the reception DD.MM.YYYY was not called. Claimant Pak FULL NAME29 was in the premises of Chertanovskiy OSB DD.MM.YYYY at a non-reception time on own initiative... At his request, a summons was issued stating that he had visited the bailiff. The time and period of his location DD.MM.YYYY in the premises of the OSB is not possible to inform, due to the lack of such information in the materials of enforcement proceedings

According to the summons of the bailiff-executor Chertanovskogo OSP UFSSP in Moscow FULL NAME10 on enforcement proceedings № it follows that Pak FULL NAME30 was in Chertanovskiy OSP DD.MM.YYYY from 12 hours. 00 minutes up to 18 hours. 00 minutes

The order of the bailiff-executor Chertanovskogo OSP UFSSP in Moscow FULL NAME10 that instructs to hand over on purpose the decision No. from DD.MM.YYYY to OJSC “Sberbank” of Russia ”is presented in the case. This order is marked by the bank from DD.MM.YYYY 00 minutes and according to the rules of the bank, the date of the next day is set. The court is not presented evidence that DD.MM.YYYY Pak FULL NAME31 was absent at the workplace. In this connection, the court concludes that this order was submitted to the bank DD.MM.YYYY

From the explanations of the plaintiff it follows that since DD.MM.YYYY the chairman and the secretary of the HOA in the board was not, he left a statement from DD.MM.YYYY that he needed to appear at the OSB at the dispatcher. He does not know where the statement went.

Witness FULL NAME11 showed that he is a resident of the house and the former chairman of the HOA "Oasis Park". During the period when she was the chairman of the board of the HOA. The plaintiff was dismissed due to staff reductions, but by a court decision he was reinstated at work, but after she was suspended from work. She saw that the plaintiff went to work, but his workplace was sealed. It became known to her that the plaintiff was dismissed from the announcement. According to the plaintiff, she knows that he went to the bailiff, was absent for 4 hours and was dismissed. Currently HOA chairman comes to the board late and many issues cannot be resolved. Dispatchers work around the clock. The secretary of the board comes at one o'clock. An application for the board can be left with the dispatcher, but no mark is put on the application. The commandant reports to the chief engineer and chairman of the board.

Witness FULL NAME12 testified that she works as chief accountant in HOA "Oasis Park" with DD.MM.YYYY She knows that the plaintiff was dismissed. The plaintiff refused to sign the letters of dismissal in April 2012. The salary is calculated in accordance with the time sheet presented by the HR inspector, signed by the engineer and the chairman of the board. In March 2012. she worked every 09 o'clock. 00 a.m. to 6 p.m. 00 minutes DD.MM.YYYY she Pak FULL NAME32 did not see. DD.MM.YYYY she was in his office, heard a scandal, she left the office and went to the secretary, where Pak FULL NAME33 shouted about some statement, and FULL NAME13 asked him to provide documents, why he was not at work. He shouted, refused to give an explanation. FULL NAME13 said to write an explanatory, that Pak FULL NAME34 refused to give explanations She signed acts with DD.MM.YYYY The orders were, what were the orders she does not remember She does not remember, signed the act DD.MM.YYYY or not Acts were drawn up by the HR inspector on the day when they are signed, and then everybody wrote them. The plaintiff was familiarized with the order of dismissal. She saw that the order was lying on the table in the hallway. The plaintiff left the chairman's office and shouted. There were also some notifications about the need to pick up the work book. DD.MM.YYYY not she decided that Pak FULL NAME35 is absent from the workplace as it is not her business. She signed in the act, that the person refused that he was presented with a claim Since she Pak FULL NAME36 DD.MM.YYYY did not see, then signed in the act of his absence. Why the act is needed, she was not interested.

Analyzing the explanations of the parties, the testimony of the witnesses, the evidence presented, the court concludes that the plaintiff was absent from the workplace for a good reason, t.to. carried out the instructions of the bailiff, in this connection, his dismissal for absenteeism cannot be recognized as legal.

