In all countries, and ours is no exception, there are cases when the authorities make an unlawful decision to dismiss an employee or transfer him to another position. And the employee does not want to leave a cozy place at all. He really liked the work, especially since it was not far from home. Yes, and there was a terrible resentment from an unfair attitude on the part of the authorities. Illegal dismissal must be disputed without fail.
Every dismissed person who believes that they have been treated unfairly has the right to reinstatement. Knowing your rights is very important, and you need to fight for them, even in court. You can familiarize yourself with the rules of dismissal and what reasons exist for this in Chapter 13 of the Labor Code of the Russian Federation.
When termination can be considered illegal
In the event that the employee faithfully performed his work, did not skip work, did not come to work while intoxicated, did not steal anything and did not violate safety precautions, his dismissal would be considered illegal. Dismissal is also considered illegal if:
- the employee was not warned in advance, for example, about a reduction in the state enterprise;
- in case the indicated reason for dismissal does not correspond to reality and a completely different reason is indicated in the order;
- upon dismissal of an employee for the fact that he does not correspond to his position and does not cope with his duties, proper certification of the employee was not carried out;
- the employee is dismissed due to poor health, he is often sick and does not do his job, there is no medical commission that can confirm this;
- an employee was allegedly dismissed as a layoff, but in fact there is no reduction;
- the salary due to him has not been paid to the employee.
If the employee commits an official crime or some serious misconduct, the boss may offer him to resign on his own. In this case, he does you a favor and you must agree. But if the dismissal is illegal, and the boss offers to write a statement of his own free will, then you should know: you can’t write it, since then the court will not accept your claim for consideration.
However, if it is proved that such a statement was written under pressure and coercion, the judge should take into account and try to figure out the true reasons for the dismissal. Most employers make mistakes in the preparation of such documents.
Their illiteracy in legal subtleties and their reluctance to use the services of professional lawyers leads to the fact that it is easy for a competent lawyer to prove a violation of the employee’s rights and to require significant compensation in the form of payment of arrears for the period of forced employee downtime, as well as to demand payment for moral damage and for the services of a lawyer .
Complaint to the State Labor Inspectorate
When an employee is dismissed, he writes a statement. Often, employers are asked to write a letter of resignation of their own free will. If you think that the dismissal is illegal, then in no case do you need to write it. After the order of dismissal is issued, you can contact the labor inspectorate. This is done simply. A statement is written in which all the circumstances of the case are clearly indicated, without speculation and your judgments.
Your application must be reviewed within 15 days. The decision will be made on time if the employer too clearly violated the labor law. In case of difficulties encountered in considering the complaint, the case may be delayed, but this should not be allowed. After a month, it is no longer possible to file a lawsuit. So the choice is yours. Either go to court immediately, and it will be longer and more expensive, but more likely to return to your position and recover in the workplace, or first try to act through the state labor inspectorate. It will be much cheaper, but there are some nuances. The case may be delayed or dismissed, and service inspectors are not as professional as judges.
They have the right to conduct an administrative audit of the incident at the enterprise, review all documents and contracts, and familiarize themselves with the orders. Otherwise, namely, reinstatement in the workplace, payment of any cash and compensation, the inspector will still advise you to contact the district court. If, after the expiration of the set time period, no decision is made, then there is no more time to wait, an urgent need to file a lawsuit in court for illegal dismissal.
From the order of dismissal to the filing of a claim for reinstatement, there must be less than a month. Later, the matter is considered by the court only in case of emergency reasons for the delay. A lengthy examination of the case by the inspection for such a reason is not considered. You can first contact the labor inspectorate, and after 15 days immediately file a lawsuit in court, at the same time. Issues on reinstatement in judicial practice are considered within a month.
Advantages of going to court
The consideration of labor disputes in court has several advantages. They must be known in order to make the right decision whether to seek help or not. A lawsuit is being filed for reinstatement in court at the location of the enterprise. After filing the application, an executive judge is appointed, who listens to your claims and considers the evidence base. The trial takes place with a thorough study of all controversial issues, with the challenge and interrogation of all parties to the labor dispute.
