Unlawful dismissal. How to punish your employer, take back yours or return to work

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Published: 05/13/2020

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The Labor Code and other regulations that regulate the scope of labor relations do not contain the concept of “dismissal”. Similarly, they do not have the concept of “illegal dismissal”. Any such situation is called termination of the employment relationship between the employee and the employer.

• What can be considered illegal dismissal and evidence of it
• What should an employee do? Complaint to the labor inspectorate
• When do you need to contact the prosecutor's office to restore your rights?
• Going to court
• Rules for drawing up a claim for reinstatement at work

Where can I go if I was fired wrongfully?

If the employer fails to comply with the law when terminating the employment contract, the employee has the right to defend his interests in any permitted way. No one will know about a violation of a citizen’s rights unless he or she declares it himself. To this end, he may:

• write a complaint about the company’s actions to the state. labor inspectorate (LIT);
• complain to the prosecutor's office;
• file a claim for illegal dismissal and submit it to the district court.

Each of these methods of protection has its own characteristics and rules of application that should be taken into account. At the same time, sending complaints to supervisory authorities does not subsequently deprive the right to initiate proceedings in court.

IMPORTANT!

You should not file a claim in court immediately along with complaints to supervisory authorities , since individual labor disputes are finally resolved only by a judicial act. At the same time, the State Tax Inspectorate does not have the right to issue orders in cases considered in court (Part 2 of Article 357 of the Labor Code of the Russian Federation).

Algorithm of actions for a dismissed employee

If a dismissed employee believes that his labor rights have been violated, he must follow the following procedure:

1. Submit a written complaint to your employer.
2. If there is no positive result, contact the labor inspectorate (Rostrud) and the prosecutor's office.
3. If there is no expected result from the actions of Rostrud employees and the prosecutor's office, you should go to court. Within one month from the date of dismissal, the dismissed employee must draw up and file a claim in the district court.

If the court makes a judicial decision declaring the dismissal of an employee illegal, then the employer must not only reinstate the employee in his previous position, but also pay him compensation established by Art. 234 and 394 of the Labor Code of the Russian Federation.

The success of a legal procedure to protect labor rights largely depends on how quickly the dismissed employee began to act. That is why he needs to immediately submit a written complaint to the relevant authorities listed above immediately after dismissal.

How to complain to the State Tax Inspectorate about illegal dismissal

In order to protect their labor rights in the event of termination of an employment contract carried out in violation, citizens can contact the labor inspection department.

A similar procedure includes the following stages (Federal Law dated May 2, 2006 No. 59-FZ):

1. Drawing up a complaint in any form indicating the following data:

• identification data of the state tax office to which you are sending the appeal;
• FULL NAME. and contact details of the applicant;
• essence of the appeal, incl. a list of violations that were committed;
• employer's name and address;
• date of writing and personal signature of the applicant.

IMPORTANT!

If the appeal does not contain the applicant’s contact information, a response will not be provided (Part 1, Article 11 of Law No. 59-FZ).

2. The application is submitted in person, by registered mail with notification or in the form of an electronic document.

3. The complaint is registered within 3 days and subsequently considered for no more than 30 days . Based on the request received, the State Tax Inspectorate must order an unscheduled inspection of the employer.

4. Based on the results of the inspection, a report is drawn up. In addition, if the violation is confirmed, the company issues an order to cancel the dismissal order.

5. After 30 days, the citizen is given a reasoned response to his appeal.

Further, using a direct link from our website, you can file free complaints to the labor inspectorate about illegal actions of the employer.

EXAMPLE OF COMPLAINT TO GIT

Consequences of illegal dismissal for the employee and employer

If the dismissal was actually carried out in disregard of the norms of the Labor Code of the Russian Federation, then it is the employer who should be afraid of the consequences, and not the former employee. But there are a few nuances:

• being late on deadlines deprives you of the opportunity to demand anything, even if the person is completely right;
• reinstatement to the same place is not always the best idea; the court is unlikely to simplify relations with superiors, and will also help with career advancement;
• the law allows you not to demand reinstatement at work, but to limit yourself only to a request for compensation; after reinstatement, you will have to quit under Art. 80 of the Labor Code of the Russian Federation, possibly with working out.

Most likely, even a simple appeal to the labor inspectorate will sober up the management, and the person will be accepted back and paid all the due amounts.

