/ / Restoration to work - judicial practice. Consideration of labor disputes in court. Unlawful dismissal

Restoration to work - judicial practice. Consideration of labor disputes in court. Unlawful dismissal


In all countries, and ours is no exception,there are cases when the authorities make an unlawful decision to dismiss an employee or transfer him to another position. And the worker does not want to leave the comfortable place at all. He liked work very much, especially since it was not far from home. And there remained a terrible resentment from an unjust attitude on the part of the authorities. Unlawful dismissal must necessarily be disputed.

The right to reinstatement at work isa dismissed person who believes that he was treated unfairly. Knowing your rights is very important, and you need to fight for them, even in court. To familiarize with the rules of dismissal and with what grounds for this exist, it is possible in Chapter 13 of the Labor Code of the Russian Federation.

When dismissal can be considered illegal

In the event that the employee in good faithdid his work, did not skip, did not come to work in a state of intoxication, did not abduct anything and did not violate safety techniques, his dismissal would be considered illegal. Also, dismissal is considered illegal if:

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  • the employee was not warned in advance, for example, about the reduction in the state enterprise;
  • in the event that the stated reason for dismissal does not correspond to reality and is indicated in the order a completely different reason;
  • at the dismissal of the employee for the fact that he does not correspond to the position held and does not cope with his duties, the proper certification of the employee has not been carried out;
  • dismiss an employee due to poor health, he is often ill and does not cope with his work, a medical commission has not been conducted, which it can confirm;
  • the employee was fired allegedly for staff reduction, but in fact there is no reduction;
  • the wages due to him are not paid to the employee.

In the event that an employee commits an officialcrime or some serious offense, the boss can offer him to quit on his own. In this case, he does you a favor and must necessarily agree. But if the dismissal is illegal, and the head suggests to write a statement of his own volition, then you should know: you can not write it, because the court will not accept your claim for consideration.

However, if it is proved that such a statementwas written under pressure and coercion, the judge must take into account and try to understand the true reasons for the dismissal. The majority of employers make mistakes in the preparation of such documents.

Their illiteracy in legal subtleties andunwillingness to use the services of professional lawyers leads to the fact that it is easy for a competent lawyer to prove a violation of employee's rights and demand considerable compensation in the form of payment of debts for the period of the employee's forced downtime, and also demand payment for moral damage and for payment for the services of a law firm.

Complaint to the State Labor Inspectorate

When the employee is dismissed, he writes a statement.Often employers are asked to write an application for dismissal on their own. If you believe that the dismissal is illegal, then in no case do you need to write it. After the order for dismissal is issued, you can apply to the Labor Inspectorate. This is done simply. A statement is written in which all the circumstances of the case are clearly indicated, without speculation and your judgments.

action for reinstatement at work

Ваша заявка должна быть рассмотрена в течение 15 days. The decision will be made on time, if the employer has too obviously violated the labor law. In the case of difficulties encountered in the consideration of a complaint, the case may be delayed, and this should not be allowed. After the expiration of a month's time, it is no longer possible to file a claim with a court. So the choice is yours. Or apply immediately to the court, and this will be longer and more expensive, but more likely to return to their position and be reinstated in the workplace, or first try acting through the state labor inspection. It will be much cheaper, but there are nuances. The case may be delayed or rejected, and the service inspectors are not as professional as the judges.

They have the right to conduct administrativecheck the incident at the enterprise, review all documents and contracts, read the orders. In the rest, namely, the restoration of the workplace, the payment of any cash and compensation, the inspector will still advise to apply to the district court. If after the expiration of the due time there is no decision, then there is no time to wait, it is necessary to immediately sue the court for illegal dismissal.

From the order of dismissal to the filing of a claimreinstatement should be less than a month. Later the court considers the issue only in case of emergency reasons for the delay. A lengthy consideration of the case by the inspectorate for such a reason is not considered. You can first apply to the labor inspectorate, and after 15 days immediately file a claim with the court, at the same time. Questions on reinstatement in court practice are considered within a month.

