Illegal dismissal of an employee is an up-to-date guide on how to defend your rights.

The term “wrongful termination” is a common phrase used to describe situations where an employee has been fired without apparent lawful cause or without proper termination procedures. In order to protect the interests of the employee, the legislator limited the grounds for dismissal and complicated the process of implementing this procedure. Unlawful dismissal from work is a fairly common case.

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

Reasons for dismissal

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

1. When the employing organization ceases to exist. There can be various reasons: bankruptcy, voluntary liquidation, termination of activities by decision of a government agency, and so on.
2. When, for objective reasons, there is a reduction in the number of employees - the staff at the enterprise. The reason, for example, may be financial situation, change in type of activity, etc.
3. If the employee is not qualified enough for the position. This is revealed during employee certification. Moreover, if the enterprise has a vacant position for which qualifications are considered sufficient, then the employer is obliged to offer the employee this vacancy.
4. A change in the owner of an enterprise in itself cannot be a legal reason, but this is always accompanied by recertification and layoffs.
5. When an employee does not follow the internal order of the enterprise repeatedly.
6. If the position implies the financial responsibility of the employee, then he can be fired if he loses the trust of the manager due to repeated violations of the procedure for conducting affairs in his position.
7. Some businesses have employees responsible for corporate ethics or safety compliance. If they violate the rules they are responsible for enforcing, they may also be fired.
8. When an employee entered a position illegally: he presented incorrect information or fake papers.
9. In case of a one-time gross violation of the rules at the enterprise.

It is illegal to fire a person for other reasons. Each reason for dismissal must be supported by relevant documents or testimony.

What is a gross violation

The workplace routine is established by the manager; the legislator has limited situations that are considered a gross violation. This is done so that any minor violations or failure to comply with the employer’s requirements do not become a reason for dismissal.

1. Missing work for unimportant reasons or being absent from work for no special reason for more than 4 hours in one shift.
2. Coming to work drunk, under the influence of drugs or psychotropic substances.
3. Disclosure of information constituting a commercial or state secret. Also disclosure of information about other employees, their personal data and other personal information.
4. Causing property damage to an enterprise through deliberate damage, embezzlement or misinformation. The premeditation of such an act is the determining factor.
5. Violation of safety regulations and other labor protection rules, which resulted in serious consequences or caused an accident or emergency.

In addition to dismissal, employees who allow such situations to occur are subject to financial, administrative or even criminal liability.

Loss of trust

The fact that the employer has lost trust implies the commission of a certain guilty act on the part of the financially responsible employee. However, the fact of the act itself is not a reason for dismissal, unless, of course, it is classified as criminal.

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

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

Special reasons for dismissal

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

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

1. disqualification for more than six months;
2. violation of the doping ban.

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

However, if their innocence is revealed, employees are entitled to proportionate compensation.

Examples of illegal dismissal

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

• dismissal under duress;
• dismissal in violation of the procedure established by law;
• dismissal without evidence of cause.

Dismissal under duress

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

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

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

Violation of the dismissal procedure

Even if there are legal grounds, violation of the dismissal procedure is grounds for declaring such dismissal illegal.

• when staffing is reduced, employees must be notified no later than one month in advance;
• when dismissal for other reasons, the employee must be notified two weeks in advance;
• You cannot fire an employee who is on vacation or undergoing treatment;
• the employee must be provided with a copy of the order;
• after dismissal of an employee, no later than two weeks, you need to make a settlement with him and return the work book.

Failure to comply with this procedure is unlawful dismissal of an employee. An order for such dismissal upon consideration by a court is declared invalid.

Dismissal without evidence

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

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

Failure to properly confirm the grounds entails the invalidity and illegality of dismissal.

Where to complain?

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

• trade union of the enterprise;
• Federal Labor Inspectorate;
• prosecution authorities;
• district court.

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

Trade union

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

The trade union, in turn, has the right to send a complaint to the Labor Inspectorate, which can force the employer to return the employee to his position.

Labor Inspectorate

As already mentioned, the Federal Labor Inspectorate, or as it is also called the “labor police,” has the power to coerce the employer. In addition, this body can hold the manager accountable.

However, the work of the inspectorate ends with checking whether the grounds for dismissal comply with the requirements of the law, as well as compliance with the legal procedure. Other facts: witness testimony, illegal layoffs are not examined by this body.

