What is illegal dismissal? Judicial practice on reinstatement at work

In all countries, and ours is no exception, there are cases when management makes an unlawful decision to fire an employee or transfer him to another position. And the employee doesn’t want to leave his 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 the unfair treatment on the part of the authorities. Unlawful dismissal must be challenged.

Every dismissed person who believes that he or she was treated unfairly has the right to reinstatement. 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 exist for this in Chapter 13 of the Labor Code of the Russian Federation.

When can dismissal be considered illegal?

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

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

If an employee commits a crime or some serious offense, the boss may ask him to resign. In this case, he is doing you a favor and you must agree. But if the dismissal is illegal, and the boss suggests writing a statement in his own way at will, then you should know: you cannot write it, since the court will not accept your claim for consideration.

However, if it is proven that such a statement was written under pressure and coercion, the judge must take into account and try to understand the true reasons dismissals. Most employers make mistakes in drawing up such documents.

Their illiteracy in legal subtleties and reluctance 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 rights of an employee and demand significant compensation in the form of debt payments for the period of forced downtime of the employee, and also demand payment for moral damages and for fees for the services of a lawyer’s office .

Complaint to the state labor inspectorate

When dismissing an employee, he writes a statement. Often employers ask you to write a letter of resignation of your own free will. If you think that the dismissal is illegal, then under no circumstances should you write it. After the dismissal order is issued, you can contact the labor inspectorate. This is done simply. A statement is written that clearly indicates all the circumstances of the case, without speculation and your judgments.

Your application must be reviewed within 15 days. A decision will be made on time if the employer has clearly violated labor laws. If difficulties arise during the consideration of the complaint, the matter may drag on, and this should not be allowed. After the expiration of the month, it is no longer possible to file a claim in court. So the choice is yours. Either go straight to court, and this will be longer and more expensive, but there is a better chance of getting your position back and being reinstated in the workplace, or first try to act through state inspection labor. It will be much cheaper, but there are some nuances. The case may be delayed or rejected, and service inspectors are not as professional as judges.

They have the right to conduct an administrative review of the incident at the enterprise, review all documents and contracts, and familiarize themselves with orders. For the rest, namely, reinstatement at work, payment of any money and compensation, the inspector will still advise you to go to the district court. If after the expiration of the allotted period no decision has been made, then there is no more time to wait; you need to urgently file a claim in court for illegal dismissal.

From the order of dismissal to the filing of a claim for reinstatement at work should be less than a month. The matter is later considered by the court only in case of extraordinary reasons for the delay. A lengthy examination of the case by the inspectorate is not considered such a reason. You can first contact the labor inspectorate, and after 15 days immediately file a claim in court, at the same time. Issues regarding reinstatement in judicial practice are considered within a month.

Advantages of going to court

Consideration of labor disputes in court has a number of advantages. You need to know them in order to accept them. correct solution whether to seek help or not. A claim for reinstatement at work is filed in the court at the location of the enterprise. After submitting your application, an executive judge is appointed who listens to your claims and reviews the evidence. The proceedings involve a thorough study of all controversial issues, with summons and interrogation of all parties to the labor dispute.

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

Another positive point is to file a claim in court. Unlawful dismissal of an employee requires that the employer bears the corresponding costs. Based on Article 393 of the Labor Code of the Russian Federation, a dismissed employee is completely exempt from paying state duty and legal expenses. Also, a pleasant moment will be the opportunity through the court to demand compensation from the employer for moral damage and compensation for loss wages for the entire period that the plaintiff did not work.

Disadvantages of litigation

The only drawback will be the length of time it takes to consider the complaint. Especially if the controversial issue has little evidence. In case of a 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 evidence of the employer’s violation of the rights of his employee, then the consideration of the case may be delayed.

But in Lately judges try to resolve such disputes about reinstatement at work faster, within a month. The process can drag on only in the case of very controversial issues. If the obviousness of the illegality of dismissing an employee is great, then the case of reinstatement in judicial practice is considered much faster.

