Illegal dismissal from work. What to do and what are the consequences of illegal dismissal Disputes over dismissal from work

V Russian reality illegal dismissal has never been something extraordinary. Every second person encounters this phenomenon, but only one in thirty takes real action to challenge illegal dismissal. These disappointing statistics reflect the attitude of workers towards their rights. The peculiarity of the situation lies in the fact that if employees were more active in challenging illegal dismissals, the number of such dismissals would also decrease, and they would have to be challenged much less. Therefore, active protection of their rights is the duty of every employee.

Foundations and general order layoffs are described in chapter 13 Labor Code RF. Within the framework of this article, we will not dwell on the specific circumstances that led to the illegality of the dismissal. We will take the illegality of dismissal as a starting point and further describe the specific actions that must be taken by the employee and the compensation that the employee will receive if the dismissal is declared illegal and reinstated at work.

Employee actions in case of illegal dismissal

Often, before dismissing on one of the grounds listed in Art. 81 of the Labor Code of the Russian Federation (termination employment contract at the initiative of the employer), the employer offers to write a letter of resignation on on their own... If you want to stay at work, under no circumstances write this application. Subsequently, it will be almost impossible to prove the illegality of the dismissal and resolve the labor dispute in your favor.

To document the dismissal, the employer must issue a dismissal order and make an entry in work book... After the employee has been familiarized with the order of dismissal, he can take measures to protect his violated rights within one month. An employee has 2 main ways to protect his rights:

1. Filing a complaint with the state labor inspectorate.

The State Labor Inspectorate is the state body for the protection labor rights workers. The main "Pluses" of contacting the labor inspectorate:

Fast review of the complaint. Complaints about illegal dismissal must be considered within 15 days.
The cheapness of the procedure.
Minimum organizational and labor costs. All you need to do is write and file a complaint.
Simultaneous bringing the employer to administrative responsibility under Art. 5.27 of the Code of Administrative Offenses for violation of labor legislation.

However, the appeal to the labor inspectorate also has significant "cons":

A low percentage of the likelihood of the complaint being satisfied. The labor inspectorate, in contrast to the court, is severely limited in the possibility of a detailed study of all the circumstances of the case, and the professionalism of the inspectors, of course, cannot be compared with the professionalism of the judges. In this regard, a complaint to the inspectorate is promising only if there is a formal, obvious violation on the part of the employer. Although, there are also surprising examples of the protection of workers' rights by the labor inspectorate in the most difficult and confusing situations.
Frequent non-compliance with the deadlines for handling complaints from employees. And in cases of dismissal, the timing is of fundamental importance, since after a month it will not be possible to challenge the dismissal.

The form of the complaint and the procedure for filing it are described in sufficient detail on the website of the State Labor Inspectorate of St. Petersburg. From ourselves, we just add that when writing a complaint, you should refrain from speculation and value judgments. It is necessary to cite facts, familiarization with which will immediately prompt the inspector to make a decision on reinstatement at work.

2. Filing a claim with a court.

A claim for recognizing the dismissal as illegal and reinstatement at work is filed, as a general rule, in the district court at the location of the organization. In accordance with Art. 393 of the Labor Code of the Russian Federation, an employee is exempt from paying state fees and incurring legal costs.

According to Art. 392 of the Labor Code of the Russian Federation, a claim must be filed within a month from the date of delivery of a copy of the order or from the date of delivery of a work book. If the deadline is missed for valid reasons, then it can be restored by the court. Please note that filing a complaint with the labor inspectorate and waiting for a response is usually not considered a good reason to miss the deadline for communicating with the court.

The main "pluses" of filing a claim in court:

it the most effective way to protect rights... It is in court that it will be possible to clarify all the circumstances and demonstrate the violations committed by the employer. And it is the court that will be able to sort out all the intricacies in the relationship between the employee and the employer.
The cheapness of the lawsuit... Taking into account the fact that the employee is completely exempted from incurring legal costs, the costs of conducting a case in court will be much less than usual.
Possibility of collecting moral damage. Only a court can recover compensation for causing moral harm, the labor inspectorate does not have such a right.