Prosecutor's office

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

Court

As practice shows, the most effective way to resolve cases of unlawful dismissal is to file a claim in court. Most court decisions in such cases are made in favor of the employee.

The statement of claim is filed with the district court within whose jurisdiction the enterprise is located. A court decision is binding on everyone, and its execution is under the control of bailiffs.

You need to contact the prosecutor's office or the labor inspectorate and simultaneously file a claim in court, since the first two bodies do not thoroughly study the issue.

Application deadlines

Timing is also important when challenging unlawful orders to dismiss an employer. Omitting them deprives the employee of the right to appeal the illegal deprivation of work.

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

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

Reinstatement

If the court finds the dismissal of an employee unlawful, return to work occurs as follows:

1. Together with the court decision, the court issues a document for the executive body, which must be immediately sent to the bailiffs. The head of the enterprise is obliged to implement the decision no later than one day after this.
2. The hiring of another employee or the fact that the position has been reduced does not prevent the return of the unlawfully dismissed employee.
3. It is necessary to ensure that the manager cancels the dismissal order and does not reinstate the employee. This matters when receiving involuntary unemployment payments.
4. The person must be notified in writing of the start of work. The same letter must indicate the cancellation of the dismissal order.
5. The inscriptions in the work book are being corrected. The notice of dismissal is considered invalid. A person also has the right to update his work book with the restoration of all existing records.
6. None of the employment conditions under which the employee worked before the unlawful deprivation of work are changed for any reason.
7. The employee’s personal file at the enterprise is also restored and corrected, with a separate note about the court decision.
8. The work record sheet is corrected and supplemented. The time during which a person was unemployed is counted as length of service with appropriate remuneration.

An employee has the right to compensation for all types of damage caused to him by unlawful deprivation of his job. The fact of compensation for damage and the return of an illegally dismissed person does not relieve the employer from liability for illegal actions.

Thus, every illegally dismissed person is protected by law. All that remains is to competently exercise your legal rights. A qualified lawyer can help with this. The most important thing is not to give up and not to succumb to the persuasion of the leader, who can end everything peacefully even during the trial.

One or more employees, as well as the general dismissal procedure. This is probably why employers often take this procedure quite simply, and sometimes even irresponsibly. However, a superficial knowledge of his labor rights is enough for an employee to decide to challenge an incorrect dismissal procedure and prove the illegality of the employer’s actions. Subsequently, failure to comply with legal regulations may lead to a labor dispute and other negative consequences listed below.

Legal consequences of illegal dismissal of an employee

Dismissal made in violation of the procedure provided for by the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), carried out at the initiative of the employer, or dismissal in the absence of a legal reason, is considered illegal. Moreover, even if the reason is truly legitimate, a gross violation of the procedure itself on the part of the employer can lead to the reinstatement of the employee to his job. Thus, having received at least one fact of non-compliance with the dismissal procedure provided for by the Labor Code of the Russian Federation, an employee can, within 30 days after his rights were violated (or he learned about the existing violation, for example, having received a work book with incorrect wording) contact the labor service inspection, or to court.

Despite the one-month period given to an employee by current labor legislation to go to court, there is no maximum deadline for filing a complaint with the labor inspectorate, which means that a former employee can complain about illegal actions after a year or more. However, the powers of the inspectors make it possible to issue an order to the employer, which the latter can appeal through the court, where it makes sense to pay attention to the missed deadline for the dispute.

Based on the results of consideration of the issue by a court or inspection, the following employee requirements may be satisfied:

• reinstatement to previous job;
• payment of compensation (average salary) for forced absence;
• restoration of continuous service, including forced absence;
• monetary compensation as compensation for moral damage;
• changing the wording of the entry or the date entered in the employee’s work book.

In addition, regardless of the employee’s requirements, the employer may be held administratively liable for the illegal dismissal of an employee, which is provided for in Article 5.27 of the Code of Administrative Offences. For individual entrepreneurs, the amount of an administrative fine can be 1-5 thousand rubles, for legal entities - 30-50 thousand rubles, and if a similar administrative offense has already been committed before, for a repeated offense the fine can be significantly increased: 10-20 thousand for entrepreneurs and 50 -70 thousand rubles for legal entities.

