Violation of the order of dismissal judicial practice. Reinstatement at work in case of illegal dismissal. How to minimize losses after an employee files a claim

19.04.2020

In an environment of fierce labor competition, an employer may resort to breaking the law in order to fire an employee. In this case, every employee has the right to state protection and can not only be reinstated to work illegally abandoned, but also receive compensation for this time. Timeliness of treatment and a properly built line of defense will achieve positive results in the shortest possible time.

Illegal dismissal under the Labor Code of the Russian Federation

The Labor Code of the Russian Federation contains more than a dozen articles regulating the legal relations of the parties when terminating a work agreement. A contract is considered invalid if it fails to comply with the established norms. The legal consequences of illegal transfer and dismissal, if proven, can cause the employer not only material harm. Responsibility for the illegal dismissal of an employee is nominated both on an administrative and criminal scale.

The contract is terminated illegally if:

The employee was forced to write a statement under pressure;
The employer falsified the reason for the termination of the relationship;
Compensation sums were incorrectly paid.

Any of the reasons must be proven in court.

Illegal dismissal - where to apply

An employee with whom an employment contract was incorrectly terminated may apply to any of the proposed authorities in turn or simultaneously:

Federal Labor Inspectorate. This authority can only conduct an internal investigation at the enterprise on the filed application of the employee. Detection of falsified data gives grounds to the inspector for further appeal to the court;
Prosecutor's office. This executive body is authorized by the data submitted in the application, using the necessary legal instruments for this;
Court. The judiciary is both an investigative and punitive body. That is why going to court has the most rapid and serious consequences.

Any chosen body will require from the employee not only a correctly drawn up application, but also an evidence base for the illegality of termination.

Wrongful dismissal letter sample

To file a lawsuit in court, a dismissed person must comply with the conditions on territorial appeal.

The application must indicate:

Legally correct data on all three parties of further office work;
the value of the claim;
State the essence of the violation;
Give references to the law;
Provide evidence of wrongful dismissal from work;
Express the essence of the requirements.

Application to the prosecutor's office for illegal dismissal - sample

By submitting an application to the prosecutor's office, the employee can afford a more capacious expression of his claims. The complaint can reflect not only the essence of the fact that happened, but also describe the facts preceding the event.

The application must contain:

Information about the applicant and the organization that canceled the contract with the employee;
The essence of what happened in a reasoned form;
Data confirming the stated facts;
Request for an investigation.

Any statement or complaint may be disputed by the employer. Therefore, a prerequisite for a positive outcome of the case is the provision of evidence.

Calculation of compensation for forced absenteeism in case of illegal dismissal

If the issue of improper dismissal from work is proven, the employer is obliged not only to reinstate the person in his workplace, but also to pay compensation for the time spent outside the service.

When calculating compensation, all days from the moment of suspension from work until the moment of reinstatement are considered. For calculation according to the code, the average payment of one labor day and multiplied by the number of days of suspension.

Reinstatement after wrongful dismissal

The decision of the court to reinstate an illegally dismissed employee gives impetus to the following events:

Cancellation of the termination order labor relations;
Calculation of compensation for simple and moral damage;
Making adjustments to the last entry included in the employee's personal card; Correction of an entry in the work book;
Restoration of experience.

Often, further work with the management is not possible and the employee himself leaves after the restoration.

The period of reinstatement at work in case of illegal dismissal

Labor disputes are dealt with fairly quickly. In court, such cases are of paramount importance, 30 days are allotted for their consideration. But in practice, clarification of all the circumstances may take a longer time, up to 3 months. Reinstatement at work occurs within the time limits established by the court, after 10 days of data to appeal the decision.

