Illegal dismissal is understood as a violation of the rights of an employee. Such a dismissal is illegal if it was made for reasons not provided for in the Labor Code. Russian Federation.
Types of illegal dismissal
- If the illegal dismissal from work occurred without legal grounds. In Art. 77 of the Labor Code of the Russian Federation sets out an exhaustive list of general grounds for terminating labor Relations with hired workers. Dismissal without explanation is also illegal.
- If the order (procedure) of dismissal was violated. For example, dismissal certain categories persons enjoying the preferential right to stay at work: trainees, as well as highly qualified workers; in case of violation or non-compliance with the procedure for bringing an employee to disciplinary responsibility.
A gross violation of the law are cases when pregnant women, single mothers and fathers who are raising a child under the age of fourteen are illegally fired. In addition to those situations when the organization was liquidated, the dismissal of employees who were disabled or on maternity leave.
Wrongful dismissal for absenteeism
Absenteeism is one of the labor-intensive grounds for dismissal, being at the same time a measure disciplinary action. An employment relationship can only be terminated for absenteeism if the employee's fault is established, as opposed to dismissal of employees to reduce staff. The employer is strictly obliged to comply with the procedure, as well as to prove the legality of such dismissal, i.e. the fact of absenteeism without good reason.
The dismissal procedure conditionally consists of three stages:
- Correct registration of the fact of absenteeism.
- Establish reasons for absenteeism.
- Making a decision to leave.
Procedural errors made may result in the recognition of the dismissal as unlawful in court.
The rights of an employee in case of illegal dismissal
- The right to protection of labor rights.
- The right to file a lawsuit.
- The right to reinstatement.
- The right to compensation due to the employee.
Where to apply for illegal dismissal
In this case, first of all, it is necessary to contact the body for the protection of labor rights of citizens. This body is the state labor inspectorate. The application must be submitted no later than 1 month from the date of receipt of the dismissal order or work book.
The complaint is considered within 10 days. In addition, the employee has the right to file a lawsuit. If the dismissal is declared illegal by a court decision, then the employer is obliged to reinstate the employee in his previous position, as well as pay the entire salary that he did not receive for the entire period of forced absenteeism. In addition to these payments, the employer is obliged to compensate for other costs: moral damage, the services of a lawyer or lawyer who represented interests in court.
Obviously, illegal dismissal carries adverse legal consequences for the employer.
In Russian reality, illegal dismissal has never been something extraordinary. Every second person encounters this phenomenon, but only every thirtieth takes real action to challenge the illegal dismissal. Such disappointing statistics reflect the attitude of workers to their rights. The peculiarity of the situation lies in the fact that if employees were more active in challenging illegal dismissals, the number of such dismissals would also be reduced, and they would have to be challenged much less. Therefore, the active protection of their rights is the duty of every employee.
Foundations and general order layoffs are described in chapter 13 Labor Code RF. Within the framework of this article, we will not dwell on the specific circumstances that led to the illegality of the dismissal. Illegal dismissal we will take for starting point and then we will describe the specific actions that the employee needs to take, and the compensation that the employee will receive upon recognition of the dismissal as illegal and reinstatement.
Actions of an employee in case of illegal dismissal
Often, before dismissing on one of the grounds listed in Art. 81 of the Labor Code of the Russian Federation (termination employment contract at the initiative of the employer), the employer offers to write a letter of resignation on own will. If you want to stay at work, do not write this application under any circumstances. Subsequently, it will be almost impossible to prove the illegality of the dismissal and resolve the labor dispute in your favor.
For documentation dismissal, the employer must issue a dismissal order and make an entry in the work book. After the employee has been acquainted with the dismissal order, he can take measures to protect his violated rights within one month. An employee has 2 main ways to protect their rights:
1. Submitting a complaint to the State Labor Inspectorate.
The State Labor Inspectorate is government agency for the protection of labor rights of workers. Main "Pros" of contacting the labor inspectorate:
- Prompt handling of a complaint. Wrongful dismissal complaints must be dealt with within 15 days.
- Cheapness of the procedure.
- Minimum organizational and labor costs. All you need to do is write and file a complaint.
- Simultaneous bringing the employer to administrative responsibility under Art. 5.27 of the administrative offenses for violation labor law.
However, the appeal to the labor inspectorate has significant "cons":
- Low probability of satisfaction of the complaint. The labor inspectorate, unlike the court, is severely limited in its ability to study in detail all the circumstances of the case, and the professionalism of inspectors, of course, cannot be compared with the professionalism of judges. In this regard, a complaint to the inspection is promising only if there is a formal, obvious violation on the part of the employer. Although, there are also surprising examples of the protection of the rights of an employee by the labor inspectorate in the most difficult and confusing situations.
