Changing the wording of dismissal by court decision

Work books reflect the main nuances of relationships with employers: each subsequent employer will know exactly why the employee parted ways with the previous one. This is why the article under which the dismissal was made matters. Dismissal from a previous job may have been illegal from the employee's point of view, and if confirmed by the court, the record may be changed. There are other reasons for adjusting these data.

Let's consider the procedure for making changes regarding the dismissal of an employee in the work book.

On what grounds are employees fired?

In the Labor Code there is a limited number of groups of articles under which an employee can be dismissed. Dismissal can be issued only on one of these grounds:

initiative of the person leaving;
agreement of the parties;
initiative of superiors;
termination of the employment contract.

The employer's initiative may be identified in one of the 18 reasons for possible dismissal, which are listed in Art. 81 Labor Code of the Russian Federation. Among them are those that are neutral for the employee, for example, liquidation of the company or downsizing, and those that can be extremely unpleasant and affect the subsequent reputation, for example, absenteeism, systematic violations of labor discipline.

If an employee does not agree with the stated reason entered in the work book, he can apply to the court to protect his rights. Examples of possible conflict situations:

the employee wants to resign of his own free will and does not show up for work after the legal two weeks, and the entrepreneur records dismissal for absenteeism in the book;
the employee is fired due to staff reduction, but the employment record says “at his own request”, because then the employer will not have to pay compensation;
the employee terminates the contract early because the employer violates labor laws, and the employer records the “agreement of the parties” in the labor report as the basis;
the employer fires for absenteeism, while the employee has a documented valid reason for missing work;
the employer violated the procedure for registering dismissal for the specified reason (did not familiarize the employee with the order in time, did not receive his signature, etc.).

Reason for issuing and contents of the salary certificate

The employer must issue a certificate of earnings (form No. 182n) in two cases:

upon dismissal, on the day of termination of work;
after dismissal, upon written request from the employee. The issuance period is no later than three working days from the day the application was submitted (Article of the Labor Code of the Russian Federation).

The certificate must contain the following information:

on the amount of wages (other payments and remunerations) for the year of dismissal and for the two previous calendar years, for which contributions to the Social Insurance Fund were accrued;
on the number of calendar days falling in the specified years during periods of illness, maternity leave, parental leave, release from work with full or partial retention of wages (if insurance contributions were not accrued on it).

Also see “Certificate 182n on the amount of wages.”

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Grounds for changing the wording of dismissal in an employee’s work book

In Art. 394 of the Labor Code of the Russian Federation provides for the possibility of changing an entry in the work book by decision of the court. The employee will not necessarily demand reinstatement at work and payment for forced absences. Often it is enough to change the unpleasant article in the work book and adjust the date of dismissal.

The court has two main reasons on which it can make a positive decision on changing records:

The wording of termination of an employment contract is not provided for by law. This base is the easiest to adjust. If the employer wrote a reason that is not in Art. 81 of the Labor Code of the Russian Federation, or stated it in other words, you can calmly file a claim and demand correction.
The stated reason for dismissal is not true. This basis must be supported by evidence provided by the plaintiff. The court, considering the evidence and documents provided, decides who is right - the employer or the employee. For example, the reason for dismissal is absenteeism, and the employee confirms the validity of the reason for absence from work with a sick leave certificate issued later. The court decides the authenticity of the disease by comparing medical documentation.

IMPORTANT INFORMATION! It makes sense to apply for a forced change of wording only to the court. The labor inspectorate is not authorized to make such decisions, and while the complaint is being considered, the deadline for filing an application with the court may be missed.

Alternative option

If the work book does not contain valuable information about the activities of a citizen, but he does not want it to contain a defamatory entry, he can apply for a duplicate document. How it's done:

Step 1: Compiling and submitting an application.

The document must indicate a request for a duplicate. If incorrect information is entered due to the fault of the employer, a new work book is purchased and issued at the expense of the organization.

Step 2: Obtain a duplicate.

A duplicate must be issued within 15 days from the date of receipt of the application from the employee.

The front side of the duplicate is filled out in the same order as the original. When registering, the responsible employee must enter information about all periods of work, and instead of the erroneous wording of dismissal, indicate the real one.

All information must be entered in order of terms of employment, starting from the first place of work and ending with the last.

Procedure for appealing the wording in court

An employee receives a dismissal order for review and sees unacceptable wording in it, or he is given a completed work book. He can refuse to sign that he is familiar with this order, or put his signature on it - from this day he has a month to appeal to the court.

ATTENTION! If the deadline is missed, it is allowed to file for its restoration (to the same court). You must indicate the reasons for the omission and attach documentary evidence.

The application should be submitted to your district court or the one that serves the territorial location of the employer. There is no need to pay state duty. Prepare the following documents:

a copy of the employment agreement;
copy of the work document;
if available, a copy of the dismissal order;
if your interests will be represented by another person, a power of attorney.

When the case is heard, you will need to provide the originals. If necessary, the court will request additional papers from the employee or employer. The judge considers the issue alone; as a rule, it takes about 3 months to make a decision.

