Reinstatement by court decision has a number of features. Knowing them will help to defend your position in court and your rights in the future. After all, an employee, unlike an employer, has less opportunities for his protection.
Normative regulation
Typically, procedural issues are governed exclusively by procedural codes. As regards labor disputes, there is an exception. A significant part of the provisions is contained directly in the TC. They are special and are clarifying and complementary.
Restoration of work by court decision is regulated by the Civil Procedure Code (fundamental law). Also, some standards of enforcement proceedings and the Criminal Code apply. We will talk about this later.
Should I contact the CCC?
There is a pre-trial system for the consideration of individual labor disputes in court. A labor dispute review commission is being set up at the enterprise to consider disputes between employees and the employer. True, there are two nuances. Firstly, it is not created everywhere and is dependent on the employer, no matter who says it. Secondly, disputes about the legality of dismissal by this body are not considered in principle.
The role of labor inspection
GIT, or the labor inspectorate, is responsible for examining citizens' complaints about illegal actions in the field of labor relations. The task of the inspection is to examine the complaint, examine the available materials, seek new ones if necessary, and issue an order to eliminate the violations. After the decision of the inspection, workers still have to turn to the courts in their favor.
The Armed Forces of the Russian Federation in one of the decisions explained: the inspection is not competent to consider labor disputes. Its task is to evaluate the actions of the organization or the entrepreneur in relation to the former employee. In practice, inspectors recommend going to court and do not interfere in the further development of the situation, although they have the right to go to court to protect the rights of the employee. More often the prosecutor’s appeal to the court. Therefore, documents from the inspection serve as additional evidence for the court.
Judicial authorities
The body considering individual labor disputes is the court. The quality of his work is well-grounded and serious, but there are some chances to achieve the truth.
Previously, justices of the peace were dealt with by magistrates, but then, at first, cases of reinstatement were removed from their competence, and then other labor disputes. Court decisions in such cases are now issued exclusively in district courts.
It is allowed to make a choice: where to file a lawsuit - in court at the place of residence or at the location of the organization or individual entrepreneur.
Statutes of limitations
The Labor Code states that the employee has the right to apply to the court within 1 month from the date of delivery of the order. The second point of reference is the delivery of a work book. If the former employer delays the issuance of documents, it is worth contacting the GIT with a statement. Its submission is one of the ways of fixing the fact and date of dismissal. The reluctance to issue documents is often associated with the desire to exclude the filing of a claim in connection with a missed deadline.
The consideration of labor disputes in court is permissible even if the deadline is missed. The court must accept the application for consideration. And it is advisable to ask the court to restore the deadline for filing a claim and indicate precisely the actions of the former employer as the reason for the omission.And then in court the defendant will not be able to invoke the deadline as a basis for refusing the lawsuit.
Statement Structure
It should be indicated:
- name of court;
- the name of the defendant (full name of the organization, F. I. O. SP, his registration number, location or address of residence);
- information about the plaintiff (full F. I.O., place of residence);
- a description of the circumstances of the dismissal, reasons to consider it unlawful, links to regulations;
- claim requirements (recognize dismissal unlawful, reinstate and recover wages and non-pecuniary damage);
- list of attached documents;
- Signature and filing date.
Papers are submitted in a set according to the number of participants in the process. Be sure to file a copy for the prosecutor, who is obliged to give his opinion on the case.
Features of the grounds for a lawsuit on illegal dismissal
On what basis are such statements based? Practicing lawyers divide claims of this kind into two categories. First, the application is based on insufficient reason for dismissal. The second group - the procedure for terminating relations with the employee is violated.
It is forbidden, for example, to dismiss a person at the initiative of the employer during his stay on vacation, maternity leave, during pregnancy.
In a significant part of cases, there is an illiterate drafting of orders, acts and other documents related to dismissal. The simultaneous presence of these two points is not excluded. It is their assessment that forms the basis of the case and the decision of the judge.
Another feature of the consideration of labor disputes in court is the lack of the need to pay state fees.
Part of the claim is the calculation of the amount of recoverable wages and non-pecuniary damage.
Almost always, workers are asked to collect wages during a period of forced absence and moral damage.
Features of the court decision
The decision shall indicate:
- date, place of issue;
- composition of the court, initials and surname of the secretary, listing of participants in the case, including the prosecutor;
- circumstances of the case, arguments of the parties, their assessment by the court;
- reference to regulations, positions of higher courts;
- full or partial agreement with the claims or a complete rejection of the statement of claim;
- procedure, method and time limits for appealing against a court decision.
