Solving problems with illegal dismissal. Where to go if you have been unlawfully fired from your job. Dismissal: a general concept
Illegal dismissal has become a practice for our country. Employees who have encountered it are most often interested in whether they can be reinstated to their previous job 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
The 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 violations committed. In particular:
- dismissal on illegal grounds;
- dismissal on invalid grounds;
- indication of a different reason for dismissal than what was in reality;
- dismissal at proper execution misdemeanors and violations job duties an employee (truancy, appearance at the workplace in a state of intoxication, violation of labor protection requirements, theft);
- dismissal with refusal to pay salary arrears;
- dismissal on reduction without actually carrying out the reduction procedure;
- violation of the procedure for warning an employee about dismissal (liquidation, reduction, etc.);
- dismissal for inconsistency with the position or qualifications, if the preliminary certification of the employee was not carried out;
- dismissal for non-compliance with the position or work for health reasons, when a medical examination has not been completed.
Often, the employer offers the employee to write a letter of resignation upon the fact of committing a disciplinary offense. The employee may agree to this, or, if he is firmly convinced that he has a case of an attempted illegal dismissal from work, refuse and not sign any documents.
Many employers take advantage of the ignorance and ignorance of their employees in the field labor law. Often, the illegal dismissal of an employee is carried out without his fault, on insignificant grounds, due to legal illiteracy. officials making the appropriate decision.
Legal aid for illegal dismissal
Prompt consultation by phone or in the office of the bureau
Lawyer for labor disputes- assistance of a specialist in illegal dismissal
Consideration of cases of unlawful dismissal of an employee
Assistance in case of dismissal is provided by two instances: the state labor inspector and the court. The first has the right to conduct inspections of compliance with the rights of the employee, to give instructions to eliminate the identified violations. To do this, you must submit an application to labor inspection.
To apply to the court, a claim for illegal dismissal is drawn up, evidence is prepared. It is wise to seek legal assistance and legal advice on labor matters from a professional lawyer who can achieve a favorable outcome for the employee in the case under consideration.
Legal Consequences of Wrongful Dismissal
- Recovery at work.
- Payment of compensation without reinstatement.
- Changing the grounds for dismissal of an employee. If, as a result of an incorrectly chosen ground for dismissal from work, the employee could not get 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 the previous place of work in the previous position for a period before the expiration of the contract. If the term expires when the case is considered by the court, then the basis for dismissal from work changes. Upon restoration in the same place, the experience becomes continuous.
If the court recognized the fact of illegal dismissal from work, then a corresponding entry is made in the work book, as well as a record about the restoration of the employee at the previous workplace.
Illegal dismissal from work also implies compensation for non-pecuniary damage to the employee, and regardless of the requirement set by him, solely by a court decision.
Help of a lawyer
If the employer delays the reinstatement of the employee, the competent authority issues a decision to pay compensation to the employee for the entire delay in the execution of the decision. In the absence of good reasons for delaying the execution of 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 yet a sentence. We will help you defend your legitimate interests, and will not allow the arbitrariness of employers.
In law. In cases of wrongful dismissal, you are entitled to reimbursement of financial expenses and legal costs, as well as compensation for non-pecuniary damage, recovering them in judicial order.
Do you think you are Russian? Born in the USSR and think that you are Russian, Ukrainian, Belarusian? No. This is not true.
You are actually Russian, Ukrainian or Belarusian. But you think you are a Jew.
Game? Wrong word. The correct word is "imprinting".
A newborn associates himself with those facial features that he observes immediately after birth. This natural mechanism is characteristic of most living beings with vision.
Newborns in the USSR for the first few days saw their mother for a minimum of feeding time, and most of the time they saw the faces of the maternity hospital staff. By a strange coincidence, they were (and still are) mostly Jewish. Reception is wild in its essence and effectiveness.
All your childhood you wondered why you live surrounded by non-native people. Rare Jews on your path could do anything with you, because you were drawn to them, while others were repelled. Yes, even now they can.
You cannot fix this - imprinting is one-time and for life. It is difficult to understand, the instinct took shape when you were still very far from being able to formulate. From that moment, no words or details have been preserved. Only facial features remained in the depths of memory. Those traits that you consider your family.
3 commentsSystem and Observer
Let us define a system as an object whose existence is not in doubt.
An observer of a system is an object that is not a part of the system it observes, that is, it determines its existence, including through factors independent of the system.
