Unlawful dismissal - what to do when fired. Reinstatement at work. Their powers are similar to those of the labor inspectorate
Conflict situations between employer and employee often lead to the latter’s dismissal from work.
Therefore, a logical question arises: what to do in case of illegal payment and where to go to restore your rights?
Basic moments
During temporary disability or vacation you cannot leave without a job:
An employee who steals things from the company, co-workers, or clients, even if they are of little value, may be said to be committing an act of obscenity, which is an act of dishonesty, and may be fired for just cause. The same thing happens to an employee who prints an exact card with extra hours in order to get extra hours for himself, or who submits certificates for non-existent children to receive the family salary. Or a banker who passes blank checks against the bank he works for, or an employee who uses a false medical certificate to justify absence from work.
- 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 provisions of the Labor Code.
- Occurs during his absence from the workplace - sick leave, vacation.
- There are no compelling reasons for.
- Guarantees prescribed by law are not taken into account ().
Having decided to reduce the number of employees, the employer is obliged to carry out the entire procedure taking into account the requirements of the law:
Functional deformation is another fault applicable to the employee. It implies guilt and is characterized by carelessness, carelessness, and lack of zeal in the performance of one's functions. For example, an employee who does not document correctly, causes damage to the company, or has three, four, five or more absences in a month, impedes progress on the job, may be fired due to deafness for cause alone. The employee is irresponsible and does not care about the service he performs.
When an employee refuses to accept and signs a warning, the warning remains in effect if the company proves to witnesses that he was refused. Acts of indiscipline and insubordination are other forms of fair treatment that apply equally to employees. Discipline refers to disobedience to general norms, while disobedience refers to disregard for specific and legal order emanating from the employer.
- notify each worker subject to dismissal in advance;
- provide employment to persons who cannot be hired.
Violation of workers' rights in some cases becomes the reason for litigation.
An injured employee can take advantage of a pre-trial claim against the employer for unlawful dismissal.
Insubordination occurs when an employee disobeys an order from a boss if the order is for some service related to the employee's obligations. Insubordination creates confusion and chaos within the work environment and prevents the company or any other organization from achieving its goals.
While insubordination refers to disobedience to the direct order of the boss within the company, indiscipline refers to disobedience general rule companies. For example, disobedience to a notice not to smoke in certain places or the order that all employees wear a certain uniform that serves as protection during work, etc. Occasional disobedience to company rules, such as delaying arrival times or underwearing uniforms, does not constitute indiscipline, which is primarily related to the intentionality of the employee's behavior.
Then, go to court to win the case. He will be reinstated at work if it is proven that his rights have been violated by the employer.
Possible grounds for termination of an 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.
Refusal to work is a fault that involves two elements: a subjective element, which is characterized by the employee's intention to stop returning to work, and an objective element, which is formed by an unjustified and prolonged absence of more than thirty days. This deficiency can be applied to an athlete.
An employee who fails to report to the company for more than 30 days without permission and without any justification is refused employment and may be terminated for just cause. The fact that a company publishes in newspapers calling an employee out does not justify resignation before 30 days. However, if an employee who has not shown up at a company for eight or ten days suddenly sees a job at another company, fair cause is characterized.
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 according to. The document is signed by the employer. This gives advantages when registering with the territorial employment service. Benefits are calculated according to official salary, not the minimum wage.
- The employment agreement has expired. 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 is committed immoral act V children's institution(Article 336 of the Labor Code of the Russian Federation).
- The employee expressed a desire to terminate the contract. He notifies management about this in writing two weeks in advance (). By agreement of the parties, settlement may occur earlier than the deadline. On the last day, a work book is issued and the final payment is made. Before the deadline expires, the employee can change his mind and withdraw the application.
- The boss has lost confidence in .
- The employer counts the employee for violation of labor discipline (Article 81 of the Labor Code of the Russian Federation). The worker appears at the workplace in a state of intoxication (alcohol, drug, toxic intoxication). The presence of repeated absenteeism by an individual without a good reason. A disciplinary sanction must not be lifted until the day of dismissal.
