Disputes between employers and their employees are commonplace in courts of general jurisdiction. As a rule, employees go to court more often to defend the rights violated by the employer. In this review judicial practice disputes about illegal dismissal are presented.

1. Dismissing a store employee for loss of trust is legal

If the activities of an employee of an organization are related to the maintenance and storage of commodity and monetary values, especially if he holds the position of deputy store director, the employer has the right to dismiss him for loss of confidence. So decided the St. Petersburg City Court.

The essence of the dispute

The citizen worked as an acting deputy store manager in commercial organization. She was dismissed from her position on the basis of paragraph 7 of part 1, with the wording - "due to loss of confidence." The citizen did not agree with the very fact of the dismissal, nor with its wording, so she filed a lawsuit against the employer in court.

The court's decision

The court of first instance denied the citizen's claim. The judges referred to Part 1 of Article 81 of the Labor Code of the Russian Federation, by virtue of which an employment contract with an employee can be terminated at the initiative of the employer if the employee directly servicing monetary or commodity values ​​has committed actions that create grounds for the employer to lose confidence in him. The St. Petersburg City Court, where the plaintiff filed a complaint, confirmed the correctness of the conclusions made by the court of first instance. By an appeal ruling of December 11, 2014 N 33-19275 / 2014 in case N 2-1743 / 2014, the judges refused to recognize the plaintiff's dismissal as illegal and change the wording of the grounds for dismissal.

The judges noted that job description the deputy director of the store indicated direct manipulations with material assets - the receipt and release of goods, the receipt, accounting and storage Money. As follows from the contract concluded with the plaintiff on full liability, she was directly responsible for the safety and proper storage of both goods and funds. At the same time, the position of the deputy director of the store is included in the List of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full individual liability for the shortage of entrusted property, approved by Decree of the Ministry of Labor of the Russian Federation of December 31, 2002 N 85.

In a disputable situation in the organization's store, money was stolen from the cash register. Based on this case, the employer concluded that the acting deputy director of the employee committed a violation of the cash and labor discipline, because she left the key to the safe with the money sticking out in the lock. It was this circumstance that became the basis for dismissal with the wording of the loss of confidence.

A similar legal position is contained in paragraph 45 of the Decree of the Plenum Supreme Court RF dated March 17, 2004 N 2 "On the application by courts Russian Federation Labor Code Russian Federation". As follows from the clarifications of the Supreme Court of the Russian Federation, in the course of such disputes, judges need to take into account that the termination employment contract with an employee under clause 7 of part 1 of article 81 of the Labor Code of the Russian Federation, due to the loss of confidence, the employer can apply only to those employees who directly service monetary or commodity values ​​​​(reception, storage, transportation, distribution, etc.), and only on the condition that they committed such culpable acts that gave the employer grounds for the loss of confidence. Which is completely suitable for the controversial situation with the dismissal of the deputy director of the store.

2. Women with children under the age of three cannot be fired

The employer does not have the right to dismiss an employee on his own initiative if she is raising a child under the age of three. Even in the case when the woman did not notify him that she had a child of this age. So decided the Supreme Court of the Russian Federation.

The essence of the dispute

By order of the head of the local administration of the city district of Nalchik, a citizen was accepted for the position of deputy head of the Department of Education of the local administration. An employment contract was concluded with her for an indefinite period. After a while, by order of the acting head of the local administration of the city district of Nalchik, the employee was granted maternity leave. The employee had a daughter. The local administration of the city district of Nalchik extended the maternity leave until the child reaches three years of age.

Decree of the local administration of the city district of Nalchik in staffing changes were made to the office of the local administration of the city district of Nalchik, according to which 3 positions were reduced, including the position of deputy head of the Department of Education of the local administration. The citizen was notified that she was dismissed from work on the grounds provided for in clause 2 of part 1 of Article 81 of the Labor Code of the Russian Federation in connection with the reduction in the staff of the organization. According to the citizen herself, dismissal on ground made in violation of the requirements of Article 261 of the Labor Code of the Russian Federation, since at the time of dismissal she had a dependent daughter under the age of three years. For the protection of her rights, the citizen applied to the court with an application for reinstatement in her previous position and payment of compensation for earnings during the forced absenteeism.

The court's decision

The courts of two instances refused to satisfy the citizen's claims. The judge justified their position by the fact that the plaintiff did not notify the employer that she had a child under the age of three, without submitting a birth certificate to the personnel department of the organization, in connection with which the employer should not be responsible for the adverse consequences that occurred as a result of unfair actions with side of the citizen. The courts also indicated that the procedure for dismissing the plaintiff to reduce the staff of the organization's employees was observed by the employer.

