Violation of the procedure for dismissal judicial practice. Illegal dismissal from work: what to do, the period of recovery, suit. Illegal dismissal of the TK RF

The term "illegal dismissal" is a sour -med phrase that is used to describe situations where the employee was dismissed without a visible legal reason or with a violation of the dismissal 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 illegal dismissal of the employee should be understood in legal grounds. These provisions are contained in labor legislation and are not subject to expansion by the employer himself.

Foundation of dismissal

The list of reasons for the dismissal of the employee is quite small.

So, the employer is competent to fire in the following cases.

When the employer's organization ceases to exist. The reasons can be different: bankruptcy, voluntary liquidation, termination of activities by decision of the State Border and so on.
When on objective reasons, there is a reduction in the number of employees - the state in the enterprise. The reason, for example, can be a financial position, a change in the type of activity and the like.
If the worker is not qualified for his position. This is detected on the certification of employees. At the same time, if the company has a vacant position for which the qualifications are considered sufficient, the employer is obliged to offer the employee this vacancy.
Changing the owner of the enterprise itself can not be a legal cause, but it is always accompanied by re-certification and abbreviations.
When the employee does not follow internal order at the enterprise repeatedly.
If the position implies the material responsibility of the employee, then it is possible to dismiss it at the loss of the leader's confidence in repeated violations of the procedure for doing business.
Some enterprises have employees responsible for compliance with corporate ethics or safety. If they violate the rules for which they respond, they can also be dismissed.
When an employee came to the position illegally: presented incorrect information or fake paper.
With a different gross violation of the rules in the enterprise.

The dismissal of a person for other reasons is illegal. Each reason for dismissal is to confirm the relevant documents or testimony.

What is a gross violation

The routine in the workplace is established by the head, the legislator limited the situations that are recognized as a gross violation. This is done so that any minor violations or non-fulfillment of the employer's claims has become a reason for dismissal.

There are cases of gross violation of the rules of the actions of the employee.

The passage of work on insignificant reasons is either the lack of on the workplace without any specific reasons for more than 4 hours per shift.
The arrival of drunk work, under the influence of drugs or psychotropic substances.
Declections of information representing an object of commercial or state secrets. Also disclosing information about other employees, their personal data and other personal information.
Causing property harm to the enterprise by deliberate damage, waste or disinformation. The definition of such an act is a defining factor.
Violation of safety and other rules for labor protection, which led to serious consequences or caused an accident or emergency.

In addition to dismissal, employees who admitted such situations are attracted to material, administrative or even criminal responsibility.

Loss of confidence

The fact that the employer has lost confidence, implies a certain guilty act by a materially responsible employee. However, the act of act itself is not a reason for dismissal, unless, of course, it does not qualify as a criminal case.

The founding of the dismissal of the employee due to the loss of confidence:

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

However, this does not exclude the fact that the employer is obliged to prove the fault of the employee.

Special reasons for dismissal

The reason for the dismissal of individual categories of employees can be the following grounds:

For teachers:

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

For athletes:

disqualification for more than six months;
violation of the application of doping.

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

However, when identifying their innocence, employees are entitled to proportionate compensation.

Examples of illegal dismissal

The termination of the employment contract for any reasons not specified in law is considered illegal. However, as practice shows, it is not an obstacle to employers to dismiss their employees.

Most often there are the following circumstances of illegal dismissal:

dismissal under coercion;
dismissal with violations of the procedure established by law;
dismissal without proof of the foundation.

Dismissal under coercion

Unfortunately, the mentality of the simple people is such that under the minimal threats from the leadership write statements about dismissal at their own request. Such coercion is absolutely illegal.

However, in order to prove its rightness, an employee must make convincing facts of coercion. A simple employer's statement about this may not be regarded as coercion, but as a proposal.

An excellent solution will be audio and video materials that have fixed this fact. But it is best not to succumb to such threats and persuasion from the employer.

Violation of the dismissal procedure

Even with the presence of legitimate grounds, the violation of the dismissal procedure is a reason for recognizing such dismissal illegal.

So, the law establishes the following procedure for dismissal:

as the staff decreases, employees must be notified no later than the month;
when dismissing for other reasons, notify employees need in two weeks;
it is impossible to dismiss the employee who is on vacation or passing treatment;
employee must provide a copy of the order;
after the dismissal of the employee, no later than two weeks, it is necessary to make a calculation with him and return the workbook.

Failure to comply with this procedure is the illegal dismissal of the employee. The order for such dismissal when considering by the court is invalid.

Dismissal without evidence

Each reason specified at the disposal of the employer on dismissal as a basis is confirmed accordingly.

So:

When dismissal is justified by repeated breakdown impairments, each of them should be marked with a reprimand or other disciplinary recovery, which are reflected in the registration book of the leader's orders. At the same time, a copy of each order must be transferred to the employee.
Material harm caused by the employee must be recorded by the assessment act and the order of the head.
The absence of an employee in the workplace should be fixed in the table of attendance, which is maintained by the accounting.
The inconsistency of the employee of the office should be confirmed by the conclusion of the attestation commission.
The staff reduction should be reflected in the accounting documentation and the decision of the head of the enterprise.

The lack of proper confirmation of the foundation will lead the invalidity and illegality of dismissal.

Where to complain?

Of course, when the employee illegally fired, he begins to look for help from state bodies. Protecting the interests of the employee is the highest priority for labor legislation. So what to do and where to go?

Assist in the implementation of these provisions of the Labor Code can:

trade union enterprises;
federal labor inspectorate;
prosecutor's Office;
district court.