- Safety rules 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. An invitation to a new job or application for another position is also necessary.
- An employee disclosed confidential information. This also applies to the personal data of other people.
- A change in the owner 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. They offer him another position. He refuses in writing ().
- Certification confirmed the worker’s insufficient qualifications.
- The employer changes the place of business activity. This is not suitable for a worker ().
- Reduction of staff is required.
- Circumstances arose that were beyond the control of the parties ().
- The employment agreement contains violations of laws relating to employment. Continuation of cooperation became impossible (). A person receives a one-time compensation equal to a month’s salary.
Habitual or unused drinking. In addition, habitual drunkenness or on duty resolves the dispute for a just cause. Ordinary intoxication involves the use of not only alcohol, but also any toxic, intoxicating substance that can change behavior or jeopardize the physical and mental condition of the employee.
An employee who shows up to work drunk may be fired for a fair reason, even though drunkenness on the job only occurred once. However, it has to be a drinking experience to be worth it. "One and the other", one, is enough for a just cause.
When an employee's drinking is habitual, it may provide a fair basis, even if that type of drinking is outside the work environment. However, drunkenness began to be considered by medicine as a disease. Therefore, the company must provide appropriate treatment to the employee.
An act harmful to the honor or good reputation used in the service of any person or physical crimes, under the same conditions, except in cases of self-defense, one's own or others. When this crime is committed against the employer, it should not be at the place of work.
Additional conditions for terminating an employment agreement apply to employers, rescuers, state and municipal employees and the military ().
The basis becomes:
- Retirement age.
- Disclosure of state secrets.
- Starting a business.
- Management of a commercial organization.
- Participation in a dispute between two sides of a government body.
To carry out the settlement procedure from the place of work, in addition to the grounds, documentary evidence of the facts is required.
An employee who insults the boss with profanity or language offensive to his honor, even outside the work environment, commits a serious crime and gives just cause. However, if swearing or profanity is performed at leisure, such as during a football match, there is no serious offense unless the purpose of the situation is clear. So, when in the workplace the avachalaha herself environment with cool words, the employee's behavior in the same tone does not simply provide a reason. However, it is worth remembering that physical violations of a boss or employer cannot constitute just cause if they are in self-defense of the employee.
To fire an employee who is found to be intoxicated, you need:
- an act with recorded signs of intoxication;
- medical examination;
- explanatory note from the troublemaker.
To terminate an employment agreement due to absenteeism, you must have:
- an act of recorded absence from work without a valid reason for more than four hours;
- written explanation of the truant.
Sometimes the reason for terminating a contract may be circumstances beyond the control of either party.
Maintaining or attempting sexual intercourse in the workplace is challenging, even if it happens after several hours when you think no one else will show up. If someone catches and witnesses the fact, that is enough. An employee's sexual behavior, even if it occurs outside the company, may also be a cause if it results in a violation of working conditions. A gross employee who is cruel to people or objects, or who uses obscene words or gestures in the workplace may be subject to just cause.
These include:
- Conscription for military or alternative service.
- Reinstatement of the former employee to this position by a court decision.
- The employee must be punished according to the court decision.
- about personal incapacity.
- Death of one of the parties.
- Extraordinary circumstances - a large-scale accident, military action, natural disasters.
In all of the above situations, the last day of work is used for dismissal.
In these cases, just cause refers to what is called in legal parlance "incontinence" or "bad procedure." Violation of company confidentiality. This implies a breach of the duty of fidelity. With such dismissal, the employee does not have the right to receive the 13th salary or proportional leave, and also cannot raise the Guarantee Fund. You are only entitled to receive the balance of your salary and overdue holidays, if any.
The company must pay the balance of salary and vacation leave within 10 calendar days from the date of termination for just cause. A company may, at its discretion, terminate an employee's employment even if the employee has given fair grounds for termination. In this case, she has to pay the month's notice, the 13th salary is in proportion to the month of work, the elapsed and pro-rata leave, the salary balance and in addition has to release the Guarantee Fund, plus 40% of the amount deposited in the name of the employee, Payment of this money must carried out on the first working day after the end of the notification.
