Illegal dismissal from work - what to do. Illegal dismissal from work: what to do, recovery period, lawsuit Wrongful dismissal of an employee judicial practice

If no one has illegally fired you yet, do not think that you do not need to read this article. The presence of elementary knowledge of labor legislation may help to avoid illegal dismissal, from which no one is immune today.

What is meant by illegal dismissal?

The grounds for termination of an employment contract at the initiative of the employer are set out in Article 26 of the Law of the Republic of Kazakhstan "On Labor" and are considered by us in the article "What can I be fired for?". Strictly speaking, any dismissal of an employee without his consent on other grounds or in violation of the established procedure will be illegal.

The most common violations of the law by employers upon dismissal are:

dismissal on grounds not provided for by law;

dismissal on grounds that did not take place in reality;

an indication of a ground for dismissal other than the one that actually took place;

dismissal without proper documentation of disciplinary offenses and gross violation of labor duties (absenteeism, appearance in a state of intoxication, violation of safety rules, theft, etc.);

non-payment of wage arrears to a dismissed employee under far-fetched pretexts;

dismissal with the wording of a reduction in the number or staff without carrying out a real reduction procedure;

violation of the procedure for warning employees about the upcoming liquidation or termination of the employer's activities, reduction in the number and staff;

dismissal for inconsistency with the position held or work performed due to insufficient qualifications without proper certification of the employee;

dismissal for inconsistency with the position held or work performed for health reasons without a proper medical examination.

Pay attention to an important point. Very often, the employer makes a dismissal on his own initiative, but invites the employee to write an application for termination of the employment contract of his own free will. Of course, if a disciplinary act actually took place or the dismissal is carried out for other discrediting motives, it makes sense to agree to such an entry in the work book. But if the dismissal is made on clearly illegal grounds, in no case do not accept this option. With this wording of the grounds for termination of the employment contract, you significantly reduce the likelihood of judicial protection of your rights. And, although, when considering such cases, the courts must carefully check the motives that served as the reason for filing a letter of resignation, and, having established that the employer forced the employee to file a letter of resignation, the court must recognize the dismissal as illegal, it will be extremely difficult to prove such coercion.

A large number of violations of labor legislation when terminating an employment contract at the initiative of the employer is associated with a number of factors, which include: legal illiteracy of officials who make certain decisions on behalf of the employer; lack of a lawyer (legal service at the enterprise). However, insufficient knowledge by the workers themselves of their rights also plays an important role.

Where can I file a complaint against wrongful dismissal?

To date, almost the only option is to go to court. Although Chapter 11 of the Law of the Republic of Kazakhstan "On Labor" provides for the possibility of creating conciliation commissions from among representatives of employers and employees, such commissions are practically not created anywhere in practice.

You can also file a complaint with the state labor inspector. These officials have the right to check compliance with labor laws, issue mandatory orders to the employer to eliminate violations, and hold violators accountable. But in order to be reinstated at work, and even more so to recover wages and (or) compensation for moral damage, if the employer does not recognize his actions as illegal, you will be recommended to go to court.

A considerable number of labor disputes considered by the courts are resolved in favor of employees. Effective judicial protection of the labor rights of workers is quite possible, especially with the necessary knowledge. The shortcomings in this case (especially the significantly increased terms for the consideration of labor disputes in courts) impede the successful implementation by the courts of state protection of the rights and interests of citizens. But in any case, you need to protect your rights.

Preparing to go to court

Before going to court, you need to thoroughly prepare.

We think that no one needs to explain to anyone that even when they were hired, they had to conclude an individual labor contract with you. However, it is no secret that many employers still do not compose it. Either the employee is not on the staff at all, and taxes and pension contributions are not paid for him, or the employee is on the staff, but the minimum wage is kept in accounting, and the rest is paid, as they say, "in an envelope."

It is highly desirable to have an employment contract with the actual salary indicated in it. Require the employer to conclude a contract and give you a copy of it in advance. When you leave, this will be difficult.