In such circumstances, the plaintiff's claim to reinstate him at work with DD.MM.YYYY in the position of commandant of the HOA "Oasis-Park" is subject to satisfaction.

According to the certificate of the HOA "Oasis - Park", the monthly salary of the plaintiff is 21,930 rubles, the average daily salary is 1,056 rubles. 87 kopecks

Since the plaintiff's claim for reinstatement to work is satisfied, the defendant in favor of the plaintiff is subject to recovery average earnings during the forced absenteeism for the railing from DD.MM.YYYY on DD.MM.YYYY in the amount of 47559 RUB. 15 kopecks (1056.85 x 45 working days).

Taking into account all the circumstances of the case, the court finds it possible to recover from the defendant in favor of the plaintiff compensation for non-pecuniary damage in the amount of 2000 RUB.

In accordance with Art. 103 Code of Civil Procedure of the Russian Federation from the defendant is subject to collection of state duty in the amount of 1686 RUB. 77 kopecks

Based on the above, guided by art. 194-199 Code of Civil Procedure of the Russian Federation, court

DECIDED:

Pak FULL NAME37 restore at work in HOA "Oasis Park" in the position of commandant with DD.MM.YYYY.

To collect from the HOA "Oasis Park" in favor of Pak In Su 49559 rubles. 15 kopecks

Dismiss the rest of the claim.

The decision regarding reinstatement at work is subject to immediate implementation.

To collect from the HOA "Oasis Park" the state duty to the state income in the amount of 1686 rubles. 77 kopecks

The decision can be appealed to the Moscow City Court within a month from the date of production in the final form.

In these difficult times, nothing can guarantee stability. Indeed, even if there is an official place of employment, almost any employee may turn out to be undesirable, and an employment contract with him will be terminated. In many cases of this kind, we are talking specifically about illegal dismissal. It is possible to prove that the employer violated the rights of his employee only through court. With a favorable set of circumstances and a decision in favor of the plaintiff, he has the right to claim reinstatement in his position, receive wages for the entire time of unforced absenteeism, compensation for the services of a lawyer, as well as moral damage. But before embarking on a legal battle, you need to find out in which cases the dismissal is considered illegal, where to go first, what documents are needed for this and other nuances. They will be discussed below.

Recognition of dismissal illegal: grounds and features

It is very problematic to list absolutely all the grounds on which the dismissal will necessarily be recognized as illegal. Each situation must be considered on an individual basis. But most often there are the following cases when the court defends the interests of the plaintiff:

Dismissal without legitimate reasons. A complete list of legal grounds on which an employee can be dismissed at the request of only the employer is contained in Article 81 of the Labor Code of the Russian Federation. Among the main ones are: the liquidation of the enterprise, the reduction of the labor force, the violation of labor discipline, the inadequacy of the qualifications of the employee to the position occupied by him, etc. However, for the court to recognize the dismissal as legal is not enough work book the dismissed person featured a basis that belongs to the category of legitimate. The employer must additionally prove that this ground actually took place, and that the dismissal is a measure of influence corresponding to the severity of the particular disciplinary offense.
Violation of the procedure for dismissing an employee. An employee can be dismissed for any of the existing grounds only in a strictly established manner. Among the main stages, the following can be distinguished: documentary fixation of a violation of labor discipline by an employee (for example, an act on his absence on the spot in work time); receiving an explanation from the violator of the discipline about the committed misconduct; issuance of an order for dismissal and familiarization of the employee against signature with it; making a full payment with the employee for all hours and days worked unused vacation; an entry in the labor book with the obligatory indication of the reason for dismissal and a link to an article of the Labor Code. However, if certain procedures for dismissal are not followed, the court may accept them as insignificant for declaring the dismissal unlawful. Essential reasons include:
- if the employer has not offered the employee another place of work, corresponding to the state of his health (if any);
- bringing to responsibility of a disciplinary nature in violation of the norms of the current legislative acts governing labor relations;
- if the employer has not agreed on his decision to dismiss with the union in relation to employees who are members of the union.
Dismissal of certain categories of citizens. For example, it is always illegal to fire pregnant women, single mothers, fathers who are raising a child / children under the age of 14 alone. The only exceptions are those cases when the dismissal of these citizens occurs due to the complete liquidation of the organization. In the event of its restructuring, the employer is obliged to provide a place of work for these citizens as a matter of priority.
Dismissal of workers on vacation. Moreover, we are talking about both regular and maternity leave, as well as the employee being on sick leave.