It should be separately noted a nuance that may arise if an employee wishes to be reinstated in his previous job. There are often situations when a new employee has already been hired to fill the position of a dismissed employee. In such a situation, the employer will need to decide whether he can keep both employees, or is forced to say goodbye to the new one, who will, in turn, have to be fired under Article 83.1.2 - due to with circumstances beyond the control of the parties, namely, in connection with the reinstatement of an employee who previously performed this work. If the employer does not want to lose a new employee, he can offer both the reinstated employee and the new one, which is available at the enterprise and may be suitable for this employee. If the old or new employee agrees, it will be possible to employ both.

If, after the unjustified dismissal of an employee and before his reinstatement in position, the organization was liquidated, the employee will be considered dismissed under Article 81.1 of the Labor Code of the Russian Federation, accordingly, he, like other employees, due to liquidation will have the right to severance pay and other provisions provided for guarantee law.

How to transfer a part-time worker to the category of main employees:

From the date of entry into force of the decision to restore the employee to his previous position, such employee again enters into an employment relationship with the previous employer in full force. And even if he has not yet started work, he can already take advantage of the right to temporary disability benefits and other guarantees provided for by the Labor Code of the Russian Federation for employees. In the same case, if the employee does not want to renew his employment relationship with the employer who fired him, but demanded monetary and moral compensation for damage, the employer is given a specific deadline for making these payments. If the established payment deadline is violated, he may also face payment of interest in the amount of one three hundredth of the current refinancing rate of the Central Bank of the Russian Federation of the total unpaid amount, and interest is due from the employer even when the delay in payments is not his fault.

The procedure for dismissing employees

The most important rule that must be observed by the employer during the dismissal procedure is the existence of a legal basis on which the dismissal is based. According to the Labor Code of the Russian Federation, except for cases of liquidation of an organization and reduction in the number of employees, the following grounds for termination of an employment contract by an employer are recognized as legal:

• insufficient qualifications of the employee;
• failure by an employee who already has a disciplinary sanction to fulfill work duties without good reason, committed repeatedly;
• gross one-time violation of labor duties;
• within 1 working day without good reason;
• absence from work without good reason for more than 4 hours in total in one working day;
• coming to work while intoxicated;
• disclosure of confidential work information;
• theft, embezzlement, theft, as well as damage or destruction of property in the workplace;
• gross violation of labor safety standards;
• loss of trust due to the actions of an employee working directly with the organization’s material or commodity assets;
• providing false documents when applying for a job;
• other grounds mentioned in Article 81 of the Labor Code of the Russian Federation.

Procedure for reducing a position during maternity leave:

The application of each of the above grounds for dismissal must be supported by a general procedure provided for by law, and may also require a special procedure for dismissal, depending on the grounds. As for the general procedure, it is discussed in detail in Article 84.1, which describes the mandatory procedure for registering dismissal for everyone. The general procedure also includes statutory guarantees for certain categories of employees, as well as the preferential right to remain at work in the event of layoffs or liquidation.

The first categories above that are not subject to dismissal traditionally include pregnant women, women with children under 3 years of age, single mothers with children under 14 years of age or disabled children under 18 years of age. In addition, you cannot fire employees who are on vacation or temporarily disabled. There are also categories of workers whose dismissal occurs only with the participation of a third party - for example, minor workers can be dismissed only with the consent of the labor inspectorate and the commission for minors, and trade union members - only with the motivated opinion of the trade union body.

Another important point is the mandatory documentary evidence of the reason for dismissal. the employee is not determined by eye, it is determined by the certification commission, and the employer is obliged to offer such an employee all available vacancies that match the employee’s qualifications, if any. Dismissal in this case occurs subject to:

1. impossibility of transfer due to the lack of suitable vacancies;
2. refusal of the employee to transfer to another vacancy.

Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2044 N 2 also contains additional requirements for the employer on whose initiative dismissal occurs due to the above reasons. For example, regarding insufficient qualifications, the Resolution clarifies the need for the employer to provide written evidence that will confirm the impossibility of the transfer or the employee’s refusal to do so.

Exactly the same rule of having documentary evidence works for all the other above-mentioned grounds for dismissal. In the case of appearing at work in a state of intoxication (both alcoholic, narcotic or toxic), a medical examination will first be required, and in case of failure to perform work duties without good reason, it is important that a disciplinary sanction has already been applied to this employee, which has not been lifted and not repaid at the time of default. One way or another, when considering cases of illegal dismissal of an employee, it is the employer, as a defendant, who has to prove that the reason for dismissal is completely legal and that it actually took place, for which the available evidence must be provided. In addition, the wording of the dismissal entry in the work book must strictly comply with the Labor Code of the Russian Federation.

