Reinstatement at work in case of illegal dismissal. Causes and consequences of illegal dismissal of employees Judicial practice on illegal dismissal of a manager

Illegal dismissal means violation of the employee's rights. Such dismissal is illegal if it was made for reasons not provided for in the Labor Code of the Russian Federation.

Types of illegal dismissal

If illegal dismissal from work occurred without legal grounds. In Art. 77 of the Labor Code of the Russian Federation sets out an exhaustive list of general grounds on which labor relations with an employee are terminated. Dismissal without explanation is also illegal.
If the order (procedure) of dismissal was violated. For example, the dismissal of certain categories of persons enjoying the preferential right to remain at work: interns, as well as highly qualified workers; in case of violation or non-compliance with the procedure for bringing an employee to disciplinary responsibility.

Gross violations of the law are cases when pregnant women, mothers and single fathers who are raising a child under fourteen years of age are illegally fired. In addition to those situations when the organization was liquidated, the dismissal of employees who were disabled or were on maternity leave.

Illegal dismissal for absenteeism

Truancy is one of the time-consuming grounds for dismissal, and is at the same time a disciplinary measure. Labor relations can be terminated for absenteeism only if the employee's guilt is established, as opposed to the dismissal of employees to reduce staff. The employer is strictly obliged to follow the procedure, as well as to prove the legality of such dismissal, i.e. the fact of absenteeism without good reason.

The dismissal procedure conditionally consists of three stages:

Correct registration of the fact of absenteeism.
Establishing the reasons for absenteeism.
Decision-making on dismissal.

Procedural errors may result in the dismissal being declared unlawful in court.

Employee rights in case of illegal dismissal

Right to defense labor rights.
The right to file a claim in court.
The right to reinstatement at work.
The right to compensation due to the employee.

Where to go in case of illegal dismissal

In this case, first of all, you need to contact the body for the protection of the labor rights of citizens. This body is the state labor inspectorate. The application should be submitted no later than 1 month from the date of receipt of the order of dismissal or work book.

The complaint is considered within 10 days. In addition, the employee has the right to file a claim in court. If the dismissal is declared illegal by a court decision, then the employer is obliged to restore the employee in his previous position, as well as pay all the salary that he did not receive for the entire period of forced absence. In addition to these payments, the employer is obliged to compensate for other costs: moral damage, the services of a lawyer or attorney who represented interests in court.

Obviously, illegal dismissal carries with it unfavorable legal implications for the employer.

There is no term “illegal dismissal” in Russian legislation. But in everyday life, this term means termination labor contract on the initiative of the employer without sufficient grounds.

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In recent years, labor law in Russia has been actively developing and an increasing number of people who have been dismissed illegally are seeking reinstatement at work or payments due in accordance with the legislation.

How to determine

Below are the legal grounds for dismissal:

the organization is liquidated (ceases its activity);
staff reduction occurs;
the employee does not meet the requirements of the position held, which is confirmed by the attestation carried out;
there is a change in the leadership of the organization;
the employee repeatedly violates the internal regulations of the company without good reason and has disciplinary action (reprimand or reprimand);
an employee directly responsible for material values and funds committed guilty act as a result of which the employer's trust has been lost;
an employee performing educational functions has committed an immoral act;
at the conclusion employment contract the employee has provided deliberately false information, as well as in other situations.

Also, the employer has the right to unilaterally terminate the employment contract if an employee of the company has once grossly violated his obligations or work schedule.

The following circumstances are understood as gross violation of the work schedule:

absenteeism or absence from the workplace of an employee for four hours in one shift or day without a valid reason;
appearance at the place of work in a state of narcotic, alcoholic or other type of intoxication;
disclosure of secrets of a commercial, state or other nature, including personal data of colleagues;
embezzlement, theft, intentional damage or destruction of property;
failure to comply with labor protection requirements, which has entailed or created a threat of an accident, accident or catastrophe.

If the employee answers directly and works with material assets or in cash and committed some guilty act that resulted in the loss of management's confidence, the employer has the right to terminate the employment agreement unilaterally on the following grounds:

the worker has not taken measures aimed at preventing the conflict to which he is a party;
did not provide the employer with information (if justified) regarding his income, expenses or the presence of property outside the country, the corresponding property of his spouse or children.

Procedure for imposing a disciplinary sanction

For non-fulfillment or evasion of their work duties, the employer has the right to impose disciplinary action on the employee, such penalties include: reprimand, reprimand or dismissal.

