How to sue an employer for violations of the Labor Code of the Russian Federation?

Violations of labor legislation by employers in certain organizations occur with enviable regularity and for certain organizations, violation of the Labor Code of the Russian Federation has become the rule, and all because not all employees are ready to defend their rights, but if a violation of labor rights has been committed against you, then I recommend that you always restore your rights, and for this you need to know the rights of an employee under the law. In this article I will tell you how to sue your employer and how to do it correctly!

Reasons for filing a claim

Workers rarely go to court for fear of losing the case and spending extra money on attorney fees. But sometimes there is no way out when it comes to wages, violation of instructions or illegal dismissal.

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Based on judicial practice, a claim is filed against an employer in the following cases:

• deprivation of work in violation of legal requirements.
• delays in wages or other payments.
• wage debts.
• refusal to transfer money for maternity leave.
• non-payment of funds due to mothers or fathers for child care.

In other cases, the parties resolve the problem peacefully and do not bring the matter to trial. If there is an open confrontation, it becomes difficult to work for the defendant company.

Illegal dismissal and management liability

It is worth remembering that an illegal termination of an employment contract can only be on the part of the employer. If you make a list of the most common violations of this type, you will get the following:

• The grounds for dismissal are not provided for by current legislation or are generally fictitious.
• The stated reason for dismissal does not correspond to the real one.
• Upon dismissal, the employer did not complete all the necessary paperwork.
• The employer did not comply with the legal procedure for layoffs or liquidation.

Unlawful dismissal is a big loss for any employee. He no longer has the opportunity to engage in labor activity, and therefore receive wages. And for any damage caused to another person, someone must be held accountable. In this case it is the employer.

Article 234 of the Labor Code obliges management to compensate for all material damage caused as a result of illegal dismissal. This applies not only to the termination of an employment contract, but also to all cases when an employee loses the opportunity to work due to the fault of the employer. Such liability arises if:

• 
  The employee was unlawfully fired or unlawfully removed from the workplace.

• If the employer does not comply with an already made decision to reinstate the employee at work. Such a decision can be made by the responsible authorities during labor disputes.
• If an employer deliberately withholds an employee’s work book or enters information into it that is not true.

Having dealt with the employer’s liability, you need to consider the question of what exactly an employee can expect by going to court with such a case. The employee can count on full reinstatement to his previous position. To replace the specified reason for dismissal with dismissal of one's own free will. Demand financial compensation from the employer.

note

If an employee goes to court in a case that concerns the Labor Code, he is exempt from paying the fee. It will be levied on the employer if he loses the case. This is stated in Article 393 of the Labor Code.

Article 394 of the Labor Code states that if the court decides to replace the reason for dismissal with voluntary dismissal, then the date of termination of the employment contract must be changed. It is the day on which the court decision is made.

Important fact

In a claim, the employee has the right to demand only payment of moral compensation. Any other penalties for the employer, such as reinstatement of a person to a position, are decided by the court independently.

The concept of forced absenteeism is legally established. It occurs at the moment when management illegally fires an employee. And the days of forced absence are counted from the moment the employment contract is terminated until the date when the court makes a final decision on the case. And at the end of the trial, the authorities are obliged to pay the person for all this forced absenteeism according to his average salary. There is no legal upper limit for accrual of forced absenteeism; it will remain until the trial is over.

In addition to all of the above, the employee has the right to claim compensation for moral damage caused to him by the employer. The amount of such payment is determined by the court, and it is obliged to take into account both the amount of harm received by the person and the fairness of the claims for such compensation.

What to do before the trial

Before filing a claim, you must take steps to resolve the issue pre-trial. This approach strengthens the defendant’s position and proves his desire to resolve the issue peacefully.

The first step is to fill out an application addressed to the director with the requirement to follow the rules of the law. So, if there is arrears in wages, you need to point out the violation and demand payment of the entire due amount. You can also specify other requirements - payment of vacation pay, issuance of labor documents, transfer of compensation, etc.

The document is sent by registered mail with notification or delivered in person in two versions. On one of them, the employer’s secretary notes the fact of acceptance of the document, indicates the date, full name and signs. The text also specifies the deadline for fulfilling the requirements. The decision is made by the injured party, so there are no clear restrictions. You can indicate that the next step will be to contact the labor inspectorate, and then to the court.

