Litigation for wrongful dismissal. Illegal dismissal: what is considered as such and what does it mean for the employer? Dismissal: a general concept

31.03.2021

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 order to terminate the employment relationship;
Calculation of compensation for simple and moral damage;
Making adjustments to the last entry included in the employee's personal card; Fixing an entry in 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.

Disputes between employers and their employees are commonplace in courts of general jurisdiction. As a rule, employees go to court more often to defend the rights violated by the employer. This review of judicial practice presents disputes about illegal dismissal.

1. Dismissing a store employee for loss of trust is legal

If the activities of an employee of an organization are related to the maintenance and storage of commodity and monetary values, especially if he holds the position of deputy store director, the employer has the right to dismiss him for loss of confidence. So decided the St. Petersburg City Court.

The essence of the dispute

The citizen worked as an acting deputy store manager in commercial organization. She was dismissed from her position on the basis of paragraph 7 of part 1, with the wording - "due to loss of confidence." The citizen did not agree with the very fact of the dismissal, nor with its wording, so she filed a lawsuit against the employer in court.

The court's decision

The court of first instance denied the citizen's claim. The judges referred to Part 1 of Article 81 of the Labor Code of the Russian Federation, by virtue of which an employment contract with an employee can be terminated at the initiative of the employer if the employee directly servicing monetary or commodity values has committed actions that create grounds for the employer to lose confidence in him. The St. Petersburg City Court, where the plaintiff filed a complaint, confirmed the correctness of the conclusions made by the court of first instance. By an appeal ruling of December 11, 2014 N 33-19275 / 2014 in case N 2-1743 / 2014, the judges refused to recognize the plaintiff's dismissal as illegal and change the wording of the grounds for dismissal.

The judges noted that the job description of the deputy director of the store indicated direct manipulations with material assets - the receipt and release of goods, the receipt, accounting and storage Money. As follows from the contract concluded with the plaintiff on full liability, she was directly responsible for the safety and proper storage of both goods and funds. At the same time, the position of the deputy director of the store is included in the List of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full individual liability for the shortage of entrusted property, approved by Decree of the Ministry of Labor of the Russian Federation of December 31, 2002 N 85.

In a disputable situation in the organization's store, money was stolen from the cash register. Based on this case, the employer concluded that the acting deputy director of the employee committed a violation of cash and labor discipline, because she left the key to the safe with money sticking out in the lock. It was this circumstance that became the basis for dismissal with the wording of the loss of confidence.

A similar legal position is contained in paragraph 45 of the Decree of the Plenum Supreme Court RF dated March 17, 2004 N 2 "On the application by courts Russian Federation of the Labor Code of the Russian Federation". As follows from the explanations of the Supreme Court of the Russian Federation, in the course of such disputes, judges must take into account that the termination employment contract with an employee under clause 7 of part 1 of article 81 of the Labor Code of the Russian Federation, due to the loss of confidence, the employer can apply only to those employees who directly service monetary or commodity values (reception, storage, transportation, distribution, etc.), and only on the condition that they committed such culpable acts that gave the employer grounds for the loss of confidence. Which is completely suitable for the controversial situation with the dismissal of the deputy director of the store.

2. Women with children under the age of three cannot be fired

The employer does not have the right to dismiss an employee on his own initiative if she is raising a child under the age of three. Even in the case when the woman did not notify him that she had a child of this age. So decided the Supreme Court of the Russian Federation.

The essence of the dispute

By order of the head of the local administration of the city district of Nalchik, a citizen was accepted for the position of deputy head of the Department of Education of the local administration. An employment contract was concluded with her for an indefinite period. After a while, by order of the acting head of the local administration of the city district of Nalchik, the employee was granted maternity leave. The employee had a daughter. The local administration of the city district of Nalchik extended the maternity leave until the child reaches three years of age.

