Statement of claim for reinstatement at work in court: sample 2021

An enterprise can dismiss an employee for a number of reasons - the desire of the employee himself, the agreement of the parties, at the initiative of the company with a corresponding entry in the labor record and indicating an article of the Labor Code of the Russian Federation. If an employee believes that he was fired in violation of the law, he can file a claim for reinstatement. Such claims are considered by the district or city court located at the address of registration of the enterprise (location of the workplace or place of residence of the employee).

ATTENTION : our labor dispute lawyer will help you draw up a statement of claim for reinstatement at work, challenge an illegal transfer to another job, and will also represent your interests in another dispute with the employer: professionally, on favorable terms and on time!!!

Dismissal from work

The general conditions and the procedure for dismissal at the initiative of the employer are contained in Chapter 13 of the Labor Code of the Russian Federation. It provides for a procedure requiring the employer to issue an order stating that the employee is considered dismissed from a specific date. An appropriate entry must be made in the work book with a mandatory indication of the reason for which the citizen is relieved of duty.

It should be noted that the overwhelming majority of people do not seek to challenge the dismissal order, even if they do not agree with the decision made. Most often, an employee competes for a position in cases where he is in the public service (for example, if there is little time left until his years of service, after which the right to a special pension is exercised), serves in law enforcement agencies, as well as in large private corporations, dismissal from which significantly affects further employment in the same field of activity.

Often, employers (both in private and public companies), assuming that their dismissal initiative can be challenged in court, offer to write a statement “of their own free will.” Based on practice, many citizens do just that.

You should be aware that if the wording is “dismissal at your own request,” it will be almost impossible to achieve reinstatement at work. It is usually impossible to provide evidence that such a step was forced; the statement is regarded as written voluntarily, which means there are no violations of labor laws.

Example No. 1 . Ponomarev A.V. reappeared at work drunk. The head of the employing organization did not take measures to register intoxication and sent Ponomarev home. The next day, the manager summoned the violator of labor discipline and forced him to write a letter of resignation of his own free will, which he did. Subsequently, Ponomarev A.V., who had never found a new job in his specialty, decided to reinstate himself in his previous place, for which he filed a lawsuit in the district court. The decision was in favor of the employer: the claim was denied for the reason that no evidence was presented of Ponomarev being forced to write a statement.

If, in the above example, Ponomarev did not obey his superiors, it would be impossible to fire him for a disciplinary offense (appearing at the workplace while drunk) because the employer did not take measures to record Ponomarev’s behavior. The report was not drawn up, there are no survey results, etc. In other words, it is impossible to confirm the drunken appearance of the employee that day; therefore, there were no grounds for dismissal “under the article”.

Compensation for illegal dismissal of an employee

To determine the amount of monetary compensation, you need to calculate all payments due during absence from the workplace, including vacation pay for this period. If the plaintiff has taken another, lower-paying job, he has the right to submit a formal request for compensation for the lost difference in income. And in case of problems with employment due to an incorrectly filled out work book, the dismissed employee has the right to demand payment of moral compensation.

If a situation arises when the employer refuses to pay compensation ordered by the court, the writ of execution is submitted to the FSSP. In this case, the defendant is given a deadline for payment. In case of delay, the bailiff has the right to seize funds in the company’s accounts and transfer them to the plaintiff.

Payment of monthly income for the period of forced absence is mandatory, even if the worker has renounced claims for reinstatement to his old job.

If a situation arises when the position to which the employee is being reinstated is already occupied or eliminated, the employer is obliged to offer a position equivalent to the previous one, or to remove the employee occupying this position. Elimination is possible only if the employee is legally reinstated and the employee being removed agrees to be transferred to another job. To resolve disputes about illegal dismissal from work, it is recommended to contact trusted legal organizations.

Pre-trial measures

From the day following the date of delivery of the dismissal order to the employee, it is necessary to take measures for reinstatement at work through the court within one month, and write a corresponding statement about this.

In addition, you can try to solve the problem without litigation.

One of these extrajudicial methods is to contact the state labor inspectorate with a complaint, which is considered strictly within 15 days . The Labor Inspectorate is a government body that oversees compliance with the Labor Code of the Russian Federation and resolves complaints related to violations of labor rights.