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

Recognition of dismissal as illegal: grounds and features

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

Dismissal without legal reason. A complete list of legal grounds on which an employee can be dismissed at the request of only the employer is contained in article 81 Labor Code RF. Among the main ones are: liquidation of the enterprise, reduction of the labor force, violation of labor discipline, inconsistency of the qualifications of the employee with the position he occupies, etc. However, for the court to recognize the dismissal as legal, it is not enough that the basis that belongs to the legal category appears in the work book of the dismissed person. The employer must additionally prove that given ground in reality, there was a place to be, and that dismissal is a measure of influence corresponding to the gravity of a certain disciplinary offense.
Violation of procedure when dismissing an employee. It is possible to dismiss an employee for any of the existing grounds only in a strictly established manner. Among the main stages, the following can be distinguished: documentary fixation of a violation of labor discipline by an employee (for example, an act of his absence on the spot in working time); obtaining an explanation from the violator of discipline about the misconduct committed; issuing a dismissal order and familiarizing the employee with it against signature; making a full settlement with the employee for all hours and days worked unused vacation; an entry in the work book with the obligatory indication of the reason for dismissal and a link to an article of the Labor Code. However, if certain procedures are not followed upon dismissal, the court may accept them as insignificant for recognizing the dismissal as illegal. Significant grounds include:
- if the employer did not offer the employee another place of work corresponding to the state of his health (if any);
- bringing to responsibility of a disciplinary nature in violation of the norms of the current legislative acts regulating labor relations;
- if the employer has not coordinated his decision to dismiss with the trade union in relation to employees - members of the trade union.
Dismissal of certain categories of citizens. For example, the dismissal of pregnant women, single mothers, fathers who alone are raising a child / children under 14 is always considered illegal. The only exceptions are those cases when the dismissal of these citizens occurs due to the complete liquidation of the organization. In the event of its restructuring, the employer is obliged to provide a place of work for these citizens as a matter of priority.
Dismissal of employees on vacation. Moreover, we are talking about both ordinary and maternity leave, as well as finding an employee on sick leave.

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

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

Which authorities and within what time frame should you contact if you have been illegally fired?

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

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

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

Preparing and going to court

There are several advantages to going to court:

Availability of the trial from a financial point of view. According to Art. 393 of the Labor Code of the Russian Federation individual exempted from payment of state duty when filing a lawsuit to restore their labor rights. Therefore, the total cost of litigation is much less than usual.
Efficiency. Perhaps only in court can they properly consider all the claims of the plaintiff and understand the whole background of the relationship between the employer and the employee.
The possibility of recovering compensation for causing moral harm. The State Labor Inspectorate has no such right.

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

So, if you decide to go to court, first start preparing required documents, namely:

Labor contract . It must be concluded at the time the employee is accepted into the state. However, not all employers give it to employees in their hands. Therefore, make sure that you have this document that defines the basic conditions for work. Moreover, it is important that the real wages are indicated in it. Otherwise, it will be difficult to claim wages for the period of forced absenteeism in the amount in which you actually received it before.
Employment book with records of employment and dismissal from it. If you have been working informally, the employer may simply claim in court that he is seeing you for the first time. This once again confirms the insecurity of informal workers.
Copies of hiring and dismissal orders.
Certificate with the designation of the position held, qualifications, average monthly wages, characteristics of the employee and his attitude to work.
Documents on bringing to labor responsibility (if any).
Evidence that clearly confirms that the employer's arguments are falsified.

The employer must provide all the documents you request within five working days. If this obligation is evaded, this must be reflected in the claim and additionally indicated so that the court itself requests the necessary information.

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

The name of the court, the data of the plaintiff and the defendant.
Circumstances of hiring and dismissal from work, the reasons why the plaintiff assumes that the dismissal was not carried out according to the law.
Claimant's demand: return to the previous place of work, receiving a salary for the time of unforced absenteeism, compensation for non-pecuniary damage.
List of attached documents.

Reinstatement at work

If the court decides that the dismissal was carried out illegally, a writ of execution is drawn up. According to this document, the head of the legal entity is obliged to restore the employee to the previous position no later than one working day from the moment the writ of execution is received by the bailiffs.

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

It is important that an illegally dismissed employee must be reinstated to his previous position with the same working conditions, even if the employer has already accepted a new person for this position (he is fired) or this position has been reduced (it is being restored).

Thus, the reinstatement of the employee in the position should take place. However, in practice, not all employers who have lost the court are willing to re-accept a legally competent employee into their staff. If the court decision is evaded, the court may additionally fine the enterprise, and if it is repeated, it may decide to pay an even larger fine.

