Features and consequences of dismissing an employee retroactively

Is it possible to fire retroactively?

If we turn to the labor code, it is not possible to dismiss an employee retroactively; such dismissal is a direct violation of the employee’s rights, and therefore he has every right to go to court. However, there are situations that are specified separately in legislative acts.

For example, an employee is absent from his work month for quite a long time, or rather 6 months. The employer makes a decision on dismissal. How to fire an employee in this case? There is no need to dismiss for absenteeism in such a situation, due to the fact that the reason why the employee is absent for so long may be valid. And if the real circumstances of the employee’s absence are clarified, it is possible that he will have to be dismissed under another article. What should the employer do in this case:

• The first step is to issue a reprimand to the employee for systematically violating the terms of the employment contract;
• After this, the employer has the right not to accrue wages to such an employee;
• During the employee’s absence, the employer has the right to hire another employee by concluding a fixed-term agreement with him;
• Then the employer must apply to the court to declare the employee missing;
• By a court decision, an employee can be dismissed (83 Labor Code of the Russian Federation);
• If the employee is wanted and the reason for his absence is not valid, he is fired for absenteeism. The employee is fired from the moment he is reprimanded.

Legal requirements

The employer, who is afraid of subsequent litigation, is always responsible for dismissal in violation of the Labor Code. Therefore, each situation is considered in compliance with the requirements of labor legislation.

Among the reasons for the impossibility of the procedure:

1. Absence of a statement from the employee, written in his own hand and indicating the date.
2. Lack of signature on the pay slip and work log book with a date after two weeks of work.
3. Signature on the dismissal order.

Even dismissal by agreement of the parties can be challenged by the employee in court. In this case, the employer bears administrative responsibility and, based on a court decision, pays compensation to the employee.

Employer's liability

If an employee is dismissed retroactively, the employer faces liability for (5.27 Code of Administrative Offenses of the Russian Federation). Responsibility is provided due to the fact that the employer violated the wording of the entry in the employee’s employment record. The fine will be as follows:

• 1000 – 5000 rubles for an official;
• 1000 – 5000 rubles for an entrepreneur, and the court may impose a ban on carrying out activities for up to 3 months;
• 30,000 – 50,000 rubles for a legal entity, as well as a ban on conducting activities for up to 3 months.

In case of repeated violation, the employer also faces a ban on employment for 1 to 3 years.

Personnel nuances

It is impossible to formalize the termination of an employment contract according to legal norms, therefore, in fact, personnel employees make an illegal entry in the documents, which may subsequently become the reason for the termination of the agreement to be declared invalid.

In any case, an entry is made into the work book on the basis of an order signed by the manager.

Therefore, all other documents are dated by the date the order was signed; responsibility falls on the shoulders of the manager.

Can a pregnant woman be fired during her probationary period? Read our article. What are the rights of an employee upon dismissal? Find out here.

Is it permissible to fire the sole breadwinner in a large family? The answer is here.

What to do if you need to formalize your dismissal retroactively

Litigation for illegal dismissal lasts quite a long time and any company does not want to get involved in it. In this regard, employers try to issue it retroactively, but by agreement with the employee. Such dismissal has no actual justification from a legislative point of view, but companies often use it.

The disadvantage of such a dismissal is that the employer will always be found guilty of this dismissal. Of course, if the employee goes to court, but no one is immune from this. Therefore, it is worth finding the grounds that are provided for by law and terminating the contract with current dates, although this is a troublesome task. When going to court, the employer’s behavior may be considered as misleading a third party, since the actual date of dismissal is distorted.