Contacting the state labor inspectorate does not require paying a fee or performing any special procedure for filing a complaint. The appeal is written to the inspectorate of the relevant region in free form (a sample can be found on the official website of the State Labor Inspectorate for a specific region). For violations of the Labor Code, the inspectorate has the right to bring the employer to administrative liability under Art. 5.27 Code of Administrative Offenses of the Russian Federation.

At the same time, the labor inspectorate is not authorized to recover losses caused by dismissal from the employer; this can only be done in court. Typically, the inspector helps the applicant in the event of a clear and undeniable violation of labor laws. In complex, confusing situations, the dispute is always resolved only in court.

Another important nuance when applying for help from the inspectorate is that the time allotted for consideration of the legal dispute is “eaten up”: the 15 days that the inspector will spend establishing the circumstances and making a decision are included in the 30-day period provided by law for filing an application to court. Taking into account all the weekends and holidays, and sometimes due to the long work of the postal service, the dismissed citizen has catastrophically little time left to meet the monthly deadline provided by law (hire a representative or lawyer, calculate the damage caused, draw up the text of the application, etc. .).

Taking into account all these circumstances, we recommend that if a citizen wants to achieve reinstatement at work, he immediately exercises the right to judicial protection.

Based on the results of the consideration of the dispute, the court has the right to reinstate the employee in his position, oblige the employer to pay an amount equal to the period of forced absences, as well as compensation for the expenses incurred by the plaintiff in connection with the dismissal. It is advisable to contact the inspectorate in other situations: non-payment of wages, incorrect calculation of length of service, etc.

Actions of an employee upon reinstatement at the enterprise

So, you have agreed that the reason for your dismissal is illegal. Your actions could be:

Creation of an enterprise labor commission
Filing a complaint to the State Tax Inspectorate
Going to court

Appealing the employer's decision by creating a labor commission of the enterprise is advisable in the event of mass dismissal of employees. Remember: the commission at the enterprise may not give you a positive result.

In this case, a complaint is filed with the Federal Labor Inspectorate (GIT). This authority conducts an inspection of the enterprise upon submission of the application. The inspection process determines whether the labor rights of all workers are respected, even if the complaint is isolated. As a result, situations arise, other violations are discovered, and the original complaint remains forgotten.

The State Tax Inspectorate considers the complaint within a month. In practice, claims for compensation often become the reason for the dismissal of a complaint. Therefore, recovery after illegal dismissal through the court is much faster and more effective.

Filing a claim: it is important not to miss the deadline

The claim is filed directly by the dismissed person or his representative by proxy in the court of the district in whose territory the legal address of the organization where the plaintiff worked is located. However, the law allows the plaintiff to choose: as an alternative jurisdiction, the court that relates to the residence address of the dismissed person can be chosen.

The claim can be filed, as we have already written, within one month from the date when:

the dismissed person was given a copy of the dismissal order;
a work book was handed over.

Question : What to do if the employee refused to receive a copy of the order, but subsequently decided to go to court to restore his labor rights?

In such situations, the month period is counted from the day when the act of the citizen’s refusal to receive a copy of the dismissal order was drawn up. Such an act must be drawn up by the manager himself or the personnel officer with the involvement of two other persons, and it is kept by the employer.

The law allows for the restoration of a missed deadline only for valid reasons. By the way, the period during which the employee’s complaint was considered by the labor inspectorate is not a valid reason sufficient to reinstate the deadline for filing a claim.

The most common reasons that the court recognizes as valid are:

illness of the plaintiff (it will be necessary to provide the court with medical documents confirming the diagnosis and duration of treatment);
illness of a close relative (parents, children, spouse, etc.). This means an illness that required care on the part of the plaintiff, as a result of which he missed the deadline for filing a claim. Confirmation can include both doctor’s recommendations, extracts from the medical history, and witness testimony;
business trip - this reason is quite rare, since after dismissal, which is expected to be contested, employment in serious work, the nature of which involves travel, is unlikely. And yet, if the plaintiff confirms that he is on a long work trip, the court will recognize this circumstance as a valid reason;
other reasons (extraordinary circumstances, force majeure, etc.).

