Litigation for wrongful dismissal. What to do in case of illegal dismissal from work? Rules for writing a sample claim

Where to apply for illegal dismissal?

If you have been unlawfully fired, you can apply to the Labor Inspectorate, the Prosecutor's Office or the Court. Appeal to the Labor Inspectorate or the Prosecutor's Office is possible both independently and using the services of a labor law lawyer. The complaint must state all the facts of violation of your rights by the employer, indicate your last name, first name and patronymic, as well as all your contact details, the full name of the organization where you work and its location. As a rule, indication of violated norms of law and references to the law is not required. The employees of these departments are themselves competent lawyers in labor disputes. However, you need to understand that applying to the Prosecutor's Office or the Labor Inspectorate can be effective only if the employer's guilt does not need to be proven, i.e. dismissal is clearly illegal. Otherwise, if employers put forward their own version of events, reinstatement at work is possible only through the Court.

Labour Inspectorate is obliged to accept your complaint against the employer and check the company for violations of labor laws not only in relation to you, but also in relation to the entire company as a whole. As a rule, the labor inspectorate issues an order to eliminate violations of labor laws and imposes a fine on both the organization and specific officials.

Prosecutor's office, upon receipt of a complaint from an employee, as a rule, redirects it to labor inspection. The prosecutor's office usually deals only with labor disputes related to massive non-payment of wages, massive illegal dismissals, as well as cases falling under the Criminal Code.

Court is the only body that has the full right to reinstate a person at work. Its decisions are binding on all citizens and organizations and are executed unconditionally. It should be remembered that in case of dismissal disputes, the term for applying to the court is one month.

When is a dismissal illegal?

1. Lack of grounds for dismissal.

According to Art. 77 of the Labor Code of the Russian Federation establishes general grounds for termination of an employment contract, other grounds not provided for by the Labor Code or other federal law, it can not be.

That is, any dismissal on grounds that are not provided for by the Labor Code or other law is illegal.

In addition to the fact that the dismissal of an employee must be made on the grounds listed in the Labor Code, the employer is obliged to prove in court that such grounds really existed, and were not artificially created by him. For example, if an employee was dismissed with an unsatisfactory test result (Article 71 of the Labor Code of the Russian Federation - Test result when hiring), that is, as not having passed probation, then in a labor dispute lawsuit, the employer will be obliged to prove to the court and the prosecutor that the employee’s competence does not really correspond to the position held, that he did not fulfill the tasks provided for by the Test Plan. The employer is obliged to confirm these facts by offering written evidence for review by the court and the employee of the prosecutor's office.

Also, the court may take into account how much the punishment in the form of dismissal corresponds to the severity of a particular disciplinary offense, even if such an offense is punishable by dismissal.

2. Violation of the procedure for dismissal, as a basis for recognizing the dismissal as illegal.

The order (procedure) of dismissal is a sequence of actions carried out by the employer in order to stop labor rights relationship with the employee. Such a procedure is provided for by the Labor Code and other federal laws.

Significant violations of the procedure for dismissal of an employee include:

provided for in Art. 192 -193 of the Labor Code of the Russian Federation of violations of the procedure for bringing to disciplinary liability, in cases where dismissal is considered as a type of disciplinary liability;

if the employer has not offered the employee all available similar or lower vacant positions suitable for the employee for health reasons (part 3 of article 81 of the Labor Code of the Russian Federation);

if the employer did not take into account the opinion of the trade union in certain cases of dismissal of its members (part 2 of article 82 of the Labor Code of the Russian Federation).

However, individual violations of the dismissal procedure may be regarded by the court as insignificant.

Also, illegal dismissal is the dismissal at the initiative of the employer of pregnant women, single mothers and fathers raising a child under the age of fourteen, except in the event of liquidation of the organization (Article 261 of the Labor Code of the Russian Federation), it is illegal to dismiss an employee at the initiative of the employer at a time when he is in maternity or regular leave, or on sick leave (Article 81 of the Labor Code of the Russian Federation).

In case of violation by the employer of the legislation on labor and labor protection, he may be held administratively liable under Art. 5.27. Code of Administrative Offenses of the Russian Federation.

It should be borne in mind that in the event of an illegal dismissal from work, it is necessary to start acting as soon as possible. According to the provision of Article 392 of the Labor Code of the Russian Federation, the limitation period for labor disputes, i.e. submission deadline statement of claim on illegal dismissal is one calendar month from the day the dismissal order or work book is issued, for other labor disputes, the total period for filing a claim is three months.

