What is the employer's responsibility for violating the procedure for dismissing an employee?

Dismissal for violation of labor discipline is a very difficult procedure for employers, which is often associated with protracted conflicts with the person being dismissed.
When dismissing for violation of labor discipline, it is necessary to comply with the norms established by law so that the dismissal does not become the subject of legal proceedings. Dear readers! To solve your specific problem, call the hotline or visit the website. It's free.
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What does illegal dismissal mean?

Legislative documents do not contain the term “illegal dismissal,” nor do they use the word “dismissal” itself. It is usually understood as the termination of the employment relationship between two parties to the process - the employee and the employer. This termination may occur as a result of the termination of the employment contract or its interruption at the initiative of any party, and there may also be objective reasons beyond the control of either the employer or the employee.

Unlawful dismissal , in this case, will be considered such release from labor relations for which one or more of the following conditions is true:

• there are no grounds for dismissal or they are insufficient;
• The dismissal procedure was carried out in violation of the Labor Code.

NOTE! Deviations from the law are possible under any circumstances of termination of an employment relationship: you should always pay attention to the legislative norms and the procedure for registering dismissal.

Payments

According to Art. 140 of the Labor Code, a citizen dismissed on this basis must be paid all the money due. This is done either at the time of dismissal, or the next day after the employee submits an application for payment. The amount due to him includes:

• Salary for the period worked, bonuses.
• Payment for unused vacation.
• Other payments provided for by law and local regulations.

A portion of the amounts due to the employee may be withheld to cover expenses incurred due to the resigning employee’s failure to comply with his job duties. For example, if due to his negligence the company’s property was damaged. In this case, they take only that part of the amount that does not exceed the full earnings.

Further, this fact (indicating the amount of payment and the withheld part) is recorded in the internal documentation of the enterprise and the employee’s income certificate.

Attention

It is prohibited to compensate from an employee’s salary for lost profits due to his failure to fulfill his duties.

Options for dismissal not according to the law

Let's consider all possible cases when an employer accidentally or intentionally circumvents the Labor Code by getting rid of his employee. In this case, responsibility lies precisely with the employer as the stronger party in the labor relationship: the dismissed employee may not know his rights and the norms of the Labor Code, as well as the nuances of the registration procedure, and for the employer this is one of the main responsibilities.

There is no reason!

The employer's desire to get rid of the employee, even if the reasons for this desire are very significant, is not enough. There must be grounds for this, and not just any, but those provided for by the Labor Code, and no one has the right to expand their list without permission, since it is closed (Article 77 of the Labor Code of the Russian Federation).

IMPORTANT! In Part 2 of this article there is a clause about the possibility of other grounds, if they do not contradict the Labor Code and other federal legislative acts.

The first requirement of legality

So, the first requirement for the legality of dismissal: the reason must be one of the list provided by the Labor Code or federal law.

Second requirement of legality

This or that reason must be truly real, and not attributed to the employee, and the proof of its reality lies with the employer. The second requirement for the legality of dismissal: compliance of the basis with reality, for which there is documentary evidence or evidence.

Third requirement of legality

Finally, even if the reason for dismissal is valid, the employer must ensure that the employee is truly no longer able to perform his or her duties. In other words, not every misconduct, even formally falling under the grounds for dismissal, really deserves it. The law gives the employer a choice of the degree of administrative responsibility for employees, and dismissal is only a last resort. Often, instead, it is enough to apply a disciplinary sanction - a warning or reprimand. The third requirement for the legality of dismissal is proportionality to the grounds.

RESULT . Unlawful dismissal due to non-compliance with the grounds occurs if:

• the basis is not provided for by the laws of the Russian Federation;
• the actual reality of the foundation has not been proven;
• the reason cannot be considered significant.

Question: Is it possible to recover the amount of payment for forced absenteeism of an illegally dismissed employee from the general director? What decision did the arbitrators make on this issue? View answer

Only legal options

We list the reasons for which dismissals are permissible. And the conditions under which it becomes illegal. They are listed in Table 1.

