Reinstatement to work - judicial practice. Consideration of labor disputes in court

If the court finds the dismissal illegal, the decision to reinstate the illegally dismissed employee is subject to immediate execution. During forced absenteeism, an employee can count on average earnings and compensation for non-pecuniary damage.

Labor disputes on employees' applications for reinstatement, regardless of the grounds for termination employment contract dealt directly with the courts. For disputes about dismissal, an employee has a month to apply to the court from the date he was served with a copy of the dismissal order or from the date the work book was issued, or from the day when the employee refused to receive the dismissal order or work book. At the same time, cases of reinstatement at work must be considered by the court before the expiration of the month (Article 154 of the Code of Civil Procedure of the Russian Federation).

If the court recognizes the dismissal as illegal, the decision to reinstate the illegally dismissed employee is subject to immediate execution (Article 211 of the Code of Civil Procedure of the Russian Federation, Article 396 of the Labor Code of the Russian Federation). To do this, it is enough to allow an illegally dismissed employee to fulfill the previous job duties and cancel the order (instruction) on dismissal (Article 106 federal law dated 02.10.2007 No. 229-FZ (hereinafter - Law No. 229-FZ)).

It is necessary to cancel the order (instruction) on dismissal by issuing an order. Since there is no unified form of such an order in the legislation, we suggest using the option that is presented on the right.

Thus, the employer must, immediately after the issuance (actual receipt) of the decision to reinstate at work, issue an order to reinstate the employee at work and allow him to previous work. From a practical point of view, it is important to familiarize the reinstated employee with such an order, as well as to create for him all the necessary real conditions to perform work duties.

If the employee avoids familiarizing himself with the order or is absent from the workplace, the employer must take all possible actions aimed at informing the employee about the issuance of the order and about the possibility of starting work. Such behavior should be formalized by an act in which the following points should be recorded that the employee:

Refuses to familiarize himself with the order for reinstatement at work;

Informed in other ways about such an order and about the opportunity to start work;

Refuses to perform previous duties.

Entries in the work book

When an employee is reinstated at work, corrections must be made in his work book. In this case, the dismissal entry is invalidated and the correct entry is made.

In column 1 of the work book, the subsequent serial number is affixed, in column 2 the date of entry is entered, in column 3 they write: “The entry for the number such and such is invalid, restored to the previous job.” In column 4, enter a link to the order for reinstatement at work.

The presence in the work book of a record of dismissal, subsequently declared invalid, gives the employee the right to demand that the employer issue a duplicate of the work book without making an entry declared invalid in it. To do this, the employee must provide a written application for the issuance of a duplicate

However, on the first page title page) of the previous work book they write: “A duplicate was issued instead” indicating its series and number and give the book to the owner. In the upper right corner of the first page of the duplicate work book, the inscription is made: “Duplicate” and all entries made in the work book are transferred to the duplicate, with the exception of the entry declared invalid. When making a duplicate, the employee does not submit any documents to the employer. In the book, all previous entries are simply repeated, with the exception of the invalid one. After issuing a duplicate of the work book, information about it must be entered in the book of accounting for the movement of work books and inserts in them.

Compensation for forced absenteeism and compensation for non-pecuniary damage

If the dismissal is recognized as illegal, the court decides on the payment to the employee of the average earnings for the entire time of forced absenteeism or the difference in earnings for the entire time of performing lower-paid work (part 2 of article 394 of the Labor Code of the Russian Federation).

Compensation for involuntary absenteeism is intended to compensate the employee for unpaid earnings in the event of his unlawful dismissal. This obligation of the employer is a measure of his liability before an employee (Article 234 of the Labor Code of the Russian Federation).

As the Supreme Court of the Russian Federation pointed out in its Ruling (determination of the Supreme Court of the Russian Federation dated April 23, 2010 No. legal consequences dismissal by canceling the dismissal order (and not by issuing an order for reinstatement after a court decision on reinstatement) (Art. 106 of Law No. 229-FZ, Art. 2003 No. 225).

To process the payment to the reinstated employee of average earnings during the forced absenteeism, an order is drawn up in free form. Time sheet ( unified form T-13) in relation to the reinstated employee should be completed from the day following the day of dismissal until the day of reinstatement at work, putting down the appropriate code. To do this, it is necessary to indicate the period that has elapsed since the moment of illegal dismissal, with the PV code “Time of forced absenteeism in the event that the dismissal, transfer to another job or suspension from work is recognized as illegal with reinstatement at the previous job” or the digital code “22” (post. Goskomstat of the Russian Federation from 01/05/2004 No. 1).

When determining the amount of payment for forced absenteeism, the average earnings collected in favor of the employee during this time shall not be reduced by:

The amount of wages received from another employer, regardless of whether the employee worked for him on the day of dismissal or not;

Temporary disability benefits paid to an employee within the period of paid absenteeism;

Unemployment benefits that he received during the period of forced absenteeism - since these payments are not included in the number of payments subject to offset when determining the amount of payment for forced absenteeism by the current legislation.

At the same time, severance pay when paying for forced absenteeism is subject to offset (clause 62 of the post. Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2).

Such an offset is made by the court. The employer must declare the need to offset the severance pay against the average earnings for the period of involuntary absenteeism during the trial. After the end of the process, the employer will be obliged to pay the amount of average earnings, which is indicated in the executive document issued on the basis of a court decision.

In addition, in cases of dismissal without a legal basis or in violation of the established procedure for dismissal, the court may, at the request of the employee, make a decision to recover in favor of the employee monetary compensation for moral harm caused to him by these actions (part 9 of article 394 of the Labor Code of the Russian Federation). The amount of this compensation is determined by the court based on the specific circumstances of each case, taking into account the scope and nature of the moral or physical suffering caused to the employee, the degree of guilt of the employer, other noteworthy circumstances, as well as the requirements of reasonableness and fairness.

