Illegal dismissal of an employee - where to look for the truth? Illegal dismissal from work, where to go if you were fired illegally? Court decisions on illegal dismissal.

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

Recognizing dismissal as illegal: grounds and features

It is very problematic to list absolutely all the reasons why dismissal will necessarily be considered illegal. Each situation must be considered individually. But most often the following cases occur when the court protects the interests of the plaintiff:

1. Dismissal without legal reasons. A complete list of legal grounds on which an employee can be dismissed at the request of only the employer is contained in Article 81 of the Labor Code of the Russian Federation. Among the main ones: liquidation of the enterprise, reduction of workforce, violation labor discipline, discrepancy between the employee’s qualifications and the position he occupies, etc. However, for the court to recognize the dismissal as legal, it is not enough for the dismissal person’s work book to include a reason that falls into the category of legal. The employer must additionally prove that this reason actually occurred, and that dismissal is a measure of punishment corresponding to the severity of a certain disciplinary offense.
2. Violation of procedure when dismissing an employee. It is possible to dismiss an employee for any of the existing grounds only in strictly in the prescribed manner. Among the main stages, the following can be identified: documentary recording of an employee’s violation of labor discipline (for example, an act of his absence in place in working hours); receiving an explanation from the violator of discipline about the offense committed; issuing a dismissal order and familiarizing the employee with it against signature; making a full settlement with the employee for all time and days worked unused vacation; an entry in the work book with a mandatory indication of the reason for dismissal and a link to an article of the Labor Code. However, if certain procedures for dismissal are not followed, the court may accept them as insignificant for declaring the dismissal illegal. Significant reasons include:
   • if the employer has not offered the employee another place of work that corresponds to his state of health (if any);
   • bringing to responsibility of a disciplinary nature in violation of the norms of current legislative acts regulating labor relations;
   • if the employer has not agreed on his decision on dismissal with the trade union in relation to employees who are members of the trade union.
3. Dismissal of certain categories of citizens. For example, it is always considered illegal to fire pregnant women, single mothers, and fathers who are raising a child/children under 14 years of age alone. The only exceptions are those cases when the dismissal of these citizens occurs due to the complete liquidation of the organization. In the event of its restructuring, the employer is obliged to provide a place of work for these citizens as a matter of priority.
4. Dismissal of employees on vacation. Moreover, we are talking about both ordinary and maternity leave, as well as about the employee being on sick leave.

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

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

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

Earlier in the article, we already looked at where to complain about an employer, but now we will analyze the case of illegal dismissal separately. If you are sure that your employer violated your rights when dismissing you, you should start seeking justice immediately. First of all, it is best to draw up and send a letter of claim addressed to the director of the enterprise. It is necessary to correctly and with references to regulations state the circumstances that, in your opinion, indicate the illegal nature of your dismissal. Such a letter should be written in two copies.

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

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

Preparation and going to court

There are several advantages of going to court:

1. Availability of the legal process from a financial point of view. According to Art. 393 Labor Code of the Russian Federation individual exempted from paying state fees when filing a lawsuit to restore their labor rights. Therefore, the total cost of litigation is much less than usual.
2. Efficiency. Perhaps, only in court can they properly consider all the plaintiff’s claims and understand the entire background of the relationship between the employer and the employee.
3. Possibility of collecting compensation for damage moral damage. The State Labor Inspectorate does not have such a right.

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

So, if you decide to go to court, start by preparing necessary documents, namely:

• Employment contract. It must be concluded at the time the employee is hired. However, not all employers give it to their employees. Therefore, make sure that you have this document that defines the basic conditions of work. Moreover, it is important that the real wages are indicated. Otherwise, it will be difficult to claim wages for the period of forced absence in the amount in which you actually received it before.
• Work book with records of hiring and dismissal from it. If you worked unofficially, in court the employer may simply say that he is seeing you for the first time. This once again confirms the vulnerability of workers working informally.
• Copies of hiring and dismissal orders.
• A certificate indicating the position held, qualifications, average monthly salary, characteristics of the employee and his attitude towards work.
• Documents on bringing to labor liability (if any).
• Evidence that clearly confirms that the employer’s arguments are falsified.

