What is illegal dismissal and what authorities can an employee apply to?

When an employment relationship ends, one party may remain dissatisfied. Especially if the initiator is management! Can an employee appeal his dismissal? Where should he go?

The most common reason for an employee's dismissal is a conflict with the employer. But since management understands that it is quite difficult to fire a good employee “on the basis of an article,” they begin to look for ways to put pressure on him to fire him “on his own.”

At the same time, the employee, realizing that he is being “pressured”, begins to vigorously resist. But as practice shows, management gets its way in most cases. If the employee is sure that his dismissal was illegal, he can defend his rights.

The legal grounds for dismissing an employee are given in Art. 77 Labor Code of the Russian Federation. Each basis is spelled out in more detail in Art. 77 – 84 Labor Code of the Russian Federation. Therefore, dismissal will be considered illegal in the following cases:

• the employer violated the legal procedure for terminating the employment contract;
• did not pay the resigned employee all the money due;
• the dismissal occurred for a minor disciplinary sanction;
• the employee was dismissed while on sick leave or on annual leave;
• the resignation letter was written under pressure from management;
• the basis for dismissal was a reduction in staff or liquidation of the enterprise, but proper notification of employees did not occur, or the employer laid off the employee who had the preferential right to remain in the workplace;
• the dismissed employee is the father or mother of a child under 14 years of age;
• other grounds that contradict current labor legislation.

Regardless of what is the basis for dismissal, management must issue an order with which the employee must be familiar. If an employee believes that the dismissal occurred illegally, then he has the right to immediately ask for a copy of the order to attach it to the documents for appeal.

You can appeal a dismissal order in the following ways:

• write a substantiated appeal with references to labor law standards addressed to the management of the enterprise. The appeal can indicate a request for clarification of the fact of termination of the employment relationship on a specific basis. It may also happen that senior management is not aware of what is happening among ordinary employees. This is especially common in large enterprises, where some of the manager’s powers are distributed among his deputies;
• You can also file a complaint with a trade union organization if the person who resigned is a member of this organization;
• if the measures taken do not produce results, then you should write a complaint to the labor inspectorate at the employer’s location. The complaint also needs to cite the circumstances of the termination of the employment relationship, cite the norms of the Labor Code of the Russian Federation that were violated by the authorities, and also state a request to conduct an audit of the activities of a specific organization in order to identify violations. If they are identified, the labor inspectorate will initiate legal proceedings with the aim of restoring the applicant to his job and paying him the due compensation;
• in parallel with the complaint to the labor inspectorate, the former employee can also contact the prosecutor’s office;
• if the dismissal rules are fundamentally violated, and this is visible to the naked eye, then you can immediately file a lawsuit.

Appealing dismissal in court

Sometimes the most effective way to appeal your dismissal is to file a claim in court and defend your rights in court. But you need to prepare for the process, write the statement of claim correctly, submit a set of documents and not miss the deadline for filing the claim.

The claim is drawn up taking into account procedural rules, that is, it is necessary to take into account the norms prescribed in Art. 130 – 131 Code of Civil Procedure of the Russian Federation. The following documents must be attached to the statement of claim:

• a copy of the claim for the defendant, that is, for the employer;
• documents confirming the plaintiff’s employment with this employer. All papers that are in one way or another related to the plaintiff’s employment must be issued by the defendant within three days after the plaintiff writes a written statement;
• receipt of payment of the duty. Without this document, the claim will not be accepted for consideration.

The plaintiff has the right to demand from the court a decision to reinstate him at work, as well as payment of wages for forced absence and compensation for damage caused by illegal dismissal. The calculation of the amount of damage is made by the plaintiff independently.

The amount of unpaid wages must be confirmed by relevant certificates from the accounting department. They are issued upon dismissal, and the employer has no right to refuse to issue them to his employee.

The case will be considered on its merits if the following conditions are met:

• all documents are ready;
• the claim is drawn up correctly;
• the duty has been paid in full;
• all documents were submitted on time.