- Frequent failure to meet the deadlines for handling employee complaints. And in dismissal cases, deadlines are of fundamental importance, since after a month it will no longer be possible to challenge the dismissal.
The complaint form and the procedure for filing it are described in sufficient detail on the website of the State Labor Inspectorate of St. Petersburg. From myself, we only add that when writing a complaint, it is worth refraining from speculation and value judgments. It is necessary to cite facts, familiarization with which will immediately prompt the inspector to make a decision on reinstatement.
2. Filing a lawsuit in court.
A claim for recognition of the dismissal as illegal and reinstatement at work is filed under general rule to the district court at the location of the organization. In accordance with Art. 393 of the Labor Code of the Russian Federation, the employee is exempted from paying the state fee and incurring court costs.
According to Art. 392 of the Labor Code of the Russian Federation, a claim must be filed within a month from the date of delivery of a copy of the order or from the date of delivery of the work book. If the deadline is missed for good reasons, then it can be restored by the court. Please note that filing a complaint with the labor inspectorate and waiting for a response is usually not considered a valid reason for missing the deadline for communicating with the court.
The main "pros" of filing a lawsuit in court:
- it the most effective way to protect rights. It is in court that it will be possible to clarify all the circumstances and demonstrate the violations committed by the employer. And it is the court that will be able to sort out all the intricacies in the relationship between the employee and the employer.
- The cheapness of the lawsuit. Taking into account the fact that the employee is completely exempted from incurring legal costs, the costs of conducting a case in court will be much less than usual.
- The possibility of recovering moral damages. Only a court can recover compensation for moral damage, the labor inspectorate does not have such a right.
The main disadvantage of using a judicial method to protect your rights is the rather long duration of the trial. Article 154 of the Civil Procedure Code of the Russian Federation establishes a period for considering cases on reinstatement at work in 1 month. Unfortunately, in practice it is observed very rarely. However, today, when the courts are doing their best to reduce the time for consideration of the case, this problem is gradually smoothed out.
Thus, if the violation committed by the employer is of a clear, obvious nature and is easily confirmed by written documents, then it is advisable to start protecting your rights by contacting the state labor inspectorate. But you need to remember about the monthly period for applying to the court, and even if the inspection does not have time to take any measures, it is necessary to simultaneously file a lawsuit with the court. If the violation is not obvious or cannot be confirmed by written documents, then you should immediately start by going to court.
Compensation due to an employee upon reinstatement
1. According to Art. 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate the employee average earnings for the entire period of forced absence.
This period begins from the day of illegal dismissal - from that moment on, the employee is illegally deprived of the opportunity to work. And this period ends from the moment when the employer accepts the employee back. Outwardly, this is expressed by the issuance of an order for reinstatement and admission to work.
Thus, the employee will be able to recover the average earnings for the entire time the trial lasts.
2. According to Art. 394 of the Labor Code of the Russian Federation, an employee has the right to compensation for moral damage caused by illegal dismissal.
The amount of compensation will depend on how strong the physical and mental suffering of the worker was. These sufferings can be confirmed by a psychologist's conclusion about the person's condition, the employee's medical record and other evidence.
3. If an employee applies for the protection of his rights to the court, then he has the right to compensation for court costs.
The main costs, as a rule, are the costs of paying for the services of lawyers representing the interests of the employee in court. According to Art. 100 Code of Civil Procedure of the Russian Federation these expenses are subject to recovery from the employer.
Where to apply for illegal dismissal?
If you have been unlawfully fired, you can apply to the Labor Inspectorate, the Prosecutor's Office or the Court. Appeal to the Labor Inspectorate or the Prosecutor's Office is possible both independently and using the services of a labor law lawyer. The complaint must state all the facts of violation of your rights by the employer, indicate your last name, first name and patronymic, as well as all your contact details, the full name of the organization where you work and its location. As a rule, indication of violated norms of law and references to the law is not required. The employees of these departments are themselves competent labor lawyers. However, you need to understand that applying to the Prosecutor's Office or the Labor Inspectorate can be effective only if the employer's guilt does not need to be proven, i.e. dismissal is clearly illegal. Otherwise, if employers put forward their own version of events, reinstatement at work is possible only through the Court.
Labour Inspectorate is obliged to accept your complaint against the employer and check the company for violations of labor laws not only in relation to you, but also in relation to the entire company as a whole. As a rule, the labor inspectorate issues an order to eliminate violations of labor laws and imposes a fine on both the organization and specific officials.