Among other grounds on which the court can recognize the dismissal as illegal, the following situations can be distinguished:

non-compliance with the dress code or corporate ethics;
fictitious staff reduction, which in reality does not exist;
forcing an employee to draw up a letter of resignation on his own initiative;
the presence of several bases at the same time.

What authorities and in what time frame should you apply if you were unlawfully dismissed?

Earlier in the article, we already considered where to complain about the employer, but now we will analyze the case of illegal dismissal separately. If you are sure that your employer violated your rights upon dismissal, it is worth starting to seek redress immediately. First of all, it is best to draw up and send a letter of claim addressed to the director of the enterprise. It must be competently and with links to regulations state the circumstances that, in your opinion, indicate the illegal nature of your dismissal. This letter should be written in duplicate.

If no action was taken from the employer, your claims can be sent to the following authorities:

Trade union. Any union member cannot be fired without the latter's consent. The union is responsible for handling complaints from unlawfully dismissed employees and submitting complaints to the Labor Inspectorate.
State Labor Inspectorate. One should not hesitate to appear in this body - the application must be sent no later than 1 month from the date of dismissal. It can be considered the day of receipt of the labor book or the moment of familiarization with the order to terminate the employment contract. After the acceptance of such an application, the labor inspector is obliged to conduct an inspection no later than 10 days and, based on its results, oblige the employer to return the employee to his previous position and pay him due compensation. However, you should be aware that such a check is mostly formal in nature, since the inspector will not be involved in obtaining explanations from witnesses, collecting evidence, etc. Therefore, it is best to prepare a lawsuit in court at the same time as filing an application to the Labor Inspectorate.
Prosecutor's Office. The functions of this body in terms of handling complaints from illegally dismissed citizens are similar to those of the State Labor Inspectorate. The prosecutor's office is also obliged to carry out a check and, upon establishing that the norms of labor legislation have been violated, send the case to the court.
Court. If there is little hope for the efficiency of the employees of the State Labor Inspectorate and the Prosecutor's Office, go directly to the court at the location of the enterprise. This must be done within a month from the date of dismissal. In special cases, this period can be extended, but only if you can prove that you were unaware that your labor rights were violated upon dismissal. If you win the court, the bailiffs will monitor the execution of the decision, which will prevent the unscrupulous employer from escaping the legal obligation to reinstate the plaintiff and pay him compensation.

Preparation and going to court

There are several advantages of going to court:

Availability of litigation from a financial point of view. According to Art. 393 of the Labor Code of the Russian Federation individual exempted from paying state duty when filing a lawsuit to restore their labor rights... Therefore, the total cost of litigation is much less than usual.
Efficiency. Perhaps only in court can they properly consider all the claims of the plaintiff and understand the whole background of the relationship between the employer and the employee.
The possibility of recovering compensation for causing moral damage. The state labor inspectorate does not have this right.

The main disadvantage of going to court is the length of the proceedings. Although the legal deadline for considering such cases is only one month, in reality it is very rarely observed.

So, if you decide to go to court, first get ready to prepare required documents, namely:

Labor contract . It must be concluded at the time of the employee's admission to the staff. However, not all employers hand it out to workers. Therefore, make sure you have this document that defines the basic working conditions. Moreover, it is important that it indicates the real wages. Otherwise, it will be difficult to qualify for the payment of wages for the period of forced absenteeism in the amount in which you actually received it earlier.
Labor book with records of employment and dismissal from it. If you worked informally, the employer may simply declare in court that he is seeing you for the first time. This once again confirms the insecurity of informal workers.
Copies of orders for employment and dismissal.
Certificate with the designation of the position held, qualifications, average monthly wages, characteristics of the employee and his attitude to work.
Documents on bringing to labor liability (if any).
Evidence that clearly confirms that the employer's arguments are falsified.

