Termination of an employment relationship with an employee does not always occur legally. This may be due to either accidental mistakes by the employer or intentional violation of the procedure. This violates the rights of the employee. In some cases, the employer makes contact and takes measures to cancel the dismissal. But sometimes the only possible option to protect an employee’s rights is to go to court. To do this, you need to competently prepare a statement of claim for reinstatement at work.
A claim for reinstatement is a document where the plaintiff-employee expresses a request to the court to reinstate him at work. In what cases it is necessary to contact the judicial authorities and how to file a claim, we will tell you in this article.
LEGAL CONSULTATION
When is it worth defending your rights in court?
Upon dismissal, an employee may consider that the contract was terminated in violation of the law. Then he will try to restore his right to hold a position at his former job. Often it is dismissal at the initiative of the employer that can lead to such situations.
Cases of legal termination of employment relations at the initiative of the employer:
- when staff is downsized;
- if the employee is not suitable for the position held, which is confirmed by the results of certification;
- repeated failure by an employee to perform job duties without good reason, in the presence of disciplinary violations;
- single gross violation of labor duties by an employee.
Cases of illegal termination of an employment contract:
- in case of failure to comply with the procedure for dismissal and provision of guarantees, if they are required by law;
- the employee is deprived of his position during a period of absence from work (was on sick leave or on a business trip);
- there are not sufficient grounds for termination;
- in case of violation of other legal norms.
When are they required to reinstate after dismissal?
The process of terminating an employment relationship is clearly regulated. This is done both at the initiative of the employee and the employer, and in case of staff reduction, liquidation, etc. (Chapter 13 of the Labor Code of the Russian Federation and other norms). Violation of this procedure or dismissal for a reason not provided for in the Labor Code of the Russian Federation may become the basis for a citizen to go to court with a request to restore his rights in the service. The most common reasons:
- violation of notification deadlines;
- coercion to write a letter of resignation of one's own free will;
- dismissal due to pregnancy or during vacation;
- violation of the application of the procedure for bringing to disciplinary liability, etc.
Terms and conditions for filing a claim for reinstatement at work under the Labor Code of the Russian Federation
The law provides a period of one month from the date the employee receives a copy of the dismissal order or work record book. It can be extended provided that the plaintiff has valid reasons for missing it, for example, due to illness.
A lawsuit for reinstatement at work is sent either to the district court or to the location of the employee or company. Payment of state duty is not provided for this. There are several options for filing a claim with a judicial authority: independently, through an authorized representative, or sent by mail. Court websites post a schedule for accepting documents.
The statement of claim can be filled out independently, when the employee knows how to write it, or with the involvement of lawyers. You can choose at your own discretion.
Payments upon restoration
When reinstating an employee, you need to make 2 categories of payments:
- Salary for the period of forced absence . Calculated based on the average employee salary. First, the average daily income is found (the employee’s total income for the current year is divided by the number of days since the beginning of the year), and then the indicator is multiplied by the number of days of forced absence.
- Compensation for moral damage . It is paid only if the employee indicated the corresponding requirement in the claim. The exact amount of compensation is determined by the court.
Payments to an employee are reflected in accounting as wages. In essence, this is the salary that the employee did not receive on time due to the fault of the employer.
Rules for filing a claim for reinstatement at work in the Russian Federation
The content should include the following:
- name of the court where the claim is sent;
- information about the plaintiff-employee indicating his full name and place of residence, as well as his representative, if any;
- information about the employer (name and address);
- the cost of the claim;
- description of the dispute, including an indication of the rights violated and evidence with reference to the relevant provisions of law;
- employee’s demand (reinstatement, payment for forced absence, compensation for moral damage);
- list of additional documents.
Additional documentation includes copies of hiring and dismissal documents, a salary certificate to pay for forced absence, a copy of the claim for reinstatement at work for the defendant. In case of illegal dismissal due to reduction, documentary evidence is required that will indicate the presence of this fact. The content of the statement of claim will describe the reasons that, in the employee’s opinion, are illegal.
