Algorithm for challenging illegal dismissal from work in 2021

Ivanov was a director of the company, appointed to this position for a period of one year by decision of the board of directors. After working for half a year, he went on vacation and left the city. But while Ivanov was resting and enjoying his free time, the board of directors decided to terminate his powers.

As a result, the contract with Ivanov was terminated by decision of the general meeting, and he, having returned from vacation, appealed to the Arbitration Court. In court, he demanded that his dismissal be declared illegal, that he be reinstated and that he be paid the average salary for the period of forced absence, moral damages, and legal expenses.

Having considered Ivanov’s application, the Arbitration Court rejected his claim, citing the fact that this case was not within the jurisdiction of arbitration, sending it to a court of general jurisdiction to be dealt with.

Having filed a claim in the district court, Ivanov expected justice. But bad luck, the court decided that the former employee missed the statute of limitations to protect his rights, which is established by law for labor disputes in this part - 1 month.

Ivanov insisted that he had not missed the one-month period for going to court to resolve an individual labor dispute, since within the period established by law, he mistakenly filed the said claim with the Arbitration Court.

But the court was adamant and stated in its decision:

“Ivanov missed, without good reason, the one-month period provided for in Part 1 of Article 392 of the Labor Code of the Russian Federation to file a lawsuit for reinstatement at work. The plaintiff did not provide evidence indicating valid reasons for missing the deadline, and did not file a petition to restore the missed deadline. Going to court in violation of the rules of jurisdiction, but within the established period, is not a valid reason for missing this period and cannot serve as a basis for its restoration.”

The appellate court agreed with these conclusions of the trial court and their legal basis.

However, the Judicial Collegium for Civil Cases of the Armed Forces of the Russian Federation considered that the conclusions of the courts regarding the refusal of Ivanov to satisfy his claims with reference to the plaintiff missing the deadline for filing a lawsuit to resolve an individual labor dispute are based on incorrect interpretation and application of substantive law, and were also made with a significant violation of procedural law.

Content

• When dismissal is considered illegal
• Evidence of illegal dismissal of an employee
• Dismissal for absenteeism
• The employee was forced to write a letter of resignation
• Dismissal of an employee “for drunkenness”
• Dismissal during illness or vacation
• Time limits for appealing illegal dismissal
• Procedure for a dismissed employee
• Documents for a claim to challenge dismissal
• Reinstatement of an illegally dismissed employee
• Worker's compensation
• How can we help?

When dismissal is considered illegal

According to the Labor Code of the Russian Federation, termination of an employment agreement with a company employee is possible in three ways:

• at the employee’s own request (Article 80 of the Labor Code of the Russian Federation);
• by agreement of the parties (Article 78 of the Labor Code of the Russian Federation);
• at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation).

In cases where an employer violates his rights when dismissing an employee, termination of the employment agreement is considered illegal and can be challenged.

A typical violation of employee rights is dismissal:

• the reason for which was the actions of the employee, which were not actually committed by him;
• on grounds not provided for in current legislation;
• on staff reduction, which was carried out only formally in order to get rid of unwanted employees, etc.;
• to reduce staff, but without complying with the requirements of the procedure;
• if a discrepancy is identified with the position held, if preliminary checks or certification of the employee have not been carried out;
• when a discrepancy is identified for the position held for medical reasons, if an appropriate medical report has not been previously obtained;
• in case of non-compliance or incorrect compliance with the procedure for imposing such a disciplinary sanction as dismissal;
• with an incorrect formulation of the reason for termination of the employment agreement.

Dismissal may be considered illegal if:

1. The administration of an organization or enterprise, through threats or physical violence, forced an employee to resign of his own free will.
2. The employee was not given the time and opportunity to withdraw his application for termination of the employment contract. In accordance with Art. 80 of the Labor Code of the Russian Federation, he has the right to withdraw the document within two weeks from the date of its submission.
3. The employer cited being under the influence of alcohol or drugs at work as the reason for dismissal from his position, but this fact has not been proven.
4. The employee was fired for absenteeism, but there is evidence of absence from work for a valid reason.
5. The citizen was fired during a period of illness or vacation. According to Art. 81 of the Labor Code of the Russian Federation this is prohibited.
6. The employee’s signature on the order for dismissal from his position was forged, or he was not familiar with the document.
7. If the reason for termination of the employment agreement is a reduction in staff, the violation will be the fact that the dismissed person was not offered an alternative job.

There are many more grounds for challenging illegal dismissal. A common ground is the employer committing unlawful actions towards the employee upon termination of the employment contract.

Evidence of illegal dismissal of an employee

What fact will prove the illegality of dismissal will depend on the situation. A written document, witness testimony, CCTV footage - it all depends on the reason why the employer terminated the employment contract. Let's consider what can be presented as evidence of the illegality of the procedure if the victim decides to file a claim in court to declare the dismissal illegal.