If the employer does not agree to resolve the conflict “inside” the enterprise, you need to write a statement to the labor inspectorate. If the authorized body has confirmed the violation, you don’t have to wait for the fine and immediately file a lawsuit against the employer. The document with the decision of the labor inspectorate must be attached to the claim.

Which court to file an application against the employer (jurisdiction rules)

Choosing a court to appeal to is an important step. Filing an application without jurisdiction may result in wasted time and missed the statute of limitations.

Below we provide rules that make it easy to choose a court to file a claim against an employer:

• In some companies, it is customary to establish contractual jurisdiction by agreement of the parties. Read the employment contract: a specific court for appeal may be established there (Article 32 of the Code of Civil Procedure of the Russian Federation).
• Labor disputes are considered by district or city courts at the location of the organization or the place of registration of the entrepreneur-employer (Article 28 of the Code of Civil Procedure of the Russian Federation).
• If an employee was employed in a branch or division located in another city, he has a choice: he can apply for protection of his labor rights at the place of registration of the branch or head office (Clause 2 of Article 29 of the Code of Civil Procedure of the Russian Federation).
• If the place of work or its head office is located far from the place of residence of the plaintiff employee, he has the right to appeal to the district or city court at his place of residence (clause 6.3 of Article 29 of the Code of Civil Procedure of the Russian Federation).
• The Supreme Court of a constituent entity of the Russian Federation, as the first instance, considers cases of labor disputes in special cases. For example, if an employee had access to state secrets.
• If an employee wants to recover funds accrued but not paid by the employer in the amount of no more than 50,000 rubles, he has the right to apply to the magistrates’ court for the issuance of a court order (subclause 1, part 1, article 23 of the Code of Civil Procedure of the Russian Federation).

In situations where several courts have jurisdiction over the case, the plaintiff has the right of final choice.

Example

Ivanov A. A. works in the branch of Primer LLC, which is located in the Kirovsky district of Saratov. The company's head office is located in St. Petersburg. And Ivanov himself lives in the Volzhsky district of Saratov. If a labor dispute arises, A. A. Ivanov, as a plaintiff in the case, has a choice of where to file a claim:

• at the location of the branch - to the Kirovsky District Court of the city of Saratov;
• at the location of the head office - to the district court of St. Petersburg;
• at the place of residence - to the Volzhsky District Court of the city of Saratov.

Where to file a claim

Due to lack of legal knowledge, workers do not know where to apply. The Code of Civil Procedure of the Russian Federation (Article 28) states that the claim is submitted to the judicial authority at the registration address. In this case, problems between an employer and an employee are resolved in a court of general jurisdiction. The optimal solution is to file a claim with the district judicial authority in relation to the location of the employer. According to current legislation (Labor Code of the Russian Federation, Article 393), the employee does not need to pay state duty.

Once again, we note that before filing a claim, you need to go through the pre-trial settlement stage. In the absence of this step, the court will still accept the application, but the client’s position will be weaker.

Agreement on termination of employment contract

If neither the employer nor the employee wishes to continue the employment relationship, they can agree on any termination date and any severance pay. They can also agree on a situation where the agreement to terminate the contract will not be valid, for example, if the employer does not transfer the money on time (Article 78 of the Labor Code of the Russian Federation)

Once such an agreement is concluded, there is no turning back, unless the parties have agreed on something illegal. For example, that the employee will not receive a salary for the time worked. This position was expressed by the Constitutional Court (Determination of the Constitutional Court of the Russian Federation dated October 13, 2009 No. 1091-О-О)

An agreement to terminate an employment contract can only be canceled by mutual consent of the employee and employer. Here's an example.

The Yekaterinburg court refused to cancel the dismissal by agreement of the parties, although the dismissed employee attracted witnesses who saw her crying on the street immediately after her dismissal and saying that she was forced to quit.

Reprimanding someone for dishonesty and rudeness to clients, as well as sternly suggesting dismissal, is not forcing them to quit.

How to file a claim against an employer

The statement of claim is the basic document on which representatives of the Themis make a decision on the consideration of the case. Errors or incorrect submissions may reduce your chances of winning or result in your claim being denied. The document must display:

1. The name of the court hearing the dispute between the parties to the process. If an employee mistakenly sends a document to a court of another jurisdiction or makes a mistake with the address, the office of the Femida representatives forwards the document to the correct address. This takes time, so it is better to submit applications to the correct address immediately.
2. Information about the plaintiff. The claim contains the details of the person filing the claim. The list includes full name, information from the passport, birthday, registration address and actual location.
3. Information about the employer (defendant). The information that the employee has is indicated here. Ideally, you need to indicate the name of the company, its tax identification number, real and legal address.
4. Cost of claim. It indicates the total amount of claims that are presented to the defendant.