Employer's responsibility

An employer who fails to comply with a court decision on the immediate reinstatement of an employee at work may be subject to the following liability measures:

Performance fee (Art. 105, 106 of Law No. 229-FZ);

Administrative fine (Article 17.15 of the Code of Administrative Offenses of the Russian Federation);

Payment to an employee of average earnings or the difference in earnings on the basis of a court ruling for the entire time from the date of the decision to reinstate at work until the day the executive document is executed (Article 396 of the Labor Code of the Russian Federation).

Expertise of the article: Ivan Mikhailov, legal consulting service GARANT, legal adviser

Opinion: Ivan Shklovets, Deputy Head Federal Service for work and employment

Entry in the work book

The Labor Code does not contain a special basis for dismissal from a new job in the event of an employee being reinstated in his previous job. Therefore, an employee can be dismissed by agreement of the parties or by own will. Considering that the court decision on restoration is subject to immediate execution, the employer is obliged to terminate the employment contract within the period specified in the employee's application.

The company in which the employee recently got a job contributes to work book under the following serial number, a record of dismissal for one of the grounds.

The record of dismissal in case of recognition of the illegality of the dismissal by the court and reinstatement in the previous job is recognized as invalid. For example: "The entry for the number such and such is invalid, restored to the previous job." In column 4, a reference is made to the order for reinstatement at work.

Considering that the employee is reinstated at the previous job, and does not enter into a new employment contract, the last entry may be as follows: “The entry for the number such and such is invalid, reinstated at the previous job in ... (indicate the full and abbreviated name of the former company)” . In this case, the company name can be omitted before the last entry.

Read also

• Unreasonable denial of employment

  We choose, we are chosen... Or not chosen? Rejection is a fairly common occurrence. In certain situations, the candidate, after an interview with the employer, objectively understands that he is not suitable for this position, but it happens that the groundlessness of the refusal is obvious. After such an employee realizes that his labor rights have been violated, he has two options: to accept and continue to knock on the thresholds of potential employers, or to gather strength and insist in court on his right to take vacant position V staffing from this particular employer.

Articles in this section

• Dismissal of an employee who has not passed the probationary period

  Dismissal of an employee probationary period V Russian realities is a complex and costly process. At first glance, Article 70 seems to be a simple and logical way out of this "trap". Labor Code. But not everything is so simple. Article 70…

• Downsizing

  When planning a reduction in staff, it should be remembered that not all employees can be fired on this basis, and those who are being reduced should be properly notified and offered available vacancies.

• Dismissal of an employee. How to part with friends

  Parting with employees gracefully and with dignity, so that only good things remain in the memory, and relations remain friendly is a real art that any employer can master. For this, it is enough: the first is to want; the second is to study and choose ...

• Fixed-term employment contract. Dismissal of maternity leave

  The dismissal of a maternity worker working on the terms of a fixed-term employment contract has a number of features, non-compliance with which can lead the employer to legal proceedings.

• Crisis: It's time to master the art of firing

  Leading specialists of the top PR agencies in Russia unanimously repeat that in our country there are problems with the ethics of dismissal. There are large Internet portals of "black lists of employers". Offended and angry dismissed employees in a fit of anger write negative feedback. And the less neatly they are fired, the more angry they become about the company. It’s hard to explain why, in the ubiquitous endeavor of companies to create their “dream employer” image, this is often overlooked. key aspect personnel policy companies. Dismissal is a vulnerable link in personnel management. Today, when the crisis has matured in the country, mass layoffs will certainly follow. There is even the concept of "public shock layoffs."

• Labor violations during work and upon dismissal

  The most common violations labor law related to wages and the procedure for dismissal of an employee. So, it is illegal to pay salaries once a month.

• Downsizing Notice

  Usually, management tries to reduce the staff by terminating the contract "by agreement of the parties." If this method does not suit the employee, they have to be fired due to a reduction in staff or headcount. And in this case, you can’t do without notice of the reduction.

• Farewell with an eye to the future

  All personnel officers sooner or later face the need to fire employees. And the reputation of the company depends on how successfully and correctly the separation process goes. Let's reveal a few secrets. The article is published as part of the collaboration hrmaximum…

• Change of grounds for dismissal led to reinstatement

  After an unsatisfactory result of passing the knowledge test, the employee was not extended the permit to work with electrical equipment. The employer considered that such admission is inherently a special right and its deprivation allows terminating the employment contract with the employee.

• Dismissal from vacation

  In order to issue a voluntary dismissal of an employee who is on vacation, you need to make sure that this employee really wanted to end the employment relationship.

• Termination of the employment contract in connection with the commission of an immoral act

  It is possible to dismiss for committing an immoral offense only employees of a certain category, namely, those who perform educational functions. But at the same time, for the legality of dismissal on this basis, a number of conditions must additionally be met.

• We issue the dismissal of an employee who has not passed the test

  Everyone knows that when concluding an employment contract, by agreement of the parties, it may provide for a condition on testing the employee in order to verify his compliance with the assigned work. But few people know how to properly fire someone who does not cope with the case and is not suitable for the employer. Mistakes in termination labor relations with an employee who has not passed the test, the employer runs the risk of meeting with the dismissed person in court, and it is possible that the judges will take his side. How to issue a dismissal in this case, we will tell today.

• Dismissal based on test results

  The article is devoted to the consideration of topical aspects related to the design features of the test regime for employment. Issues related to the conditions of appointment, duration, passing the test are considered in detail, the procedure for terminating an employment contract with an employee who did not pass the test is described in detail, samples are given required documents on this topic.

• How to file a suspension from work and dismissal in case of theft

  Suspension and subsequent dismissal of an employee who has committed theft at the place of work - unfortunately, in the practice of personnel departments, this situation is quite common. How to correctly draw up the accompanying documentation and take into account all the nuances of the legislation? The algorithm presented in the article will help personnel officers avoid mistakes, which means it will minimize the risk of negative consequences for the employer.