The employer is obliged to take into account the gravity of the offense committed and its circumstances, and also to comply with the established procedure:

before imposing a penalty, request an explanatory note from the employee (if it is not submitted within two days, a corresponding act is drawn up);
the penalty cannot be applied after six months from the date of the misdemeanor;
for each offense, only one disciplinary penalty is applied;
an order on the appropriate measures must be provided to the employee against signature (in case of evasion, an act is drawn up).

Additional grounds for dismissing a teacher

Thus, if the above procedure is not followed and the penalty is applied beyond the deadline, then it is illegal.

In addition, other grounds are provided for terminating an employment contract concluded with an employee-teacher:

repeated violation during the year of the charter of an educational organization;
single or repeated use of mental or physical violence against the student's personality;
reaching the maximum age for filling a position.

Athlete

If an employment contract is concluded with an athlete who has been disqualified for a period of six or more months, the employer has the right to terminate it unilaterally. The same applies to anti-doping rule violations, even if the offense was committed once.

Examples of

It should not be forgotten that upon dismissal of an employee (at the initiative of the employer), he is entitled to compensation payments, the amount of which varies depending on the grounds for termination of the employment contract.

If the dismissal occurs without the above grounds or in violation of them, then it may be declared illegal.

The most common situation is when the boss requires you to draw up a letter of resignation at will. Such a requirement is illegal and should not be fulfilled.

In case of redundancy, the employer is obliged to pay compensation to the employee, and in case of dismissal, on their own such payment is not provided.

Where to go

The following state bodies can help in a situation of illegal dismissal:

Labour Inspectorate(its address can be found in the help desk or on the Internet);
the prosecutor's office;
judicial authorities.

In order to determine where to turn to protect your rights, it is necessary to understand the powers of these bodies and their methods of work. If a trade union is organized at the enterprise, you can contact its management to protect your rights.

Labour Inspectorate

The Labor Inspectorate oversees compliance with legislation and workers' rights. This should be contacted if there is documentary evidence of illegal dismissal.

The application is drawn up in writing, documents confirming the violation must be attached to it.

The labor inspectorate is obliged to check in any case, but if there is not enough written evidence, then the decision may not be made in favor of the employee.

Prosecutor's office

The prosecutor's office must be contacted in the event that the employer's violation can be attributed to the number of criminally punishable acts. In this case, the prosecutor's office will check and prosecute the guilty person.

If there were no such circumstances at the time of dismissal, then the prosecutor's office, most likely, will redirect the appeal to the labor inspectorate.

Judicial authorities

Going to the courts is most effective. But very big role assigned to the correct preparation of the statement of claim and the construction of a line of conduct in court.

So, an incorrectly drawn up statement of claim can be rejected by the court and left without consideration.

Terms of going to court

It is extremely important to submit an application on time, since the Labor Code of the Russian Federation provides for a time frame during which an employee can apply to the judicial authorities for the protection of his rights.

After these deadlines, the claim will be left without consideration, except for a situation when the deadline for filing an appeal was missed for a good reason.

The following deadlines are provided for filing a claim regarding the protection of labor rights:

for disputes related to illegal dismissal, the employee has the right to apply to the judicial authorities within a month from the date of receipt of the relevant order or work record book;
for other labor disputes, the employee has the right to go to court within three months from the moment when he learned or could learn about the violation of his rights.

Legal implications

If the dismissal is recognized as illegal, the following legal consequences may occur:

the person is subject to reinstatement at the previous workplace under the conditions under which he was previously hired;
if the position is already occupied by another person, then such an agreement with a new employee is subject to termination on the basis of the Labor Code of the Russian Federation or he is transferred to another place of work;
if by the time of recovery the company is liquidated, then the worker is recognized as dismissed in accordance with the Labor Code of the Russian Federation;
it is possible to make a decision to recover compensation for illegal termination of the contract in favor of the employee without restoring it in its previous place;
it is possible to make a decision to change the basis for dismissal;
if it is proved that the reason on which the employee was dismissed illegally and due to its wording the latter could not get a job, then this time must be paid based on the amount of average earnings, while the amount paid goes towards the severance pay;
the wages accepted for work with another employer are not subject to reduction;
the amount of severance pay paid during this time is not subject to reduction;
in a situation in which a fixed-term employment contract was concluded and the employee was dismissed before its validity period, the latter is subject to reinstatement at the previous place of work;
if the term of work is fixed-term contract has already expired, then the wording that served as the basis for the dismissal changes;
when the dismissal is recognized as illegal, an employee of the personnel department is obliged to make an entry in work book on the invalidity of the contested dismissal and reinstatement in the same place or on changing the grounds for terminating the employment contract;
upon written request of the employee, the employer is obliged to provide a duplicate of the work record book without a record of unlawful dismissal;
if for the period from the date of illegal dismissal to the time of restoration at the previous place of work, an increase in the level of remuneration was carried out, then the employee's salary shall be increased by an appropriate coefficient;
the employee may be awarded compensation for moral damage (many factors are taken into account, including the presence and degree of such harm);
the employer can be brought to administrative responsibility for violation of the employee's labor rights and illegal dismissal.

