Grounds and reasons
According to Article 106 of the current Federal Law dated October 2, 2007 N 229-FZ “On Enforcement Proceedings,” a necessary condition for the reinstatement of a certain employee in the workplace is his admission to perform work duties and the cancellation of a previously issued order on his dismissal.
Sample claim for reinstatement at work.
Algorithm
To reinstate an employee, the employer must first cancel the order to dismiss the employee.
The order for reinstatement appears on the basis of a court verdict .
You can cancel a dismissal order by creating a new order , which must include:
- the reason explaining the cancellation of the order to dismiss the employee;
- details assigned to the court decision.
However, in the vast majority of cases, employers prefer to issue such an order to reinstate an employee in the workplace, for which a strict form has not been defined , which, as a result, allows them to issue this order in a free form, developed through their own efforts. Typically, it includes:
- FULL NAME. employee being reinstated;
- grounds for employee reinstatement;
- the position to which the employee is being reinstated;
- restoration date.
There are cases when such an order must be issued after a court decision has entered into force , the main requirement of which is the reinstatement of the employee in his position.
Based on the court decision, it is recommended to indicate the following information in the order :
- period of forced absence;
- the amount of average salary contributions that must be paid to the employee for a period equal in duration to the period of forced absence;
- the amount of compensation for moral damage determined by the court.
An order canceling the dismissal order must be presented to the reinstated employee for review against signature.
If an employee refuses to sign this document, then a corresponding act .
A situation may arise in which the reinstated employee does not express a desire to begin his duties . In this case, the employer is allowed to initiate the process of dismissing the employee due to absenteeism. The procedure for this procedure is provided for in Art. 192 and art. 193 of the Russian Labor Code.
The employer needs to draw up an accompanying report and make notes in the work time sheet in the form of codes “НН” or “30”, which will subsequently make it possible to document the absence of this employee from the workplace .
It should be noted that a penalty cannot be applied to an employee without receiving a written explanation from him regarding his absence from the workplace. This aspect cannot be ignored in order to avoid breaking the law, since it is provided for in Part 1 of Art. 193, Labor Code of the Russian Federation.
In a situation where an employee replaces the position of a reinstated employee, he must be transferred to another position. This provision is enshrined in clause 10 of Art. 77 and paragraph 2, part 1, art. 83, Labor Code.
The employee holding the position of the reinstated employee must give written consent to this decision. In Part 3 of Art. 178, Labor Code of the Russian Federation, it is noted that if he refuses to be transferred to another place , then the employer may resort to terminating the employment contract, after which the given employee will be paid severance pay, the amount of which will be equal to his average two-week earnings.
Since the reinstatement of an employee in the organization implies his return to the previously performed functions specified in the employment agreement, it is necessary to have this position in the staffing table.
If at the time of the employee’s reinstatement there is no such position for certain reasons, then the employer is obliged to either introduce related amendments to the staffing table or create a new one from scratch, which is also recorded in the order. Ignoring this point may result in administrative penalties in accordance with Art. 5.27 Code of Administrative Offenses of the Russian Federation.
Russian legislation does not define the concepts of “out of state” or “out of state”. The employer must independently enter the position to which the employee is being reinstated.
Sample order for reinstatement of an employee.
Procedure for document preparation
When the court appeals the dismissal of an employee, he must be reinstated under the same conditions. The algorithm of actions for this procedure is as follows:
- Drawing up an order.
- Familiarization of the employee with the order.
- Making amendments to the work book.
- Permitting an employee to perform job duties.
The employee is reinstated to his previous position immediately. Even if the head of the enterprise opposes the return of a previously dismissed employee to his previous position, the organization is obliged to comply with the law.
Entry in the work book
The next stage of employee recovery is displaying and recording this fact in his work record book. First you need to cancel the record of his dismissal. This can be done by declaring it invalid .
This fact is stipulated in paragraph 30 of Resolution No. 225 of April 16, 2003 “On work books.” According to the instructions for maintaining work books, recorded by Resolution of the Ministry of Labor dated October 10, 2003 N 69, it is necessary to make entries in the following order :
- column 1. Serial number;
- Column 2. Date of entry;
- column 3. It is indicated that the entry for N (dismissal) is invalid, the employee was reinstated to his previous job”;
- Column 4. Link to the relevant order.
An employee may request a copy of the work record without this record.
He is right - clause 33 of the Rules for Maintaining Labor Records encourages such a development of events.
In this case, the title page of the old work book is marked “Instead a duplicate is issued”, as well as the designation of the series and number, and the inscription “Duplicate” .
Common mistakes when quitting.
The reasons for reinstatement of an employee are usually related to the employer’s violation of the dismissal procedure.
For example, when dismissing at the request of the employee, the dismissal is considered illegal if the employee proves that the employer forced him to write a letter of resignation, or if the employer, on his own initiative, fired the employee before the end of the notice period, depriving the employee of the right to withdraw the letter of resignation (Art. 80 Labor Code of the Russian Federation).