The Supreme Court of the Russian Federation, where the citizen filed a complaint, did not agree with such conclusions of the courts. In ruling No. 21-KG14-14 dated March 30, 2015, the judges pointed out that the conclusions of the courts of first instance and appellate instance were based on an incorrect interpretation and application of substantive law. Since, by virtue of Article 261 of the Labor Code of the Russian Federation, it is not allowed to terminate an employment contract at the initiative of an employer with a woman who has a child under the age of 3, with a single mother raising a disabled child under the age of 18 or a young child - a child under the age of 14 , with another person raising these children without a mother, with a parent (another legal representative of the child) who is the sole breadwinner of a disabled child under the age of 18 or the sole breadwinner of a child under the age of 3 in a family raising three or more young children, if the other parent (other legal representative of the child) is not in an employment relationship. The legislator makes an exception only in case of guilty actions on the part of the employee.

As follows from the legal position of the Supreme Court of the Russian Federation, set out in paragraph 28, the guarantee provided for by Part 4 of Article 261 of the Labor Code of the Russian Federation applies, among other things, to persons performing state civil and municipal service.

In a controversial situation, the court took into account that the provisions of the current labor law The Russian Federation established a direct ban on the dismissal at the initiative of the employer of women with children under the age of 3 years, therefore, canceled the decisions of the courts on the legality of the dismissal of the plaintiff on the specified basis. In addition, the panel of judges recognized as unreasonable the conclusion of the courts that there was bad faith and abuse of the right in the actions of the citizen in connection with the failure to provide her employer with a child's birth certificate, since it was not supported by evidence from the case file.

3. The period determined by law for the issuance of an order by the state labor inspector complies with the norms of the Constitution of the Russian Federation

The right of the state labor inspector to issue instructions that are subject to mandatory execution by the employer in case of illegal dismissal of employees, legislatively takes into account the delineation of powers of state authorities and the special importance of judicial protection labor rights citizens. The rule limiting the period for issuing such an order is aimed at ensuring the supremacy of the court in resolving the dispute on the merits of the right and preventing citizens from abusing the right to protection from violations of labor laws by the employer. The Constitutional Court of the Russian Federation came to such conclusions.

The essence of the dispute

The citizen filed a complaint with the Constitutional Court of the Russian Federation about the violation of his constitutional rights by part 2 of Article 357 of the Labor Code of the Russian Federation. The citizen was dismissed in 2008 and applied to the state labor inspectorate in 2015 after the issuance of a court decision on November 5, 2014 in his case on the claim for invalidating the termination of the employment contract, imposing the obligation to return work book, recovery of lost earnings, compensation for moral damage. The inspectorate refused.

Therefore, the citizen disputes the constitutionality of the second part of Article 357 of the Labor Code of the Russian Federation, by virtue of which, in the event of a trade union body, employee or other person applying to the state labor inspectorate on an issue that is under consideration by the relevant body for considering an individual or collective labor dispute (with the exception of claims accepted for consideration by the court, or issues on which there is a court decision), the state labor inspector, upon revealing an obvious violation of labor legislation or other regulatory legal acts containing labor law norms, has the right to issue an order to the employer that is subject to mandatory execution. Such an order may be appealed by the employer to the court within 10 days from the date of its receipt by the employer or his representative.

According to the applicant, this rule does not allow the state labor inspector, in the event that the court refuses to satisfy the requirements of the employee due to the missed deadline for applying to the court, to issue an order to the employer in case of revealing an obvious violation of labor legislation or other regulatory legal acts containing labor law norms, therefore it conflicts with Article 2 of the Constitution of the Russian Federation and Article 37 of the Constitution of the Russian Federation.

The court's decision

The Constitutional Court of the Russian Federation in the ruling of October 27, 2015 N 2454-O did not find grounds for accepting the citizen's complaint for consideration. The judges pointed out that the norms of Article 356 of the Labor Code of the Russian Federation and Article 357 of the Labor Code of the Russian Federation give the federal labor inspectorate and state labor inspectors the authority to issue binding orders to eliminate violations and to restore the violated rights of workers. Such powers of the federal labor inspectorate are aimed at fulfilling the main function of this state body - the implementation of federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms, and ensuring the exercise of the right of workers to protect their labor rights.

At the same time, part 2 of article 357 of the Labor Code of the Russian Federation, limiting the right of the state labor inspector to issue orders subject to mandatory execution, takes into account the delineation of powers of state authorities, the special importance of judicial protection of labor rights and the mechanism for the enforcement of court decisions, is aimed at ensuring the supremacy of the court in resolving the dispute on the right on the merits and prevention of abuse of the right to protection against violation by the employer of labor legislation or other regulatory legal acts containing labor law norms. Otherwise, it would mean that the state labor inspector can act contrary to the court decision that has entered into legal force. Therefore, this provision does not violate the requirements of the Constitution of the Russian Federation and does not restrict the right of citizens to appeal against illegal dismissal.

We thank CADIS, the developer of regional family systems, for providing the most up-to-date judgments for this review.

16.06.2017 |

Hillegal dismissal worker any termination of labor relations made in violation of the procedure, the norms of the Labor Code, as well as in the absence of grounds, can be recognized.

In this article you will find common grounds to appeal dismissals and you will know what can be obtained in case of recognition of the dismissal illegal.