Dismissal for absenteeism

According to the law, absenteeism is the absence of an employee from work for more than 4 hours without a valid reason. In cases where the employee voices the reason for his absence and this is confirmed by documents, termination of the employment agreement will be illegal. Documents confirming a valid reason for the employee’s absence from the workplace are provided as evidence:

1. Sick leave, medical certificate, other similar document, if the reason for absence from work was illness.
2. A certificate from the traffic police, if the reason for absence was a traffic accident.
3. A police certificate or a court order if the employee did not come to work because he was taken into custody.
4. A certificate from the HOA or management company, if the employee was forced to stay at home due to urgent repairs to the water supply, electrical network or heating system (in the event that the accident occurred inside the apartment).

Termination of an employment contract may be considered illegal if the employee was absent from work because he was unable to get to it. For example, all the roads were covered with snow, until it was cleared it was impossible to drive. Or, because of the rains, the only bridge collapsed, which was not possible to get around.

The employee was forced to write a letter of resignation

This fact is extremely difficult to prove. But it is possible if the victim can present to the court an audio or video recording, from which the court can understand that the employee was threatened or in some other way forced to write a statement. Evidence may also include testimony from other employees of the organization, both current and former.

Of course, in practice it is quite difficult to find such a witness, especially if the dismissed employee will be involved in the reinstatement procedure on his own. But if you turn to a professional lawyer for help, your chances that justice will be restored will increase many times over.

Dismissal of an employee “for drunkenness”

If an employee is fired with this wording, the state of intoxication must be documented. That is, a medical examination must be carried out, or the manager must formalize the employee’s refusal to undergo it. In addition to the medical report, the offending employee must write an explanatory note within two working days.

If these documents are missing, there is no evidence of being intoxicated at work, termination of the employment agreement is considered illegal, and the released employee has every chance of being reinstated in his position in court.

Dismissal during illness or vacation

In Art. 81 of the Labor Code of the Russian Federation prohibits the dismissal of an employee during the period when he is on vacation or undergoing treatment. As proof of the illegality of the procedure, the victim can provide to the court a sick leave certificate or a copy of the order for the provision of leave, as well as an order to terminate the employment contract. The court will only need to compare the dates.

If the applicant cannot obtain a copy of the order, in the statement of claim he can petition to request the required document from the employer.

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Time limits for appealing illegal dismissal

In accordance with Art. 391 of the Labor Code of the Russian Federation, an employee has the right to protection from illegal dismissal, that is, to appeal an order to release him from his position within one month from the date of receipt of a copy of this order or work record book.

In cases where the employee is not able to personally receive documents (this must be done on the last working day), with his consent, all papers are sent to him by registered mail. In this case, the period for appealing illegal dismissal is calculated from the date on which the letter is received.

Procedure for a dismissed employee

When challenging illegal dismissal, the victim must follow a certain procedure:

1. The plaintiff collects the necessary evidence and draws up a statement of claim to the court for illegal dismissal. A copy of the claim is sent to the defendant; starting from 2021, this is a mandatory procedure.
2. The statement of claim and the documents attached to it are submitted to the court. The judge, within five days, makes a decision on accepting the claim for consideration or refusing to consider it.
3. A date is set for a preliminary court hearing, at which the court clarifies the plaintiff’s claims and other circumstances of the case. There are many court cases where already at this stage the parties signed a settlement agreement and court hearings were terminated.
4. The court schedules a hearing on the case (can be held on the same day as the preliminary hearing). The parties to the trial present their arguments and evidence to the court. The court makes a decision on the claim.
5. If none of the parties challenges the court decision within a month, it enters into legal force.

As you can see, the procedure for challenging illegal dismissal is quite complicated. It is usually impossible to do without the help of an experienced lawyer. In addition, courts often return claims or refuse to accept them for formal reasons.

When preparing a statement of claim, special attention must be paid to determining the subject and object of the claim, as well as correctly determining the subject of proof. If you make mistakes at the initial stage, you will not be able to correct them later.

Our specialists have extensive experience in resolving labor disputes in court and will provide you with all the necessary legal services: from initial consultation and drawing up a statement of claim to full legal support.

Important!

The cost of our services directly depends on the result we achieve. We often work without advance payment. Payment for services is made only after achieving a positive result in court.

Documents for a claim to challenge dismissal

The statement of claim for unlawful dismissal must be accompanied by:

• evidence in the case: certificates, explanatory notes, other written or other evidence;
• a copy of the employment contract;
• a copy of the work book;
• dismissal order (if the plaintiff received this document);
• notification that the defendant has received a copy of the statement of claim.

The relationship between the statute of limitations for filing a lawsuit and a complaint to the labor inspectorate

Let us note the most important point: if an employee contacts the labor inspectorate (as well as the prosecutor’s office) with a complaint against the employer, he should not wait for the results of the inspection for the court. You can and should go to court in parallel with filing a complaint. And that's why:

1. The State Labor Inspectorate, unlike the court, is not authorized to resolve labor disputes. That is, it can establish a violation of the employee’s labor rights and fine the employer. But she has no right to give him an order regarding the resolution of a dispute with an employee on the merits (any, including dismissal). Nor can it award the employee any compensation.
2. Nothing prevents an employee from going to court at the same time.
3. A labor inspection inspection does not stop the month-long period for going to court.