The main disadvantage of using the judicial method to protect one's rights is a rather long period of legal proceedings. Article 154 of the Civil Procedure Code of the Russian Federation sets the deadline for considering cases of reinstatement at work in 1 month. Unfortunately, in practice, it is very rarely observed. However, today, when the courts are trying with all their might to shorten the time for consideration of the case, this problem is gradually being smoothed out.

Thus, if the violation committed by the employer is clear, obvious and easily confirmed by written documents, then it is advisable to start protecting your rights by contacting the state labor inspectorate. But you need to remember about a month's time for going to court, and even if the inspectorate does not have time to take any measures, it is necessary to simultaneously file a claim with the court. If the violation is not obvious or cannot be confirmed by written documents, then you must immediately start with an appeal to the court.

Compensations due to an employee upon reinstatement at work

1. According to Art. 234 of the Labor Code of the Russian Federation, the employer is obliged to reimburse the employee for the average earnings for the entire period of forced absenteeism.

This period begins from the day of illegal dismissal - from that moment the employee is illegally deprived of the opportunity to work. And this period ends from the moment when the employer accepts the employee back. Outwardly, this is expressed by the issuance of an order for reinstatement at work and admission to work.

Thus, the employee will be able to collect the average earnings for the entire time during the trial.

2. According to Art. 394 of the Labor Code of the Russian Federation, an employee has the right to compensation for moral damage caused by illegal dismissal.

The amount of compensation will depend on how severe the physical and mental suffering of the employee was. This suffering can be confirmed by a psychologist's conclusion about the person's condition, the employee's medical record and other evidence.

3. If an employee applies for the protection of his rights in court, then he has the right to compensation for legal costs.

The main expenses, usually, are the costs of paying for the services of lawyers representing the interests of the employee in court. According to Art. 100 of the Code of Civil Procedure of the Russian Federation, these costs are subject to collection from the employer.

A former employee can go to court with evidence that the dismissal was unreasonable or with confirmation that the procedure was carried out in violation of labor laws.

If the court agrees with its arguments, the employer will have to answer for the non-compliance with the law.

As a consequence, he will have face the need to restore the employee to the previous place(by dismissing a new employee who has already been taken to this position), pay salaries for the entire time of illegal release from the performance of labor functions and even compensate for moral damage. Also, the employer faces an unscheduled inspection by the controlling authorities.

Reinstatement of the illegally dismissed person in the workplace

The court issues a verdict on the return of the employee to the organization and he receives a writ of execution, which will need to be presented to the management in order for this decision to be implemented.

When studying labor legislation (Article 396 of the Labor Code of the Russian Federation) and legislation on enforcement proceedings (Article 106 of the Federal Law No. 229), it can be concluded that the employer must eliminate all violations committed and, canceling the order to terminate the employment contract.

You cannot just prepare a new order for hiring, but it is required to cancel the action of the previous decision and allow the employee to fulfill his usual job responsibilities with the restoration of all provisions of the terminated employment contract.

Exactly because of this reason it will be difficult for an employer to get rid of an unwanted employee, if the reasons for dismissal are far-fetched, and the methods of reduction are illegal, then he can easily return on the same conditions on which he worked earlier.

Subsequently (even immediately after reinstatement), the employee may quit according to own initiative, but with full respect for their rights.

Salary compensation

If the employer prevents the employee from fulfilling his direct duties and deprives him of earnings for this, then in accordance with Art. 234 of the Labor Code of the Russian Federation, he will be obliged to compensate for the lost wages. It's simple: if you don't let work through your own fault, pay anyway, because the employee is ready to perform his functions. So in case of illegal dismissal, the employer will have to pay a certain amount for the absence of work, not on the initiative of the employee himself.

The amount of compensation is calculated taking into account the average monthly earnings of a particular person and the following factors:

Only a month is given to the court to consider the case of illegal dismissal (Article 154 of the Code of Civil Procedure of the Russian Federation).
The term for filing a statement of claim in court on labor disputes related to illegal dismissal, does not exceed a month from the date of receipt of the work book / order of dismissal (Article 392 of the Labor Code of the Russian Federation).

Thus, an employee whose employer “left” on his own initiative in violation of the law can receive compensation in the amount of 1 - 2 months' earnings.