Each of these institutions has powers to protect the interests of workers.

Trade union

Almost every permanent employee of the enterprise is a member of the trade union. There is no such employee without the consent of the trade union authority. If this happened, then the authority needs to be directed.

The trade union, in turn, is competent to send a complaint to the work inspection, which can force the employer to return an employee to the office.

Labor Inspection

As already mentioned, the Federal Labor Inspectorate or how else is called - the "Police of Labor", has the powers of coercion of the employer. In addition, this body can attract a leader to justice.

However, the activities of the Inspectorate ends at checking the fact of compliance with the foundations of dismissal by the requirements of the law, as well as compliance with the legal procedure. Other facts: testimony of witnesses, illegal reduction This body does not study.

Prosecutor's Office

This body has common supervisory powers, and on the fact of violation of the requirements of legislation, it is necessary to contact him first. In addition to checking the documentation, the prosecutor's office can conduct some investigative measures to establish truth. Therefore, this body should be consistent with the fact of the distortion of information, an employee's unreasonable accusations, and so on.

Court

As practice shows, the highest efficiency in solving cases of illegal dismissal gives the submission of a claim to court. Most court decisions in such cases are made in favor of the employee.

The statement of claim is given to the District Court, in whose jurisdiction is an enterprise. The court decision is mandatory for everyone, and its execution is under the control of bailiffs.

To contact the prosecutor's office or labor inspection, it is necessary with the simultaneous submission of a claim to the court, since the first two organs do not make a thorough study of the issue.

Dates of appeal

Also, when challenging the wrongdoing orders for the employer's dismissal have time. Skipping them deprives the employee of the right-wing to appeal against the illegal deprivation of work.

To submit an application to the relevant authorities, the following deadlines are established.

In the federal labor inspectorate, it is necessary to apply with the complaint within one month from the date of the provision of a photocopy of the disposal order. It is impossible to extend this period.
The lawsuit in the judicial authority should be served also no later than one month. However, if the employee succeeds in presenting evidence that he learned about the illegality of his dismissal, much later, and appeals as soon as he learned, then the term could be extended.

The passage of the prescribed time and the lack of appeal does not exempt the employer from responsibility for the illegal dismissal of the employee.

Restoration at work

In the case when the court dismissed the employee is illegal, the return to work is as follows:

Together with the court decision, the court issues a document for the executive body, which immediately needs to be sent to the bailiffs. The head of the enterprise is obliged to fulfill the decision no later than one day after that.
Reception of another employee or the fact that the position has shown, does not prevent the return of an unlawful dismissed employee.
It is necessary to trace the manager to cancel the declaration of dismissal, and did not restore the employee. It matters when receiving a payment for forced unemployment.
About the beginning of work The person must be notified in writing. In the same letter, you must specify the abolition of the declaration of dismissal.
Correction of the inscriptions in the employment book. The inscription on dismissal is invalid. The person also has the right to update the employment record with the restoration of all the entries.
None of the working conditions on which the employee worked before the illegal deprivation of work, no reason changes.
A personal business of an employee at the enterprise is also restored and corrected, with a separate mark of court decision.
The operating table of work is corrected and complemented. Time, during the period of which the person was unemployed, is counted as an employment experience with appropriate pay.

An employee has the right to compensation for all types of damage caused to him by illegal deprivation of labor space. The fact of damages and the return of the illegally dismissed person does not relieve the employer from the answer for illegal actions.

Thus, each illegally dismissed person is under the protection of the law. It remains only to competently implement their legal rights. A qualified lawyer will be able to help. The most important thing is not to give up and do not give in to the leader's persuasion, which can be finished in a peaceful way even in the process of trial.

In accordance with the law of the employee, it is possible to dismiss only on the grounds that are provided for in the TK RF. But no one has canceled the human factor, so often many are fired precisely on psychological motives, causing them under the necessary article of labor legislation.

In such a situation, everyone has the right to protest the decision of the leadership in court, because it is possible to dismiss only for violations of labor legislation, and not for the tendency to always speak the truth, inconvenient to the head.

Regulation on the TK RF

A practically a complete list of grounds for dismissal is given in Article 77 of the Labor Code of the Russian Federation, where in particular it is said that the employee can be fired for:

violation of labor discipline (theft, alcohol intoxication, immoral behavior, disclosure of commercial secrecy,);
non-fulfillment of assigned duties (the presence of proven, the results of certification, violation of safety regulations);
upon liquidation and and positions.

According to the norms of the law, some employees in view of their social status or status can be dismissed only in rare cases, as they relate to preferential categories. In particular, the termination of labor cooperation with:

pregnant women;
workers who have small children up to 3 years old, either mothers or single fathers of children under 5 years old;
parents of disabled children;
the only family feeders that contain at least 3 children.

Also on the basis of Art. 81 TC RF, it is impossible to dismiss the employee during the period of disability or stay on vacation. However, as practice shows, many employers ignore the norms of the law and still reduce the disagreeable persons that they are not suitable for one or another personal motives.