The legislative framework
All questions regarding labor relations, are set out in the Labor Code of the Russian Federation:
- Article 81 contains a list of reasons for dismissal.
- specifies the general outline of the process.
- prescribes established compensation, payment terms, and proper execution.
What you need to know about illegal dismissal of an employee
Dismissal on grounds that are not provided for by legislative acts is subject to challenge in judicial procedure.
And if the notice was paid in cash, the said payment must occur within a maximum period of 10 days from the day the company informed the employee that he does not have to comply with the previous notice. If a restaurant owner tries to force a waitress, who is her maid, to go beyond her duties and make insinuations or loving suggestions to customers, the maid may "fire" the boss because he is demanding an act from them. good customs, as they say in labor law.
This dismissal of the boss is what is called in technical language an "indirect dismissal" or indirect termination employment contract. In the event of indirect termination of an employment contract, the employee has the same rights as an employee who was dismissed without good reason.
After a disciplinary offense, the following punishment may be applied ():
- rebuke;
- comment;
- dismissal.
If the court decides that it was enough to limit oneself to the first two methods, then the severance of the employment relationship will be declared illegal.
It also gives grounds for "indirect dismissal", which is the just cause of an employer, a company, forcing an employee to do overtime against his will, forcing the employee to do dangerous work without proper protective equipment, which is physically or mentally abusive to the employee. In the same situation, the demands of the job exceed the conditions of the worker. Example. This requires a compositor producing eighty rings per minute, yielding 150 rings.
To require a typist to clean an establishment or deliver packages to a company's customers, or to require an electrician to become a plumber, provides a simple basis for an employer to perform services outside of an employment contract. One day, a boss forced an employee to wear a work uniform that was more worn than the other employees' uniforms, exposing her to embarrassment. The employee went to court with a request for indirect termination of the employment contract due to the employer and won the case. The court understood that in this case the head acted in accordance with whimsical and emotional impulses, incompatible as a professional environment that should exist in a company.
When choosing a punishment, the severity of the offense is taken into account. Each case is individual and is considered separately.
Legal dismissal is documented:
- the manager issues a corresponding order;
- a note is made in the work book;
- The employee gets acquainted with the document and puts his signature.
In some cases, before canceling an employment agreement, the employee is asked to write.
However, when the employer's misconduct is due to other reasons mentioned above, the employee can go to court only to get the company to be found guilty of terminating the contract if before leaving the company. If the company is later found to be at fault, the employee will receive all of his rights as if he had been fired without cause.
Requirements Services beyond the capabilities of the employee, prohibited by law, contrary to good customs or outside the contract. An administrative assistant tasked with unloading trucks. Or forcing excessive weights on a woman. However, excessive severity towards the employee.
After reviewing management’s decision to terminate the employment agreement, the employee can use the next month to restore his rights.
Where to contact
To establish justice, a person who has been dismissed has the opportunity to appeal to three government authorities:
- Federal Labor Authority.
- Prosecutor's office.
The Labor Code of the Russian Federation provides for the creation of a state labor inspectorate, which would monitor compliance with labor legislation.
Orders are accompanied by one and not attributed to others to result in the refusal of the work. Exposure to a clear risk of significant harm. Actions, life threatening, health, without these risks, relate to their functions. Or, as regards the honor of the employee or his family.
Physical aggression used by an employer, other than self-defense. Reducing work because it is piecemeal or task-by-task so as to noticeably affect the employee's salary. In case of indirect refusal, the employee is released from Advance notice and leaves immediately, otherwise it is possible that the correct reason is not the wrong one.
This structure carries out two types of checks:
- legal issues;
- compliance with safety regulations.
A legal inspector will help restore the privileges of a dismissed person. The court makes a final decision on a dispute regarding violation of workers' rights.
