How to reinstate an employee at work by court decision

Reinstatement to a previous position is a special procedure regulated by the Labor Code of the Russian Federation. As a rule, it is preceded by illegal dismissal, for which the worker went to court. Based on the order, the employer is obliged to restore the employee to his previous rights.

What mistakes does an employer make that lead to reinstatement of an employee who fails the test?

Recovery procedure

If the dismissed person went to court and his claim was granted, the employee should be reinstated in his previous position on the day following the day of the verdict.

IMPORTANT!

The period when the employee did not work due to the employer’s fault is subject to payment as time of forced absence according to average earnings. He also has the right to demand compensation for moral damages during this time.

Reinstatement by a court decision requires the organization to perform the following actions:

• issuance of orders;
• making changes to time sheets;
• changing an entry in the work book;
• making payments;
• employee exit to his workplace.

IMPORTANT!

If the employer decides to challenge the decision to reinstate him, he will still have to take all of the above measures. In this case, file a complaint with the appellate court.

Is it possible to renew the position on the staff list?

The organization has the right to restore a position similar to the one it had during the reduction, provided that the procedure for dismissing an employee to reduce the number and staff was carried out correctly and legally. This follows from paragraph 10 of the resolution of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” which states that for the purpose of effective economic activity, the organization makes all personnel decisions under its own responsibility.

The most important point in this matter is whether the reduction was real or formal.

How long will it take?

If the reduction was not carried out to eliminate an “undesirable employee” and the employer can prove that the entire procedure was carried out in accordance with the law, then the position can be restored after any period of time at the discretion of the organization. We talked about how, in accordance with the law, the dismissal procedure for redundancy should be carried out here.

Limitation of actions

An important point that anyone who has encountered a violation of their labor rights should know is the deadline for going to court.

Employees often confuse the statute of limitations with the general period for filing labor disputes, which is set at 1 year.

IMPORTANT!

The period for reinstatement at work in case of illegal dismissal is 1 month (see Article 392 of the Labor Code of the Russian Federation). And if this deadline is missed, it will be difficult to prove to the court its legality. The district court at the place of residence of the plaintiff will consider the claim.

Results

The procedure for terminating employment contracts with employees and the reasons for its implementation must strictly comply with the norms of the Labor Code of the Russian Federation. Otherwise, illegal dismissal may give rise to legal proceedings between the parties concerned.
If the employer is found to be at fault, he may have to pay for the damage caused to the employee, as well as become the object of close attention from supervisory authorities. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Reinstatement in court: step-by-step instructions

Step 1. Issue an order.

First of all, the employer is obliged to issue orders to cancel the previously issued dismissal order and to reinstate the employee with all the previous conditions. Based on this document, a corresponding entry will be made in the work book in the future.

There is no specific form for such an order, so it is issued in free form, but it must indicate the following points:

• the date and number under which it will be entered in the order registration book;
• details of the canceled dismissal order;
• FULL NAME. employee;
• job title;
• remuneration (salary or tariff rate);
• basis for restoration - date and number of the court decision;
• FULL NAME. and the signature of the head of the organization.

Step 2. Make changes to the time sheet.

It is necessary to make adjustments to the timesheets by changing the code to PV or the numbers 22. If such actions are impossible, other timesheets must be redone.

Step 3. Make changes to the work book.

Reinstatement also entails making changes to the work book according to the general rules. To do this, a note is made in the employment record declaring the dismissal record invalid and it is indicated that the employee has been reinstated in his previous position. The basis will be an order for restoration.

In addition, changes are made to the personal card.

Step 4. Make the necessary payments to the employee.

They are carried out by a court decision on the basis of an issued order for the payment of amounts due. Such payments include: payment for forced absence; payment of sick leave (if the employee was sick during the period of forced absence); compensation for moral damage, payment of legal costs (if he made such claims).

Step 5. Permission to work.

Typically, obligations under a court decision arise not only from the employer, but also from the employee. His main responsibility is to appear at his workplace on time the next day after the court makes a decision. If an employee does not show up and begin to perform his job duties, he risks being fired again.

Compensation for moral damage

It happens that when going to court, an employee also makes a demand for payment of compensation for moral damage. Usually the courts satisfy this requirement. Accordingly, the company has a question: can such compensation be classified as expenses for profit tax purposes?

According to officials, this compensation cannot be attributed to a decrease in profit either as part of labor costs or as part of non-operating expenses (letters of the Ministry of Finance of Russia dated March 19, 2010 No. 03-03-06/4/22, dated December 9, 2009 No. 03- 03-06/2/232, dated 08/24/2009, No. 03-03-06/2/159, dated 01/24/2007 No. 03-04-06-02/6). Labor costs that reduce taxable profit, in particular, include compensation payments related to working hours, working conditions or maintenance of employees (Article 255 of the Tax Code of the Russian Federation). Payment of compensation for causing moral damage to an employee is not related to working conditions, working hours, or the maintenance of employees.

Non-operating expenses include costs in the form of sanctions recognized by the debtor or payable by the debtor on the basis of a court decision that has entered into force for violation of contractual obligations (clause 13, clause 1, article 265 of the Tax Code of the Russian Federation). Compensation for moral damage for the unjustified dismissal of an employee cannot be equated to compensation for damage caused (i.e., something material), which, according to the Ministry of Finance, is covered by this rule. Well, in conclusion, officials note that the payment of this compensation does not meet the requirements for expenses in accordance with paragraph 1 of Art. 252 of the Tax Code of the Russian Federation.