But even if a positive court decision is received, there are situations when the employee still ends up losing. Most often this happens to women who are on maternity leave or about to leave it. During parental leave, the company may be liquidated or cease operations. The search for an employer may not be successful, and there is simply no one to carry out the court decision. The worst thing is that the employee may not even have an idea about where her employment is and cannot get a job in another company.

How to file a complaint about wrongful dismissal with the prosecutor's office

If any violation of the law is detected, including those related to the termination of an employment contract, the employee has the right to contact the prosecutor's office.

The procedure in this case is as follows (order of the Prosecutor General's Office of Russia dated January 30, 2013 No. 45):

1. Drawing up an application - in writing with the obligatory indication of:

• the name of the prosecutor's office or official to whom the appeal is addressed;
• FULL NAME. and contact details of the applicant;
• the content of the complaint with a list of rights violated, in the opinion of the applicant;
• signature of the applicant and date of writing the application.

IMPORTANT!

If there is no contact information, as well as illegible text, the application may not be considered.

Download for free a sample application (complaint) to the prosecutor's office for illegal dismissal:
EXAMPLE OF COMPLAINT TO THE PROSECUTOR'S OFFICE FOR TERMINATION

2. Collect documents supporting the applicant’s arguments.

3. Submit the complaint and evidence to the prosecutor's office through:

• personal visit;
• by mail with notification or through the official website using the complaint form.

4. Received appeals are registered and sent to the prosecutor for investigation within 7 days . If necessary, the prosecutor checks the facts stated in the complaint, requests documents from the employer, and invites his representatives to give explanations.

5. The total period for consideration of the application should not exceed 30 days , and for cases whose resolution does not require additional verification - 15 days .

6. If violations are confirmed during the inspection, the employer is given an order to eliminate them and a case of administrative violation is initiated.

7. After the period for consideration of complaints has expired, a written response to the complaint must be given on the merits.

Employer's liability

According to Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, in case of illegal dismissal of an employee, the following fines are imposed on the employer:

• 1,000–5,000 rub. - for an employer - an official;
• 1,000–5,000 rub. — for individual entrepreneurs without forming a legal entity;
• 30,000–50,000 rub. - to a legal entity.

The imposition of fines is an administrative liability; it occurs regardless of what the court decides on the reinstatement of the employee. To hold the employer accountable, you need to contact Rostrud or the prosecutor's office.

Resolving a dispute regarding dismissal through court

For filing an application to the court for reinstatement and declaring the dismissal illegal, of one month from the date of delivery of a copy of the order to terminate the employment contract or work record book.

At the employee’s option, a claim for illegal dismissal can be filed in a district court (Article 29 of the Code of Civil Procedure of the Russian Federation):

• located in the territory of the employer’s activities;
• located in the place of residence of the plaintiff;
• operating in the territory where specific work is performed.

IMPORTANT!

In cases related to the consideration of labor disputes, there is no need .

The procedure for filing a claim includes the following steps:

1. Filling out a claim - indicating the name of the court, contact details of the plaintiff, information about the defendant company, a list of violations committed and requirements for the defendant, justification for the claims, a list of documents attached to the application.

Download a free lawsuit for illegal dismissal (example):

SAMPLE STATEMENT OF CLAIM TO COURT FOR RESTORATION OF WORK

2. Send a copy of the claim to the employer.

3. Attach all documents substantiating the plaintiff’s position to the application.

4. The claim is submitted to the court in person or by registered mail with notification.

5. A court date is set.

6. Conduct the required number of court hearings.

7. They make a decision on reinstatement, change the wording of the dismissal order, and pay for forced absence.

The total period for consideration of disputes regarding reinstatement at work is no more than 1 month , and for other labor disputes - no more than 2 months (Article 154 of the Code of Civil Procedure of the Russian Federation).

What to do if you are fired from your job not in accordance with the Law?

In case of illegal dismissal, you must first draw up a letter of claim and present it to your head of the organization (director). This letter must set out the circumstances indicating the illegal nature of the dismissal. In this case, it is necessary to provide links to the relevant articles of the Labor Code of the Russian Federation. The claim is drawn up in two copies. One of them must be sent to the employer, and the other must be kept for yourself.

If there is no positive response to the letter of claim from the employer, then the employee must go to court.

What documents are needed?