Very often, employers violate dismissal procedures for a one-time gross violation of labor duties by an employee, for staff reduction, or for the employee’s inadequacy for the position held. That is, when dismissal is initiated by the employer, he does not comply with the procedure for bringing disciplinary action, notifying employees two months before layoffs, does not conduct certification to determine whether the employee is unsuitable for the position held, etc.
Quite a lot of violations are also allowed when formalizing the termination of employment relations established by Art. 84.1 Labor Code of the Russian Federation. For example, the employer did not issue an order or did not familiarize the employee with it against his signature, did not issue a work book on the last working day, or did not pay the employee. However, reinstatement of the employee in such cases is carried out if, in addition to these violations, others were committed and if the employee makes a demand for reinstatement. And workers, as a rule, in such cases ask to recover the average earnings for the period of forced absence.
Payments to the reinstated employee
First of all, upon reinstatement, the employee is paid for the time that the forced absence took , in accordance with Part 2 of Art. 394 Labor Code of the Russian Federation. The amount of these deductions is fixed by court decision.
The employer has the opportunity to reduce the amount of payments by an amount equal to the amount of severance pay , based on part 4 of clause 62 of Resolution No. 2 of March 17, 2004 “On the application of the Labor Code by the courts of the Russian Federation.”
Minimizing the amount of payments to a reinstated employee as compensation for unused vacation is not provided anywhere, which is important to remember. The request for the return of this amount is sent to the employee separately.
These payments are made as soon as an order to cancel the dismissal of an employee is issued.
The point of measures aimed at restoring an employee to his position is directly to eliminate the legal consequences of dismissal by canceling the relevant order, and not by issuing an order confirming the employer’s intention to reinstate the employee after the court makes a related decision.
Thus, this payment becomes an inseparable element of the process , the ultimate goal of which is the restoration of the employee.
Financial questions
Upon reinstatement at work, the judicial authority decides to recover in favor of the employee the average earnings for the entire period of forced absence. In accordance with Art. 211 of the Code of Civil Procedure of the Russian Federation, the decision to pay wages for three months is also subject to immediate execution. The obligation to make all other payments awarded to the employee, incl. compensation for moral damage occurs only after the court decision enters into legal force.
Objections to a claim - how to respond correctly and what to do?
Reinstatement at work is one of the most popular topics of litigation in Russia . The employer has a chance to win the case if it is based on 2 main aspects:
- impeccable preparation for the court hearing;
- effective presentation at a court hearing.
Preparation
An employee's claims cannot be left unanswered. detailed objections to them . It is these documents that serve as support for any employer in court. Another important aspect is written evidence .
A report card where all employee absenteeism will be recorded if the employer fires the employee for absenteeism; if you have to fire someone for drunkenness, then you need to provide the corresponding results of a medical examination ; memos are used .
These documents must be attached to objections.
If the collection of documents is delayed, the employer can send a petition to the court to attach materials to the case under consideration.
It is also important to work out not only the list of persons who will need to be subpoenaed to testify, but also the list of questions to which they will answer.
If the same person is called by both the plaintiff and the defendant, then it is necessary to give the plaintiff primacy in the interrogation process . In this way, the defendant’s side will be able to adjust its questions addressed to this person, based on his answers to the plaintiff’s questions.
The plaintiff is given a separate period to appeal to the court . Employees often overlook this fact due to their legal ignorance and miss this deadline without any valid reason.
The period for filing claims for reinstatement is exactly one month from the moment a copy of the dismissal order was issued directly to the employee, but its expiration does not exclude the employer’s opportunity to file an objection to the fact that the plaintiff missed the deadline specified by law without reasons that can be considered valid.
The defendant must submit this application immediately before the trial .
As a result, the judge may refuse to consider the matter to the plaintiff without examining the factual circumstances relevant to the case, which is stipulated in paragraph. 2 hours 6 tbsp. 152 Code of Civil Procedure of the Russian Federation.
Performance
Having a good documentary evidence base, the employer can be sure that half the case is won. The matter remains only with the appearance in court, the effectiveness of which depends on the competent presentation of the facts presented .
When witnesses called by the plaintiff begin to recount the events of a particular day, it is appropriate to ask them for details, such as what the work area looked like and how the employee was dressed.
As a rule, such questions help to cast doubt on the reliability of the facts stated by the witness or indicate the bias of a particular witness.
For an experienced lawyer and a legally savvy employer, winning a case will not be difficult.
Sample response to a statement of claim to declare dismissal illegal.
Claim for reinstatement at work
A wrongfully dismissed employee should pay special attention to preparing a statement of claim.
This document must set out all the circumstances of the case related to the illegal dismissal, which reflected the illegality of the employer’s action.
In addition, special attention must be paid to the requirements that you state in court, since it is based on your requirements that the court will make a decision.
USEFUL: learn more about the rules for drawing up a statement of claim for reinstatement at work via the link and in the video