His decision is always carried out. There are cases when they resort to the help of bailiffs to fully enforce a court verdict.
Failure to fulfill contractual obligations. Reducing work; legal problems arising there for which the law does not provide solutions. There are some alternatives for this. It has been verified that the dismissal of the indirect release practically eliminates its consequences for the repayment of the Contract, and this will be ordered according to indirect reasons direct dismissal.
Apostille - Labor Law - Clementino, Dr. Jose Carlos Apostille - Rejection of a company for just cause - Clementino, Dr. The reflection on the Viveo case must continue. Would the contradictions disappear? The witnesses are not the decision rendered by the Paris Court of Appeal in the Viveo case, but the movements it provoked. These vigorous movements invite the continuation of the reflection, while, having captured, the Court of Cassation must soon learn of the fate which it leaves to the calm courage of the magistrates of Paris.
Courts make decisions in the following areas:
- reinstatement;
- change the wording of the reason for dismissal;
- make monetary compensation in the amount of average monthly earnings;
- compensate for moral damage.
Prosecutor's offices conduct inspections related to violations 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 elimination of violations;
- offer to return identities workplace ().
Is compensation due?
Upon reinstatement at work, the employee has the right to compensation for damages associated with unlawful dismissal:
Sometimes the court obliges the employer to change the wording of the grounds for dismissal. Then the date of actual termination of the employment relationship becomes the date of adoption of the corresponding decision.
If the employee has officially found another job, the dismissal is dated back to that date.
The average salary is paid for forced absence. The reason is that the victim was unable to get a new job due to an 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 without reason, in violation of the established procedure. The amount of payment is determined by the court.
Nuances for a military man
Military personnel also include employees of internal affairs bodies. The requirements for both categories are identical.
Entry into service, completion of service, termination, and legal status of an employee are determined by:
- Labor Code of the Russian Federation.
The procedure for dismissing military personnel is described by internal orders. The documents contain:
- List of positions.
- Who carries out their dismissal?
- Samples of employee notifications.
Legal dismissal requires the presence of the following factors:
Judicial practice on the current situation
Frequent labor disputes are opened according to a statement of claim for recognition of dismissal as illegal from:
All costs of proving the legality and validity of termination of the employment relationship are borne by the employer.
Advantages of judicial review of the case:
The negative point is the review period statement of claim. It usually lasts quite a long time.
Formation of a statement of claim in court
The statement of claim is submitted to the court at the location of the enterprise.
Establishes the deadline for its registration by a government agency - it should not be a month from the date of receipt work book.
Rules for writing a sample claim:
- A clear and concise statement of the essence of the issue.
- Indication of the requirement for reinstatement to the current position, compensation for forced absence and moral damage.
- Providing a work record 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 giving 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 moral damage. The judge, based only on his subjective opinion, makes a decision on compensation for moral damage.
Contacting the labor inspectorate
To bring an unscrupulous employer to justice, it is necessary to file an application with the federal labor inspectorate.
When performing his direct duties, the inspector is guided by the following norms of the Labor Code of the Russian Federation:
There are disadvantages to applying to a labor authority. The inspector will not:
- question witnesses on both sides;
- understand the intricacies of the dispute;
- look for the real causes of the conflict.
The inspector's decision is subject to appeal in court before the expiration of three months from the date of its adoption.
Procedure for writing a complaint:
- Avoid speculation.
- Do not evaluate what is happening.
- Provide compelling evidence of management's illegal decision.
- Provide complete information - full name, residential address, place of work.
- Put a personal signature (anonymous letters will not be accepted).
Misunderstandings with the employer prompt you to think: “What to do in case of illegal dismissal from work?” Labor relations are regulated by the Labor Code of the Russian Federation.
In some cases, articles of the Criminal Code of the Russian Federation, internal orders government agencies. An appeal to the judiciary or labor inspectorate helps to establish justice.