Arbitrage practice

When considering claims for illegal dismissal, the court is guided by the provisions of the Labor Code of the Russian Federation, the circumstances of the case and the evidence presented. In addition, the provisions of the Plenum are taken into account. The Supreme Court RF, approved by the Decree of 03.17.2004.

For example, when the court is considering a statement of claim for restoration in the same place labor activity of a person dismissed at the initiative of the employer, the obligation to prove the existence of legal grounds for terminating the employment contract is assigned to the organization.

In this case, the court takes into account the following factors:

it is not allowed to terminate the contract with employees who are on sick leave, on vacation, pregnant women, as well as mothers raising children under the age of three years;
the dismissal of single mothers with children under 14 years old (a child with a disability - up to 18 years old) is prohibited;
the dismissal of men who support children without a mother is prohibited;
termination of the contract with underage workers, if the permission of the labor inspectorate has not been obtained;
employees of the organization acting in defense of the plaintiff cannot be dismissed.

A complete list of the circumstances that govern the court is reflected in the above Plenum of the Supreme Court of the Russian Federation.

For absenteeism

Most often, employers terminate an employment contract for absenteeism. This term means the absence of an employee at the workplace for four hours in a row during one day or shift, as well as absenteeism without a good reason.

It is common for an employer to deliberately forge a disciplinary order and subsequent dismissal for absenteeism.

In such a situation, the employee, as soon as he learns about the illegal dismissal, must immediately take the following measures:

require the submission of a disciplinary order and dismissal;
if the employer only provides an order of dismissal against signature, it is necessary to write directly on the document that the order has not been handed over, the employee does not agree with the basis for dismissal and no explanation for the violation was required from him;
if possible, you need to photograph the submitted documents at least with a mobile phone camera;
it is necessary to talk with colleagues - perhaps one of them will agree to testify in court in your favor;
if during the days of so-called absenteeism, the employee was at the workplace and called up with clients or led business correspondence through Email, signed documents - it is necessary to photograph or copy these papers, they will serve as proof of the illegality of the dismissal;
if the work schedule is free or irregular, or is associated with travel around the city, which is directly indicated in job description, then it will be quite difficult to prove absenteeism to the employer in court when the employee provides such documents where these conditions are spelled out.

How is recovery at work

Upon receipt of the relevant decision of the competent authority, the employee has the right to take the following measures:

apply with an application for initiation of enforcement proceedings to the bailiff service at the address of the organization's location (you must have an appropriate decision with you);
if a new worker is hired to the previous place, he is fired or transferred to another position;
the resignation order is canceled and a corresponding entry is made in the work book about reinstatement in the same place;
the employee returns to work in the same position from which he was illegally dismissed and with the same level of remuneration.

His term

Restoration in the same place when the dismissal is declared illegal is regulated by the Labor Code of the Russian Federation. The decision to restore is subject to immediate execution.

In case of delay due to the fault of the employer, the worker is paid compensation payment in the amount of the average salary for the entire period of forced waiting.

If no one has illegally fired you yet, do not think that you do not need to read this article. Basic knowledge labor legislation may help to avoid illegal dismissal, from which no one is insured today.

What is illegal dismissal?

The grounds for termination of an employment contract on the initiative of the employer are set out in article 26 of the Law of the Republic of Kazakhstan "On Labor" and we have discussed in the article "What can be fired for?" Strictly speaking, any dismissal of an employee without his consent on other grounds or in violation of the established procedure will be illegal.