Who cannot be fired at the initiative of the employer? Where to complain about illegal dismissal and in what order?

How long does it take to go to court for wrongful dismissal?

Read more about the different grounds for layoffs at the links below.

We encourage you to consult with our lawyer. labor disputes Rumyantseva Valentina Yurievna(following links, lawyer) . You can book a consultation by calling+7-981-746-76-21 (on weekdays from 10 to 18)

What are the legal grounds for dismissal?

Grounds for dismissal own will is the statement of the employee, there is no statement - dismissal is illegal (article ), Grounds for downsizing (more in the article) - the decision of the employer, and at the same time, the positions must really be reduced, and not renamed, and the employee himself does not belong to a category that cannot be reduced, such as, for example, a woman on maternity leave (more in the article) .

For legal dismissal as not having passed the probationary period, there must be not only the establishment of the probationary period as such, but also confirmation of failure of the test (more in the article) .

To be dismissed for absenteeism, you need the fact of absenteeism, compliance with the dismissal procedure, and other factors, which you can read about in the article "".

For the dismissal of pregnant women and those on parental leave, the liquidation of the organization is needed, and not reorganization, change of ownership, renaming (more in the article

For legal dismissal under Art. 81 clause 5 of the Labor Code of the Russian Federation (repeated non-fulfillment by an employee job duties having a disciplinary sanction) requires a disciplinary sanction that has not been lifted by the day of dismissal, evidence of the fact of non-fulfillment of duties, compliance with the procedure, etc.). More details can be found in the articles: and how it was.

Dismissal during sick leave will be legal if it is not at the initiative of the employer (with the exception of the liquidation of the organization). Read more in the article about .

What can you expect if you appeal the dismissal?

When illegal dismissal you can be reinstated at work or the wording and date of dismissal are changed, you can recover wages for the time of forced absenteeism and compensation for non-pecuniary damage.

IN In what cases can we talk about the illegal dismissal of an employee?

First, let's turn to the grounds for terminating an employment contract. All of them are listed in Art. 77 of the Labor Code of the Russian Federation.

The grounds for termination of an employment contract are:

1) agreement of the parties (Article 78 of this Code);

2) expiration of the term of the employment contract (Article 79 of this Code), except for cases when labor Relations actually continue and none of the parties has demanded their termination;

3) termination of the employment contract at the initiative of the employee (Article 80 of this Code);

4) termination of the employment contract at the initiative of the employer (Articles 71 and 81 of this Code);

5) transfer of an employee at his request or with his consent to work for another employer or transfer to elective work (position);

6) refusal of the employee to continue work in connection with a change in the owner of the property of the organization, with a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75 of this Code);

7) refusal of the employee to continue work in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code);

8) the refusal of the employee to transfer to another job, necessary for him in accordance with the medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts the Russian Federation, or the absence of an appropriate job for the employer (parts three and four of Article 73 of this Code);

9) the employee's refusal to be transferred to work in another locality together with the employer (part one of Article 72.1 of this Code);

10) circumstances beyond the control of the parties (Article 83 of this Code);

11) violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work (Article 84 of this Code).

An employment contract may also be terminated on other grounds provided for by this Code and other federal laws.

81 art. The Labor Code of the Russian Federation contains a list grounds for dismissal at the initiative of the employer, which is also not expandable.

The employment contract may be terminated by the employer in the following cases:

1) liquidation of the organization or termination of activity by an individual entrepreneur;

2) reduction in the number or staff of employees of the organization, individual entrepreneur;

3) non-compliance of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification;

4) change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant);

5) repeated non-performance by an employee without good reasons labor duties, if he has a disciplinary sanction;

6) a single gross violation of labor duties by an employee:

a), that is, absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as in case of absence from the workplace without good reason for more than four hours in a row during the working day (shift) );

b) the appearance of an employee at work (at his workplace or on the territory of the organization - the employer or the facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcoholic, narcotic or other toxic intoxication;

c) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;

d) committing at the place of work theft (including small) property of others, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;

e) a violation by an employee of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences;

7) the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer;

7.1) failure by the employee to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or inaccurate information about his income, expenses, property and liabilities of a property nature, or failure to provide or provide knowingly incomplete or inaccurate information about income, expenses, on the property and property obligations of their spouse and minor children in the cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to a loss of confidence in the employee on the part of the employer;

8) commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

9) making an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;

10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;

11) submission by the employee to the employer of false documents when concluding an employment contract;

13) provided for by the employment contract with the head of the organization, members of the collegial executive body of the organization;

14) in other cases established by this Code and other federal laws.

Other cases established by the Labor Code include such grounds as the result of a test (Article 71 of the Labor Code of the Russian Federation), additional grounds for terminating an employment contract with teacher(Article 336 of the Labor Code of the Russian Federation), with the head of the organization (Article 278 of the Labor Code of the Russian Federation), with an athlete (Article 348.11).