Compensation upon reinstatement

Having achieved reinstatement at work through the courts, a citizen has the right to receive certain compensation. Thus, in accordance with Article 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate him for the average earnings for the entire period of forced absence from the workplace. Determining this period of time is quite simple. It starts from the date of dismissal and ends on the day the order for reinstatement is issued.

Article 395 of the Labor Code of the Russian Federation allows you to demand compensation for moral damage caused. The amount of this payment is determined by the court individually. The physical and mental suffering of a person is taken into account, which is confirmed by a medical report on his condition or documents confirming the completion of a course of treatment during this period.

Current legislation exempts a person filing a claim for illegal dismissal from paying state fees. But a citizen has the right to use the services of a lawyer who will represent his interests in court. According to Article 100 of the Code of Civil Procedure of the Russian Federation, these costs are subject to recovery from the defendant if the claim is satisfied.

Unlawful dismissal is not a death sentence. Don't fall into despair and start looking for a new job. If you are sure that the employer’s actions are contrary to labor law, contact government authorities with a corresponding statement. Consulting a specialized lawyer will help you cope with this task yourself.

Time limit for appealing dismissal in court

If an employee nevertheless decides to go to court to protect his rights, he must do so as quickly as possible. You need to calmly leave work, taking all the documents that the employer is obliged to issue. And immediately start preparing a claim. If you have no experience, it is recommended to contact labor law lawyers.

In Art. 392 of the Labor Code of the Pension Fund states that an employee has the right to go to court to protect his rights in an individual labor dispute, but only within three months from the moment his rights were violated.

It is necessary to pay attention to the fact that the dismissal dispute can be resolved in court within 1 month from the moment the employee signed the dismissal order. Therefore, you should not delay filing a claim.

What information must be included in the claim?

The text of the statement of claim must contain certain information that directly relates to the issue raised. In particular, the plaintiff must indicate what the illegality of illegal dismissal from work is and the article of the Labor Code on the basis of which the appeal is made. In addition, the statement of claim must include information about the defendant and your personal data.

In the text of the claim, you should definitely indicate your demands that are presented to the head of the enterprise or organization - the list of possible ones is presented above.

If reinstatement at work in case of illegal dismissal at the previous enterprise seems impossible due to its reorganization, the plaintiff has the right to submit all claims to his legal successor, if there is one. In this case, it is necessary to indicate in the text of the application information about that same legal successor and indicate the grounds for filing the claim.

Procedure for appealing dismissal

To appeal illegal dismissal, you must follow a certain procedure:

• do not interfere with the employer in preparing documents on termination of employment relations;
• you need to sign the order and write an application to receive all the necessary documents;
• pick up your work book and receive a full payment;
• make copies of all documents issued by the employer;
• prepare a complaint to a supervisory authority or court;
• receive a notification that documents have been accepted for consideration;
• wait for the decision on the complaint.

The application must clearly state your requirements:

• reinstatement at work;
• changing the grounds for dismissal and, accordingly, the entry in the work book;
• payment of not received cash payment upon dismissal;
• collection of monetary compensation for days of forced absence;
• recovery of moral damages from the employer.

Where to go if you were illegally fired from your job?

Employers who have decided to fire an employee often use a trick and invite him to write a statement “of his own free will.” You should not do this if changing jobs is not part of your plans. Once such wording appears in the work book, it will be very difficult to prove the illegality of dismissal.

The current legislation of the Russian Federation determines the procedure for documenting dismissal. The employer must issue an order, familiarize the employee with it, and make a corresponding entry in the work book. If the employee does not agree with the decision made, he has a month to defend his rights. This can be done in two ways:

1. filing a complaint with the State Labor Inspectorate;
2. filing a claim in court.

Each option has its own pros and cons. Before making a decision, you should carefully study them, and only after that determine how best to act in a particular situation.

Appeal against illegal dismissal

If an employee believes that he was fired illegally, he can file an application to protect his rights and restore violated interests.

He has the right to appeal to supervisory authorities:

• labor inspectorate;
• prosecutor's office

You can also apply to the court, bypassing all supervisory authorities. But first you need to take measures to resolve the dispute out of court. To do this, the employee must write a complaint addressed to the director with a request for clarification of the situation.

