Article 81 Labor Code establishes the grounds for dismissal at the initiative of the employer. An employer may fire an employee if:

• the enterprise is liquidated or there is a reduction in staff;
• the employee cannot perform his job duties due to low qualifications, if such a discrepancy with the position is confirmed by certification;
• employee grossly violated labor discipline. Dismissal is possible even in the case of a single violation;
• the employee skipped work. Absenteeism is defined as absence from the workplace for more than 4 consecutive hours during a working day without good reason.
• the employee showed up for workplace under the influence of alcohol or drugs.
• the employee committed an immoral act. This point is most often applicable to education workers.

The employer also has the right to dismiss an employee if, due to a reduction in staff or production, the company is forced to offer the employee another position, and the employee refuses the offer. Such dismissal is lawful, even if the proposed position is paid lower than the previous one.

Illegal dismissal

Dismissal is considered illegal if it is made without sufficient reasons, or the reasons for dismissal are not established by the Labor Code and other federal laws.

Such dismissal is considered to be the dismissal of a pregnant woman or a single parent raising a child under 14 years of age. It is also illegal to dismiss employees who are on sick leave or maternity leave. Dismissal of these citizens is possible only in the event of liquidation of the enterprise.

Dismissal in violation of the procedure established by law is considered illegal. An example would be a staff reduction in which the employee was not notified in advance of the upcoming dismissal.

When reducing staff, the employer must take into account pre-emptive right employee to remain at work. This right is provided Art. 179 of the Labor Code.

What to do if you were fired illegally?

If you have become a victim illegal dismissal, You should contact the labor safety inspectorate. According to the law, an illegally dismissed employee can file a complaint within a month from the date of making an entry in the work book or issuing a dismissal order. The inspectorate reviews the application within 10 days.

At the same time, the employee can file an application with the court. If the court finds the dismissal illegal, the employer will be obliged to reinstate the employee in his position and pay compensation appropriate wages for the entire period of absence from work.

A period of absence from work due to illegal dismissal is considered forced absence and must be fully paid by the employer. This period is calculated from the day following the day of illegal dismissal until the day of official reinstatement at work.

The calculation of the period does not depend on how long the legal proceedings in the case are ongoing. The period of forced absence is paid in full, even if the legal proceedings were conducted in different instances for several years.

In addition, the court may order the employer to pay legal costs and reimburse other expenses incurred by the employee as a result of the dismissal.

Unlawful dismissal from work is termination employment contract with an employee without legal justification. What should an employee who is fired in this way do? Where to go to protect your rights and get reinstated at work?

The legislator clearly states that in order to terminate an employment contract, one must be guided only by the grounds specified in the Labor Code of the Russian Federation and other legislative acts. This list is final and not subject to broad interpretation; in other words, an employer cannot fire an employee just because he doesn’t like him. But there are cases when one or another reason cannot be applied to an employee, but the employer ignores this fact and dismisses the person.

At the initiative of the employer

Termination of a contract at the initiative of the employer is regulated by Article 81 of the Labor Code of the Russian Federation. In the case when the management of an enterprise wants to get rid of an unwanted employee, it first of all turns to this article, especially since it contains quite large number grounds.

The most common cases of illegal dismissal under this article:

1. Illegal dismissal due to staff reduction. This basis may be illegal in two cases: when there is actually no reduction, that is, the position is renamed (and sometimes left former name) and take on another employee and when they reduce categories of employees in respect of whom this is prohibited by law (pregnant women, single parents, women with children under three years old, etc.).
2. Taking out several disciplinary sanctions And subsequent dismissal. In this case, it is necessary to pay attention to whether all punishments were legally imposed. It is also impossible to impose two penalties for the same offense (for example, a reprimand and dismissal).
3. Dismissal for failure to pass certification. If the test for suitability for the position held was carried out only in relation to one employee, then this is illegal. It is necessary to carry out certification of the entire department (area of ​​work), or all employees of the enterprise. The certification procedure must also be followed.

If an employee was fired for legal reasons, but the procedure established by law was violated, this may also serve as grounds for challenging the termination of the contract. For example, failure to comply with notice periods when reducing staff.

The employee's initiative is writing a resignation letter at will. Can dismissal be illegal if the employee himself writes a statement about it?

In some cases, an employer may put pressure on a person to force him to write a letter of resignation. This could be the creation of unfavorable conditions at work (transfer to another premises), moral pressure (nit-picking, remarks), deprivation of bonuses, bringing the employee to dismissal “under article”, etc.

If an employee feels that they are being pressured, it is necessary to begin collecting evidence before dismissal. This can be various papers (orders, memos), voice recordings of conversations with the employer, etc.

Also, illegal dismissal is considered to be the case when an employee wrote a letter of resignation and then changed his mind, but the employer refused to return the letter, citing the fact that he had already invited another employee. In this case, human rights will be violated:

• If the employer invited another employee only in words and not in writing.
• If, after dismissal, he did not accept the invited employee without good reason.

The dismissed employee will need to prove that he tried to withdraw the application, that is, this must be done in writing.

Where can you go to protect your rights?

If a dismissed employee believes that his rights have been violated and the employer did not have the right to terminate the contract with him, he can contact the relevant organizations:

• Labor Inspectorate. An employee can file a complaint there about a violation of his rights. The State Tax Inspectorate, in turn, must send an inspector to conduct an investigation within 10 days from the date of the person’s application. You can also go and consult with an inspector first.
• Prosecutor's office. The appeal algorithm is the same, but the investigation period is increased to 30 days. Depending on the situation, the prosecutor's office may send the employee's application to the labor inspectorate for consideration.
• Court. IN in this case the employee writes a statement of claim and submits it to the court at the location of the employer. This authority is the most universal, since it has the right to consider all cases of illegal dismissal, in contrast to the State Tax Inspectorate, which, for example, does not consider cases if they contain controversial issues about wages.