Preparing to go to court

Before applying for reinstatement by a court decision, an employee must carefully prepare in advance. Usually people are not fired abruptly, but the person feels and understands that everything is leading to this. At the time of dismissal, the employer is unlikely to want to meet you halfway and give you everything Required documents, which the judge will require to have available. Upon signing employment contract one copy must be in the hands of the employee.

The contract must indicate the salary you will receive. If there cash payments are not specified, but you need to take a certificate from your place of work about your salary for six months. The judge will need this if the employee wants to pay off the debt.

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

What documents are required to go to court?

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

work book (it must contain a record of the date 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. Every document in hand must be filed with the file. This is very important, since the employer can calmly say that he is seeing you for the first time, and you did not work for him.

Individual labor disputes

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

An employee of an enterprise can also file a complaint in court against a boss who did not maintain confidentiality when processing employee data. 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 different sides, reviews all documents, judicial assistants are sent to the enterprise to check all documentation. Also, if necessary, various professional experts and various witnesses may be involved to certify your work activities at this enterprise. The employee in this process is called the plaintiff, since he filed the claim, and the manager or self employed is considered the defendant.

Making a decision by the court

When filing, the employee plans that the decision of reinstatement at work by the court will satisfy his requirements. After carefully studying 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 demands for compensation for material damage or other compensation, the court decision must clearly indicate the amount due payment. Since the trial can last a long time, the law has decided that compensation for a dismissed employee should not exceed six months’ salary. If the plaintiff demands additional payments, for example, attorney fees or compensation for moral damages, the judge will also determine and clearly indicate this amount. Since in case of an individual labor dispute the state duty is not collected from the employee, a 50% tax is levied on additional payments at the request of the plaintiff.

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

Procedure for reinstatement at work

If the consideration of labor disputes in court ends with a decision to reinstate an illegally dismissed employee, then 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 by a court decision is issued and given to the employee for signature. After this, it is necessary to make the appropriate entry in the work book: the entry under No. (the entry number is put in this particular work book) is invalid, reinstated at 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.

If the employee was transferred to a lower paid position, then if the judge makes a positive decision, he must return to his previous place of work. If the reason for dismissing an employee from work was incorrectly stated, the person suffered and was unable to get another job because of this? Through the court, he is also entitled to monetary compensation in the amount of his salary for six months. The court will also oblige the manager to change the objectionable wording in the work book.

But after the court’s decision on reinstatement, judicial practice shows that not everything goes so smoothly. Usually, a person who achieves his demands in this way is not very welcome at his old place of work. The moral atmosphere becomes so tense, and the boss’s nagging becomes so critical that the person often then independently comes to the decision to quit and write The employee must understand this, and after the court’s decision and receipt of monetary compensation, begin to look for another job.

Illegal dismissal due to reduction

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

Also, the boss can offer a different position, if, of course, there are vacancies. The employer must pay compensation to the employee if forced dismissal occurs ahead of schedule. Failure to comply with these rules will result in illegal dismissal due to reduction.

Categories of citizens who are illegal to be laid off

There are several categories of workers who, according to the law, in any case do not have the right to dismiss, much less lay off:

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

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

In any case, upon dismissal, an employee must know his rights, be able to act professionally, and defend himself, if necessary, in court. If the Labor Code is not observed at production and lawlessness reigns from the authorities, then punishment must necessarily follow.

The workforce must unite and defend the rights of employees. Unfortunately, in our country, trade union organizations do not have the same strength as in other countries, and often workers cannot receive the necessary support. This is what the judiciary exists for. You can always file a lawsuit. Unlawful 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 want, you can always prove that you are right.

In conditions of fierce labor competition, an employer may resort to violation of the law in order to fire an employee. In this case, each employee has the right to state protection and can not only be reinstated to work left illegally, but also receive compensation for this time. Timely treatment and a properly built line of defense will allow you to 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 upon termination of a work agreement. A contract is considered to be improperly terminated if the established norms were not followed. Legal consequences illegal transfer and dismissal, if proven, can cause the employer not only material harm. Responsibility for the illegal dismissal of an employee is assessed on both the administrative and criminal scales.