Examples of common illegal situations

As a rule, the most common occasion is the termination of cooperation with a woman in maternity leave. In such a situation, many company executives are trying to get rid of the decreers, reducing their jobs, which is a direct violation of the norms of Art. 256 of the Labor Code of the Russian Federation, where it is said that her workplace should be saved on the female decree before the end of the holidays.
An equally common case is the termination of the relationship with a single mother, which brings up a small child. After all, as a rule, young children often sick, and leave them not with whom that endless hospital and painting from work entail. Of course, such a situation like not everyone, that's why workers with young children do not at all take to work or very quickly dismiss on the far-ending occasion.
But with disagreeable tasteless men, men are different. For the slightest offense, for example, late to work for 5 minutes, the absence of helmets in the workplace and the violation of the safety regulations immediately declare a reprimand, and one after another, to dismiss already after the third recovery with a calm consciousness.
An equally common way is and conducting an extraordinary 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 one desire, the leadership is not enough, there must be a documentary, which, by the way, is established by law.
Another way to get rid of disagreeable employees is the nominal reducing position with the introduction of a new vacancy with similar duties, which is again a violation of labor laws.
Finally, it is worth mentioning a conclusion, even if the obligations of the future employee will be performed on an ongoing basis. In such a situation, we can regulate the situation and recognize the agreement to be perpetual only in court.

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

Where to turn in that case?

In accordance with Art. 392 TK RF The employee has the right to solve any employment dispute in court, in particular, with illegal dismissal, everyone can apply to court for defending his own rightness, but only during the month from the date of receipt of the order of dismissal.

If the agreed period is missing, and the former worker will not be able to confirm the presence of good reasons that prevented him to fulfill its right within the prescribed period, when considering the recognition of the termination of illegal workers will be denied due to the obligation of the statement, regardless of whether it is right or not.

You can solve the dispute not only in court. If an employee is not yet dismissed, but he was already informed about the soon abbreviation, it is desirable to begin to collect evidence, which then can be submitted as a confirmation of its rightful to competent authorities, namely to the labor inspectorate or the prosecutor's office:

Currently, everyone has mobile phones that have a dictaphon function. In anticipation of the dismissal, it is desirable to stock up with several talk entries with direct threats to fire on the controversial occasion.
You also need to make copies of all documents that will be the basis for reduction. Suppose an order for a recovery, explanatory, acts of violations, that is, all documents that confirm the fact of making a disciplinary offense.
In accordance with Art. 84.1 Tk of the Russian Federation, when dismissing, an employee has the right to demand any copies of documents that confirm its work activity - from to the table of outputs to work or documents on recovery. If the manual refuses to issue copies, it is desirable to ask for a written refusal either again to fix the conversation on the voice recorder.

Further, during the trial, it is possible to protest not only the dismissal, but also a reprimand, which served as the basis. In a similar situation, with the abolition of disciplinary recovery or at least one of them, the recovery of the employee in the previous position will occur automatically, since, in the absence of the cause and availability of violated rights of the employee, the court will indeed decide on the provision of the person of the previous position.

Terms and procedure for recovery at work

As mentioned above, the employee is given for 1 month to prepare and submit a claim to court. But the consideration of the claim depending on the complexity of the case and the claims may last from two months to six months With the involvement and witnesses, and employment consultants.

A former employee also has the right to submit an additional claim for the recovery of moral damage for caused by suffering and compensation in accordance with Art. 234 TK RF.

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

With a positive outcome of the case, the employee can count on restoring in the previous position and on the payment of compensation for depriving the right to work for every day in the amount of average earnings from the moment of dismissal and before the date of the court decision, which the employer must fulfill immediately.

After receiving a court decision at the enterprise, an order should be published on the abolition of the order about the dismissal and restoring an employee in his previous position. Then you need to make changes to the employment record and make the appropriate payments specified by the court.

In the documentary, the recovery procedure is simple, but problems may arise if another employee has already been adopted, which will have to be dismissed, or if the position is generally excluded from. In such a situation, it will be necessary to make changes to the agreed document, and then accept the former employee, and all personnel procedures will need to be carried out in extremely short time.

Responsibility of the employer

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

Also, the employer will be obliged to pay all the amounts of compensation that have been established to pay during the trial.

After the completion of the case, the bailiffs will not only check the execution of the will of the court, but will decide on the new punishment, already more strictly, if the decision is not fulfilled at all or in violation of the deadlines.

It should be noted that any enterprise that made a violation of the rights of workers will be taken to account for labor inspection, which will entail unscheduled frequent inspections and new penalties. In order to avoid agreed sanctions, each employer should think about the fact that any violation of the rights of personnel will primarily affect the financial activities of the organization.

22.05.2013 22:33

DECISION

Name of the Russian Federation

On June 19, 2012, the Chertanovsky District Court of Moscow as part of the presiding judge Badova O.A., with the participation of the prosecutor Popika M.Yu., lawyer Khokhlova A.V., with the secretary of Savelyeva E.A., examined in open court a civilian Case on the suit PAK FULL NAME14 to the HOA "Oasis Park" about restoration at work, recovery of average earnings, moral damage compensation

Installed:

The plaintiff appealed to the court with the specified claim. It substantiates its requirements by what works in the HOA "Oasis Park" since 2009. In the post of commandant, performs its work in accordance with the job description. DD.MM.YYYY He became aware that he was released from his post from the announcement, which was posted for residents of the house. With the order of dismissal, he was not familiarized, the act of refusal to acquaintance was also not compiled. It believes that the defendant is broken by the procedure. The reasons for the plaintiff is still unknown. From the words of the defendant, the plaintiff became known that he was dismissed for DD.MM.MMGG program, however DD.MM.YYYH, he was in the Chertanovsky OSP. Thus, due to the fault of the defendant, the plaintiff is illegally deprived of the possibility of working. He asks to recognize dismissal illegal and restore at work as a commandant of the HOA "Oasis Park", to recover the average earnings during the forced absenteeism, compensation for moral damage in the amount of 100,000 rubles.