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

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

1. Name of the court, details of the plaintiff and defendant.
2. The circumstances of hiring and dismissal from work, the reasons why the plaintiff assumes that the dismissal was not carried out according to the law.
3. The plaintiff's demand: return to his previous place of work, receipt of wages for unforced absences, compensation for moral damage.
4. List of attached documents.

Procedure for reinstatement at work

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

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

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

In this way, the employee must be reinstated in his position. However, in practice, not all employers who lose in court want to rehire a legally competent employee into their staff. If the court evades execution of a court decision, the court may additionally fine the enterprise, and if it happens again, make a decision to pay an even larger fine.

Legal aspects of illegal dismissal

If the dismissal of an employee is considered illegal, the employer is obliged to:

• reinstate him;
• pay him wages for all due time (unforced absences);
• compensate for moral damage;
• compensate for legal costs, pay for the services of the plaintiff’s lawyer;
• pay a fine in case of failure to comply with a court decision;
• pay an increased fine if there is a repeated delay in the execution of the court decision.

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

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

In addition to these measures, if a corresponding decision is made by the judge for organizations, individual entrepreneurs and officials may be additionally subject to disqualification for a period of one to three years.

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

In Russian reality, illegal dismissal has never been something extraordinary. Every second person encounters this phenomenon, but only every thirtieth takes real action to challenge illegal dismissal. Such disappointing statistics reflect the attitude of workers towards their rights. The peculiarity of the situation is that if employees more actively challenged illegal dismissal, then the number of such dismissals would be reduced, and much less would have to be challenged. Therefore, active protection of one’s rights is the duty of every employee.

Reasons and general order dismissals are described in Chapter 13 of the Labor Code of the Russian Federation. In this article, we will not dwell on the specific circumstances that determined the illegality of dismissal. We will take the illegality of dismissal as a starting point and then describe the specific actions that the employee needs to take and the compensation that the employee will receive if the dismissal is declared illegal and reinstated at work.

Actions of an employee in case of illegal dismissal

Often, before dismissal for one of the reasons listed in Art. 81 of the Labor Code of the Russian Federation (termination of an employment contract at the initiative of the employer), the employer offers to write a letter of resignation on at will. If you want to stay at your job, do not write this application under any circumstances. Subsequently, it will be almost impossible to prove the illegality of dismissal and resolve the labor dispute in your favor.

For documentation dismissal, the employer must issue a dismissal order and make an entry in the work book. After the employee has been familiarized with the dismissal order, he can take measures to protect his violated rights within one month. An employee has 2 main ways to protect his rights:

1. Filing a complaint with the state labor inspectorate.

The State Labor Inspectorate is the state body for the protection of labor rights of workers. Basic “advantages” of contacting the labor inspectorate:

1. Prompt consideration of the complaint. Complaints of unlawful dismissal must be resolved within 15 days.
2. Cheap procedure.
3. Minimal organizational and labor costs. All you need to do is write and submit a complaint.
4. Simultaneous bringing of the employer to administrative liability under Art. 5.27 of the Code on administrative offenses for violation of labor laws.

However, contacting the labor inspectorate also has significant "cons":

1. Low percentage of probability of satisfaction of the complaint. The labor inspectorate, unlike the court, is greatly limited in its ability to study in detail all the circumstances of the case, and the professionalism of the inspectors, of course, cannot be compared with the professionalism of the judges. In this regard, a complaint to the inspectorate is only promising if there is a formal, obvious violation on the part of the employer. Although, there are also amazing examples of the protection of employee rights by the labor inspectorate in the most difficult and confusing situations.
2. Frequent failure to comply with deadlines for considering employee complaints. And in cases of dismissal, the timing is of fundamental importance, since after a month it will no longer be possible to challenge the dismissal.