The contract is not terminated legally if:

The employee was forced to write a statement under pressure;
The employer falsified the reason for termination of the relationship;
Compensation amounts were incorrectly paid.

Any of the reasons must be proven in judicial procedure.

Unlawful dismissal - where to go

An employee whose employment contract was incorrectly terminated can apply to any of the proposed authorities alternately or simultaneously:

Federal Labor Inspectorate. This authority can exclusively conduct an internal investigation at the enterprise based on the submitted application of the employee. The discovery of falsified data gives the inspector grounds for further appeal to the court;
Prosecutor's office. This executive body is authorized to submit the data submitted in the application, using the necessary legal instruments for this purpose;
Court. The judiciary is both an inspection and a punitive authority. That is why going to court has the fastest and most serious consequences.

Any selected body will require from the employee not only a correctly drawn up application, but also evidence base illegality of termination.

Application for illegal dismissal - sample

To file a claim in court, a person dismissed from work must comply with the conditions for territorial treatment.

The application should indicate:

Legally correct data on all three sides of further paperwork;
The price of the claim;
State the essence of the violation;
Provide links to the law;
Provide evidence of wrongful dismissal from employment;
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 allow himself to more succinctly express his complaints. The complaint can reflect not only the essence of the fact that occurred, 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 contested by the employer. Therefore, a prerequisite for a positive outcome of the case is the provision of evidence.

Calculation of compensation for forced absence due to illegal dismissal

If the issue of improper dismissal from work is proven, the employer is obliged not only to restore the person to his job, but also to pay compensation for the time spent outside of work.

When calculating compensation, all days from the moment of suspension from work until the moment of reinstatement are considered. For calculations according to the code, the average payment of one working day and multiplied by the number of days of suspension.

Reinstatement after illegal dismissal

The court's decision 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 downtime 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 management is not possible and the employee himself resigns after reinstatement.

Reinstatement period in case of illegal dismissal

Labor disputes are resolved 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 longer, up to 3 months. Reinstatement at work occurs within the time frame established by the court, after 10 days of data to appeal the decision.

All employers must terminate employees in accordance with applicable law. But no one canceled human factor. Some companies tailor their indignation to a specific article, and this allows them to remove an employee on legal grounds.

basic information

Each employee has the right to appeal such a decision in court, providing substantial evidence. This will allow you to gain time, regain your position and receive financial support.

In accordance with an article of the Labor Code, it is impossible to dismiss an employee while on vacation or sick leave. But it is worth noting that some employers violate the above circumstance. And for personal reasons, an employee is fired from his job.

Definitions

Unlawful dismissal is the issuance of an order without the grounds and reasons prescribed in the current legislation.

– this is a document that is issued on the basis of a violation of law or a statement of resignation.

IN modern world Almost every third person faces dismissal. But not everyone wants to take action to restore justice.

Wrongful dismissal is considered to be:

for no apparent reason or reason;
without legal justification for termination of documents;
discrepancy with reality according to legal norms;
The citizen is on maternity leave.

In accordance with Article 179 of the Labor Code, an employee does not have the right to be laid off if the company does not take into account special compensation and guarantees.

Legislation

The issue is regulated by several legal acts:

article of the Labor Code of the Russian Federation;
article of the Labor Code of the Russian Federation;
article of the Labor Code of the Russian Federation;
illegal dismissal article of the Labor Code of the Russian Federation - article 81 of the Labor Code of the Russian Federation.

What kind of dismissal can be considered illegal?

