Despite the fact that the Labor Code has been in force in Russia for more than 15 years, one of the problems of our society remains the illegal dismissal of employees, which does not have a clear definition in current legislation.
“An employer’s order to dismiss must be recognized as unfounded if it does not provide evidence confirming legally significant circumstances included in the applied basis for dismissal.”
In this case, the injured employee must be reinstated or receive a modified dismissal. It happens that victims of such an offense do not even suspect that for dismissal the employer must have legal grounds provided for in Art. 81 Labor Code of the Russian Federation. But what’s even worse is that some people don’t think about the fact that the moral damage caused to them can and should be compensated. However, judicial practice has many examples where a citizen managed to defend his rights and receive certain compensation from his employer. However, in the legal system there are still no clear criteria for determining the amount of moral damage caused and for determining the specific amount of compensation for it.
What's worth knowing
According to the resolution of the Plenum of the Supreme Court of the Russian Federation, moral harm should be understood as moral or physical suffering caused by actions (inaction) that infringe on intangible benefits belonging to a citizen from birth or by force of law, or that violate his personal non-property rights, or that violate the property rights of a citizen.
The legal basis for compensation for damage caused is enshrined in the Labor and Civil Codes of the Russian Federation. Yes, Art. 237 of the Labor Code provides that moral damage is compensated in monetary form by agreement of the parties. Practice shows that, having agreed among themselves, the parties can disagree by providing any goods or services.
Of course, agreement between the parties in such situations is rare, which leads to litigation in which the court is guided by its view of what happened and what led to the illegal dismissal.
And if it is not difficult to determine the illegality of the employer’s decision, then establishing the consequences of unfair dismissal becomes much more difficult. To do this, you should pay attention to judicial practice regarding this problem.
How compensation is calculated
Judicial practice is such that in case of illegal dismissal, the employee does not even need to prove the fact of moral suffering. It is assumed that in this case, feelings due to loss of work and negative emotions due to unfair dismissal are sufficient grounds for payment of compensation.
At the same time, the law does not provide any guidance on how the amount of compensation for damage is calculated. Since moral suffering is subjective, it is almost impossible to accurately determine its financial equivalent. It is difficult to determine the degree, depth and intensity of negative emotions, their nature, as well as the general psycho-emotional state of the employee after dismissal. By default, it is assumed that suffering is associated with:
- with infringement of the employee’s rights to work;
- deprivation of a source of income and, as a consequence, deterioration of financial situation;
- with a sharp change in the usual environment and the need to look for a new job;
- if the reason for dismissal was an illegally imposed disciplinary sanction, the employee worries about the damaged reputation.
Typically, all these criteria are not spelled out in the court decision, although the employee may indicate them in the claim. For example, he can describe in detail that due to loss of income, he has difficulties repaying loans or paying for additional education for his child.
Typically, a dismissed employee indicates in the claim the amount he would like to receive. The court evaluates its proportionality to the circumstances of the case and makes a final decision. Typically, the amount of compensation awarded for wrongful dismissal is small. Often the final amount is lower than the one indicated by the plaintiff.
Expert commentary
Gorchakov Vladimir
Lawyer
If the employment contract specifies the amount that the employer is obliged to pay the employee as compensation for his unlawful actions, the court takes this figure as a basis. The parties can also independently agree on the amount of compensation. To avoid further misunderstandings, it is advisable to document this agreement in a written agreement.
In addition, if, as a result of the experiences associated with dismissal, the employee developed health problems and had to spend money on treatment, these costs can also be included in the final amount of compensation. To do this you will need to provide:
- a certificate from a doctor with a diagnosis. Usually the consequences of suffering are nervous disorders: insomnia, migraines, depression, etc. Also, as a result of experiences, a person may experience problems with the cardiovascular system (hypertension, heart attack, etc.), exacerbation of chronic diseases, etc. You will need to tell the doctor about all these symptoms so that he reflects this in the medical record.
- checks and receipts for payment for medical services, for the purchase of medicines, treatment in a sanatorium, etc.
However, practice shows that the court does not always see a cause-and-effect relationship between dismissal and deterioration in health. If the judge considers that these events are not related to each other, then the provided documents will not be taken into account when calculating compensation. In any case, the judge has the right to determine the amount of compensation based on his internal convictions. In this case, the requirements of reasonableness and fairness, as well as the specific circumstances of the case, must be taken into account.
Arbitrage practice
As an example, we can cite the decision of the Ust-Ilimsk City Court of the Irkutsk Region dated March 27, 2013 No. 2-1285/2013, in which the court cited the following facts as grounds for satisfying the claim: the employee’s rights to a decent life, wages, that entailed moral suffering, and the lack of other sources of income created a psychologically traumatic situation.
The question remains how the court determined the traumatic situation without involving a specialist in this proceeding who could draw the appropriate conclusion.
When determining the amount of compensation, the court should be guided not by some general provisions, but by the specific circumstances of each case. “In the individual perception of this or that event (chain of events) lies the specificity of moral suffering as a legal fact, the degree of which must be assessed by the court.”
This has its advantages, for example, it obliges the court to take into account all the consequences resulting from illegal dismissal. And they can be very different, up to the loss of the ability to provide for your family. But we should not forget about the shortcomings of this procedure: the court most often does not have documentary evidence of moral feelings, does not have criteria that determine the degree of moral suffering of a person, because the court does not know how much the citizen worried about the dismissal and how these feelings were reflected on his life. In addition, the courts often simply do not indicate exactly what kind of moral suffering the victim suffered and to what extent, what they were expressed in, and why the court awarded such an amount.