Prosecutor's office, upon receipt of a complaint from an employee, as a rule, redirects it to the labor inspectorate. The prosecutor's office, as a rule, deals only with labor disputes related to mass non-payment wages, massive illegal dismissals, as well as cases falling under the Criminal Code.
Court is the only body that has the full right to reinstate a person at work. Its decisions are binding on all citizens and organizations and are executed unconditionally. It should be remembered that in case of dismissal disputes, the term for applying to the court is one month.
When is a dismissal illegal?
1. Lack of grounds for dismissal.
According to Art. 77 of the Labor Code of the Russian Federation establishes general grounds for terminating an employment contract; there can be no other grounds not provided for by the Labor Code or other Federal Law.
That is, any dismissal on grounds that are not provided for by the Labor Code or other law is illegal.
In addition to the fact that the dismissal of an employee must be made on the grounds listed in the Labor Code, the employer is obliged to prove in court that such grounds really existed, and were not artificially created by him. For example, if an employee was dismissed with an unsatisfactory test result (Article 71 of the Labor Code of the Russian Federation - Test result when hiring), that is, as having not passed the probationary period, then in a labor dispute lawsuit, the employer will be required to prove to the court and the prosecutor that the competence the employee really does not correspond to his position, which he did not fulfill provided by the Plan passing the test task. The employer is obliged to confirm these facts by offering written evidence for review by the court and the employee of the prosecutor's office.
Also, the court may take into account how much the punishment in the form of dismissal corresponds to the severity of a particular disciplinary offense, even if such an offense is punishable by dismissal.
2. Violation of the procedure for dismissal, as a basis for recognizing the dismissal as illegal.
The order (procedure) of dismissal is a sequence of actions carried out by the employer in order to terminate the employment relationship with the employee. Such a procedure is provided for by the Labor Code and other federal laws.
Significant violations of the procedure for dismissal of an employee include:
However, individual violations of the dismissal procedure may be regarded by the court as insignificant.
Also, illegal dismissal is the dismissal at the initiative of the employer of pregnant women, single mothers and fathers raising a child under the age of fourteen, except in the event of liquidation of the organization (Article 261 of the Labor Code of the Russian Federation), it is illegal to dismiss an employee at the initiative of the employer at a time when he is in maternity or regular leave, or on sick leave (Article 81 of the Labor Code of the Russian Federation).
In case of violation by the employer of the legislation on labor and labor protection, he may be held administratively liable under Art. 5.27. Code of Administrative Offenses of the Russian Federation.
It should be borne in mind that in the event of an illegal dismissal from work, it is necessary to start acting as soon as possible. According to the provision of Article 392 of the Labor Code of the Russian Federation, the limitation period for labor disputes, i.e. The deadline for filing a claim for wrongful dismissal is one calendar month from the day the dismissal order or work book is issued, for other labor disputes, the total period for filing a claim is three months.
Protection of the rights of an employee upon dismissal is most effective if the interests of the injured party are represented by qualified lawyers. By contacting our office for help, you will receive competent legal advice and assistance to challenge the wrongful dismissal in judicial order, in the commission on labor disputes, in the prosecutor's office. Competently drafted claims to the court and to the employer help to quickly and efficiently resolve labor disputes that have arisen.
In the event that your labor rights violated, do not neglect the services of professional lawyers. We will be able to establish and prove the illegality of the actions taken against you, and we will help restore justice by competently representing your interests in court.
Specialists of the Moscow legal bureau help in resolving all types of labor disputes.
How does recovery work?
Sometimes, even after winning a labor dispute in court, citizens still have questions about the reinstatement procedure itself, especially when the employer does not want to voluntarily reinstate the employee in his previous position.
According to the requirements of Art. 392 of the Labor Code of the Russian Federation, if the employee does not agree with the dismissal, he has the right to apply for reinstatement directly to the court.
The period within which an employee can apply to the court for the purpose of reinstatement at work is one month from the date of receipt of the dismissal order or work book; the state fee is not paid in case of dismissal disputes (Articles 392, 393 of the Labor Code of the Russian Federation).
Lawsuits for reinstatement are held in the district court at the place of registration of the employer and are conducted with the obligatory participation of the prosecutor. The term for consideration of such a category of cases is one month, but in practice this requirement is not fulfilled by the courts.
What to do if you win the Court?