The information listed above is indicated in the header of the claim. This is followed by the title of the document and the main part. In the text of the statement, it is important to state your position and circumstances of the case, and refer to the violated norms of the law. After justification, the plaintiff indicates a request to the judicial authority. This could be payment of wages or compensation, collection of costs of legal proceedings, etc. It is necessary to indicate the requirements, because other requests (those not included in the application) will not be considered. At the end there is a list of attached documents, date and signature.

The number of claims must correspond to the number of participants in the case. As a rule, two copies are enough - for the defendant (employer) and the judicial authority.

How to file a complaint about wrongful dismissal with the prosecutor's office

If any violation of the law is detected, including those related to the termination of an employment contract, the employee has the right to contact the prosecutor's office.

The procedure in this case is as follows (order of the Prosecutor General's Office of Russia dated January 30, 2013 No. 45):

1. Drawing up an application - in writing with the obligatory indication of:

• the name of the prosecutor's office or official to whom the appeal is addressed;
• FULL NAME. and contact details of the applicant;
• the content of the complaint with a list of rights violated, in the opinion of the applicant;
• signature of the applicant and date of writing the application.

IMPORTANT!

If there is no contact information, as well as illegible text, the application may not be considered.

Download for free a sample application (complaint) to the prosecutor's office for illegal dismissal:
EXAMPLE OF COMPLAINT TO THE PROSECUTOR'S OFFICE FOR TERMINATION

2. Collect documents supporting the applicant’s arguments.

3. Submit the complaint and evidence to the prosecutor's office through:

• personal visit;
• by mail with notification or through the official website using the complaint form.

4. Received appeals are registered and sent to the prosecutor for investigation within 7 days . If necessary, the prosecutor checks the facts stated in the complaint, requests documents from the employer, and invites his representatives to give explanations.

5. The total period for consideration of the application should not exceed 30 days , and for cases whose resolution does not require additional verification - 15 days .

6. If violations are confirmed during the inspection, the employer is given an order to eliminate them and a case of administrative violation is initiated.

7. After the period for consideration of complaints has expired, a written response to the complaint must be given on the merits.

What documents are submitted with the claim?

An important point concerns the list of documents that are attached to the statement of claim. The success of the business depends on the correctness of their preparation. When completing the papers, you can rely on the Labor Code of the Russian Federation (Article 62) and contact the employer with a request to issue documentation. Up to three working days are given to provide documents.

The list of applications may include:

• employer's order (on recovery, dismissal, deprivation of bonus payments).
• an explanatory note from the employee regarding the situation that has arisen.
• a list of valuables that were transferred to a person by position.
• labor agreement between the parties.
• liability agreement.
• time sheet taking into account work time.
• employment history.
• calculation sheets.
• bank card statement about receipt of money or lack thereof.
• rules of procedure in the enterprise.
• OT position.
• other papers related to the disputed proceedings.

If the employer did not transfer money to the Pension Fund, the employee has the right to register a requirement to transfer pension contributions. Information about the amount of tax and income of an individual can be obtained from the accounting department. The document is issued in form 2-NDFL.

A complete list of documents required to sue an employer for illegal dismissal

1. Employment contract (it is advisable that the salary is also stated there). If the employer has an employment contract, write an application for the issuance of the contract; by law you are required to issue it within 5 days. If the employer does not issue an employment contract, be sure to indicate this in the claim;
2. Work record book, which must contain the date of employment;
3. Copies of orders on dismissal and hiring;
4. Job description and document describing your position and job responsibilities;
5. A document confirming the amount of salary for the last few months;
6. All evidence confirming that the dismissal is illegal.

If you have any questions or are still unsure about further actions, call the toll-free hotline. Tell your problem to a lawyer and he will give advice individually tailored to your situation.

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Statute of limitations

When filing a claim, an employee should be aware of the time limits for filing a lawsuit. The law mentions two points:

1. If the dispute concerns reinstatement, the statute of limitations is 30 days. The starting point is the moment when the person studied the order or from the day the work permit was issued.
2. For other cases, the statute of limitations is three months.

If the plaintiff missed the established term for a good reason, he has the right to contact the judicial authority and ask for an extension of the term. The decision is made by the judge taking into account the circumstances.