In your work book (if you have one), records of hiring and dismissal should be made.

If you do not have a contract on hand, ask your employer to issue a certificate of the amount of your salary for the period of work. What is it for? This amount will be needed to calculate the recovery of unpaid wages and payment for the time of forced absenteeism upon reinstatement. And if it is not reflected anywhere, it will be established from the words of the employer, who referred to the data of his reporting. Therefore, it is possible that when you actually receive 30,000 tenge per month, you will recover only 5,000, since it was this amount that was carried out according to the documents.

"At the request of the employee, including the former, the employer is obliged, no later than five days from the date of application, to issue him a certificate indicating the specialty, qualifications, position, working time and wages, a characteristic - a recommendation containing information about the qualifications of the employee and his attitude to work, as well as other documents on work provided for by this Law" (Article 14 of the Law "On Labor"). However, this rule is violated by employers everywhere and with impunity.

If the employer does not give you any documents at all, in the statement of claim, you must state a request to the court to demand them. Even if your employment was not documented, the actual admission to work confirms the conclusion of an individual labor contract (paragraph 2 of article 12 of the Law "On Labor"). Although the possibility is not ruled out that if your employment was not completed at all, the employer will declare that you have never worked for him, and he generally sees you for the first time. This once again suggests that it is necessary to take care of the documents confirming employment and the amount of earnings in advance.

You should decide on your requirements for the employer: reinstatement at work, payment for the time of forced absenteeism, payment of wage arrears, changing the entry in the work book, compensation for moral damage.

It often makes sense to contact the employer with a written complaint that specifies your requirements. A well-written claim can decide the case in your favor without litigation, and can also serve as another proof of the existence of an employment relationship, if they are not confirmed by other documents. Make sure that you have a second copy of the claim with the employer's note about the time it was accepted or a postal receipt for sending.

Filing and consideration of a claim for reinstatement

The procedure for considering labor disputes in court is regulated by labor and (as in all civil cases) civil procedural legislation - the Civil Procedure Code of the Republic of Kazakhstan.

As a general rule, a claim is filed with the district (city) court at the location of the defendant - that is, the employer. However, according to paragraph 8 of Article 32 of the Code of Civil Procedure of the Republic of Kazakhstan, workers' claims on labor matters may also be filed at the place of residence of the plaintiff.

The application is accompanied by the documents necessary to substantiate the claim: copies of the individual employment contract, work book, orders (instructions) of the employer on the hiring, dismissal or imposition of a disciplinary sanction on the employee, earnings certificates and any others that confirm the fact of your work, dismissal, earnings.

The court must resolve the dispute in accordance with the circumstances of the case and the law.

When considering a dispute, the court listens to the parties, other participants in the process, analyzes the materials available in the case. The court may, at your request, call witnesses, invite specialists, experts, request from you or the employer the documents necessary for the correct resolution of the case.

In the course of the proceedings in court, you can change your claims, increase or decrease them, change the subject, the grounds for the claim, or refuse the claim. Quite often consideration of such cases comes to an end with the conclusion between the parties of the settlement agreement. But carefully consider the terms of the settlement agreement proposed by the employer. Once entered into, such an agreement deprives you of the right to re-apply to the court with the same claim.

When considering a labor dispute, the parties to the litigation in this dispute are the employee and the organization (individual entrepreneur), and not the head (director, manager, etc.), although these persons may coincide.

An employee who initiated a labor dispute in court is a plaintiff, and an organization (represented by its representative) that disputes the employee's claims is a defendant.

In labor proceedings, not only representatives of the parties, but also representatives of trade unions are allowed to participate, although these days this is a rarity.

When submitting applications to the court for resolving individual labor disputes, employees are exempt from paying the state fee (subparagraph 2 of article 501 of the Tax Code of the Republic of Kazakhstan). However, if you make a claim for compensation for moral damage, you will need to pay a state duty in the amount of 50% of the monthly calculation index (MCI) - in 2004 - 460 tenge.