The following violations of the law by employers upon dismissal are most common:

dismissal on grounds not provided for by law;

dismissal on grounds that did not take place in reality;

an indication of a different basis for dismissal than the one that took place in reality;

dismissal without due documenting disciplinary misconduct and gross violation work duties (truancy, drunkenness, violation of safety rules, theft, etc.);

non-payment of the arrears to the dismissed employee wages under far-fetched pretexts;

dismissal with the formulation of a reduction in the number or staff without a real reduction procedure;

violation of the procedure for warning employees about the upcoming liquidation or termination of the employer's activities, reduction of the number and staff;

dismissal for inconsistency with the position held or work performed due to insufficient qualifications without proper certification of the employee;

dismissal for inconsistency with the position held or work performed for health reasons without a proper medical examination.

pay attention to important point... Very often, the employer makes a dismissal on his own initiative, but invites the employee to write a statement on termination of the employment contract of his own free will. Of course, if in fact there was a disciplinary act or the dismissal was made for other defamatory reasons, it makes sense to agree to such an entry in the work book. But if the dismissal is made for clearly illegal reasons, in no case do not accept this option. With such a wording of the grounds for termination of the employment contract, you significantly reduce the likelihood of judicial protection of your rights. And although, when considering such cases, the courts must carefully check the motives that gave rise to the application for dismissal, and, having established that the employer forced the employee to apply for resignation, the court must declare the dismissal unlawful, it will be extremely difficult to prove such coercion.

A large number of violations of labor legislation when terminating an employment contract at the initiative of the employer is associated with a number of factors, which include: legal illiteracy officials making certain decisions on behalf of the employer; lack of a lawyer ( legal service at the enterprise). However, the lack of knowledge by the workers themselves of their rights also plays an important role.

Where to appeal against illegal dismissal?

To date, almost the only option is to go to court. Although Chapter 11 of the Law of the Republic of Kazakhstan "On Labor" provides for the possibility of creating conciliation commissions from among representatives of employers and employees, such commissions are practically not created anywhere in practice.

You can also file a complaint with the state labor inspector. These officials have the right to check compliance with labor legislation, issue binding orders to the employer to eliminate violations, and bring violators to justice. But to restore your job, and even more so to collect wages and (or) compensation for moral damage, if the employer does not recognize your actions as illegal, you will be advised to go to court.

A considerable number labor disputes considered by the courts, is decided in favor of the workers. Effective judicial protection of workers' labor rights is quite possible, especially if the necessary knowledge is available. The shortcomings in this case (especially the significantly increased terms for the consideration of labor disputes in courts) impede the successful implementation by the courts of state protection of the rights and interests of citizens. But in any case, you need to protect your rights.

Preparing to go to court

Before going to court, you need to prepare thoroughly.

We think that it is no longer necessary to explain to anyone that even when hiring you should have concluded an individual labor contract. However, it is no secret that many employers still do not compose it. Either the employee is not included in the state at all, and taxes and pension contributions are not paid for him, or the employee is in the state, but according to the accounting department minimum size wages, and the rest is paid, as they say, "in an envelope."

The presence of an employment contract with the specified in it real size salaries are highly desirable. Require the employer to conclude a contract and issue you a copy in advance. It will be difficult to do this upon dismissal.

In your work record book (if you have one), there must be records of admission and dismissal.

If you do not have a contract on hand, ask the employer to issue a certificate on the amount of your salary for the period of work. What is it for? This amount will be needed to calculate when collecting unpaid wages and payment for the time of forced absenteeism when reinstating at work. And if it is not reflected anywhere, it will be established from the words of the employer, who referred to his reporting data. Therefore, it is possible that when you actually receive 30,000 tenge per month, you will only collect 5,000, since this amount was paid according to the documents.

"At the request of the employee, including the former, the employer is obliged, no later than within five days from the date of application, to issue him a certificate indicating the specialty, qualifications, position, work time and salary, characteristics - a recommendation containing information about the qualifications of the employee and his attitude to work, as well as other documents on work provided for by this Law "(Article 14 of the Labor Law). However, employers everywhere and with impunity violate this norm.

If the employer does not give you any documents at all in the statement of claim, you must state a request to the court to claim them. Even if your hiring was not documented, the actual admission to work confirms the conclusion of an individual labor contract (paragraph 2 of Article 12 of the Labor Law). Although it is possible that if your hiring was not formalized at all, the employer will declare that you have never worked for him, and he generally sees you for the first time. This again suggests that the documents confirming employment and the amount of earnings must be taken care of in advance.

It is necessary to decide on your requirements for the employer: reinstatement at work, payment for the time of forced absenteeism, payment of wage arrears, change of entry in the work book, compensation for moral damage.