It must be borne in mind that missing a deadline in itself does not make it impossible to file a claim for reinstatement at work. In other words, even if the judge notices that the month period from the date of dismissal has been missed, he cannot return the claim or leave it without consideration.

According to the explanations of the Supreme Court of the Russian Federation, only if the defendant declares a pass, then this will be grounds for leaving the claim without satisfaction. If the defendant does not make such a statement, the decision may well be in favor of the dismissed person, if there are significant violations of labor legislation upon dismissal.

Question : When can a defendant claim a missed deadline for filing a claim for reinstatement?

Such a statement can take place both at a preliminary hearing (through oral or written objections containing an indication that the month period has passed), and at a court hearing, after the case has been scheduled for hearing. In the first case, already at the preparation stage, the court can immediately make a decision to refuse to satisfy the claim if it does not find valid reasons for restoring the one-month period, and no proceedings are carried out. If the employer noticed that the deadline for filing the application was missed and stated this already at the court hearing, the judge is obliged to consider the case on its merits.

You can request restoration of the missed deadline for filing a claim either in the statement of claim itself or in a separate petition:

To the Leninsky District Court of Kirov

According to the claim of Lobanov E.P. to the Municipal Budgetary Institution Secondary School No. 34 of Kirov on recognizing the dismissal as illegal, reinstatement and payment of compensation for forced absence

Plaintiff: Lobanov E.P., living in Kirov, st. Denisova, 2, apt. 3 Tel. 8910101010

Defendant: MBU Secondary School No. 34, Kirov, st. Morskaya, 1A, Kirov

MOTION for restoration of the missed deadline for filing a statement of claim

I ask you to restore the deadline for filing an application for reinstatement at work, sent by me on June 21, 2020 to the Leninsky District Court of Kirov, on the following grounds.

From 06/01/2006 to 03/01/2020 I held the position of senior security guard at MBU Secondary School No. 34 in Kirov, 03/02/2020 school director E.N. Prigorodova. issued an order for my dismissal for absenteeism. A copy of the order was issued to me against signature on 03/04/2020, but from 03/05/3018 to 06/05/2020 I was in St. Petersburg, caring for my cancer-stricken mother Ksenia Petrovna Lobanova, who died on 06/06/2020. From 06/07/2020 to 06/18/2020 I was organizing funerals and memorials.

During the preparatory meeting, a representative of MBU Secondary School No. 34 announced that I missed the deadline provided for filing an application to the court, with which I do not agree and ask you to take into account the above-mentioned personal circumstances.

Based on Art. 392 of the Labor Code of the Russian Federation,

ASK:

Recognize the reason for missing the deadline for filing a petition with the court to declare the dismissal illegal and to reinstate the senior security guard at MBU Secondary School No. 34 in Kirov as valid.

Restore the deadline for filing an application and count it from 06/19/2020.

Application:

a copy of the death certificate of Lobanova K.S.;
certified extract from the medical history of Lobanova K.S.;
copy of birth certificate of Lobanov E.P. (it indicates the relationship between K.S. Lobanova and the plaintiff);
extract from the house register at the address St. Petersburg, st. Dneprovskaya, 1;
copies of air tickets addressed to E.P. Lobanov. along the route Kirov - St. Petersburg - Kirov.

Lobanov E.P., 06.22.2020

Based on the results of consideration of the issue of restoring the missed deadline, the judge issues a ruling, which can be appealed separately from the decision by both parties.

If you intend to restore the missed deadline, it is useful to know the most typical situations from judicial practice in labor disputes during dismissal:

1. The deadline for filing an application is calculated not from the date of familiarization with the order, but from the date of receipt of a copy of the order.

Example No. 2 . Mironova P.N. was dismissed on 04/01/2020 at the initiative of the employer. She was familiarized with the order on 04/02/2020, but a copy was given to her only on 06/01/2020. Mironova went to court on June 6, 2020, and the defendant employer stated that she had missed a month’s deadline. The court sided with the plaintiff, since she correctly calculated the period from the date of delivery of a copy of the order to her.