Subsequently, I clarified my requirements, I asked to recognize the dismissal illegal and restore at work as a Commandant of the HOA "Oasis Park", to recover the average earnings during the forced absenteeism from DD.MM.YYYY on the day of the decision of the court, compensation of moral damage in the amount of 5,000 rubles.

At the court hearing, the plaintiff supported the stated requirements on the grounds set forth in the claim with refinement.

Representatives of the defendant objected against the presented requirements on the grounds set out in the recall.

The court, listening to the parties, witnesses, examining the materials of the case, finds a claim to be satisfied partially on the following grounds.

According to Art. 77 TK RF, grounds termination of employment contract These are: 4) Termination of the employment contract at the initiative of the employer (Articles 71 and 81 of this Code).

According to Art. 81 of the Labor Code of the Russian Federation, the employer may be terminated by the employer in cases: 6) a single gross violation by the employee of labor duties: a) absenteeism, that is, the lack of in the workplace without good reasons throughout the day (shift), regardless of its (its) Duration, as well as in the absence of in the workplace without valid causes for more than four hours in a row during the working day (shift)

According to Art. 84.1 TK RF, Termination of employment contract is issued by the order (order) of the employer. With the order (ordered) of the employer about the employee must be familiar with the painting. At the request of the employee, the employer is obliged to give it a properly certified copy of the specified order (orders). In the case when the order (Order) is about termination of the employment contract It is impossible to bring to the attention of an employee or an employee refuses to familiarize himself with him as a painting, an appropriate entry is performed on the order. In a day termination of employment contract The employer is obliged to issue an employee a labor book and make it a calculation in accordance with Article 140 of this Code. According to the written statement of the employee, the employer is also obliged to give him a properly certified copy of documents related to work.

According to Art. 192 of the Labor Code of the Russian Federation, for the commission of a disciplinary offense, that is, non-fulfillment or improper performance by an employee by its fault of labor duties assigned to him, the employer has the right to apply the following disciplinary recovery: 1) Remark; 2) reprimand; 3) dismissal on appropriate grounds. When you impose disciplinary recovery, the severity of the perfect misconduct and the circumstances under which it was perfect were performed.

According to Art. 193 of the Labor Code of the Russian Federation, before applying disciplinary recovery, the employer must request a written explanation from the employee. If after two working days the specified explanation by the employee is not provided, then the corresponding act is drawn up. Unposable explanation by an employee is not an obstacle to the use of disciplinary recovery. Disciplinary penalty is applied no later than one month from the date of the misconduct detection, not counting the time of the employee's disease, staying on vacation, as well as the time required for the opinion of the representative body of workers. The order (order) of the employer on the use of disciplinary action is announced by an employee for painting within three working days from the date of its publication, not counting the time of the absence of an employee at work. If the employee refuses to familiarize himself with the specified order (ordered) under the painting, then the corresponding act is drawn up.

According to Art. 234 of the Labor Code of the Russian Federation, the employer is obliged to reimburse the employee who has not received earnings in all cases of illegal deprivation of its ability to work. Such a duty, in particular, occurs if the earnings are not obtained as a result: illegal dismissal of the employee from work, his dismissal or transfer to another job;

According to Art. 237 of the Labor Code of the Russian Federation, the moral harm caused to the employee with unlawful actions or inaction of the employer is reimbursed by the employee in cash in the size determined by the Agreement of the Parties to the employment contract. In the event of a dispute, the fact of causing an employee of moral damage and the amount of its reimbursement is determined by the court regardless of the property damage to be reimbursed.

According to Art. 392 TK RF, the employee has the right to go to court for the permission of an individual labor dispute within three months from the day when he learned or should have learn about the violation of his right, and on disputes about dismissal - within one month from the date of the presentation of a copy of the order On dismissal or from the date of the issuance of the Labor Book. The employer has the right to apply to the court on the disputes of damage to the employee caused by the employer, within one year since the detection of damage caused.

According to Art. The 394 Labor Code of the Russian Federation, in case of recognition of dismissal or transfer to another work, the employee must be restored on the previous work by the body considering an individual employment dispute. The authority considering an individual employment dispute decides on the payment of an employee of the average earnings for all time forced absenteeism or the difference in earnings for all the time of execution of the lower job. In cases of dismissal without a legitimate basis or with a violation of the established procedure for the dismissal or unlawful translation to another work, the court may, at the request of the employee, make a decision to recover in favor of a monetary compensation of moral damage caused to the specified actions. The size of this compensation is determined by the court.

According to Art. 396 of the Labor Code of the Russian Federation, the decision on the restoration of an employee's illegally disadvantaged worker at the work of an employee who is illegally translated on another work is subject to immediate execution. Upon delay in the employer, the execution of such a decision, the body that makes a decision makes a definition about the employee's payment for the entire time delay in the implementation of the decision of the average earnings or difference in earnings.

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

DD.MM.YYYY Pak FULL NAME16 was dismissed at his own request from the position of Commandant Tszh "Oasis Park" according to paragraph 3 of Art. 77 TK RF.

DD.MM.YYYY Between the HOA "Oasis Park" and Pak FULL NAME17, an employment contract was concluded, according to which the plaintiff was adopted as the Commandant of HOA "Oasis Park".

DD.MM.YYYY 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 by paragraph 2 of Part 1 of Art. 81 TK RF.

DD.MM.YYYY by order without the number of Pak In SU was restored to the HOA "Oasis Park" to work as a commandant from DD.MM.YYYY with salary according to a staff schedule.