It often makes sense to contact your employer with a written complaint stating your requirements. A well-written claim can resolve the case in your favor out of court, and can also serve as further evidence of the existence labor relations if they are not confirmed by other documents. Just make sure that you have a second copy of the claim with the employer's stamp of the time of its acceptance or a postal receipt of dispatch.

Submission and consideration of a claim for reinstatement at work

The procedure for considering labor disputes in court is regulated by labor and (like all civil cases) civil procedure legislation - the Civil Procedure Code of the Republic of Kazakhstan.

By general rule the claim is filed with the district (city) court at the location of the defendant - that is, the employer. However, according to paragraph 8 of Article 32 of the Civil Procedure Code of the Republic of Kazakhstan, claims of workers in labor cases can also be brought at the place of residence of the plaintiff.

The application must be accompanied by the documents necessary to substantiate the claim: copies of the individual labor contract, work book, orders (orders) of the employer for the admission, dismissal or imposition of disciplinary sanctions on the employee, certificates of earnings and any others that confirm the fact of your work, dismissal, earnings.

The court must resolve the dispute in accordance with the circumstances of the case and the law.

When considering a dispute, the court listens to the parties, other participants in the process, analyzes the materials in the case. The court can, at your request, call witnesses, invite specialists, experts, request from you or the employer the documents necessary for the correct resolution of the case.

In the course of the proceedings in the court, you can change your claims, increase or decrease them, change the subject matter, the grounds for the claim, abandon the claim. Often, the consideration of such cases ends with the conclusion of an amicable agreement between the parties. But pay close attention to the terms of the settlement agreement proposed by the employer. Once entered into, such an agreement deprives you of the right to re-appeal to the court with the same claim.

When considering a labor dispute, the parties to the litigation in this dispute are the employee and the organization (individual entrepreneur), and not the manager (director, manager, etc.), although these persons may be the same.

An employee who initiated a labor dispute in court is a plaintiff, and an organization (represented by its representative) challenging the employee's claims is a defendant.

In labor proceedings, not only representatives of the parties are allowed to participate, but also representatives of trade unions, although these days this is a rarity.

When submitting applications to the court for the resolution of individual labor disputes, employees are exempted from paying the state duty (subparagraph 2 of Article 501 of the Tax Code of the Republic of Kazakhstan). However, if you put forward a claim for compensation for moral damage, you will need to pay a state duty in the amount of 50% of the monthly calculation index (MCI) - in 2004 - 460 tenge.

If you use the services of a lawyer or a lawyer, you must file a petition for reimbursement from the employer for the costs of legal aid.

Delivery by the court of a decision on a dispute

When applying for legal protection, you can count on the restoration of the violated right, as well as compensation for the average earnings for the period of forced absence from work.

In case of termination of an individual labor contract without a legal basis, the employee must be reinstated in his previous job by the body considering the labor dispute. An employee reinstated in his previous job in connection with the illegal termination of an individual labor contract is paid average earnings for the entire period of forced absence from work, but not more than three months (Article 29 of the Labor Law).

In case of illegal dismissal of an employee in order to restore the violated right, it is possible either to actually reinstate at work in the previous position, or, if the dismissal is declared illegal, to change the wording of the dismissal.

Going to court, you probably guess that it is unlikely in the case of your recovery in judicial procedure at the previous workplace, favorable moral conditions will be created for you to work. Most often, an employee who has been reinstated in court is subsequently dismissed of his own free will, having worked after recovery for a very short time.

If the employee's claim is satisfied, then court costs, including state fees, are recovered from the defendant.

Decision on labor disputes is issued by the court on the basis of a comprehensive study of all materials, testimonies of the parties, other participants in the process (if any). It must be motivated and substantiated with precise references to legislation, other regulatory legal acts, a collective agreement (if any), an individual labor contract. The decision formulates the conclusion of the court about the satisfaction of your claim or refusal of the claim. When satisfying the claims, the court clearly formulates what actions should be taken by the defendant in pursuance of the decision. For monetary claims, a specific amount is indicated.

In case of dismissal without legal basis or in violation of the order of dismissal or illegal transfer to another job, the employee must be reinstated in his previous job.

Upon satisfaction of the claim for reinstatement at work and the collection of wages during the forced absence or during the execution
lower paid work, the courts must, in the operative part of the decision, determine the amount to be recovered, as well as the amount of court costs, and indicate the immediate execution of the decision. Since the law provides for payment for the time of forced absenteeism only for three months, there is no need to postpone filing a claim.