In addition, there are additional grounds for terminating an employment contract with civil servants, rescuers, municipal employees, etc.

In any case, if you were fired for a reason that is not provided for by either the Labor Code or the Law on your work, dismissal from work can be considered illegal and challenge it in court.

Who cannot be fired at the initiative of the employer?

Even if there is a basis in the law, there are categories of employees who cannot be fired at the initiative of the employer, so dismissal is illegal during vacation and temporary disability, except in cases of liquidation of the organization, cannot be dismissed , women with children under 3 years old, single mothers raising a child under the age of fourteen years (a disabled child - up to eighteen years old), other persons raising these children without a mother, with the exception of dismissal on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 of the first part of Article 81 (see above) or paragraph 2 of Article 336 of the Labor Code of the Russian Federation (use, including a single use, of educational methods associated with physical and (or) mental violence against the personality of a student, pupil for teachers )

Is it necessary to comply with the dismissal procedure?

Particular attention should be paid to the dismissal procedure. In some cases of dismissal, the opinion of the trade union is mandatory. In other cases, a notice of dismissal is required at least 2 months in advance (liquidation, reduction) or a mandatory offer of vacancies.

For example, dismissal under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation in the event of repeated non-fulfillment by an employee without good reason of labor duties, if he has a disciplinary sanction, implies a repeated violation and, at the same time, disciplinary sanctions should be imposed for previous violations with the appropriate procedure. Before applying the penalty, the employer is obliged to request an explanatory note from you, if you refuse to draw up an act, then issue an order, give you a signature, and if you refuse, also draw up an act. In addition, there are deadlines for the imposition and removal of penalties. More in a separate article (read).

Dismissal can be recognized by the court as illegal if the grounds for dismissal of the employee are immaterial.

For a disciplinary offense, the employer has the right to apply one of the types of punishment: remark, reprimand,. So, if the court establishes that it was possible to issue a remark or reprimand for your disciplinary offense, then dismissal may be illegal. Everything is very individual, and each situation must be considered separately. Even for the imposition of a disciplinary sanction, the severity of the misconduct must be taken into account.

Deadlines for dismissal appeals.

And the last thing you need to know about illegality of dismissal, this is what you can challenge it only within a month. Takova statute of limitations for dismissal.

Where to apply for illegal dismissal?

The right to deal with issues of dismissed employees exclusively court as this is an individual labor dispute. In competence labor inspectorate Dismissal appeals are not included.

The term "illegal termination" is a catchphrase that is used to describe situations where an employee has been terminated for no apparent legitimate reason or in violation of termination procedures. In order to protect the interests of the employee, the legislator limited the grounds for dismissal and complicated the process of implementing this procedure. Illegal dismissal from work is a fairly common case.

To understand what unfair dismissal of an employee is, you need to understand the legal grounds. These provisions are contained in labor legislation and are not subject to expansion by the employer.

Grounds for dismissal

The list of reasons for dismissal of an employee is quite small.

So, the employer is entitled to dismiss in the following cases.

1. When an employer ceases to exist. The reasons may be different: bankruptcy, voluntary liquidation, termination of activities by decision of the state body and so on.
2. When for objective reasons there is a reduction in the number of employees - staff in the enterprise. The reason, for example, could be financial position, changing the type of activity and the like.
3. If the employee is not qualified enough for the position. This is revealed in the appraisal of employees. However, if the company has vacant position for which the qualification is considered sufficient, then the employer is obliged to offer the employee this vacancy.
4. A change of ownership of a business cannot in itself be a legitimate reason, but it is always accompanied by recertifications and layoffs.
5. When an employee does not follow the internal order at the enterprise repeatedly.
6. If the position implies the material responsibility of the employee, then he can be dismissed if the manager loses confidence in case of repeated violations of the order of doing business in his position.
7. Some enterprises have employees responsible for compliance corporate ethics or safety precautions. If they violate the rules for which they are responsible, they can also be fired.
8. When an employee entered the position illegally: presented incorrect information or fake papers.
9. In case of a one-time gross violation of the rules at the enterprise.

Dismissing a person for other reasons is illegal. Each reason for dismissal must be supported by relevant documents or evidence.

What is a gross violation

The order at the workplace is established by the head, the legislator has limited situations that are recognized as a gross violation. This is done so that any minor violations or non-fulfillment of the requirements of the employer do not become a reason for dismissal.

Cases of gross violation of the rules by the following actions of the employee are presented.

1. Absence from work for minor reasons or absence from the workplace without special reasons for more than 4 hours per shift.
2. Coming to work drunk, under the influence of drugs or psychotropic substances.
3. Disclosure of information constituting an object of commercial or state secret. Also disclosure of information about other employees, their personal data and other personal information.
4. Causing property damage to the enterprise by deliberate damage, waste or misinformation. The premeditation of such an act is the determining factor.
5. Violation of safety regulations and other labor protection rules, which caused serious consequences or caused an accident or emergency.