How to regain your job after illegal dismissal

In order to be reinstated after dismissal, you need to contact the competent authority with a statement that specifies all the requirements and grounds and receive a positive conclusion from this authority. This will be the State Labor Inspectorate in pre-trial proceedings and the final authority in any dispute - the Court. We talked about the pre-trial procedure above, and if it was unsuccessful, then there is only one option left, and below we will talk about how to be reinstated at work after dismissal through the court.

What to do from the very beginning, before going to court?

We recommend starting with a written application to the regional labor inspectorate. In this appeal, you must indicate the circumstances and essence of the violation of rights, as well as make a request to conduct an audit of the activities of the negligent employer.

Almost all inspections reveal certain violations of current legislation, and the employer is held financially liable. This appeal to the inspectorate does not suspend the stipulated deadlines, but can help already during the trial. So, in court, it is possible to attach to the case materials a normative act about the employer’s violation of laws, which in itself, by definition, entails the recovery of moral damages from the employer in favor of the employee.

What should an employee do?

An employee can protect his rights in various ways, but exclusively in the legal field, so as not to become a participant in an administrative or criminal process. Appeals to various government bodies that deal with the protection of workers' rights occur in a certain sequence, from the labor inspectorate to the judicial authorities.

A person can apply to each of the subsequent authorities if in the previous one he did not receive satisfaction of his request for reinstatement at work.

Complaint to the labor inspectorate

In order for an application with a complaint about the dismissal to be accepted for consideration, it is necessary to contact the Federal Labor Inspectorate within three months from the date the basis for such an appeal arose, that is, from the date of termination of the employment contract recorded in the work record book and the dismissal order. However, if the dismissal order and work book were sent to the employee using postal services, then the three-month period will be counted from the moment the employee received a letter from his employer with an extract from the order of termination of employment and the original work book.

To file a complaint with the labor inspectorate, there are certain requirements:

• the text of the document must be drawn up in compliance with a formal business writing style;
• when drawing up the document, all factual aspects that constitute the evidence of violation of the labor rights of the dismissed employee must be taken into account, and these facts must be presented in chronological order;
• if documents are attached to the complaint, they must be listed in the chronological order of their compilation or in the order in which they are mentioned in the text of the complaint;
• the complaint must contain the most specific and structured information so that it makes it easier for the labor inspectorate to carry out an inspection in relation to the circumstances specified in the document.

The completed complaint can be sent through the official website of the labor inspectorate, sent by mail, or handed over personally by a person to the reception desk of the labor inspectorate. A sample complaint can be viewed here.

The following can be used as accompanying documents:

• work book containing a note on termination of the employment contract;
• an extract from the employee’s dismissal order;
• if the amount of compensation was stated in the text of the complaint, then you will need to attach a certificate of income in order to confirm the amount requested as compensation for forced absence from work;
• documents that may act as additional grounds for declaring dismissal illegal (for example, a certificate of pregnancy, etc.);
• collective type documents, if they can assist in proving the illegality of the employer’s actions.

The inspection staff is given one month to consider the filed complaint, after which an order must be issued to the employer (if any violations have been identified), or a response must be prepared to the applicant stating that no violations have been identified and he has no right to reinstatement at his work.

If the decision made by the labor inspectorate does not suit the dismissed person, he has the right to go to court within one month from the date of receipt of the documents and file a statement of claim to appeal the decision.

How can you complain about your boss to the Labor Inspectorate?

When do you need to contact the prosecutor's office to restore your rights?

A person can contact the prosecutor’s office either after receiving a response from the labor inspectorate, or in parallel with an inspection carried out by this body. In both cases, the prosecutor’s audit is an independent process during which the employer’s activities are studied based on the facts of compliance with existing labor legislation, and various violations, if any, are identified.

The application is drawn up on a territorial basis (that is, at the location of the employer), and in the text it is necessary, just as in the case of a complaint to the labor inspectorate, to provide information about actual violations of labor legislation in relation to the applicant with the necessary evidence.

Do you think it is worth complaining about an employer or going to court if a person was fired illegally?

Definitely worth it. It’s not worth it - how can you then look the employer in the eye? I’m at a loss to answer. My answer is not here, I’ll write it in the comments

Going to court

Judicial resolution of a dispute over the protection of labor rights is the final stage of reinstatement in the event of illegal dismissal.