DD.MM.YYYY Add to Chairman of the HOA "Oasis Park" The plaintiff was written a statement with a request to let go for one hour, due to the challenge to the bailiff-performer for 17 hours. 00 min. DD.MM.YYYY.

DD.MM.YYYGG Chairman of the Board FULL NAME13, Chief Accountant FULL NAME12, Inspector of the FIO6 personnel department, FULL NAME7 dispatcher, FULL NAME8 was drawn up with an act that an employee of Pak FULL NAME18 Commander HOA "Oasis Park" was absent in the workplace during the working day DD.MM.YYYY from 11 o'clock. 00 min. up to 18 hours 00 min. No good reason. An absence refused to explain.

DD.MM.YYYGI addressed the chairman of the TSZH, the chief engineer FULL NAME20 was written a job note that Pak FULL NAME21 DD.MM.YYYY unmarried left the workplace, including the territory of the house, he did not warn him about his absence; I did not follow the performance of works by his ward FULL NAME9, which was engaged in painting elevators.

DD.MM.YYYY by order of the Chairman of the Board of the HOA "Oasis Park" Pak FULL NAME19 was made a requirement to provide a certificate or other official document justifying the absence of it in the workplace on which there is a mark of the Chairman of the Board of FULL NAME13, the chief accountant FULL NAME12, the FULL NAME6 inspector that the plaintiff is familiar with the order, refused to receive an order from the order.

DD.MM.YYYY Chairman of the Board of FULL NAME13, chief accountant FULL NAME12, inspector of the FIO6 personnel department, the FIO8 guard was drawn up with the act that Pak Fio22 refused to give oral and written explanations about the lack of DD.MM.YYYY

DD.MM.YYYGG Chairman of the Board FULL NAME13, Chief Accountant FULL NAME12, the inspector of the FIO6 personnel department was drawn up with an act of refusing Pak FULL NAME23 to get acquainted with the order for the recovery of the provision of a certificate or other official document substantiating his absence in the workplace of DD.MM.YYYY

The acts from DD.MM.YYYY and DD.MM.YYYY, signed by the Chairman of the Board of FIO13, the Chief Accountant FULL NAME12, the inspector of the FIO FOUNDATION DEPARTMENT that Pak FULL NAME24 refused to verbally and in writing to explain about his absence DD.MMM . Agg

Order No. from DD.MM.YYYY PAK FULL NAME25 was dismissed according to P.P. "A" of paragraph 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 of the Chairman of the Board on the refusal of the plaintiff from the signature in the order.

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

From the answer to the statement of the bailiff of the Chertanovsky OSP of UFSSP in Moscow FULL NAME10 from DD.MM.YYYY, it follows that on the execution of the Chertanovsky OSP of the UFSSP of Moscow, there was an executive production number on the recovery of debt against the debtor of the OASIS - Park in favor of Pak FULL NAME27. According to the executive production materials of Pak FULL NAME28, the bailiff for the reception of DD.MM.YYYY was not called. The packager of Pak Fio29 was located in the premises of the Chertanovsky OSP DD.MM.YYYY in not a reception time on his own initiative. At his request, an agenda was issued that he was visiting the bailiff. The time and period of his stay DD.MM.YYYY in the PCD room is not possible, due to the lack of such information in the executive proceedings

According to the agenda of the judicial bailiff of the Chertanovsky OSP of UFSSP in Moscow, FULL NAME10 for the executive production number it follows that Pak FULL NAME30 was located in the Chertanovsky OSP DD.MM.YYYY from 12 o'clock. 00 min. up to 18 hours 00 min.

The case is provided with the order of the bailiff of the Chertanovsky OSP of UFSSP in Moscow FULL NAME10 that he instructs to pass on purpose of decree No. from DD.MM.YYYY in Sberbank OJSC. " On this instruction, there is a bank mark from DD.MM.YYYY from the explanation of the plaintiff it follows that since the instruction to the bank was granted after 16 hours. 00 min. And according to the rules of the bank put the date of the next day. The court is not presented evidence that DD.MM.YYYY Pak FULL NAME31 was absent in the workplace. In this connection, the Court comes to the conclusion that this order was provided to the bank DD.MM.YYYY

From the explanation of the plaintiff it follows that since DD.MM.YYYY The Chairperson and the Secretary of the HOA was not in the Board, he left a statement from DD.MM.YYYG that he needs to appear in an OSP from the dispatcher. Where a statement is not known to him.

Witness FULL NAME11 showed that he is a resident of the house and the former Chairman of the HOA "Oasis Park". In the period when she was Chairman of the Board of HOA. The plaintiff was dismissed to reduce the state, but by the court decision, he was restored at work, but after it was removed from work. He saw that the plaintiff goes to work, but his workplace was sealing. The fact that the plaintiff dismissed it became known from the announcement. According to the plaintiff, she knows that he went to the baptism, there was no 4 o'clock and Xu volars. Currently, the Chairman of the HOA comes into the rule. Late and many issues cannot be solved. The dispatcher work around the clock. The secretary of the Board comes per hour. The application for the Board can be left from the dispatcher, but no mark on the statement is not set. The commandant obeys the chief engineer and the Chairman of the Board.