The judge considers the grounds for dismissal of the employee on the initiative of the employer. Only in court can you tell in detail about the dismissal procedure, about all the violations committed by the employer during this period.
Another positive point to file a lawsuit. Illegal dismissal of an employee implies that the employer bears the associated costs. Based on article 393 of the Labor Code of the Russian Federation, the dismissed employee is completely exempt from paying state duty and court costs. Also, a pleasant moment will be the opportunity through the court to demand compensation from the employer for moral damage and compensation for the loss of wages for the entire period that the plaintiff did not work.
Cons of the trial
The only downside will be the length of the complaint. Especially if the contentious issue has little evidence. In case of gross violation of labor legislation, reinstatement to work in judicial practice is easier, less time is spent on clarifying the circumstances of the case. If there is no valid written evidence of violation by the employer of the rights of his employee, then the consideration of the case may be delayed.
But recently, judges have been trying to resolve such disputes about reinstatement at work faster, within a month. The process can drag out only in case of very contentious issues. If the evidence that the dismissal of an employee is unlawful is high, the case for reinstatement in court practice is considered much faster.
Preparation for going to court
Before applying for a reinstatement at work by a court decision, the employee must carefully prepare in advance. Usually they’re not dismissed sharply, but a person feels and understands that everything leads to this. At the time of dismissal, the employer is unlikely to want to meet you and issue all the necessary documents that a judge will require. When signing an employment contract, one copy must be in the hands of the employee.
The contract must indicate the salary that you will receive. If cash payments are not agreed there, but you need to take a certificate from the place of work about the salary for six months. The judge will need this if the employee wants to pay the debt.
It is advisable to try to talk with the head for the last time before submitting an application to the court, explain your reasons for not wanting to leave the workplace. You also need to warn him of your desire to go to court for restoration to work on the Labor Code of the Russian Federation. In the practice of labor disputes, there have been cases where the head did not want to check his company and study the documentation by judicial assistants, and accepted an amicable agreement to restore the employee to his former workplace. Even in such cases, the issue of debt payments was resolved.
What documents are required to go to court?
If, however, it was not possible to agree with the head and solve the problem of returning to the previous place of work, then you need to file a claim with the judicial authorities at the place of registration of the enterprise. Sometimes a case may be sent to the court at the place of residence of the plaintiff. When filing a claim, in addition to the application, the following documents must be submitted:
- work book (it should be recorded on the number of hiring and dismissal, with the numbers of orders);
- copy of the employment contract concluded upon admission to the given place of work;
- copies of orders with numbers (on hiring, on dismissal, on reprimands or penalties, if any);
- certificate of salary for the last six months.
You can also submit any documents that confirm that you worked at this enterprise. Each document on hand must be filed to the file. This is very important, as the employer can safely say that he sees you for the first time, and you did not work for him.
Individual labor disputes
According to article 391 of the Labor Code of the Russian Federation , any employee who considers his dismissal and transfer to a lower-paid position to be illegal may appeal to the court. He may, through a court of law, demand compensation for the period that he was forced to not work or received less salary. Workers who disagree with the wording of the reasons for their dismissal in the work book may sue.
Also, an employee of the enterprise may complain through a court to a boss who did not respect confidentiality when processing employee data. Issues of unlawful refusal of a person to be hired, discrimination of his rights on the basis of nationality, pregnancy, or the fact that a woman has a small child are considered.
When conducting the case, the court listens to different parties, looks at all the documents, and judicial assistants are sent to the company to check all the documentation. Also, if necessary, various professional experts, various witnesses who certify your work activity in this enterprise can be involved. The employee in this process is called the plaintiff, as he filed a lawsuit, and the head or private entrepreneur is considered the defendant.