In addition to dismissal, employees who have allowed such situations are brought to material, administrative or even criminal liability.

Loss of trust

The fact that the employer has lost confidence implies the commission of a certain guilty act on the part of a materially responsible employee. However, the very fact of the act is not a reason for dismissal, unless, of course, it is qualified as a criminal offense.

Grounds for dismissal of an employee due to loss of trust:

• the employee did not take the necessary measures to minimize the consequences of his actions, did not notify the employer in time;
• the employee refused to provide the employer with information about his income and property.

However, this does not exclude the fact that the employer is obliged to prove the guilt of the employee.

Special reasons for dismissal

The reasons for dismissal of certain categories of employees may be the following reasons:

For teachers:

1. non-compliance with the statutory provisions of the educational institution;
2. violent acts of a mental or physical nature against schoolchildren, students, etc.;
3. replacement by age.

For athletes:

1. suspension for more than six months;
2. doping violation.

Such actions of these categories of workers are a reference to their professional unsuitability.

However, if their innocence is found, employees are entitled to commensurate compensation.

Examples of illegal dismissal

Termination of the employment contract for any reasons not specified in the law is considered unlawful. However, as practice shows, this is not an obstacle for employers to fire their employees.

The most common circumstances of illegal dismissal are:

• forced dismissal;
• dismissal with violations of the procedure established by law;
• dismissal without proof.

Dismissal under duress

Unfortunately, the mentality of the common people is such that, under minimal threat from the management, they write letters of resignation of their own free will. Such coercion is absolutely illegal.

However, in order to prove his case, the employee must present convincing facts of coercion. A simple statement by the employer about this can be regarded not as coercion, but as an offer.

An excellent solution would be audio and video materials that recorded this fact. But it is best not to succumb to such threats and persuasion from the employer.

Violation of the dismissal procedure

Even if there are legal grounds, violation of the dismissal procedure is a reason for recognizing such dismissal as illegal.

Thus, the law establishes the following procedure for dismissal:

• in case of staff reduction, employees must be notified no later than one month in advance;
• upon dismissal for other reasons, the employee must be notified two weeks in advance;
• you cannot dismiss an employee who is on vacation or undergoing medical treatment;
• the employee must provide a copy of the order;
• after the dismissal of the employee, no later than two weeks, you need to make a settlement with him and return the work book.

Failure to comply with this procedure is the illegal dismissal of an employee. The order on such dismissal, when considered by the court, is recognized as invalid.

Dismissal without evidence

Each reason indicated in the employer's dismissal order as a basis is confirmed accordingly.

So:

1. When dismissal is justified by repeated violations of the order, each of them must be marked with a reprimand or other disciplinary action, which are reflected in the registration book of orders of the head. In this case, a copy of each order must be given to the employee.
2. Material damage caused by the employee must be recorded in the assessment report and the order of the head.
3. The absence of an employee from the workplace must be recorded in the attendance sheet, which is maintained by the accounting department.
4. The inconsistency of the employee with the position held must be confirmed by the conclusion of the attestation commission.
5. The reduction in staff should be reflected in the accounting documentation and the decision of the head of the enterprise.

The absence of proper confirmation of the grounds entails the invalidity and illegality of the dismissal.

Where to complain?

Of course, when an employee is illegally fired, he begins to seek help from government agencies. Protecting the interests of the employee is the highest priority for labor law. So what to do and where to go?

To help in the implementation of these provisions of the Labor Code can:

• enterprise trade union;
• federal labor inspectorate;
• prosecution authorities;
• district court.

Each of these institutions has the authority to protect the interests of workers.

union

Almost every permanent employee of the enterprise is a member of the trade union. Such an employee cannot be dismissed without the consent of the trade union body. If this happens, then a complaint should be sent to this authority.

The trade union, in turn, is entitled to send a complaint to the Labor Inspectorate, which may force the employer to return the employee to his position.

Labor Inspectorate

As already mentioned, the Federal Labor Inspectorate, or as it is also called - "labor police", has the power to coerce the employer. In addition, this body can hold the head to account.

However, the activity of the inspection ends with checking the fact that the grounds for dismissal comply with the requirements of the law, as well as compliance with the legal procedure. Other facts: testimonies of witnesses, this body does not study illegal reduction.

Prosecutor's office

This body has general supervisory powers, and in the event of a violation of the requirements of the law, it should be contacted in the first place. In addition to checking the documentation, the prosecutor's office can carry out some investigative measures to establish the truth. Therefore, this body should be contacted if there is a fact of misrepresentation of information, unfounded accusations against an employee by the enterprise, and so on.

Court

As practice shows, the highest efficiency in resolving cases of illegal dismissal is given by filing a statement of claim in court. Most court decisions in such cases are in favor of the employee.

The statement of claim is submitted to the district court in whose jurisdiction the enterprise is located. The court decision is binding on everyone, and its execution is under the control of bailiffs.

It is necessary to apply to the prosecutor's office or the labor inspectorate with the simultaneous filing of a lawsuit in court, since the first two bodies are not engaged in a thorough study of the issue.