LABOR DISPUTES
Example of a statement of claim
To the Tyndinsky District Court of the Amur Region
Plaintiff: Viktor Vyacheslavovich Afanasyev, address: 676282, Tynda, st. Zhemchuzhnaya, 70
Defendant: Limited Liability Company "ProfiYur", address: 676282, Tynda, st. Vasnetsova, 156,
TIN 8594359566326, OGRN 154896552482
Claim for reinstatement at work
On March 17, 2021, the plaintiff was hired as an economist in the planning and economic department at ProfiYur LLC. I worked in this position until July 1, 2022. The employment relationship was terminated due to the reduction of the position. On April 30, 2022, the head of the personnel department of ProfiYur LLC personally handed me a notice of job reduction effective July 1, 2022. I became familiar with the notice and order on April 30, 2022.
The employer did not offer me any vacant positions at the time the notice was given. On June 29, 2022, the employer offered 2 vacant positions: assistant economist and assistant payroll accountant. At the same time, according to the staffing schedule of ProfiYur LLC, at the time of the procedure for reducing my position in the organization, there was a vacant position of the head of the economic department, as well as a procurement economist.
In accordance with Art. 180 of the Labor Code, when reducing staff, the employer is obliged to provide the employee with another job available to him. In accordance with Art. 179 of the Labor Code, family citizens (if there are two or more dependents) have a priority right to remain at work.
I am married to Afanasyeva Elena Viktorovna, she is currently not working. We have 2 minor children. In accordance with Art. 81 of the Labor Code, the employer is obliged to offer the employee all vacancies available to him in the given area. The employer did not offer me positions that match my qualifications.
Furthermore, in accordance with Art. 82 of the Labor Code, the employer was obliged to notify the primary trade union organization no later than 2 months before dismissal
Dismissal of employees who are members of a trade union is carried out taking into account the opinion of the trade union organization. When I was dismissed on July 1, 2022, under Part 2 of Art. 81 of the Code, the opinion of the trade union was not taken into account; all vacant positions were not offered to me. The order of organizational and staffing activities has been significantly disrupted. In addition, on July 14, 2022, the position of specialist in the planning and economic department was reintroduced into the staffing table, and on July 15, 2022, a new employee was hired for this position. Thus, there was no need to carry out organizational and staffing measures. This means that the reduction was illegal.
Based on the above, guided by Art. 81, 82, 179 Labor Code,
Ask:
- Reinstate Viktor Vyacheslavovich Afanasyev to his job as an economist in the planning and economic department of ProfiYur LLC, oblige him to pay wages for the period of forced absence and compensate for moral damages in the amount of 25,000 rubles.
Application:
- Employment history;
- Employment contract;
- A copy of the notice of layoff;
- A copy of the list of positions proposed for replacement in connection with staff reduction;
- Extract from the dismissal order;
- Notification of sending documents and claims to the defendant.
Afanasyev V.V. July 20, 2022
Compensation for moral damage
An employee has the opportunity to demand compensation for moral damages from the employer in connection with illegal deprivation of work. This requirement is included in the cost of the claim. This issue is regulated by the Civil Code of the Russian Federation. The amount of compensation is determined by the plaintiff employee at his own discretion, but the final decision is made by the court. In this case, the court assesses the consequences of the unlawful deprivation of the plaintiff’s job. It is better to immediately indicate the demand for moral compensation in the statement of claim for reinstatement. If an employee was sick during a forced absence, he can request sick pay from the company.
Recovery procedure
Let's consider the main steps that need to be taken when reinstating an employee.
Question: An employee was reinstated at work by a court decision. How is the SZV-TD form adjusted? Will only a cancellation record be sufficient or should it be indicated that the employee was reinstated by court decision? For what period is the corrective form submitted to the Pension Fund - for the month of the next personnel event for the employee or for the month the court decision entered into force? View answer
Cancellation of the previous dismissal order
There are two conditions for reinstatement of an employee: cancellation of the dismissal order and actual admission to work. That is, the employee does not need to be re-employed in the company. It is enough to return everything to normal. To cancel a document, an order must be issued. It states the reason for canceling the previous decision. Other important information is also indicated (for example, details of the court decision).
Question: Is the employer obliged to terminate the employment contract with the employee without work and within the period specified in the application if the employee was reinstated at work by the court in connection with illegal dismissal? Within what period of time after a violation has been established must such an application be filed? View answer
There is an alternative option, often used by employers, - issuing an additional order that sets out the requirement for reinstatement. The law does not stipulate the form of this document, so the order is drawn up in free form.