Decree of the local administration of the city district of Nalchik in staffing changes were made to the office of the local administration of the city district of Nalchik, according to which 3 positions were reduced, including the position of deputy head of the Department of Education of the local administration. The citizen was notified that she was dismissed from work on the grounds provided for in clause 2 of part 1 of Article 81 of the Labor Code of the Russian Federation in connection with the reduction in the staff of the organization. According to the citizen herself, the dismissal on the indicated basis was carried out in violation of the requirements of Article 261 of the Labor Code of the Russian Federation, since at the time of dismissal she had a daughter under the age of three years as a dependent. For the protection of her rights, the citizen applied to the court with an application for reinstatement in her previous position and payment of compensation for earnings during the forced absenteeism.

The court's decision

The courts of two instances refused to satisfy the citizen's claims. The judge justified their position by the fact that the plaintiff did not notify the employer that she had a child under the age of three, without submitting a birth certificate to the personnel department of the organization, in connection with which the employer should not be responsible for the adverse consequences that occurred as a result of unfair actions with side of the citizen. The courts also indicated that the procedure for dismissing the plaintiff to reduce the staff of the organization's employees was observed by the employer.

The Supreme Court of the Russian Federation, where the citizen filed a complaint, did not agree with such conclusions of the courts. In ruling No. 21-KG14-14 dated March 30, 2015, the judges pointed out that the conclusions of the courts of first instance and appellate instance were based on an incorrect interpretation and application of substantive law. Since, by virtue of Article 261 of the Labor Code of the Russian Federation, it is not allowed to terminate an employment contract at the initiative of an employer with a woman who has a child under the age of 3, with a single mother raising a disabled child under the age of 18 or a young child - a child under the age of 14 , with another person raising these children without a mother, with a parent (another legal representative of the child) who is the sole breadwinner of a disabled child under the age of 18 or the sole breadwinner of a child under the age of 3 in a family raising three or more young children, if the other parent (other legal representative of the child) is not a member of labor relations. The legislator makes an exception only in case of guilty actions on the part of the employee.

As follows from the legal position of the Supreme Court of the Russian Federation, set out in paragraph 28, the guarantee provided for by Part 4 of Article 261 of the Labor Code of the Russian Federation applies, among other things, to persons performing state civil and municipal service.

In a disputable situation, the court took into account that the provisions of the current labor legislation of the Russian Federation established a direct ban on the dismissal at the initiative of the employer of women with children under the age of 3 years, therefore, canceled the decisions of the courts on the legality of the plaintiff's dismissal on the specified basis. In addition, the panel of judges recognized as unreasonable the conclusion of the courts that there was bad faith and abuse of the right in the actions of the citizen in connection with the failure to provide her employer with a child's birth certificate, since it was not supported by evidence from the case file.

3. The period determined by law for the issuance of an order by the state labor inspector complies with the norms of the Constitution of the Russian Federation

The right of the state labor inspector to issue instructions that are subject to mandatory execution by the employer in case of illegal dismissal of employees, legislatively takes into account the delineation of powers of state authorities and the special importance of judicial protection of labor rights of citizens. The rule limiting the period for issuing such an order is aimed at ensuring the supremacy of the court in resolving the dispute on the merits of the right and preventing citizens from abusing the right to protection from violations of labor laws by the employer. The Constitutional Court of the Russian Federation came to such conclusions.

The essence of the dispute

The citizen filed a complaint with the Constitutional Court of the Russian Federation about the violation of his constitutional rights by part 2 of Article 357 of the Labor Code of the Russian Federation. The citizen was dismissed in 2008 and appealed to the state labor inspectorate in 2015 after a court decision was issued on November 5, 2014 in his case on the claim for recognizing the termination of the employment contract as illegal, imposing the obligation to return the work book, recover lost earnings, compensation for moral damage. The inspectorate refused.

Therefore, the citizen disputes the constitutionality of the second part of Article 357 of the Labor Code of the Russian Federation, by virtue of which, in the event of an appeal trade union body, employee or other person to the state labor inspectorate on an issue that is under consideration by the relevant body for the consideration of an individual or collective labor dispute (with the exception of claims accepted for consideration by the court, or issues on which there is a court decision), the state labor inspector upon revealing the obvious violations of labor legislation or other regulatory legal acts containing norms labor law, has the right to issue an order to the employer that is subject to mandatory execution. Such an order may be appealed by the employer to the court within 10 days from the date of its receipt by the employer or his representative.