Legal aspects of illegal dismissal

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

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

Here are the fines for employers in case of illegal dismissal of employees:

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

In addition to these measures, in the event of a decision by a judge for organizations, individual entrepreneurs and officials may be additionally provided for disqualification for a period of one to three years.

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

Dismissal can occur for various legitimate reasons: the will of the employee, termination of the employment contract, reduction and others. There are situations when the calculation of the employee is not justified by law. An employed person should be aware of what to do in case of illegal dismissal from work. Knowing their rights, any subordinate will challenge the illegal decisions of the leadership.

Dismissal by law

The Labor Code provides for the calculation of an employee for regulated reasons. A complete list of grounds for terminating a labor contract is specified in section 13 (the general list is article 77 of the Labor Code of the Russian Federation).

The main factors of legal dismissal:

initiative (employee and employer);
reduction of position, staff or complete elimination of the place of work;
gross failure to perform duties or violation of safety regulations;
disregard for discipline;
circumstances beyond the control of the parties (military conscription, return of the previous employee to his place, disability, state of emergency, and others).

However, dismissal is recognized as legal only if there is evidence.

The exception to these rules are separate categories persons who do not fall under the calculation before a certain period. These are the following social categories:

pregnant women and women with babies under three years of age;
single mothers of children under five;
persons containing from three children;
parents raising disabled people.

employees on vacation
on sick leave.

Illegal grounds for dismissal

Early termination of an employment contract is considered illegal in the following cases:

there are no legal grounds for dismissal or they are not proven by management;
the dismissal procedure itself was violated (errors in the preparation of documents and their availability, the calculation procedure when the employee was not warned in advance and did not receive an offer of an available place in return);
dismissal of privileged categories of workers;
settlement according to own will without the initiative of the employee;
deliberate creation by the boss of reasons for the dismissal of a negligent employee (artificial reduction, certification);
the reason for the non-compliance with the dress code.

The generalized factors that are taken into account when terminating a labor contract are listed. Recognition of dismissal as illegal is carried out after consideration of all available circumstances. They are specific to each situation.

Common Cases

Cases of coercion by the employer to leave the place of work are a frequent occurrence. This is an illegal dismissal of an employee, which can be challenged and management held accountable.

Frequent cases of misconduct by management:

The worker receives persuasion or threats with the requirement to write a letter of resignation on his own initiative. In case of refusal, there is pressure on the employee and the tightening of the work process. In such a situation, it is necessary to go to court, while collecting all possible evidence (documentary, digital).
An employee on maternity leave falls under the dismissal when the dismissal is issued under the guise of a reduction. But this is an illegal action, contrary to the Labor Code of the Russian Federation. The law is on the side of the employee in this case.
It is not uncommon for single mothers to be unfairly dismissed for no reason. Management does not benefit from women with small children requiring constant care, but dismissal is prohibited by current legislation.
Deliberately creating conditions leading to dismissal. Wanting to get rid of the employee, the employer goes to the trick. He reduces the position of the employee and in parallel creates a similar place of work with the same official duties. Or requires re-validation of qualifications with a conscious reduction.

Dismissal in such situations is considered illegal. The employee has the right to apply to the judicial authorities to restore his workplace.

The demands of the authorities to write a voluntary resignation letter or sign it with false reasons for dismissal are illegal. In this case, it is not necessary to follow the instructions of the leadership.

What should an employee do

If an employee wishes not to leave his workplace and believes that he was treated unfairly, he has every right to challenge the actions of his superiors. To do this, he must know where to apply if he was illegally fired from his job.

A wrongfully dismissed employee may apply to the following authorities:

State Labor Inspectorate;
Authority of justice of the state (court);
Legislative body (prosecutor's office).

The labor inspectorate monitors the fulfillment of labor obligations, labor standards and rights. To apply, the employee must submit an application, which will be considered for ten days. Upon the expiration of this period, the employer may be issued an infringement order requiring mandatory execution, or a protocol of administrative violation of labor rights with subsequent punishment. However, the head has the right to challenge the decision of the inspection.