Before contacting the appropriate authorities after illegal dismissal, the employee must request the following package of documents from the employer:

• employment contract (agreement);
• dismissal order;
• employment history;
• The order of acceptance to work;
• a certificate indicating the position and profession of the dismissed employee;
• certificate of the average salary of the dismissed employee;
• personal description from the place of work;
• any written evidence confirming the fact of violation by the employer of the provisions of the Labor Code of the Russian Federation.

If within three working days after a written request the employer has not provided the requested documentation, then this fact must be indicated in the lawsuit.

The statement of claim must indicate a clause on requesting the necessary documents from the employer.

Where should I contact?

If no action is taken from the employer, then your written claims should be sent directly to the court. According to Art. 391 of the Labor Code of the Russian Federation, the court directly considers disputes regarding the employee’s demands for reinstatement at work, regardless of the grounds for termination of the employment contract, or for changing the date and wording of the reason for dismissal. In addition to the court, an employee can appeal to the following authorities:

1. Trade union. The trade union accepts requests (complaints) from illegally dismissed employees. If there are legal grounds, the trade union sends a written complaint to the state labor inspectorate.
2. Labor Dispute Commission. It is created within the organization itself and resolves disputes between the employer and employees. Small firms usually do not have such commissions, nor do they have trade unions.
3. State Labor Inspectorate. After accepting an official complaint, the labor inspector conducts an inspection within 10 days.
   The inspectorate may impose a fine on the employer and issue an order to eliminate violations. Some inspectorates issue orders to reinstate an employee to his position, but others indicate that this is the prerogative of exclusively the judicial authorities. It is better to clarify in advance, at an appointment with the inspector, what practice has developed in your region.
4. Prosecutor's office. The prosecutor may demand an unscheduled inspection of the employing organization, or go to court if the citizen cannot do this himself. Prosecutors also participate in cases of reinstatement, monitoring compliance with the law.
5. Court. If contacting the labor inspectorate and the prosecutor's office does not lead to the desired result, then you should directly contact the district court. It is important to consider that this must be done within one month from the date of dismissal. Therefore, it is better not to delay the decision to go to court for too long. You can skip all other authorities and immediately write and submit a statement of claim.

If the court makes a decision on this issue in favor of the plaintiff - the dismissed employee, then the execution of the court decision is monitored by FSSP bailiffs.

Bailiffs do not allow an unscrupulous employer to evade the obligation to reinstate and pay the employee due compensation.

In what cases can you contact a government agency?

A complaint is drawn up and submitted for consideration to a government agency in case of any violation of the rights and legitimate interests of an employee, including his illegal dismissal. And if there is a problem in an enterprise or organization regarding one employee or an entire team, it is worth solving it.

How to recover black wages from an employer?

Read here what to do if your employer forces you to work on weekends.

What to do if an employer threatens dismissal under the article, read the link:

First, it is advisable to contact the manager with a proposal to consider the request, and if there is no action on his part, to file a complaint with the appropriate authority.

Watch the video. Unlawful dismissal. Legal advice:

Employee actions

If an employer dismisses an employee on his own initiative, based on the provisions of Article 81 of the Labor Code of the Russian Federation, he can invite the employee to sign a statement of his own free will. In this case, proving the illegality and groundlessness of the dismissal will be problematic and often turns out to be unrealistic. In most cases, the court decides such disputes in favor of the employer.

In this case, the employee should receive a dismissal order, wait for the entry to be made in the work book, and only after that take measures to protect his own labor rights.

You can submit it in the following ways:

• Present it in person to the government agency.
• Send by mail.
• Submit a complaint online.

With the first point, everything is more or less clear - make a complaint, be sure to do so in two copies, on the second, be sure to put the date of sending, filing with the appeal authority. In addition, this copy must bear the signatures of the applicant and the receiving person. Next, wait for a response to your submitted request.

In this case, you should also remember that it is important to indicate in the application not only the address where the response to the appeal will be sent, but also the contact telephone number necessary for communication if additional questions arise.

Important! If you send a complaint by mail, it is also drawn up in two copies, one of which is sent to the addressee, and the second remains with the applicant. At the post office, fill out the mailing forms and send your request, always by registered mail.

Upon return of the notification of acceptance of the letter, you will have documents in your hands confirming that the complaint has been accepted for consideration. The main thing is to keep the shipping receipt - until the notification is returned to the applicant, it will be the one that will confirm the fact that the document was submitted to the government agency.

The easiest method to file a complaint with the labor inspectorate is to submit it via the Internet. To do this, just visit the official website of the government agency and select the “Online Reception” tab, after which you need to determine the topic of your personal appeal.