Compensation for moral damage

The employer's actions that caused a violation of the employee's personal non-property rights may become the basis for compensation for moral damage (Article 237 of the Labor Code of the Russian Federation). Payments are also implied in case of illegal dismissal. But the damage received still needs to be proven in court and it is not at all a fact that the decision will correspond to the requested compensation.

Usually, the judiciary significantly underestimates the amount of compensation for non-pecuniary damage, based on the objectively incurred moral and physical suffering, and not based on his overestimated expectations of revenge on the employer.

Dismissal of an employee who came to replace

The company will have to make personnel changes if the position of a former employee has already been taken. The employer will be forced to fire a new employee in someone else's job with compensation in the amount of two weeks' earnings (or transfer to another similar position). The basis for the termination of his employment contract will be clause 2 of Art. 83 of the Labor Code of the Russian Federation.

Inspection by regulatory authorities

In addition to legal proceedings, an unlawfully dismissed employee has the right to violate his rights to the labor inspectorate or the prosecutor's office.

Such an appeal threatens to be checked by these state bodies, and if any violations of labor legislation are revealed, the employer will incur an administrative one (Article 5.27 of the Administrative Code).

The punishment under this article is as follows: for the head of the company - a fine of 1000-5000 rubles, for individual entrepreneurs - a fine of 1000-5000 rubles or suspension of work for up to 3 months, for legal entities – fine of 30,000-50,000 rubles or suspension of the operation of the enterprise for up to 3 months.

Also offended former employee out of a sense of revenge, he can also report non-compliance with legislation in other areas, by submitting a statement describing the facts of violations to the tax service, with evidence of non-compliance of production with environmental standards to Rosprirodnadzor, etc. Here the company may face liability up to criminal, depending on the degree guilt in a particular offense.

When can the consequences be avoided?

The employer can be lucky and he will not have to answer for the violations committed during the dismissal or transfer of the employee. But this situation will happen only for one of two reasons: the employee will not dispute the fact and go to court, or he will not be able to prove that violations took place.

Consent to dismissal

Not everyone will fight for their rights. Many will simply find new job and will not waste time on litigation. Some simply do not know about such a possibility or do not have time to go to court.

There is another side - when the employee has no desire to recover at the previous workplace due to existing disagreements with the management and the team.

Why exacerbate the situation even more by returning by court order, if you can go to a more suitable organization.

In addition, labor disputes and conflicts with management are not always the reason for illegal dismissal, because violation of the order of dismissal is such a reason for going to court. But the employee, at his discretion, can accept such a dismissal with non-observance of the necessary procedure, and then no consequences for the employer are provided. Yes, there was a mistake, but it did not harm anyone, so there is no point in restoring justice.

Lack of evidence

An employee does not always agree with his dismissal; he may consider it illegal and unreasonable. But the employer turns out to be in order - he correctly kept all personnel documentation, taking into account all violations labor discipline on the part of the dismissed.

That is, a company representative can bring to the court properly executed absenteeism and violations, memoranda and explanatory notes, a competently drawn up order of dismissal indicating all the grounds for terminating the contract. The employee has no chance against such documentary support. The court will refuse the plaintiff to reinstate his job and pay compensation, recognizing the reduction as legal.

If you intend to terminate the employment contract the employer needs to prepare all the necessary basis for dismissal. And the main thing is to fully comply with all the provisions of the procedure for dismissal from office: to deliver timely notifications of the upcoming layoffs, sign to read the documents on the reasons for dismissal, comply with the terms of notification and compilation of this or that paper, fill out the work book according to the rules and make payments in a timely manner.

Then there will be no claims from the employee, and if there are, the court will resolve the dispute in favor of the employer, recognizing the dismissal as completely legal and justified. In this situation, it will be possible to avoid negative consequences from unlawful termination of the employment contract.

Illegal dismissal has become a practice for our country. Employees who encounter him are most often interested in whether they can recover to their previous place of work or receive legal compensation. Only professional legal assistance upon dismissal will help to defend the legal rights of an employee in such a situation.

Illegal dismissal of an employee - the main types

Dismissal of an employee without his consent or in violation of the procedure established by law is illegal.

