Restoration to work - judicial practice. Consideration of labor disputes in court. Unlawful dismissal

In all countries, and ours is not an exception, there are cases when the authorities make an unlawful decision to dismiss an employee or transfer him to another position. And the worker does not want to leave the comfortable place at all. He liked work very much, especially since it was not far from home. And there was a terrible resentment from an unjust attitude on the part of the authorities. Unlawful dismissal must necessarily be challenged.

Everyone who is dismissed has the right to be reinstated at work, believing that he was treated unfairly. Knowing your rights is very important, and you need to fight for them, even in court. To familiarize with the rules of dismissal and with what grounds for this exist, it is possible in Chapter 13 of the Labor Code of the Russian Federation.

When dismissal can be considered illegal

In the event that the employee conscientiously carried out his work, did not skip, did not come to work in a state of intoxication, did not abduct anything and did not violate safety techniques, his dismissal would be considered illegal. Also, dismissal is considered illegal if:

• The employee was not previously warned, for example, about the reduction in the state enterprise;
• In the event that the stated reason for dismissal does not correspond to reality and is indicated in the order a completely different reason;
• At the dismissal of the employee for the fact that he does not correspond to the position held and does not cope with his duties, the proper certification of the employee was not carried out;
• Dismiss an employee due to poor health, he is often sick and does not cope with his work, a medical commission has not been conducted, which it can confirm;
• The employee was fired allegedly for staff reduction, but in fact there is no reduction;
• The wages due to him are not paid to the employee.

In the event of an employee committing an official crime or some serious misconduct, the head may invite him to quit on his own. In this case, he does you a favor and must necessarily agree. But if the dismissal is illegal, and the chief proposes to write a statement of his own volition, then you should know: you can not write it, because the court will not later accept your claim for consideration.

However, if it is proved that such a statement was written under pressure and coercion, the judge should take into account and try to understand the true reasons for the dismissal. Most employers make mistakes in drawing up such documents.

Their illiteracy in legal subtleties and unwillingness to use the services of professional lawyers leads to the fact that it is easy for a competent lawyer to prove violation of employee's rights and demand considerable compensation in the form of payment of debts for the period of the employee's forced downtime, also demand payment for moral damage and for payment for services of a law firm .

Complaint to the State Labor Inspectorate

When the employee is dismissed, he writes a statement. Often employers are asked to write an application for dismissal on their own. If you think that dismissal is illegal, then in no case do you need to write it. After the order for dismissal is issued, you can apply to the Labor Inspectorate. This is done simply. A statement is written, which clearly indicates all the circumstances of the case, without speculation and your judgments.

Your application must be considered within 15 days. The decision will be made on time if the employer has too obviously violated the labor law. In the case of difficulties encountered in the consideration of a complaint, the case may be delayed, and this should not be allowed. After the expiry of a month's time, it is no longer possible to file a lawsuit with a court. So the choice is yours. Or apply immediately to the court, which will be longer and more expensive, but more likely to return to their position and be restored at the workplace, or first try acting through the state labor inspection. It will be much cheaper, but there are some nuances. The case can be delayed or rejected, and the service inspectors are not as professional as the judges.

They have the right to conduct an administrative check of the incident at the enterprise, review all documents and contracts, and read the orders. In the rest, namely, the restoration of the workplace, the payment of any cash and compensation, the inspector will still advise to apply to the district court. If after the expiration of the due period a decision has not been made, then there is no time to wait, it is urgent to sue the court for illegal dismissal.

From the order of dismissal to the filing of a claim for reinstatement at work should be less than a month. Later the court considers the issue only in case of extraordinary reasons for the delay. A lengthy consideration of the case by the inspection for such a cause is not considered. You can first apply to the labor inspection, and after 15 days immediately file a lawsuit in court, simultaneously. Questions on the restoration to work in judicial practice are considered within a month.