The prosecutor's office also checks the existence of an offense with a possible decision to bring to responsibility for administrative law. It examines compliance with the procedure for terminating the contract. Verification in this instance takes about thirty days.

Judicial practice for illegal dismissal from work is considered the most effective in solving this problem. The verdict put forward by this body is not subject to appeal and requires mandatory execution. To apply, a dismissed employee will need to draw up a claim and file it with the court. You will need the help of a lawyer, both in the preparation of a claim and during litigation. The terms of reinstatement at work depend on the consideration of the claim. They can take a long time - from one to six months. This is due to the complexity of the situation.

When filing a claim, you should take into account the mandatory information that must be indicated in it. Namely:

the name of the judicial authority;
data of the applicant and the dismissing employer;
conditions for hiring and reasons for dismissal (illegal);
the desired requirements of the employee who lost his job (reinstatement, payment of wages, moral damage);
additional documents.

An employee can file an application to challenge his dismissal only within a month from the issuance of an order to terminate the contract. The extension of this term is possible upon presentation of good reasons. After the expiration of the monthly period, the appeal is not considered.

Court decision in favor of the employee

When illegally dismissed, and there is evidence for this, the claim is satisfied by the court with the following consequences:

the employee is reinstated in the same place with a correction in the work book (the dismissal is indicated as invalid);
he is paid immediate compensation for the suspended period (average salary);
the reason for the suspension from work changes;
the costs of litigation and moral damages are paid.

The return of the employee to the previous place is carried out regardless of whether there is still such a position and whether the place is free.

Consequences for the employer

Upon satisfaction of the statement of claim, the employer, in addition to restoring to the same place former employee will be punished by the court. The measure depends on the severity of illegal actions and may be as follows:

a fine from 1,000 to 50,000 rubles;
termination of activities for a period of three months;
disqualification for up to three years;
administrative responsibility.

The employer will be required to immediately make payments for the suspended period, moral damages and pay all legal costs of the employee. Executive employees of the court instance monitor the implementation of the court decision. In case of non-compliance with the decision, the management may increase the punishment, and the requirements will be tightened.

An institution in which a violation was committed with the wrongful dismissal of an employee is under the constant control of the Federal Inspectorate and is subject to regular inspections by them.

Knowing your rights by an employee will help prevent illegal actions on the part of management. Successful satisfaction of the statement of claim depends on its timely filing and proper execution.

Court decisions based on the application of the norm of Article 77 of the Labor Code Russian Federation.

Art. 77 of the Labor Code of the Russian Federation. General grounds for termination of an employment contract go to the article

Arbitrage practice

Decision No. 12-471/2019 7-12-471/2019 dated September 25, 2019 in case No. 12-471/2019

Primorsky Regional Court (Primorsky Krai) - Administrative offenses

YYYY between LLC “...” and a citizen of Uzbekistan FULL NAME5 an employment contract TD-01/19 was concluded, which DD.MM.YYYY was terminated under clause 1, part 1, art. 77 of the Labor Code of the Russian Federation, DD.MM.YYYY in the Department of Internal Affairs of the Ministry of Internal Affairs of Russia for legal entity a notice was sent to terminate the employment contract with FULL NAME5, while in the notice to ...

Resolution No. 44G-136/2019 4G-1607/2019 dated September 23, 2019 in case No. 2-2/2019

Khabarovsk Regional Court (Khabarovsk Territory) - Civil and administrative

On the organization of air traffic in the Russian Federation. By order of the employer dated June 21, 2018. was dismissed from work on the grounds provided for in clause 8 of part 1 of article 77 of the Labor Code of the Russian Federation, due to the employer's lack of work necessary for the employee in accordance with the medical report. I do not agree with this order and consider it illegal, because ...

Decision No. 21-553/2019 dated September 18, 2019 in case No. 21-553/2019

Irkutsk regional court(Irkutsk region) - Administrative offenses

Signature of the employee Sakhnenko S.V., confirming that she received a copy of the employment contract; -in the order to dismiss the employee Sakhnenko S.V. reference to part of article 77 of the Labor Code of the Russian Federation is not indicated; - terms of payment of wages to the employee Sakhnenko S.V. the employer did not comply. These circumstances served as the basis for attracting the director of Krasselkhozprodukt LLC Chernyaev V.N. ...