• Long absenteeism: the difficulties of dismissal

  Almost every employer sooner or later faces a situation where one of the employees suddenly, without any warning, does not go to work. This is a real headache personnel service: stubbornly wait for the missing employee to return to work or look for a new one in his place, dismiss the absent employee for absenteeism, or wait more than a year and recognize him as missing? And this is not a complete list of questions that arise before the personnel officer in a similar situation. Only strict observance of all requirements of labor legislation allows you to solve the problem competently and at the lowest material costs.

• Reinstatement or cancellation of the dismissal order?

  Recently, the attitude towards the issue related to the immediate execution of a court decision on the reinstatement of an employee at work has changed dramatically. What are these innovations - in the article.

• Application with an open date

  Today, many employers, when hiring a new employee, ask him to write a letter of resignation "on his own" in advance, but without a date for its preparation. Svetlana Gavrilova, an expert at the auditing firm Business Studio, tells what risks a company that practices this method of "insurance" has.

• Dismissal of an employee under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation

  The Labor Code provides for the dismissal of an employee due to repeated failure to perform without good reasons labor duties. This ground for terminating an employment contract is not new, it is of a successive nature. Previously, this foundation was fixed in ...

• If an employee does not show up for work

  We have an employee who has not shown up for work for over three months. He does not answer phone calls, letters and telegrams. The door is not opened at home. Can we fire him? If yes, under what article?

• How can the CEO find a good reason to fire the chief accountant?

  To find a reason for dismissing your chief accountant, you need to study the current labor, accounting and tax laws well. If your search for suitable legal norms is successful, be sure that the chief accountant will not want to spoil his work book and quit under Art. 80 of the Labor Code of the Russian Federation, that is, at their own request.

• Protection of labor rights: Appeal to the prosecutor's office

  One way to protect labor rights is to file a complaint with the prosecutor. The prosecutor's office is a unified federal centralized system of bodies that carry out on behalf of Russian Federation supervision over the observance of the Constitution of the Russian Federation and the execution of laws in force on the territory of the Russian Federation.

• Termination of the employment contract in connection with a single gross violation of labor duties

  A disciplinary sanction in the form of dismissal may be applied in the event of a single gross violation of labor duties. The list of gross violations that are the basis for dismissal is given in paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation. This list, within the meaning of the law, is exhaustive and is not subject to broad interpretation.

• Non-compliance as a reason for dismissal

  Dismissal on such a basis is quite complicated and "slippery" in legal relation procedure.

• Drunk employee in the workplace - how to fire?

  In this article, we will tell employers in detail about all stages of dismissal for drunkenness at work and indicate how the employer himself does not fall into the category of offenders.

• Working conditions and the procedure for dismissal of minors

  The psychophysiological characteristics of the body of minors, the need for full-fledged training often require special conditions labor, additional guarantees that are developed and enshrined in the current legislation. Consider what restrictions are provided for by the Labor Code on the working conditions of minors, whether they can be sent ...

• Dismissal of staff: how to make sure that it is not excruciatingly painful

  The paradoxes of the HR profession The duality of the current situation lies precisely in the fact that the HR manager who heads the personnel department, on the one hand, will have to demonstrate, under the current conditions, the virtuoso performance of his tasks. professional duties on downsizing,...

  The state provides certain social guarantees to citizens who have lost their jobs (for example, it pays unemployment benefits, provides assistance in finding employment). However, in order to receive these guarantees, laid-off employees must apply to the public employment service and register as unemployed. We will talk today about how to do this and what is the role of the employer in ensuring the employment of laid-off workers.

• Features of the legal regulation of the work of pensioners. Payments to pensioners in case of reduction and liquidation

  You can often hear the opinion that dismissal in accordance with paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation primarily concerns persons who have reached retirement age. However, this is not consistent with the requirement of Part 1 of Art. 179 of the Labor Code of the Russian Federation on priority right to keep at work people with higher labor productivity and qualifications. Reaching retirement age is not grounds for priority dismissal of such persons. They can only be dismissed in accordance with the general rules.

• Recovery of material damage upon dismissal of an employee

  Recovery of material damage upon dismissal of an employee - An explanation about the possibility of recovering damages from a resigned/leaving employee.

• Compensation payments upon dismissal of women with children and pregnant women

  Dismissed in connection with the liquidation and unemployed mothers of children under three years of age, authorities social protection of the population pay monthly compensation in the same amount as on parental leave until he reaches 3 ...

• Dismissal: is it possible for both sides to win?

  The dismissal of employees for any reason is not an accident, but a natural part of the business life of an enterprise. That is how he should be treated. And in this process there are two interrelated sides - the ability to quit yourself and the ability to fire others. This article will be of interest to those who own and manage a business, who, by the nature of their activity, fire others, and those who want to learn not to find themselves in a situation of being fired without their own desire.

  First, the more serious the organization, the more carefully the dismissal is prepared.

Most often, an employee leaves of his own free will. Even in the case of an initiative on the part of the employer, dismissal under the article is a rare phenomenon. This practice has become widespread due to the difficulties that arise in the process of terminating an employment contract under an article. The main one is the reinstatement of an employee through the court. In the article, we will clarify several issues.

When can an employee go to court?

The list of persons and reasons that may serve as a basis for going to court and restoring infringed rights are listed in Article 361 of the Labor Code.

Their classified according to the status of the employment relationship:

• at the conclusion of labor relations;
• when making changes to an existing contract;
• upon termination of the document.

By general rule, the first instance in reinstatement should be the labor inspectorate. This is easier to do than going to court. Enough to send e-mail or provide a package of documents at a personal appointment confirming that your rights have been violated.