The claim must be drawn up in 2 copies, one indicating the date the application was accepted for consideration and the number of the incoming document. If the applicant does not receive a written answer, or he is not satisfied with it, then he can already file a claim with the court.

Grounds for challenging the dismissal order

• The employee was dismissed immediately for a minor offense, without a disciplinary procedure ;

• The employer forced him to write a statement, forced him to resign, or put psychological pressure on the employee;

• If you lose confidence in an employee or commit an immoral act, dismissal must occur no later than one year from the date of commission of this act;

• Dismissal cannot be carried out while the employee is on vacation, or during his incapacity for work. An exception is declaring a legal entity bankrupt;

• Dismissal of women while pregnant is not allowed;

• The employer is obliged to provide evidence confirming the legality of the dismissal, to carry it out in the prescribed manner and in compliance with all legal norms;

• Dismissal of women who have children under three years of age, who do not have a husband (but with a child under 14 years of age), who are raising a disabled child under 18 years of age, or other persons is not allowed;

• The employer, without having specific reasons for dismissing an employee (in the event of the employee’s innocence) , is obliged to protect his legal rights, freedoms and interests to the maximum extent possible;

• Other cases of dismissal indicating misconduct on the part of the employer.

Appealing dismissal due to redundancy

Reducing staff is a rather complicated procedure. If management has decided to hold such events, then it must be prepared to prepare a huge number of documents.

In addition, a special commission should be created, which is obliged to carefully study candidates for reduction. The following factors are taken into account for the study:

• length of service with this employer;
• level of qualifications and labor indicators;
• the presence or absence of benefits provided to certain categories of workers.

After conducting the study, the entire selected team must be notified at least 2 months before the start of reduction measures. Important! The employee must be paid severance pay in the amount of two salaries.

If one of the conditions is violated, the employee can appeal his layoff. Like dismissal for any other reason, this method of terminating the employment relationship can be challenged through the supervisory authority. It is enough to write a complaint, and the legality of dismissal and measures to reduce staff or number of employees will be checked.

If the purpose of the complaint is specifically reinstatement at work, then it is recommended to file documents with the court. The powers of the labor inspectorate are not as broad as those of the court. Labor inspectors can issue a decision on reinstatement at work only when a violation of the employee’s rights is obvious, for example:

• the employer did not notify on time;
• there is no written evidence that the dismissed person was offered another vacancy;
• the employee did not receive severance pay in full;
• the employee belongs to the category of workers who cannot be laid off. For example, he laid off a pregnant employee.

In addition, the employer’s responsibilities include drawing up and approving a new staffing table.

Application to appeal dismissal

If an employee firmly decides that he was fired illegally and he will complain, he needs to know how to write a statement. If this is an application to the labor inspectorate or the prosecutor's office, then there is no unified form. But you should adhere to the rules prescribed in Art. 7 of Law No. 59-FZ.

This article specifies all the information that should be contained in a citizen’s appeal to government agencies. This:

• "header" of the document. The following is indicated here: information about the receiving party;
• information about the applicant – full name, residential address and contact details;

If an illegally dismissed employee decides to immediately go to court, then he should know that the statement of claim must meet the requirements prescribed in Art. 130 – 131 Code of Civil Procedure of the Russian Federation. If the claim does not meet these requirements, it will not be accepted for consideration, and the deadline for appealing illegal dismissal may be missed.

Example of an application to the labor inspectorate

State Labor Inspectorate in the city ____________ To the head of the state inspection ___________________ inspection address_____________ ___________________________ from ________________________, residing at the address: _______ ____________________________ contact tel. ___________________

Complaint (statement)

I work (worked) in ___________________________, located at: _______________, in the position of _________________. General Director (Director)______________ (tel. _______, Chief Accountant _____________________ (tel._____________).

(the specific essence of the complaint is stated)

I ask you to restore my violated rights.

I am attaching copies of the following documents to the complaint:

1.

2.

________________ Petrov P.I. Date, Signature

The advantages of contacting the labor inspectorate are that you do not need to contact lawyers to draw up an application and prepare the necessary documents. If inspectors reveal a violation of workers' rights, the employer, as well as officials, will be held administratively liable.