Unlawful dismissal at the initiative of the employer. What is illegal dismissal of an employee? Only legal options

Labor legislation establishes a high level of guarantees for employees against unjustified dismissal. An employment contract can be concluded only on the grounds provided for by the Labor Code of the Russian Federation (Articles 77 - 84.1). At the same time, the employer is obliged to comply with the dismissal procedure specified in the law and provide employees with guarantees and compensation related to the termination of the employment contract (Articles 178 - 181). For example, the employer is obliged to pay the employee severance pay upon termination of the employment contract in cases established by law (Article 178).

In order to protect those under 18 years of age from unjustified dismissals, the Labor Code of the Russian Federation provides that termination of an employment contract with them on the initiative (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur), in addition to compliance with the general procedure, is allowed only with the consent of the relevant state labor inspectorate and the commission on affairs of minors and protection of their rights (Article 269). In this case, the consent of these bodies for dismissal must be obtained by the employer before issuing an order for dismissal.

For employees from among orphans, children left without parental care, released from organizations due to organization, reduction in staff or staff, employers (their legal successors) are obliged to provide, at their own expense, the necessary vocational training with their subsequent employment in this or another organization (Article 9 of the Federal Law “On additional guarantees for the social protection of orphans and children left without parental care”).

The guarantee of maintaining a job (position) for an employee sent on a business trip is that while the employee is on a business trip, he cannot be dismissed at the initiative of the employer, except in the case of liquidation of the organization (Article 167 of the Labor Code of the Russian Federation).

Dismissal at the initiative of the employer in accordance with paragraphs 2, 3 or 5 of part one of Article 81 of the Labor Code of the Russian Federation of managers (their deputies) of elected collegial bodies of primary trade union organizations, elected collegial bodies of trade union organizations of structural divisions of organizations (not lower than shop floors and equivalent to them), is not exempted from their main job, in addition to the general procedure for dismissal, is allowed only with the prior consent of the relevant higher elected body (Article 374 of the Labor Code of the Russian Federation).

Dismissal of an employee. Different bases, different designs: Video

One or more employees, as well as the general dismissal procedure. This is probably why employers often take this procedure quite simply, and sometimes even irresponsibly. However, a superficial knowledge of his labor rights is enough for an employee to decide to challenge an incorrect dismissal procedure and prove the illegality of the employer’s actions. Subsequently, failure to comply with legal regulations may lead to a labor dispute and other negative consequences listed below.

Legal consequences of illegal dismissal of an employee

Dismissal made in violation of the procedure provided for by the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), carried out at the initiative of the employer, or dismissal in the absence of a legal reason, is considered illegal. Moreover, even if the reason is truly legitimate, a gross violation of the procedure itself on the part of the employer can lead to the reinstatement of the employee to his job. Thus, having received at least one fact of non-compliance with the dismissal procedure provided for by the Labor Code of the Russian Federation, an employee can, within 30 days after his rights were violated (or he learned about the existing violation, for example, having received a work book with incorrect wording) contact the labor service inspection, or to court.

Despite the one-month period given to an employee by current labor legislation to go to court, there is no maximum deadline for filing a complaint with the labor inspectorate, which means that a former employee can complain about illegal actions after a year or more. However, the powers of the inspectors make it possible to issue an order to the employer, which the latter can appeal through the court, where it makes sense to pay attention to the missed deadline for the dispute.

Based on the results of consideration of the issue by a court or inspection, the following employee requirements may be satisfied:

reinstatement to previous job;
payment of compensation (average salary) for forced absence;
restoration of continuous service, including forced absence;
monetary compensation as compensation for moral damage;
changing the wording of the entry or the date entered in the employee’s work book.

In addition, regardless of the employee’s requirements, the employer may be held administratively liable for the illegal dismissal of an employee, which is provided for in Article 5.27 of the Code of Administrative Offences. For individual entrepreneurs, the amount of an administrative fine can be 1-5 thousand rubles, for legal entities - 30-50 thousand rubles, and if a similar administrative offense has already been committed before, for a repeated offense the fine can be significantly increased: 10-20 thousand for entrepreneurs and 50 -70 thousand rubles for legal entities.