If the dismissal of an employee is recognized by the court as illegal, the employer is obliged to carry out the actual reinstatement of the illegally dismissed employee in his previous position. In addition, the employer pays the employee the average earnings established by the court for the entire time of forced absenteeism, this requirement is provided for by Art. 394 of the Labor Code of the Russian Federation. Such a decision shall take effect immediately, in accordance with the requirements of Art. 396 of the Labor Code of the Russian Federation and art. 211 Code of Civil Procedure of the Russian Federation.
If the employer delays the reinstatement of such an employee, then the court makes a decision on the payment of average earnings for the time when the employer delays the execution of the previous decision on reinstatement.
The decision of the Court on reinstatement in case of illegal dismissal is considered executed if the dismissal order is canceled and the employee is admitted to previous work(Article 106 of the Law on Enforcement Proceedings). Art. 105 of the Law on Enforcement Proceedings provides that the bailiff issues an order to the employer to collect the enforcement fee and sets a new deadline for the execution of the court decision on reinstatement in the event that the employer does not comply with the court decision on the reinstatement of an illegally dismissed employee. However, if in this case the employer does not fulfill the requirements of the executive document in the new term, then a fine is imposed on him in accordance with the requirements of Art. 17.5 of the Code of Administrative Offenses of the Russian Federation and establishes a new period during which reinstatement at work must be carried out by court. If in this case the requirement is not met, the fine increases.
Court decisions based on the application of the norm of Article 77 of the Labor Code of the 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. ..
16.06.2017 |
Hillegal dismissal worker any termination of labor relations made in violation of the procedure, the norms of the Labor Code, as well as in the absence of grounds, can be recognized.
In this article you will find general grounds for appealing dismissals and you will know what can be obtained in case of recognition of the dismissal illegal.
Who cannot be fired at the initiative of the employer? Where to complain about illegal dismissal and in what order?
How long does it take to go to court for wrongful dismissal?
Read more about the different grounds for layoffs at the links below.
We recommend that you come for a consultation with our labor dispute lawyer Rumyantseva Valentina Yurievna(following links, lawyer) . You can book a consultation by calling+7-981-746-76-21 (on weekdays from 10 to 18)
What are the legal grounds for dismissal?
The basis for dismissal of one's own free will is the application of the employee, there is no application - dismissal is illegal (article ), Grounds for downsizing (more in the article) - the decision of the employer, and at the same time, the positions must really be reduced, and not renamed, and the employee himself does not belong to a category that cannot be reduced, such as, for example, a woman on maternity leave (more in the article) .
For legal dismissal as not having passed the probationary period, there must be not only the establishment of the probationary period itself, but also confirmation of the failure to pass the test. (more in the article) .
To be dismissed for absenteeism, you need the fact of absenteeism, compliance with the dismissal procedure, and other factors, which you can read about in the article "".
For the dismissal of pregnant women and those on parental leave, the liquidation of the organization is needed, and not reorganization, change of ownership, renaming (more in the article
For legal dismissal under Art. 81 clause 5 of the Labor Code of the Russian Federation (repeated non-fulfillment by an employee job duties having a disciplinary sanction) requires a disciplinary sanction that has not been lifted by the day of dismissal, evidence of non-fulfillment of duties, compliance with the procedure, etc.). More details can be found in the articles: and how it was.
Dismissal during sick leave will be legal if it is not at the initiative of the employer (with the exception of the liquidation of the organization). Read more in the article about .
What can you expect if you appeal the dismissal?
When illegal dismissal you can be reinstated at work or the wording and date of dismissal are changed, you can recover wages for forced absenteeism and compensation for non-pecuniary damage.
AT In what cases can we talk about the illegal dismissal of an employee?
First, let's turn to the grounds for terminating an employment contract. All of them are listed in Art. 77 of the Labor Code of the Russian Federation.
The grounds for termination of an employment contract are:
1) agreement of the parties (Article 78 of this Code);
2) expiration of the term of the employment contract (Article 79 of this Code), except for cases when the employment relationship actually continues and none of the parties has demanded their termination;
3) termination of the employment contract at the initiative of the employee (Article 80 of this Code);
4) termination of the employment contract at the initiative of the employer (Articles 71 and 81 of this Code);
5) transfer of an employee at his request or with his consent to work for another employer or transfer to elective work (position);
6) refusal of the employee to continue work in connection with a change in the owner of the property of the organization, with a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75 of this Code);
7) refusal of the employee to continue work in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code);
8) the refusal of the employee to transfer to another job, necessary for him in accordance with the medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts the Russian Federation, or the absence of an appropriate job for the employer (parts three and four of Article 73 of this Code);
9) the employee's refusal to be transferred to work in another locality together with the employer (part one of Article 72.1 of this Code);
10) circumstances beyond the control of the parties (Article 83 of this Code);
11) violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work (Article 84 of this Code).