Pros of going to court

Consideration of labor disputes in court has a numberbenefits. They need to know to make the right decision to seek help or not. A lawsuit is filed for reinstatement in court at the location of the enterprise. After submitting the application, an executive judge is appointed who listens to your complaints and reviews the evidence. The trial takes place with a thorough study of all disputed issues, with the challenge and interrogation of all parties to a labor dispute.

The judge considers the basis for dismissal.employee at the initiative of the employer. Only in court can you tell in detail about the procedure for dismissal, about all violations committed by the employer during this period.

reinstatement court decision

Another positive point to file a lawsuit incourt. Illegal dismissal of an employee implies that the employer bears the costs. On the basis of article 393 of the Labor Code of the Russian Federation, the dismissed employee is fully exempted from paying state duty and court costs. Also a pleasant moment will be the possibility through court to demand from the employer compensation for moral damage and compensation for the loss of wages for the entire period that the claimant did not work.

Cons of the trial

The only minus will be the durationconsideration of the complaint. Especially if the moot point has little evidence. In case of gross violation of labor laws, reinstatement in court practice is easier, less time is spent on clarifying the circumstances of the case. If there is no valid written evidence that the employer has violated the rights of his employee, then the case may be delayed.

But recently, judges have been trying such disputes.about reinstatement decide faster, within a month. The process can be delayed only in the case of very controversial issues. If the evidence of the unlawfulness of the dismissal of an employee is great, then the case for reinstatement in judicial practice is considered much faster.

Preparations for going to court

Before you apply for restoration onthe work of the court decision, the employee must carefully prepare in advance. Usually they are not fired, but the person feels and understands that everything leads to this. At the time of dismissal, the employer is unlikely to want to meet you and to issue all the necessary documents, which the judge will require to have. When signing an employment contract, one copy must be in the hands of the employee.

The contract must contain the salarywhich you will receive. If there cash payments are not specified, but we must take a certificate from the workplace about the salary for six months. The judge will need this if the employee wants to pay the debt.

Preferably before filing an application to the courtone last time try to talk to the manager, explain your reasons for not wanting to leave the workplace. You also need to warn him about your desire to go to court for reinstatement at work for the Labor Code of the Russian Federation. In the practice of labor disputes, there were cases when the manager did not want to check his enterprise and study the documentation by judicial assistants, and accepted an amicable agreement to reinstate an employee to his previous job. Even in such cases, the issue of debt payments was resolved.

What documents are required to go to court?

If you agree with the manager and decidethe problem of returning to the previous place of work failed, then you need to file a lawsuit with the judicial authorities at the place of registration of the enterprise. Sometimes a case can be sent to the court at the place of residence of the claimant. When filing a claim, in addition to the application, the following documents must be submitted:

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  • employment record (it should be recorded on the number of employment and dismissal, with the numbers of orders);
  • a copy of the employment contract concluded upon admission to this place of work;
  • copies of orders with numbers (on admission to work, on dismissal, on reprimands or penalties, if any);
  • certificate of receipt of wages for the last six months.

You can also submit any documents thatconfirm that you worked at the enterprise. Each document on hand should be filed to the file. This is very important, as the employer can calmly declare that he sees you for the first time and you did not work for him.

Individual Labor Disputes

According to article 391 of the LC RF, a court may appealany employee who considers his dismissal and transfer to a lower paid position is illegal. He may, through the courts, demand compensation for the period when he was forced not to work or was paid less. Employees can sue who do not agree with the wording of the reasons for their dismissal in the workbook.

Also, an employee of the company may complainthrough the court on the chief, who did not respect the confidentiality in the processing of employee data. Questions are being considered about the unlawful refusal of a person to hire, discrimination of his rights on the basis of nationality, pregnancy or the fact that a woman has a small child.

The court in the proceedings hears different parties,looks through all the documents, court assistants are sent to the enterprise to check all the documents. Also, if necessary, various professional experts, various witnesses who certify your work activity in this enterprise can be brought. The employee in this process is called the plaintiff, since he filed a lawsuit, and the manager or private entrepreneur is considered to be the defendant.