The fact of illegal dismissal established as a result of an inspection by the labor inspectorate can be used to prove it in court. But in light of the above, it makes little sense to rely on an inspection by the inspectorate in the event of a dispute over dismissal. In the best case, the employer will be fined (and the employee will remain fired and without money, but with the prospect of a judicial solution to the problems), and in the worst case, all the deadlines for going to court will have passed, and the employee will be left with nothing forever.

Therefore, you must go directly to the court or both the court and the inspectorate.

Reinstatement of an illegally dismissed employee

After the decision to restore unlawful dismissal comes into force, the employer is obliged to:

1. Immediately after receiving the writ of execution, cancel the order to terminate the employment contract and issue a new one - that the plaintiff can continue working.
2. Make an entry that the dismissal from the position was illegal in the work book of the person reinstated.
3. Issue an order and pay the employee all the money due to him:

• payment for days of forced absence;
• compensation for moral damages for illegal dismissal;
• payment of sick leave;
• other required payments.

In some cases, reinstatement to your previous job is not possible, for example:

1. Another has already been hired to replace the plaintiff. In this case, the employer is obliged to offer the reinstated employee another job.
2. The organization has been liquidated. In such a situation, the former employee retains his right to all monetary payments that he could have received if he had not been fired.

Reduction

Downsizing is not easy. With the appropriate decision of management, it is necessary to draw up a lot of paperwork. A special commission is also created that carefully studies the candidates. For this purpose, the following factors are taken into account:

• Experience with a specific employer.
• Degree of qualification.
• The presence or absence of benefits issued to individual employees. After the study, the team is notified about upcoming events. This must be done no later than two months before the start of dismissal. The employee is given severance pay equal to 2 salaries.

Important! If the procedure is violated, the employee has the right to appeal the reduction. For this purpose, a complaint is also filed with the labor inspectorate to initiate an inspection of the organization. If an employee wishes to be reinstated at his previous place of work, it is advisable to contact the judicial authority, since this authority has broader powers.

Worker's compensation

In the event that an illegal termination of a contract has occurred, the employee reinstated by the court has the right to compensation for illegal dismissal. Compensation is subject to:

1. Average salary for the entire period of forced absence. This period is calculated from the date of illegal dismissal until the date of his reinstatement.
2. Legal costs. Payment of state fees for filing claims of this type is not provided for by law, therefore, only attorney fees can be accepted as the applicant’s legal costs. If the plaintiff wins, the employer will be required to reimburse his costs for legal services.
3. Moral injury. To assess the moral suffering of the plaintiff, the court may invite a psychologist. At the court hearing, the court will evaluate the specialist’s opinion, records in the medical record, etc.

How can we help?

Labor disputes over illegal dismissal seem simple only at first glance. In fact, the plaintiff in court most often finds himself face to face with the employer’s experienced lawyer. In such a situation, it is unreasonable to rely only on one’s own strengths, counting on the fact that the employer does not have insurance. Typically, HR employees, with the help of a company lawyer, draw up all dismissal documents in such a way that challenging them becomes a difficult task.

If you are challenging illegal dismissal, a lawyer specializing in labor law will provide invaluable assistance. Legal specialists provide services to protect clients from illegal dismissals. Our employees:

• will carefully analyze your situation;
• based on this analysis, they will advise you on the prospects for the development of your dismissal situation;
• will try to solve the problem pre-trial by filing a complaint for illegal dismissal;
• if a pre-trial solution to the problem is impossible, a claim for illegal dismissal will be filed;
• will represent your interests in court in a claim challenging illegal dismissal.

In addition to providing individual services, we can enter into an agreement with the client to manage your case on a turnkey basis, that is, until the process of your reinstatement at work is fully completed and you receive the moral compensation due in case of illegal dismissal.

So, we have looked at how a citizen who was fired illegally can restore his rights. Of course, in each individual situation, the recovery procedure may differ significantly from that described above, which is why it is advisable to involve an experienced lawyer in solving the problem. Considering the shortened statute of limitations, we recommend not delaying the start of the process of declaring the dismissal illegal.

We also draw your attention to the fact that our law firm, along with providing services in labor disputes, specializes in [anchor href=»h-cons.ru/neustojka/10-sovetov-vzyskaniya-neustojki-po-ddu»] collection of penalties under the DDU, rental disputes, as well as in other areas of civil law. You can get more detailed advice, taking into account the specifics of your situation. Leave a request on the website, or call us!

What is a statute of limitations

The limitation period means the period of time during which a claim for the protection of a violated right is filed.
This legal term is regulated by the Civil Code of the Russian Federation in Art. 196. The first paragraph of this article explains the concept of general terms - 3 years. The countdown begins from the time when the victim became aware that his right was violated. The next article of the Civil Code introduces the concept of “special”; it is established for individual requirements. These include the deadlines for filing a lawsuit in labor disputes, the limitation period for which differs from the general one and is standardized by the Labor Code in Art. 392.