According to the applicant, this rule does not allow the state labor inspector, in the event that the court refuses to satisfy the requirements of the employee due to the missed deadline for applying to the court, to issue an order to the employer in case of revealing an obvious violation of labor legislation or other regulatory legal acts containing labor law norms, therefore it conflicts with Article 2 of the Constitution of the Russian Federation and Article 37 of the Constitution of the Russian Federation.

The court's decision

The Constitutional Court of the Russian Federation in the ruling of October 27, 2015 N 2454-O did not find grounds for accepting the citizen's complaint for consideration. The judges pointed out that the norms of Article 356 of the Labor Code of the Russian Federation and Article 357 of the Labor Code of the Russian Federation give the federal labor inspectorate and state labor inspectors the authority to issue binding orders to eliminate violations and to restore the violated rights of workers. Such powers of the federal labor inspectorate are aimed at performing the main function of this government agency- implementation of federal state supervision over compliance with labor legislation and other normative legal acts containing labor law norms, and ensuring the exercise of the right of employees to protect their labor rights.

At the same time, part 2 of article 357 of the Labor Code of the Russian Federation, limiting the right of the state labor inspector to issue orders subject to mandatory execution, takes into account the delineation of powers of state authorities, the special importance of judicial protection of labor rights and the mechanism for the enforcement of court decisions, is aimed at ensuring the supremacy of the court in resolving the dispute on the right on the merits and prevention of abuse of the right to protection against violation by the employer of labor legislation or other regulatory legal acts containing labor law norms. Otherwise, it would mean that the state labor inspector can act contrary to the court decision that has entered into legal force. Therefore, this provision does not violate the requirements of the Constitution of the Russian Federation and does not restrict the right of citizens to appeal against illegal dismissal.

We thank CADIS, the developer of regional family systems, for providing the most up-to-date judgments for this review.

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

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

At the initiative of the employer

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

The most common cases of illegal dismissal under this article:

Illegal dismissal due to redundancy. This basis may be illegal in two cases: when there is actually no reduction, that is, the position is renamed (and sometimes the former name is left) and another employee is hired, and when the categories of employees for which this is prohibited by law are reduced (pregnant women, single parents, women with children under three years old, etc.).
Issue of several disciplinary actions and subsequent dismissal. In this case, it is necessary to pay attention to whether all punishments have been legally imposed. It is also impossible to impose two penalties for the same offense (for example, a reprimand and dismissal).
Dismissal as not passed attestation. If the check for compliance with the position held was carried out only in relation to one employee, then this is illegal. It is necessary to conduct certification of the entire department (direction of work), or all employees of the enterprise. The certification procedure must also be followed.

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

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

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

If an employee feels that they are being pressured, it is necessary to start collecting evidence even before dismissal. These can be various papers (orders, memos), dictaphone recordings of conversations with the employer, etc.

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

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

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

Where can you turn to protect your rights?

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

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

You can apply at any time to all institutions.

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

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

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

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

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

What is the compensation for an illegally dismissed employee

If the dismissal of an employee is declared illegal, the employer must not only reinstate him in his position, but also make the following payments:

Compensation for all days of forced absenteeism. It is paid in the amount of the employee's average earnings and is paid for all days from the dismissal to the date of the reinstatement decision.
Compensation for non-pecuniary damage. It is paid only by court order. The GIT and the prosecutor's office do not have the authority to establish such compensation.