The form of the complaint and the procedure for filing it are described in sufficient detail on the website of the State Labor Inspectorate of St. Petersburg. On our own behalf, we will only add that when writing a complaint you should refrain from speculation and value judgments. It is necessary to provide facts, familiarization with which will immediately prompt the inspector to make a decision on reinstatement.

2. Filing a claim in court.

A claim for recognition of dismissal as illegal and reinstatement at work is filed under general rule to the district court at the location of the organization. In accordance with Art. 393 of the Labor Code of the Russian Federation, an employee is exempt from paying state fees and bearing court costs.

According to Art. 392 of the Labor Code of the Russian Federation, the claim must be filed within a month from the date of delivery of a copy of the order or from the date of delivery of the work book. If the deadline is missed for valid reasons, it can be restored by the court. Please note that filing a complaint with the labor inspectorate and waiting for a response is usually not considered good reason Missing the deadline for communicating with the court.

The main “advantages” of filing a claim in court:

1. This most effective way protection of rights. It is in court that it will be possible to clarify all the circumstances and demonstrate violations committed by the employer. And it is the court that will be able to understand all the intricacies in the relationship between the employee and the employer.
2. Cheapness of the trial. Taking into account the fact that the employee is completely exempt from bearing legal costs, the costs of pursuing a case in court will be much less than usual.
3. Possibility of recovery of moral damages. Only a court can recover compensation for causing moral damage; the labor inspectorate does not have such a right.

The main disadvantage of using the judicial method of protecting your rights is the rather long period of trial. Article 154 of the Civil Procedure Code of the Russian Federation establishes a period of 1 month for consideration of cases of reinstatement at work. Unfortunately, in practice it is observed very rarely. However, today, when the courts are doing their best to reduce the time it takes to consider a case, this problem is gradually being mitigated.

Thus, if the violation committed by the employer is clear, obvious and easily confirmed by written documents, then it is advisable to begin protecting your rights by contacting the state labor inspectorate. But you need to remember about the one-month period for going to court, and even if the inspection does not have time to take any measures, you must simultaneously file a claim in court. If the violation is not obvious or cannot be confirmed by written documents, then you must immediately start by going to court.

Compensations due to an employee upon reinstatement at work

1. According to Art. 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate the employee average earnings for the entire period of forced absence.

This period begins from the day of illegal dismissal - from that moment the employee is illegally deprived of the opportunity to work. And this period ends from the moment the employer takes the employee back. Outwardly, this is expressed by issuing an order for reinstatement and permission to work.

Thus, the employee will be able to recover average earnings for the entire time the trial lasts.

2. According to Art. 394 of the Labor Code of the Russian Federation, an employee has the right to compensation for moral damage caused by unlawful dismissal.

The amount of compensation will depend on how severe the employee’s physical and mental suffering was. This suffering can be confirmed by a psychologist's report on the person's condition, the employee's medical record and other evidence.

3. If an employee goes to court to protect his rights, he has the right to compensation for legal expenses.

The main expenses are usually the costs of paying for the services of lawyers representing the interests of the employee in court. According to Art. 100 of the Code of Civil Procedure of the Russian Federation, these expenses are subject to recovery from the employer.

Disputes between employers and their employees are common in courts of general jurisdiction. As a rule, employees often go to court to defend their rights violated by their employer. In this review judicial practice disputes about illegal dismissal are presented.

1. Dismissal of a store employee due to 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 valuables, especially if he holds the position of deputy director of a store, the employer has the right to dismiss him due to loss of trust. This is what the St. Petersburg City Court decided.

The essence of the dispute

The citizen worked as an acting deputy director of a store 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 either the fact of dismissal or its wording, so she filed a lawsuit against the employer in court.

Court decision

The court of first instance refused to satisfy the citizen's claims. 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 assets has committed actions that create grounds for loss of trust in him on the part of the employer. 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 appeal ruling dated December 11, 2014 No. 33-19275/2014 in case No. 2-1743/2014, the judges refused to recognize the plaintiff’s dismissal as illegal and to change the wording of the grounds for dismissal.

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

In a controversial 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, since 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 loss of confidence.