Protection of the rights of an employee upon dismissal is most effective if the interests of the injured party are represented by qualified lawyers. By contacting our office for help, you will receive competent legal advice and assistance to challenge the wrongful dismissal in judicial order, in the commission on labor disputes, in the prosecutor's office. Competently drafted claims to the court and to the employer help to quickly and efficiently resolve labor disputes that have arisen.

In the event that your labor rights are violated, do not neglect the services of professional lawyers. We will be able to establish and prove the illegality of the actions taken against you, and we will help restore justice by competently representing your interests in court.

Specialists of the Moscow legal bureau help in resolving all types of labor disputes.

How does recovery work?

Sometimes, even after winning a labor dispute in court, citizens still have questions about the reinstatement procedure itself, especially when the employer does not want to voluntarily reinstate the employee in his previous position.

According to the requirements of Art. 392 of the Labor Code of the Russian Federation, if the employee does not agree with the dismissal, he has the right to apply for reinstatement directly to the court.

The period within which an employee can apply to the court for the purpose of reinstatement at work is one month from the date of receipt of the dismissal order or work book; the state fee is not paid in case of dismissal disputes (Articles 392, 393 of the Labor Code of the Russian Federation).

Lawsuits for reinstatement are held in the district court at the place of registration of the employer and are conducted with the obligatory participation of the prosecutor. The term for consideration of such a category of cases is one month, but in practice this requirement not enforced by the courts.

What to do if you win the Court?

If the dismissal of an employee is recognized by the court as illegal, the employer is obliged to carry out the actual reinstatement of the illegally dismissed employee in his previous position. In addition, the employer pays the employee the average earnings established by the court for the entire time of forced absenteeism, this requirement is provided for by Art. 394 of the Labor Code of the Russian Federation. Such a decision shall take effect immediately, in accordance with the requirements of Art. 396 of the Labor Code of the Russian Federation and art. 211 Code of Civil Procedure of the Russian Federation.

If the employer delays the reinstatement of such an employee, then the court makes a decision on the payment of average earnings for the time when the employer delays the execution of the previous decision on reinstatement.

The decision of the Court on reinstatement in case of illegal dismissal is considered executed if the dismissal order is canceled and the employee is admitted to previous work(Article 106 of the Law on Enforcement Proceedings). Art. 105 of the Law on Enforcement Proceedings provides that the bailiff issues an order to the employer to collect the enforcement fee and sets a new deadline for the execution of the court decision on reinstatement in the event that the employer does not comply with the court decision on the reinstatement of an illegally dismissed employee. However, if in this case the employer does not fulfill the requirements of the executive document in the new term, then a fine is imposed on him in accordance with the requirements of Art. 17.5 of the Code of Administrative Offenses of the Russian Federation and establishes a new period during which reinstatement at work must be carried out by court. If in this case the requirement is not met, the fine increases.

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

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, an employer cannot fire an employee just because he does not like him. But there are times when one or another reason 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 at the initiative of the employer is regulated by Article 81 of the Labor Code of the Russian Federation. In the case when the management of an enterprise wants to get rid of an objectionable employee, it first of all refers 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 redundancy. This ground can be illegal in two cases: when there is actually no reduction, that is, the position is renamed (and sometimes the former name is left) and another employee is hired for it, and when the categories of employees for which this is prohibited by law are reduced (pregnant, single parents, women with children under three years old, etc.).
Issue of several disciplinary actions and subsequent dismissal. In this case, it is necessary to pay attention to whether all punishments have been legally imposed. It is also impossible to impose two penalties for the same offense (for example, a reprimand and dismissal).
Dismissal as not passed attestation. 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 conduct certification of the entire department (direction of work), or all employees of the enterprise. The certification procedure must also be followed.

If the employee was fired for legal reasons, but at the same time the procedure established by law was violated, this may also serve as a reason to challenge the termination of the contract. For example, non-observance of warning terms when reducing staff.

The initiative of the employee is writing a letter of resignation for own will. Can a dismissal be illegal if the employee himself writes a statement about it?

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

If an employee feels that they are being pressured, it is necessary to start collecting evidence even before dismissal. It 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, citing the fact 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 turn to protect your rights?

In the event that the 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. An 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 first go and consult with the inspector.
Prosecutor's office. The appeal 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 location of the employer. This instance is the most universal, since it has the right to consider all cases of illegal dismissal, unlike the GIT, which, for example, does not consider cases if they have contentious issues about wages.

You can apply at any time to all institutions.

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

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 can prove that he did not know that his rights were infringed.

Therefore, if an employee intends to challenge his dismissal, he needs to start this as soon as he receives a labor contract or is familiarized with the order that he is dismissed.