However, in any case, the document must contain the employee’s full name, the basis for reinstatement, as well as the date of reinstatement.
If the manager does not issue an order to cancel the previous decision on dismissal, then the document in question includes a requirement for cancellation. If the order is issued on the basis of a court decision that has entered into force, the following data can be entered in it:
- duration of forced absence,
- the amount of payments to the employee for missed days,
- amount of compensation for moral damage.
Important! If an order is issued to cancel the previous one, the employee must be familiarized with it against signature. If an employee refuses to familiarize himself with the order, a special report is drawn up.
Registration of a new work book
It is assumed that upon dismissal an entry was made in the book. Since the decision was challenged in court, this entry should be annulled. To do this, according to Government Resolution No. 225, it must be declared invalid. The serial number is entered in the first column, the date in the second, and an indication of the invalidity of the entry in the third. In the fourth column you need to refer to the order on the basis of which the entry is cancelled. This cancellation procedure is specified in Resolution of the Ministry of Labor No. 69. The employee has the right to demand a duplicate book without making an invalid dismissal record. In this case, o. is placed on the title page of the original document. You need to register its series and number. The new book contains a mark indicating that it is a duplicate.
Re-issuance of a personal card
Upon dismissal, a corresponding entry was made in the personal card. It will also need to be cancelled. The law does not specify the procedure for invalidating a record. Usually the entry is simply crossed out. In section 10 “Additional information” you need to enter recovery data. The details of the writ of execution are indicated.
Filling out a time sheet
The time sheet must be marked with marks for the period of forced absence of the employee. In particular, a digital and alphabetic code is entered: “22” and “PV”. These standards are stipulated by Resolution of the State Statistics Committee No. 1.
These are the general rules used when reinstating an employee.
How much does the claim procedure cost?
Controversial labor situations initiated by an employee are considered by the court free of charge. The employer pays the state fee and other costs, but only if the employee’s claim is satisfied. In such a situation, the plaintiff has the right to request reimbursement of legal fees if professional lawyers were involved in the trial.
It is sometimes not easy to defend one’s legal rights, especially when an employee does not have legal knowledge in the field of resolving labor conflicts. In situations where there are grounds for protecting rights and the need for reinstatement, it is best to contact qualified lawyers who will help you defend your interests in the courts, receive the required compensation and be reinstated at work.
Enforcement proceedings
If the employer fails to comply with the court decision, the employee has the right to turn to bailiffs who will handle enforcement proceedings. Thus, compulsory measures will be taken against the employer to comply with the court decision. It is also possible to be held accountable for failure to comply with requirements.
An employee in such a situation has the right to demand payment of the average salary for the period of non-performance. Therefore, when an employer receives a court decision or a writ of execution, it is necessary to comply with it immediately. The requirement will be considered fulfilled when the employee is authorized to work.
If the enforcement requirement is not fulfilled within 24 hours from the date of notification of enforcement proceedings, the bailiffs collect a fee and set a new deadline for execution.
If the requirements are repeatedly ignored, an administrative violation protocol is drawn up.
In such cases, the company faces a fine of 50,000 rubles, officials - 10,000 - 20,000 rubles, and legal entities - 30,000 - 50,000 rubles. (Administrative Code of the Russian Federation).
For what reasons does the court reinstate?
The court will reinstate the plaintiff in the following circumstances (not a complete list):
- there is no reason for dismissal. For example, fired for absenteeism, although he was absent for less than four hours or for valid reasons;
- errors in the process. The layoff notice is less than two months in advance. Absence of necessary acts, orders and other documents or their incorrect execution. An employee dismissed for inadequacy for the position is not certified. The employee’s alcohol or drug intoxication is not confirmed by a medical report or an act of refusal to undergo the relevant examination;
- resignation of employees during their vacation, sick leave (at the initiative of the employer is illegal, unless it is liquidated or ceases operations);
- unreasonable resignation of women only on the grounds of pregnancy or the presence of children under three years of age (at the initiative of the employer is illegal).
What is important to know
- If another specialist was hired for the position, then after a court decision to reinstate the previous employee, the employer must terminate the contract with the hired specialist. But dismissal is possible only when there are no other vacant positions.
- If, after the dismissal of an employee, a position was reduced, it must be added back to the staffing table with the issuance of a corresponding order.