Decision No. 77-144/2019 dated September 18, 2019 in case No. 77-144/2019

Tomsk Regional Court (Tomsk Region) - Administrative Offenses

...Judge Dubovik P.N. Case No. 77 - 144/2019 DECISION Tomsk September 18, 2019 Judge of the Tomsk Regional Court Eremeev A.V., having considered the complaint of lawyer Chugunov S.S. in defense of the interests of the Head of the Zonalny...

Resolution No. 44G-20/2019 4G-524/2019 dated September 13, 2019 in case No. 2-21/2019

Sakhalin Regional Court (Sakhalin Region) - Civil and administrative

And youth policy MO "Tomarinsky City District" No. dated November 28, 2018, an employment contract with Leontyeva S.V. terminated under paragraph 6 of the first part of Article 77 of the Labor Code of the Russian Federation - in connection with the refusal of the employee to continue working in the organization formed as a result of the reorganization. December 07, 2018 Leontyeva S.V. submitted to management...

Decision No. 21-1102/2019 7-1902/2019/21-1102/2019 dated September 10, 2019 in case No. 21-1102/2019

Perm Regional Court ( Perm region) - Administrative offenses

2 digits, constantly in the order of transfer from LLC "***". By order of MGM LLC dated August 28, 2018 No. **LS Zh., he was dismissed under clause 3 of part 1 of Article 77 of the Labor Code of the Russian Federation on the basis of his application for termination of the employment contract at his own request. In the course of the State Labor Inspectorate conducted by the state labor inspector in the Perm Territory...

Decision No. 7-255/2019 dated September 9, 2019 in case No. 7-255/2019

Novgorod Regional Court (Novgorod Region) - Administrative

By order of OOO G... dated April 04, 2019 S.O.V. was dismissed from April 04, 2019 on the basis of paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation (termination of the employment contract at the initiative of the employee), with an order to terminate the employment contract S.O.V. familiarized on the day of dismissal. According to payment order<...>and registry...

Appeal Resolution No. 22-2395/2019 dated September 5, 2019

Orenburg Regional Court (Orenburg Region) - Criminal

27 considered invalid” signed by Belousova T.V. and No. 30 dated June 30, 2016 “Dismissed of her own free will, paragraph 3 of part one of Article 77 of the Labor Code of the Russian Federation” signed FULL NAME133 She did not write an application for leave without pay and did not ask anyone to give her leave without pay. ..

In accordance with international law, as well as the constitution of the state, every person has the right to work and pay, which is inalienable. Almost the entire population of the country uses this opportunity, earning for themselves and their families the means to live and receive other benefits. However, in the process of doing labor activity often there are violations of the rights of workers by the employer. One of them is illegal dismissal from work. What, then, can the person whose inalienable right has been violated do? What illegal dismissal from work under the Labor Code of the Russian Federation can be appealed in favor of the employee and by what authorities? More on this later.

Dismissal: a general concept

The process of dismissal from work is an action to terminate the previously concluded employment contract between the employer and the employee. The legislation provides for reasons why an employee may be dismissed. The most common among them is the presence of their own desire on the part of the employer or the employee himself. In addition, there are a number of other reasons why an employee may be fired - all of them are detailed in the articles of the Labor Code. In this normative act for each reason for dismissal, a specific article is assigned, which spells out the procedure for breaking off labor relations. In the event that the employee was dismissed without any reason or any conditions were violated by the employer, this procedure is considered illegal and is subject to appeal at the request of the employee.

Reasons for dismissal

The dismissal procedure can be carried out for any of several circumstances provided in the text of Article 77 of the Labor Code of the Russian Federation. Illegal dismissal from work will be recognized as such, when the employer indicated any other reason not provided by the legislator in this article, or violated the terms and procedure for the implementation of the prescribed procedure.