To prepare an application to appeal against the actions of the employer, 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 file 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 illegally dismissed employee

If the dismissal of an employee is declared illegal, the employer must not only reinstate him in his position, 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 from the dismissal to the date of the reinstatement decision.
Compensation for non-pecuniary damage. It is 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. A 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 so within one month. If the dismissal is declared illegal, the employer must reinstate the employee at work and pay him compensation for forced absenteeism.

The term "illegal dismissal" is not in Russian legislation. But in everyday life this term means termination labor contract at the initiative of the employer without sufficient grounds.

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In recent years, the labor law in Russia has been actively developing and an increasing number of people who have been illegally fired are seeking reinstatement or payment of compensation due in accordance with the law.

How to determine

Below are the legal grounds for dismissal:

the organization is liquidated (stops its activity);
there is a downsizing;
the employee does not meet the requirements of the position held, which is confirmed by the certification;
there is a change in the leadership of the organization;
employee repeatedly violates internal order companies without good reason and has a disciplinary sanction (reprimand or remark);
an employee directly responsible for material values and funds committed a guilty act, as a result of which the trust of the employer was lost;
an employee performing the functions of an educational nature has committed an immoral act;
when concluding an employment contract, the employee provided deliberately false information, as well as in other situations.

The employer also has the right to unilaterally terminate labor contract in the event that an employee of the company once grossly violated his obligations or labor schedule.

A gross violation of the working schedule means the following circumstances:

absenteeism or absence from the workplace of an employee for four hours in one shift or day without a good reason;
appearing at the place of work in a state of narcotic, alcoholic or other type of intoxication;
disclosure of secrets of a commercial, government or other nature, including personal data of colleagues;
committing embezzlement, theft, intentional damage or destruction of property;
non-compliance with the requirements of labor protection, which entailed or created a threat of an accident, accident or catastrophe.

If the employee is directly responsible and works with material values or in cash and committed some guilty act, which led to the loss of trust of the management, then the employer has the right to terminate the employment agreement unilaterally on the following grounds:

the worker has not taken measures aimed at preventing the conflict to which he is a party;
did not provide the employer with information (if justified) regarding their income, expenses or the presence of property outside the country, the corresponding property of a spouse or children.

The procedure for imposing a disciplinary sanction

For non-fulfillment or evasion of their work duties, the employer has the right to impose a disciplinary sanction on the employee, such penalties include: reprimand, remark or dismissal.

The employer is obliged to take into account the severity of the misconduct and its circumstances, as well as to comply with the established procedure:

before imposing a penalty to demand from the employee explanatory note(in case of non-submission within two days, a corresponding act is drawn up);
the penalty cannot be applied after six months from the moment the offense was committed;
only one disciplinary sanction is applied for each misconduct;
an order on appropriate measures must be provided to the employee against signature (in case of evasion, an act is drawn up).

Additional grounds for the dismissal of a teacher

Thus, if the above procedure is not followed and the penalty is applied beyond the time limit, then it is illegal.

In addition, there are other grounds for terminating an employment contract concluded with an employee-teacher:

repeated violation during the year of the charter of the educational organization;
single or repeated use of mental or physical violence against the personality of the student;
reaching the maximum age for holding a position.

Athlete

If an employment contract is concluded with an athlete who was disqualified for a period of six months or more, the employer has the right to terminate it unilaterally. The same applies to anti-doping rule violations, even if the offense was committed only once.

Examples

It should not be forgotten that upon dismissal of an employee (at the initiative of the employer), he is entitled to compensation payments, the amount of which varies depending on the basis for terminating the employment contract.

If the dismissal occurs without the above grounds or with their violation, then it may be declared illegal.

The most common situation is when the boss requires you to draw up a letter of resignation at will. This requirement is illegal and should not be followed.

In case of staff reduction, the employer is obliged to pay compensation to the employee, and in case of dismissal of his own free will, such payment is not provided.

Where to go

The following government agencies can help in a situation of illegal dismissal:

labor inspection (its address can be found in the help desk or on the Internet);
prosecutor's office;
judicial authorities.

In order to determine where to apply for the protection of your rights, it is necessary to understand the powers of these bodies and the methods of their work. If a trade union is organized at the enterprise, you can turn to its management for the protection of your rights.

Labour Inspectorate

The Labor Inspectorate oversees compliance with the law and the rights of workers. This should be contacted if there is documentary evidence of illegal dismissal.

The application is made in writing documents confirming violations must be attached to it.

In any case, the labor inspectorate is obliged to carry out an inspection, but if there is not enough written evidence, then the decision may not be made in favor of the employee.

Prosecutor's office

The prosecutor's office must be contacted if the violation of the employer can be classified as a criminal offense. In this case, the prosecutor's office will conduct an investigation and bring the guilty person to justice.