If the wording of the reason for dismissal is recognized as incorrect or does not comply with the current legislation, the court considering the labor dispute is obliged to change it and indicate in the decision the reasons for dismissal in strict accordance with the wording of the current legislation with reference to the relevant article (clause) of the law. If the wording of the reason for dismissal in the work book is incorrect or not in accordance with the current legislation prevented the employee from entering new job, the court simultaneously decides to pay him the average earnings during the forced absence.

At the employee's request, the court may limit itself to issuing a decision on the recovery of the above compensations in his favor and on changing the wording of the grounds for dismissal for dismissal of his own free will.

There are cases when the restoration of an employee in his previous job is impossible due to liquidation legal entity or termination of activity individual entrepreneur... In this case, the court recognizes the dismissal as wrong, obliges liquidation commission or the body that made a decision to liquidate (abolish) the organization, and in appropriate cases, the legal successor to pay him wages for the time of the forced absence. At the same time, the court recognizes the employee dismissed under subparagraph 1 of Article 26 of the Labor Law in connection with the liquidation of the organization.

The legislation recognizes it possible to compensate an unlawfully dismissed employee not only for material, but also for moral damage. If there is a corresponding demand from the employee, having established that moral harm has been caused to the employee by illegal dismissal, the court must recover this harm from the defendant. The amount of compensation is determined each time by the court, based on the circumstances of the case. However, do not rush to rejoice.The amount of compensation for moral damage is not determined by law. There are also no clear criteria for determining this size. The legislation gives a vague description of the criteria for determining the amount of compensation for moral damage - the degree of moral and physical suffering of the victim, as well as the degree of guilt of the offender. In practice, either the employee is generally denied compensation for non-pecuniary damage, or this compensation is paid in a small amount. This circumstance does not at all stimulate the employer to prevent such violations in the future.

The decision of the district (city) court may be appealed by the parties to the dispute to the civil collegium of the higher court within 15 days. At the same time, it can be challenged by the prosecutor. If there is a good reason for missing the specified period, it can be restored by the court. Upon the expiration of the specified period, it comes into force.

A higher court, considering a case on appeal, may uphold the decision of the first instance court, change or cancel it in whole or in part. If the decision of the people's court is canceled, the higher court may refer the case to the same court for a new examination on the merits of the dispute. He can also terminate the proceedings or leave it without consideration.

The court decision can be overturned by way of supervision. Therefore, the resolution of the dispute in your favor in the district (city) court should not be regarded as a final victory. However, and vice versa. Having been defeated in the court of first instance, continue to seek protection in the courts of appeal and review.

Execution of a judgment

A labor dispute considered in court is terminated by the execution of the court decision, namely by the actual implementation of the instructions contained therein (actual reinstatement of an illegally dismissed employee at work, payment of money awarded to the employee, etc.).

The law stipulates that the decision to reinstate an unlawfully dismissed employee at work, as well as to award wages, is subject to indispensable execution (subparagraphs 2) and 3) of Article 237 of the Civil Procedure Code of the Republic of Kazakhstan). This is one of the few cases when the decision is executed even before it comes into legal force (15 days).

If the employer delays in the execution of the court decision on the reinstatement of the employee who was illegally dismissed or transferred to another job, the court that made the decision to reinstate him at work may issue a ruling on the payment of his average earnings or the difference in earnings for the entire period of the delay.

If the head of the organization (employer) fails to comply with the executive document on reinstatement at work, the bailiff applies to the court with a proposal to make an order to pay the employee the average wage or the difference in wages for the entire time from the date of the decision to reinstate the employee until the day of its execution ... The execution of the decision on reinstatement at work is considered completed from the moment of the actual admission of the illegally dismissed or transferred employee to the performance of his previous duties, which followed the issuance of an order from the administration to cancel his illegal dismissal or transfer order (Article 68 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" ).

What's the bottom line?

We can say that the law provides for fairly broad rights of employees to appeal against illegal actions of the employer, in particular dismissal. However, in practice, these rights are not always and not fully implemented. This is due to a number of reasons. This can be attributed to the workload of courts, and, as a consequence, consideration of claims of employees for a long time; low legal literacy of employees, which excludes the possibility of self-protection of their rights, and afford to pay legal services in such a situation, not everyone is able to; the employee's lack of faith in the ability to defend his interests; passive behavior of workers in violation of their labor rights and low efficiency of work of state labor inspectors, which often leads to impunity for employers.