There is no special procedure or form for submitting an application to the public service, but if you want the application to be considered without any hitches, you should follow a number of rules.

What decision can be made on a complaint?

If the appeal is submitted in accordance with all the rules and regulations, it contains the necessary information about violations committed by the employer - it is considered within thirty days. Upon completion of the inspection, the applicant is notified by notice.

But sometimes an appeal for illegal dismissal may be left without consideration.

This is possible in the following cases:

• When the applicant did not indicate his personal data in the complaint or the information was unreliable.
• When the text of the appeal contains offensive expressions and profanity.

Please note! If the fact of an offense is established and confirmed, the labor inspectorate reacts as follows:

• The employer is given an order to urgently eliminate violations committed at the enterprise or organization.
• The inspector draws up a protocol on the administrative violation.
• The employee is suspended from work. At the same time, the entire staff of the enterprise can be suspended.
• Preparation of a package of materials to bring to justice the officials involved in the violation.
• Transfer of received data to other government structures and bodies - the judiciary, law enforcement agencies, and so on.

When violations of labor rights are serious, the materials and data collected are sent to the judicial authorities or the prosecutor's office. In this case, the documents are sent for subsequent consideration and a competent decision to initiate criminal proceedings against the perpetrators.

APPEAL Additions to the complaint dated July 26, 2012

By the decision of the Meshchansky District Court of Moscow in case No. 2?4465/2012 dated June 19, 2012, chaired by federal judge M.Yu.S. the claims related to illegal dismissal were rejected.

I do not agree with this court decision in full; I consider it made in violation and incorrect application of the norms of procedural and substantive law, incorrect determination of the circumstances relevant to the case, the court’s conclusions do not correspond to the circumstances of the case.

1. In its decision, the Court of First Instance ruled that the announcement of the reprimand by Order No. 12-lk O.A.A. dated September 21, 2011. for improper performance of labor duties by the Plaintiff was not disputed at the court hearing.

However, this contradicts the materials available in the case. Thus, the Plaintiff, in his Statement of Claim (page 2 pp.), challenges the legality of the penalty imposed on him dated September 21, 2011. This reprimand was imposed on the Plaintiff, allegedly for “...failure to fulfill instructions under Order No. TsA-2/4/127 dated 03.08.2011...”, however, the employer learned about the misconduct committed by the Plaintiff on 15.08.2011, this fact is confirmed by the Order imposing a disciplinary sanction dated 21.09.11 (pp. 47-48 pp.), as well as the Act dated 08.15.11 (page 172 pp.). These actions of the employer contradict the requirements of Art. 193 of the Labor Code of the Russian Federation, according to which disciplinary sanctions are applied no later than one month from the date of discovery of the offense. According to the same Order dated September 21, 2011, a second penalty was imposed on the Plaintiff for the same offense, namely “... to reduce the amount of the bonus for August 2011 by 100%,” which also contradicts Art. 193 of the Labor Code of the Russian Federation, because For each disciplinary offense, only one disciplinary sanction can be applied. However, the deprivation of the bonus in itself is illegal and contradicts the requirements of paragraph 4 of Art. 192, according to which the application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline is not permitted.

It must be pointed out that when penalties were imposed on the Plaintiff, the requirements of Art. 192 of the Labor Code of the Russian Federation, namely the presence of guilt in non-fulfillment or improper performance of labor duties. According to Order No. TsA-2/4/127 dated 08/03/2011, the Plaintiff, as well as the head of the TC department of the ASTU Department A.V.K. had to “Approve and submit to the Branch of OJSC SO UES the ODU Ts.” master plan work schedule…. Submit to the Branch of OJSC "SO UES" ODU Ts." summary information table on the progress of implementation of the Modernization Programs...". However, in the course of executing this order, it was necessary to request relevant information from the heads of the IT Departments of 11 (Eleven) Branches of OJSC "M", who, in turn, ignored this request. Neither the Plaintiff nor A.V.K. has any administrative powers. There were no branches in relation to the heads of IT departments, since the latter are significantly higher in position. As a result, it should be pointed out that the Plaintiff could not properly comply with the Order dated 08/03/2011. These facts are confirmed by the case materials, namely the Service Memo dated 08/19/2011 No. TsA/2/4-1/1000-sl (p. 184 l .d.), as well as Explanatory Note dated September 15, 2011 No. TsA/2/4-1/1148-sl (page 178 pp.). It should be noted that K.A.V., also appointed executor of the Order, was not brought to disciplinary liability, which indicates the discriminatory nature of the penalty imposed on the Plaintiff and violates the requirements of Art. 3 Labor Code of the Russian Federation.