If you use an attorney or lawyer, you must file a petition for reimbursement from your employer of legal aid costs.

Judgment on a dispute

When applying for judicial protection, you can count on the restoration of the violated right, as well as compensation for the average earnings for the period of forced absenteeism.

In the event of termination of an individual labor contract without a legal basis, the employee must be reinstated in his previous job by the body considering the labor dispute. An employee reinstated in his previous job in connection with the illegal termination of an individual labor contract is paid the average salary for the entire period of forced absenteeism, but not more than three months (Article 29 of the Labor Law).

In the event of an unlawful dismissal of an employee in order to restore the violated right, either the actual reinstatement in the previous position is possible, or, if the dismissal is recognized as illegal, a change in the wording of the dismissal.

Turning to the court, you probably guess that it is unlikely that in the event of your reinstatement in court in your previous workplace, favorable moral conditions will be created for you to work. Most often, an employee reinstated in a court of law subsequently quits of his own free will, having worked after the restoration for a very short time.

If the employee's claim is satisfied, then the court costs, including the state fee, are recovered from the defendant.

The decision on labor disputes is made by the court on the basis of a comprehensive study of all materials, testimonies of the parties, other participants in the process (if any were involved). It must be motivated and justified with precise references to legislation, other regulatory legal acts, a collective agreement (if any), an individual labor contract. The decision formulates the court's conclusion on the satisfaction of your claim or refusal of the claim. When satisfying the claims, the court clearly formulates what actions should be taken by the defendant in pursuance of the decision. For monetary claims, a specific amount is indicated.

In case of dismissal without legal grounds or in violation of the procedure for dismissal or illegal transfer to another job, the employee must be reinstated in his previous job.

When satisfying a claim for reinstatement and recovery of wages for the time of forced absenteeism or for the time of performance
lower-paid work, the courts must, in the operative part of the decision, determine the amount to be recovered, as well as the amount of court costs and indicate the immediate execution of the decision. Since the law provides for payment for forced absenteeism for only three months, it is not worth postponing the filing of a claim.

If the wording of the reason for dismissal is recognized as incorrect or not in accordance with the current legislation, the court considering the labor dispute is obliged to change it and indicate in the decision the reasons for dismissal in strict accordance with the wording of the current legislation with reference to the relevant article (paragraph) of the law. If the wording of the reason for dismissal in the work book was incorrect or not in accordance with the current legislation, it prevented the employee from entering a new job, the court at the same time decides on paying him the average earnings for the time of forced absenteeism.

At the request of the employee, the court may be limited to making a decision on the recovery of the above compensation in his favor and on changing the wording of the grounds for dismissal to dismissal of his own free will.

There are cases when the restoration of an employee to his previous job is impossible due to the liquidation of a legal entity or the termination of the activity of an individual entrepreneur. In this case, the court recognizes the dismissal as incorrect, obliges the liquidation commission or the body that made the decision to liquidate (abolish) the organization, and, in appropriate cases, the successor, to pay him wages for the time of forced absenteeism. At the same time, the court recognizes the employee as dismissed under subparagraph 1 of Article 26 of the Law "On Labor" in connection with the liquidation of the organization.

Legislation recognizes that it is possible to compensate an illegally dismissed employee not only for material, but also for moral damage. If there is a corresponding demand from the employee, having established that moral damage was caused to the employee by illegal dismissal, the court must recover this damage from the defendant. The amount of compensation each time is determined by the court, based on the circumstances of the case. However, do not rush to rejoice.The amount of compensation for non-pecuniary damage is not defined by law. Clear criteria for determining this size are also not defined. The legislation gives a vague description of the criteria for determining the amount of compensation for moral damage - the degree of moral and physical suffering of the victim, as well as the degree of guilt of the offender. In practice, either the employee is generally denied compensation for non-pecuniary damage, or this compensation is paid in a small amount. This circumstance does not at all stimulate the employer to prevent such violations in the future.