You can submit an application to all authorities at once.

The employer must comply with the decision of any of the above bodies, but he also has the right to appeal the decision in turn.

The period during which an employee must have time to appeal a dismissal is determined by the Labor Code of the Russian Federation and is one month. However, it can be extended if the employee can prove that he did not know that his rights were violated.

Therefore, if an employee intends to challenge his dismissal, he needs to start this as soon as he receives the work certificate or is informed of the order that he is fired.

To prepare an application to appeal the employer’s actions, the employee has the right to request a package of documents regarding his dismissal, which the employer must issue to him within three days. This must be done in writing. If the employer does not provide documents, this must be indicated in the application as an aggravating circumstance.

A period of one month is given for the employee to file a complaint; the period during which the proceedings will last does not matter. That is, he can submit an application even on the last day of the month.

What is the compensation for an illegally dismissed employee?

If the dismissal of an employee is declared illegal, the employer must not only reinstate him in his position, but also make the following payments:

• Compensation for all days of forced absence. It is paid in the amount of the employee’s average earnings and is paid for all days, starting from dismissal and ending with the date of the decision on reinstatement.
• Compensation for moral damage. Paid only by court decision. The State Tax Inspectorate and the prosecutor's office do not have the authority to establish such compensation.

In addition, the employer must correct the incorrect entry in work book, and at the employee’s request, issue a duplicate in which the incorrect entry will be missing. The duplicate is issued at the expense of the employer.

A person has the right to appeal his illegal dismissal in several instances at once. He must do this within one month. If the dismissal is considered illegal, the employer must reinstate the employee at work and pay him compensation for forced absence.

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 conducting labor activity Violations of workers' rights 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 normative act For each reason for dismissal, there is a specific article that sets out the procedure for severing 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 permanent place residence in another locality due to the relocation 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 - it may just be a stage in his promotion. career ladder, since in order to hire an employee to a higher position, he must first be fired 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 all that are not provided for in the articles labor legislation.

An example of this would be dismissal without correct design 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 law requires full list 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 cash during 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 employer’s unlawful actions.

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, in statement of claim You must provide 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 judicial system They 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.

Illegal dismissal– this is a violation of the procedure for terminating an employment contract, which can be challenged. In this article we are on in simple language described how to identify illegal dismissal and what to do if fired.

Upon dismissal, you can file a lawsuit only within 1 month (Article 392 of the Labor Code of the Russian Federation). You need to act quickly.

Grounds for dismissal

An employee can be dismissed only on the grounds specified in the Labor Code of the Russian Federation. They can be viewed below.

Signs of illegal dismissal

Dismissal is illegal in the following cases:

Deadline for filing a claim in court

You can file a lawsuit in case of illegal dismissal from work only within 1 month from the date of receipt of the dismissal order or work record book (Article 392 of the Labor Code of the Russian Federation).

After this period, the court will refuse to satisfy the claims.

The statute of limitations can be extended if illness or other valid reason is confirmed.

What about the labor inspectorate and prosecutor's office?

Disputes about illegal dismissals are individual labor disputes (Article 381 of the Labor Code of the Russian Federation). Individual labor disputes are considered by courts and labor commissions (Article 382 of the Labor Code of the Russian Federation). If you are not a union member, your choice is to go to court.

Dismissal is neither a criminal nor an administrative offense until proven otherwise in court. Therefore, the Prosecutor's Office will also not be able to help until a court decision is received. And the Prosecutor’s Office also does not have the right to independently resolve this dispute on the basis of the same article. 382 Labor Code of the Russian Federation.

You can file a complaint with the Labor Inspectorate about dismissal and it will be accepted. A month later, a letter will arrive: “The State Labor Inspectorate of the Russian Federation does not consider individual labor disputes. To protect your rights, you have the right to apply to a court of general jurisdiction.”

While you wait for a response from the Labor Inspectorate or the Prosecutor's Office, the statute of limitations will expire - it will no longer be possible to protect your rights. An appeal to the Prosecutor's Office and the labor inspectorate does not stop the limitation period and is not a valid reason for their restoration - this is judicial practice.

Be sure to go to court. Even if you really want to file a complaint with the Labor Inspectorate or the Prosecutor's Office.

Enforcement proceedings

According to statistics from the Federal Bailiff Service of the Russian Federation, only 10% of court decisions are executed by employers independently. In other cases, it is necessary to initiate enforcement proceedings - to force the execution of a court decision.

Enforcement proceedings are conducted through the Federal Bailiff Service of the Russian Federation - on the basis of a writ of execution received upon resolution of the dispute in court. If you have only monetary claims, then they can be collected directly through the employer’s current account - also on the basis of a writ of execution.

What can you get through court?

An illegally dismissed employee may demand in court:

• Reinstatement
• Correcting an entry in the work book
• Payments of wages for the entire duration of the trial. For the period from the date of dismissal to the date of the court decision.
• Payments of vacation pay accrued during forced absence
• Compensation for moral damage
• Payment of legal expenses

At the same time, during the trial you can work at another job - the court will still collect wages for forced absence. Recover on old job however, it is not necessary. The unpleasant entry in the work book should be replaced with “dismissal of one’s own free will.”