If there were no such circumstances at the time of dismissal, then the prosecutor's office will most likely redirect the appeal to the labor inspectorate.

Judiciary

Appeal to the judiciary is most effective. But a very important role is given to the correct preparation of the statement of claim and the construction of a line of conduct in court.

So, an incorrectly drawn up statement of claim may be rejected by the court and left without consideration.

Deadlines for going to court

It is extremely important to file an application on time, since the Labor Code of the Russian Federation provides for the time limits during which an employee can apply for the protection of his rights to the judicial authorities.

After these deadlines, the statement of claim will be left without consideration, except for the situation when the deadline for filing an appeal was missed for a good reason.

The following deadlines are provided for filing a claim regarding the protection of labor rights:

in disputes relating to illegal dismissal, the employee has the right to apply to the judicial authorities within a month from the date of receipt of the relevant order or work book;
for other labor disputes, the employee has the right to go to court within three months from the moment he learned or could find out about the violation of his rights.

Legal Consequences

If the dismissal is recognized as illegal, the following legal consequences may occur:

the person is subject to reinstatement in the previous workplace on the conditions under which he was previously hired;
if the position is already occupied by another person, then such an agreement with a new employee is subject to termination on the basis of the Labor Code of the Russian Federation or he is transferred to another place of work;
if by the time of restoration the company is liquidated, then the worker is recognized as dismissed in accordance with the Labor Code of the Russian Federation;
it is possible to issue a decision on the recovery of compensation for the illegal termination of the contract in favor of the employee without restoring him to his original place;
it is possible to make a decision to change the grounds for dismissal;
if it is proved that the basis on which the employee was dismissed illegally and, as a result of its wording, the latter could not get a job, then this time is payable based on the amount of average earnings, while the amount paid is credited to the severance pay;
wages accepted for work with another employer are not subject to reduction;
the amount of severance pay paid during this time is not subject to reduction;
in the situation in which a fixed-term employment contract was concluded and the employee was fired before the term of its validity, the latter is subject to reinstatement at the previous place of work;
if the period of work fixed-term contract has already expired, then the wording that served as the basis for dismissal changes;
upon recognition of the dismissal as illegal, the employee of the personnel department is obliged to make an entry in the work book about the invalidity of the contested dismissal and reinstatement in the same place or about changing the basis for terminating the employment contract;
on written request of an employee, the employer is obliged to provide a duplicate of the work book without a record of illegal dismissal;
if for the period from the day of illegal dismissal until the time of restoration at the previous place of work, an increase in the level of remuneration was carried out, then the employee's salary is subject to an increase by an appropriate coefficient;
an employee may be awarded compensation for non-pecuniary damage (many factors are taken into account, including the presence and extent of such harm);
An employer may be held administratively liable for violation of an employee's labor rights and illegal dismissal.

Arbitrage practice

When considering claims for illegal dismissal, the court is guided by the provisions of the Labor Code of the Russian Federation, the circumstances of the case and the evidence presented. In addition, the provisions of the Plenum are taken into account Supreme Court RF, approved by the Decree of 17.03.2004.

For example, when a court considers a claim for reinstatement in the same place labor activity of a person dismissed at the initiative of the employer, the obligation to prove the existence legal grounds to terminate the employment contract is assigned to the organization.

In doing so, the court takes into account the following factors:

it is not allowed to terminate the contract with employees who are on sick leave, on vacation, pregnant women, as well as mothers raising children under the age of three;
it is forbidden to dismiss single mothers with children under 14 years old (a child with a disability - up to 18 years old);
it is forbidden to dismiss men who have children without a mother;
termination of the contract with underage workers if permission from the labor inspectorate has not been obtained;
employees of the organization acting in defense of the plaintiff cannot be dismissed.

A complete list of circumstances that guide the court is reflected in the above-mentioned Plenum of the Supreme Court of the Russian Federation.

For absenteeism

Most often, employers terminate an employment contract for absenteeism. This term refers to the absence of an employee at the workplace for four hours in a row during one day or shift, as well as absence from work without a good reason.

Often there are situations in which the employer deliberately forges an order for disciplinary action and subsequent dismissal for absenteeism.