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

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

22.05.2013 22:33

SOLUTION

IN THE NAME OF THE RUSSIAN FEDERATION

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

SET UP:

The plaintiff filed a claim with the court. He substantiates his claims by the fact that he has been working in the HOA "Oasis Park" since 2009. in the position of commandant, performs his work in accordance with job description. DD.MM.YYYY he became aware that he was relieved of his post from the announcement that was posted to the residents of the house. He was not familiarized with the dismissal order, the act of refusal to familiarize was also not drawn up. He considers that the defendant violated the procedure. The reason for the dismissal is unknown to the plaintiff. According to the defendant, the plaintiff learned that he was dismissed allegedly for absenteeism DD.MM.YYYY However, DD.MM.YYYY he was in the Chertanovsky OSP. Thus, through the fault of the defendant, the plaintiff is unlawfully deprived of the opportunity to work. He asks to recognize the dismissal as illegal and to reinstate him as the commandant of the Oasis Park Homeowners' association, to recover average earnings during forced absenteeism, compensation for non-pecuniary damage in the amount of 100,000 rubles.

Subsequently, he clarified his requirements, asked to recognize the dismissal as illegal and to reinstate the commandant of the HOA "Oasis Park", to recover the average earnings for the time of forced absence from DD.MM.YYYY until the day the court decision was made, compensation for non-pecuniary damage in the amount of 5000 rubles.

At the hearing, the plaintiff supported the stated requirements on the grounds set forth in statement of claim with clarifications.

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

The court, having heard the parties, the witnesses, having examined the materials of the case, finds the claim subject to satisfaction in part on the following grounds.

According to Art. 77 of the Labor Code of the Russian Federation, Grounds termination of an employment contract are: 4) termination of the employment contract 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, an employment contract may be terminated by the employer in the following cases: 6) a single gross violation by the employee job duties: a) absenteeism, 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 (shifts)

According to Art. 84.1 of the Labor Code of the Russian Federation, Termination of an employment contract issued by order (instruction) of the employer. With the order (instruction) of the employer about the employee must be familiarized against signature. At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order (instruction). In the event that an order (instruction) on termination of an employment contract it is impossible to bring to the attention of the employee or the employee refuses to get acquainted with it against signature, an appropriate entry is made on the order (instruction). In a day termination of an employment contract the employer is obliged to issue a work book to the employee and make settlements with him in accordance with Article 140 of this Code. At the written request of the employee, the employer is also obliged to give him duly certified copies 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-performance or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions: 1) remark; 2) reprimand; 3) dismissal on appropriate grounds. When applied disciplinary action the gravity of the misconduct committed and the circumstances under which it was committed must be taken into account.

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

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

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

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

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

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

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

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

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

DD.MM.YYYY the plaintiff, on the basis of Order No. from DD.MM.YYYY, was dismissed from the HOA “Oasis Park” due to a reduction in staff under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

DD.MM.YYYY By order without a number, Pak In-soo was reinstated in the Oasis Park Homeowners Association to work as a commandant with DD.MM.YYYY with a salary according to the staffing table.

DD.MM.YYYY in the name of the chairman of the HOA "Oasis Park" the plaintiff wrote a statement asking to be released for one hour, in connection with a call to the bailiff-performer for 17 hours. 00 min. DD.MM.YYYY

DD.MM.YYYY the chairman of the board FULL NAME13, the chief accountant FULL NAME12, the inspector of the personnel department FULL NAME6, the dispatcher FULL NAME7, the security guard FULL NAME8, an act was drawn up that the employee Pak FULL NAME18 the commandant of the HOA "Oasis Park" was absent from the workplace during the working day DD.MM.YYYY from 11 o'clock 00 min. until 18 o'clock. 00 min. without good reason. He refused to explain his absence.

DD.MM.YYYY in the name of the chairman of the HOA, the chief engineer FULL NAME20 wrote a memo stating that Pak FULL NAME21 DD.MM.YYYY arbitrarily left workplace, including the territory of the house, did not warn him of his absence; did not follow the performance of work by his ward FULL NAME9, who 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 required to provide a certificate or other official document justifying his absence from the workplace, which has a mark of the chairman of the board FULL NAME13, chief accountant FULL NAME12, inspector of the personnel department FULL NAME6 about that the plaintiff was familiar with the order, refused to receive the order in his hands.