But you can and should defend your rights. The main thing is to make sure that they can be easily implemented. And this, when following simple recommendations, is available to everyone.

Conflict situations between the employer and the employee often lead to dismissal from the latter.

Dear Readers! The article talks about typical ways of solving legal issues, but each case is individual. If you want to know how solve your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and WITHOUT DAYS.

It's fast and IS FREE!

Therefore, a natural question arises, what to do in case of illegal settlement and where to apply for the restoration of your rights?

Basic moments

During temporary disability or vacation, you cannot leave without a job:

single mothers raising teenagers;
women with one-year-old children;
disabled children.

What it is

Dismissal of an employee is considered illegal if:

There is a clear violation of the requirements of the Labor Code.
Occurs during his absence from the workplace - sick leave, vacation.
There is no good reason for.
The guarantees prescribed by law are not taken into account ().

Having decided to reduce the staff, the employer is obliged to carry out the entire procedure, taking into account the requirements of the law:

notify in advance every worker subject to dismissal;
provide a job for persons who cannot be calculated.

Violation of workers' rights in some cases becomes the reason for litigation.

An injured employee can take advantage of a pre-trial claim to the employer for illegal dismissal.

Then go to court to win the case. He will be reinstated in the workplace if it is proven that the employer has infringed on his rights.

Possible grounds for termination of the employment agreement

The employee has the right to terminate the employment contract by submitting an application to the employer. In the absence of a document, the dismissal is considered illegal.

The Labor Code of the Russian Federation contains a list of legal grounds for terminating a work contract:

The parties came to a mutual agreement. The resigning person writes a corresponding statement with a request to calculate it by. The employer signs the document. This gives advantages when registering with the territorial employment service. The calculation of the allowance is based on the official salary, not the minimum wage.
Expired labor agreement... An exception may be the continuation of the relationship with the consent of both parties ().
The person did not pass (). Must be documented.
The teacher committed an immoral act in children's institution(Article 336 of the Labor Code of the Russian Federation).
The employee has expressed a desire to terminate the contract. Two weeks in advance, he notifies the management in writing (). By agreement of the parties, settlement may occur earlier the deadline... On the last day, a work book is issued and the final payment is made. Before the expiration date, the employee can change his mind and withdraw the application.
The boss has lost confidence in.
The employer calculates the employee for the violation labor discipline(Article 81 of the Labor Code of the Russian Federation). The worker appears at the workplace drunk (alcoholic, narcotic, toxic intoxication). The presence of repeated absenteeism in a person without a valid reason. Disciplinary action must not be withdrawn until the day of dismissal.
Safety regulations were not followed, which led to serious consequences.
Administrative offense.
Everyone is satisfied with the transfer of the worker to another position or to another enterprise. Confirmed in writing. You also need an invitation to a new job or drawing up for another position.
The employee disclosed confidential information. This also applies to the personal data of other people.
The change of ownership of the organization was the reason for filing ().
The terms of the employment agreement have changed. They do not suit the worker ().
Changes in the employee's physical condition. He is offered a different position. He refuses in writing ().
The certification confirmed the insufficient qualifications of the worker.
The employer changes the place of implementation entrepreneurial activity... This is not suitable for a worker ().
Staff reduction is required.
There are circumstances beyond the control of the parties ().
The employment agreement contains violations of legal acts related to employment. Continuation of cooperation became impossible (). The person receives a one-time compensation in the amount of a month's earnings.

Additional conditions for termination of an employment agreement apply to employers, rescuers, government, municipal employees and the military ().

The basis becomes:

Retirement age.
Disclosure of state secrets.
Business start-up.
Management of a commercial organization.
Participation in a dispute between two parties of a state body.

To carry out the procedure for calculating from the place of work, in addition to the grounds, documentary evidence of the facts is required.

To fire an employee who is seen in a state of intoxication, you need:

an act with fixed signs of a drunken state;
medical examination;
explanatory note of the violator.

To terminate an employment agreement due to absenteeism, you must have:

an act with a fixed absence from work for more than four hours without a valid reason;
written explanation of the truant.

Sometimes the reason for the termination of the contract may be circumstances that cannot be influenced by either of the parties.

These include:

Conscription for military or alternative service.
Restoration of the previous employee by a court decision to this place.
The employee must be punished according to the court order.
about the incapacity for work of the individual.
Death of one of the parties.
Extraordinary circumstances - a large-scale accident, military action, natural disasters.