In accordance with international law, as well as the constitution of the state, every person has the right to work and its payment, which is inalienable. Almost the entire population of the country uses this opportunity, earning money for themselves and their families to live and receive other benefits. However, in the process of carrying out labor activities, violations of the rights of workers by the employer often occur. One of them is illegal dismissal from work. In this case, what can a person do, whose inalienable right has been violated? What kind of illegal dismissal from work under the Labor Code of the Russian Federation can be appealed in favor of the employee and by which authorities? More on this later.

Dismissal: a general concept

The process of dismissal from work is an action to terminate a previously concluded employment contract between an employer and an employee. The law provides for the reasons why an employee may be dismissed. The most common among them is the presence of their own desire on the part of the employer or the employee himself. In addition, there are a number of other reasons why an employee may be dismissed - all of them are spelled out in detail in the articles of the Labor Code. In this regulatory act, for each reason for dismissal, a specific article is allocated, which sets out the procedure for terminating the employment relationship. If the employee was dismissed without any reason or any conditions were violated by the employer, this procedure is considered illegal and is subject to appeal at the request of the employee.

Reasons for dismissal

The dismissal procedure can be carried out for any of several circumstances provided in the text of Article 77 of the Labor Code of the Russian Federation. Unlawful dismissal from work will be recognized as such when the employer indicated any other reason not provided by the legislator in this article, or violated the terms and procedure for completing the prescribed procedure.

The legislation provides a whole list of reasons for dismissal, among which in practice the phrases “at one’s own request” (of the employee or employer), as well as “by agreement of the parties” are often used. The reason for termination of the employment contract is also considered to be the employee’s refusal to move to a permanent place of residence in another locality due to the transfer of the actual workplace.

Often, the dismissal of an employee does not become the reason for the end of his working life at the enterprise - this may just be a stage in his career advancement, since in order to accept an employee to a higher position, he must first be dismissed from his old one. In this case, termination of the employment contract is considered a mere formality.

The end of an employment contract is also a reason for its termination. In this case, the parties can come to a general agreement on its complete termination or extension for a certain period.

Examples of illegal dismissal

In what situations does the injured party have the right to file a lawsuit for illegal dismissal from work? For everything that is not provided for by articles of labor legislation.

An example of this would be dismissal without proper documentation of disciplinary offenses, on the basis of which the employment contract was terminated. So, for example, dismissal from work for absenteeism will be considered illegal if the fact of violation of discipline was not documented or indicated inappropriately.

If the manager refuses to pay the employee arrears of wages, such dismissal will also be considered illegal. Before terminating a contract with a worker, any employer is obliged to repay wage arrears in full, regardless of any pretexts that arise.

If an employee was dismissed from the enterprise under the wording of a reduction in staff or number of employees, but in fact this activity is not carried out, then such dismissal from work is illegal. It will also be recognized as such if the organization is being liquidated, but the employees were improperly notified of the upcoming event.

One of the conditions for dismissing an employee is his inadequacy for the position held. If exactly this wording is indicated in the work book, but certification with the participation of a special commission was not carried out (a protocol must be drawn up about this), then in this case, dismissal from work is illegal. A similar situation may arise with the wording about the inadequacy of the position due to medical indicators: if there is no certificate of a medical examination, then you can safely file an application with the court - the dismissal was made illegally.

Who can't be fired

The legislation prescribes a complete list of persons whose dismissal is possible only in the event of complete liquidation of the institution or enterprise. In other situations, their dismissal is considered illegal, and employees have every right to go to court for protection.

This category includes single mothers who support children under 14 years of age. If such a child is disabled, the age limit increases to 18 years. This rule also applies to persons who have a child under 3 years of age, and in this case the gender of the employee does not matter - this rule applies to both men and women.

The legislation states that the dismissal of pregnant women and minor workers is unacceptable.

Illegal dismissal from work: what to do?

Once a person whose rights have been violated understands the illegality of his dismissal from work, he has the right to defend his rights. To do this, the employee can apply to the judicial authorities with a claim for reinstatement at work in case of illegal dismissal under the Labor Code. During the trial, subject to proof of guilt on the part of the employer, the unlawfully dismissed employee must be reinstated and paid compensation in the agreed amount.

It should be noted that in today's realities, the court is the only fair body in which it is possible to appeal such a decision of the head of the enterprise and punish him accordingly.