From the point of view of the system, the observer is a source of chaos - both control actions and the consequences of observational measurements that do not have a causal relationship with the system.
An internal observer is a potentially achievable object for the system in relation to which the inversion of the observation and control channels is possible.
An external observer is even an object potentially unattainable for the system, located beyond the event horizon of the system (spatial and temporal).
Hypothesis #1. All-seeing eye
Let's assume that our universe is a system and it has an external observer. Then observational measurements can take place, for example, with the help of "gravitational radiation" penetrating the universe from all sides from the outside. The capture cross section of "gravitational radiation" is proportional to the mass of the object, and the projection of the "shadow" from this capture onto another object is perceived as an attractive force. It will be proportional to the product of the masses of objects and inversely proportional to the distance between them, which determines the density of the "shadow".
The capture of "gravitational radiation" by an object increases its randomness and is perceived by us as a passage of time. An object that is opaque to "gravitational radiation", the capture cross section of which is larger than the geometric size, looks like a black hole inside the universe.
Hypothesis #2. Internal Observer
It is possible that our universe is watching itself. For example, using pairs of quantum entangled particles spaced apart in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, which reaches its maximum density at the intersection of the trajectories of these particles. The existence of these particles also means the absence of a sufficiently large capture cross section on the trajectories of objects capable of absorbing these particles. The remaining assumptions remain the same as for the first hypothesis, except:
Time flow
External observation of an object approaching the event horizon of a black hole, if the “outside observer” is the determining factor of time in the universe, will slow down exactly twice - the shadow from the black hole will block exactly half of the possible trajectories of “gravitational radiation”. If the determining factor is the "internal observer", then the shadow will block the entire trajectory of interaction and the flow of time for an object falling into a black hole will completely stop for a view from the outside.
Also, the possibility of combining these hypotheses in one proportion or another is not excluded.
Where to apply for illegal dismissal?
If you have been unlawfully fired, you can apply to the Labor Inspectorate, the Prosecutor's Office or the Court. Appeal to the Labor Inspectorate or the Prosecutor's Office is possible both independently and 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 details, the full name of the organization where you work and its location. As a rule, indication of violated norms of law and references to the law is not required. The employees of these departments are themselves competent labor lawyers. However, you need to understand that applying to the Prosecutor's Office or the Labor Inspectorate can be effective only if the employer's guilt does not need to be proven, i.e. dismissal is clearly illegal. Otherwise, if employers put forward their own version of events, reinstatement at work is possible only through the Court.
Labour Inspectorate is obliged to accept your complaint against the employer and check 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 laws and imposes a fine on both the organization and specific officials.
Prosecutor's office, upon receipt of a complaint from an employee, as a rule, redirects it to the labor inspectorate. The prosecutor's office, as a rule, deals only with labor disputes related to mass non-payment wages, massive 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 at work. Its decisions are binding on all citizens and organizations and are executed unconditionally. It should be remembered that in case of dismissal disputes, the term for applying to the court is one month.
When is a dismissal illegal?
1. Lack of grounds for dismissal.
According to Art. 77 of the Labor Code of the Russian Federation are established common grounds to terminate the employment contract, other grounds not provided for by the Labor Code or other federal law, it can not be.
That is, any dismissal on grounds that are 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 made 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 with an unsatisfactory test result (Article 71 of the Labor Code of the Russian Federation - Test result when hiring), that is, as having not passed the probationary period, then in a labor dispute lawsuit, the employer will be required to prove to the court and the prosecutor that the competence the employee really does not correspond to the position held, that he did not fulfill the tasks provided for by the Testing Plan. The employer is obliged to confirm these facts by offering written evidence for review by the court and the employee of the prosecutor's office.
Also, the court may 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 procedure for dismissal, as a basis for recognizing the dismissal as 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. Such a procedure is provided for by the Labor Code and other federal laws.
Significant violations of the procedure for dismissal of an employee include:
However, individual violations of the dismissal procedure may be regarded by the court as insignificant.
Also, illegal dismissal is the dismissal at the initiative of the employer of pregnant women, single mothers and fathers raising a child under the age of fourteen, 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 at a time when he is in maternity or regular leave, or on sick leave (Article 81 of the Labor Code of the Russian Federation).
In case of violation by the employer of the legislation on labor and labor protection, he may be held administratively liable under Art. 5.27. Code of Administrative Offenses of the Russian Federation.