An employment contract may also be terminated on other grounds provided for by this Code and other federal laws.
81 art. The Labor Code of the Russian Federation contains a list grounds for dismissal at the initiative of the employer, which is also not expandable.
The employment contract may be terminated by the employer in the following cases:
1) liquidation of the organization or termination of activity by an individual entrepreneur;
2) reduction in the number or staff of employees of the organization, individual entrepreneur;
3) inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification;
4) change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant);
5) repeated non-performance by an employee without good reasons labor duties, if he has a disciplinary sanction;
6) a single gross violation of labor duties by an employee:
a), that is, absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as in case of absence from the workplace without good reason for more than four hours in a row during the working day (shift) );
b) the appearance of the employee at work (at his workplace or on the territory of the organization - the employer or the facility, where, on behalf of the employer, the employee must perform labor function) in a state of alcoholic, narcotic or other toxic intoxication;
c) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;
d) committing at the place of work theft (including small) of another's property, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;
e) a violation by an employee of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences;
7) the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer;
7.1) failure by the employee to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or inaccurate information about his income, expenses, property and liabilities of a property nature, or failure to provide or provide knowingly incomplete or inaccurate information about income, expenses, on the property and property obligations of their spouse and minor children in the cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to a loss of confidence in the employee on the part of the employer;
8) commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;
9) making an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;
10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;
11) submission by the employee to the employer of false documents when concluding an employment contract;
13) provided for by the employment contract with the head of the organization, members of the collegial executive body of the organization;
14) in other cases established by this Code and other federal laws.
Other cases established by the Labor Code include such grounds as the result of a test (Article 71 of the Labor Code of the Russian Federation), additional grounds to terminate an employment contract with teacher(Article 336 of the Labor Code of the Russian Federation), with the head of the organization (Article 278 of the Labor Code of the Russian Federation), with an athlete (Article 348.11).
In addition, there are additional grounds for terminating an employment contract with civil servants, rescuers, municipal employees, etc.
In any case, if you were fired for a reason that is not provided for by either the Labor Code or the Law on your work, dismissal from work can be considered illegal and challenge it in court.
Who cannot be fired at the initiative of the employer?
Even if there is a basis in the law, there are categories of employees who cannot be fired at the initiative of the employer, so dismissal is illegal during vacation and temporary disability, except in cases of liquidation of the organization, cannot be dismissed , women with children under 3 years old, single mothers raising a child under the age of fourteen years (a disabled child - up to eighteen years old), other persons raising these children without a mother, with the exception of dismissal on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 of the first part of Article 81 (see above) or paragraph 2 of Article 336 of the Labor Code of the Russian Federation (use, including a single use, of educational methods associated with physical and (or) mental violence against the personality of a student, pupil for teachers )
Is it necessary to comply with the dismissal procedure?
Particular attention should be paid to the dismissal procedure. In some cases of dismissal, the opinion of the trade union is mandatory. In other cases, a notice of dismissal is required at least 2 months in advance (liquidation, reduction) or a mandatory offer of vacancies.
For example, dismissal under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation in the event of repeated non-fulfillment by an employee without good reason of labor duties, if he has a disciplinary sanction, implies a repeated violation and, at the same time, disciplinary sanctions should be imposed for previous violations with the appropriate procedure. Before applying the penalty, the employer is obliged to request an explanatory note from you, if you refuse to draw up an act, then issue an order, give you a signature, and if you refuse, also draw up an act. In addition, there are deadlines for the imposition and removal of penalties. More in a separate article (read).
Dismissal can be recognized by the court as illegal if the grounds for dismissal of the employee are immaterial.
For a disciplinary offense, the employer has the right to apply one of the types of punishment: remark, reprimand,. So, if the court establishes that it was possible to issue a remark or reprimand for your disciplinary offense, then dismissal may be illegal. Everything is very individual, and each situation must be considered separately. Even for the imposition of a disciplinary sanction, the severity of the misconduct must be taken into account.
Deadlines for dismissal appeals.
And the last thing you need to know about illegality of dismissal, this is what you can challenge it only within a month. Takova statute of limitations for dismissal.
Where to apply for illegal dismissal?
The right to deal with issues of dismissed employees exclusively court as this is an individual labor dispute. The competence of the labor inspectorate does not include issues of appealing dismissal!
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