Preparing to go to court

Before applying to the judicial authorities for reinstatement after illegal dismissal, the employee must be well prepared for the upcoming process. First of all, you should pay attention to the evidence base on the basis of which the hearing will be held and the judge will make a decision.

First of all, you should pay attention to the availability of a second copy of the employment contract, which can be requested from the employer in advance even before the start of the trial. It is best to take the second copy for yourself immediately after being hired. The text of the contract must indicate the average salary. If this is not in the text, you can ask the accounting department for a certificate of your monthly income - this information will be necessary in court in order to calculate the amount of compensation for illegal dismissal from work.

During the process of hiring and dismissal, appropriate entries must be made in the work book. Any employee is obliged to ensure that they are prepared accordingly - with truthful data, otherwise it will be quite problematic to protect their rights in court.

The legislator also provides for the possibility of turning to court for persons who did not work under an employment contract, since the fact of the beginning of the fulfillment of the agreed obligations is already considered the conclusion of a contract. However, in this situation, the employer may deny that the employee was at work and was engaged in the performance of his duties, if this is not documented.

What can you demand from an employer?

If an employee is unlawfully dismissed from work, he has the right to file a lawsuit with certain demands. What could they be?

First of all, the employee has the right to demand his reinstatement to his position with the previous monthly salary. In addition, any employee whose rights have been violated has the opportunity to demand back wages or compensation for moral damage. If necessary, a dismissed person has the right to request a change in the data entered in the work book - this action is especially relevant for further profitable unhindered employment.

Situations often occur when, in addition to demanding reinstatement at work, dismissed employees declare the need to pay them money for the period of forced absence. The amount of such compensation upon reinstatement (in case of illegal dismissal under the Labor Code) is determined on the basis of monthly salaries, which must be reflected in the text of the employment contract.

Documents required to file a lawsuit

Before turning to the judicial authorities, a dismissed employee must collect all documents that can help him achieve protection of his violated labor rights.

In the general package, he must provide a statement of claim, which necessarily reflects all the conditions and requirements. In addition, the court must provide confirmation of payment of the court fee, as well as photocopies of identification documents.

In the package of evidence, you must provide all documents that confirm the illegality of dismissal from work. Lawyers recommend attaching a copy of the employment contract, certificates that reflect the monthly salary, as well as photocopies of the pages of the work book, which reflect all the processes of activity at the enterprise. In addition to all of the above, you need to collect a solid evidence base that will reflect the unlawful actions of the employer.

Application deadlines

As for the deadlines for filing a claim to protect one’s rights in court, the legislator allots the employee a month for this from the moment he became familiar with the dismissal order. However, this period can be extended if timely treatment was prevented by illness, a long process of studying the circumstances of the fact, as well as in the presence of other significant circumstances that the court recognizes as such. It should also be remembered that any such fact must be documented.

If we talk about the timing of reinstatement in case of illegal dismissal, then if there is a writ of execution, this court decision is made immediately. If the employer refuses to take the prescribed actions, a fine will be imposed on him. In case of double evasion of duty, the executor is obliged to petition the court for the criminal liability of the guilty person. When all the requirements specified in the writ of execution are fulfilled by the employer, an act regarding this fact is drawn up and submitted to the service for the execution of court decisions. Only if it exists, the proceedings of the case are considered closed.

The legislator also notes that the procedure for reinstating an employee to his previous position is marked not by the date when the decision was made, but by the date when the employee was dismissed on illegal grounds.

What information must be included in the claim?

The text of the statement of claim must contain certain information that directly relates to the issue raised. In particular, the plaintiff must indicate what the illegality of illegal dismissal from work is and the article of the Labor Code on the basis of which the appeal is made. In addition, the statement of claim must include information about the defendant and your personal data.

In the text of the claim, you should definitely indicate your demands that are presented to the head of the enterprise or organization - the list of possible ones is presented above.

If reinstatement at work in case of illegal dismissal at the previous enterprise seems impossible due to its reorganization, the plaintiff has the right to submit all claims to his legal successor, if there is one. In this case, it is necessary to indicate in the text of the application information about that same legal successor and indicate the grounds for filing the claim.

Who does not have the right to challenge dismissal?

The legislation provides for a number of positions, dismissal from which cannot be challenged in court. This exception applies to employees of the prosecutor's office, as well as those persons who hold elected positions. If the resignation was illegal, this fact can be challenged in a higher department, for example, in the Prosecutor General's Office of the Russian Federation.