The witness FULL NAME12 showed that it works as a chief accountant in the HOA "Oasis Park" from DD.MM.YYYY, she knows that the plaintiff was dismissed. The plaintiff refused to sign acts of dismissal in April 2012. The salary is accrued in accordance with the working time accounting table, which is a personnel inspector, signed by an engineer and chairman of the Board. In March 2012 She worked each from 09 o'clock. 00 to 18 hours. 00 min. DD.MM.YYYY She did not see Pak FULL NAME32. DD.MM.YYYY she was in his office, heard the scandal, she left the office and went to the secretary, where Pak FULL NAME33 shouted about a statement, and FULL NAME13 asked him to provide documents, why he was not at work. He shouted, refused to give explanations. FULL NAME13 said to write an explanatory that Pak FULL NAME34 refused to give an explanation. She signed acts from DD.MM.YYYY orders made up what orders she did not remember she does not remember, signed the act of DD.MM.YYYY or not the act made up the personnel inspector per day When they are signed, and then all them were painted. The plaintiff with the order of dismissal was familiarized. She saw that the order was lying on the table in the corridor. The plaintiff came out of the Cabinet of the Chairman and shouted. There were some more notifications about the need to pick up the labor book. DD.MM.YYYY I did not decide that Pak FULL NAME35 is missing in the workplace since this is not her business. She subscribed in the act that a person refused that he was presented as a claim since she pak FULL NAME36 DD.MM.YYYY did not see, he signed in an act of his absence. For what you need an act, it was not interested.

Analyzing the explanations of the parties, the testimony of witnesses, presented evidence, the Court comes to the conclusion that the plaintiff was absent in the workplace for a valid reason, because He carried out the instructions of the bailiff, in connection with which his dismissal for the walk could not be recognized by lawful.

Under such circumstances, the claimant's requirement to restore it at work with DD.MM.YYYY as a Commandant of the HOA "Oasis Park" is subject to satisfaction.

According to the Help HOA "Oasis - Park", the monthly salary of the plaintiff is 21930 rubles, the average daily - 1056 rubles. 87 kopecks.

Since the claimant's request for work is satisfied, then the defendant in favor of the plaintiff is subject to the recovery of the average earnings during the forced absentee per railing with DD.MM.YYYY on DD.MM.YYYY in the amount of 47559 rubles. 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 moral damage in the amount of 2000 rubles.

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

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

I DECIDED:

Pak FULL NAME37 Restore at work in the HOA "Oasis Park" as a commandant with DD.MM.YYYY.

To recover with the HOA "Oasis Park" in favor of Pak Yu SU 49559 rub. 15 kopecks

In the rest of the claim, refuse.

The solution in terms of recovery is subject to immediate execution.

To recover with the HOA "Oasis Park" state duty in the state of state in the amount of 1686 rubles. 77 kopecks.

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

In our difficult time, nothing can guarantee stability. After all, even if there is an official employment site, almost any employee may be disagreeable, and the employment contract will be terminated with it. In many cases, this kind is concretely about illegal dismissal. Prove that the employer violated the rights of his employee only through the court. With a favorable coating of the circumstances and the decision in favor of the plaintiff, it is entitled to claim recovery in his position, obtaining wages for the entire time of the non-aired absenteeism, compensation for the payment of the lawyer's services, as well as moral damage. But before proceeding with litigation, it is necessary to find out in what cases the dismissal is considered illegal, where to apply primarily which documents and other nuances are needed. About them and will be discussed.

Recognition of dismissal illegal: grounds and features

List absolutely all the grounds for which dismissal will be recognized as illegal, very problematic. Each situation should be considered individually. But most often the following cases are found when the court becomes to protect the interests of the plaintiff:

Dismissal without legal reasons. A complete list of legal grounds for which the 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 of them: the liquidation of the enterprise, the reduction of the labor state, the violation of labor discipline, the discrepancy between the qualifications of the employee of the position occupied by him, etc. However, that the court recognize the dismissal is not sufficient enough, so that in the workbook dismissed the foundation belongs to the category of legal. The employer additionally must prove that this reason in reality had a place to be, and that the dismissal is a measure of exposure corresponding to the severity of a certain disciplinary offense.
Violation of the procedure at the dismissal of the employee. It is possible to dismiss the employee according to any of the existing grounds in a strictly established manner. Among the main stages include such: documentary fixation of the violation by an employee of labor discipline (for example, an act of the absence of it in place during working hours); obtaining an explanation from the violator of the discipline of perfect misconduct; the publication of the order for dismissal and familiarize the employee's abuse; The work of the full calculation with the employee for all spent time and days of unused vacation; An entry in the workbook with the obligatory indication of the reason for the dismissal and reference to the article of the Labor Code. However, if individual procedures are not observed when dismissal, the Court may accept them as insignificant to recognize dismissal illegal. Substantial grounds can be attributed to:
- if the employer did not offer an employee, a different place of work corresponding to the state of his health (if there is any);
- involvement of a disciplinary responsibility with violation of the norms of existing legislative acts regulating labor relations;
- if the employer did not agree on his decision on dismissal with the trade union regarding the staff members of the trade union.
Dismissal of certain categories of citizens. For example, it is always considered illegal dismissal of pregnant women, single mothers, fathers who are alone to educate the child / children under 14. The exception is only those cases when the dismissal of these citizens occurs due to the complete elimination of the organization. In the case of its restructuring, the employer is obliged to provide place of work for these citizens in priority.
Dismissal of workers on vacation. Moreover, we are talking both about the usual and maternity leave, as well as about finding an employee on a hospital.

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

non-compliance with the dress code or corporate ethics;
the fictitious reduction of the state, which is not in fact;
forcing an employee to compile a declaration of dismissal on its own initiative;
the presence of several bases at the same time.