A similar legal position is contained in paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by courts Russian Federation 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 the fact that termination of an employment contract with an employee under clause 7 of part 1 of Article 81 of the Labor Code of the Russian Federation, due to loss of trust, the employer can apply only in relation to those employees who directly service monetary or commodity assets (reception, storage, transportation, distribution, etc.), and only on the condition that they committed such guilty actions that gave the employer grounds for loss of trust. Which completely. approaches a controversial situation with the dismissal of the store's deputy director.

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

An 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 has a child of this age. This is what the Supreme Court of the Russian Federation decided.

The essence of the dispute

By order of the head of the local administration of the Nalchik urban district, the citizen was hired as 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 Nalchik city district, the employee was granted maternity leave. The employee gave birth to a daughter. The local administration of the Nalchik urban district has extended maternity leave until the child reaches three years of age.

By resolution of the local administration of the Nalchik city district in staffing table changes were made to the apparatus of the local administration of the Nalchik urban district, 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 her job on the grounds provided for in paragraph 2 of part 1 of Article 81 of the Labor Code of the Russian Federation in connection with a reduction in the organization’s staff. According to the citizen herself, the dismissal on this 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 dependent daughter under the age of three years. To protect her rights, the citizen applied to the court for reinstatement in her previous position and payment of compensation for earnings during her forced absence.

Court decision

The courts of two instances refused to satisfy the citizen’s stated demands. The judges justified their position by the fact that the plaintiff did not notify the employer about the presence of a child under three years of age, without submitting his birth certificate to the organization’s personnel department, and therefore the employer should not be responsible for adverse consequences that occurred as a result of dishonest actions with the side of the citizen herself. The courts also indicated that the procedure for dismissing the plaintiff for reducing the organization’s workforce was followed 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 the ruling dated March 30, 2015 No. 21-КГ14-14, the judges indicated that the conclusions of the courts of first and appellate instances were based on 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 the 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 (other 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 in an employment relationship. 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 in Part 4 of Article 261 of the Labor Code of the Russian Federation also applies to persons serving in state civil and municipal service.

In a controversial situation, the court took into account that the provisions of the current labor legislation of the Russian Federation establish a direct ban on the dismissal at the initiative of the employer of women with children under 3 years of age, and therefore overturned the court decisions on the legality of the plaintiff’s dismissal on this basis. In addition, the judicial panel recognized as unfounded the conclusion of the courts that there was dishonesty and abuse of rights in the citizen’s actions in connection with her failure to provide her employer with a child’s birth certificate, since it was not confirmed by evidence from the case file.

3. The period determined by law for issuing an order by a 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 the event of illegal dismissal of workers, legislatively takes into account the delimitation of powers of bodies state power and the special importance of judicial protection of citizens’ labor rights. The rule limiting the period for issuing such an order is aimed at ensuring the supremacy of the court in resolving a dispute about the law on the merits 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 these 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 fired in 2008 and appealed to the state labor inspectorate in 2015 after a court decision was made on November 5, 2014 in his case on a claim to declare the termination of the employment contract illegal, impose an obligation to return the work book, recover lost earnings, and compensate for moral damage. The inspectorate refused him.

Therefore, the citizen challenges the constitutionality of part two of Article 357 of the Labor Code of the Russian Federation, by virtue of which, in the event of an appeal by a trade union body, an employee or another person to the state labor inspectorate on an issue that is being considered by the relevant body for 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 when identifying an obvious violation of labor legislation or other regulatory legal acts containing standards 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 norm does not allow the state labor inspector, in the event of a court refusal to satisfy the employee’s demands due to missing the deadline for filing a lawsuit, to issue an order to the employer upon identifying an obvious violation of labor legislation or other regulatory legal acts containing labor law norms, therefore it comes into conflict with Article 2 of the Constitution of the Russian Federation and Article 37 of the Constitution of the Russian Federation.

