Illegal dismissal from work: what to do and where to go

Types of unjustified dismissal

There are a number of common mistakes when dismissing employees:

• termination of an employment contract due to absence from work (absenteeism) ;
• termination of an employment contract with a pregnant woman ;
• dismissal without being offered an alternative position with a part-time or reduced salary ;
• errors when adjusting clauses of the employment agreement.

Reference! The use of days intended for rest by employees if the employer refuses to provide them is not considered absenteeism. This is considered a clear violation of current labor laws, and the use of such days does not depend on the discretion of the employer (for example, refusing an employee who is a blood donor).

According to the provisions of Article 192 of the Labor Code of the Russian Federation, dismissal for absenteeism is equated to the category of disciplinary sanctions . The procedure for their application is clearly stated in Article 193 of the Labor Code.

So, before applying such a penalty , the employer is obliged to require the employee to explain his absence from the workplace in writing. If after 2 working days an explanation has not been provided, an act of the established form is drawn up.

A disciplinary sanction in the form of termination of employment may be applied to an employee only after receiving from him a written explanation for his absence from the workplace, or his failure to provide it after the specified period.

The latter begins from the day when the employee received notice of the need to provide it from the employer.

The provision of Article 261 of the Labor Code prohibits an employer from dismissing a pregnant woman.

Attention! The exception is cases of liquidation of an enterprise (organization), termination of the activities of an individual entrepreneur acting as an employer.

Another common occurrence is the employer’s failure to offer an employee a vacant position that matches his or her qualifications. Failure to comply with this instruction gives grounds for the court to declare the fact of dismissal invalid.

When reducing staff, it is important to take into account changes in the terms of the employment contract. The latter are introduced in accordance with the rules set forth in Articles 72 (by agreement of the parties), 72.1 (transfer to another place of work), 74 (at the initiative of the employer) of the Labor Code of the Russian Federation.

Recognizing dismissal as illegal: grounds and features

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

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

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

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

Article of the Labor Code of the Russian Federation on illegal dismissal

To avoid infringement of rights, illegal dismissal from work is controlled by articles of the Labor Code of the Russian Federation.

Chapter 13 of the Labor Code of the Russian Federation is responsible for resolving issues related to the termination of the contract concluded between the employer and the employee. According to its provisions, cooperation can be terminated on the basis of:

• Article 77 (transfer to a new job);
• Article 78 (by mutual agreement);
• Article 79 (upon expiration of the employment contract or at the initiative of the employer);
• Article 80 (at the initiative of the employee himself);

If the termination of the interaction between the employer and the employee is due to other reasons beyond their control, they are guided by the provisions of Article 83 of the Labor Code of the Russian Federation.

Legal consequences

In addition to the compensation specified in Articles 234 and 394, the employer is obliged to restore the work experience lost during forced inactivity.

If the place of an illegally dismissed employee is taken, the employer is obliged to vacate him.

This is also important to know:
Dismissal under an article: why they can be fired from work, procedure for registration

Based on Article 83 of the Labor Code of the Russian Federation, by mutual agreement of the parties, a transfer to a similar position without loss of wages is possible.

Protecting employee rights: what to do

It is important to remember that, according to the Labor Code of the Russian Federation, there are minimum deadlines for formally applying to the courts to resolve controversial issues related to unjustified dismissals.

Where to go

In case of wrongful dismissal, the employee has the right to initially contact the labor inspectorate or the prosecutor's office. Having received the results of the preliminary investigation, you can exercise the right to appeal to the district court (at your own place of residence or the location of the employer) for further proceedings. In this case, the plaintiff is exempt from paying the state fee for accepting the statement of claim.

Important! A one-time appeal to the inspectorate, prosecutor's office and court is prohibited.

Required documents

To resolve issues in court related to illegal dismissal, the plaintiff must provide the following documents :

• confirming the existence of an employment relationship (copy of the concluded contract, hiring order, work book, etc.);
• evidence of a valid reason for absence from work (medical certificate, police certificate, etc.);
• statement of claim.

Reference! The employee has the right to demand from the employer any copies of documents confirming the fact of the employment relationship (Article 84.1 of the Labor Code of the Russian Federation).

Deadlines for appeal

According to Article 392 of the Labor Code of the Russian Federation, as soon as an employee receives a written notice of layoff or work record book, he has only 30 days to go to court and appeal the decision. Compliance with the established deadlines is an important condition for the successful resolution of a dispute in court.