It should be borne in mind that in the event of an illegal dismissal from work, it is necessary to start acting as soon as possible. According to the provision of Article 392 of the Labor Code of the Russian Federation, the limitation period for labor disputes, i.e. submission deadline statement of claim on illegal dismissal is one calendar month from the day the dismissal order or work book was issued, for others labor disputes The total time limit for filing a claim is three months.
Protection of the rights of an employee upon dismissal is most effective if the interests of the injured party are represented by qualified lawyers. Turning to our office for help, you will receive a competent legal advice and assistance to challenge the wrongful dismissal in court, in the commission on labor disputes, in the prosecutor's office. Competently drafted claims to the court and to the employer help to quickly and efficiently resolve labor disputes that have arisen.
In the event that your labor rights 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 we 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 recovery 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 in his previous position.
According to the requirements of Art. 392 of the Labor Code of the Russian Federation, if the 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 can apply to the court for the purpose of reinstatement at work is one month from the date of receipt of the dismissal order or work book; the state fee is not paid in case of dismissal disputes (Articles 392, 393 of the Labor Code of the Russian Federation).
Lawsuits for reinstatement are held in the district court at the place of registration of the employer and are conducted with the obligatory participation of the prosecutor. The term for consideration of such a category of cases is one month, but in practice this requirement not enforced by the courts.
What to do if you win the Court?
If the dismissal of an employee is recognized by the court as illegal, the employer is obliged to carry out the actual reinstatement of the illegally dismissed employee in his previous position. In addition, the employer pays the employee the average earnings established by the court for the entire time. forced absenteeism This requirement is provided for in Art. 394 of the Labor Code of the Russian Federation. Such a decision shall take effect immediately, in accordance with the requirements of Art. 396 of the 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 the execution of the previous decision on reinstatement.
The decision of the Court on reinstatement in case of illegal dismissal is considered executed if the dismissal order is canceled and the employee is admitted 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 the enforcement fee and establishes new term to enforce a court decision on reinstatement in the event that the employer does not comply with the court decision on the reinstatement of an illegally dismissed employee. However, if in this case the employer does not fulfill the requirements of the executive document in the new term, 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 at work must be carried out by court. If in this case the requirement is not met, the fine increases.
Within the framework of modern realities, literally every citizen faces illegal dismissal Russian Federation. But not everyone is ready to take any legal action.
What it is?
Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:
It's fast and IS FREE!
The concept of "illegal dismissal" includes situations such as:
- an employee for no apparent reason;
- lack of legal grounds for terminating the employment contract;
- inconsistency of the actions of the employer with the established legislative procedure;
- employee located in maternity leave.
According to the employee, the employee should not be made redundant if the employer did not take into account the special guarantees provided for by law.
Foundations
All these and similar cases speak of the legal right to go to court for proceedings.
At the same time, issues such as:
- making adjustments to the wording of the date or reason for dismissal;
- reinstatement of an employee in a position, regardless of the reasons for dismissal;
- compensation for compensation by the working personnel for damage caused by them to the organization, unless another option for compensation is provided for in federal laws.
Law
Lists all the grounds on which the employer has the right to officially release the employee from his position.
Often, the manager offers to write, justifying his actions by the fact that the employee cannot cope, the difficult situation at the company, vague grounds for dismissal, etc. It is not necessary to sign such a statement. This is nothing more than a provocation from the authorities.
For the dismissal of a woman on maternity leave, there is only one condition - if the organization has ceased to exist.
In all other cases, the employer does not have the right to dismiss the employee, otherwise the woman has the right to send the case to court.
Illegal dismissal
The first thing to do in case of illegal dismissal is to contact the relevant state authorities:
- Labour Inspectorate.
Procedure
You can send the case to trial. However, an illegally dismissed employee can file a lawsuit with the district court before the expiration of a month from the date of dismissal. Otherwise, even the court will not be able to do anything.
If the reason for missing the deadline for filing an application is valid, the court has the right to extend the time.
A long wait for a response from the labor inspectorate is not a valid reason for extending the time limit for filing a claim.
Going to court is the most effective way solution to such an issue. Because it is in court that the employee has the opportunity to explain all violations by the employer.
For moral harm received by the management of the company, you can receive moral compensation.
Despite the listed positive aspects of this method of restoring justice, there is one "minus" that scares away even the most ardent fighters for justice - the length of the process.
You can file a complaint with the labor inspectorate and not bring the case to court. As a rule, the time for consideration of the complaint is limited to 15 days.