Court decision

The Constitutional Court of the Russian Federation, in its ruling No. 2454-O dated October 27, 2015, did not find any grounds for accepting a citizen’s complaint for consideration. The judges indicated that the provisions of Article 356 of the Labor Code of the Russian Federation and Article 357 of the Labor Code of the Russian Federation provide the federal labor inspectorate and state labor inspectors with the authority to issue binding orders to eliminate violations and restore the violated rights of workers. Such powers of the federal labor inspectorate are aimed at fulfilling the main function of this government agency- implementation of federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms, and ensuring the implementation of the right of workers 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 that are subject to mandatory execution, takes into account the delimitation of powers of public authorities, the special importance of judicial protection of labor rights and the mechanism for enforcing court decisions, and is aimed at ensuring the supremacy of the court in resolving disputes on the substantive right and prevention of abuse of the right to protection from 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 could act contrary to a 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 limit the rights of citizens to appeal illegal dismissal.

We thank CADIS, the developer of the family of regional systems, for providing the most recent court decisions for this review.

Illegal dismissal has become a practice in our country. Employees who have encountered it are most often interested in whether they can be restored to their previous place of work or receive legal compensation. Only professional legal assistance upon dismissal will help defend the legal rights of the employee in such a situation.

Illegal dismissal of an employee - main types

Dismissal of an employee without his consent or in violation of the procedure established by law is illegal.

Illegal dismissal from work is classified according to the type of violation committed. In particular:

• dismissal on illegal grounds;
• dismissal on invalid grounds;
• indicating a different reason for dismissal than what actually happened;
• dismissal with proper documentation of misconduct and violations labor responsibilities employee (absenteeism, appearing at work while drunk, violation of labor protection requirements, theft);
• dismissal with refusal to pay arrears of wages;
• dismissal due to reduction without actually carrying out the reduction procedure;
• violation of the procedure for warning an employee about dismissal (liquidation, layoff, etc.);
• dismissal for non-compliance with the position or qualifications, if preliminary certification of the employee was not carried out;
• dismissal for inadequacy of the position or work due to health reasons when a medical examination has not been completed.

Often, an employer invites an employee to write a letter of resignation based on the fact that he has committed a disciplinary offense. The employee may agree to this, or, if he is firmly convinced that he is facing a case of attempted illegal dismissal from work, refuse and not sign any documents.

Many employers take advantage of their employees' lack of knowledge and awareness of labor laws. Often, the illegal dismissal of an employee is carried out without his fault, on insignificant grounds, due to the legal illiteracy of the officials making the relevant decision.

Legal assistance for illegal dismissal

Prompt consultation by phone or in the office

Lawyer for labor disputes- assistance from a specialist in illegal dismissal

Consideration of cases of illegal dismissal of an employee

Assistance in case of dismissal is provided by two authorities: the state labor inspector and the court. The first has the right to conduct inspections of compliance with employee rights and give instructions to eliminate identified violations. To do this, you need to write an application to the labor inspectorate.

To go to court, a claim for illegal dismissal is drawn up and evidence is prepared. It is wise to seek legal advice and legal advice on labor issues to a professional lawyer who can achieve a favorable outcome for the employee in the case under consideration.

Legal consequences of illegal dismissal

• Reinstatement at work.
• Payment of compensation without reinstatement.
• Changing the grounds for dismissing an employee. If, as a result of an incorrectly selected reason for dismissal from work, the employee was unable to find a new job for some time, then he is paid compensation in the amount of average earnings for the lost time;
• In the event of illegal termination of a fixed-term employment contract, the court may oblige the employer to reinstate the employee at his previous place of work in his previous position for the period until the expiration of the contract. If the period expires while the case is being considered by the court, then the basis for dismissal from work changes. Upon restoration to the same place, the length of service becomes continuous.

If the court found the fact of illegal dismissal from work, then a corresponding entry is made in the work book, as well as a record of the employee’s reinstatement to his previous workplace.

Unlawful dismissal from work also implies compensation for moral damage to the employee, regardless of the demand made by him, exclusively by court decision.