Compensation for illegal dismissal

If the filed complaint is satisfied by the court, the dismissed employee may not only be reinstated, but also have the opportunity to receive compensation:

• in the amount of average monthly earnings for the entire period of forced absence;
• for moral damage;
• for legal costs (payment for the services of a personal lawyer).

In cases where the dismissed employee does not express a desire to further continue cooperation with the employer, the court may change the wording of the justification for termination of the employment contract to “at his own request.”

Procedure for reinstatement at work

The procedure for reinstatement of an illegally dismissed employee includes:

1. Establishing a list of reasons for reinstating an employee to his previous position.
2. Registration of an official order to cancel a previously made decision on reduction.
3. Inclusion in the staffing table of the position of the dismissed employee, which is specified in the employment contract (if it was removed from the established list).
4. Registration of a work book.
5. Filling out a personal card (form T-2).
6. Preparation of time sheets for hours worked.
7. If the position of the laid-off employee was filled by another employee, an order for his dismissal is issued.

Attention! According to paragraph 3 of Article 164 of the Labor Code of the Russian Federation, the period of temporary absenteeism, if the fact of illegal dismissal is established, is included in the total length of service, which affects the accounting of the employee’s working year.

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 illegally 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 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 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.

What responsibilities are provided for the manager?

For the unlawful dismissal of an employee, the employer bears liability .

Administrative

For the illegal dismissal of an employee, the employer, in accordance with Article 5.27 (Part 1) of the Code of Administrative Offenses of the Russian Federation, is subject to a fine in the amount of 30,000 to 50,000 rubles (for state enterprises) and from 1,000 to 5,000 rubles (for individual entrepreneurs) . have the right to impose administrative liability .

Criminal

In accordance with Article 144.1 of the Criminal Code of the Russian Federation, illegal layoffs of employees who have reached pre-retirement age entail a fine of up to 200,000 rubles or the amount of the employer’s salary for the last 18 months. In addition, the court may order the employer to perform community service for up to 350 hours.

Material

The employer's financial responsibility is expressed in the payment of various types of monetary compensation to an illegally dismissed employee. In addition, the intentional retention by the employer of the employee’s work book, which does not give him the opportunity to work and receive wages for it, also entails certain financial obligations .

Procedure

Employees should know what to do if they were fired from work illegally. They can defend their rights by being restored to their previous place of employment or receiving compensation. If a person can achieve justice, the employer will have to pay a large fine. Such actions will not only punish the owner of the company, but also prevent further violations on his part.

What to do if you are illegally fired from your job? To do this, perform the following steps:

• a complaint is filed with the labor inspectorate;
• a statement is drawn up to the prosecutor's office;
• a statement of claim is formed.

If a specialist does not want to involve third-party organizations, then an application is initially written addressed to the director of the company. It describes the identified violations and the negative consequences for the employer. Sometimes this allows you to solve the problem in a peaceful way. If the management does not want to meet the specialist halfway, then they will have to defend their rights in court.

Labour Inspectorate

If a person is thinking about what to do in case of illegal dismissal from work, it is initially recommended to contact the labor inspectorate. This organization was formed specifically to protect citizens who are faced with illegal actions on the part of the employer.

Features of involving the labor inspectorate:

• it is important to meet the deadline represented by 14 days from the date of dismissal, otherwise the time during which the manager can be held accountable will be missed;
• a complaint is filed only if there is evidence of a violation on the part of the employer;
• if verification and the involvement of witnesses is required, then it is advisable to immediately draw up a statement of claim;
• If an inspector from the labor inspectorate actually detects violations of the Labor Code, then he independently prescribes a punishment for the director of the company under Art. 5.27 Code of Administrative Offences.

The audit takes quite a long time, so it is recommended that you initially independently prepare evidence of identified misconduct on the part of the organization’s management. The punishment is represented by large fines, with the company paying from 30 to 50 thousand rubles, and for the director the sanction is a maximum of 5,000.

If repeated violations are detected, the penalties are increased. Therefore, suspension from management of the company is imposed for a period of up to three years. Additionally, the enterprise pays a fine of up to 70 thousand rubles, and the director pays 20,000.

Prosecutor's office

If an offended employee does not know where to turn in case of illegal dismissal, then it is advisable to file a complaint with the prosecutor’s office. An application must be submitted if there is evidence of a violation.

Employees conduct a check based on the documents received. If violations are discovered, orders are issued and large fines are imposed. But practice shows that employees of government agencies rarely pay attention to such statements, overlooking minor offenses of company directors. Therefore, it is advisable to contact the prosecutor’s office for truly serious crimes.