What decision was made at the meeting?
The board proposed criteria by which to determine the degree of harm caused and basic compensation:
- Temporary health deficiency;
- Definitive and unresolved health deficit;
- Suffering caused by violation of physical integrity;
- Suffering caused by the loss of a loved one.
For example, for temporary health problems, five thousand rubles a day are offered; for humiliation of human dignity - one million rubles; for complete paralysis of arms and legs - four million five hundred thousand rubles; for the loss of a parent’s minor child – two million rubles.
However, the following features are also taken into account:
- If the victim is also the perpetrator, the amount of compensation is reduced tenfold;
- If there is malicious intent on the part of the culprit, the amount of compensation is doubled.
Regulations on the limitation period for compensation for moral damage
Very interesting is the provision on the limitation period for compensation for moral damage. According to the same resolution of the Plenum of the Armed Forces of the Russian Federation dated December 20, 1994 No. 10, if a claim for compensation for moral damage arises from a violation of personal non-property rights and other intangible benefits, then by virtue of Art. 208 of the Civil Code of the Russian Federation, the limitation period does not apply, except in cases provided for by law.
That is, a citizen whose rights and legitimate interests were violated by an employer can go to court for compensation even after a long time. It seems to us that this circumstance plays into the hands of the victim, since moral suffering can haunt him throughout his life, he may lose self-confidence, or have difficulties with future employment. In addition, it is possible to get a mental disorder, which may manifest itself after some time.
Thus, we see the need to reform legislation regarding compensation for harm caused by illegal dismissal. Since the moral suffering of an employee cannot be studied, then, in our opinion, it is necessary to create an accurate system for determining how much a person suffered due to an offense, how it affected his life, what losses he himself suffered, and most importantly, in what amount of compensation should be awarded to him.
In addition, quite often the court satisfies the claims, but not in the amount that the injured person wants. This raises another question: why did the court assess moral suffering in this amount, and not in the same amount as the plaintiff? All this entails new disputes and discussions that need to be resolved as soon as possible.
The troubling question of proportionality
The question of the commensurability of the assigned amount of compensation and the damage caused has been discussed many times, which is associated with disputes that arise around these assignments: there are cases when, for the death of a loved one, the victim receives amounts that are completely incomparable with the degree of loss.
Articles 151 and 1099 of the Civil Code of the Russian Federation specify that when establishing the amount of compensation for harm, both the degree of guilt of the person causing the harm and the degree of physical and moral suffering caused to the victim are taken into account, which, of course, is determined for each victim individually.
In this case, it all depends on how the judge presiding over the case assesses the situation.
But does everything really depend solely on the personal perception of the judge? Does it turn out that the behavior of the victim can influence the perception: for example, a person who does not control his emotions will be able to count on a larger sum than someone who controls himself? Will such compensation amount to a loss? It is these kinds of questions that push the legal community to discuss and further standardize the amount of payments.
What else can you get compensation for upon dismissal?
In addition to the moral suffering that the dismissed employee suffered due to wrongful dismissal and the costs of treatment, other violations can be included in the final amount of moral damages. For example, an employer not only fired a person, but also spread negative information about him. In this case, it is also possible to recover compensation for moral damage. This can be done even if the information was not negative in nature, but the employee’s personal data became publicly available.
For example, in judicial practice there was a case when, after the dismissal of an employee, the company posted his photograph and passport data at the entrance. As a result, the person began to receive calls asking whether he had committed an offense. When the employee went to court, he was able to recover compensation for moral damage.
The right to intangible benefits of the Civil Code of the Russian Federation
Our right to intangible benefits is established by the Constitution of the Russian Federation, that is, it is a constitutional human right.
In accordance with Art. 150 of the Civil Code of the Russian Federation, intangible human benefits include:
- life and health,
- personal dignity,
- personal integrity,
- honor and good name, business reputation,
- privacy,
- inviolability of home,
- personal and family secrets,
- freedom of movement,
- freedom to choose place of stay and residence,
- citizen's name,
- authorship,
- other intangible benefits.
How to file a claim
The decision to collect compensation for moral damage can only be made by a court; other bodies (trade union, labor inspectorate, prosecutor's office) do not have such powers. Typically, demands for compensation are included in a claim for the reversal of unlawful dismissal and reinstatement. The claim is filed in the district court at the location of the defendant.
The claim states:
- full name of the court;
- Full name of the plaintiff, his contact details (address and telephone number);
- full name and contact details of the defendant;
- the essence of the case: on what grounds was the plaintiff dismissed, when did this happen, why does he consider the dismissal illegal, what inconveniences did he have to experience due to this;
- claims: reinstatement and payment of monetary compensation, including for moral damage;
- list of attached documents;
- At the end they put a date and signature.
The claim is usually accompanied by documents regulating labor relations with the employer (employment contract, work record book with a record of dismissal, job description) and evidence of the illegality of dismissal. If there are documents that allow a more accurate determination of the amount of moral damage, they are also attached to the claim.
Expert commentary
Kamensky Yuri
Lawyer
If a person is not sure that he can competently draw up a statement and substantiate his claims, he can seek help from a professional lawyer. If the claim is satisfied, legal costs will be compensated by the defendant.