Grounds for retroactive dismissal

• At the initiative of the employee. In this case, the employee writes a statement indicating the required date. The dismissal documents date from the same date;
• Agreement between employee and employer. In this case, not only the desired date of dismissal is indicated, but also the actual date of termination of work;
• Employer initiative. You can also fire an employee for absenteeism. To do this, it is necessary to record all absenteeism. It should be remembered that absenteeism is a gross violation of labor discipline, which leads to unilateral dismissal. The contract is terminated by the date on which the employee last visited his workplace. The corresponding wording should also be included in the labor contract. If the employer simply notifies the employee of the dismissal retroactively, then this is an offense that is grounds for going to court;
• Death of an employee. When the fact of death is established, the termination of the contract with the employee is formalized by an order indicating the actual date. In the employment record, the date of dismissal is indicated according to the actual date of death. The death certificate is indicated as the basis for termination of the contract.

Employee actions

In case of wrongful dismissal, an employee loses part of his salary and days of service.
In addition, the organization does not transfer contributions to social insurance funds and the tax office. A wrongfully dismissed employee has 30 days to challenge the violation of labor laws. In court, decisions are often made in favor of the employee and oblige the employer to pay him compensation and cancel the termination of the contract. Not everyone will be able to continue working with this attitude from management, so the employee can quit after working 2 weeks after submitting the application.

What date to retroactively dismiss?

Depending on the basis for the dismissal of the employee, the corresponding date is set retroactively:

• The employee’s desire is to put the same date on the work record as in the order;
• Agreement of the parties - the date agreed upon by the employee and the employer;
• Absenteeism – the date on which the employee worked for the last day is indicated, and it is necessary to refer to a gross violation of labor regulations;
• Death - the work record indicates the date when the employee died, with a death certificate indicated as the basis.

Backdated wrongful termination

If an employee was fired retroactively without legal grounds, then he has the right not to submit an application for dismissal and not to sign the corresponding order. First, you should contact the company’s trade union or labor dispute commission. If the employer does not want to comply with the instructions of these authorities, it is necessary to apply to the court. According to the court decision, the employee must be reinstated in his position, as well as paid the average salary for the entire period before the day of reinstatement. In addition, the court may order the employee to pay moral damages.

Important! You can challenge illegal dismissal only within one month. If the employee does not apply within the specified period, the court will refuse to consider the application.

As a rule, the courts side with the employee, since the very fact of retroactive dismissal is already a direct violation. Therefore, before deciding on this option of dismissal, the employer should assess all possible risks.

Summary

• Retroactive dismissal at will.
• I wrote a letter of resignation, but they retroactively transferred me to another military unit. what to do?
• I was forced to write a letter of resignation without explaining why and was fired retroactively.
• Can I write a resignation letter myself retroactively? I don't go to work for 3 days.
• Application for child support retroactively
• Letter of resignation number
• Fire retroactively
• Retrospective sick leave
• Apply for child support retroactively

Questions

1. Retroactive dismissal of one’s own free will.

1.1. So, what is next? What question? Will your employer agree to this or not? We do not know. According to the law, this certainly cannot be done.

2. I wrote a letter of resignation, but they retroactively transferred me to another military unit. what to do?

2.1. do not sign this report and insist on your own.

3. I was forced to write a letter of resignation without explaining why and was fired retroactively.

3.1. Hello. File a complaint with the labor inspectorate and the prosecutor's office.

4. Can I write a letter of resignation myself retroactively? I don't go to work for 3 days.

4.2. only with the consent of the RD. You must notify the RD 14 days before dismissal. You may be fired for absenteeism.

5. How can a police officer take sick leave retroactively? But so that it is official in order to avoid dismissal.

5.1. There is no way to take it in hindsight. Then the one who betrayed him will be fired.

6. I am on maternity leave. Child 1 year 4 months. The director closed his store and asks me to write a statement of ownership request for dismissals retroactively to 08/1/2019. The state will pay for the remaining 2 months. Is it so? Will I have time to complete the documents? I live in Yakutsk, and registered an individual entrepreneur in Moscow.