Help from a lawyer

If the employer delays in reinstating the employee, the competent authority makes a decision to pay compensation to the employee for the entire time of delay in execution of the decision. In the absence of valid reasons for the delay in executing a court decision on the illegal dismissal of an employee, the employer pays a fine (based on Article 85 of the Federal Law “On Enforcement Proceedings”).

Illegal dismissal from work is not a death sentence. We will help you defend your legitimate interests and will not allow the arbitrariness of employers.

In law. In cases of illegal dismissal, you have the right to recover financial expenses and legal costs, as well as compensation for moral damages, recovering them in court.

By concluding an employment contract, a person expects a permanent source of income.

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Today, no one is immune from situations such as illegal dismissal of an employee. Knowing the procedure for challenging unlawful actions will help restore justice.

What does the legislation of the Russian Federation say?

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

In practice it means stopping labor relations on grounds not regulated by the Labor Code.

Legal rules governing the nuances of dismissal of employees are contained in the following articles Labor Code RF:

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

An employment contract is terminated unlawfully if:

• the employer forces;
• there is a violation of the dismissal procedure;
• errors were made in the execution of the procedure;
• removed from office for a reason to which the employee was not actually involved;
• the employee was not notified in a timely manner about the upcoming reduction or liquidation of the company;
• happens for imaginary reasons.

In case of illegal dismissal, they may be subject to administrative and financial liability. The amount of payments depends on the severity of the harm caused.

Possible situations of illegal dismissal

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

This is how a violation of the Labor Code occurs.

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

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

First, he forces you to write a statement about voluntary removal from office, then he expects disciplinary offenses for dismissal under the article.

According to the law, an employee does not have the right to be deprived of his job without a compelling reason. If the employer forces you to resign 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 an unjustifiable reason.

The reason is justified, but the documents were drawn up inappropriately. The employee does not agree with the employer's opinion. Found new job, so he doesn’t want to recover.

What can you do in this case:

• apply to the court to change the wording of the grounds for dismissal to “at one’s own request”;
• demand financial compensation.

The dismissal order was signed by the deputy director.

In local regulations no such right was stated, which means the document was signed by an unauthorized person.

The consequences of an error are recognition of the dismissal as illegal.

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

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

Employee rights

What to do in such situations?

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

You need to prepare documentation and apply for protection to government agencies.

The first organization - Federal Labor Inspectorate (labor 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 detected:

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

An employee’s complaint is reviewed for about 10 days.

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

Second organization - Prosecutor's office.

In case of illegal dismissal, the powers are not much different from labor inspection, since the employer commits an administrative crime, not a criminal one.

What you can count on:

• a full investigation of the official reason and procedure for termination of the contract;
• filing a lawsuit on behalf of the prosecutor's office.

Another option - appeal to the district court.

This 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 an employer’s decision only if you contact 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 - similar, only the period can be extended if there is a good reason for late application.

If the company forces you to write a statement of voluntary dismissal 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.

The trial and its legal consequences

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

The amount of legal costs and expected compensation is then assessed.

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 a 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 articles of the law.

The document is divided into three parts:

• Introductory– information is provided about the court to which the employee is applying, information about the plaintiff and defendant (name, location). The cost of the claim is also indicated.
• Descriptive– contains the essence of the violation, references to regulatory documents and evidence.
  Supplementary – has a clear formulation of claims.

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

Unfortunately, in practice, cases take much longer to resolve.

A court's recognition of an employer's actions as illegal leads to the following consequences:

• Reinstatement of an employee implies cancellation. The order is drawn up in any form and details are indicated in it. The employee signs and dates the review.
• Changing the wording of the reason for removal from work.
• Calculation of wages for the period of forced absence.
• Payment for legal services.
• Compensation for moral damage and legal costs.

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

• for officials - 1000-5000 rubles;
• for individual entrepreneurs – 1000-5000 rubles. or suspension of 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 write that this is happening by court decision (indicate 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. - the number of the new entry is entered;
2. - number is entered;
3. - the text is written: “The entry is invalid, the employee has been reinstated to his previous job”;
4. - a link to the order is indicated.

The employee is reinstated work experience, including the duration of forced absence.