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

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

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

Order No. from DD.MM.YYYY Pak FULL NAME25 was dismissed under paragraph.n. "a" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation on the basis of Act No. dated DD.MM.YYYY The order has a note from the chairman of the board about the plaintiff's refusal to sign the order.

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

From the response to the statement of the bailiff-executor of the Chertanovsky OSP UFSSP in Moscow FULL NAME10 from DD.MM.YYYY, it follows that the execution of the Chertanovsky OSP UFSSP in Moscow was enforcement proceedings No. on the collection of debt against the debtor of the HOA "Oasis - Park" in favor of Pak FULL NAME 27. According to the materials of the enforcement proceedings Pak FULL NAME28 bailiff executor at the reception DD.MM.YYYY was not called. Claimant Pak FULL NAME29 was in the room Chertanovskogo OSB DD.MM.YYYY at non-reception time on their own initiative. At his request, a summons was issued stating that he had visited the bailiff. It is not possible to report the time and period of his stay DD.MM.YYYY in the OSP premises, due to the lack of such information in the materials of the enforcement proceedings

According to the bailiff's subpoena Chertanovsky OSP UFSSP in Moscow FULL NAME10 for enforcement proceedings № follows, that Pak FULL NAME30 was in Chertanovsky OSP DD.MM.YYYY from 12 h. 00 min. until 18 o'clock. 00 min.

The order of the bailiff-executor of the Chertanovsky OSP UFSSP for Moscow, FULL NAME10, is presented in the case, that he instructs to pass on purpose the resolution No. from DD.MM.YYYY to Sberbank of Russia OJSC. This instruction is marked by the bank from DD.MM.YYYY. 00 min. and according to the rules of the bank, the date of the next day is set. Court not presented evidence that DD.MM.YYYY Pak FULL NAME31 was absent from the workplace. In this connection, the court concludes that this order was provided to the bank DD.MM.YYYY

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

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

Witness FULL NAME12 testified that she works as a chief accountant in the HOA "Oasis Park" with DD.MM.YYYY She knows that the plaintiff was fired. The plaintiff refused to sign the acts of dismissal in April 2012. Salary is accrued in accordance with the time sheet, which is presented by the HR inspector, signed by the engineer and the chairman of the board. March 2012 She worked each from 09 o'clock. 00 to 18 h. 00 min. DD.MM.YYYY she did not see Pak FULL NAME32. DD.MM.YYYY she was in her office, she heard a scandal, she left the office and went to the secretary, where Pak FULL NAME33 shouted about some statement, and FULL NAME13 asked him to provide documents why he was not at work. He screamed, refused to give an explanation. FULL NAME13 said to write an explanatory note that Pak FULL NAME34 refused to give an explanation She signed the acts with DD.MM.YYYY The orders were drawn up, what were the orders she does not remember She does not remember whether she signed the act DD.MM.YYYY or not The acts were drawn up by the inspector of the personnel department on the day when they are signed, and then everyone peeed on them. The plaintiff was familiarized with the dismissal order. She saw that the order was lying on the table in the hallway. The plaintiff came out of the chairman's office and shouted. There were some other notices about the need to pick up the work book. DD.MM.YYYY she did not decide that Pak FULL NAME35 was absent from the workplace, since it was none of her business. She signed in the act that the person refused that he was presented with a claim Since she did not see Pak FULL NAME36 DD.MM.YYYY, she signed the act of his absence. For what the act is needed, she was not interested.

Analyzing the explanations of the parties, the testimony of witnesses, the evidence presented, the court concludes that the plaintiff was absent from the workplace for good reason, because carried out the order of the bailiff-performer, in connection with which, his dismissal for absenteeism cannot be recognized as legal.

Under such circumstances, the plaintiff's claim to be reinstated at work with DD.MM.YYYY as the commandant of the HOA "Oasis Park" is subject to satisfaction.

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

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

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

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

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

I DECIDED:

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

Collect from HOA "Oasis Park" in favor of Pak In Su 49559 rubles. 15 kop.