6.1. Hello Anna! If your employer has ceased operations, then you do not need to write any notice of resignation of your own free will; you are subject to dismissal at the initiative of the employer in connection with the termination of the activities of the individual entrepreneur, which you should have been warned about at least 2 months before the dismissal. At the same time, you can be fired before the expiration of this period only with your consent, subject to payment of compensation to you. In the event of dismissal during parental leave at the initiative of the employer upon termination of the individual entrepreneur's activities, child care benefits will be paid to you by the social security authorities. So, under no circumstances do you need to write any resignation letters. Let your individual entrepreneur warn you 2 months before dismissal and either pay you child care benefits all this time, or pay compensation upon dismissal before the expiration of the two-month notice period for dismissal. Article 180 of the Labor Code of the Russian Federation. Guarantees and compensation to employees in the event of liquidation of an organization, reduction in the number or staff of an organization's employees Employees are warned by the employer personally and against signature of the upcoming dismissal in connection with the liquidation of an organization, reduction in the number or staff of an organization's employees at least two months before dismissal. The employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the period specified in part two of this article, paying him additional compensation in the amount of the employee’s average earnings

, calculated in proportion to the time remaining before the expiration of the notice of dismissal.

7. Is this legal? The employer is forcing me to sign an addendum. agreement to reduce wages. I disagree with this and wrote a letter of resignation. But the employer (retroactively, 6 days later) insists on signing an additional agreement. agreements.

7.1. Hello! Don't sign any agreements.

7.2. Illegal, the agreement is an expression of the will of the two parties.

8. This is the situation: I work in a private enterprise. At the moment, she is pregnant and told the employer, thereby the employer asked to write a statement of her own for retroactive dismissal. Can I sue them?

8.1. You can. This is forced resignation. You can also write an application to the labor inspectorate (it won’t be superfluous) to conduct an inspection. And so, your question is resolved in court.

9. I wrote a dismissal report and 4 days before my dismissal, an internal audit was opened against me, the date of dismissal was postponed until the end of the audit. Is it legal to delay the date of dismissal under the guise of an internal audit? During the inspection, it was discovered that my job descriptions were missing; they forced me to sign them retroactively, threatening that otherwise they would extend them for another 30 days. I do not agree with the accusations and do not admit guilt, what should I do in the future - not sign the punishment order?

This is important to know: Application for voluntary dismissal to care for a child under 14 years of age

9.1. You don't have to sign the order. It is your right. They can be fired on the grounds specified in Art. 51 Federal Law On military duty and military service. I recommend challenging the disciplinary sanction.

9.2. The performance review has nothing to do with your dismissal. You must be fired strictly according to the Labor Code (80 Labor Code of the Russian Federation), and then let them carry out their inspection as much as they want.

9.3. There was no need to sign job descriptions retroactively. The absence of a signature on an order to impose disciplinary liability does not make this order illegal.

You have the right to appeal the order of disciplinary punishment to higher authorities, or to court in accordance with Art. 21 of the Federal Law of May 27, 1998 N 76-FZ (as amended on March 6, 2019) “On the status of military personnel”

9.4. Hello! If the dismissal report was written 1 month before the expected date of dismissal and you were not fired upon this date, in this case, by virtue of direct instructions in the law, you can stop performing your official duties, subject to the requirements of Part 7 of Art. 89 Federal Law of the Russian Federation dated November 30, 2011 No. 342-FZ “On service in the Department of Internal Affairs of the Russian Federation” (surrender weapons, property, documents, etc.). However, if in the report you indicated a different date of dismissal, less than a month later, then in this case the manager has the right to “postpone” the date of dismissal and dismiss you after a month from the date of writing the report (Article 84 of the Federal Law of the Russian Federation dated November 30, 2011 No. 342 -FZ). At the same time, it should be taken into account that if an internal audit is carried out in connection with your commission of an offense committed before writing the report, then, if there are grounds, upon completion of the internal audit you may be fired for other reasons, and not at the initiative of the employee. Your further actions depend on what exactly will be imputed based on the results of the inspection; familiarization with the order does not mean your agreement with it; from this date the period for appealing it begins to count (three months for punishment, one month for dismissal).