Terms of circulation

Deadlines are also important when challenging unlawful orders to dismiss an employer. Missing them deprives the employee of the right to appeal the unlawful deprivation of work.

The following deadlines are set for filing an application with the relevant authorities.

1. A complaint must be filed with the Federal Labor Inspectorate within one month from the date a photocopy of the dismissal order was served to the employee. It is not possible to extend this period.
2. A claim to the judicial authority must also be filed no later than one month. However, if the employee manages to provide evidence that he found out about the illegality of his dismissal much later, and applies as soon as he found out, then the period may be extended.

Missing the allotted time and the absence of an appeal does not relieve the employer from liability for the unlawful dismissal of an employee.

Reinstatement at work

In the event that the dismissal of an employee is declared illegal by the court, the return to work occurs as follows:

1. Together with the court decision, the court issues a document for the executive body, which must be immediately sent to the bailiffs. The head of the enterprise is obliged to execute the decision no later than one day after that.
2. The hiring of another employee or the fact that the position has been made redundant does not prevent the illegally dismissed employee from returning.
3. It is necessary to ensure that the manager cancels the dismissal order, and does not reinstate the employee. This is important when receiving involuntary unemployment benefits.
4. The person must be notified in writing of the commencement of work. In the same letter, you must indicate the cancellation of the dismissal order.
5. Correction of inscriptions in the work book. The letter of resignation is declared invalid. Also, a person has the right to update the work book with the restoration of all available records.
6. none of working conditions, for which the employee worked before the unlawful deprivation of work, does not change for any reason.
7. The employee's personal file at the enterprise is also restored and corrected, with a separate note about the court decision.
8. The worksheet is corrected and supplemented. The time during which a person was unemployed is counted as a work experience with the corresponding remuneration.

The employee has the right to compensation for all types of damage caused to him by unlawful deprivation workplace. The fact of compensation for damages and the return of an unlawfully dismissed person does not exempt the employer from liability for illegal actions.

Thus, every unlawfully dismissed person is under the protection of the law. It remains only to competently exercise their legal rights. A qualified lawyer can help you with this. The most important thing is not to give up and not succumb to the persuasion of the leader, who can end everything peacefully, even in the process of litigation.

In our difficult time, nothing can guarantee stability. After all, even if there is an official place of employment, almost any employee may be objectionable, and the employment contract will be terminated with him. In many cases this kind we are talking specifically about illegal dismissal. It is possible to prove that the employer violated the rights of his employee only through the court. In a favorable combination of circumstances and a decision is made in favor of the plaintiff, he has the right to claim reinstatement in his position, receiving wages for the entire time of unforced absenteeism, compensation for legal fees, as well as moral damage. But before embarking on litigation, you need to find out in which cases the dismissal is considered illegal, where to go first, what documents and other nuances are needed for this. They will be discussed further.

Recognition of dismissal as illegal: grounds and features

It is very problematic to list absolutely all the grounds on which the dismissal will necessarily be recognized as illegal. Each situation must be considered on an individual basis. But most often there are the following cases when the court defends the interests of the plaintiff:

1. Dismissal without legal reason. A complete list of legal grounds on which an employee can be dismissed at the request of only the employer is contained in Article 81 of the Labor Code of the Russian Federation. Among the main ones are: liquidation of the enterprise, reduction of the labor force, violation of labor discipline, inconsistency of the qualifications of the employee with the position he occupies, etc. However, for the court to recognize the dismissal as legal, it is not enough that the basis that belongs to the legal category appears in the work book of the dismissed person. The employer must additionally prove that this ground actually took place, and that dismissal is a measure of influence corresponding to the severity of a certain disciplinary offense.
2. Violation of procedure when dismissing an employee. It is possible to dismiss an employee for any of the existing grounds only in a strictly established manner. Among the main stages, the following can be distinguished: documentary fixation of a violation by an employee of labor discipline (for example, an act of his absence on the spot in work time); obtaining an explanation from the violator of discipline about the misconduct committed; issuing an order for dismissal and familiarizing the employee with it against signature; making a full settlement with the employee for all hours and days worked unused vacation; an entry in the work book with the obligatory indication of the reason for dismissal and a link to an article of the Labor Code. However, if certain procedures are not followed upon dismissal, the court may accept them as insignificant for recognizing the dismissal as illegal. Significant grounds include:
   • if the employer did not offer the employee another place of work corresponding to the state of his health (if any);
   • bringing to responsibility of a disciplinary nature in violation of the norms of the current legislative acts regulating labor relations;
   • if the employer has not coordinated his decision to dismiss with the trade union in relation to employees - members of the trade union.
3. Dismissal of certain categories of citizens. For example, it is always considered illegal to fire pregnant women, single mothers, fathers who alone are raising a child / children under 14 years old. The only exceptions are those cases when the dismissal of these citizens occurs due to the complete liquidation of the organization. In the event of its restructuring, the employer is obliged to provide a place of work for these citizens as a matter of priority.
4. Dismissal of employees on vacation. Moreover, we are talking about both ordinary and maternity leave, as well as the employee being on sick leave.