The rest of the claim is denied.

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

Collect from HOA "Oasis Park" state duty in the state revenue in the amount of 1686 RUB. 77 kop.

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

In all countries, and ours is no exception, there are cases when the authorities make an unlawful decision to dismiss an employee or transfer him to another position. And the employee does not want to leave a cozy place at all. He really liked the work, especially since it was not far from home. Yes, and there was a terrible resentment from an unfair attitude on the part of the authorities. Wrongful dismissal must be challenged without fail.

Every dismissed person who believes that he was treated unfairly has the right to reinstatement at work. Knowing your rights is very important, and you need to fight for them, even in court. You can familiarize yourself with the rules for dismissal and what grounds for this exist in Chapter 13 of the Labor Code of the Russian Federation.

When is dismissal illegal?

In the event that the employee conscientiously performed his work, did not skip work, did not come to work drunk, did not steal anything and did not violate safety regulations, his dismissal will be considered illegal. It is also considered illegal dismissal if:

the employee was not warned in advance, for example, about a staff reduction at the enterprise;
if stated reason dismissal is not true and a completely different reason is indicated in the order;
when an employee is dismissed because he does not correspond to his position and does not cope with his duties, a proper certification of the employee was not carried out;
an employee is fired due to poor health, he often gets sick and cannot cope with his work, a medical commission has not been held that can confirm this;
the employee was allegedly fired due to a reduction in staff, but in fact there is no reduction;
the employee has not been paid the wages due to him.

In the event that an employee commits an official crime or some serious misconduct, the boss may offer him to quit on his own. In this case, he is doing you a favor and you must definitely agree. But if the dismissal is illegal, and the boss suggests writing a statement of his own free will, then you should know: you can’t write it, because the court will not accept your claim for consideration later.

However, if it is proved that such a statement was written under pressure and coercion, the judge must take into account and try to understand the true reasons for the dismissal. Most employers make mistakes in the preparation of such documents.

Their illiteracy in legal subtleties and unwillingness to use the services of professional lawyers leads to the fact that it is easy for a competent lawyer to prove a violation of the employee’s rights and demand significant compensation in the form of debt payments for the period of forced downtime of the employee, also demand payment for moral damages and for the services of a law firm .

Complaint to the State Labor Inspectorate

When an employee is fired, he writes a statement. Often, employers are asked to write a letter of resignation of their own free will. If you think that the dismissal is illegal, then in no case do you need to write it. After the dismissal order is issued, you can contact the labor inspectorate. This is done simply. A statement is written in which all the circumstances of the case are clearly indicated, without speculation and your judgments.

Your application must be reviewed within 15 days. The decision will be made on time if the employer has violated labor laws too obviously. In the event of difficulties arising in the consideration of the complaint, the case may be delayed, and this should not be allowed. After a period of one month, it is no longer possible to file a lawsuit in court. So the choice is yours. Or go to court right away, which will be longer and more expensive, but more likely to return your position and be reinstated in your workplace, or first try to act through the state labor inspectorate. It will be much cheaper, but there are some nuances. The case can be delayed or rejected, and service inspectors are not as professional as judges.

They have the right to conduct an administrative audit of the incident at the enterprise, review all documents and contracts, and review orders. For the rest, namely, reinstatement at the workplace, payment of any money and compensation, the inspector will still advise you to apply to the district court. If after the expiration of the prescribed period no decision has been made, then there is no more time to wait, you must urgently file a lawsuit in court for illegal dismissal.

It should be less than a month from the termination order to the filing of a reinstatement claim. Later, the matter is considered by the court only in case of extraordinary reasons for the delay. Prolonged consideration of the case by the Inspectorate is not considered as such a reason. You can first contact the labor inspectorate, and after 15 days immediately file a lawsuit in court, at the same time. Questions on reinstatement to work in judicial practice are considered within a month.