In all these situations, the last day of work is used for dismissal.

The legislative framework

All issues related to labor relations are set out in the Labor Code of the Russian Federation:

Article 81 contains a list of reasons for dismissal.
stipulates general scheme process.
prescribes established compensation, settlement period, proper registration.

What you need to know about the illegal dismissal of an employee

Dismissal on a ground that is not provided for or by legislative acts is subject to challenge in court.

Following a disciplinary offense, the following penalty () may be applied:

rebuke;
comment;
dismissal.

If the court decides that it was enough to limit itself to the first two methods, then the severance of labor relations will be recognized as illegal.

When choosing a punishment, the severity of the offense is taken into account. Each case is individual and considered separately.

Legal dismissal is documented:

the head issues an appropriate order;
a note is made in the work book;
the employee gets acquainted with the document and puts his signature.

In some cases, the employee is asked to write before canceling the employment agreement.

After familiarizing himself with the decision of the management to terminate the employment agreement, the employee can use the next month to restore his rights.

Where to go

To establish justice, a person who has been fired has the opportunity to apply to three state authorities:

Federal Labor Office.
Prosecutor's Office.

The Labor Code of the Russian Federation provides for the creation of a state labor inspectorate, which would monitor compliance with the requirements of labor legislation.

This structure carries out checks of two types:

legal issues;
compliance with safety regulations.

A legal inspector will help restore the privileges of a dismissed person. The court makes the final decision on the dispute over the violation of workers' rights.

His decision is always carried out. There are cases when they resort to the help of bailiffs for the full execution of a court sentence.

Courts make decisions in the following areas:

restore at work;
change the wording of the reason for dismissal;
to produce monetary compensation the size of the average monthly earnings;
compensate for moral damage.

The prosecution authorities carry out inspections related to the violation of any type of legislation on the basis of an application to the prosecutor's office.

Their powers are similar to those of the labor inspectorate:

produce;
bring to administrative responsibility;
demand the elimination of violations;
offer to return identity workplace ().

Is compensation due

When reinstating at work, the employee has the right to compensation for damage related to illegal dismissal:

Sometimes the court obliges the employer to change the wording of the grounds for dismissal. Then the date of the actual termination of the employment relationship becomes the date of the relevant decision.

If the employee officially found another job, the termination date is a date prior to that moment.

The average salary is paid for forced absenteeism. The reason - the victim could not get a new job due to the incorrect formulation of the grounds for terminating the previous relationship.

Cash is issued in the event of serious harm to a worker.

This may be dismissal for no reason, in violation of the established procedure for carrying out the procedure. The amount of the payment is established by the court.

Nuances for a soldier

The servicemen also include employees of the internal affairs bodies. The requirements for both categories are identical.

Admission to the service, its passage, termination, legal status the employee is determined:

Labor Code of the Russian Federation.

The procedure for dismissing the military is described by internal orders. The documents contain:

List of positions.
Who carries out their dismissal.
Sample employee notifications.

Legal dismissal requires the following factors:

Judicial practice on the current situation

Frequent labor disputes open according to the statement of claim declaring the dismissal illegal from:

All costs of proving the legality and validity of the termination of employment are borne by the employer.

Advantages of a judicial review of the case:

The negative point is the time period for consideration of the claim. It usually lasts long enough.

Formation of a statement of claim in court

The statement of claim is submitted to the court at the location of the enterprise.

Sets the deadline for its registration government agency- a month should not pass from the date of receipt of the work book.

Rules for writing a sample claim:

A clear and clear statement of the essence of the issue.
Indication of the requirement for reinstatement in the position held, compensation for forced absenteeism and moral damage.
Provision of a work book, a concluded agreement, acts of bringing to responsibility. Evidence of falsification of the employer's arguments. Characteristics from previous places of work.
List of legislative acts that give the right to satisfy the stated requirements.
Attachment of all documents mentioned in the application.

How to correctly assess moral damage

The legislation does not provide clear methods for calculating compensation for non-pecuniary damage. The judge, based only on his subjective opinion, makes a decision on compensation for moral damage.

Contacting the labor inspectorate

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 the proper registration of misconduct and violations of the employee's labor duties (absenteeism, appearance at the workplace while intoxicated, 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 the legal ignorance of officials who make 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 selected 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 the 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 good reason delays for the execution of a court decision on the illegal dismissal of an 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.