The authority will conduct an investigation, notify you of its results and send a document to the enterprise with a demand to restore infringed rights. If the boss does not agree with the decision, he can go to court. You can also go to the authority if you fail to comply with the order. Unlike the labor inspectorate, the list of issues on which the court decides is much wider. Reasons for applying may be:

• dismissal from work, which, in the opinion of the employee, is unlawful;
• dismissal under another article or a change in the wording of the reason for terminating the employment contract;
• upon transfer to another place;
• requirement to reverse forced absenteeism;
• payment Money which, in the opinion of the employee, were withheld by the employer;
• irresponsible attitude of the head to the personal data of the employee;
• on the fact of denial of employment;
• in case of misappropriation disciplinary action;
• if the person believes that he or she has been discriminated against.

To the judiciary both the employee himself and his representative from the trade union can apply. Claims can be made both in relation to the commission on labor disputes, if earlier there were appeals to her, and directly to the employer.

Persons working for individual entrepreneurs without forming a legal entity and workers of religious organizations can also defend their professional rights through the courts.

Procedure for going to court:

1. Development of a statement of claim in 2 copies. Many recommend drafting a document with a professional lawyer.
2. You can deliver the document to the court in person, or by mail. The second copy with a mark remains with the plaintiff-you.
3. In accordance with the requirements of the court, we draw up a package of documents. The necessary papers, as well as the date for the consideration of the claim, will be approved by the decision.
4. The final step is going to court. However, if you are sure that the case will be heard in your favor, the hearing of the case may take place in your absence. To do this, you must notify the judicial authority.

It is important to know that the statute of limitations for labor disputes is three months from the moment the employee became aware of the violation of his rights. And in case of dismissal, it is reduced to 1 month. By financial matters on the contrary, it is permissible to apply to the judicial authority within one year.

The countdown starts from the day the documents are handed over to the employee.

If the maximum possible limitation period was missed for a good reason, it can be restored by the court. These include:

• disease;
• business trip;
• force majeure circumstances;
• caring for a seriously ill family member and others.

The outcome of a lawsuit will be:

• restoration to the previous place of work;
• approval of a new job description(if amendments were made to the employment contract);
• development of a document establishing a new wage rate;
• payment of the difference in income or dropped out the average earnings for the entire time of absenteeism;
• compensation for moral damage.

The reinstatement process

Reinstatement at work is a clearly regulated process, which consists of 5 stages.

Step.1 Order preparation

The basis for the reinstatement of an employee on workplace is an order. It is developed during the first working day, after the relevant court decision has been transferred to the bailiffs. The employer is given 10 days to appeal the decision, however, work in this direction can only be carried out after the request to reinstate the employee is fulfilled.

The order has a standard form. Developed on A4 sheet. It must contain the following data:

• name of company;
• as well as the wording:
  • cancel the order to dismiss;
  • allow the employee to perform duties;
  • notify the employee of the decision made and make changes to the labor card;
  • pay the employee the average salary and compensation.
• all persons in respect of whom the order has been developed must sign below:
  • director;
  • head of the personnel department;
  • accountant;
  • reinstated employee.

If the document has been developed, the person is admitted to official duties, but the employee has not started their execution, the employer has the right to dismiss him under the article.

The procedure is regulated by the Labor Code and has no retroactive effect.

On the other hand, if the order was not developed, the employee has the right to apply to bailiffs and initiate enforcement proceedings. Appropriate action will be taken against the employer, including prosecution.

Step 2. Making changes to the time sheet

For the duration of the forced absence the report card indicates the letter code "VP" or the digital "22".

At the same time, if before the moment of dismissal the employee did not come to work for personal reasons, it does not matter whether they are recognized as valid or not, the countdown of forced absenteeism begins from the day the corresponding order is developed or the date indicated in it.

Step 3. Making an entry in the labor

Further entry must be canceled in the work book. For this, the wording is used: record is invalid, restored to previous job. It is located in column 3. In column 4, a link is given to the order that served as the basis for reinstatement in the workplace (Step 1).

The employee has the right request a copy of the book and the employer has no right to refuse him. The new labor should not contain a record of dismissal and reinstatement.

On the first page of the document (top, right) its status "duplicate" is indicated. The mark is put on the old book - on the title page there is an entry “a duplicate, series, number was issued instead).

It is allowed to cross out the previous entry and indicate that this was done on the basis of a court order. Some lawyers point out that it is more competent to develop a new document, since the old one was closed. The procedure is not regulated by law, so the manager has the right to decide for himself whether to continue recording in the old card or create a new one, with an insert from the previous one.

It is worth noting that some employers mistakenly as a basis in the work book indicate "judgment". Doing it is wrong. Since the reason for reinstatement can only be an internal document - an order from the head.

At the same time, the time of forced absenteeism is taken into account in the length of service.

Step 4. Make the necessary payments to the employee

Upon restoration, absence from the workplace is regarded as forced absenteeism. For the duration of the trial, employee must be paid wage . If this is six months, then the company will pay for six months, if one and a half - for 18, and so on.

It is not uncommon for an employee to return to work after being laid off. And as you know, with a similar dismissal procedure, the employee is paid a benefit. Upon restoration, the employer does not have the right to demand it back. This is a legal practice that has developed on the basis of existing court decisions.

It is not uncommon for a reinstated employee not to go to work for several days. A goes to court on the fact of illegal dismissal for compensation. Such behavior is regarded as abusive and the employer has the right not to pay money to such an employee.

Step 5. Permission to work

Take on the duties of an employee must on the basis of staffing. For five-day work - the next day after the decision is made, with shift method- according to the schedule. However, there are times when an employee takes up duties due on the day of the decision. You should pay attention to this issue and clarify it with the employer. Failure to appear may be regarded as an abuse of position.

Some tricky issues in recovery

It is worth noting that such decisions - the reinstatement of an employee to a position - are one of the most difficult to implement. Since the labor legislation does not regulate such rules. For example, it is not uncommon for situations where during the course of the trial, the terms of the employment contract changed and cancellation of the process of its termination is not possible. In such cases, it is better to apply in writing with clarifications to the court.