2. The deadline will not be restored when the original requirements have changed - the countdown will run from the moment the order is served until the application for reinstatement is submitted.

Example No. 3 . As is known, labor disputes (except for dismissal) can be resolved within three months after the employee’s labor rights have been violated. For example, if you were fired on September 30, 2017, and were given a copy of the order on the same day, then before the new year you can file a statement of disagreement and the wording of the dismissal, the amount of benefits paid, etc. So, Lebedeva R.P. On November 20, 2020, she filed an application with the district court stating that she did not agree with the wording “for disciplinary action,” considering it necessary to indicate “at her own request.” In December 2021, Lebedeva considered it possible to change the requirements and submitted a written clarification - now she asked the court to reinstate her at work and declare the very fact of dismissal illegal. Her claim was denied because the defendant stated that he had missed a month's deadline. Subsequently, Lebedeva’s complaints against this decision were rejected by higher authorities.

In this case, we see that Lebedeva proceeded from the fact that at first there were other requirements regarding the violation of her labor rights, therefore, in her opinion, the general rule of a month did not apply here. At the same time, regardless of whether the requirements changed or the question of reinstatement was initially raised, the one-month period begins to run from October 1, 2020, that is, from the next day after receiving a copy of the order.

3. The time that is used by the plaintiff to resolve the dispute about dismissal peacefully does not provide grounds for recognizing the missed period of a month to go to court as valid.

Example No. 4 . Nekrasov K.G. was fired from the plant on June 16, 2020. For two months, he tried to reinstate himself at the enterprise “in his own way,” through friends. Having failed to achieve his goal, in September 2021 he went to court with a statement to declare the dismissal illegal and reinstated as a foreman. The court rejected Nekrasov due to missing the deadline, since attempts to solve the problem peacefully cannot be regarded as grounds for reinstating the deadline for filing an application.

When and where to complain

According to the law, an employee whose rights have been violated has the right to appeal to the prosecutor’s office, the labor inspectorate, or the court. If the first two instances have not resolved the issue of violation of rights, you should write an appeal to the court yourself or with the help of legal advisers. Although this is allowed to be done before officials take action against the employer.

IMPORTANT!

Remember that Part 1 of Article 392 of the Labor Code of the Russian Federation limits the period for filing an application for reinstatement at work, and it is no more than 1 month from the day when the employee was given a copy of the dismissal order, issued a work book, or from the day when he refused receiving these documents.

According to the decision of the judges, the deadline for filing a claim for reinstatement at work is sometimes extended, but provided that the plaintiff had valid reasons for missing it, for example, the person was sick.

As stated in the resolution of the plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, an application for the restoration of labor rights should be submitted to the district court, based on Article 24 of the Code of Civil Procedure of the Russian Federation. Speaking about jurisdiction, we note that according to Article 28 of the Code of Civil Procedure of the Russian Federation, a claim against an organization is filed at the location of the defendant (address specified during registration). But at the same time, clause 6.3 of Article 29 of the Code of Civil Procedure of the Russian Federation is also in effect, allowing a person whose rights have been violated to submit an application for reinstatement and compensation for damage to the court at the place of residence.

The claim may be sent by mail or brought directly to the court. The court websites provide a schedule for accepting documents. There are also sample documents available for downloading. The legislation does not specify whether to fill them out yourself, if the person knows how to write an application for reinstatement, or to involve lawyers. This issue is resolved by the injured employee.

IMPORTANT!

In connection with the threat of the spread of coronavirus, a resolution was issued by the Presidium of the Supreme Court of the Russian Federation and the Presidium of the Council of Judges of the Russian Federation dated March 18, 2020, which suspended the admission of citizens to the courts. All documents until April 10 are accepted in the form of mail or electronic papers. At the same time, a restriction on the consideration of cases is being introduced: temporarily, judges will only have cases of an urgent nature to work on.