The decision of the district (city) court may be appealed by the parties to the dispute to the civil division of a higher court within 15 days. At the same time, it may be protested by the prosecutor. If there is a valid reason for missing the specified period, it may be restored by the court. After the expiration of the specified period, it enters into force.

The higher court, considering the case on appeal, may leave the decision of the court of first instance in force, change or cancel it in whole or in part. If the decision of the people's court is annulled, the higher court may refer the case to the same court for a new trial on the merits of the dispute. He may also terminate the proceedings or leave it without consideration.

The decision of the court may be canceled by way of supervision. Therefore, the resolution of the dispute in your favor in the district (city) court should not be regarded as a final victory. However, vice versa. If you are defeated in the trial court, continue to seek protection in the appellate and supervisory courts.

Enforcement of a judgment

A labor dispute considered in court is terminated by the execution of a court decision, namely, the actual implementation of the instructions contained therein (the actual reinstatement of an illegally dismissed employee, the payment of money awarded to the employee, etc.).

The law provides that the decision on the reinstatement of an illegally dismissed employee, as well as on the award of wages, is subject to mandatory execution (subparagraphs 2) and 3) of Article 237 of the Code of Civil Procedure of the Republic of Kazakhstan). This is one of the few cases where the decision is enforced even before it enters into force (15 days).

If the employer delays the execution of the court decision on the reinstatement of an employee unlawfully dismissed or transferred to another job, the court that made the decision to reinstate him at work may issue a ruling on payment of his average earnings or the difference in earnings for the entire time of the delay.

In case of non-execution by the head of the organization (employer) of the executive document on reinstatement, the bailiff applies to the court with a submission to make a decision to pay the employee the average wage or the difference in wages for the entire time from the date of the decision to reinstate the employee to the day of its execution . The execution of the decision to reinstate at work is considered completed from the moment the illegally dismissed or transferred employee is actually admitted to the performance of his former duties, following the issuance of the administration's order to cancel his illegal dismissal or transfer order (Article 68 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" ).

What is the result?

We can say that the law enshrined fairly broad rights of employees to appeal against the illegal actions of the employer, in particular, dismissal. However, in practice these rights are not always and not fully realized. This is due to a number of reasons. These include the workload of the courts, and, as a result, the consideration of workers' claims for a long time; low legal literacy of employees, which excludes the possibility of self-protection of their rights, and not everyone can afford to pay for legal services in such a situation; the employee's lack of faith in the ability to defend their interests; passive behavior of workers in violation of their labor rights and low efficiency of the work of state labor inspectors, which often leads to impunity of employers.

But you can and should protect your rights. The main thing is to make sure that you can easily implement them. And this, with the implementation of simple recommendations, is available to everyone.

The dismissal of an employee of an enterprise can occur either at the initiative of the employee himself or at the initiative of the employer, and in the second case, the legislation severely limits the possibilities of the organization in the reasons for the dismissal of the employee from his position. Termination of an employment contract should occur only for reasons established by law, since otherwise it will be considered illegal and can be appealed by a former employee of the enterprise in court.

Most employees who have been fired without legal grounds do not go to court to cancel the order and reinstate them. Only a third of those illegally dismissed are ready to fight for the restoration of their rights. This is due to the fact that some workers simply do not know about their rights, while others do not want to get involved with the judicial system.

Despite this, the number of labor disputes is increasing every year, as many illegally dismissed people experience difficulties in finding further employment.

Usually, all labor disputes over illegal dismissal are related to:

violation of the dismissal procedure, for example, when an employee is dismissed of his own free will, if the enterprise is being liquidated, so as not to pay the allowances and payments due to the employee;
the application of a disciplinary sanction that does not correspond to reality, for example, dismissal for absenteeism, if the employee has documents confirming his absence for good reasons - illness, accident, calling him as a witness or eyewitness to a crime in law enforcement or judicial authorities, etc.