In addition, no documents need to be collected - just file an application (complaint). At the time of consideration of the application, the employer is called to administrative responsibility under Article 5.27 of the Code of Administrative Offenses for violation of labor laws.
Cons of contacting the labor inspectorate:
- The percentage of satisfied requests is incredibly low. Exceptions are clear violations.
- The stated speed of consideration of complaints in 15 days often does not correspond to reality, which will make subsequent appeal to the court impossible.
In summing up, I would like to draw the attention of illegally dismissed citizens in 2020 to an important detail: if the violation by the employer is obvious and gross, it makes sense to contact the labor inspectorate.
Required documents
The employee must collect all Required documents confirming that he actually worked for this organization occupied a certain position. In other words, an employment contract is required.
In addition, you must submit to the court:
- notice of dismissal for one reason or another (for example, staff reduction);
- orders and additional agreements about positions temporarily occupied by him during his work in the company;
- characteristics from previous jobs about the employee;
- certificate of marital status and the number of disabled citizens;
- a document confirming that the organization has paid;
- a document confirming the amount of wages for the last few months.
Time limit for appeal
Despite the period of 31 calendar days specified in Article 154 of the Civil Code of the Russian Federation, the trial process may drag on for a long time. And there can be a lot of reasons for this: from the illness of the prosecutor, then a large number other applications.
According to Article 393 of the Labor Code of the Russian Federation, the plaintiff is exempt from paying the state fee and does not bear any court costs.
Reinstatement at work
The court has the right to order the employer to reinstate the employee. However, the employee may refuse to be reinstated, which is also accepted by the judicial commission.
Is there compensation?
According to article No. 100 of the Code of Civil Procedure of the Russian Federation, the victim has the right to demand reimbursement of the costs of a judicial appeal. The expense item may include the services of a lawyer, execution and certification of papers by a notary, etc.
On the basis of Article 394 of the Labor Code of the Russian Federation, the employer is obliged to fully compensate for moral damage.
However, in order to receive remuneration, appropriate medical reports will be required, on the basis of which the final amount of remuneration is determined.
According to article 234 of the Labor Code of the Russian Federation, indicated in the prisoner employment contract between the organization and the employee, the amount is paid to the latter for the entire time of his forced inactivity.
Legal Consequences
In addition to the compensations specified in Articles 234, 394, the employer is obliged to restore the work experience lost during the forced inactivity.
If the place of an illegally dismissed employee is occupied, the employer is obliged to release him.
On the basis of Article 83 of the Labor Code of the Russian Federation, by mutual agreement of the parties, it is possible to transfer to a similar position without loss of wages.
APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.
When dismissing an employee, it is important to be guided by all the rules of this procedure, indicated in Labor Code(TC) RF. Failure to comply with them may lead to the fact that the release of a person from his position will be recognized as illegal. And this is fraught with litigation and financial losses.
Reasons why dismissal is considered illegal
The dismissal of an employee by the employer will be considered illegal if its reason is not included in the list of grounds for which it is allowed to release a person from his position, or if the procedure was carried out with obvious violations (Chapter 13 of the Labor Code of the Russian Federation).
- no notice of termination labor relations on own will employee;
- formal downsizing, job renaming;
- the absence of a decision and a recorded fact of non-passing probationary period an employee;
- reorganization of the enterprise (this procedure is not considered legal basis dismissal of pregnant women or those on maternity leave);
- lack of facts of non-compliance official duties an employee;
- not possible if the employee is on sick leave.
Where can an employee complain about an employer and within what time frame?
In order to appeal against illegal dismissal, an employee can apply to the following authorities:
- the federal labor inspectorate (FIT) - the body that monitors compliance with the Labor Code;
- prosecutor's office.
According to the Labor Code of the Russian Federation, the term for applying to both the court and the FIT or the procurator due to illegal deprivation of a job is 1 month from the date of issuance of the dismissal order. If the employee in his claim provides convincing evidence that he could not do it earlier, the period may be extended.
Having illegally dismissed an employee, be prepared for the fact that he will turn to the labor inspectorate or the prosecutor's office
If an employee submits an application to the federal inspection, then within a month the enterprise can be visited by its representative to verify compliance with labor laws. After that, according to Art. 357 of the Labor Code of the Russian Federation, issues several types of prescriptions:
- on the reinstatement of an employee in a position;
- on the elimination of other violations of the norms of the Labor Code and legislation in general.