How to write a claim

To file a claim, you can seek help from lawyers (the costs of which, if the decision is in your favor, can be recovered from the employer). For those who wish to print their own application, we suggest that you familiarize yourself with the general requirements:

At the top right should be the name of the court where you are filing your application. This is usually the district court where the employer is located.
You must provide your full details (full name, place of residence, work, telephone).
Next, information about the defendant-employer must be provided. Here it is important to correctly write the name of the organization from which you were fired - there may be multiple abbreviations, it is better to decipher them.
The application itself must reflect the events that preceded the dismissal, as well as correctly indicate the position from which you had to resign, name the correct dates of the order, and delivery of a copy of this order to you. The grounds for dismissal must be written in the same wording that is entered in the work book or that is written in the dismissal order. Next, you should give in detail, referring to the norms of the Labor Code, the reasons why you do not agree with the very fact of your dismissal and/or with the wording. The violations that will be reflected in the application will be grounds for reinstatement if the court really agrees with your arguments. If the claim contains a claim for compensation for forced absence, you need to justify the amount, write the period that you took into account and the average earnings calculated for the time preceding dismissal from the position. If the claim is for compensation for moral damage, it is necessary to indicate how the plaintiff’s moral suffering was expressed and at what amount this claim is estimated.
At the end of the application (usually after the words “based on the above, guided by the articles of the Code of Civil Procedure of the Russian Federation, the Labor Code of the Russian Federation”), the plaintiff must indicate a specific request - how, in the opinion of the dismissed employee, the dispute should be resolved: reinstatement, payment of severance pay, change the grounds for dismissal and, therefore, an entry in the work book, etc.
After the request, you should indicate in a list those documents that the plaintiff sends to the court to substantiate his position in the case.

Samples of a statement of claim for reinstatement at work

Since the grounds for dismissal may be different, and each of them can be challenged, we offer the reader several options for writing a claim:

To the Leninsky District Court of Kirov

Plaintiff: Lobanov E.P., living in Kirov, st. Denisova, 2, apt. 3 Tel. 8910101010

Defendant: MBU Secondary School No. 34, Kirov, st. Morskaya, 1A, Kirov

Cost of claim: 156,049 rubles

CLAIM FOR RESTORATION TO WORK

From 06/01/2006 to 03/01/2020 I held the position of senior security guard at Municipal Budgetary Institution Secondary School No. 34 in Kirov. 03/02/2020 school director E.N. Prigorodova issued an order for my dismissal for absenteeism. A copy of the order was issued to me against signature on 03/04/2020.

I do not agree with this wording and with the dismissal itself, since the actions of director E.N. Prigorodova do not correspond to the actual circumstances.

Thus, the conclusion of the internal audit reflects that I was absent from work for more than 4 hours on 03/01/2020, namely from 9:00 to 17:00, in this regard, Prigorodova E.N. in the presence of other persons, a corresponding act was drawn up, on the basis of which an order was issued for my dismissal, on the basis provided for in clause “a”, clause 6, part 1, art. 81 Labor Code of the Russian Federation.

At the same time, Prigogorodova E.N. It was not taken into account that on 02/15/2020 I was on duty with her consent for E.N. Efremov, who was supposed to join the service according to the approved schedule, but could not appear due to personal circumstances. With Deputy Director V.A. Konina An agreement was reached that on 03/01/2020 E.N. Efremov would be on duty for me, indicated in the schedule.

It’s my fault that Konina V.A. transferred to another school on 02/18/2020 and did not notify the director of MBU Secondary School No. 34 that there were no changes to be made to the duty schedule. For many years I have been conscientious in my duties, have no bad habits and have been repeatedly encouraged by management. My absence from work on 03/01/2020 is related only to changes in the duty schedule, so it cannot be considered absenteeism.

The employer grossly violated the dismissal procedure provided for in Article 193 of the Labor Code of the Russian Federation: no explanation was taken from me. In addition, the employer did not take into account the long-term impeccable service in the specified position and the absence of disciplinary sanctions.

More than three months have passed since the date of dismissal, which in my opinion was illegal, and in this regard I need to pay the average salary for forced absence from 03/03/2020 to 06/21/2020, which is 56,049 rubles (I attach the calculation). In addition, I experienced moral suffering, since I still cannot find a decent job due to the reasons indicated in the work book. In this regard, I insist on collecting compensation for moral damage in the amount of 100,000 rubles.