Meanwhile, this position does not find support among judges (resolutions of the Arbitration Court of the East Siberian District dated 06/03/2019 No. F02-2140/2019, A74-11023/2018, Ural District dated 12/21/2017 No. F09-7394/2017, A60-13438/2017, West Siberian District dated March 28, 2017 No. F04-38/2017, A27-25564/2015). When taking the side of taxpayers, courts take into account the following arguments.

Firstly, the obligation to compensate employees for moral damage is provided for by labor legislation, and also arises on the basis of a court decision. Secondly, in paragraphs. 13 clause 1 art. 265 of the Tax Code of the Russian Federation does not specify what kind of damage is subject to compensation - material or moral, and also does not contain a direct prohibition on including in non-operating expenses the costs of compensation for moral damage.

Therefore, organizations here decide for themselves: to take risks and, if necessary, defend their position in court (their chances of winning are high) or, in order to avoid risks, not to accept the payments in question for tax expenses.

In our opinion, the organization does not have an obligation to charge personal income tax on the amount of compensation for causing moral damage. For tax purposes, income is always recognized as economic benefit (Clause 1, Article 41 of the Tax Code of the Russian Federation). In this case, the employee does not receive benefits, but compensation for moral damage based on a court decision. That is, firstly, there is no fact of benefit. Officials also agree with this conclusion (letters from the Ministry of Finance of Russia dated January 16, 2020 No. 03-04-05/1764, dated November 25, 2019 No. 03-04-05/91174).

As for insurance premiums, they also do not need to be charged, since there is no object of taxation. After all, payment of compensation for moral damage is carried out not within the framework of labor relations, but on the basis of a court decision. Officials do not argue with this (letter of the Federal Tax Service of Russia dated May 12, 2017 No. BS-4-11 / [email protected] ).

Employer's liability for failure to comply with a court decision

Failure to comply with a court decision by an employer falls under an offense under Art. 17.15 of the Code of Administrative Offenses of the Russian Federation, and threatens to impose an administrative fine on an official from 10,000 to 20,000 rubles, on a legal entity - from 30,000 to 50,000 rubles.

At the same time, paying a fine does not relieve the employer of the obligation to restore violated rights.

In case of non-execution of a court decision, a citizen has the right to turn to bailiffs and demand to force the employer to comply with the court decision. And time of non-fulfillment is regarded as forced absence and, accordingly, is subject to payment according to average earnings.

Is it likely that the employee will return?

Reinstatement includes returning to the previous place of work, to the position specified upon hiring and with the salary established before dismissal.

If the rights prescribed in Article 21 of the Labor Code of the Russian Federation are violated, the employee has the right to reinstatement. The grounds include:

• Lack of a written employment contract.
• Absence of essential conditions in the text of the contract (responsibilities, payment, workplace, etc.).
• Adding functional responsibilities to an employee.
• Unlawful change of place of work.
• Dismissal on invalid grounds.
• Dismissal without warning.
• Dismissal due to disciplinary sanctions.

If a person was laid off legally

If the staff reduction was made legally, a reduction order was drawn up with a detailed description of the reasons why such a decision was made, you need to pay attention to other conditions for challenging the dismissal:

1. Retrenchment of an employee from protected categories:
   • Pregnant woman.

   A woman with a child under three years old.

2. A person raising a young child under 14 years of age or a disabled person under 18 years of age without a mother.
3. A single mother raising a child under 14 or a disabled person under 18.
4. The sole breadwinner of a child under three years of age or a disabled person under 18.
5. Large family with three or more children over 14 years old.
6. The second parent is unemployed.

You will find out in this material which employees have the preferential right to work when staffing is reduced, and here we talked about the category of employees who cannot be fired due to reduction.

7. The reduction does not take into account the right to retain employees with higher qualifications. The preemptive right is not considered if the position held is unique, or if identical positions are being eliminated.
8. Incorrect or untimely notification of layoffs. The employer is required to notify in writing against signature at least two months before the layoff.
9. The employee was not offered all suitable vacancies.
10. The employee's dismissal documents were incorrectly completed.

If there is at least one of these conditions, even if the worker’s layoff is legal, he has the right to go to court with his further reinstatement.

If illegal

The most common cases of illegal dismissal include:

1. Several disciplinary actions followed by dismissal. In this case, it is necessary to determine whether the punishments applied were lawful.
2. As someone who has not passed the certification, if it was carried out only for one employee or the certification procedure was not followed.
3. Pressure from superiors, threats, obstacles to the normal work process, which entails writing a letter of resignation.
4. Refusal to withdraw a resignation letter if the new employee is not officially hired.

If such conditions are met and there is evidence supporting them, a person has the right to appeal to the court or to the labor inspectorate.

In order to subsequently avoid unpleasant proceedings, the dismissal procedure for reducing the number and staff of employees must initially be carried out competently. The following publications from our experts will help you understand many of the nuances:

• What documents will the employer need to prepare when dismissing employees due to layoff?
• What payments and compensations are due to an employee upon redundancy?
• Early dismissal due to staff reduction.
• How to properly lay off an employee after sick leave?
• Features of dismissal of pensioners due to reduction.
• How to properly reduce personnel during reorganization or closure of a company?
• How to transfer an employee to another position during layoff?