In practice, it is not uncommon for a newly admitted employee to perform work to be unable to perform functions due to absence of a position in the staff list. Since the legislator does not divide them into “state” and “out of state”, the employer is obliged to make adjustments to the schedule. For this, an appropriate order is issued.

It happens that has already come to the place of the dismissed worker new employee . Officials of the organization do not have the right to disobey the order - an illegally dismissed employee is reinstated to the workplace. Wherein, Employees of the organization also cannot dismiss a substitute person. He is offered a different job, and only in the event of a written refusal, the employment contract is terminated.

The challenge for an organization is providing benefits to a reinstated worker. If the company does not have the necessary funds, the bailiff seizes the property of the organization, and last but not least, goods and services. If the company does not have all the listed assets, the production sheet is returned to the employee and the corresponding work is stopped. The same situation occurs during the actual liquidation of the company. However, no one forbids an employee to go to court and receive money from the liquidation commission.

This video will tell you about dismissal and reinstatement by a court decision.

Cases where the decision to dismiss would be illegal.

To answer the question posed, consider the case of dismissal of an employee under paragraph 9 of Part 1 of Art. 81 of the Labor Code of the Russian Federation - making an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which resulted in a violation of the safety of property, its unlawful use or other damage to the property of the organization. It is the dismissal on the above grounds that is most often recognized by the courts as illegal.

It should be noted that on this basis, it is possible to terminate the employment contract only with the head of the organization (branch, representative office), deputy head and chief accountant, and only in cases where they make an unreasonable decision that resulted in a violation of the safety of property, its misuse or other damage to the property of the organization.

According to Part 1 of Art. 273 of the Labor Code of the Russian Federation, the head of the organization - individual, which, in accordance with the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of bodies local government, founding documents legal entity (organization) and local regulations manages this organization, including performing the functions of its sole executive body.

Therefore, on the grounds provided for in paragraph 9 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, the head, his deputy and Chief Accountant any legal entity, regardless of the form of ownership.

Paragraph 48 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” states that when deciding whether decision unreasonable, it must be taken into account whether the above adverse effects occurred precisely as a result of the adoption this decision and whether they could have been avoided if another decision had been made. At the same time, the proof of the occurrence of adverse consequences as a result of an unreasonable decision by the head, deputy head and chief accountant lies with the employer.

Thus, the employer must prove not only the unreasonableness of the decision and the existence of damage, but also the causal relationship between the employee's unreasonable decision and damage to the organization's property, which is often very difficult to do.

arbitration practice.

Consider a controversial situation that was dealt with in the regional court.
The Ruling of the Nizhny Novgorod Regional Court dated 01/19/2010 in case No. 33-254 states: By Order No. 16 dated 09/21/2009 and. O. the director of the organization, citizen V., was dismissed for making an unreasonable decision that led to a violation of the safety of property, its unlawful use and (or) other damage to the property of the organization (clause 9, article 81 of the Labor Code of the Russian Federation).

From the materials of the case and the cassation appeal, it is seen that the chief accountant V. was dismissed for making an unreasonable decision to pay for polycarbonate according to the estimate No. on the write-off of the specified material (polycarbonate) under the act of April 30, 2009 for the equipment of the facility under construction, as well as for the unjustified write-off of the specified polycarbonate in April 2009.

From the explanations presented in the case file and. O. The director of the organization follows that on 01.06.2009 the company concluded a contract No. 07/06, according to which the contractor undertakes to carry out a set of works on the arrangement of the facility under construction in accordance with the estimated calculation No. 87. The specified calculation provides for the use of polycarbonate in the amount of 20 sq. m. m in the amount of 4,206 rubles. The cost of polycarbonate is included in the total estimated cost of 27,595 rubles. The head of the organization in his explanations indicates that according to the act of acceptance of work dated 15.06.2009 No. 07/06, the organization accepts the result of the work, and the chief accountant V. makes an unreasonable decision to transfer the full amount of funds in the amount of 27,595 rubles, despite what she knew about the use in these works polycarbonate purchased by the organization in April 2009.

However, the employer did not provide evidence to the court that the actions of the chief accountant V. resulted in adverse consequences for the organization, such as: violation of the safety of property, its misuse or other damage to the property of the organization.

As follows from the materials of the case, according to the act of checking material assets dated September 10, 2009, drawn up with the participation of the administration of the organization, polycarbonate was found in the warehouse in the amount of 20 square meters. m, which was purchased for the equipment of the facility under construction. This circumstance casts doubt on the fact of violation of the safety of property, its misuse or other damage to the property of the organization, in this case by the plaintiff.

The defendant's reference to the fact that in July 2009 a discrepancy between the volume of work performed and the estimated calculation No. 87 was revealed, which is recorded in the act of checking the financial and economic activities of the organization dated July 21, 2009, cannot be taken into account by the judicial board as evidence of unreasonable actions of the chief accountant V., since payment on 06/16/2009 under the contract for the installation of an object under construction by payment order No. 151 was made after the parties signed the acceptance certificate for the work performed on 06/15/2009, according to which the contract work satisfies the requirements of the customer established in the contract No. 07 / 06 dated 06/01/2009.

Thus, by the decision of the court, the chief accountant of the organization was reinstated at work due to the failure to prove the occurrence of adverse consequences as a result of her unreasonable decision.

The procedure for the reinstatement of an illegally dismissed employee.

The disagreement of the employee with the dismissal gives rise to an individual labor dispute, which, by virtue of Art. 391 of the Labor Code of the Russian Federation, at the request of an employee for reinstatement, is considered directly in court.

The employee has the right to apply to the court for dismissal disputes within one month from the date of delivery of a copy of the dismissal order to him or from the date of issue of the work book, while he is exempt from paying duties and paying court costs (Articles 392, 393 of the Labor Code of the Russian Federation).