- After canceling the order of dismissal and returning the employee to his position, the employer is obliged to pay the specialist the average salary for the period of forced absence, as well as compensate for moral damages in the event of an appropriate court decision.
- A note on the employee’s reinstatement must be included in his work book and personal card. In this case, the notice of dismissal will be declared invalid, and if necessary, a duplicate work book with a corresponding note will be issued.
In conclusion, it is worth adding that court cases for restoration and the subsequent execution of a court decision are quite complex processes that require knowledge and mandatory implementation.
Wrong actions of the employer will lead to new negative consequences, lawsuits and financial costs. We recommend that you avoid such situations and, if they occur, consult with competent specialists.
In what cases to apply
A labor dispute occurs when the parties do not reach an agreement.
Common reasons: labor law has been violated, the application of Labor Code norms has been violated, and working conditions have been changed. Let us list the areas of labor conflicts:
- dismissal and employment;
- labor conditions and safety;
- training;
- relations between the team and management;
- violation of social guarantees.
Types of labor disputes:
- individual (Article 381 of the Labor Code of the Russian Federation). They are determined by the employer-employee relationship;
- collective (one side of the conflict is the collective, the trade union).
What documents to collect
Prepare evidence to litigate the dispute. They will confirm the facts stated in the application. Verify written explanations with oral explanations in court.
We list the documents to substantiate the plaintiff’s position:
- copies of the plaintiff’s pre-trial appeals to the defendant (with seals, signatures and marks of acceptance for consideration);
- copies of pre-trial written responses;
- evidence of the facts stated in the claim (extracts of documents, copies of contracts, orders, receipts, salary slips, etc.);
- calculation of collected payments and their justification.
IMPORTANT!
Please note: copies of materials are submitted according to the number of parties to the proceeding.
The employer’s materials, which he refuses to provide for the consideration of the claim, are requested by the court after the petition of the plaintiff.
Liability for failure to comply with a court decision on restoration
Control over the execution of court decisions is entrusted to the bailiff service (Federal Law No. 229-FZ of October 2, 2007).
Penalty for failure to comply with a decision, according to Art. 7.15 part 1 of the Code of Administrative Offenses of the Russian Federation:
- for an enterprise - from 30,000 to 50,000 rubles;
- for officials - from 10,000 to 20,000 rubles.
When issuing penalties, the bailiff will set a new deadline for reinstating the employee at work. A repeated fine may occur if the employer again fails to comply with the court decision (Article 17.15, Part 2 of the Code of Administrative Offenses of the Russian Federation):
- for an enterprise - from 50,000 to 70,000 rubles;
- for officials - from 15,000 to 20,000 rubles.
For a delay in the execution of a decision, the organization additionally pays the employee the average salary for the entire period - from the day the court decision was made to the day of its actual execution (Article 396 of the Labor Code of the Russian Federation). The bailiff may discover a violation during an inspection or learn about it from an employee’s complaint.
Completing the application correctly
The statement of claim must be written in your own hand in any form.
Step 1. Create a preamble
Write the name of the court to which you are sending the claim for consideration. The claim can be filed at the location of the plaintiff (clause 6.3 of Article 29 of the Code of Civil Procedure).
Enter your last name, first name, patronymic and address (registration and residence), telephone number for contact.
Indicate the defendant - full name, address of the organization (legal and actual), telephone number or other information that can identify the defendant for the court.
Step 2. Describe the situation and provide reasons
Briefly indicate the start date of your employment, your position and the reason for your dismissal. Write that you do not agree with the dismissal, that you consider it illegal, and explain why.
Step 3: State your requirement
Make it as clear, clear and concise as possible: the judge has neither the time nor the desire to delve into your problems, so the simpler and more specific, the better - state your requirement to receive from the employer:
- compensation for legal costs;
- wages during forced absence;
- compensation for moral damage.
Step 4. Provide the attached documents
Just list what you have attached to the claim: minimum - a copy of the application (for the defendant), maximum - the entire package of documents that you managed to collect. It is advisable to indicate the number of sheets.
Step 5: Sign and Submit
You can sign it yourself or have a trusted person sign it. In this case, you will have to attach a copy of the power of attorney to the claim. The trustee must have the original in his hands.