Termination of the employment contract at the initiative of the employer must take place in full accordance with the norms of the current labor legislation. Otherwise, the employee has the right to go to court to protect his rights, as well as reinstatement and compensation for forced absenteeism.

Complaint in court for wrongful dismissal

In case of illegal dismissal, the employee can apply to the labor inspectorate and to the court for further proceedings. Unfortunately, the labor inspectorate is not always ready to consider complaints from former employees due to the high workload and formal attitude to each application.

The most successful solution to problems is to file a claim with the judicial authorities for further consideration and a decision in favor of the applicant or his employer when examining evidence from each side. It is noted that it is almost impossible to prove the illegality of dismissal when signing an application of one's own free will, therefore it is recommended not to write such a statement even if the employer insists.

The statement of claim is filed at the place of registration with the district court, while the employee is exempted from paying the state fee and further incurring any expenses, with the exception of involving a lawyer or lawyer in the case to protect the interests of the former employee of the organization. In this case, a petition is attached to the statement of claim to recover from the organization not only moral compensation, but also compensation for the costs of a representative.

The advantages of considering a labor dispute in court are undeniable, since the lawsuit allows:

The most effective way to protect the violated rights of workers. In court, a former employee has the opportunity to clearly demonstrate all violations of the employer upon dismissal, as well as to attract witnesses of violations.
Significantly reduce legal costs, since, as a general rule, the process is free of charge, i.e. You do not need to pay a state fee to initiate proceedings.
To recover material and moral damage from the employer, including reimbursement of expenses for a defense lawyer.
To be reinstated in the position upon establishing the illegality of the dismissal.
Get compensation for forced absenteeism.

The main disadvantage of considering a case in court is the length of the proceedings, which rarely meets the deadlines established by law.

The statute of limitations for illegal dismissals

The deadlines for applying to the court to restore the rights of employees in case of violation of the law by the employer, including regarding illegal dismissal, are quite strict, but they can be restored under exceptional circumstances. In accordance with Art. 392 of the Labor Code of the Russian Federation, an employee can apply to the court to declare the dismissal illegal within one month from the date of issuance of his work book or execution of the dismissal order, otherwise it will not be possible to restore the violated rights.

At the same time, Art. 154 of the Code of Civil Procedure of the Russian Federation establishes that the period for considering an application for recognizing the dismissal as illegal should not exceed one month, although this rule is rarely observed, due to the high workload of the courts.

Restoration of the missed deadline is allowed when:

illness of the plaintiff, in which he was unable to apply to the judicial authorities to protect his rights. The disease must be documented by a certificate or an extract from the hospital where the treatment was carried out.
business trip of a citizen, which is confirmed by documents and extracts from the new employer.
the occurrence of force majeure obstacles, in particular, cataclysms - floods, earthquakes, volcanic eruptions and others.
caring for a disabled and sick family member who is constantly required - caring for a paralyzed family member or a family member with dementia, leaving them alone is dangerous for their life and health.

At the same time, an appeal to other bodies for the protection of the rights of workers is not considered a basis for restoring the missed deadline, since lawsuits can be filed in parallel with an appeal to the labor inspectorate or the prosecutor's office.

Recognition of dismissal as illegal

Labor legislation establishes that recognition of dismissal as illegal can occur only in court. Appeal to the labor inspectorate or other bodies for the protection of the labor rights of employees will not be able to affect the cancellation of the dismissal order or its invalidation under the current legislation.

Employers are doing their best to avoid the dismissal of employees due to a reduction in staff or during the liquidation of an enterprise, since in this case they will have to bear additional costs for paying a severance pay equal to the average monthly salary of an employee, and these are additional costs that they try to reduce by all means, including dismissal any far-fetched grounds - violation of discipline or non-compliance with labor regulations.

