In accordance with international law, as well as the constitution of the state, everyone has the right to work and their payment, which is inalienable. Almost the entire population of the country uses this opportunity, earning funds for themselves and their families for living and receiving other benefits. However, in the process of conducting labor activities, there are often violations of the rights of workers by the employer. One of them is the illegal dismissal from work. What, then, can a person do for whose inalienable right an encroachment has been committed? What illegal dismissal from work under the Labor Code of the Russian Federation can be appealed in favor of the employee and by what authorities? About it further.
Dismissal: a general concept
The process of dismissal from work is the action to terminate a previously concluded employment contract between the employer and employee. Legislation provides for reasons why an employee can be fired. The most common among them is the presence of their own desire on the part of the employer or the employee himself. In addition, there are a number of other reasons why an employee can be fired - they are all spelled out in detail in the articles of the Labor Code. In this normative act, for each reason for dismissal, a specific article is set out in which the procedure for breaking the employment relationship is prescribed. If the employee was dismissed without any reason or the employer violated any conditions, this procedure is considered illegal and is subject to appeal at the request of the employee.
Reasons for dismissal
The dismissal procedure can be carried out for any of several circumstances provided in the text of Article 77 of the Labor Code of the Russian Federation. An unlawful dismissal from work will be recognized as such when the employer has indicated any other reason not provided by the legislator in this article, or has violated the terms and procedure for performing the prescribed procedure.
The legislation provides a list of reasons for dismissal, among which the wording “of one’s own will” (employee or employer) and also “by agreement of the parties” are quite often used in practice. The reason for termination of the employment contract is also considered the employee's refusal to move to a permanent place of residence in another locality in connection with the movement of the actual workplace.
Often, the dismissal of an employee does not become the reason for the end of his career at the enterprise - this may be just a step in his career advancement, since in order to take an employee to a higher position, he must first be fired from the old one. In this case, the termination of the employment contract is considered a simple formality.
The termination of the employment contract is also a reason for its termination. In this case, the parties may come to a general agreement on its complete termination or extension for a certain period.
Examples of illegal dismissal
In what situations does the injured party have the right to sue for unlawful dismissal from work? For all that are not provided for in articles of labor law.
An example of this can be dismissal without proper execution of disciplinary offenses, on the basis of which the employment contract was terminated.So, for example, dismissal from work for truancy will be considered unlawful then, when the fact of discipline violation was not framed or indicated inappropriately.
If the head refuses to pay the employee wage arrears, such dismissal will also be considered illegal. Before terminating the contract with the worker, any employer is obliged to repay the wage arrears in full, regardless of the pretexts that arose.
In the event that an employee was dismissed from the enterprise under the wording of the reduction in staff or number of employees, and in fact this activity is not conducted, then such dismissal from work is illegal. It will also be recognized as such if the organization is liquidated, but the employees were not properly notified of the upcoming event.
One of the conditions for dismissal of an employee is his mismatch of his position. If such a wording is indicated in the work book, however, certification with the participation of a special commission was not carried out (a protocol must be drawn up), then in this case, dismissal from work is illegal. A similar situation may arise with the wording on the mismatch of the position in connection with medical indicators: if there is no certificate of a medical examination, then you can safely file an application with the court - dismissal was made illegally.
Who can't be fired
The legislation prescribes a complete list of persons whose dismissal is possible only in the event of the complete liquidation of an institution or enterprise. In other situations, their dismissal is considered illegal, and employees have every right to apply to the court for protection.
This category includes single mothers who have children under the age of 14 on their support. If such a child is disabled, then the age limit increases to 18 years. This rule also applies to persons who have a child under the age of 3 years, and in this case the gender of the employee does not matter - this rule applies to both men and women.
The law states that the dismissal of pregnant women, as well as minors, is unacceptable.
Illegal dismissal from work: what to do?
After a person whose rights have been infringed understands the illegality of his dismissal from work, he has the right to defend his rights. To do this, the employee can apply to the judicial authorities with a claim for reinstatement in case of illegal dismissal under the Labor Code. During the trial, subject to proof of guilt on the part of the employer, the employee who was illegally dismissed is obliged to reinstate and pay him compensation in the agreed amount.
It should be noted that in today's realities the court is the only fair body in which it is possible to appeal such a decision of the head of the enterprise and punish it accordingly.
Preparation for going to court
Before applying to the judicial authorities with a request for reinstatement after an illegal dismissal, the employee must be well prepared for the upcoming process. First of all, you should pay attention to the evidence base, on the basis of which a hearing will be held and a decision will be made by the judge.
First of all, you should pay attention to the presence of a second copy of the employment contract, which can be requested in advance from the employer before the start of the trial. It is best after picking up a job to pick up the second instance for yourself immediately. The text of the contract should indicate the average wage.In the event that this is not in the text, you can request a statement from your accounting department about your monthly income - this information in court will be necessary in order to calculate the amount of compensation for illegal dismissal from work.