Court ruling

When filing a claim, the employee plansthat the decision of reinstatement will satisfy his requirements. After a careful study of the case materials, the judge makes a reasoned decision, confirmed by labor legislation, with an indication of the chapters and articles of this code.

lawsuit unlawful dismissal

In the event that the claimant makes demandscompensation for material damage or other compensation, the court decision must clearly state the amount of the due payment. Since the court can last for a long time, according to the law, it has been decided that compensation to a dismissed employee should not exceed salary for six months. If the claimant demands additional payments, for example, payment of a lawyer or compensation for moral damage, the judge also determines and clearly indicates this amount. Since in the case of an individual labor dispute, the state duty is not charged to the employee, the additional payment at the request of the plaintiff is charged 50% tax.

When reinstatement a person ishas the right to demand compensation not only for the payment to the employees of the legal profession, but also for the suffering, physical and psychological. The degree of guilt of the defendant is also taken into account. But usually this compensation is small.

Procedure for reinstatement

If the consideration of labor disputes in courtends with a decision to reinstate an unlawfully dismissed employee, the employer is obliged to reinstate him in the same position on the same day. In this case, the employee filed a court decision and wrote a statement about the reinstatement.

Order of reinstatement issueddecision of the court and is given for the signature of the employee. After that, it is necessary to make a corresponding entry in the workbook: entry under the number (the entry number is put, it is in this employment record) is invalid, restored to the previous work. But if the employee does not want to spoil his impeccable reputation with such a record in the book, he has every right to demand that he be given a duplicate without corrections.

labor dispute resolution

In the event that the employee was transferred toa lower-paid position, then with a positive decision of the judge, he must return to his former place of work. If the reason for the dismissal of an employee was incorrectly indicated, did the person suffer and could not get another job because of this? He also received monetary compensation in the amount of his salary for six months. Also, the court will oblige the head to change the objectionable wording in the workbook.

But after the decision of the court to restorework, judicial practice shows that not everything goes so smoothly. Usually, the person who has thus achieved his demands is not very happy at the old place of work. The moral atmosphere is so tense, and the chief's nagging becomes so critical that a person often then independently comes to a decision to quit and write a statement at will. The employee must understand this, and after the court decision and the receipt of monetary compensation, begin to look for another job.

Illegal dismissal to reduce

When the company plans to reducestate, the head, according to the law, must comply with all rules. For a start, it is necessary in advance, namely, to warn the employee about two months in advance about changes in his life. During this time, a letter is also submitted to the employment service about the need to provide a person with an appropriate place during this period, according to his experience, experience and education.

Also the head can offer a positionother, of course, if there are vacancies. The employer must pay compensation to the employee if the forced dismissal occurred prematurely. In case of non-observance of these rules, there will be an illegal dismissal on reduction.

Categories of citizens who are illegal to reduce

There are several categories of workers who, according to the law, in any case are not entitled to dismiss, especially to reduce:

  • pregnant women;
  • single mothers with a young child in their arms (under 14) or raising a disabled child (under 18);
  • mothers who have a child up to 3 years old;
  • guardians of persons with disabilities under the age of 18 who are considered to be the only ones working in the family;

reinstatement of unlawfully dismissed employee

  • a father who has a young child in the upbringing and no mother;
  • father, who is the sole earner in the family, where there are three young children;
  • people who at the time of reduction are on scheduled vacation or on vacation at their own expense;
  • people who at the time of reduction are on sick leave;
  • if the employee with whom the contract was signed has not yet turned 18, he may be dismissed by agreement with the labor inspectorate or the juvenile affairs inspector.

In any case, when dismissing an employee mustknow your rights, be able to act professionally, to defend yourself, if necessary in court. If the work does not comply with the Labor Code and the lawlessness of the authorities reigns, then the punishment must follow.

The work collective must unite and protectemployee rights. Unfortunately, in our country trade union organizations are not as powerful as in other states, and often workers cannot receive the necessary support. For this and there are judicial authorities. You can always file a lawsuit in court. Unlawful dismissal should be punished.

Many people experience and are afraid to apply, and such processes are very rare, however, as practice in other countries shows, if you wish, you can always prove your case.

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