Reinstatement at work after dismissal under the article. Illegal dismissal from work - what to do. Drafting a lawsuit

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; Correction of an entry in the work book;
• Restoration of experience.

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

The period of reinstatement at work in case of illegal dismissal

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

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?

Grounds for dismissal own will is the statement of the employee, there is no statement - 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 look at the grounds for termination. 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 labor Relations actually continue 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 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 reason of 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) property of others, 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 overlay disciplinary action the gravity of the offense 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!

By concluding an employment contract, a person counts on a constant source of income.

Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

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Today, no one is immune from such situations as the illegal dismissal of an employee. Knowing how to challenge wrongdoing will help restore justice.

What does the legislation of the Russian Federation say?

There is no such thing as “illegal dismissal of an employee” in Russian legislation.

In practice, it implies the termination of labor relations on grounds not regulated by the Labor Code.

The legal norms governing the nuances of the dismissal of employees are contained in the following articles Labor Code RF:

• Art. 77 of the Labor Code of the Russian Federation;
• Art. 81 of the Labor Code of the Russian Federation;
• Art. 71 of the Labor Code of the Russian Federation;
• Art. 336 of the Labor Code of the Russian Federation;
• Art. 278 of the Labor Code of the Russian Federation;
• paragraph 11 of Art. 348 of the Labor Code of the Russian Federation;
• Art. 234 of the Labor Code of the Russian Federation;
• Art. 357 of the Labor Code of the Russian Federation.

An employment contract is unlawfully terminated if:

• employer forces;
• there is a violation of the order of dismissal;
• mistakes were made in the execution of the procedure;
• removed from office for a reason to which the employee is not actually involved;
• the employee was not promptly notified of the upcoming reduction, liquidation of the company;
• happens for no reason.

In case of illegal dismissal, they can be held administratively and financially liable. The amount of compensation depends on the severity of the harm caused.

Possible situations of illegal dismissal

The employer dismisses an employee on the basis of a staff reduction that was not actually carried out.

This is a violation of the Labor Code.

If the employee was satisfied with the work, he can apply to the justice authorities for reinstatement. In such a situation, it is possible to recover material compensation.

The boss forces an employee who does not suit him for certain reasons to.

First, he forces him to write an application for voluntary removal from office, then he expects disciplinary offenses for dismissal under the article.

By law, an employee cannot be fired without good reason. If the employer forces you to quit of your own free will, you do not need to write.

Dismissal is possible only with the consent of the employee.

The manager terminated the contract due to a disrespectful reason.

The grounds are justified, but the documents were drawn up improperly. The employee does not agree with the opinion of the employer. Found new job, so it does not want to recover.

What can be done in this case:

• apply to the court to change the wording of the grounds for dismissal to the entry "of one's own free will";
• demand financial compensation.

The order of dismissal was signed by the deputy director.

In local regulations such a right was not spelled out, which means that the document was signed by an unauthorized person.

The consequences of the mistake are the recognition of the dismissal as illegal.

As a result, the court reinstates the employee, and also requires:

• provide payment for the period of forced absenteeism;
• compensate for material damage.

Employee Rights

What to do in such situations?

Employees should remember that in addition to a number of duties, they have rights.

It is necessary to prepare documentation and apply for protection to state bodies.

The first organization Federal Labor Inspectorate (labour police).

The organization monitors compliance with the Labor Code of the Russian Federation and legal acts relating to labor activity.

Specialists work in two directions - checking compliance with safety rules and resolving legal issues.

The legal authority will conduct an inspection at the enterprise, and if violations are found:

• draw up a protocol, impose an administrative fine;
• reinstate a dismissed employee (if possible).

An employee's complaint is considered for about 10 days.

Don't expect a thorough investigation. Even after the successful outcome of the case, the employer can appeal the decision.

The second organization Prosecutor's office.

In case of illegal dismissal, the powers do not differ much from the labor inspectorate, since the employer commits an administrative offense, not a criminal one.

What you can count on:

• a full investigation of the official reason and procedure for terminating the contract;
• appeal to the court on behalf of the prosecutor's office.

Another option - appeal to the district court.

This is the best solution to achieve justice. The procedures will require more time and effort, and you will need the help of a lawyer.

You can appeal the decision of the employer only if you apply to the justice authorities in a timely manner:

• Federal Labor Inspectorate - no later than 30 days from the date of receipt of the work book or order.
• Court - similarly, only the period can be extended if there is a good reason for the late appeal.

If the company is forced to write a letter of voluntary resignation or indicates a false reason for removal from office in the contract, the employee does not have to comply with this requirement.

If there is evidence, the authorities will be held accountable.

Litigation and its legal consequences

First of all, the dismissed employee must collect documents confirming the illegal dismissal.

Then the amount of legal costs and the alleged compensation is estimated.

If it is advisable to start the proceedings, then the next step is to write a statement.

A sample form can be downloaded here:

Competent drafting of the claim largely determines the outcome of the case.

Emotions and unnecessary details are not allowed in the text. The requirements are stated concisely, with references to the articles of the law.

The document is conditionally divided into three parts:

• introductory- information is provided about the court to which the employee applies, data on the plaintiff and defendant (name, location). The cost of the claim is also indicated.
• descriptive- contains the essence of the violation, links to regulations and evidence.
  Pleading - has a clear statement of claims.

The duration of the protection of rights in court is 1 month (Article 154 of the Code of Civil Procedure).

Unfortunately, in practice, cases are resolved much longer.

The recognition by the court of the employer's actions as illegal leads to the following consequences:

• Reinstatement of an employee - implies cancellation. The order is drawn up in an arbitrary form, it specifies the details. The employee signs and dates the familiarization.
• Changing the wording of the reason for suspension from work.
• Calculation of wages for the period of forced absenteeism.
• Legal fees.
• Compensation for moral damages and legal costs.

For illegal dismissal, a disqualification for 1-3 years and administrative liability is possible:

• for officials- 1000-5000 rubles;
• for individual entrepreneurs - 1000-5000 rubles. or stop activities for 3 months;
• for legal entities - 30,000-50,000 rubles. or stop working for 3 months.

When reinstating an illegally dismissed employee, corrections are made to the personal card.

In the "Additional Information" section, the personnel officer must enter that this happens by a court decision (indicate the details). In the column "Grounds for termination of the contract" previously made entries are crossed out.

Corrections need to be made in the columns of the work book:

1. - put the number of the new record;
2. - put down the number;
3. - the text is written: “The record is invalid, the employee has been reinstated at his previous job”;
4. - a link to the order is indicated.

The worker is reinstated seniority, including the duration of forced absenteeism.