Based on the above, guided by Art. Art. 131-132 Code of Civil Procedure of the Russian Federation, art. 391 of the Labor Code of the Russian Federation,

ASK:

Recognize the dismissal as illegal.
Reinstate me as a senior security guard at Municipal Budgetary Institution Secondary School No. 34 in Kirov.
To recover from the Municipal Budgetary Institution Secondary School No. 34 of the city of Kirov the average earnings for forced absence for the period from 03.03.2020 to 21.06.2020 in the amount of 560,494 rubles.
To recover in my favor compensation for moral damage caused to me by unlawful dismissal in the amount of 100,000 rubles.
Call and question witnesses:
Konina A.V., living at the address: Kirov, st. Rechnaya, 29, apt. 30, phone 89162625437.

Application:

a copy of the statement of claim;
a copy of the dismissal order dated 03/02/2020;
a copy of the job description of the security guard at MBU Secondary School No. 34 in Kirva;
a copy of the duty schedule;
a copy of the work book;
calculation.

Plaintiff E.P. Lobanov, signature, 06/21/2020

Often, citizens apply to the court for reinstatement at work after they were fired due to a reduction in position or liquidation of an enterprise. In such cases, the reduction procedure itself may be considered inconsistent with the law, which provides grounds for reinstating the dismissed employee:

To the Nemirovsky District Court of Tula

Plaintiff: Borisova Oksana Petrovna, living at the address: Tula, st. Teatralnaya, 50, apt. 90, tel. 8915255252

Defendant: Realmontazh LLC, legal address: Tula, st. Aviatsionnaya, 1, letter A. Tel/fax (4872)645353

Cost of claim: 74,000 rubles.

CLAIM FOR RESTORATION TO WORK

Since 09.09.2017, I have worked at Realmontazh LLC as a chief advertising specialist, which is confirmed by appointment order No. 13 dated 09.08.2017. By order dated June 15, 2020, I was dismissed on the basis of clause 1, part 1, art. 81 of the Labor Code of the Russian Federation - due to a reduction in the number of employees of Realmontazh LLC.

I consider my dismissal illegal due to the fact that my labor rights were violated:

I was notified of the reduction in the number of employees of the organization only on 06/01/2020, as evidenced by my signature in receipt of the written notification. Thus, the employer violated the requirements of Part 2 of Art. 180 TK.
I was not offered another vacancy, while they were available, thereby the employer violated the requirements of Part 1 of Art. 180, part 3 art. 81 Labor Code of the Russian Federation.
Since I was fired before the expiration of two months from the date of notification of the reduction in the number of employees, the employer, in violation of Part 3 of Art. 180 of the Labor Code of the Russian Federation, did not pay me an amount equal to average earnings.
The employer did not take into account the fact that at the time the dismissal order was issued I was under treatment, as evidenced by the certificate of incapacity for work for the period from 06/07/2020 to 06/18/2020.

Within the meaning of Article 234 of the Labor Code of the Russian Federation, an illegally dismissed employee is entitled to compensation for earnings not received during forced absence.

According to the order of appointment to the position of chief advertising specialist dated 09/08/2017, my salary is 30,500 rubles, the average earnings from the date of appointment to the position until dismissal is 38,000 rubles. Accordingly, the lost earnings during the forced absence amounted to 74,000 rubles.

Based on the above, guided by art. 131-132 Code of Civil Procedure of the Russian Federation, Art. Art. 234, 237, 394 of the Labor Code of the Russian Federation,

ASK:

Reinstate me as the chief advertising specialist at Realmontazh LLC.
Recognize the dismissal order dated June 15, 2020 as illegal.
To recover 74,000 rubles from the defendant in my favor.

Applications:

A copy of the statement of claim.
A copy of the order for appointment to the position of chief advertising specialist dated 09/08/2017.
A copy of the dismissal order dated June 15, 2020.
Calculation of average earnings.
Notice of reduction in the number of employees at Realmontazh.
A copy of the certificate of incapacity for work.