9.5. If you are a police officer, then you simply must notify your employer of your dismissal one month in advance; if an internal audit has been initiated, then go on sick leave, do not give any explanations, and upon returning from sick leave you will be fired on your initiative, since they will not have time to complete the audit since they give two days for explanations. Order of the Ministry of Internal Affairs of the Russian Federation of March 26, 2013 N 161 “On approval of the Procedure for conducting internal audits in bodies, organizations and divisions of the Ministry of Internal Affairs of the Russian Federation” (with amendments and additions) does not have the right to extend the monthly period of dismissal.

30.9. Invite the employee who is subject to an internal audit to give an explanation in writing (the recommended example of an explanation is the appendix to this Procedure) on the substance of the issue addressed to the relevant manager (supervisor). If, after two working days, the specified explanation is not provided by the employee in respect of whom the internal audit is being carried out, or if he refuses to give written explanations, draw up a corresponding act in the prescribed manner, signed by at least three employees. Federal Law of November 30, 2011 N 342-FZ (as amended on August 3, 2018) “On service in the internal affairs bodies of the Russian Federation and amendments to certain legislative acts of the Russian Federation” Article 84. Termination of the contract and dismissal from service in the internal affairs bodies on the initiative of an internal affairs officer

1. An employee of internal affairs bodies has the right to terminate a contract and resign from service in internal affairs bodies on his own initiative before the expiration of the contract, submitting a report on this in the prescribed manner one month before the date of dismissal. 2. Before the expiration of the notice period for termination of the contract and dismissal from service in the internal affairs bodies, an employee of the internal affairs bodies has the right to withdraw his report in writing at any time. In this case, the contract with the employee is not terminated and dismissal from service is not made unless another employee or citizen is invited to fill the position in the internal affairs bodies filled by this employee and (or) there are legal grounds for refusing such an employee or citizen appointment to this position.

9.6. Dear Elena, Ufa! In order to NOT make other mistakes in the future, I recommend that you seek on-the-spot legal advice from a qualified lawyer who will help you in your actions upon dismissal (Article 779 of the Civil Code of the Russian Federation).

Good luck to you Vladimir Nikolaevich Ufa 05/29/2019

9.7. You don't have to sign the order. It is your right. You will be fired on the grounds in Art. 51 Federal Law On military duty and military service. Challenge the disciplinary sanction according to Art. 21 Federal Law dated May 27, 1998 N 76-FZ (as amended on March 6, 2019) “On the status of military personnel” and sign the order with the note “I do not agree.”

10. My mother is a pensioner, she wrote a letter of resignation and the organization decided that she would work for 14 days, after working for 6 days she had a stroke and went to the hospital, will she be paid for sick leave or will she be fired retroactively, since she is a pensioner and should not was to work off?

10.1. There is no concept of working out upon dismissal of one's own free will; there is a notification procedure in accordance with Article 80 of the Labor Code of the Russian Federation. An employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, unless another period is established by this Code or other federal law. The specified period begins the next day after the employer receives the employee’s resignation letter.

By agreement between the employee and the employer, the employment contract can be terminated even before the expiration of the notice period for dismissal.

This is important to know: A shortage has been identified - the employee wrote a letter of resignation of his own free will

Payment of sick leave for an employee is a guarantee in accordance with the Labor Code of the Russian Federation, Article 183. Guarantees for an employee in case of temporary disability, the employer pays the employee benefits for temporary disability in accordance with federal laws. The amount of temporary disability benefits and the conditions for their payment are established by federal laws.

The dismissal of an employee on the basis of clause 3 of part 1 of Article 77 of the Labor Code of the Russian Federation occurs according to the date of dismissal specified in the resignation letter and dismissal order.