Practice of court decisions

As judicial practice shows, the court leaves almost all claims of plaintiffs for illegal dismissal from their place of work satisfied. However, workers in the judicial system also note that questions about the legality of dismissing a worker are raised relatively infrequently. According to many judges, this circumstance is due to the lack of understanding among the population about their labor rights. In this regard, many workers in the field of jurisprudence recommend increasing the level of legal education among the Russian population.

One of the main demands of the dismissed employee presented in the lawsuit is his reinstatement to his position with payment of compensation for the entire period of forced absence (no more than one year). As noted in the legislation, it is calculated based on the employee’s salaries for the last two working months. It often happens that after fulfilling the presented requirements, the employee resigns of his own free will in compliance with all the necessary procedures.

All dismissed employees are wondering what to do if the manager fired the employee illegally, but only a few try to defend the violated rights. Nowadays, an employer can find a lot of reasons for dismissing an employee from his place of work; these can be both legal and illegal. Many immediately lose heart, give up and stop fighting, decide to resign themselves and look for a new job without demanding wages and compensation.

Giving up in cases where an employer illegally fired an employee is fundamentally wrong! As soon as you feel that your rights are being infringed upon, pressure is put on you, and you are being forced to resign, you should ask the question, “what should you do if your employer fired you illegally without grounds or evidence?” How to punish him and collect compensation? Then start taking action! After all, the law always protects the rights of workers.

Grounds for recognizing dismissal as illegal

Below is a list of illegal grounds for dismissal:

• Dismissal without compelling legitimate reasons;
• Termination of an employment contract without grounds;
• You cannot fire an employee while he is on maternity leave or regular vacation;
• You cannot fire employees who are classified as preferential;
• Pressure on an employee, coercion to resign;

Categories of citizens who cannot be fired

According to the law in the Russian Federation, some categories of citizens are not subject to dismissal, but for some employers this does not serve as a barrier and they go against the law. So here are the categories of citizens who are not subject to dismissal without extremely compelling reasons:

1. Pregnant women;
2. Single mothers and fathers raising children under 14 years of age;
3. Mothers with children under 3 years old;
4. Citizens who have disabled children in their care;
5. Citizens whose income from this job is the only income in a large family.

How to protect yourself when an employer wants to illegally fire you from your job

So, if you want to protect yourself from illegal dismissal, you should start collecting evidence of infringement of your legal rights in advance. If you feel that the employer is loading you with work beyond your responsibilities, then request a job description, or if you have one, contact management with this document.

If you need to protect yourself from illegal forced dismissal, then you can start recording conversations with the employer where he hints or directly talks about dismissal. It will also not be superfluous to collect all the evidence that will confirm that you really worked in this organization and performed certain duties.

If you were on vacation, sick leave or maternity leave at the time of dismissal, you can protect yourself from illegal dismissal by providing a certificate from a medical organization or a copy of the leave application. And remember, under no circumstances sign a letter of resignation of your own free will. This greatly reduces your chances of being reinstated or receiving compensation.

Procedure for illegal dismissal from work

So, the procedure for illegal dismissal from work is universal in almost all cases. First of all, you should choose a method for resolving the conflict. In labor disputes, you can start with the pre-trial procedure, or you can also go straight to court. Only you can decide to start with the peaceful option or go straight to “war”.

Pre-trial procedure for illegal dismissal:

Pre-trial settlement of disputes in case of illegal dismissal includes filing a legally competent claim to the employer (one copy for yourself, the other for the employer). It should be written in accordance with the norms of the Code of Civil Procedure of the Russian Federation and each of your arguments and demands should be supported by the norms of the current legislation, since the first thing the claim will be analyzed is the company’s in-house lawyers, whose task is to find grounds for refusal.

Contacting the labor inspectorate in case of illegal dismissal from work

In parallel with this, you need to file a complaint against the employer with the State Labor Inspectorate. This body exercises supervision in the field of labor law (in order for a complaint to be accepted and considered, it must be drawn up correctly, with references to all violations, supported by articles of the law). Be sure to make a copy of the complaint, give the original to the labor inspectorate, and keep the copy for yourself, this will help protect you in case the supervisory authority loses this statement.

Contacting the prosecutor's office in case of illegal dismissal from work

The prosecutor's office is a general supervisory body whose activities extend to almost all areas of life. Additionally, you should file a complaint with the prosecutor's office, since some offenses on the part of the employer result in administrative and criminal liability. And it is imperative to point out these violations, provide evidence, and back it all up with articles of the law, only in this case the prosecutor’s office will start fussing.