Which organs and in what time it is to contact if you were illegally fired?

Earlier in the article, we have already considered where to complain to the employer, but now we will analyze the case of illegal dismissal separately. If you are sure that when dismissing the employer violated your rights, it is necessary to begin to achieve justice to restore. First of all, it is best to draw up and send a claim letter addressed to the company's director. It is necessary in it competently and with reference to regulatory acts to state the circumstances that, in your opinion, indicate the illegal nature of your dismissal. Such a letter should be written in two copies.

If no action from the employer followed, its claims can be sent to the following instances:

Trade union. Any members of the trade union can not be dismissed without receiving the consent of the latter. The competence of the trade union includes the obligation to consider complaints from illegally dismissed employees and the direction of claims in labor inspectorate.
State labor inspectorate. With the appearance in this body, slow should not be - the application must be sent no later than 1 month from the date of dismissal. It may consider the day of receiving a workbook on the hands of the work or the moment of familiarization with the order to terminate the employment contract. After the adoption of such an application, the labor inspector is obliged to conduct an inspection no later than 10 days and for its results oblige an employer to return the employee to the previous position and pay him relying compensation. However, it should be known that such an inspection is predominantly a formal character, since by obtaining explanations from witnesses, collecting evidence, etc., the inspector will not be engaged. Therefore, it is best to prepare a lawsuit in court at the same time with the direction of the application for the inspection on labor.
Prosecutor's Office. The functions of this authority in terms of consideration of complaints from illegally dismissed citizens are similar to the functions of the State Labor Inspection. The prosecutor's office is also obliged to verify and in establishing that the norms of labor legislation are violated to direct the case to the judicial instance.
Court. If the hopes for the efficiency of employees of the state inspection of labor and the prosecutor's office are not enough, please contact the court at the placement of the enterprise. It should be done for a month from the moment of dismissal. In special cases, this period can be extended, but only if you are able to prove that they were in ignorance that your labor rights were violated during dismissal. If you win the court, the execution of the decision will be followed by bailiffs, which will not allow the unfair tenant to avoid the legal obligation to restore the plaintiff and pay compensation to it.

Preparation and appeal to court

The advantages of going to court several:

Accessibility of the trial from a financial point of view. According to Art. 393 Labor Code of the Russian Federation, an individual is exempt from the payment of state duty when the claim is submitted to the court to restore its labor rights. Therefore, the total amount of costs for litigation is much less than usual.
Efficiency. Perhaps, only in court can seem to consider all claims of the plaintiff and understand the entire attack between the tenant and the employee.
The ability to recover compensation for causing moral damage. State labor inspectorate does not possess such right.

The main lack of appeal to the court is the duration of the proceedings. Although the legislative period of consideration of this kind of cases is set only one month, in fact, it is extremely rare.

So, if you decide to go to court, to start do the preparation of the necessary documents, namely:

Labor contract . It must be concluded at the time of accepting an employee to the staff. However, not all employers give it to employees in hand. Therefore, take care so that you have this document that determines the main working conditions. Moreover, it is important that in it the real pay for labor. In this case, it will be difficult to qualify for paying salary during the forced absenteeism in the volume in which you really received it earlier.
Labor book with records of employment and dismissal from it. If you worked unofficially, in court, the employer may simply declare that he sees you for the first time. This once again confirms the vulnerability of workers working unofficially.
Copies of orders for employment and dismissal.
Help with the designation of the position, qualifications, average monthly wages, the characteristics of the employee and the attitude of it to work.
Documents on bringing to work responsibilities (if any).
Evidence that explicitly confirm that the arguments of the employer are falsified.

All documents you requested by the employer must provide within five working days. When evading this duty, this must be reflected in the lawsuit and additionally, it is noted that the right references will ask the court himself.

In the claim, the sample of which can be viewed here (application), should appear the following details:

The name of the judicial instance, the data of the plaintiff and the defendant.
The circumstances of hiring and dismissal from work, the reasons why the plaintiff suggests that the dismissal is not done by law.
Requirement of the plaintiff: Return to the former place of work, receiving a salary during non-forced absenteeism, compensation for moral damage.
List of attached documents.

Recovery order at work

In the event of a decision of the decision that the dismissal was illegally carried out, the executive list is drawn up. Under this document, the head of the legal entity is obliged to restore the employee of the wrong position no later than one working day from the moment the executive list will be received by the orders of the bailiffs.

The personnel department includes an order to annul the order of the dismissal of the employee, the employee means with it. The order for recovery does not exist. The employee then inform about how day he can start again to fulfill his duties, asked to provide a labor book. In it, the last record is considered invalid and the details of the court decision are indicated. If the employee restored in his posts wishes to get a duplicate employment record with the restoration of all records made in it, except for the last about illegal dismissal, the employer must do this. Similarly, corrections are made in the personal card of the employee, and adjustments are made to the working time accounting tab.

It is important that illegally dismissed employee must be restored to the previous position with the preservation of the former working conditions, even if the employer has already received a new person on this place (he is fired) or this position has been reduced (it is restored).

Thus, the recovery of the employee in office should occur. However, in practice, not all employers who losing court wish to reiterate a legally competent worker in their staff. When evading the execution of a court decision, the court can additionally finfing the enterprise, and when repaired, to make a decision on the payment of the fine even in greater.

Legal aspects of illegal dismissal

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

restore it in office;
pay him wages for everything due time (unfulfilled absenteeism);
compensate moral damage;
compensate for legal costs, pay the plaintiff lawyer;
pay a fine in case of non-fulfillment of a court decision;
pay a fine in an increased amount when re-delayed execution of the court decision.