Illegal dismissals:

The most common situations are the termination of employment relationships with a citizen who is in maternity leave. A similar situation allows many managers to get rid of unwanted employees who are on maternity leave. When jobs are cut, a woman loses income. This is regulated by Article 256 of the Labor Code of Russia. That is, it states the obligation for a citizen to maintain a job during the vacation period;
I don't come up very often conflict situations, if it concerns a single mother. After all, small children are constantly sick, and there is no one to leave them with. Accordingly, this entails the registration of permanent sick leave. Not all employers like this situation, which then negatively affects both the citizen and when applying for a new job;
with men everything is simple. They are punished for disciplinary violations. For example, for being 5 minutes late, lack of specialized clothing and for violating safety rules. If some are reprimanded for this, others may be threatened with dismissal;
It is not uncommon for companies to conduct extraordinary certification to understand the qualifications of an employee. If any specialist is not acceptable, then this is carried out with the aim of reducing qualifications to the minimum, which will allow the person to be fired legally. But the company's desire alone is not enough here. Here you need to document this nuance;
Another way to fire an employee is to reduce positions and introduce another vacancy with similar responsibilities;
It is possible to conclude a fixed-term employment contract, but the employee performs his functions on an ongoing basis. Prove this fact quite difficult, but possible in court.

Which authorities to contact?

In accordance with Article 392 of the Labor Code Russian Federation, each employee has the right to resolve a controversial situation in court. To do this, a claim is filed. It is possible to perform the action only within a month from the date of receipt of the relevant order.

If the deadline is missed, the employee cannot confirm the existence of valid reasons for the absence, and the case will not be accepted for consideration. The refusal will be related precisely to the reason for missing the claim period.

Conflict situations are resolved only in court. In the case where the employee was not actually fired, but was notified of future dismissal, it is necessary to collect evidence. This will allow you to further confirm that you are right and contact the appropriate authority - the Labor Inspectorate or the prosecutor's office.

It is also possible to use a voice recorder for evidence. Almost every citizen has mobile phone, which has a standard function. And if management specifies unlawful reasons and personal motives, then this should be written down and submitted to the authorized body.

If this is a reduction, then you need to make copies of documents confirming the grounds for the reduction. For example, orders and explanatory notes, various acts on violation of law.

According to an article of the Labor Code of Russia, a former employee has the right to demand any copies of documentation that confirmed his activities in the workplace. That is, it could be an order for employment, report cards, acts of collection.

If management refuses to take this action, then it is worth recording this in writing or on a voice recorder. In the future, all this is submitted to the court to obtain a penalty and reinstatement. The court always makes a decision in favor of the employee if his rights were actually violated.

Application deadlines and employee reinstatement

In terms of timing, everything is minimized here. That is, a person has the right to appeal to the court within a month after the order is issued. Unless he has valid reasons for delay given period, then it will no longer be possible to submit an application for consideration of the case.

The length of time for judicial consideration will depend on the complexity of the case and the requirements of the applicant. On average, the period drags on for up to six months with the involvement of witnesses and the Labor Inspectorate.

The former employee has the right to file an application for recovery of moral damages for all suffering caused and forced leave. This is regulated by Article 234 of the Labor Code of Russia.

As a rule, the court satisfies all the plaintiff’s demands, including various payments. But it is possible to reduce the amount depending on the circumstances of a particular case.

An employee can always count on reinstatement of his position and payment of certain compensation for expenses incurred and forced leave.

Liability for illegal dismissal

The employer receives the following penalties:

administrative fine of 1000–5000 rubles for officials in accordance with article, part 1 of the Administrative Code;
administrative fine of 1000–5000 rubles for individual entrepreneurs. Suspension of activities for up to 90 days is possible;
administrative fine of 30,000–50,000 rubles for legal entity. Administrative suspension is possible for up to 90 days.

How to Prepare for Court

Unlawful dismissal is accompanied by writing a claim. All illegal actions are indicated here. The claim is filed with the court office.

Arbitrage practice shows that it is possible to obtain compensation for illegal dismissal. It will be monetary reward for moral damage.

You must provide to the court:

certificates and other documents issued by the employer upon request;
determining the need for reinstatement;
submission of a correct complaint.

Documentation

Documents to be submitted to the court:

labor document;
book;
a copy of the order of admission and dismissal;
certificate of specialty and position;
certificate of average salary;
employee characteristics;
all acts of bringing to justice;
other documents required by current legislation;
claim.

Submit a claim

The claim must be submitted to the place of former employment.

Here it is written:

to whom from whom;
Title of the document;
statement of the claim itself;
date of compilation and signature.