Table 1 Legal grounds for dismissal and deviation from them

Don't break the procedure

If everything is in order with the grounds for dismissal, this does not guarantee its legality. It must be drawn up in accordance with the approved procedure, only then will it have legal force.

Following the procedure means that the employer, when terminating the employment relationship with the dismissed person, must act in a strictly defined manner prescribed by the Labor Code of the Russian Federation and other regulatory documents.

For each reason and, accordingly, article of dismissal, this procedure will be different. It is important to note whether the employer deviated greatly from it or slightly: this may be decisive in the issue of the legality of the dismissal.

Significant violations affecting the legality of dismissal

These are violations of procedure that seriously violate the requirements of the Labor Code and other legislative acts. Some examples:

• dismissal on disciplinary grounds when the procedure for bringing to justice is not followed;
• reduction if the employee was not offered existing vacancies;
• the opinion of the trade union organization is not taken into account in cases where it is important when terminating labor relations with members of the trade union organization.

All these and similar cases of gross violation of the dismissal procedure make it illegal. What can be proven in court.

Minor violations of procedure

They may not always be decisive in establishing the legality of dismissal. If the court considers a claim on the legality of dismissal on the basis of such violations, it may be guided by additional information, and the decision will not always be unambiguous. These types of violations include:

• minor failure to comply with deadlines in processing orders and paying employees;
• untimely issuance of a work book;
• absence of the employee’s signature indicating that he has read the dismissal order, etc.

Recording in labor

Making entries in the labor record is regulated by Resolution of the Ministry of Labor of the Russian Federation No. 69. According to it, upon termination of the agreement, an appropriate entry about dismissal is made in the employee’s labor record, indicating a reference to the norm of legislation (clause 5 of Article 81 of the Labor Code). In each column, write down the necessary information:

• Employment record number.
• The date of entry (it is consistent with the date of adoption of the dismissal order).
• The reason for termination of the contract (it corresponds to that contained in the order), the position and full name of the person who enters the note.
• Information about the document that became the basis for making this decision (number and date of issue of the order).

Where to go if you were illegally fired

IMPORTANT! Recommendations for protecting employee rights in case of illegal dismissal from ConsultantPlus are available here

From the moment the employee ceases to be such and he has reason to believe that it is illegal, he has three months to try to restore his rights. And conflicts related to the illegality of dismissal, if they arise, must be considered within a month (p. 392 of the Labor Code of the Russian Federation).

To do this, the offended employee has the right to appeal to one of three bodies, each of which has its own competence and powers:

• Federal Labor Inspectorate;
• prosecutor's office;
• court.

How can the labor inspectorate help?

If an employee has filed an application for illegal dismissal with the labor inspectorate, the labor law inspector will be required to check the circumstances outlined in it within 1 month. And the result of the inspection will have certain consequences. What the inspector can do as a result of the inspection:

• give the employer an order to eliminate violations of the Labor Code, and, as a result, the violated rights of the employee;
• bring the employer to administrative liability.

REFERENCE! The requirements may well include a mandatory requirement for the reinstatement of an unfairly dismissed employee.

The employer may appeal the received order or the assigned liability within three months.

ADVICE FOR EMPLOYEES. The labor inspectorate pays attention primarily to procedural violations, therefore, if the grounds are controversial and require interviewing witnesses and comparing evidence, contacting the labor inspectorate may be ineffective.

When to go to the prosecutor's office

The prosecutor's office has the right to verify compliance with any legislation. As for labor law, its powers are almost similar to the labor inspectorate:

• establishing the fact of violations,
• issuing orders,
• bringing to responsibility.

Unlike the labor inspectorate, prosecutors are also busy with other areas of legal violations, so minimal attention will be paid to ordinary violations of rights. If the prosecutor's audit is not scary for the employer, it may also not be entirely effective.

Court - independent protection of your rights

This is the only option that allows us to put a final point on the issue of the legality of dismissal: all other authorities can only initiate an appeal here. Therefore, the majority of those illegally dismissed, in order not to miss the established monthly deadline, immediately contact this authority.