Attention! Applications drawn up by people of pre-retirement age are considered primarily in accordance with the requirements of the law, therefore, in the event of illegal dismissal, such persons can count on comprehensive protection.

Court

If it is necessary to conduct a trial and search for evidence, then it is advisable to go to court. Even a pensioner who was dismissed from the company without good reason can act as a plaintiff.

The demands indicate not only reinstatement, but also the receipt of large moral and material compensation. According to Art. 393 of the Labor Code, there is no need to pay fees and charges for conducting a trial, so no expenses are required from the offended specialist. But he can hire a lawyer to increase his chances of winning the case.

Judicial practice of appeal

The court may be the first instance where an illegally dismissed employee has the right to appeal. Judicial practice has recorded a large number of cases where decisions on dismissals were declared invalid, and plaintiffs were able to receive material and moral compensation.

Thus, in the practice of the Kamensky District Court of the Rostov Region, a case of unjustified dismissal of an employee for failure to appear at work was considered. The employer's decision was declared invalid by the court, since the notice of dismissal to the employee was sent to him on the same day as the official execution of the layoff order, which does not comply with current legislative norms (the dismissed employee did not have time to provide an explanation for his absence in writing).

Is it possible to challenge if one is fired from a job without reason?

Before dismissing an employee, the employer issues an appropriate order . The employee must read the paper and leave his signature.

If you disagree with the grounds for dismissal, you should not refuse the assurance, since then an act of notifying the employee is formed. It is signed by witnesses.

However, it is recommended that you keep a copy of the order for presentation in court. It is advisable to contact the authority to challenge the employer’s action in case of any type of dismissal, since it is carried out illegally:

1. at the initiative of the employer - on the basis of staff reduction, the employee’s inadequacy for the position held, absenteeism, failure to perform duties, and so on, if the employee does not agree with such grounds;
2. at the employee’s own request , if the employee did not write such a statement or wrote it under threats;
3. by agreement of the parties , if in fact the dismissal is forced.

In cases of dismissal of one’s own free will and by agreement of the parties, challenging the dismissal will not be easy, since the employee documents his consent, and in order to understand whether they can be challenged in court, it is necessary to prove the fact of involuntary resignation or coercion on the part of the company’s management.

Confirmation may include audio and video recordings of conversations, testimony of witnesses, and indirect evidence (for example, difficult financial situation).

The basis for a challenge may also be an incorrectly formatted application - for example, the absence of the phrase “at my own request” or the replacement of “I ask to be dismissed” with “to be relieved from office” (which does not mean a request to terminate the contract).

When to contact the labor inspectorate

The Labor Inspectorate was created to consider various requests, applications, complaints from citizens regarding violations of their labor rights and take appropriate response measures. You can contact this government agency in the following cases:

• the employer did not provide the employee with work, which was provided for in the previously signed employment agreement;
• the employee was paid wages untimely (or not in full);
• the workplace where the employee is required to perform his or her job functions does not meet minimum labor safety standards;
• the employee was not compulsorily insured, as provided for by the relevant laws;
• while performing work (also between shifts or working days), the employee is not given a normal rest period;
• other violations related to labor relations.

Remember, both a current employee and a citizen who has been denied employment or has not yet been approved for a position can complain to the labor inspectorate.

Based on the results of consideration of the written appeal of the citizen (employee), the labor inspectorate makes a decision to satisfy or refuse the complaint. If the issue is resolved positively, the employer is sent an appropriate order to eliminate violations of labor legislation.

Violation of the dismissal procedure

Dismissal procedure and its violation

If the parties voluntarily decide to no longer interact as an employee and an employer, no one will consider such cases in the future. But if one of the parties (usually the employer) for any reason decides to part with a specific employee or part of the employees, a certain procedure will need to be followed.

It was adopted at the legislative level in order to protect citizens from unlawful dismissal, abuse of power and capabilities by the administration. It should be noted that the courts almost always side with the employee if, during the proceedings, the employer cannot prove the legality of the dismissal, as well as strict compliance with all norms prescribed by law.