The legislation provides a whole list of reasons for dismissal, among which, in practice, the phrases “of their own free will” (of the employee or employer), as well as “by agreement of the parties” are quite often used. The reason for termination of the employment contract is also considered the refusal of the employee to move to a permanent place of residence in another locality in connection with the relocation of the actual workplace.

Often, the dismissal of an employee does not become a reason for the termination of his labor activity at the enterprise - this may be just a stage in his career advancement, since in order to accept an employee for more high position, he must first be fired from the old one. In this case, the termination of the employment contract is considered a mere formality.

The termination of an employment contract is also a reason for its termination. In this case, the parties may come to a general agreement on its complete termination or extension for a certain period.

Examples of illegal dismissal

Under what situations does the injured party have the right to file a lawsuit for wrongful dismissal from work? For all that are not provided for by the articles of labor legislation.

An example of this can be dismissal without proper registration of disciplinary offenses, on the basis of which the employment contract was terminated. So, for example, illegal dismissal from work for absenteeism will be considered if the fact of violation of discipline was not formalized or indicated inappropriately.

If the manager refuses to pay the employee the debt for wages, such dismissal will also be recognized as illegal. Before terminating the contract with the worker, any employer is obliged to pay off wage arrears in full, regardless of the pretexts that have arisen.

In the event that an employee was dismissed from the enterprise under the wording of a reduction in staff or the number of employees, and in fact this activity is not carried out, then such dismissal from work is illegal. It will also be recognized as such if the organization is being liquidated, but employees were not properly notified of the upcoming event.

One of the conditions for the dismissal of an employee is his inadequacy for his position. If such a wording is indicated in the work book, however, certification with the participation of a special commission was not carried out (a protocol must be drawn up about this), then in this case, dismissal from work is illegal. A similar situation may arise with the wording about the inconsistency of the position due to medical indicators: if there is no certificate of a medical examination, then you can safely file an application with the court - the dismissal was illegal.

Who can't be fired

The legislation prescribes a complete list of persons whose dismissal is possible only in the event of the complete liquidation of an institution or enterprise. In other situations, their dismissal is considered illegal, and employees have every right to apply to the court for protection.

This category includes single mothers who have children under the age of 14 on their support. If such a child is disabled, then the age limit is increased to 18 years. This rule also applies to persons who have a child under the age of 3, and in this case, the gender of the employee does not matter - this rule applies to both men and women.

The legislation states that the dismissal of pregnant women, as well as underage workers, is unacceptable.

Illegal dismissal from work: what to do?

After the person whose rights have been infringed understands the fact of the illegality of his dismissal from work, he has the right to intercede in defense of his rights. To do this, an employee can apply to the judicial authorities with a claim for reinstatement in case of illegal dismissal under the Labor Code. During the trial, subject to proof of guilt on the part of the employer, the illegally dismissed employee must be reinstated and compensated in the agreed amount.

It should be noted that in today's realities, the court is the only fair body in which it is possible to appeal against such a decision of the head of the enterprise and punish him accordingly.

Preparing to go to court

Before applying to the judicial authorities with an application for reinstatement after an illegal dismissal, the employee must be well prepared for the upcoming process. First of all, you should pay attention to the evidence base, on the basis of which a hearing will be held and a decision will be made by the judge.

First of all, you should pay attention to the presence of a second copy of the employment contract, which can be requested from the employer in advance even before the start of the trial. It is best to pick up a second copy for yourself immediately after hiring. The text of the contract must indicate the size of the average wage. In the event that this is not in the text, you can request a certificate of your monthly income from the accounting department - this information in court will be necessary in order to calculate the amount of compensation for illegal dismissal from work.

In the process of hiring and dismissal, appropriate entries must be made in the work book. Any employee is obliged to ensure that they are executed in an appropriate way - with truthful data, otherwise it will be quite problematic to protect their rights in court.

The legislator also provides for the possibility of applying to the court for persons who did not work under an employment contract, since the fact of the beginning of the fulfillment of the agreed obligations is already considered the conclusion of a contract. However, in this situation, the employer may deny that this employee was at work and was engaged in the performance of his duties, if this is not documented.

What can be required from the employer

In case of illegal dismissal of an employee from work, he has the right to file a lawsuit with certain requirements. What can they be?