Among other grounds on which the court may declare the dismissal illegal, the following situations can be distinguished:

• non-compliance with the dress code or corporate ethics;
• fictitious staff reduction, which in reality does not exist;
• forcing an employee to draw up a letter of resignation on his own initiative;
• the presence of several bases at the same time.

Which authorities and within what time frame should you contact if you have been illegally fired?

Earlier in the article, we already considered where to complain about the employer, but now we will analyze the case of illegal dismissal separately. If you are sure that the employer violated your rights upon dismissal, it is worth starting to seek restoration of justice immediately. First of all, it is best to draw up and send a claim letter addressed to the director of the enterprise. It must be competently and with references to regulations state the circumstances that, in your opinion, indicate the illegal nature of your dismissal. This letter should be written in two copies.

If no action was taken from the employer, your claims can be sent to the following authorities:

1. Trade union. Any member of a trade union cannot be dismissed without the consent of the latter. The competence of the trade union includes the obligation to consider complaints from illegally dismissed employees and forward claims to the Labor Inspectorate.
2. State Labor Inspectorate. You should not hesitate to appear in this body - the application must be sent no later than 1 month from the date of dismissal. It can be considered the day of receipt of the work book or the moment of familiarization with the order to terminate the employment contract. After accepting such an application, the labor inspector is obliged to conduct an inspection no later than 10 days and, based on its results, oblige the employer to return the employee to his previous position and pay him the due compensation. However, you should be aware that such a check is predominantly formal in nature, since the inspector will not be engaged in obtaining explanations from witnesses, collecting evidence, etc. Therefore, it is best to prepare a lawsuit in court at the same time as sending an application to the Labor Inspectorate.
3. Prosecutor's office. The functions of this body in terms of considering complaints from illegally dismissed citizens are similar to the functions of the State Labor Inspectorate. The prosecutor's office is also obliged to carry out a check and, if it is established that the norms of labor legislation have been violated, send the case to the court.
4. Court. If there is little hope for the efficiency of the employees of the State Labor Inspectorate and the Prosecutor's Office, apply directly to the court at the location of the enterprise. This must be done within a month from the date of dismissal. In special cases, this period can be extended, but only if you can prove that you were not aware that your labor rights were violated upon dismissal. If you win the court, bailiffs will monitor the execution of the decision, which will not allow an unscrupulous employer to avoid the legal obligation to reinstate the plaintiff and pay him compensation.

Preparing and going to court

There are several advantages to going to court:

1. Availability of the trial from a financial point of view. According to Art. 393 of the Labor Code of the Russian Federation individual exempted from payment of state duty when filing a lawsuit to restore their labor rights. That's why total amount Litigation costs are much less than usual.
2. Efficiency. Perhaps only in court can they properly consider all the claims of the plaintiff and understand the whole background of the relationship between the employer and the employee.
3. The possibility of recovering compensation for causing moral harm. The State Labor Inspectorate has no such right.

The main disadvantage of going to court is the length of the proceedings. Although the legal term for consideration of such cases is only one month, in reality it is observed extremely rarely.

So, if you decide to go to court, first start preparing required documents, namely:

• Employment contract . It must be concluded at the time the employee is accepted into the state. However, not all employers give it to employees in their hands. Therefore, make sure that you have this document that defines the basic conditions for work. Moreover, it is important that the real wages are indicated in it. Otherwise, it will be difficult to claim wages for the period of forced absenteeism in the amount in which you actually received it before.
• Employment book with records of employment and dismissal from it. If you have been working informally, the employer may simply claim in court that he is seeing you for the first time. This once again confirms the insecurity of informal workers.
• Copies of hiring and dismissal orders.
• Certificate with the designation of the position held, qualifications, average monthly wages, characteristics of the employee and his attitude to work.
• Documents on attraction to labor responsibility(if any).
• Evidence that clearly confirms that the employer's arguments are falsified.

The employer must provide all the documents you request within five working days. If you evade this obligation, it is in without fail must be reflected in the claim and additionally stated that necessary information requested by the court.

The statement of claim, a sample of which can be viewed here (Appendix), must include the following details:

1. The name of the court, the data of the plaintiff and the defendant.
2. Circumstances of hiring and dismissal from work, the reasons why the plaintiff assumes that the dismissal was not carried out according to the law.
3. Claimant's demand: return to the previous place of work, receiving a salary for the time of unforced absenteeism, compensation for non-pecuniary damage.
4. List of attached documents.

Reinstatement at work

If the court decides that the dismissal was carried out illegally, a writ of execution is drawn up. According to this document, the head of the legal entity is obliged to restore the employee to the previous position no later than one working day from the moment the writ of execution is received by the bailiffs.