The dismissal procedure will depend on the terms of termination of employment agreements. Here it is worth highlighting:

1. Reduction. A situation where, due to changes in internal processes in a company, the existing number of employees is no longer required. Here, the employer is obliged to inform the trade union about this (three months in advance), personally the employee (two months in advance), perform and show the relevant economic calculations to interested parties, strictly adhere to deadlines, take measures for retraining, training, transfer of employees (if possible) to other available positions and vacancies. Every step and action is recorded on paper. It is important to take into account that some categories of citizens by law cannot be laid off under any conditions (except for the complete liquidation of the enterprise).
2. Dismissal for various violations. The fact that the employee committed an offense must be proven. For example, this could be absenteeism, drunkenness at work, or theft of property. This must be recorded in an official document. But even if there is evidence, the legislator obliges the employer to find out whether there were any conditions that caused the employee to act accordingly. To do this, it is necessary to obtain a written explanation from the employee and obtain information from witnesses (other employees).
3. Dismissal due to unwillingness to further interaction. This type of dismissal can only be used in one case - when the employee has not completed the probationary period established for him. But here, too, not everything is simple. It is necessary not only to meet all the deadlines specified in the hiring order, but also to take into account the employee’s real opportunity to prove himself (this is verified by the absence of periods of incapacity, the presence of clearly defined tasks, understandable work or job descriptions). In other cases, a compelling reason for dismissal is required, provided for by labor law.

Remember, violation of the legally approved procedure for dismissal is a direct path to reinstating a dismissed employee to his previously held position and making appropriate compensation payments.

Preparation of documents for court

To speed up the consideration of the case in court, you need to take a particularly responsible approach to preparing the necessary documents. Mandatory documents to be submitted to this body are:

1. A copy of the employment contract with the employee, concluded upon hiring him. It defines the main responsibilities of the employee and his employer, as well as the rights of each party. This document must also reflect information on the actual amount of the employee’s salary.
2. A copy of the sheets of the work book containing records of the employee’s employment at the enterprise, indicating the position and qualifications, and his dismissal from work. Copies of all sheets with records of employee rewards and punishments must also be present. They must be accompanied by copies of hiring and dismissal orders corresponding to the work book entries. Copies of documents must be confirmed by the seal and signature of an employee of the enterprise’s human resources department.
3. Documents evidencing legal violations (in case of dismissal under the relevant article).
4. Documentary evidence of violations of Labor Code by the employer (for example, falsification of staff reductions).

All specified documents are attached to the claim, which must contain their listing.

These documents must be provided to the plaintiff at the enterprise’s human resources department within 5 working days. If the former employee’s request to do so is ignored, he must indicate this in the claim to the court, and the judicial authority itself will request the documents listed in the statement.

Unjustified dismissal of an employee

Only the presence of documents confirming the measures of influence will indicate that the employee actually committed violations. In this case, dismissal will be considered an extreme measure of punishment for the employee, adequate to the labor violations he has committed. If the dismissal was carried out in the absence of the legal grounds listed above, then it can be challenged by the employee.

Examples include the following situations:

1. For example, the liquidation of a company or the reduction of its personnel is fictitious, and no external or internal document about the termination of its activities or a reduction in staff was actually issued. Moreover, in order not to pay the employee severance pay, the administration forces him to write a letter of resignation “of his own free will.”
2. Likewise, when planning to fire an employee due to his violation of labor laws, the employer deliberately creates a provocative situation that encourages the employee to violate labor discipline. In this case, any insignificant fact is documented.

Dismissal for such reasons is motivated by the desire of management to get rid of an unwanted employee. If he does not understand the law, then it is not difficult for the employer to fire him without cause.

Examples of common illegal situations

• As a rule, the most common case is the termination of cooperation with a woman on maternity leave. In such a situation, many company managers are trying to get rid of women on maternity leave by cutting their jobs, which is a direct violation of Art. 256 of the Labor Code of the Russian Federation, which states that a woman on maternity leave must retain her job until the end of her vacation.
• An equally common case is the dissolution of a relationship with a single mother who is raising a small child. After all, as a rule, small children often get sick, and there is no one to leave them with, which entails endless sick days and time off from work. Of course, not everyone likes this situation, which is why workers with small children are not hired at all or are very quickly fired for far-fetched reasons.
• But undesirable truth-seeking men are dealt with differently. For the slightest offense, for example, being late for work by 5 minutes, not wearing a helmet at the workplace and violating safety rules, they are immediately reprimanded, one after another, so that after the third reprimand they can be fired with a clear conscience.
• An equally common method is to conduct an extraordinary certification in order to reduce the employee’s existing qualifications to a minimum and thus find a reason for dismissal on completely legal grounds. But for each procedure, the desire of the management alone is not enough; there must also be documentation, which, by the way, is established by law.
• Another way to get rid of unwanted employees is to nominally reduce a position with the introduction of a new vacancy with similar responsibilities, which again is a violation of labor laws.
• Finally, it is worth mentioning the conclusion of a fixed-term contract, even if the duties of the future employee will be performed on an ongoing basis. In such a situation, it is possible to resolve the situation and recognize the agreement as indefinite only in court.

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