Illegal dismissal from work is classified according to the type of violations committed. In particular:

dismissal on unlawful grounds;
dismissal on invalid grounds;
an indication of a different basis for dismissal than what was in reality;
dismissal with proper registration of misconduct and violations job responsibilities employee (absenteeism, drunken appearance at the workplace, violation of labor protection requirements, theft);
dismissal with refusal to pay wage arrears;
dismissal on reduction without actually carrying out the reduction procedure;
violation of the procedure for warning the employee about dismissal (liquidation, reduction, etc.);
dismissal for inconsistency with the position or qualifications, if the preliminary certification of the employee was not carried out;
dismissal for non-compliance with the position or work for health reasons, when a medical examination has not been completed.

Often the employer invites the employee to write a letter of resignation upon the fact of his committing a disciplinary offense. The employee can agree to this, or, if he is firmly convinced that he is facing a case of attempted illegal dismissal from work, refuse and not sign any documents.

Many employers take advantage of the ignorance and ignorance of their employees in the field of labor law. Often the illegal dismissal of an employee is carried out without his fault, on insignificant grounds, due to legal illiteracy officials making the appropriate decision.

Legal assistance on illegal dismissal

Prompt consultation by phone or in the office of the bureau

Labor lawyer - specialist assistance in illegal dismissal

Consideration of cases on illegal dismissal of an employee

Assistance in the event of dismissal is provided by two instances: the state labor inspector and the court. The first has the right to carry out inspections of the observance of the rights of the employee, to issue instructions for eliminating the identified violations. To do this, you need to write an application to the labor inspectorate.

To go to court, a claim for illegal dismissal is drawn up, evidence is prepared. It is reasonable to seek legal assistance and legal advice on labor issues from a professional lawyer who can achieve a favorable outcome for the employee in the case.

Legal consequences of illegal dismissal

Recovery at work.
Payment of compensation without reinstatement at work.
Change of grounds for dismissal of an employee. If, as a result of an incorrectly chosen reason for dismissal from work, the employee for some time could not get a new job, then he is paid compensation in the amount of average earnings for the lost time;
In the event of unlawful termination of a fixed-term employment contract, the court may oblige the employer to reinstate the employee at the previous place of work in the previous position for a period until the expiration of the contract. If the term expires when the case is considered by the court, then the basis for dismissal from work is changed. When reinstating in the same place, the experience becomes continuous.

If the court has recognized the fact of illegal dismissal from work, then a corresponding entry is made in the work book, as well as an entry on the employee's reinstatement at the previous workplace.

Illegal dismissal from work also implies compensation for moral damage to the employee, and regardless of the claim he himself has set, solely by a court decision.

Lawyer assistance

If the employer delays in reinstating the employee, the competent authority makes a decision to pay the employee compensation for the entire delay in the execution of the decision. In the absence of valid reasons for the delay in the execution of the court decision on the illegal dismissal of the employee, the employer pays a fine (on the basis of Article 85 of the Federal Law "On Enforcement Proceedings").

Illegal dismissal from work is not a sentence yet. We will help you to defend your legitimate interests, and will not allow the arbitrariness of employers.

According to law. In cases of unlawful dismissal, you have the right to reimbursement of financial costs and legal costs, as well as compensation for non-pecuniary damage by collecting them in court.

16.06.2017 |

Hunlawful dismissal employee any termination of labor relations made in violation of the procedure, the norms of the Labor Code, and also in the absence of grounds can be recognized.

In this article you will find general grounds for appealing layoffs and find out what can be obtained if the dismissal is declared illegal.

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

How long does it take to go to court in case of illegal dismissal?

For more information about the different grounds for dismissals, see the links below.

We recommend that you come for a consultation with our labor lawyer Valentina Yuryevna Rumyantseva(by links, lawyer) ... You can sign up for a consultation by phone+ 7-981-746-76-21 (on weekdays from 10 to 18)

What could be legal grounds for dismissal?

The basis for voluntary dismissal is the employee's application, there is no application - dismissal is illegal (article ), Grounds for staff reduction (more in the article) - the decision of the employer, and at the same time the positions should 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 a failure to pass the probationary period, there should be not only the establishment of the probationary period itself, but also confirmation of the failure to pass the test (more in the article) .