Judgment
When filing a statement of claim, the employee plans that the decision to reinstate the court will satisfy his requirements. After a careful study of the case materials, the judge makes a reasoned decision, confirmed by labor law, indicating the chapters and articles of this code.
In the event that the plaintiff makes claims for compensation for pecuniary damage or other compensation, the amount of the due payment must be clearly indicated in the court decision. Since the court may last a long time, it was decided by law that compensation for a laid-off worker should not exceed a salary for six months. If the plaintiff demands additional payments, for example, payment of a lawyer or compensation for moral damages, this amount is also determined and clearly indicated by the judge. Since in case of an individual labor dispute the state duty is not levied on an employee, 50% tax is levied on additional payments at the request of the plaintiff.
When reinstating work in a court of law, a person has the right to demand compensation not only for the payment of legal profession to employees, but also for the suffering inflicted on him, physical and psychological. The degree of guilt of the defendant is also taken into account. But usually such compensation is small.
Procedure for restoration to work
If the consideration of labor disputes in court ends with a decision to reinstate the illegally dismissed employee, the employer must reinstate him in the same position on the same day. At the same time, the employee submits a court decision and writes a letter of reinstatement.
An order is issued for reinstatement at work by a court decision and is given for signature to the employee. After this, it is necessary to make an appropriate entry in the workbook: the entry under No. (the number of the record is put, it is in this workbook) is invalid, restored to previous work. But if an employee does not want to spoil his impeccable reputation with such an entry in the book, he has every right to demand that he be given a duplicate without corrections.
In the event that the employee was transferred to a lower-paid position, then with a positive decision of the judge, he must return to his former place of work. If the reason for the dismissal of the employee from work was incorrectly indicated, did the person suffer and could not get another job because of this? Through the court, he also received monetary compensation in the amount of his salary for six months. The court will also oblige the head to change the unwanted wording in the work book.
But after the court’s decision on reinstatement, judicial practice shows that not everything goes so smoothly. Usually, a person who has thus achieved his requirements at the old place of work is not very happy. The moral atmosphere is so heated, and the boss’s nit-picking becomes so critical that a person often then independently decides to quit and write a statement of his own free will. The employee must understand this, and after a court decision and receipt of monetary compensation, start looking for another job.
Redundancy reduction
When a staff reduction is planned at an enterprise, the manager, in accordance with the law, must abide by all the rules. To begin with, it is necessary to warn the employee about changes in his life in advance, namely two months in advance. During this time, a letter is also submitted to the employment service about the need for this period to provide a person with an appropriate place, according to his experience, experience and education.
Also, the boss may offer another position, if, of course, there are vacancies. The employer must pay compensation to the employee if the forced dismissal occurred prematurely. In case of non-compliance with these rules, there will be an illegal dismissal of reduction.
Categories of citizens who are illegally reduced
There are several categories of workers, which under the law in any case do not have the right to dismiss, let alone reduce:
- pregnant women;
- single mother with a young child in her arms (up to 14 years old) or raising a disabled child (up to 18 years old);
- mothers with a child under 3 years old;
- guardians of persons with disabilities under 18 years of age who are considered one working in the family;
- a father with a young child who is raising, but no mother;
- a father who is the only earner in the family with three young children;
- people who, at the time of reduction, are on planned leave or on leave at their own expense;
- people who are on sick leave at the time of reduction;
- if the employee with whom the contract was signed is not yet 18 years old, then he can be fired by agreement with the labor inspectorate or juvenile inspector.
In any case, upon dismissal, the employee must know his rights, be able to act professionally, defend himself if necessary in court. If the Labor Code is not respected in production and the lawlessness of the authorities reigns supreme, then the punishment must follow.
The labor collective must unite and protect the rights of employees. Unfortunately, in our country, trade union organizations do not have the same strength as in other states, and often workers cannot receive the necessary support. For this, there are judicial bodies. You can always file a lawsuit. Illegal dismissal must be punished.
Many are worried and afraid to handle, and such processes are very rare, however, as practice in other countries shows, you can always prove your case if you wish.