And finally, the employer is submitted a draft statement of claim to the court, as confirmation of the seriousness of your intentions. A complete package of documents gives the most effective results.

If you want to resolve the issue quickly and without expense, then you should pay more attention to the pre-trial procedure in resolving a dispute over illegal dismissal, since it does not include litigation. In this case, the final result will depend on how the pre-trial documents are drawn up. After all, every organization has a lawyer whose job is to draw up tricky contracts and fight employee objections.

How to regain your job after illegal dismissal

In order to be reinstated after dismissal, you need to contact the competent authority with a statement that specifies all the requirements and grounds and receive a positive conclusion from this authority. This will be the State Labor Inspectorate in pre-trial proceedings and the final authority in any dispute - the Court. We talked about the pre-trial procedure above, and if it was unsuccessful, then there is only one option left, and below we will talk about how to be reinstated at work after dismissal through the court.

How to sue an employer for wrongful dismissal

Litigation also has its advantages, because in a lawsuit for illegal dismissal there is no need to pay a state fee, only in court the claims of the plaintiff are properly considered and the court decision, upon entry into force, will already be final. In order to sue an employer for illegal dismissal, you need to collect a complete package of documents. And also to competently draw up a claim, it should contain at least the following information:

• Name of the court;
• Details of the plaintiff and defendant;
• List of conditions for employment and reason for illegal dismissal;
• Requirements for the defendant (employer);
• Other documents.

A complete list of documents required to sue an employer for illegal dismissal

1. Employment contract (it is advisable that the salary is also stated there). If the employer has an employment contract, write an application for the issuance of the contract; by law you are required to issue it within 5 days. If the employer does not issue an employment contract, be sure to indicate this in the claim;
2. Work record book, which must contain the date of employment;
3. Copies of orders on dismissal and hiring;
4. Job description and document describing your position and job responsibilities;
5. A document confirming the amount of salary for the last few months;
6. All evidence confirming that the dismissal is illegal.

Illegal dismissal threatens the employer with a lot of problems. Find out how to terminate your employment relationship without becoming one of the participants in the lawsuit!

From the article you will learn:

Illegal dismissal: general information

Illegal dismissal from work is the termination of employment relations carried out in violation of established labor legislation. In addition, if there are no grounds, the court may order the employee to be reinstated if it does not consider the evidence presented by the employer to be compelling.

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Illegal dismissal: practice

• upon dismissal of his own free will, the employee is obliged to write a statement, otherwise he may subsequently change his mind and appeal to the judicial authorities;
• staff reductions can only be carried out if positions are reduced and not renamed, otherwise it will be regarded as illegal dismissal;
• if an employee has not completed the probationary period, it is better to record the reasons in writing, for example, to reflect that he did not cope with his responsibilities, violated safety regulations, etc.;
• the court will declare dismissal for absenteeism illegal if the employer does not have confirmation of the fact that the employee was not present at the appointed time;
• it is possible to dismiss employees on sick leave only on their initiative and in no other way;
• terminate the employment relationship with pregnant women or those on maternity leave is possible only during the liquidation of the company; in all other cases, the employer’s actions will be considered illegal.

If the employer makes mistakes when terminating the employment relationship, the employee can appeal to the courts to declare the dismissal illegal. It should be separately noted that even if an agreement was reached with the employee and a certain amount was paid to him so that he would leave, it is not a fact that in a month he will not change his mind. If he goes to court, it is not a fact that he will not be reinstated in case of illegal dismissal. This is why it is important to follow the procedure, as well as dismiss for good reasons.

When can dismissal be declared illegal?

To protect his rights, a specialist can always turn to the judicial authorities by writing a statement of illegal dismissal. This can generally be done within three months from the day the person should have known or did find out about the violation. For disputes about dismissal - within a calendar month from the date of receipt of the copy dismissal order or issuing the work book itself. In disputes regarding non-payment or incomplete payment of money, including upon dismissal, an employee may appeal to the judicial authorities within a year from the date of the established deadline for payment of amounts due. This procedure is established in Article 392 of the Labor Code of the Russian Federation, which regulates illegal dismissal.