On this page:
The law determines the standards for terminating the employment relationship. If an employer somehow circumvents these rules, thereby violating the rights of its employees, we are talking about illegal dismissal, which can be protested and canceled.
Let us clarify what exactly is considered a violation of dismissal standards from the point of view Labor Code Russia. Let's consider which cases of illegal dismissal most often occur in the practice of employers. We will advise how an employee should react to such a blatant violation of his rights, what timeframes and prospects he has for this.
What does illegal dismissal mean?
Legislative documents do not contain the term “illegal dismissal,” nor do they use the word “dismissal” itself. It is usually understood as the termination of the employment relationship between two parties to the process - the employee and the employer. This termination may occur as a result of the termination of the employment contract or its interruption at the initiative of any party, and there may also be objective reasons beyond the control of either the employer or the employee.
Unlawful dismissal, in this case, such release from labor relations will be considered for which one or more of the following conditions is true:
- there are no grounds for dismissal or they are insufficient;
- The dismissal procedure was carried out in violation of the Labor Code.
NOTE! Deviations from the law are possible under any circumstances of termination of an employment relationship: you should always pay attention to the legislative norms and the procedure for registering dismissal.
Options for dismissal not according to the law
Let's consider all possible cases when an employer accidentally or intentionally circumvents the Labor Code by getting rid of his employee. In this case, responsibility lies precisely with the employer as the stronger party in the labor relationship: the dismissed employee may not know his rights and the norms of the Labor Code, as well as the nuances of the registration procedure, and for the employer this is one of the main responsibilities.
There is no reason!
The employer's desire to get rid of the employee, even if the reasons for this desire are very significant, is not enough. There must be grounds for this, and not just any, but those provided for by the Labor Code, and no one is authorized to expand their list without permission, since it is closed (Article 77 of the Labor Code of the Russian Federation).
IMPORTANT! In Part 2 of this article there is a reservation about the possibility of other grounds, if they do not contradict the Labor Code and other federal legislative acts.
The first requirement of legality
So, first requirement of legality dismissal: the reason must be one of the list provided by the Labor Code or federal law.
Second requirement of legality
This or that reason must be truly real, and not attributed to the employee, and it is the employer’s responsibility to prove its reality. Second requirement of legality dismissals: compliance of the basis with reality, for which there is documentary evidence or evidence.
Third requirement of legality
Finally, even if the reason for dismissal is valid, the employer must ensure that the employee is truly no longer able to perform his or her duties. In other words, not every misconduct, even formally falling under the grounds for dismissal, really deserves it. The law gives the employer a choice of the degree of administrative responsibility for employees, and dismissal is only a last resort. Often, instead, it is enough to apply a disciplinary sanction - a warning or reprimand. Third requirement of legality dismissals are proportionate to the grounds.
RESULT. Illegal dismissal associated with inconsistency with the basis occurs if:
- the basis is not provided for by the laws of the Russian Federation;
- the actual reality of the foundation has not been proven;
- the reason cannot be considered significant.
Only legal options
We list the reasons for which dismissals are permissible. And the conditions under which it becomes illegal. They are listed in Table 1.
Table 1 Legal grounds for dismissal and deviation from them
| № | Grounds provided by law | Illegal retreat | 1 | Own wish | There is no statement from an employee with this wording |
|---|---|---|
| 2 | Reduction in headcount or staff |
|
| 3 | Failure to complete probation |
|
| 4 | Major disciplinary violation (truancy) |
|
| 5 | Repeated failure to fulfill job duties |
|
| 6 | Dismissal of pregnant women and those on maternity leave | Always illegal except own desire employee and cases of liquidation or reorganization of the enterprise. |
| 7 | Dismissal of employees during vacation | |
| 8 | Dismissal while a certificate of temporary incapacity for work is valid |
Don't break the procedure
If everything is in order with the grounds for dismissal, this does not guarantee its legality. It must be drawn up in accordance with the approved procedure, only then will it have legal force.
Following the procedure means that the employer, when terminating the employment relationship with the dismissed person, must act in a strictly defined manner prescribed by the Labor Code of the Russian Federation and other regulatory documents.