Pros of applying to the court

The consideration of labor disputes in court has a number of advantages. They need to know in order to make the right decision, to seek help or not. A lawsuit is being filed about reinstatement at work in the court at the location of the enterprise. After filing an application, an executive judge is appointed who listens to your complaints and considers the evidence base. The trial takes place with a thorough study of all the disputable issues, with the challenge and interrogation of all parties to the labor dispute.

The judge considers the grounds for the dismissal of the employee on the initiative of the employer. Only in court it is possible to tell in detail about the procedure of dismissal, about all violations committed by the employer during this period.

Another positive moment to sue in court. Illegal dismissal of the employee assumes that the relevant costs are borne by the employer. Proceeding from Article 393 of the Labor Code of the Russian Federation, the dismissed employee is completely exempted from payment of state duty and court expenses. It will also be a pleasant opportunity to ask the employer to compensate for moral damage and compensation for the loss of wages for the entire period that the plaintiff did not work through the court.

Lows of litigation

The only downside is the length of the complaint. Especially if the controversial issue has little evidence. With a gross violation of labor law, the restoration to work in judicial practice, is easier, less time is spent on clarifying the circumstances of the case. If there is no valid written confirmation of the employer's violation of the rights of his employee, then the case can be delayed.

But recently, judges are trying to resolve such disputes about reinstatement at work faster, within a month. The process can be tightened only in case of very controversial issues. If the evidence of the illegality of the dismissal of an employee is great, then the case of reinstatement into work in judicial practice is considered much faster.

Preparing to go to court

Before applying for reinstatement at work by a court decision, the employee must carefully prepare in advance. Usually they do not quit sharply, but a person feels and understands that everything leads to this. At the time of dismissal, the employer is unlikely to want to meet you and issue all the necessary documents that will require a judge to be available. When signing an employment contract one copy must be on the hands of the employee.

The contract should indicate the salary that you will receive. If there are not stipulated payment of money, but you need to take a certificate from the place of work about the salary for six months. This will be necessary for the judge in the event that the employee wants to pay the debt.

It is advisable, before submitting an application to the court, the last time to try to talk with the head, explain your reasons for not wanting to leave the workplace. You also need to warn him about your desire to apply to the court for reinstatement at work on the LC RF. In the practice of labor disputes, there were cases when the head did not want to check his enterprise and study the documentation by judicial assistants, and accepted an amicable agreement for the restoration of the employee to his former workplace. Even in such cases, the issue of payment of arrears was decided.

What documents are required to apply to the court?

If, however, it is not possible to agree with the head and solve the problem of returning to the previous place of work, then it is necessary to apply to the judicial authorities at the place of registration of the enterprise. Sometimes the case can be sent to the court at the place of residence of the plaintiff. When submitting a claim, in addition to the application, the following documents must be submitted:

• A work record book (in it a record must be made of the number of hiring and firing, with the numbers of orders);
• A copy of the employment contract concluded upon admission to the job;
• Copies of orders with numbers (on hiring, on dismissal, on reprimands or penalties, if any);
• Certificate of receipt of wages for the past six months.

You can also submit any documents that confirm that you worked for this company. Every document on hand must be filed. This is very important, since the employer can calmly state that he sees you for the first time, and you did not work for him.

Individual labor disputes

According to Article 391 of the Labor Code, any employee who considers his dismissal and transfer to a lower-paying position unlawful may apply to the court. He can ask the court to pay compensation for the period that he was forced not to work or was paid less. Employers who do not agree with the wording of the reasons for their dismissal in the workbook may file a lawsuit.

Also, an employee of an enterprise may complain through a court against a superior who did not observe confidentiality when processing the employee's data. Questions are considered about the illegal refusal to hire a person, discrimination against his rights on the basis of nationality, pregnancy, or the fact that a woman has a small child.

The court, in the conduct of the case, listens to all parties, looks through all the documents, judicial assistants are sent to the enterprise to check all the documentation. Also, if necessary, various professional experts, different witnesses, certifying your work activity at the given enterprise, will be involved. An employee in this process is called a plaintiff, as he filed a lawsuit, and a leader or a private entrepreneur is considered a defendant.