Illegal dismissal: terms

Thus, the three-month period for appealing the order to impose a penalty dated March 4, 2016 expired on June 4, 2016, and in the case of appealing the document dated January 23, 2016, which the employee was familiarized with on January 24, 2016, the month period expired on February 24, 2016.

It should be noted that the employee’s ignorance of the law and the benefits and compensation entitled to him is not considered a valid reason for missing the deadline for filing a claim if it later turns out that rights have been violated. A person can easily learn about violations of rights from acts that are in the public domain. In this regard, the period begins not from the date of actual familiarization with the document, which reflects benefits and compensation, but from the moment when the employee could learn about them.

How is compensation for illegal dismissal calculated?

If you fire an employee without legal grounds or violate the dismissal procedure, the court will reinstate him at work. You are obliged to execute this court decision as quickly as possible (Article 396 of the Labor Code).

For immediate execution, cancel the dismissal order and reimburse:

1. average earnings for the entire period of forced absence;
2. moral damage - the amount of compensation will be determined by the court.

If you comply with the court decision on time, you will not have to pay monetary compensation for delayed wages. You can reduce your average earnings during forced absence only by the amount of severance pay that was paid upon dismissal. You cannot reduce your average earnings during forced absence on the amounts that the employee received during this period.

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Calculation of average earnings if illegal dismissal of an employee is proven

The period of forced absence is the time when the employee was deprived of the opportunity to work: from the moment of dismissal until reinstatement. During this period you are obliged to pay average earnings. How to do this is indicated by Art. 139 Labor Code and Regulations on the specifics of the procedure for calculating average wages.

EXAMPLE

The employee was fired on March 1, 2017 and reinstated on June 30, 2017. In the billing period from March 1, 2016 to February 28, 2017, he worked 240 working days. The employer credited him with 600,000 rubles.

For 83 working days of forced absence, the employee must receive: 600,000 rubles: 240 rubles. d. x 83 rub. d. = 207,500 rub. (Clause 9 of the Regulations).

Please note that the court may index the amounts of money collected by the employee. You will learn about this from the judicial act. Withhold personal income tax from the amount of accrued average earnings and pay insurance premiums. Take into account the average earnings during forced absence and the insurance premiums accrued for it for profit tax purposes.

Since the procedure for paying taxes by agents to the budget is regulated by clause 4 of Art. 226 of the Tax Code, the court, when collecting average earnings for the period of forced absence, does not deduct personal income tax. The employer must withhold the accrued amount directly from the taxpayer's income.

Pay attention to how the court determined the amount of payments if illegality is proven dismissal. If personal income tax is not taken into account, the reinstated employee must receive the entire amount indicated in the writ of execution. You do not have the right to withhold personal income tax, since you are obliged to comply with court decisions that have entered into legal force. In this case, tax will be withheld on your next payment.

If the reinstated employee is not going to work for your company, inform him and the tax office in writing that you cannot withhold tax and indicate the amount. Submit your report using Form 2-NDFL “Certificate of Income of an Individual.” In this case, the employee must independently calculate and pay personal income tax. To avoid this situation, ask the court during the consideration of the case to determine the debt taking into account the requirements of tax legislation.

Compensation for moral damage for illegal dismissal of an employee

You are obliged to compensate the illegally dismissed employee for moral damage if he demands it in court. The court will determine the amount of compensation in the decision on reinstatement.

The court takes into account:

1. the volume and nature of moral and physical suffering caused to the dismissed person;
2. the degree of guilt of the employer;
3. additional circumstances;
4. requirements of reasonableness and fairness.

You don’t have to wait for a court decision and agree with the employee on the amount of compensation you will pay him. But the fact must be reflected in the documents, where the signature of the employee himself will be. In this case, the amount must be written in words.

Is it necessary to subject compensation for moral damage to personal income tax, insurance premiums and take it into account when calculating income tax? The answer depends on how it was established - by a court decision or by agreement of the parties to the employment contract, if the dismissal was declared illegal.

You do not have to pay monetary compensation in accordance with Art. 236 of the Labor Code, if you immediately reinstate the specialist at work and pay him the average salary for the time he was absent. If you do not comply with the court decision, the bailiff will issue an order to collect an enforcement fee from you and set a new deadline for restoration employee At work.

If you violate this deadline, be prepared to pay a fine. Based on the court's ruling, you will be required to pay the average earnings for the entire time of delay in execution of the decision or the difference in earnings. This amount will have to be paid taking into account monetary compensation in accordance with Art. 236 TK.