Benefits of going to court

Consideration of labor disputes in court has a number of advantages. They need to be known in order to accept the right decision whether to ask for help or not. A claim for reinstatement is filed with the court at the location of the enterprise. After the application is submitted, an enforcement judge is appointed to listen to your claims and consider the evidence base. The trial takes place with a thorough study of all controversial issues, with the call and interrogation of all parties to the labor dispute.

The judge considers the grounds for Only in court can you tell in detail about the dismissal procedure, about all the violations committed by the employer during this period.

Another positive point is to file a lawsuit. The unlawful dismissal of an employee assumes that the corresponding costs are borne by the employer. Based on Article 393 of the Labor Code of the Russian Federation, a dismissed employee is completely exempt from paying state duty and court costs. Also a pleasant moment will be the opportunity through the court to demand from the employer compensation for moral damage and compensation for loss of wages for the entire period that the plaintiff did not work.

Disadvantages of litigation

The only negative will be the length of the consideration of the complaint. Especially if the controversial issue has little evidence. In case of gross violation of labor legislation, reinstatement to work in judicial practice is easier, less time is spent on clarifying the circumstances of the case. If there is no valid written confirmation of the violation by the employer of the rights of his employee, then the consideration of the case may be delayed.

But lately, judges have been trying to resolve such disputes about reinstatement faster, within a month. The process can be delayed only in the case of very controversial issues. If the evidence of the illegality of the dismissal of an employee is high, then the case for reinstatement in judicial practice is considered much faster.

Preparing to go to court

Before applying for reinstatement by court order, an employee must carefully prepare in advance. Usually they are not dismissed abruptly, but the person feels and understands that everything leads to this. At the time of dismissal, the employer is unlikely to want to meet you halfway and give everything Required documents that the judge will require. When signing an employment contract, one copy must be in the hands of the employee.

The contract must specify the salary you will receive. If cash payments are not stipulated there, but you need to take a certificate from the place of work about the salary for six months. This will be needed by the judge if the employee wants to pay the debt.

It is advisable to try to talk to the manager for the last time before filing an application with the court, to explain your reasons for not wanting to leave the workplace. You also need to warn him about your desire to go to court for reinstatement under the Labor Code of the Russian Federation. In the practice of labor disputes, there were cases when the manager did not want to check his enterprise and study the documentation by judicial assistants, and accepted an amicable agreement to reinstate the employee to his previous workplace. Even in such cases, the issue of debt payments was resolved.

What documents are required to apply to the court?

If it was not possible to agree with the manager and solve the problem of returning to the previous place of work, then you need to file a lawsuit with the judicial authorities at the place of registration of the enterprise. Sometimes the case may be referred to the court at the place of residence of the plaintiff. When filing a claim, in addition to the application, the following documents must be submitted:

work book (it should contain an entry on the number of hiring and dismissal, with order numbers);
a copy of the employment contract concluded upon admission to this place of work;
copies of orders with numbers (on hiring, dismissal, reprimands or penalties, if any);
certificate of receipt wages over the past six months.

You can also submit any documents that confirm that you worked at this enterprise. Each document in hand must be filed with the case. This is very important, since the employer can safely say that he sees you for the first time, and you did not work for him.

Individual labor disputes

According to the court, any employee who considers his dismissal and transfer to a lower-paid position to be illegal can apply. He can, through the courts, demand compensation for the period that he was forced not to work or received less salary. Employees who do not agree with the wording of the reasons for their dismissal in the work book may sue.

Also, an employee of the enterprise can complain through the courts about the boss who did not respect confidentiality when processing the employee's data. The issues of unlawful refusal to hire a person, discrimination of his rights on the basis of nationality, pregnancy or the fact that a woman has a small child are considered.

When conducting a case, the court listens to different parties, looks through all the documents, judicial assistants are sent to the enterprise to check all the documentation. Also, if necessary, various professional experts, various witnesses can be involved, certifying your work activities at this enterprise. The employee in this process is called the plaintiff, since he filed a claim, and the manager or private entrepreneur is considered the defendant.