Reinstatement cases are considered in the district court with the obligatory participation of the prosecutor and must be resolved before the expiration of a month.

According to Art. 394 of the Labor Code of the Russian Federation in case of recognition of dismissal illegal worker must be reinstated to their original position. In addition, a decision is made to pay the employee the average earnings for the entire period of forced absenteeism or the difference in earnings for the entire period of performing lower-paid work.

By virtue of Art. 396 of the Labor Code of the Russian Federation, the decision to reinstate an illegally dismissed employee at work, to reinstate an employee in his previous job, is subject to immediate execution. If the employer delays the execution of such a decision, the body that adopted it shall issue a ruling on payment to the employee for the entire time of the delay in the execution of the decision of average earnings or the difference in earnings.

A court order or a court decision on reinstatement is subject to immediate execution (Article 211 of the Code of Civil Procedure of the Russian Federation). Consequently, reinstatement at work is not made dependent on the moment the court decision enters into force.

In accordance with paragraph 4 of Art. 36 of the Federal Law of 02.10.2007 No. 229-FZ “On Enforcement Proceedings” (hereinafter referred to as the Law on Enforcement Proceedings), the requirements contained in the executive document for the reinstatement of an illegally dismissed employee must be executed no later than the first business day after the day the executive document is received in bailiff division.

According to Art. 106 of the Law on Enforcement Proceedings, the requirement contained in the executive document to reinstate an illegally dismissed employee at work is considered actually fulfilled if the employee is allowed to perform his previous job duties and the order (instruction) on his dismissal is canceled.

In case of non-fulfillment by the employer of the requirement to reinstate the dismissed employee at work, the bailiff takes the measures provided for in Art. 105 of the Law on Enforcement Proceedings, and explains to the employee his right to apply to the court or other body that decided to reinstate him at work, with an application to recover from the employer the average earnings for the time of forced absenteeism or the difference in earnings for the entire time from the date of the decision on reinstatement at work on the day of execution of the executive document.

Article 105 of the Law on Enforcement Proceedings instructs the bailiff-executor in the event of the employer's failure to fulfill the requirement for reinstatement at work within the period established for voluntary execution, to issue a ruling on the collection of the enforcement fee and establish to the employer new term to fulfill the requirement.

If the debtor fails to comply with the requirements contained in the executive document, without good reason, within the newly established period, the bailiff imposes a fine on the debtor, provided for in Art. 17.15 Administrative Code of the Russian Federation (on officials- from 10,000 to 20,000 rubles; on legal entities- from 30,000 to 50,000 rubles), and sets a new deadline for execution.

In case of non-fulfillment of the requirements contained in the executive document, within the newly established period, the fine will be higher:

• for officials - from 15,000 to 20,000 rubles;
• for legal entities - from 50,000 to 70,000 rubles.

It should be noted that according to Art. 120 of the Law on Enforcement Proceedings in the event of non-fulfillment of the requirement contained in the executive document for the reinstatement of an illegally dismissed employee at work, the damage caused to the organization by payment specified employee sums of money may be recovered from the head or other employee of this organization guilty of non-execution of the executive document.

How to make an annulment entry in the work book.

In accordance with Art. 84.1 of the Labor Code of the Russian Federation on the day of termination of the employment contract, the employer must issue a work book to the employee and make settlements with him. At the written request of the employee, the employer is also obliged to provide him with duly certified copies of documents related to work.

An entry in the work book on the basis and reason for the termination of the employment contract must be made in strict accordance with the wording of the Labor Code of the Russian Federation with reference to the relevant article, part of the article, paragraph of the article.

In the case discussed above, the entry in the workbook will look like this:

№ records	date			Information on hiring, transfer to another permanent job, qualifications, dismissal (with reasons and a link to the article, paragraph of the law)	Name, date and number of the document on the basis of which the entry was made
	Number	Month	Year
1	2			3	4
			2009	Dismissed in connection with the adoption of an unreasonable decision that entailed a violation of the safety of the organization's property, clause 9 of part 1 of article 81 of the Labor Code of the Russian Federation	Order dated 21.09.2009 No. 16

Further, we draw the attention of the employer that, in accordance with paragraph 30 of the Rules for maintaining and storing work books, making blank work books and providing employers with them, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. illegal dismissal is made by recognizing it as invalid and making the correct entry. In accordance with paragraph 10 of the Rules, all entries are made in the work book on the basis of the relevant order.

In paragraph 1.2 of the Decree of the Ministry of Labor of the Russian Federation of October 10, 2003 No. 69 “On approval of the Instructions for filling out work books” (hereinafter - Instruction No. 69), an example of an entry in the work book in this case is given: “The entry for the number such and such is invalid, restored to the previousBothe". In column 4, a reference is made to the order (instruction) or other decision of the employer on reinstatement.

Do I need to go to court if you were fired, in your opinion, illegally? Is it worth wasting time and nerves trying to defend your case? It is my deep conviction that it is imperative to fight for your rights, especially since the law provides for the possibility for an employee not only to protect his good name, but also to receive material compensation from an unscrupulous employer.

What is an illegal dismissal?

Illegal dismissal is the termination of an employment contract with an employee at the initiative of the employer without legal grounds for this.

The most common violations of labor law by employers include:

dismissal on grounds that are not provided for by law, or on a fictitious basis;

an indication of a different reason for dismissal than the one that actually happened;

dismissal without the necessary paperwork in the event of an employee committing disciplinary offenses;

non-compliance with the procedure prescribed by law when reducing staff, liquidating an organization, etc.

Employer's responsibility

Illegal termination of an employment contract and termination of employment relations for any reason hinders a person's ability to work.

The above article of the Labor Code of the Russian Federation also establishes that if the court decides to change the wording of the grounds for dismissal, then the date of dismissal must be changed to the date the court makes the decision.