Consideration of the claim by the court

Such cases are considered by the district courts at the employee’s place of residence. Either the location of the employer or the performance of a job function by the employee.

The court, having considered the claim and found that the employer actually had grounds to terminate the employment contract with the employee, but indicated incorrect wording in the employment contract, changes the existing wording of the dismissal to the correct one. In strict accordance with the wording of the Labor Code or other law regulating the activities of individual workers. The losing party may challenge the refusal to satisfy the claim to change the wording of the dismissal on appeal.

If the decision is in favor of the employee

The employer is obliged to invalidate the previous entry in the work book and make a new one in its place. In addition, at the discretion of the judge and depending on the wording of the claim, the following legal consequences may occur:

a fine for the employer, since he illegally interfered with the exercise of the right to work (Article 5.27 of the Code of Administrative Offenses of the Russian Federation);
compensation for moral damage to an employee (damage to reputation, problem of supporting a family, etc.);
payment for forced absences during the consideration of the case.

FOR YOUR INFORMATION! If during the days while the case is being heard, the employee has already found a new job, this does not affect the possibility of compensation for moral damage. The records are corrected by the previous employer, not the new one.

Notice of dismissal

According to the general rule, an employee must notify the employer of voluntary dismissal at least two weeks in advance (Part 1 of Article 80 of the Labor Code of the Russian Federation).

The law establishes special deadlines for certain categories of workers:

for workers during the testing period - no later than three days in advance (Part 4 of Article 71 of the Labor Code of the Russian Federation);
for employees who have entered into an employment contract for a period of up to two months - three calendar days in advance (Part 1 of Article 292 of the Labor Code of the Russian Federation);
for seasonal workers - three calendar days in advance (Part 1 of Article 296 of the Labor Code of the Russian Federation);
for the head of an organization - at least one month (Article 280 of the Labor Code of the Russian Federation).

The specified period begins the next day after the employer receives the employee’s resignation letter. Please note: the date on the application and the date the employer received the application may not match. We recommend recording receipt of the application in a special journal to avoid controversial situations. The period is not interrupted by vacation or temporary disability. The date of dismissal may also fall within the specified periods (part 3 of article 14, part 1 of article 80 of the Labor Code of the Russian Federation, Letter of Rostrud dated 09/05/2006 N 1551-6).

If the employee does not want to work the specified period, or you want to say goodbye to him before the expiration of the notice of dismissal, then this is possible, but only by mutual agreement of the parties. This follows from part 2 of article 80 of the Labor Code of the Russian Federation.

There are situations when an employer is obliged to dismiss an employee on the day the application is received. Such situations include (part 3 of Article 80 of the Labor Code of the Russian Federation, paragraph “b”, paragraph 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2):

impossibility of continuing work (enrollment in an educational institution, retirement, or the presence of other valid reasons due to which the employee cannot continue to work, for example, sending a husband (wife) to work abroad, to a new place of duty);
cases of established violation by the employer of labor legislation and other regulatory legal acts containing labor law norms.

“Clean” work record

It is likely that the employee does not want to present the new employer with a work book with a record discrediting him, even if it is declared invalid. In this case, he has the right to demand the production of a duplicate in which the invalid entry will be absent. It is with this book that he will get a new job. In this case, the first copy remains “as a keepsake” for the employee.

The costs of making a duplicate are borne by the employer who fired the employee on illegal grounds.

Termination of an employment contract (Article 84.1 of the Labor Code of the Russian Federation)

Rostrud specialists report that termination of an employment contract is formalized by order (instruction) of the employer.
The employee must be familiarized with this document against signature. In this case, at the request of the employee, it is necessary to issue him a certified copy of this order (instruction). Also, upon written application, the employee is provided with copies of documents related to work (hiring orders, orders for transfers to another job; extracts from the work book; certificates about the period of work with this employer, etc.). For more details, see “Documents when dismissing an employee.”

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Settlement agreement procedure

The employer revokes the dismissal order and issues a new order.
Notifying the employee that the order for his dismissal is invalid. The employee must be notified under his personal signature:
an outgoing document of the organization, delivered in person;
by registered mail with a description of the attachments.
If the employee does not want reinstatement at work, but only a change in the entry in the work book, the necessary adjustments will be made to it: first, an entry recognizing the previous dismissal data as invalid, then a new entry regarding dismissal for an agreed reason. If a dismissed employee wishes, a duplicate work book may be issued to him, in which there will be no entries recognized as invalid.

Application for voluntary resignation

Labor legislation does not establish special requirements for the form and content of the application, but there are several nuances that will help the employer avoid risks. First of all, you should pay attention to the content of the application. Desirable wording: “I ask you to fire me of your own free will.” The text of the application can be written by hand or provided in printed form, but a mandatory requisite of the application is the personal signature of the employee.

The application must include the date of dismissal. If the employee does not put a date on the application, we recommend asking him to enter the date in person or rewrite the application. If the application does not indicate the date or it was entered by the employer independently, then there is a risk that the court will declare the dismissal illegal, for example: Appeal ruling of the St. Petersburg City Court dated March 15, 2018 No. 33-5761/2018 in case No. 2-6966/2017.