The prosecutor can initiate a trial if a citizen applies to the prosecutor's office with a relevant application, however, such actions do not fall within the duties of the prosecutor, and he may refuse to satisfy the application if there is no significant violation of labor laws.

The consequences of illegal dismissal for the employer

The consequences for the employer can be divided into two categories - financial liability for violation of the law and civil liability in the form of restoration of the violated rights of the employee.

In the event of unlawful dismissal of an employee, the employer must:

reinstate a former employee in a position;
pay the employee compensation for the period of forced absenteeism associated with illegal dismissal, equal to the average daily wage for each day of absenteeism;
compensate for moral damage if the court satisfied the employee's claim for compensation for moral damage;
compensate for the cost of lawyers' services in the amount established by a court decision;
pay a fine if for some reason the court decision was not executed.

If the dismissal is declared illegal, the employee must return to work the day after the court decision is made, with the exception of weekends and if the employer is unwilling to comply with the decision of the judicial authorities.

In case of non-compliance with the decision, the following sanctions may be imposed on the employer:

a fine in the amount of 1 thousand - 5 thousand rubles for the head of the organization;
a fine in the amount of 1 thousand - 5 thousand rubles for an employer who is an individual entrepreneur;
a fine in the amount of 30 thousand - 50 thousand rubles per legal entity;
termination of activities for up to 90 days in case of repeated violation of the execution of a court decision on the reinstatement of an employee in a position;
disqualification of an individual entrepreneur or legal entity for up to one year.

Each case is individual and requires a special approach with the study of all the features of dismissal. To make a decision in favor of a former employee, it is necessary to draw up the correct evidence base.

Illegal dismissal orders

It is almost impossible to establish specific grounds for dismissal that may be considered illegal, since each case requires individual consideration and trial. The employer must prove and explain the reason for termination of the employment contract, as well as provide all the documents accompanying the procedure.

Art. 81 of the Labor Code of the Russian Federation establishes that dismissal at the initiative of the employer is allowed in the following cases:

Inconsistency of the qualifications of the employee with the position he occupies. Many employers misunderstand the provisions of this article, as they dismiss them for non-compliance without conducting various examinations and certification, which is fundamentally wrong and may lead to an appeal against such a decision in court. A professional suitability assessment should be carried out with an expert opinion on the performance by the employee of his duties.
Repeated non-fulfillment of the norms of the labor contract, including non-fulfillment of labor discipline. Most often, the reason for dismissal on this basis is systematic small violations in the form of lateness, lack of a dress code, if it is established by the company's Charter, frequent absences from work, and so on. All violations must be documented with several witnesses, as well as with the conclusions of a specially established commission. The violator must be subject to disciplinary action.
One-time non-fulfillment of labor duties. In this case, the misconduct of the employee must grossly violate the established norms of discipline and rules of procedure. Gross violations of the terms of the employment contract include dismissal for absenteeism, appearing at the workplace in a state of drug or alcohol intoxication, disclosure of secret information, theft of property of the organization or any other property at the employee’s place of work, as well as gross violation of labor protection standards. For dismissal on such a basis, it is enough to commit one misconduct, and it must be documented by a special commission.
Dismissal based on loss of confidence. Termination of an employment contract for this reason applies only to employees who are directly related to the cash or commodity circulation within the enterprise. Other employees cannot be fired due to loss of confidence, as in this case the employer will violate the norms of the current labor legislation, etc.

If this rule is violated, the dismissal order may be declared illegal. Reinstatement with subsequent compensation payments will help solve the problems that have arisen, however, for an employee, working in such conditions most often becomes unbearable due to a biased attitude towards him. Such citizens are advised to receive all payments due and write an application on their own, so that in the future the employer does not have other grounds for dismissal.

Recovery from wrongful dismissal

The decision to recognize the dismissal as illegal is subject to immediate execution, that is, the next day after the entry into force of the decision, the employee must be reinstated and begin to perform duties.