Judgment by the court

When applying, the employee plans that the decision to reinstate at work in court will satisfy his requirements. After carefully studying the case materials, the judge makes a reasoned decision, confirmed by labor law, indicating the chapters and articles of this code.

In the event that the plaintiff makes a claim for compensation to him material damage or other compensation, the judgment must clearly state the amount due payment. Since the trial can take a long time, according to the law, it is decided that compensation to a dismissed worker should not exceed six months' salary. If the plaintiff requires additional payments, for example, payment of a lawyer or compensation for non-pecuniary damage, the judge also determines and clearly indicates this amount. Since no state duty is charged from the employee in case of an individual labor dispute, a 50% tax is levied on additional payments at the request of the plaintiff.

When reinstated at work by a court, a person has the right to demand compensation not only for the payment to the lawyers, but also for the physical and psychological suffering caused to him. The degree of guilt of the defendant is also taken into account. But usually such compensation is small.

Reinstatement at work

If the consideration of labor disputes in court ends with a decision to reinstate an illegally dismissed employee, the employer is obliged to reinstate him in the same position on the same day. In this case, the employee submits a court decision and writes an application for reinstatement at work.

An order for reinstatement at work is issued by a court decision and given to the employee for signature. After that, it is necessary to make an appropriate entry in the work book: the entry under No. (the entry number is put, it is in this work book) is invalid, restored to the previous job. But if the employee does not want to spoil his impeccable reputation with such an entry in the book, he has every right to demand that he be given a duplicate without corrections.

In the event that the employee was transferred to a lower-paid position, then with a positive decision of the judge, he must return to his previous place of work. If the reason for dismissing an employee from work was incorrectly indicated, did the person suffer and could not get another job because of this? Through the court, he was also entitled to monetary compensation in the amount of his salary for six months. The court will also oblige the head to change the objectionable wording in the work book.

But after the court decision on reinstatement, arbitrage practice shows that not everything goes so smoothly. Usually a person who has thus achieved his requirements is not very welcome at his old place of work. The moral atmosphere is so tense, and the boss's nit-picking becomes so critical that a person often then independently comes to the decision to quit and write. The employee must understand this, and after a court decision and receiving monetary compensation, start looking for another job.

Illegal redundancy

When a reduction in staff is planned at an enterprise, the head, according to the law, must comply with all the rules. To begin with, it is necessary in advance, namely, to warn the employee about changes in his life two months in advance. During this time, a letter is also submitted to the employment service about the need to provide a person with an appropriate place within this period, according to his experience, length of service and education.

Also, the boss can offer another position, if, of course, there are vacancies. The employer must pay compensation to the employee if the forced dismissal occurred ahead of schedule. In case of non-compliance with these rules, an illegal dismissal on reduction will take place.

Categories of citizens who are illegal to reduce

There are several categories of workers who, under the law, in any case, do not have the right to dismiss, let alone reduce:

pregnant women;
single mothers with a young child in their arms (up to 14 years old) or raising a disabled child (up to 18 years old);
mothers who have a child under 3 years of age;
guardians of persons with disabilities under 18 years of age, who are considered one worker in the family;

a father who has a young child in his upbringing, but no mother;
a father who is the sole breadwinner in a family with three young children;
people who at the time of the reduction are on planned leave or on leave at their own expense;
people who are on sick leave at the time of the reduction;
if the employee with whom the contract was signed is not yet 18 years old, then he can be dismissed by agreement with the labor inspectorate or the inspector for minors.

In any case, upon dismissal, the employee must know his rights, be able to act professionally, defend himself, if necessary, in court. If the production is not observed Labor Code and lawlessness of the authorities reigns, then punishment must follow without fail.

The labor collective must unite and protect the rights of employees. Unfortunately, in our country trade union organizations are not as strong as in other states, and often workers cannot get the support they need. That's what the judiciary is for. You can always sue. Illegal dismissal must be punished.

Many are worried and afraid to apply, and such processes are very rare, however, as practice in other countries shows, if you wish, you can always prove your case.