Appeal to the judicial authorities occurs no later than one month from the moment of termination of the employment contract or receipt of a response from the labor inspectorate about the absence of violations in the termination of existing legal relations. In both cases, before going to court, you need to make sure that the evidence base is sufficient. It should be borne in mind that the court thoroughly studies all the materials provided, since even some of their nuances can have a significant impact on the outcome of the case.

Rules for drawing up a claim for reinstatement at work

A claim for reinstatement at work is filed at the location of the defendant, that is, the organization that is the employer that terminated the employment relationship.

The statement of claim itself consists of the following parts:

• title part. It contains information about which territorial judicial body the claim is sent to, who is the plaintiff and who is the defendant. If the plaintiff plans to recover compensation from his employer for wrongful dismissal, he will need to indicate the amount of such compensation. It is also necessary to indicate the amount of the state fee. This information is included in the section on the cost of the claim of the title part of the application;
• main part. It describes all the circumstances of the dispute that has arisen, with obligatory observance of chronological order and with the provision of factual information about the circumstances that have arisen. The description of the essence of the matter should be drawn up only in an official business style, should not contain emotions, and it should contain only specific data. If necessary, to provide information about which employee of the employer acted as the person committing the violation of labor laws in a particular case, it is also necessary to indicate the identifying information of this person with reference to his official position;
• final part. In it, the plaintiff indicates the demands that he has against the defendant (to be reinstated in the same position, to pay compensation for illegal performance, to cancel the entry in the work book about the grounds for dismissal, etc.). Also, it is in this part that information about what the price of the claim should be indicated (except for the title part) with a detailed explanation of where this price came from: state duty, amount of damage, expenses for a representative, etc.

A sample statement of claim for reinstatement can be viewed here.

Jurisdiction in cases of wage recovery

The jurisdiction of labor disputes regarding the collection of wages and other payments due to the employee is determined according to the rules listed above. Accordingly, you can appeal to the district court both at the place of residence of the defendant and at the location of him or his branch. At the same time, procedural legislation also provides for the case when a dispute can be resolved by a magistrate in the order of writ proceedings.

For reference: writ proceedings are a procedure for resolving a dispute when a magistrate, at the request of an employee whose rights have been violated, does not conduct a trial, but immediately issues a court order, which has the force of an executive document. This method of resolving a dispute is possible if the employee’s correctness is beyond doubt and the dispute concerns the collection of accrued but unpaid funds.

When an employee presents a demand for payment of accrued but not paid wages to him, in accordance with Art. 122 of the Code of Civil Procedure, the court issues an order. This rule applies to any payments that should have been transferred to the employee, but were not provided in fact (bonuses, travel allowances, vacation pay, etc.).

However, the applicant must prove that the due amounts have not been paid to him, although they have been accrued. In the absence of assessments, the dispute must be resolved by the district court; a court order is not issued in such cases (see the appeal ruling of the Khabarovsk Regional Court dated July 5, 2017 in case No. 33-5444/2017).

When to go to court

The main disputes for which an employee can go to court are those that directly relate to his workplace, job descriptions and wages.

The most common situations:

• unlawful dismissal (usually in violation of Chapter 13 of the Labor Code). For absenteeism due to valid reasons or less than four hours;
• work without vacations, weekends, compensatory days (violates Section V of the Labor Code);
• gray salary - taxes and contributions to social funds are not paid on it (violates the Tax Code);
• payment violations (on wages, vacation pay, etc. - sections VI - VII of the Labor Code);
• violation of working conditions and safety (section X of the Labor Code). Necessary and required light labor is not provided;
• denial of employment not based on the candidate’s business qualities (Article 3, 64 of the Labor Code);
• transfer to another job or position without the employee’s consent (violates Articles 72, 72.1 of the Labor Code). Without consent they are transferred under Art. 72.2, 74, 99, 113, 327.4, 349.4 Labor Code of the Russian Federation;
• disclosure of employee personal data (Articles 86, 88 of the Labor Code).

These are the main reasons for a claim against an employer, but this list is not exhaustive.

How to properly protect your rights in court?

In the present reality in Russia, full compliance with labor legislation causes at least bewilderment, and violation of workers' rights is a natural state of affairs. Now the employer does not actually create any labor dispute commissions or other bodies that would participate in resolving labor conflicts, and an independent appeal to the state inspection, as a rule, leads to nothing, since state inspectors, operating within the framework of the charter, can only fine employer. In this case, the employee does not receive any material interest, with the exception of moral satisfaction. The only possible way to restore rights and receive all due material benefits is to go to court for judicial protection of violated labor rights.