The claim must be brought to the district court regarding the location of the employer. The claimant, as the weaker party, is exempt from state fees and other legal expenses.

It is more effective to seek representation of your interests from a professional lawyer.

The court has the right not only to reinstate the illegally dismissed person, but also to oblige the employer to pay all the money for forced absences, and sometimes compensation. In addition, bailiffs will ensure that this decision is compulsory.

Reinstatement

If the court finds the dismissal of an employee unlawful, return to work occurs as follows:

1. Together with the court decision, the court issues a document for the executive body, which must be immediately sent to the bailiffs. The head of the enterprise is obliged to implement the decision no later than one day after this.
2. The hiring of another employee or the fact that the position has been reduced does not prevent the return of the unlawfully dismissed employee.
3. It is necessary to ensure that the manager cancels the dismissal order and does not reinstate the employee. This matters when receiving involuntary unemployment payments.
4. The person must be notified in writing of the start of work. The same letter must indicate the cancellation of the dismissal order.
5. The inscriptions in the work book are being corrected. The notice of dismissal is considered invalid. A person also has the right to update his work book with the restoration of all existing records.
6. None of the employment conditions under which the employee worked before the unlawful deprivation of work are changed for any reason.
7. The employee’s personal file at the enterprise is also restored and corrected, with a separate note about the court decision.
8. The work record sheet is corrected and supplemented. The time during which a person was unemployed is counted as length of service with appropriate remuneration.

An employee has the right to compensation for all types of damage caused to him by unlawful deprivation of his job. The fact of compensation for damage and the return of an illegally dismissed person does not relieve the employer from liability for illegal actions.

Thus, every illegally dismissed person is protected by law. All that remains is to competently exercise your legal rights. A qualified lawyer can help with this. The most important thing is not to give up and not to succumb to the persuasion of the leader, who can end everything peacefully even during the trial.

How will the employer respond? Fines for illegal dismissal

The legal consequences provided for by law are inevitable and inevitable in the event of a court decision that has entered into force declaring the dismissal illegal.

The degree of liability depends on the nature and extent of violations committed by the employer.

1. Administrative liability threatens with a fine of up to 5 thousand rubles. or disqualification for up to three years.
2. Protecting the rights of pregnant women and mothers of young children can bring the offender under criminal liability: a fine of up to 200 thousand rubles. or in the amount of one and a half years' salary of an unfairly dismissed employee, and the employer may be assigned corrective labor for up to 15 days.

Is there financial liability for illegal dismissal of an employee?

Arbitrage practice

In most cases, the court protects the interests of the dismissed employee. The employer will be able to avoid punishment only if he takes care of the correct documentation.

The employee filed a complaint against forced dismissal. She wrote a statement and was fired. The court took into account the testimony of other employees who heard the head of the enterprise demand that this statement be written. But the main evidence in favor of the plaintiff was the absence in this document of the exact date of termination of the contract. In fact, the employment contract with the employee was terminated before the expiration of two weeks of waiting from the date of submission of the document.

The employee was late for work, for which he was fired. During the trial, the absence of an explanatory note was taken into account. It was not asked from the employee. And the basis for issuing the order was only an act drawn up on the fact of absence. The employee was reinstated and paid compensation.

Special cases

When the decision to reinstate an employee is made quickly, the employer may not yet have time to hire another person in his place. In this case, the recovery procedure will be simple. What to do if the dismissal was due to a layoff or if someone else had already been hired to take the previous position?

If the position of an illegally dismissed employee was reduced, then upon his reinstatement, the employer is obliged to return it to the staffing table and maintain the amount of previously paid wages. Before drawing up an order for reinstatement, another order is issued - for the return of the corresponding position.

If the employee was fired, and another was hired in his place, and then an order for reinstatement was issued, then the employer will still have to comply with the court order. At the same time, he will have to fire the previously hired employee due to the reinstatement of the previous employee.

Reinstatement of an employee is a rather complicated and unpleasant procedure, so both parties should not violate the law and defend their interests until the moment of dismissal.