For dismissal 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 organization needs to be liquidated, not reorganized, 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-performance by an employee of labor duties that has a disciplinary penalty) requires a disciplinary penalty, which has not been lifted by the day of dismissal, proof of the fact of failure to perform duties, compliance with the procedure, etc.). You can read more 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 count on if you appeal the dismissal?

When illegal dismissal you can be reinstated at work or the wording and date of dismissal changed, you can collect wages for the time of forced absence and compensation for moral damage.

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

To begin with, 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 terminating an employment contract are:

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

2) the expiration of the term of the employment contract (Article 79 of this Code), except for cases when labor Relations in fact continue and neither side has demanded their termination;

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

4) termination of the employment contract on 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 an elective job (position);

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

7) the employee's refusal 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 employee's refusal to transfer to another job that is necessary for him in accordance with the medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts Russian Federation, or the employer does not have an appropriate job (parts three and four of Article 73 of this Code);

9) the employee's refusal to transfer 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 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.

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

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

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

3) inconsistency of the employee with the position held or work performed due to insufficient qualifications, confirmed by the results of attestation;

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 failure an employee without good reason for labor duties, if he has a disciplinary penalty;

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

a), that is, absence from the workplace without good reason during the entire 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 the employee at work (at his workplace or on the territory of the organization - the employer or facility, where, on behalf of the employer, the employee must perform labor function) in a state of alcoholic, drug or other toxic intoxication;

c) disclosure of secrets protected by law (state, commercial, official and other) that have become 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 minor) of someone else's property, embezzlement, deliberate destruction or damage, established by a court verdict that has entered into legal force or by a decision of a judge, body, official authorized to consider cases of administrative offenses;

e) violation of labor protection requirements established by the labor protection commission or the labor protection authorized by the employee, if this violation entailed serious consequences (industrial accident, 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 the loss of confidence in him on the part of the employer;

7.1) the employee's failure to take measures to prevent or resolve a conflict of interest to which he is a party, failure to submit or submit incomplete or inaccurate information about his income, expenses, property and liabilities of a property nature, or failure to submit or submit deliberately incomplete or inaccurate information on 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 the loss of confidence in the employee on the part of the employer;

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

9) adoption of 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 job duties;

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

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

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

Other cases established by the Labor Code include grounds such as the test result (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 on a ground 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 in court.

Who cannot be fired on the initiative of the employer?

Even if there is a basis in the law, there are categories of workers who cannot be dismissed at the initiative of the employer, for example dismissal is illegal during vacation and temporary incapacity for work, except in cases of liquidation of the organization, you cannot be fired , women with children under 3 years old, single mothers raising a child under the age of fourteen (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 one-time, methods of education related to physical and (or) mental violence against the personality of a student, a pupil for teachers )

Is it mandatory to follow the termination procedure?

Particular attention should be paid to the dismissal procedure. In some cases of dismissal, the opinion of the union is mandatory. In other cases, a notice of dismissal not less than 2 months in advance (liquidation, reduction) or a mandatory offer of vacancies is mandatory.

For example, dismissal under clause 5 of Art. 81 of the Labor Code of the Russian Federation in the case of repeated non-fulfillment by an employee without good reason of his labor duties, if he has a disciplinary sanction, implies a repeated violation and, at the same time, disciplinary sanctions with an appropriate procedure must be imposed for previous violations. Before the application of a penalty, the employer is obliged to demand an explanatory statement 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 terms for the imposition and removal of penalties. Read more in a separate article (read).

Dismissal may be declared illegal by the court if the reason for the dismissal of the employee is immaterial.

Per disciplinary offense the employer has the right to apply one of the types of punishment: remark, reprimand,. So, if the court establishes that a reprimand or reprimand could be made for your disciplinary offense, then dismissal may be illegal... Everything is very individual, and each situation must be considered separately. Even for overlay disciplinary action the severity of the offense must be taken into account.

Deadlines for appealing the dismissal.

And the last thing to know about illegal dismissal, this is that it can only be challenged for a month. Such is limitation of actions on dismissal cases.

Where to go in case of illegal dismissal?

Issues of dismissed employees have the right to deal with exclusively court as it is an individual labor dispute. The labor inspectorate is not competent to appeal against dismissal!