For reinstatement, an appropriate order is issued, which is filed with the employee’s personal file and transferred to the safekeeping of persons authorized in the organization. As such, there is no order for reinstatement, however, the employer can independently determine such a document and include it in the general document flow of the enterprise.

Download

You can download a sample Application for reinstatement in case of illegal dismissal in .doc format

In accordance with the law, an employee can be fired only on the grounds that are provided for in the Labor Code of the Russian Federation. But after all, no one has yet canceled the human factor, so often many are fired precisely for psychological reasons, adjusting them to the necessary article of labor legislation.

In such a situation, everyone has the right to challenge the decision of the management in court, because you can only be fired for violations of labor laws, and not for the tendency to always tell the truth, which is inconvenient for the manager.

Regulation under the Labor Code of the Russian Federation

An almost complete list of grounds for dismissal is given in article 77 of the Labor Code of the Russian Federation, which, in particular, states that an employee can be dismissed for:

violation of labor discipline (theft, alcohol intoxication, immoral behavior, disclosure of trade secrets,);
non-fulfillment of assigned duties (presence of reprimands, certification results, violation of safety regulations);
in the event of liquidation and position.

According to the norms of the law, some employees, due to their social status or status, can only be fired in rare cases, since they belong to preferential categories. In particular, it is prohibited to terminate labor cooperation with:

pregnant women;
working women with small children under 3 years old, or single mothers or fathers of children under 5 years old;
parents of disabled children;
the sole breadwinners of a family with at least 3 children.

Also on the basis of Art. 81 of the Labor Code of the Russian Federation, it is impossible to dismiss an employee during a period of incapacity for work or while on vacation. However, as practice shows, many employers ignore the norms of the law and still dismiss objectionable people who are not suitable for them for one reason or another.

Examples of Common Illegal Situations

As a rule, the most common case is the termination of cooperation with a woman who is on maternity leave. In such a situation, many company executives are trying to get rid of maternity workers by cutting their jobs, which is a direct violation of the norms of Art. 256 of the Labor Code of the Russian Federation, which says that a woman on a decree must retain her workplace until the end of her vacation.
An equally common case is the termination of relations with a single mother who is raising a small child. After all, as a rule, small children often get sick, and there is no one to leave them with, which entails endless sick days and time off from work. Of course, not everyone likes this situation, which is why workers with small children are not hired at all or are fired very quickly for a far-fetched reason.
But with objectionable truth-seekers, men are dealt with in a different way. For the slightest misconduct, for example, being late for work by 5 minutes, not wearing a helmet at the workplace and violating safety regulations, they are immediately reprimanded, one after the other, so that after the third penalty they can be fired with a clear conscience.
An equally common way is to conduct an extraordinary one in order to reduce the existing qualifications of the employee to a minimum and thus find a reason for dismissal on completely legal grounds. But after all, for each procedure, one desire of the leadership is not enough, there must also be documentation, which, by the way, is established by law.
Another way to get rid of objectionable employees is a nominal job reduction with the introduction of a new vacancy with similar responsibilities, which again is a violation of labor laws.
Finally, it is worth mentioning the conclusion, even if the duties of the future employee will be performed on an ongoing basis. In such a situation, it is possible to resolve the situation and recognize the agreement as open-ended only in court.

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

Where to apply in this case?

In accordance with Art. 392 of the Labor Code of the Russian Federation, an employee has the right to resolve any labor dispute in court, in particular, in case of illegal dismissal, everyone can go to court to defend their own innocence, but only within a month from the date of receipt of the order to dismiss.

If the agreed period is missed, and the former employee cannot confirm the presence of valid reasons that prevented him from exercising his right within the prescribed period, when considering the recognition of the termination as illegal, the employee will be denied due to the omission of the claim period, regardless of whether he is right or no.