In such a situation, the employee, as soon as he learns about the illegal dismissal, must immediately take the following measures:

demand the issuance of an order for disciplinary action and dismissal;
if the employer provides only a dismissal order against signature, it is necessary to write directly on the document that the order was not issued, the employee does not agree with the grounds for dismissal and no explanation was required from him for the violation;
if possible, you need to take a picture of the submitted documents at least with a mobile phone camera;
you need to talk with colleagues - perhaps one of them will agree to testify in court in your favor;
if on the days of the so-called absenteeism, the employee was at the workplace and called up customers or conducted business correspondence through Email, signed documents - it is necessary to photograph or copy these papers, they will serve as evidence of the illegality of the dismissal;
if the work schedule is free or irregular, or is associated with traveling around the city, which is expressly indicated in job description, then it will be quite difficult to prove absenteeism to the employer in court when the employee provides such documents where these conditions are spelled out.

How does recovery work

The employee, upon receipt of the relevant decision of the competent authority, has the right to take the following measures:

apply with an application to initiate enforcement proceedings to the bailiff service at the address of the organization's location (you must have an appropriate decision with you);
if a new worker is hired to the previous place, he is fired or transferred to another position;
the dismissal order is canceled and a corresponding entry is made in the work book about the restoration in the same place;
the employee returns to work in the same position from which he was illegally dismissed and with the same level of remuneration.

His term

Restoration in the same place when the dismissal is recognized as illegal is regulated by the Labor Code of the Russian Federation. The decision to restore is subject to immediate execution.

In case of delay due to the fault of the employer, the worker is paid a compensation payment in the amount of the average salary for the entire period of forced waiting.

The dismissal of an employee of an enterprise can occur either at the initiative of the employee himself or at the initiative of the employer, and in the second case, the legislation severely limits the possibilities of the organization in the reasons for the dismissal of the employee from his position. Termination of an employment contract should occur only for reasons established by law, since otherwise it will be considered illegal and can be appealed by a former employee of the enterprise in court.

Most employees who have been fired without legal grounds do not go to court to cancel the order and reinstate them. Only a third of those illegally dismissed are ready to fight for the restoration of their rights. This is due to the fact that some workers simply do not know about their rights, while others do not want to get involved with the judicial system.

Despite this, the number of labor disputes is increasing every year, as many illegally dismissed people experience difficulties in finding further employment.

Usually, all labor disputes over illegal dismissal are related to:

violation of the dismissal procedure, for example, when an employee is dismissed of his own free will, if the enterprise is being liquidated, so as not to pay the allowances and payments due to the employee;
the application of a disciplinary sanction that does not correspond to reality, for example, dismissal for absenteeism, if the employee has documents confirming his absence for good reasons - illness, accident, calling him as a witness or eyewitness to a crime in law enforcement or judicial authorities, etc.

Termination of the employment contract at the initiative of the employer must take place in full accordance with the norms of the current labor legislation. Otherwise, the employee has the right to go to court to protect his rights, as well as reinstatement and compensation for forced absenteeism.

Complaint in court for wrongful dismissal

In case of illegal dismissal, the employee can apply to the labor inspectorate and to the court for further proceedings. Unfortunately, the labor inspectorate is not always ready to consider complaints from former employees due to the high workload and formal attitude to each application.

The most successful solution to problems is to file a claim with the judicial authorities for further consideration and a decision in favor of the applicant or his employer when examining evidence from each side. It is noted that it is almost impossible to prove the illegality of dismissal when signing an application of one's own free will, therefore it is recommended not to write such a statement even if the employer insists.

The statement of claim is filed at the place of registration with the district court, while the employee is exempted from paying the state fee and further incurring any expenses, with the exception of involving a lawyer or a lawyer to protect the interests former employee organizations. In this case, a petition is attached to the statement of claim to recover from the organization not only moral compensation, but also compensation for the costs of a representative.

The advantages of considering a labor dispute in court are undeniable, since the lawsuit allows:

The most effective way to protect the violated rights of workers. In court at former employee there is an opportunity to clearly demonstrate all violations of the employer upon dismissal, as well as to attract witnesses of violations.
Significantly reduce legal costs general rule the process is free, i.e. You do not need to pay a state fee to initiate proceedings.
To recover material and moral damage from the employer, including reimbursement of expenses for a defense lawyer.
To be reinstated in the position upon establishing the illegality of the dismissal.
Get compensation for forced absenteeism.

The main disadvantage of considering a case in court is the length of the proceedings, which rarely meets established by law deadlines.

The statute of limitations for illegal dismissals

The deadlines for applying to the court to restore the rights of employees in case of violation of the law by the employer, including regarding illegal dismissal, are quite strict, but they can be restored under exceptional circumstances. In accordance with Art. 392 of the Labor Code of the Russian Federation, an employee can apply to the court to declare the dismissal illegal within one month from the date of issuance of his work book or execution of the dismissal order, otherwise it will not be possible to restore the violated rights.