In addition, the inspector has every reason to draw up a protocol on an administrative offense. However, it won't:
- interrogate employees;
- check the fact of reorganization;
- determine the true reasons for dismissal;
- establish the fact of absenteeism.
The act drawn up by the inspector is considered an official document. On its basis, the dismissal can be recognized as illegal. The instructions and the verification process for the employer can be challenged in court.
As for the prosecutor's office, its capabilities are similar to the FIT. She, as a rule, checks the procedure for dismissing an employee from his position within a month. If the prosecutor's office discovers the fact of illegal dismissal, then it sends a protest. Such a decision is also subject to appeal.
It must be remembered that the court does not cancel the fact of dismissal or any nuances of breaking the employment relationship. In court (lawsuits for unlawful deprivation of work are considered by the district), witnesses can be interrogated, an analysis is made not only of the formalities of the dismissal procedure, but also of the true reasons. Based on this, the body has the right to make the following decisions:
- changing the reason for dismissal, if during the investigation it is proved that the person did not perform certain actions that led to this;
- recovery of material compensation for moral damage;
- recovery of the average monthly salary for deprivation of the opportunity to work (if the court found the dismissal illegal, then the period during which the person did not visit the place of work is considered forced absenteeism and is paid);
- reinstatement of an employee.
Possible consequences: what threatens the head of the unlawful deprivation of a person of work?
If the dismissal of an employee is found to be illegal, then the employer can expect:
- fine or disqualification;
- the need to pay the employee all necessary compensation (including funds spent on expenses related to court proceedings);
- forced reinstatement of an employee.
Reinstatement of an employee in a position (by court order)
Restoration to the position is issued by the relevant order The employer is obliged to reinstate the employee in the position he held before the dismissal, upon receipt of the appropriate court decision. However, this is not possible if the enterprise is liquidated.
The recovery procedure consists of several stages:
- Reimbursement to the employee of average earnings for the time of forced absenteeism.
- Issuance of the corresponding order.
- Employee leaving for work.
A note must be entered in the work book of the employee that the record of dismissal is invalid, reinstatement has been made.
Don't forget to sign up for work book employee after drawing up an order for reinstatement Financial and other liability
If the dismissal is declared illegal, then within 92 days the employer must pay a fine in the amount of 1000-5000 rubles (for legal entity- 30,000–50,000 rubles). In addition, in some cases, disqualification of a legal entity or individual entrepreneur for a period of 1 to 3 years.
Compensation for forced absenteeism, etc.
According to Art. 234 of the Labor Code of the Russian Federation, the employer must reimburse the employee for the days of forced absenteeism. The calculation is quite simple: if the rate is fixed, then the cost of one day of employment is multiplied by the number of days during which a person did not hold a position. This takes into account the period from the date of issuance of the dismissal order to the day of execution of a similar document on restoration.
According to Art. 394 of the Labor Code of the Russian Federation, non-pecuniary damage caused to an employee by illegal actions of the employer is also subject to compensation. All evidence proving physical or mental suffering must be issued by a doctor and entered in the medical record. The amount of payment will depend on their severity.
Another type of compensation is the reimbursement to the employee of the costs associated with court proceedings. As a rule, they include the costs of lawyers or lawyers who represent the employee in court and help with the execution of relevant documentation.
How to minimize losses after an employee submits a claim?
You can try to negotiate with an illegally dismissed employee, if the relationship with him allows you to do this As practice shows, cases of illegal dismissals officially recognized by regulatory authorities are often won by the plaintiff, after which the employer pays all legal costs. Thus, by issuing an order to reinstate an employee on the day they file a claim, it is possible to significantly reduce possible financial losses. Further paperwork depends on the employee. Another way to resolve the situation is to conclude a settlement agreement.
Arbitrage practice
If there were no gross violations (delay or non-payment of wages, dismissal without notice, and so on), then you can count on the fact that the court will take the side of the employer. However, in the case of unlawful dismissal of a person from vulnerable segments of the population (a single mother, a woman with many children, a person raising a disabled child, and so on), the decision is usually made in favor of the plaintiff.
The maximum punishment for the employer in the event that the employee was not physically harmed is usually a fine or monetary compensation for both material and moral damage.
If an employee believes that he was unlawfully fired, nothing prevents him from applying to several instances. Orders issued may be challenged in court. However, in case of a decision in favor of the plaintiff, the employee can count on reinstatement and compensation for damages.