Borisova O.P., 08/15/2020, signature.

Dismissal can also be challenged on other grounds - for example, due to unjustified disciplinary action:

In the Zavodskoy District Court of Petrozavodsk

Plaintiff: Pavlov M.R., living at the address: Petrozavodsk, st. Malinina, 12, apt. 37. Tel. 8935352525

Defendant: Production Association LLC, st. Technical, no. 90, letter B Tel/fax (8142)645382

Cost of claim: 23,000 rubles

CLAIM FOR RESTORATION TO WORK

I held the position of foreman at Production Association LLC from 01/01/2010, on the basis of employment order No. 50 dated 12/31/2009. Dismissed by order dated June 28, 2020 in accordance with clause “b”, clause 6, part 1, art. 81 of the Labor Code of the Russian Federation - for appearing at the workplace while drunk.

I do not agree with the dismissal, since there is no evidence of my state of intoxication.

So, on June 27, 2020, I was at my workplace from 8 am in a sober state, as evidenced by the note in the logs of production passes and medical clearance to work. At 12 o'clock, foreman Potemkin V.N. invited me to his office and stated that I was intoxicated, since it seemed to him on the video broadcast of the production hall that my movements were chaotic and evidence of inadequacy. I agreed to the offer to go for an examination to a drug treatment clinic, but for some reason Potemkin drew up an act of my refusal and brought in P.L. Smirnov’s employees as witnesses. and E.N. Mishkina, who signed the act.

Since I did not drink alcohol that day, I consider the order of disciplinary action in the form of dismissal on the basis of clause “b”, clause 6, part 1, art. 81 of the Labor Code of the Russian Federation does not correspond to the actual circumstances, therefore, illegal.

In addition, in violation of the requirements of Art. 193 of the Labor Code of the Russian Federation, I was given an order for disciplinary action in the form of dismissal only on 07/07/2020, that is, the three-day period established by law was not observed.

During my forced absence, I am entitled to payment of average earnings, which at the time of dismissal was 23,000 rubles.

Thus, guided by Art. 131-132 Code of Civil Procedure of the Russian Federation, art. 394 Labor Code of the Russian Federation,

ASK:

Recognize the order to apply disciplinary action in the form of dismissal as illegal.
Reinstate me as a foreman at Production Association LLC.
To recover from Production Association LLC an average salary of 23,000 rubles for the period of forced absenteeism caused by illegal dismissal.

Application:

a copy of the statement of claim;
a copy of the employment order dated 01/01/2010;
a copy of the order imposing a disciplinary sanction in the form of dismissal dated June 28, 2020;
a copy of the report on the employee being drunk at the workplace;
calculation of average earnings.

Pavlov M.R., signature, 07.29.2020.

Grounds for application

You can file a claim in court only if the employer violated the requirements of the Labor Code upon dismissal. Dismissal will be considered illegal even if the employee was dismissed on legal grounds, but the employer did not comply with the dismissal procedure.

An example is the following case: an employee constantly violated labor discipline, and the employer fired him for this. But he formalized his dismissal at a time when the employee was on sick leave.

Or the person was dismissed without warning due to reduction. Therefore, even legal dismissal may become the basis for filing a claim for restoration of violated labor rights.

Trial on a claim for reinstatement

It is necessary to understand that all the data you provide in the claim cannot be unfounded; they must be confirmed in court. The consideration of a claim of this nature takes place with the mandatory participation of a prosecutor, who gives an opinion on the case and has the right, like other participants in the process, to ask the parties questions and make motions.