The employer must provide all documents requested by you within five working days. In case of evading this obligation, this must be reflected in the claim and additionally indicated that the court itself requested the necessary information.

The statement of claim, a sample of which can be viewed here (Appendix), must include the following details:

Name of the court, details of the plaintiff and the defendant.
Circumstances of hiring and dismissal from work, reasons why the plaintiff assumes that the dismissal was not carried out in accordance with the law.
The plaintiff's claim: return to the previous place of work, receipt of salary for the period of unforced absenteeism, compensation for moral damage.
List of attached documents.

Work recovery procedure

If the court decides that the dismissal was carried out illegally, a writ of execution is drawn up. According to this document, the head of the legal entity is obliged to reinstate the employee not in the previous position no later than one working day from the moment the writ of execution is received in the hands of the bailiffs.

The personnel department draws up an order to cancel the order to dismiss the employee, the employee is introduced to it. There is no order to reinstate. Then the employee is informed from what day he can start again to perform his duties, he is asked to provide a work book. In it, the last entry is considered invalid and the details of the court decision are indicated. If a reinstated employee wishes to receive a duplicate of the work book with the restoration of all entries made in it, except for the last one about illegal dismissal, the employer is obliged to do so. Similarly, corrections are made in the employee's personal card, as well as adjustments are made to the timesheet.

It is important that the illegally dismissed employee must be reinstated to the previous position while maintaining the same working conditions, even if the employer has already hired a new person (he is fired) or this position has been reduced (it is reinstated).

Thus, the employee should be reinstated in his position. In practice, however, not all employers who have lost the court are willing to re-hire a legally qualified employee. In case of evasion of the execution of the court decision, the court may additionally fine the enterprise, and if repeated, it may decide to pay the fine in an even larger amount.

Legal aspects of illegal dismissal

If the dismissal of an employee is recognized as illegal, the employer is obliged:

reinstate him in office;
pay him wages for all due time (unforced absenteeism);
compensate for moral damage;
compensate legal costs, pay for the services of the plaintiff's lawyer;
pay a fine in case of non-execution of a court decision;
pay an increased fine in case of repeated delay in the execution of the court decision.

Here are the fines for employers for illegal dismissal of workers:

1000-5000 rubles - for an official of the enterprise;
1000-5000 rubles - for an individual entrepreneur or making a decision to suspend his activities for a period of 90 days;
30,000-50,000 rubles - for entity or termination of activities for up to 90 days.

In addition to these measures, if an appropriate decision is made by the judge for the organizations, individual entrepreneurs and officials an additional suspension may be provided for a period of one to three years.

The success of the court resolution of the case largely depends on how competently the requirements are set out in the statement of claim and evidence is provided in favor of the plaintiff. Therefore, make sure in advance that your interests are represented in court by an experienced lawyer specializing in labor law.

Illegal dismissal from work is the termination of an employment contract with an employee without legal justification. What should an employee who is fired in this way do? Where to go to protect your rights and get back at work?

The legislator clearly states that in order to terminate an employment contract, one must be guided only by the grounds specified in the Labor Code of the Russian Federation and other legislative acts. This list is final and not subject to extended interpretation, in other words, the employer cannot dismiss an employee just because he does not like him. But there are times when one or another ground cannot be applied to an employee, but the employer ignores this fact and fires the person.

At the initiative of the employer

Termination of the contract on the initiative of the employer is regulated by Article 81 of the Labor Code of the Russian Federation. In the case when the company's management wants to get rid of an objectionable employee, it first of all turns to this article, especially since it contains a fairly large number of grounds.