Must be in the application

The statement states:

name of the court;
from whom the document comes;
personal data of the applicant;
statement of procedure, reference to legal acts;
requirements;
date and signature;
list of attached documents.

Appeal procedure

It is possible to appeal a document by submitting a complete package of documents to one of the following authorities:

prosecutor's office;
Labour Inspectorate.

Execute the court decision

As soon as a court order is prepared, the employer undertakes to issue an order canceling the dismissal order. Based on this, the employee is reinstated in his position.

Even then it is necessary to make some changes to the work book and make payments specified in the court. The procedure is not accompanied by difficulties if everything is done correctly.

If a profession is excluded from staffing table, then all the previously listed actions are carried out first, and then the position is returned.

If a citizen is fired without legal grounds, then you must submit an application to the court, attaching all supporting documents. Only after justifying the reason and providing documents, the court will side with the employee and oblige the company to reinstate and pay cash for moral damage.

Where to go in case of illegal dismissal?

If you were illegally fired, you can contact the Labor Inspectorate, the Prosecutor's Office or the Court. You can contact the Labor Inspectorate or the Prosecutor's Office either independently or by using the services of a labor law lawyer. The complaint must state all the facts of violation of your rights by the employer, indicate your last name, first name and patronymic, as well as all your contact information, the full name of the organization where you work and its location. As a rule, an indication of the violated rules of law and references to the law are not required. Employees of these departments are themselves competent lawyers in labor disputes. However, you need to understand that an appeal to the Prosecutor's Office or the Labor Inspectorate can only be effective in cases where the employer's guilt does not need to be proven, i.e. the dismissal is clearly illegal. Otherwise, if employers put forward their version of events, reinstatement at work is possible only through the Court.

Labour Inspectorate is obliged to accept your complaint against the employer and carry out an inspection of the company for violations of labor laws not only in relation to you, but also in relation to the entire company as a whole. As a rule, the labor inspectorate issues an order to eliminate violations of labor legislation and imposes a fine on both the organization and specific officials.

Prosecutor's office, upon receiving a complaint from an employee, as a rule, redirects it to labor inspection. The prosecutor's office, as a rule, deals only with labor disputes related to mass non-payment of wages, mass illegal dismissals, as well as cases falling under the Criminal Code.

Court is the only body that has the full right to reinstate a person to work. Its decisions are binding on all citizens and organizations and are executed unconditionally. It should be remembered that In case of disputes about dismissal, the period for going to court is one month.

When is dismissal considered illegal?

1. Lack of grounds for dismissal.

According to Art. 77 of the Labor Code of the Russian Federation establishes general grounds for termination of an employment contract and other grounds not provided for Labor Code or other Federal law, it can not be.

That is, any dismissal for reasons not provided for by the Labor Code or other law is illegal.

In addition to the fact that the dismissal of an employee must be carried out on the grounds listed in the Labor Code, the employer is obliged to prove in court that such grounds really existed and were not artificially created by him. For example, if an employee was dismissed due to an unsatisfactory test result (Article 71 of the Labor Code of the Russian Federation - Result of the test upon hiring), that is, as having failed probation, then in trial in a labor dispute, the employer will be obliged to prove to the court and the prosecutor that the employee’s competence really does not correspond to the position held, that he did not complete the tasks provided for in the test plan. The employer is obliged to confirm these facts by presenting written evidence to the court and the prosecutor's office.

The court may also take into account how much the punishment in the form of dismissal corresponds to the severity of a particular disciplinary offense, even if such an offense is punishable by dismissal.

2. Violation of the dismissal procedure, as a basis for declaring dismissal illegal.

The order (procedure) of dismissal is a sequence of actions carried out by the employer in order to terminate the employment relationship with the employee. This procedure is provided for by the Labor Code and other Federal laws.