For each reason and, accordingly, article of dismissal, this procedure will be different. It is important to note whether the employer deviated greatly from it or slightly: this may be decisive in the issue of the legality of the dismissal.
Significant violations affecting the legality of dismissal
These are violations of procedure that seriously violate the requirements of the Labor Code and other legislative acts. Some examples:
- dismissal on disciplinary grounds when the procedure for bringing to justice is not followed;
- reduction if the employee was not offered existing vacancies;
- the opinion of the trade union organization is not taken into account in cases where it is important when terminating labor relations with members of the trade union organization.
All these and similar cases of gross violation of the dismissal procedure make it illegal. What can be proven in court.
Minor violations of procedure
They may not always be decisive in establishing the legality of dismissal. If the court considers a claim on the legality of dismissal on the basis of such violations, it may be guided by additional information, and the decision will not always be unambiguous. These types of violations include:
- minor failure to comply with deadlines in processing orders and paying employees;
- untimely issuance of a work book;
- absence of the employee’s signature indicating that he has read the dismissal order, etc.
Where to go if you were illegally fired
From the moment the employee ceases to be such and he has reason to believe that it is illegal, he has three months to try to restore his rights. And conflicts related to the illegality of dismissal, if they arise, must be considered within a month (p. 392 of the Labor Code of the Russian Federation). To do this, the offended employee has the right to appeal to one of three bodies, each of which has its own competence and powers:
- Federal Labor Inspectorate;
- prosecutor's office;
How can the labor inspectorate help?
If an employee has filed an application for illegal dismissal with the labor inspectorate, the labor law inspector will be required to check the circumstances stated in it within 1 month. And the result of the inspection will have certain consequences. What the inspector can do as a result of the inspection:
- give the employer an order to eliminate violations of the Labor Code, and, as a result, the violated rights of the employee;
- bring the employer to administrative liability.
REFERENCE! The requirements may well include a mandatory requirement for the reinstatement of an unfairly dismissed employee.
The employer may appeal the received order or the assigned liability within three months.
ADVICE FOR EMPLOYEES. The labor inspectorate pays attention primarily to procedural violations, therefore, if the grounds are controversial and require interviewing witnesses and comparing evidence, contacting the labor inspectorate may be ineffective.
When to go to the prosecutor's office
The prosecutor's office has the right to verify compliance with any legislation. Concerning labor law, then its powers are almost similar to the labor inspectorate:
- establishing the fact of violations,
- issuing orders,
- bringing to responsibility.
Unlike the labor inspectorate, prosecutors are also busy with other areas of legal violations, so minimal attention will be paid to ordinary violations of rights. If the prosecutor's audit is not scary for the employer, it may also not be entirely effective.
Court – independent protection of one’s rights
This is the only option that allows us to put a final point on the issue of the legality of dismissal: all other authorities can only initiate an appeal here. Therefore, the majority of those illegally dismissed, in order not to miss the established monthly deadline, immediately contact this authority.
The claim must be brought to the district court regarding the location of the employer. The plaintiff as weak side exempt from state fees and other court costs.
It is more effective to seek representation of your interests from a professional lawyer.
The court has the right not only to reinstate the illegally dismissed person, but also to oblige the employer to pay all the money for forced absences, and sometimes compensation. In addition, bailiffs will ensure that this decision is compulsory.
How will the employer respond? Fines for illegal dismissal
The legal consequences provided for by law are inevitable and inevitable in the event of a court decision that has entered into force declaring the dismissal illegal.
The degree of liability depends on the nature and extent of violations committed by the employer.
- Administrative liability threatens with a fine of up to 5 thousand rubles. or disqualification for up to three years.
- Protecting the rights of pregnant women and mothers of young children can bring the offender under criminal liability: a fine of up to 200 thousand rubles. or in the amount of one and a half years' salary of an unfairly dismissed employee, and the employer may be assigned corrective labor for up to 15 days.