Disputes can be resolved not only through litigation. If the employee has not yet been dismissed, but he has already been informed of the imminent reduction, it is advisable to first collect evidence, which can then be submitted as confirmation of his innocence to the competent authorities, namely the Labor Inspectorate or the Prosecutor's Office:

Nowadays, everyone has mobile phones that have a voice recorder function. On the eve of dismissal, it is advisable to stock up on several records of a conversation with management with direct threats to dismiss for a far-fetched reason.
You also need to make copies of all documents that will be the basis for the reduction. For example, an order to issue a reprimand, an explanatory note, acts of violations, that is, all documents that confirm the fact of a disciplinary offense.
In accordance with Art. 84.1 of the Labor Code of the Russian Federation, upon dismissal, an employee has the right to demand any copies of documents that confirm his work activity - from to the time sheet or documents on the imposition of a penalty. If the management refuses to issue copies, it is advisable to ask for a written refusal or, again, record the conversation on a voice recorder.

Further, during the trial, you can appeal not only the dismissal, but also the reprimand that served as the basis. In such a situation, if a disciplinary sanction is canceled, or at least one of them, the restoration of the employee in the previous position will occur automatically, since in the absence of a reason and the existence of violated rights of the employee, the court will in any case decide to grant the person the previous position.

Terms and procedure for reinstatement at work

As mentioned above, the employee is given 1 month to prepare and file a statement of claim with the court. But the very consideration of the claim, depending on the complexity of the case and the claims made, can last from two months to six months involving both witnesses and labor law consultants.

The former employee also has the right to file an additional claim for the recovery of moral damages for the suffering caused and for compensation in accordance with Art. 234 of the Labor Code of the Russian Federation.

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

If the outcome of the case is positive, the employee can expect to be reinstated in his previous position and to be paid compensation for deprivation of the right to work for each day in the amount of the average earnings from the moment of dismissal until the date of the court decision, which the employer must execute immediately.

After receiving a court decision, the enterprise must issue an order to cancel the order to dismiss and reinstate the employee in his previous position. Then you need to make changes to the work book and make the appropriate payments specified by the court.

In documenting, the restoration procedure is simple, but problems can arise if another employee has already been hired for the position, who will have to be fired, or if the position is generally excluded from. In such a situation, first it will be necessary to make changes to the agreed document, and then to accept the former employee, and all personnel procedures will need to be carried out in an extremely short time.

Employer's responsibility

In case of illegal dismissal, the court will not only restore the violated rights of the former employee, but also decide on the punishment of the negligent employer. Of course, the penalty will be calculated based on the severity of the guilt and the specific circumstances of the case, but, in general, for violating labor laws, the management of the enterprise is threatened with penalties up to 50 thousand rubles on the basis of h. 1 Article. 5.27 of the Code of Administrative Offenses of the Russian Federation.

Also, the employer will be obliged to pay all amounts of compensation that were established for payment during the trial.

After the completion of the case, the bailiffs will not only check the execution of the will of the court, but will also issue an order for a new punishment, already more severe, if the decision is not executed at all or in violation of the deadlines.

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

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 salary of one working day is taken 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.

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, 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 the specified reason for 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, and it will be longer and more expensive, but there are more chances 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 in 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 need to 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 claim with the 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. You need to know them in order to make the right decision whether to seek 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 as quickly as possible, 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 issue all the necessary documents that the judge will require to have available. 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 of wages for the last 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 an enterprise can complain through the courts about a boss who did not respect confidentiality when processing employee 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 a careful study of the case materials, the judge makes a reasoned decision, confirmed by labor legislation, indicating the chapters and articles of this code.

In the event that the plaintiff makes claims for compensation for material damage or other compensation, the court decision must clearly indicate the amount of the 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, judicial 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 Labor Code is not observed in production and lawlessness of the authorities reigns, then punishment must follow without fail.

The labor collective must unite and protect the rights of employees. Unfortunately, trade union organizations in our country do not have the same strength as in other states, and often workers cannot get the necessary support. 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.