Significant violations of the employee dismissal procedure include:

provided for in Art. 192 -193 of the Labor Code of the Russian Federation, violation of the procedure for bringing to disciplinary liability, in cases where dismissal is considered as a type of disciplinary liability;

if the employer has not offered the employee all available similar or lower-level vacant positions suitable for the employee for health reasons (Part 3 of Article 81 of the Labor Code of the Russian Federation);

if the employer did not take into account the opinion of the trade union in certain cases of dismissal of its members (Part 2 of Article 82 of the Labor Code of the Russian Federation).

However, individual violations of the dismissal procedure may be regarded by the court as insignificant.

Also, illegal dismissal is recognized as the dismissal at the initiative of the employer of pregnant women, single mothers and fathers raising a child under fourteen years of age, except in the event of liquidation of the organization (Article 261 of the Labor Code of the Russian Federation), it is illegal to dismiss an employee at the initiative of the employer while he is in maternity or regular leave, or on sick leave (Article 81 of the Labor Code of the Russian Federation).

If an employer violates labor and labor protection legislation, he may be brought to administrative liability under Art. 5.27. Code of Administrative Offenses of the Russian Federation.

It should be borne in mind that in the event of illegal dismissal from work, it is necessary to take action as quickly as possible. According to the provisions of Article 392 of the Labor Code of the Russian Federation, the limitation period for labor disputes, i.e. submission deadline statement of claim about illegal dismissal is one calendar month from the day the dismissal order or work record book is issued, for other labor disputes the general period for filing a claim is three months.

Protecting the rights of an employee upon dismissal is most effective if the interests of the injured party are represented by qualified lawyers. By contacting our office for help, you will receive competent legal advice and assistance to challenge unlawful dismissal in court, at the labor dispute commission, or at the prosecutor's office. Properly drafted claims to the court and to the employer help to quickly and effectively resolve labor disputes that have arisen.

If your labor rights are violated, do not neglect the services of professional lawyers. We will be able to establish and prove the illegality of the actions taken against you, and will help restore justice by competently representing your interests in court.

Specialists of the Moscow Legal Bureau help in resolving all types of labor disputes.

How does reinstatement work?

Sometimes, even after winning a labor dispute in court, citizens still have questions about the reinstatement procedure itself, especially when the employer does not want to voluntarily reinstate the employee to his previous position.

According to the requirements of Art. 392 of the Labor Code of the Russian Federation, if an employee does not agree with the dismissal, he has the right to apply for reinstatement directly to the court.

The period within which an employee may apply to the court for reinstatement at work is one month from the date of receipt of the dismissal order or work book, the state fee in disputes about dismissal is not paid (Articles 392, 393 of the Labor Code of the Russian Federation).

Trials for reinstatement at work take place in the district court at the place of registration of the employer and are carried out with the mandatory participation of a prosecutor. The period for consideration of this category of cases is one month, but in practice this requirement is not fulfilled by the courts.

What to do if you win the Court?

If the court finds the dismissal of an employee illegal, the employer is obliged to actually reinstate the unlawfully dismissed employee in his previous position. In addition, the employer pays the employee the average salary established by the court for the entire period of forced absence; this requirement is provided for in Art. 394 Labor Code of the Russian Federation. Such a decision comes into force immediately, in accordance with the requirements of Art. 396 Labor Code of the Russian Federation and Art. 211 Code of Civil Procedure of the Russian Federation.

If the employer delays the reinstatement of such an employee, then the court makes a decision on the payment of average earnings for the time when the employer delays execution previous decision about reinstatement at work.

The Court's decision on reinstatement in case of illegal dismissal is considered executed if the dismissal order is canceled and the employee is allowed to return to his previous job (Article 106 of the Law on enforcement proceedings). Art. 105 of the Law on Enforcement Proceedings provides that the bailiff issues an order to the employer to collect an enforcement fee and sets a new deadline for the execution of the court decision on reinstatement at work if the employer does not comply with the court decision on the reinstatement of the illegally dismissed employee. However, if in this case the employer does not fulfill the requirements of the writ of execution within the new period, then a fine is imposed on him in accordance with the requirements of Art. 17.5 of the Code of Administrative Offenses of the Russian Federation and establishes a new period during which reinstatement to work must be carried out in court. If in this case the requirement is not fulfilled, the fine increases.