And if the employee has already taken another job on the date of the court decision, the date of dismissal is changed to the date preceding the day the work began with the new employer.

Compensation for absenteeism

According to Article 394 of the Labor Code of the Russian Federation, the period of absence of an employee from work due to illegal dismissal or transfer to another job is called forced absenteeism. His time is calculated from the next day after the dismissal until the day the court makes a decision on reinstatement or changes in the wording of the dismissal. At the same time, for the entire time of forced absenteeism by a court decision, the employee paid his average salary.

Moreover, the period of forced absenteeism is not limited by law. Suppose that the lawsuit lasts a year - for the entire period of this period, the employer will be obliged to pay you your salary.

Compensation for moral damage

In addition, the employee has the right to compensation for non-pecuniary damage in cases of dismissal without a legal basis or in violation of the established procedure for dismissal or illegal transfer to another job. The amount of such compensation is determined by the court.

In accordance with paragraph 63 of the Resolution of the Plenum Supreme Court Russian Federation dated 17.03.04. No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, the criteria by which the court determines the degree of non-pecuniary damage include: the volume and nature of the moral or physical suffering caused to the employee; degree of fault of the employer; reasonableness and fairness of claims, etc.

Example 1

You were illegally fired, for example, in connection with a staff reduction that was not actually carried out. Your work suits you, you want to continue working in the old place.

In this case, the statement of claim must indicate that you are asking the court to reinstate you at work, as well as to recover material compensation in your favor (that is, payment for forced absenteeism and non-pecuniary damage).

Example 2

You were fired, for example, for absenteeism, but the documents were not executed in accordance with the law. You consider such a dismissal illegal, but you do not want to return to your previous employer, as you have found a new job.

Then, when applying to the court, you have the right to demand a change in the wording of the grounds for dismissal in the work book to dismissal of your own free will, as well as the recovery of material compensation from the employer in your favor.

Where to apply?

With a claim for the protection of your labor rights, you should contact district court(Art. 24 Code of Civil Procedure of the Russian Federation).

If the deadline for applying to the court has been missed, it is necessary to file an application with the court for the restoration of the missed deadline, indicating the reasons for the omission.

Circumstances that prevented the employee from filing a claim with the court in a timely manner may be regarded as good reasons for missing the deadline for filing a lawsuit. For example, the plaintiff's illness, his being on a business trip, the impossibility of going to court due to force majeure, the need to care for seriously ill family members (paragraph 5 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 04 No. 2 “On the application by the courts of the Russian Federation of the Labor Code Russian Federation".

How to write a claim?

You can read about how to draw up a statement of claim and what documents must be attached when filing it with the court in my article “Filing a statement of claim”.

I would like to draw your attention to the fact that, in accordance with Art. 393 of the Labor Code of the Russian Federation, when applying to the court with a claim for claims arising from labor relations, employees are exempted from paying state fees and court costs.

Application

Sample statement of claim for reinstatement, payment for forced absenteeism and compensation for non-pecuniary damage.

To __________________________________ District Court

Plaintiff ____________________________________________ (full name of the plaintiff, address, telephone)

Respondent ____________________________________________ (Name, address, telephone)

STATEMENT OF CLAIM

ABOUT RESTORATION TO WORK,

PAYMENT FOR FORCED AWAY TIME

AND COMPENSATION FOR MORAL DAMAGE

I worked ___________________ (position, work performed) ____ for _______________________________________ (name of organization) from __________________ (date, year).

By Order No. _____ dated ______, I was dismissed by ___________________________________________ (indicate the reason for dismissal).

I consider the dismissal illegal for the following reasons: __________________________ (specify the circumstances, based on
which the plaintiff considers the dismissal unlawful)
With _________________ (day, month, year) I do not work.

In addition, I believe that the defendant caused me moral harm by his illegal actions.

Based on the foregoing, guided by articles 22, 382, ​​394 of the Labor Code of the Russian Federation, articles
24, 29 Code of Civil Procedure of the Russian Federation, I ask the court:

1. reinstate me at work _______________ (position) in ___________________________ (name of organization).
2. collect from the defendant in my favor the average earnings for the time
   forced absenteeism from __________________ (day, month, year) to the day of reinstatement at work.
3. Collect from the defendant in my favor compensation for non-pecuniary damage.

Application:

1. A copy of the job order
2. Copy of the notice of dismissal
3. Certificate of average earnings (in case the employer refuses you
   issuance of a certificate, ask the court to request information about earnings from the Respondent or in
   tax office).
4. Evidence of the illegality of the dismissal (in the statement of claim, you can
   indicate that the employer must prove the legality of the dismissal)
5. Copy of the claim.

Date________________ Signature ______________________

In accordance with the law, an employee can be fired only on the grounds that are provided for in the Labor Code of the Russian Federation. But after all, no one has yet canceled the human factor, so often many are fired precisely for psychological reasons, adjusting them to the necessary article of labor legislation.

In such a situation, everyone has the right to appeal the management's decision to judicial order, after all, you can only be fired for violations of labor laws, and not for the tendency to always tell the truth, which is inconvenient for the manager.

Regulation under the Labor Code of the Russian Federation

An almost complete list of grounds for dismissal is given in article 77 of the Labor Code of the Russian Federation, which, in particular, states that an employee can be dismissed for:

• violation labor discipline(theft, alcohol intoxication, immoral behavior, disclosure of trade secrets,);
• non-fulfillment of assigned duties (presence of reprimands, certification results, violation of safety regulations);
• in the event of liquidation and position.

According to the norms of the law, some employees, in view of their social position or status can be dismissed only in rare cases, since they belong to preferential categories. In particular, it is prohibited to terminate labor cooperation with:

• pregnant women;
• working women with small children under 3 years old, or single mothers or fathers of children under 5 years old;
• parents of disabled children;
• the sole breadwinners of a family with at least 3 children.