In the process of hiring and dismissal in the work book, appropriate entries are necessarily made. Any employee must ensure that they are properly designed - with truthful data, otherwise it will be quite problematic to defend their rights in court.
The legislator also provides for the possibility of applying to the court for persons who did not work under an employment contract, since the fact of the beginning of the fulfillment of the agreed obligations is already considered to be the conclusion of a contract. However, in this situation, the employer may deny that the employee was at work and engaged in the performance of his duties, if this is not documented.
What can be required from the employer
In case of illegal dismissal of an employee from work, he has the right to file a lawsuit in court with certain requirements. What can they be?
First of all, the employee has the right to demand his reinstatement to positions with the previous monthly salary. In addition, any employee whose rights have been infringed has the opportunity to claim wage arrears or recover non-pecuniary damage. If necessary, the dismissed person has the right to request a change in the data entered in the work book - this action is especially relevant for further profitable unhindered employment.
Often there are situations when, in addition to demanding reinstatement, dismissed employees declare the need to pay them money during a forced absence. The amount of such compensation upon reinstatement (upon unlawful dismissal under the Labor Code) is determined on the basis of monthly salaries, which should be reflected in the text of the employment contract.
Documents required for filing with the court
Before applying to the judiciary, the dismissed employee must collect all the documents that can help him achieve protection of his infringed labor rights.
In a general package, he must provide a statement of claim, which necessarily reflects all the conditions and requirements. In addition, the court must provide evidence of the payment of the court fee, as well as photocopies of identity documents.
In the package of evidence, you must provide all the documents that confirm the illegality of the dismissal from work. Lawyers recommend attaching a copy of the employment contract, certificates that reflect the size of monthly salaries, as well as photocopies of the pages of the work book, which reflect all the processes of the company. In addition to all of the above, a solid evidence base must be put together, which will reflect the illegal actions of the employer.
Application Deadlines
As for the deadlines for filing a lawsuit to protect their rights in court, the legislator devotes a month to this for the employee from the moment he familiarized himself with the dismissal order. However, this period can be extended if the timely treatment was hindered by the disease, the lengthy process of studying the circumstances of the fact, as well as in the presence of other significant circumstances, which the court recognizes as such. It should also be remembered that any such fact must be documented.
If we talk about the terms of reinstatement in case of illegal dismissal, then if there is a writ of execution, this court decision is made immediately. In the event that the employer refuses to perform the prescribed actions, a fine is imposed on him.Subject to a twofold evasion of the duty, the performer is obliged to petition the court for the criminal liability of the guilty person. When all the requirements indicated in the writ of execution are fulfilled by the employer, an act is drawn up about this fact and transferred to the judicial enforcement service. Only if it is available, the proceedings are considered closed.
The legislator also notes that the procedure for reinstating an employee to his former position is marked not by the date the decision was made, but by the fact that the employee was dismissed illegally.
What information should be indicated in the claim
The text of the statement of claim must contain certain information that directly relates to the question. In particular, the plaintiff must indicate what is the illegality of the illegal dismissal from work and the article of the Labor Code, on the basis of which the appeal is made. In addition, the statement of claim must specify the information about the defendant and their data.
In the text of the claim, it is necessary to indicate your requirements that are presented to the head of the enterprise or organization - the list of possible ones is presented above.
If reinstatement upon illegal dismissal at a previous enterprise seems impossible due to its reorganization, the plaintiff has the right to present all claims to his successor, if any. In this case, it is necessary to indicate in the text of the statement information about the legal successor and indicate the grounds for filing a claim.
Who has no right to challenge the dismissal
The legislation provides for a number of posts, the dismissal of which cannot be challenged in court. This exception applies to employees of the prosecutor's office, as well as those who hold positions in elected posts. If the resignation was illegal, you can challenge this fact in a higher department, for example, in the Prosecutor General’s Office of the Russian Federation.
Judicial Practice
As the judicial practice shows, the court leaves satisfied almost all the statements of the plaintiffs about their illegal dismissal from their place of work. However, the judiciary also notes that questions about the legality of a worker’s dismissal are raised relatively infrequently. According to many judges, this circumstance is connected with the lack of understanding of the labor rights of the population. In this regard, many legal professionals recommend increasing the level of legal education among the population of Russia.
One of the main requirements of the dismissed employee presented in the lawsuit is his reinstatement with compensation for the entire time of forced absence (no more than one year). As noted in the law, it is calculated on the basis of employee salaries for the last two working months. It often happens that after enforcing the presented requirements, the employee is dismissed at his own request in compliance with all necessary procedures.