The court hearing on reinstatement takes place in the following order:

After the claim is received by the district court, within five days, a ruling is made to schedule the preparation of a court hearing, where the parties can submit additional documents, clarify the requirements, and even end the litigation with a settlement agreement.
Next, the judge schedules the case for hearing and summons all persons whose appearance, based on the nature of the claim, is deemed necessary. Usually these are the parties (plaintiff and defendant or their representatives by proxy), prosecutor, witnesses, expert, etc. The period for consideration by the court of an application for reinstatement at work is 1 month (in other cases - 2 months). In most cases, this period is observed, but in cases of particular complexity it can be extended.
At the beginning of the meeting, the judge announces what case is being heard, checks the attendance of summoned persons, and decides on the possibility of continuing the process if someone does not come.
The explanations of the parties are listened to - at this stage it is important to present your evidence correctly, for this you need to wisely choose a certain tactic and follow it. If the defendant filed objections to the claim, you can find out from them what the employer’s position is based on and what arguments he will present at the court hearing.
At the end of the proceedings, the court examines the case materials. You can submit petitions and attach additional written evidence at any stage.
After this, the judge retires to the deliberation room, returning from which he announces the operative part of the decision. The full text must be produced within 5 days.
The parties and the prosecutor have the right to appeal for one month from the date of production of the full decision.

Judicial practice, difficult situations

Representatives of Themis, when considering cases of reinstatement, take into account rich judicial practice. Thanks to this, they are able to quickly resolve difficult issues and make objective decisions. In almost 30% of cases, the case ends with filing a claim with the cassation authority. 8 out of 10 decisions made remain unchanged, which indicates the correctness of the initial conclusions of Themis.

Representatives of the judiciary, as a rule, take the side of workers. In this case, the situations depend on the features:

Liquidation of the employer. When reinstating an employee, the Femida requires the liquidation commission to pay average earnings for the entire period of absenteeism. At the same time, the employee is recognized as dismissed due to liquidation.
Expiration of the employment agreement. If at the time of the dispute the contract between the employer and the employee has expired, the court changes the date of dismissal and its grounds due to the expiration of the agreement. In this case, it will not be possible to return to work.
The employee was reinstated, but the company has problems (work has stopped). In such circumstances, the entire restoration process still goes through with cancellation of the order, correction in the report card, etc.
Hiring another person for a position. In this case, the newly hired person leaves with a written offer of another position (in writing). The “old” employee returns to his previous position.

It happens that an employee has been reinstated, but his position no longer exists. Such situations often occur in practice. The employer is obliged to return the position and allow the person to perform his duties.

Execution of a court decision

If the court decides that the dismissal does not comply with the law, the execution of the decision on reinstatement must be immediate; there is no need to wait for it to enter into legal force:

the plaintiff has the right to obtain from the judge an extract from the decision, even if it is not prepared in full;
The extract provided to the employer obliges him to immediately issue an order to cancel the dismissal order. If the employer was present when the operative part of the decision was announced and knows that the dismissal was declared illegal, it is not necessary to provide him with an extract;
When reading the issued order, the employee must put his confirming signature; in case of refusal to sign, a report is drawn up to this effect. From this or the next day (depending on when the order was drawn up and what is written in it), the employee will already begin his duties, otherwise absenteeism may be indicated - a new basis for re-dismissal;
the employer must make a note in the work book about the invalidity of the dismissal record. At the same time, the employee has the right to contact the employer with an application for a copy of the work book, which will not contain a notice of dismissal;
a change must be made to the working time sheet - a special mark is placed on forced absenteeism for the period determined by the court;
the employee is actually allowed to work; he cannot be prevented from doing so. If another citizen has already been hired in his place, he is subject to dismissal on the basis of clause 2, part 1, art. 81 of the Labor Code of the Russian Federation with an offer of another vacancy;
If the employer ignores the court decision, it is necessary to contact the bailiffs with an application for forced execution.

Responsibility of the employer for failure to comply with the requirements for reinstatement of the employee

If, from the moment of receiving a copy of the bailiff’s decision, within one day the employer does not comply with the court decision to reinstate the dismissed employee, he is obligated to pay an enforcement fee. The bailiff issues a resolution to collect the enforcement fee and sets a new deadline for the debtor to execute the court decision. If the requirements are not fulfilled within the newly established deadline, the bailiff draws up a protocol on the administrative offense against the debtor and again sets a deadline for fulfilling the requirements. In case of failure to comply with legal requirements, the fine for the organization can be up to 70,000 rubles.

Important! The enforcement fee is returned to the debtor in full if canceled:
a judicial act or other document on the basis of which the executive document was issued;
directly the executive document;
resolution of the bailiff to collect the enforcement fee.