The court, having agreed with the arguments of the lawsuit, either reinstates the plaintiff at work, or changes the wording for dismissal at his own request, if the former employee does not want reinstatement in his former job.
If restoration is not possible due to the expiration of the contract or the contract, the court refers as a basis precisely to these circumstances and changes the entry in the work book.
Also paid average earnings during a forced absenteeism.
How soon is the execution of the court decision on reinstatement?
According to the laws in force, a court decision on reinstatement shall be executed immediately, on the next day or on the first working day, if the decision was made before the weekend or public holidays, provided that the enterprise ceases to function at this time.
The disagreement of the employer does not matter, even if he is going to appeal and seek the annulment of the judicial act.
Immediate restoration is envisaged at the same time as the Civil Procedure Code and Art. 396 of the Labor Code of the Russian Federation.
What actions should the employer take?
First of all, to admit the employee to the workplace. Secondly, to draw up documents.
A new reinstatement order is being issued by court order. Requirements for such an order are not established by regulatory acts, due to which it is compiled in free form:
- serial number, date of compilation;
- details of a previously issued order to terminate labor relations;
- information about the employee (F. I. O);
- position to which he returns;
- salary or tariff at which payroll is made;
- details of the judicial act (date, initials of the judge, which court rendered, case number);
- signature of the head.
As with all orders affecting the employee, they should familiarize him with this document by taking a receipt about it.
New entries in the workbook
The reinstatement procedure by court decision ends with the addition of additional entries in the work book.
They are entered according to the instructions on maintaining the work book:
- the first column indicates the serial number of the entry;
- in the second column - the date of entry;
- in the third column they write about the invalidity of the record (the number is indicated) and what is restored to the previous job.
From a formal point of view, there is no need to enter information on the court decision in the work book.
Legislation gives the employee the right to demand the issuance of a new work book, and all entries except the one excluded by the court are transferred to it.
How are payments made?
Immediate execution of wage payments applies to 3 months. For all other amounts, they await the entry into force of the judicial act or adoption by the appellate court.
Subsequently, the annulment of the court decision does not give the right to recover from the employee the money withheld in his favor for involuntary absenteeism. Claims for their return are expressly prohibited.
What are the challenges to enforcing a decision?
There is no exact rule about when exactly an employee is required to come to work. The law is sufficiently accurate only with respect to the actions of the employer. Often, as soon as possible they try to notify of a new order in order to complete the restoration of the employee to work by court order. To avoid new difficulties, it is advisable to come to work the next day.
The execution of the decision may encounter a number of circumstances that objectively complicate the process:
- hiring another employee;
- staff reduction;
- liquidation of the employing organization.
The terms of reinstatement by a court decision are seriously limited, and action must be taken immediately.
If another person has already been hired
Such a person, by virtue of a court decision, is subject to dismissal from an existing position. He must offer other available jobs. If there are no suitable places, he is fired. All this is done immediately after the court decision.
What to do if the position is occupied by a person on vacation on sick leave? You cannot fire him. With a pregnant woman, the situation is different.
It is recommended to add another similar position to the staffing table, then after leaving the vacation or treatment, transfer or dismiss later than the accepted person.
It is believed that reaching a settlement and reinstatement by court decision is a slightly different situation. So, an employee who was accepted for the position of a previously dismissed person is not subject to dismissal. Most often, they try to resolve the differences by proposing a different position with a surcharge.
Position abbreviated
In this case, first of all, an order is accepted to reinstate the posts in the staff list, and then the recruited person is hired. Subsequently, the position is again reduced, and the person is transferred with his consent to another position.
Recovery in a liquidated enterprise
What is really achieved is to change the entries in the documents and receive compensation payments. If the liquidation is carried out as part of the bankruptcy procedure, the employee's claims for compensation are included in the special list according to the priority (salary is a priority). Responsibility for correcting the records lies with the bankruptcy trustee or another person responsible for conducting the bankruptcy process depending on its stage.
Employer Responsibility
Administrative liability is allowed in the presence of a court decision and a writ of execution issued on its basis.The reason for liability is evasion of the execution of the requirements of the executive document.
A criminal case is instituted for refusing or evading a judicial act that has already entered into force.