First of all, the employee has the right to demand his reinstatement to the position with the previous monthly salary. In addition, any employee whose rights have been infringed has the opportunity to claim wage arrears or compensate for non-pecuniary damage. If necessary, the dismissed person has the right to request a change in the data entered in the work book - this action is especially important for further profitable unhindered employment.

Often there are situations when, in addition to the demand for reinstatement, laid-off employees declare the need to pay them Money during the forced walk. The amount of such compensation upon reinstatement (in case of illegal dismissal under the Labor Code) is determined on the basis of monthly salaries, which should be reflected in the text of the employment contract.

Documents required for filing a lawsuit

Before applying to the judicial authorities, a dismissed employee must necessarily collect all the documents that can help him achieve the protection of his infringed labor rights.

In the general package, he must provide a statement of claim, which necessarily reflects all the conditions and requirements. In addition, the court must provide confirmation of the fact of payment of the court fee, as well as photocopies of identity documents.

In the package of evidence, it is necessary to provide all the documents that confirm the illegality of dismissal from work. Lawyers recommend attaching a copy of the employment contract, certificates that reflect the amount of monthly salaries, as well as photocopies of the pages of the work book, which reflect all the processes of activity at the enterprise. In addition to all of the above, you need to collect a solid evidence base, which will reflect the illegal actions of the employer.

Application deadlines

As for the deadlines for filing a statement of claim for the protection of their rights in court, the legislator gives the employee a month from the moment he got acquainted with the dismissal order. However, this period can be extended if timely application was prevented by illness, a long process of studying the circumstances of the fact, as well as in the presence of other weighty circumstances that the court recognizes as such. It should also be remembered that any such fact must be documented.

If we talk about the timing of reinstatement at work in case of illegal dismissal, then if there is a writ of execution this decision judgment is made immediately. In the event that the employer refuses to perform the prescribed actions, a fine is imposed on him. Under the condition of double evasion of the obligation, the performer is obliged to petition the court for the criminal liability of the guilty person. When all the requirements specified in the writ of execution are met by the employer, an act is drawn up about this fact and transferred to the service for the execution of judgments. Only if it is present, the proceedings are considered closed.

The legislator also notes that the procedure for reinstating an employee to his previous position is marked not by the date when the decision was made, but by the date the employee was dismissed on illegal grounds.

What information should be included in the claim

The text of the statement of claim must contain certain information that directly relates to the issue raised. In particular, the plaintiff must indicate what the illegal dismissal from work is and the article of the Labor Code on the basis of which the appeal is made. In addition, the statement of claim must include information about the respondent and your data.

In the text of the claim, it is imperative to indicate your requirements that apply to the head of the enterprise or organization - a list of possible ones is presented above.

If the reinstatement at work in case of illegal dismissal at the previous enterprise seems impossible due to its reorganization, the plaintiff has the right to present all claims against his successor, if any. In this case, it is necessary to indicate in the text of the application information about the same legal successor and indicate the grounds for filing a claim.

Who does not have the right to challenge the dismissal

The legislation provides for a number of positions, the dismissal from which cannot be challenged in court. This exception applies to employees of the prosecutor's office, as well as those persons who hold positions in elected positions. If the resignation was illegal, you can challenge this fact in a higher department, for example, in the Prosecutor General's Office of the Russian Federation.

The practice of judicial decisions

As shows arbitrage practice, almost all statements of the plaintiffs about their unlawful dismissal from their place of work, the court leaves satisfied. However, employees of the judiciary also note that questions about the legality of the dismissal of a worker are raised relatively infrequently. According to many judges, this circumstance is connected with the lack of awareness among the population about their labor rights. In this regard, many workers in the field of jurisprudence recommend raising the level of legal education among the Russian population.

One of the main requirements of the dismissed employee, presented in the lawsuit, is to reinstate him in his position with payment of compensation for the entire period of forced absenteeism (no more than one year). As noted in the legislation, it is calculated on the basis of the employee's salaries for the last two working months. It often happens that after the enforcement of the requirements, the employee is dismissed of his own free will in compliance with all the necessary procedures.