The most common cases of illegal dismissal under this article:

Illegal dismissal due to staff reduction. This ground can be illegal in two cases: when there is actually no reduction, that is, the position is renamed (and sometimes the previous name is retained) and another employee is hired and when the categories of workers for whom this is prohibited by law are reduced (pregnant, single parents, women with children under three years old, etc.).
Taking out several disciplinary action and subsequent dismissal. In this case, it is necessary to pay attention to whether all punishments were legally imposed. Also, you cannot impose two penalties for the same offense (for example, a reprimand and dismissal).
Dismissal as uncertified. If the check for compliance with the position held was carried out only in relation to one employee, then this is illegal. It is necessary to carry out certification of the entire department (areas of work), or all employees of the enterprise. The certification procedure must also be followed.

If an employee was fired by legal grounds, but at the same time violated the procedure established by law, this can also serve as a reason for challenging the termination of the contract. For example, failure to meet warning deadlines in case of downsizing.

An employee's initiative is writing a letter of resignation of his own free will. Can dismissal be illegal if the employee writes a statement about it himself?

In some cases, the employer may put pressure on a person in order to force him to write a letter of resignation. This can be the creation of unfavorable conditions at work (transfer to another room), moral pressure (nagging, remarks), deprivation of bonuses, bringing an employee to dismissal "under the article", etc.

If an employee feels pressured, it is necessary to start collecting evidence before firing. These can be various papers (orders, office notes), dictaphone recordings of conversations with the employer, etc.

It is also considered illegal dismissal when an employee wrote a letter of resignation, and then changed his mind, but the employer refused to return the application, arguing that he had already invited another employee. In this case, human rights will be violated:

If the employer invited another employee only in words, and not in writing.
If, after dismissal, he did not accept the invited employee without good reason.

The dismissed employee will need to prove that he tried to withdraw the application, that is, this must be done in writing.

Where can you go to protect your rights

In the event that a dismissed employee believes that his rights have been violated, and the employer did not have the right to terminate the contract with him, he can contact the relevant organizations:

Labor inspectorate... The employee can apply there with a statement about the violation of his rights. The GIT, in turn, must send an inspector to conduct an investigation within 10 days from the date of the person's request. You can also go first and consult with the inspector.
Prosecutor's office... The algorithm is the same, but the investigation period is increased to 30 days. Depending on the situation, the prosecutor's office may send the employee's application for consideration to the labor inspectorate.
Court... In this case, the employee writes a statement of claim and submits it to the court at the employer's location. This instance is the most universal, since it has the right to consider all cases of illegal dismissal, in contrast to the GIT, which, for example, does not consider cases if they have controversial issues about wages.

You can submit an application to all authorities at once.

The employer must comply with the decision of any of the above bodies, but he also has the right, in turn, to appeal against the decision.

The period during which the employee must have time to appeal the dismissal is determined Labor Code RF and is one month. At the same time, it can be extended if the employee is able to prove that he did not know that his rights were violated.

Therefore, if an employee intends to challenge his dismissal, he needs to start this as soon as he receives a labor service in his hands or he is introduced to the order that he is dismissed.

To prepare an application to appeal against the employer's actions, the employee has the right to request a package of documents on his dismissal, which the employer must issue to him within three days. This must be done in writing. If the employer does not provide documents, this must be indicated in the application as an aggravating circumstance.

A period of one month is given for the employee to make a complaint, the period during which the proceedings will last does not matter. That is, he can apply even on the last day of the month.

What is the compensation for an unlawfully dismissed employee

If the dismissal of an employee was recognized as illegal, the employer must not only reinstate him in office, but also make the following payments:

Compensation for all days of forced absenteeism... It is paid in the amount of the employee's average earnings and is paid for all days, starting from dismissal and ending with the date of the decision on reinstatement.
Compensation for causing moral harm... Paid only by court order. The GIT and the prosecutor's office do not have the authority to establish such compensation.

In addition, the employer must correct the incorrect entry in the work book, and, at the request of the employee, issue a duplicate in which the incorrect entry will be absent. The duplicate is issued at the expense of the employer.

A person has the right to appeal against his illegal dismissal in several instances at once. He must do this within one month. If the dismissal is found illegal, the employer must reinstate the employee at work and pay him compensation for the forced absenteeism.

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