Here are the dimensions of fines for employers when unlawful dismissal of workers:

1000-5000 rubles - to the official officer;
1000-5000 rubles - on an individual entrepreneur or making a decision to suspend its activities for a period of 90 days;
30000-50000 rubles - to a legal entity or termination of activities for up to 90 days.

In addition to these measures, in the event of an appropriate decision of the judge for organizations, individual entrepreneurs and officials, disqualification may be further provided for the period from one year to three years.

The success of the judicial permit depends largely on how correctly the requirements will be set out in the claim and evidence in favor of the plaintiff. Therefore, in advance to take care that your interests in court represented an experienced lawyer specializing in labor law.

Illegal dismissal from work is the termination of an employment contract with an employee without a legitimate justification. What to do an employee who was fired in this way? Where to seek to protect your rights and recover at work?

The legislator clearly suggests that to terminate the employment contract, it is necessary to be guided only by those grounds that are indicated in the Labor Code of the Russian Federation and other legislative acts. This list is final and expanded interpretation, in other words, the employer cannot dismiss the employee, just because he does not like it. But there are cases when it is impossible to apply to the employee, one or another reason, but the employer ignores this fact and dismisses a person.

At the initiative of the employer

Termination of the contract on the initiative of the employer regulates 81 Article Tk RF. In the case when the management of the enterprise wants to get rid of an objectionable employee, it first turns to this article, especially since it contains a fairly large number of grounds.

The most common cases of illegal dismissal on this article:

Illegal dismissal to reduce the state. This reason may be illegal in two cases: when there is actually no reduction, that is, the position is renamed (and sometimes leave the previous name) and take another employee to it and when the categories of workers are reduced to which it is prohibited by law (pregnant women, lonely parents, Women having children up to three years, etc.).
Multiple disciplinary penalties and subsequent dismissal. In this case, it is necessary to pay attention to whether all the penalties are legally made. Also, it is impossible to impose two issues for one and the same offense (for example, reprimanding and dismissal).
Dismissal as not passed attestation. If the verification for compliance with the position was carried out only with respect to one employee, it is illegal. It is necessary to conduct certification of the entire department (direction of work), or all employees of the enterprise. The certification procedure should also be observed.

If the employee was fired on legal grounds, but at the same time violated the procedure established by law, it can also serve as a reason for challenging the termination of the contract. For example, non-compliance with the status of warning while reducing state.

The employee's initiative is the writing of the statement for dismissal at your own request. Can there be illegal dismissal if the employee himself writes a statement about this?

In some cases, the employer can put pressure on a person in order to force it to write a statement application. This may be the creation of unfavorable conditions at work (translation to another room), moral pressure (soldiers, comments), deprivation of premiums, summing up the employee to dismissal "under the article", etc.

If the employee feels that pressure is put on it, it is necessary to start collecting evidence even before dismissal. These can be various paper (orders, service notes), voice recorders of conversations with an employer, etc.

Also illegal dismissal is the case when the employee wrote a letter of dismissal, and then changed his mind, but the employer refused to return the application, motivating this by 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, not written.
If after dismissal, he did not accept the invited worker without good reason.

A fired worker will need to prove that he tried to withdraw a statement, that is, it should be done in writing.

Where can I contact to protect your rights

In the case where the dismissed worker believes that his rights are violated, and the employer did not have the right to divorce the contract with him, he may contact the relevant organizations:

Labor inspection. The worker can turn there with a statement about the violation of his rights. Git in turn should send the inspector to conduct an investigation within 10 days from the moment of human circulation. You can also first go and consult with the inspector.
Prosecutor's Office. The algorithm of appeal is the same, but the deadline for the investigation increases to 30 days. Depending on the situation, the prosecutor's office may send an employee's statement for consideration in labor inspection.
Court. In this case, the employee writes the statement of claim and applies 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 Git, which, for example, does not consider cases if there are controversial issues about the salary.

You can submit an application at once in all instances.

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

The term during which the employee must have time to appeal the dismissal is determined by the Labor Code of the Russian Federation and is one month. At the same time, he can be extended if the worker is able to prove that he did not know that his rights were infringed.

Therefore, if the employee intends to challenge his dismissal, he needs to start it as soon as he receives a labor or he will be familiar with the order that he is dismissed.

To prepare a statement for appealing the actions of the employer, the employee has the right to request a package of documents on its dismissal, which the employer must give him a three-day period. Do it need written. If the employer does not give documents, it must be specified in the application as an aggravating circumstance.

The term of one month is given so that the employee turns with a complaint, the period during which the proceedings will continue, does not matter. That is, he can apply even on the last day of the month.

What is the compensation of illegally dismissed employee

If the employee's dismissal was recognized illegal, the employer should not only restore him in his position, but also to make the following payments:

Compensation for all the days of forced absenteeism. It is paid in the amount of the average earnings of the employee and is paid for all days, ranging from dismissal and ending with the date of recovery decision.
Compensation for causing moral damage. Paid only by court decision. Git and the prosecutor's office do not have the authority to establish such compensation.

In addition, the employer must correct the wrong entry in the employment record, and at the request of the employee, give a duplicate, in which the wrong recording will be absent. Duplicate is discharged at the expense of the employer.

A person has the right to appeal his illegal dismissal in several instances. He must do it for one month. If dismissal is recognized as illegal, the employer must restore the employee at work and pay him compensation for forced rushing.

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