Also on the basis of Art. 81 of the Labor Code of the Russian Federation, it is impossible to dismiss an employee during a period of incapacity for work or while on vacation. However, as practice shows, many employers ignore the norms of the law and still dismiss objectionable people who are not suitable for them for one reason or another.

Examples of Common Illegal Situations

• As a rule, the most common case is the termination of cooperation with a woman who is on maternity leave. In such a situation, many company executives are trying to get rid of maternity workers by cutting their jobs, which is a direct violation of the norms of Art. 256 of the Labor Code of the Russian Federation, which says that a woman on a decree must retain her workplace until the end of her vacation.
• An equally common case is the termination of relations with a single mother who is raising a small child. After all, as a rule, small children often get sick, and there is no one to leave them with, which entails endless sick days and time off from work. Of course, not everyone likes this situation, which is why workers with small children are not hired at all or are fired very quickly for a far-fetched reason.
• But with objectionable truth-seekers, men are dealt with in a different way. For the slightest misconduct, for example, being late for work by 5 minutes, not wearing a helmet at the workplace and violating safety regulations, they are immediately reprimanded, one after the other, so that after the third penalty they can be fired with a clear conscience.
• An equally common way is to conduct an extraordinary one in order to reduce the existing qualifications of the employee to a minimum and thus find a reason for dismissal on completely legal grounds. But after all, for each procedure, one desire of the leadership is not enough, there must also be documentation, which, by the way, is established by law.
• Another way to get rid of objectionable employees is a nominal job reduction with the introduction of a new vacancy with similar responsibilities, which again is a violation of labor laws.
• Finally, it is worth mentioning the conclusion, even if the duties of the future employee will be performed on an ongoing basis. In such a situation, it is possible to resolve the situation and recognize the agreement as open-ended only in court.

You can learn about all the nuances of such a procedure from the following video:

Where to apply in this case?

In accordance with Art. 392 of the Labor Code of the Russian Federation, an employee has the right to resolve any labor dispute in court, in particular, in case of illegal dismissal, everyone can go to court to defend their own innocence, but only within a month from the date of receipt of the order to dismiss.

If the agreed deadline is missed and former employee will not be able to confirm the presence of valid reasons that prevented him from exercising his right within the prescribed period, when considering the issue of recognizing the termination as illegal, the worker will be denied due to the passage of the claim period, regardless of whether he is right or not.

Disputes can be resolved not only through litigation. If the employee has not yet been fired, but he has already been informed of the imminent reduction, it is advisable to first collect evidence, which can then be submitted as confirmation of one's innocence to the competent authorities, namely to Labor Inspectorate or prosecutor's office

• Nowadays everyone has Cell phones which have a voice recorder function. On the eve of dismissal, it is advisable to stock up on several records of a conversation with management with direct threats to dismiss for a far-fetched reason.
• You also need to make copies of all documents that will be the basis for the reduction. For example, an order to issue a reprimand, an explanatory note, acts of violations, that is, all documents that confirm the fact of a disciplinary offense.
• In accordance with Art. 84.1 of the Labor Code of the Russian Federation, upon dismissal, an employee has the right to demand any copies of documents that confirm his labor activity- from to the report card of going to work or documents on the imposition of a penalty. If the management refuses to issue copies, it is advisable to ask for a written refusal or, again, record the conversation on a voice recorder.

Further, during the trial, you can appeal not only the dismissal, but also the reprimand that served as the basis. In such a situation, upon cancellation of a disciplinary sanction or at least one of them, the restoration of the employee in the previous position will occur automatically, since in the absence of a reason and the existence of violated rights of the employee, the court will in any case decide to grant the person the previous position.

Terms and procedure for reinstatement at work

As mentioned above, the employee is given 1 month to prepare and file a statement of claim with the court. But the very consideration of the claim, depending on the complexity of the case and the claims made, can last from two months to six months involving both witnesses and labor law consultants.

The former employee also has the right to file an additional claim for the recovery of moral damages for the suffering caused and for compensation in accordance with Art. 234 of the Labor Code of the Russian Federation.

As a rule, the court in most cases satisfies all the claims of the plaintiff, including the payment of compensation, the amount of which in some cases can be reduced depending on the specific circumstances of the case.

If the outcome of the case is positive, the employee can expect to be reinstated in his previous position and to be paid compensation for deprivation of the right to work for each day in the amount of the average earnings from the moment of dismissal until the date of the court decision, which the employer must execute immediately.

After receiving a court decision, the enterprise must issue an order to cancel the order to dismiss and reinstate the employee in his previous position. Then you need to make changes to the work book and make the appropriate payments specified by the court.

IN documenting the recovery procedure is simple, but problems can arise if another employee has already been hired for the position, who will have to be fired, or if the position is generally excluded from. In such a situation, first you will need to make changes to the agreed document, and then accept former employee, and all personnel procedures will need to be carried out in an extremely short time.

Employer's responsibility

In case of illegal dismissal, the court will not only restore the violated rights of the former employee, but also decide on the punishment of the negligent employer. Of course, the penalty will be calculated based on the severity of the guilt and the specific circumstances of the case, but, in general, for violating labor laws, the management of the enterprise is threatened with penalties up to 50 thousand rubles on the basis of h. 1 Article. 5.27 of the Code of Administrative Offenses of the Russian Federation.

Also, the employer will be obliged to pay all amounts of compensation that were established for payment during the trial.

After the completion of the case, the bailiffs will not only check the execution of the will of the court, but will also issue an order for a new punishment, already more severe, if the decision is not executed at all or in violation of the deadlines.

It should be noted that any enterprise that violated the rights of workers will be taken into account by the labor inspectorate, which will entail unscheduled frequent checks and new penalties. In order to avoid the stipulated sanctions, each employer should think about the fact that any violation of the rights of personnel will primarily affect financial activities organizations.