At the same time, Art. 154 of the Code of Civil Procedure of the Russian Federation establishes that the period for considering an application for recognizing the dismissal as illegal should not exceed one month, although this rule is rarely observed, due to the high workload of the courts.

Restoration of the missed deadline is allowed when:

illness of the plaintiff, in which he was unable to apply to the judicial authorities to protect his rights. The disease must be documented by a certificate or an extract from the hospital where the treatment was carried out.
business trip of a citizen, which is confirmed by documents and extracts from the new employer.
the occurrence of force majeure obstacles, in particular, cataclysms - floods, earthquakes, volcanic eruptions and others.
caring for a disabled and sick family member who is constantly required - caring for a paralyzed family member or a family member with dementia, leaving them alone is dangerous to their life and health.

At the same time, an appeal to other bodies for the protection of the rights of workers is not considered a basis for restoring the missed deadline, since lawsuits can be filed in parallel with an appeal to the labor inspectorate or the prosecutor's office.

Recognition of dismissal as illegal

Labor legislation establishes that recognition of dismissal as illegal can occur only in court. Appeal to the labor inspectorate or other bodies for the protection of the labor rights of employees will not be able to affect the cancellation of the dismissal order or its invalidation under the current legislation.

Employers are doing their best to avoid dismissal of employees due to staff reduction or liquidation of the enterprise, since in this case they will have to bear additional costs for paying severance pay equal to the average monthly salary of the employee, and these are additional costs that they try to reduce by all means, including by dismissal any far-fetched grounds - violation of discipline or non-compliance with labor regulations.

The prosecutor can initiate a trial if a citizen applies to the prosecutor's office with an appropriate application, however, such actions do not fall within the duties of the prosecutor, and he may refuse to satisfy the application if there is no significant violation of labor laws.

The consequences of illegal dismissal for the employer

The consequences for the employer can be divided into two categories - financial liability for violation of the law and civil liability in the form of restoration of the violated rights of the employee.

In the event of unlawful dismissal of an employee, the employer must:

reinstate a former employee in a position;
pay the employee compensation for the period of forced absenteeism associated with illegal dismissal, equal to the average daily wages for each day of absenteeism;
compensate for moral damage if the court satisfied the employee's claim for compensation for moral damage;
compensate for the cost of lawyers' services in the amount established by a court decision;
pay a fine if for some reason the court decision was not executed.

If the dismissal is found to be illegal, the employee must return to work the day after the court decision is made, with the exception of weekends and if the employer is unwilling to comply with the decision of the judicial authorities.

In case of non-compliance with the decision, the following sanctions may be imposed on the employer:

a fine in the amount of 1 thousand - 5 thousand rubles for the head of the organization;
a fine in the amount of 1 thousand - 5 thousand rubles for an employer who is individual entrepreneur;
a fine in the amount of 30 thousand - 50 thousand rubles per legal entity;
termination of activities for up to 90 days in case of repeated violation of the execution of a court decision on the reinstatement of an employee in a position;
disqualification of the IP or legal entity up to one year.

Each case is individual and requires special approach with the study of all the features of dismissal. To make a decision in favor of a former employee, it is necessary to draw up the correct evidence base.

Illegal dismissal orders

It is almost impossible to establish specific grounds for dismissal that may be considered illegal, since each case requires individual consideration and trial. The employer must prove and explain the reason for termination of the employment contract, as well as provide all the documents accompanying the procedure.

Art. 81 of the Labor Code of the Russian Federation establishes that dismissal at the initiative of the employer is allowed in the following cases:

Inconsistency of the qualifications of the employee with the position he occupies. Many employers misunderstand the norms of this article, as they dismiss them for non-compliance without conducting various examinations and certification, which is fundamentally wrong and may lead to an appeal against such a decision in court. A professional suitability assessment should be carried out with an expert opinion on the performance by the employee of his duties.
Repeated non-fulfillment of the norms of the employment contract, including non-fulfillment labor discipline. Most often, the reason for dismissal on this basis is systematic small violations in the form of lateness, lack of a dress code, if it is established by the company's Charter, frequent absences from work, and so on. All violations must be documented with several witnesses, as well as with the conclusions of a specially established commission. The violator must be subject to disciplinary action.
Single failure job duties. In this case, the misconduct of the employee must grossly violate the established norms of discipline and rules of procedure. Gross violations of the terms of an employment contract include dismissal for absenteeism, appearing at the workplace in a state of drug or alcohol intoxication, disclosure of secret information, theft of property of the organization or any other property at the employee’s place of work, as well as gross violation of labor protection standards. For dismissal on such a basis, it is enough to commit one misconduct, and it must be documented by a special commission.
Dismissal based on loss of confidence. Termination of an employment contract for this reason applies only to employees who are directly related to the cash or commodity circulation within the enterprise. Other employees cannot be fired due to loss of confidence, as in this case the employer will violate the norms of the current labor legislation, etc.