The personnel department draws up an order to cancel the order to dismiss the employee, and the employee is familiarized with it. There is no order for reinstatement. Then the employee is informed about the day from which he can start to perform his duties again, they are asked to provide a work book. In it, the last entry is considered invalid and the details of the court decision are indicated. If a reinstated employee wishes to receive a duplicate work book with the restoration of all entries made in it, except for the last one about illegal dismissal, the employer is obliged to do this. Similarly, corrections are made in the employee's personal card, and adjustments are made to the time sheet.

It is important that an illegally dismissed employee must be reinstated to his previous position with the same working conditions, even if the employer has already accepted a new person for this position (he is fired) or this position has been reduced (it is being restored).

Thus, the reinstatement of the employee in the position should take place. However, in practice, not all employers who have lost the court are willing to re-accept a legally competent employee into their staff. If the court decision is evaded, the court may additionally fine the enterprise, and if it is repeated, it may decide to pay an even larger fine.

Legal aspects of illegal dismissal

If the dismissal of an employee is recognized as illegal, the employer must:

• reinstate him;
• pay him wages for all due time (unforced absenteeism);
• compensate moral damage;
• compensate for legal costs, pay for the services of the plaintiff's lawyer;
• pay a fine in case of non-execution of a court decision;
• pay a fine in an increased amount in case of repeated delay in the execution of a court decision.

Here are the fines for employers in case of illegal dismissal of employees:

• 1000-5000 rubles - for an official of the enterprise;
• 1000-5000 rubles - for an individual entrepreneur or making a decision to suspend his activities for a period of 90 days;
• 30000-50000 rubles - for entity or termination of activities for up to 90 days.

In addition to these measures, in the event of a decision by a judge for organizations, individual entrepreneurs And officials may be additionally provided for disqualification for a period of one to three years.

The success of the judicial resolution of the case largely depends on how competently the requirements are set out in the statement of claim and evidence is presented in favor of the plaintiff. Therefore, make sure that your interests in court are represented by an experienced lawyer specializing in labor law.

Do you think you are Russian? Born in the USSR and think that you are Russian, Ukrainian, Belarusian? No. This is wrong.

You are actually Russian, Ukrainian or Belarusian. But you think you are a Jew.

Game? Wrong word. Right word"imprinting".

A newborn associates himself with those facial features that he observes immediately after birth. This natural mechanism is characteristic of most living beings with vision.

Newborns in the USSR for the first few days saw their mother for a minimum of feeding time, and most of the time they saw the faces of the maternity hospital staff. By a strange coincidence, they were (and still are) mostly Jewish. Reception is wild in its essence and effectiveness.

All your childhood you wondered why you live surrounded by non-native people. Rare Jews on your path could do anything with you, because you were drawn to them, while others were repelled. Yes, even now they can.

You cannot fix this - imprinting is one-time and for life. It is difficult to understand, the instinct took shape when you were still very far from being able to formulate. From that moment, no words or details have been preserved. Only facial features remained in the depths of memory. Those traits that you consider your family.

3 comments

System and Observer

Let us define a system as an object whose existence is not in doubt.

An observer of a system is an object that is not a part of the system it observes, that is, it determines its existence, including through factors independent of the system.

From the point of view of the system, the observer is a source of chaos - both control actions and the consequences of observational measurements that do not have a causal relationship with the system.

An internal observer is a potentially achievable object for the system in relation to which the inversion of the observation and control channels is possible.

An external observer is even an object potentially unattainable for the system, located beyond the event horizon of the system (spatial and temporal).

Hypothesis #1. All-seeing eye

Let's assume that our universe is a system and it has an external observer. Then observational measurements can take place, for example, with the help of "gravitational radiation" penetrating the universe from all sides from the outside. The capture cross section of "gravitational radiation" is proportional to the mass of the object, and the projection of the "shadow" from this capture onto another object is perceived as an attractive force. It will be proportional to the product of the masses of objects and inversely proportional to the distance between them, which determines the density of the "shadow".

The capture of "gravitational radiation" by an object increases its randomness and is perceived by us as a passage of time. An object that is opaque to "gravitational radiation", the capture cross section of which is larger than the geometric size, inside the universe looks like a black hole.

Hypothesis #2. Internal Observer

It is possible that our universe is watching itself. For example, using pairs of quantum entangled particles spaced apart in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, which reaches its maximum density at the intersection of the trajectories of these particles. The existence of these particles also means the absence of a sufficiently large capture cross section on the trajectories of objects capable of absorbing these particles. The remaining assumptions remain the same as for the first hypothesis, except:

Time flow

Third-party observation of an object approaching the event horizon of a black hole, if the “outside observer” is the determining factor of time in the universe, will slow down exactly twice - the shadow from the black hole will block exactly half of the possible trajectories of “gravitational radiation”. If the determining factor is the "internal observer", then the shadow will block the entire trajectory of interaction and the flow of time for an object falling into a black hole will completely stop for a view from the outside.

Also, the possibility of combining these hypotheses in one proportion or another is not excluded.