Based on the above, I consider the Order dated September 21, 2011 illegal, unfounded and subject to cancellation.

1. In its decision, the Court of First Instance ruled that the Defendant had legal grounds for applying a disciplinary sanction to the Plaintiff in the form of dismissal by Order No. 25-lp dated January 24, 2012. This penalty was imposed on the Plaintiff for failure to perform work within the framework of the project “Development of a solution to expand the functional part of PAK ASTU”.

By order of December 16, 2010 No. 434-CA, the owner of the project “Development of solutions to expand the functional part of PAK STU” was appointed Deputy General Director for IT and Business Modeling L.D.Yu., and he was also assigned responsibilities for monitoring the implementation of the project ( p. 147 ld.), then these powers were assigned to D.A.V. The plaintiff was appointed project manager. In addition, the direct executors of the project included M.A.M. (page 150 pp.), who in 2011 was the direct manager of the Plaintiff and, according to the Project Passport, was responsible for 6 of the 11 stages of the project plan, while the Plaintiff was responsible for only 4 stages. In addition to the indicated persons, D.A.N. was responsible. – 6 stages and M.V.V. – 3 stages (pp. 152-154 pp.).

According to the Project Passport, by decision of the management, . However, by the decision of the Central Competition Commission of LLC "S." was recognized as an unscrupulous counterparty of the company for a period until the end of 2011. The defendant submitted to the case file an extract from the protocol, according to which the company was excluded from the lists of unscrupulous contractors, but the Plaintiff became aware of this fact only during the court hearing; such information was not provided during his work. As part of the adjustments to the IT Budget for 2011, the funds provided for the implementation of the Project Plan for technical support of PAK STU were sequestered, i.e. curtailed and directed to other purposes. This fact is confirmed by the Plaintiff’s Explanation dated January 12, 2012 (pp. 137-140 pp.). The order to withdraw funding from the project was given by the Plaintiff’s director, M.A.M. 05/11/2011, who was responsible for most of the stages of the project.

Based on the above, the Plaintiff’s finding guilty of failure to comply with the Project Passport is unfounded and, as a result, the Order of dismissal dated January 24, 2012 is illegal.

1. I also ask the Court to take into account that the Claimant was repeatedly pressured to force him to resign of his own free will. These facts were stated by him in a statement to the Labor Inspectorate. In addition, they are confirmed by the Act of August 15, 2011 (page 172 pp.).

Please take into account that the Plaintiff, in violation of Part 3 of Art. 68 of the Labor Code of the Russian Federation was not familiar with the internal labor regulations, job descriptions, other local regulations directly related to his work activities, or the collective agreement, which is confirmed by the Inspection Report of the State Labor Inspectorate in the city of Moscow dated November 11, 2011. Order dated 01/13/2010 No. 3-CA "O." improving the procedure for developing Regulations on structural divisions and Job descriptions" (case sheet 281-282) contains a seal impression for documents, made by blueprint, without the signature of the first person. Order dated March 23, 2010 No. TsA-11/239-r “On updating and making additions to the current Regulations on structural divisions and Job descriptions” (case file 283), the signature was made by blueprint. Order No. 215l dated 01.08.2011 - CA “On carrying out measures for the transition to a new organizational structure of the executive apparatus of OJSC “M.” (ld. 285-286) does not contain a signature. Order No. 326-CA dated November 16, 2011 “On improving procedures for the development of internal regulatory documentation of OJSC “M.” (ld. 287-288) does not contain the signature of the first person, there is a seal for documents; the seal impression was made by blueprint. Order dated August 16, 2011 No. 225-CA “On approval of instructions and forms of documents regulating documentation management, as well as indices of structural divisions of OJSC “M.” (ld. 408-411) does not contain the signature of the first person, there is a seal for documents; the seal impression was made by blueprint.

Thus, there are no grounds for the dismissal of the Plaintiff under clause 5, part 1 of Art. 81 Labor Code of the Russian Federation. Based on the above and guided by the requirements of Art. Art. 320, 328-330 Code of Civil Procedure of the Russian Federation,