If this rule is violated, the dismissal order may be declared illegal. Reinstatement followed by compensation payments will help solve the problems that have arisen, however, for the employee, the implementation of work in such conditions most often becomes unbearable due to a biased attitude towards him. Such citizens are advised to receive all payments due and write an application on their own, so that in the future the employer does not have other grounds for dismissal.

Recovery from wrongful dismissal

The decision to recognize the dismissal as illegal is subject to immediate execution, that is, the next day after the entry into force of the decision, the employee must be reinstated and begin to perform duties.

For reinstatement, an appropriate order is issued, which is filed with the employee’s personal file and transferred to the custody of persons authorized in the organization. As such, there is no order for reinstatement, however, the employer can independently determine such a document and include it in the general document flow of the enterprise.

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You can download a sample Application for reinstatement in case of illegal dismissal in .doc format

Conflict situations between the employer and the employee often lead to the dismissal of the latter.

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Therefore, a natural question arises, what to do in case of illegal settlement and where to apply for the restoration of their rights?

Basic moments

During temporary disability or vacation, you cannot be left without a job:

single mothers raising teenagers;
women who have one-year-old children;
disabled children.

What it is

The dismissal of an employee is considered illegal if:

There is a clear violation of the provisions of the Labor Code.
Occurs during his absence from the workplace - sick leave, vacation.
There is no good reason for.
Guarantees prescribed by law () are not taken into account.

Having decided to reduce the staff, the employer is obliged to carry out the entire procedure, taking into account the requirements of the law:

notify in advance each worker who is subject to dismissal;
provide work place individuals who cannot be counted.

Violation of the rights of workers in some cases becomes the cause of litigation.

An injured employee can take advantage of a pre-trial claim to the employer for illegal dismissal.

Then, going to court to win the case. He will be reinstated in the workplace if the infringement of his rights by the employer is proved.

Possible grounds for terminating an employment agreement

The employee has the right to terminate the employment contract by submitting an application to the employer. In the absence of a document, the dismissal is recognized as illegal.

The Labor Code of the Russian Federation contains a list of legal grounds for terminating a work contract:

The parties came to a mutual agreement. The leaving person writes a corresponding application with a request to calculate it according to. The document is signed by the employer. This gives advantages when registering with the territorial employment service. The allowance is calculated according to official salary rather than the minimum wage.
The term of the employment agreement has expired. An exception may be the continuation of relations with the consent of both parties ().
The person did not pass (). Must be documented.
The teacher committed an immoral act in children's institution(Article 336 of the Labor Code of the Russian Federation).
The employee expressed a desire to terminate the contract. In two weeks, he notifies the management in writing (). By agreement of the parties, the settlement may occur earlier than the deadline. On the last day, a work book is issued and the final payment is made. Before the expiration date, the employee can change his mind and withdraw the application.
The boss has lost confidence.
The employer is counting on the employee for violation of labor discipline (Article 81 of the Labor Code of the Russian Federation). The worker appears at the workplace in drunk(alcohol, drugs, toxic intoxication). The presence of repeated absenteeism in a person without a good reason. Disciplinary action should not be removed before the day of dismissal.
Safety regulations were not observed, which led to serious consequences.
Administrative offense.
Everyone is satisfied with the transfer of a worker to another position or to another enterprise. Confirmed in writing. You also need an invitation to new job or drafting for another position.
employee divulged confidential information. This also applies to personal data of other people.
The change in the owner of the organization was the reason for filing ().
The terms of the employment agreement have changed. They do not suit the worker ().
Changes in the physical condition of the employee. He is offered another position. He refuses in writing ().
Certification confirmed the insufficient qualifications of the worker.
Employer changes location entrepreneurial activity. It does not suit the worker ().
Reduction in staff required.
There were circumstances beyond the control of the parties ().
The labor agreement contains violations of legislative acts relating to employment. Continuation of cooperation has become impossible (). A person receives a one-time compensation in the amount of a monthly salary.

Additional conditions for terminating an employment agreement apply to employers, rescuers, state, municipal employees and the military ().

The basis becomes:

Retirement age.
Disclosure of state secrets.
Opening business activity.
Business organization management.
Participation in the dispute of two parties of the state body.

To carry out the calculation procedure from the place of work, in addition to the grounds, documentary evidence of the facts is required.

To dismiss an employee who is seen in a state of intoxication, you need:

an act with fixed signs of a state of intoxication;
medical examination;
explanatory note of the violator of the order.