Judgment of a court

When filing a statement of claim the employee plans that the decision of reinstatement at work on the court will satisfy his demands. After careful examination of the materials of the case, the judge issues a reasoned decision, confirmed by labor legislation, indicating the chapters and articles of this code.

In the event that the claimant makes claims for compensation of material damage or other compensation, the court decision must clearly indicate the amount of the due payment. Since the court can last a long time, according to the law it was decided that compensation for the dismissed employee should not exceed the salary for six months. If the claimant demands additional payments, for example, payment of a lawyer or compensation for moral damage, the judge also determines and clearly indicates this amount. As in case of an individual labor dispute, a state duty is not charged to an employee, then a 50% tax is levied on additional claims at the claim of the plaintiff.

When reinstating at work in court, a person has the right to demand compensation not only for payment to employees of the legal profession, but also for suffering caused to him, both physical and psychological. Also, the degree of fault of the defendant is taken into account. But usually this kind of compensation is small.

The order of recovery at work

If the consideration of labor disputes in court ends with the decision to reinstate an illegally dismissed employee at work, the employer is obliged to restore it in the same office on the same day. In this case, the employee receives a court decision and writes a statement of reinstatement at work.

An order is issued for reinstatement at work by a court decision and is given for signature to the employee. After this, it is necessary to make an appropriate entry in the work record: the entry under No. (the record number is put, precisely in this work book) is invalid, restored to the previous work. But if the employee does not want to spoil his impeccable reputation with such a record in the book, he has every right to demand that he receive a duplicate without corrections.

In the event that the employee was transferred to a lower-paid position, with a positive decision of the judge, he must return to his former place of work. If the reason for dismissing an employee from work is incorrectly indicated, the person was injured and was unable to find another job because of this? To him through the court is also laid the monetary compensation in the amount of his salary for six months. Also, the court will oblige the head to change the unwanted wording in the workbook.

But after the decision of the court to restore to work, judicial practice shows that not everything goes so smoothly. Usually a person who has thus achieved his requirements, at an old job is not very happy. The moral atmosphere is so heated, and the head quacks become so critical that a person often then independently comes to a decision to leave and write a statement of his own free will. An employee must understand this, and after starting a court decision and receiving monetary compensation, start looking for another job.

Illegal dismissal for reduction

When the company plans to reduce staff, the head, according to the law, must comply with all the rules. To begin with, it is necessary in advance, namely for two months to warn the employee about changes in his life. During this time, a letter is also submitted to the employment service about the need for this period to provide the person with the appropriate place, according to his experience, length of service and education.

Also, the head can offer a different position, if, of course, there are free vacancies. The employer must pay compensation to the employee if the forced dismissal occurred before the deadline. In case of non-compliance with these rules, there will be an illegal dismissal on reduction.

Categories of citizens who are unlawfully reduced

There are several categories of employees who, by law, in any case do not have the right to dismiss, especially to reduce:

• pregnant women;
• Single mothers with a young child in their arms (up to 14 years) or bringing up a disabled child (under 18);
• Mothers who have a child under the age of 3;
• Guardians over disabled persons under 18 years of age who are considered to be one working in the family;

• A father who has a minor child in his upbringing, but no mother;
• Father, who is the only earner in the family, where three young children;
• People who at the time of reduction are on a scheduled vacation or on vacation at their own expense;
• People who at the time of reduction are on sick leave;
• If the employee with whom the contract was signed has not yet reached the age of 18, he may be dismissed by agreement with the labor inspectorate or juvenile inspector.

In any case, upon dismissal, the employee must know his rights, be able to act professionally, protect himself if necessary in court. If the Labor Code is not observed at the factory and the lawlessness of the authorities reigns, then the punishment must necessarily follow.

The labor collective must unite and protect the rights of employees. Unfortunately, in our country trade union organizations do not have such strength as in other states, and often workers can not get the necessary support. For this, there are judicial bodies. You can always file a claim in court. Illegal dismissal must be punished.

Many are worried and afraid to handle, and such processes are very rare, however, as practice in other countries shows, if you want, you can always prove your rightness.