Labor Code of the Russian Federation. Illegal dismissal

Dismissal is not uncommon these days. And by no means is it always justified. There is also an illegal dismissal. According to popular statistics, every second is faced with it. But only every thirty turns to the appropriate structures in order to restore themselves in their rights. But all legal reasons for dismissal fit only in Art. 13 Labor Code of the Russian Federation. In the material we will consider the most widespread reasons for illegal dismissal, options for restoring an employee in his own rights.

The most common reasons

Of course, each situation of abuse by the employer of their rights is individual. We will consider the most widespread options for illegal dismissals.

Without sufficient grounds. All reasons for the dismissal of the worker at the request of the employer alone are specified in Art. 81 of the Labor Code. This is the liquidation of the organization, the discrepancy between the qualifications of the employee of his post, violation of labor discipline, etc. However, the fact of writing the reason in the work book to recognize the dismissal legal is not enough. The employer must prove its existence, provide an explanation of such a measure of disciplinary action.

Violation of the procedure. Dismissal is unlawful if it was carried out in an order that conflicts with the law. TC offers the following algorithm:

1. Documentary evidence of violation of labor discipline by an employee.
2. An explanation from the violator of the situation in writing.
3. Publication of the order for dismissal and familiarization with him by the employee himself against signature.
4. A full financial calculation with a former employee.
5. An entry in the labor indicating the reasons for dismissal and the article of the Labor Code of the Russian Federation, to which she refers.

If this procedure was also observed, it would still be illegal to dismiss an employee in such cases:

• The employer did not offer the former worker a new job (if any).
• Disciplinary proceedings occurred in violation of the law.
• The employer did not agree on his decision with the union (if the employee is a member of this organization).

Illegal dismissal from work - deprivation of the place of work of certain categories of citizens:

• Pregnant women.
• Single mothers.
• Single fathers in whose care children under 14 years old.

The exception here is only the complete liquidation of the organization. Even during restructuring, the employer is obliged to provide the employee from a special category with a new place of work.

The recognition of dismissal as illegal under the Labor Code will be relevant here:

• Reduction of the worker on vacation - regular or maternity.
• Dismissal of an employee on sick leave.

Imagine the following reasons for the illegal dismissal:

• Failure to comply with corporate ethics, dress code of the organization.
• Forcing a worker to write a letter of resignation of his own free will.
• Fictitious employee downsizing data.

Where to go to the employee?

Are you sure that you were fired illegally. What to do next? There are several ways to restore your rights under the Labor Code:

1. Appeal to the court.
2. Application to the labor inspectorate.
3. The lawsuit to the prosecutor.
4. Union assistance.

We consider each of the options separately.

Going to court

Appeal for illegal dismissal in court has both minuses and pluses. Let's look at all the advantages and disadvantages of this method.

If you have chosen this method for yourself, then according to Art. 392 TC, you need to file a claim no later than a month from the date of delivery of the work book or a copy of the dismissal order. Delay is allowed only for valid reasons.

Documents for the court

In the case of filing a lawsuit regarding the illegal dismissal from work, you need to submit the following documents to the judicial authority:

• Labor contract. It should indicate the real salary in order to accrue due compensation to you.
• Employment history. The document must contain information about your hiring and subsequent dismissal.
• Certificate of position, average monthly salary, qualifications, your description (as an employee).
• A copy of the orders - both on admission and on dismissal.
• Disciplinary document (if relevant).
• Evidence of false evidence by the employer.

All this for the court, the employer must provide you within five days. Otherwise, the fact of his evasion is indicated in the lawsuit.

Legal action

The statement of claim itself states the following:

• The name of the court.
• Details of the defendant and the plaintiff.
• The circumstances and reasons for your claim, which are specifically described, are systematized and detailed.
• Your requirements for the defendant.
• The list of attached documents.

Appeal to the State Labor Inspectorate

An application for unlawful dismissal can also be submitted to this authority. The table below shows the pros and cons of choosing this option.

It is worth contacting the labor inspectorate no later than 1 month from the day you receive the labor book in your hands. We recommend combining this with filing a lawsuit at the same time.

Appeal to the union

As we have already mentioned, it is not permissible to dismiss a member of this organization without the consent of the rest of its members. However, a union cannot protect you if you are not a member.

The organization should consider all complaints from illegally dismissed workers and redirect them to the State Labor Inspectorate.

Appeal to the prosecutor

This structure is authorized to accept applications from an employee dismissed illegally. The prosecutor’s office checks all the data submitted, if it finds a violation of the requirements of the Labor Code, it redirects the case to the judicial structure.

Recovery at work

If the court determines that the dismissal is illegal, it draws up a writ of execution. According to this paper, the employer must reinstate the employee in office no later than a day after the bailiffs receive the document.

Further, the case has such features:

• An order is being drawn up to annul the dismissal document with which the employee is introduced.
• The worker is informed of the date when he can begin work, again asked to provide a work book.
• The last entry in the document is marked as invalid, with the number of the court order. If desired, the book is replaced with a similar one with the restoration of all records (with the exception of illegal).
• Employees of the personnel department make appropriate corrections in the personal card of the worker, time sheet.

An illegally dismissed worker is reinstated in his former position with the same wage. The grounds for refusal cannot be the adoption of a new person for work, the reduction of this work place.

The employer's disobedience - refusal to reinstate an illegally dismissed worker - is punishable by a fine.

Implications for the employer

Illegal dismissal does not pass without a trace for the employer. Here is what he is required to do by court order:

• Reinstate the worker.
• Compensate him for absenteeism based on previous wages.
• Pay all legal costs, including and the plaintiff’s lawyer.
• Reimburse the employee for moral damage.
• Pay a fine for disobedience to the court (refusal to take an employee back to their previous position). Its limits are 1-50 thousand rubles, depending on the status of the employer. Or suspension of the organization for 90 days.

The Labor Code prescribes punishment for the employer for the illegal dismissal of a worker. The employee himself can restore his rights in several ways that we have made out.