To terminate an employment contract due to absenteeism, you must have:

an act with a recorded absence without a good reason at work for more than four hours;
written explanation of the truant.

Sometimes the reason for terminating the contract may be circumstances that cannot be influenced by either party.

These include:

Call for military or alternative service.
Restoration by a court decision to this place of the former employee.
The employee must be punished according to the court decision.
about the disability of the individual.
Death of one of the parties.
Extraordinary circumstances - a large-scale accident, hostilities, natural disasters.

In all these situations, the last day of work is used for dismissal.

The legislative framework

All questions regarding labor relations, are set out in the Labor Code of the Russian Federation:

Article 81 contains a list of reasons for dismissal.
stipulates general scheme process.
prescribes the established compensation, the term of settlements, proper execution.

What you need to know about the illegal dismissal of an employee

Dismissal on the basis that is not provided for or by legislative acts is subject to challenge in court.

After a disciplinary offense, the following punishment may apply ():

rebuke;
comment;
dismissal.

If the court decides that it was enough to confine oneself to the first two methods, then the termination of labor relations will be declared illegal.

When choosing a punishment, the severity of the offense is taken into account. Each case is individual and is considered separately.

Legal dismissal is documented:

the head issues an appropriate order;
a mark is made in the work book;
The employee reads the document and puts his signature.

In some cases, before canceling the employment agreement, the employee is offered to write.

After getting acquainted with the decision of the management to terminate the employment agreement, the employee can use the next month to restore his rights.

Where to go

To establish justice, a person who has fallen under dismissal has the opportunity to apply to three state authorities:

Federal labor authority.
Prosecutor's office.

The Labor Code of the Russian Federation provides for the creation of a state labor inspectorate that would control compliance with the requirements of labor legislation.

This structure performs two types of checks:

legal issues;
compliance with safety regulations.

The legal inspector will help restore the privileges of the dismissed person. The court makes the final decision on a dispute about the violation of workers' rights.

His decision is always carried out. There are cases when they resort to the help of bailiffs for the full execution of a court verdict.

The courts make decisions in the following areas:

reinstate at work;
change the wording of the reason for dismissal;
produce monetary compensation the size of the average monthly income;
compensate for moral damage.

Bodies of the prosecutor's office conduct inspections related to the violation of any type of legislation, based on an application to the prosecutor's office.

Their powers are similar to those of a labor inspectorate:

produce ;
bring to administrative responsibility;
demand the elimination of violations;
offer to return identities workplace ().

Is there any compensation

Upon reinstatement at work, the employee has the right to compensation for damages related to illegal dismissal:

Sometimes the court obliges the employer to change the wording of the grounds for dismissal. Then the date of the actual termination of the employment relationship becomes the date of the relevant decision.

If the employee officially found another job, the dismissal dates from the date preceding this moment.

The average salary is paid for forced absenteeism. The reason - the victim could not get a new job due to the incorrect formulation of the grounds for terminating the previous relationship.

Cash is issued in case of serious harm to the worker.

This may be dismissal for no reason, in violation of the established procedure for the procedure. The amount of the payment is determined by the court.

Nuances for a soldier

The military personnel also include employees of the internal affairs bodies. The requirements for both categories are identical.

Entering the service, its passage, termination, legal status employee are defined:

TK RF.

The procedure for the dismissal of the military is described internal orders. Documents contain:

List of positions.
Who carries out their dismissal.
Employee notice templates.

Legal dismissal requires the presence of the following factors:

Judicial practice on the current situation

Frequent labor disputes are opened according to a statement of claim to recognize the dismissal as illegal from:

All expenses for proving the legality and validity of the termination of the employment relationship are borne by the employer.

Benefits of litigation:

The negative point is the time for consideration of the claim. It usually takes quite a long time.

Formation of a statement of claim in court

The statement of claim is submitted to the court at the location of the enterprise.

Sets the registration period government agency- a month should not have passed from the date of receipt of the work book.

Rules for writing a sample claim:

A clear and concise statement of the subject matter.
Indication of the requirement for reinstatement in the position held, compensation for forced absenteeism and moral damage.
Provision, work book, concluded agreement, acts of bringing to responsibility. Evidence of falsification of the employer's arguments. Characteristics from previous jobs.
Enumeration of legislative acts giving the right to meet the stated requirements.
Attachment of all documents mentioned in the application.

How to correctly assess moral damage

The legislation does not provide clear methods for calculating compensation for non-pecuniary damage. The judge, based only on his subjective opinion, decides on compensation for moral damage.

Contacting the Labor Inspectorate

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