It should be separately noted a nuance that may arise if an employee wishes to be reinstated in his previous job. There are often situations when a new employee has already been hired to fill the position of a dismissed employee. In such a situation, the employer will need to decide whether he can keep both employees, or is forced to say goodbye to the new one, who will, in turn, have to be fired under Article 83.1.2 - due to with circumstances beyond the control of the parties, namely, in connection with the reinstatement of an employee who previously performed this work. If the employer does not want to lose a new employee, he can offer both the reinstated employee and the new one, which is available at the enterprise and may be suitable for this employee. If the old or new employee agrees, it will be possible to employ both.

If, after the unjustified dismissal of an employee and before his reinstatement in position, the organization was liquidated, the employee will be considered dismissed under Article 81.1 of the Labor Code of the Russian Federation, accordingly, he, like other employees, due to liquidation will have the right to severance pay and other provisions provided for guarantee law.

How to transfer a part-time worker to the category of main employees:

From the date of entry into force of the decision to restore the employee to his previous position, such employee again enters into an employment relationship with the previous employer in full force. And even if he has not yet started work, he can already take advantage of the right to temporary disability benefits and other guarantees provided for by the Labor Code of the Russian Federation for employees. In the same case, if the employee does not want to renew his employment relationship with the employer who fired him, but demanded monetary and moral compensation for damage, the employer is given a specific deadline for making these payments. If the established payment deadline is violated, he may also face payment of interest in the amount of one three hundredth of the current refinancing rate of the Central Bank of the Russian Federation of the total unpaid amount, and interest is due from the employer even when the delay in payments is not his fault.

The procedure for dismissing employees

The most important rule that must be observed by the employer during the dismissal procedure is the existence of a legal basis on which the dismissal is based. According to the Labor Code of the Russian Federation, except for cases of liquidation of an organization and reduction in the number of employees, the following grounds for termination of an employment contract by an employer are recognized as legal:

insufficient qualifications of the employee;
failure by an employee who already has a disciplinary sanction to fulfill work duties without good reason, committed repeatedly;
gross one-time violation of labor duties;
within 1 working day without good reason;
absence from work without good reason for more than 4 hours in total in one working day;
coming to work while intoxicated;
disclosure of confidential work information;
theft, embezzlement, theft, as well as damage or destruction of property in the workplace;
gross violation of labor safety standards;
loss of trust due to the actions of an employee working directly with the organization’s material or commodity assets;
providing false documents when applying for a job;
other grounds mentioned in Article 81 of the Labor Code of the Russian Federation.

Procedure for reducing a position during maternity leave:

The application of each of the above grounds for dismissal must be supported by a general procedure provided for by law, and may also require a special procedure for dismissal, depending on the grounds. As for the general procedure, it is discussed in detail in Article 84.1, which describes the mandatory procedure for registering dismissal for everyone. The general procedure also includes statutory guarantees for certain categories of employees, as well as the preferential right to remain at work in the event of layoffs or liquidation.

The first categories above that are not subject to dismissal traditionally include pregnant women, women with children under 3 years of age, single mothers with children under 14 years of age or disabled children under 18 years of age. In addition, you cannot fire employees who are on vacation or temporarily disabled. There are also categories of workers whose dismissal occurs only with the participation of a third party - for example, minor workers can be dismissed only with the consent of the labor inspectorate and the commission for minors, and trade union members - only with the motivated opinion of the trade union body.

Another important point is the mandatory documentary evidence of the reason for dismissal. the employee is not determined by eye, it is determined by the certification commission, and the employer is obliged to offer such an employee all available vacancies that match the employee’s qualifications, if any. Dismissal in this case occurs subject to:

impossibility of transfer due to the lack of suitable vacancies;
refusal of the employee to transfer to another vacancy.

Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2044 N 2 also contains additional requirements for the employer on whose initiative dismissal occurs due to the above reasons. For example, regarding insufficient qualifications, the Resolution clarifies the need for the employer to provide written evidence that will confirm the impossibility of the transfer or the employee’s refusal to do so.

Exactly the same rule of having documentary evidence works for all the other above-mentioned grounds for dismissal. In the case of appearing at work in a state of intoxication (both alcoholic, narcotic or toxic), a medical examination will first be required, and in the event of failure to perform work duties without good reason, it is important that a disciplinary sanction has already been applied to this employee, which has not been lifted and not repaid at the time of default. One way or another, when considering cases of illegal dismissal of an employee, it is the employer, as a defendant, who has to prove that the reason for dismissal is completely legal and that it actually took place, for which the available evidence must be provided. In addition, the wording of the dismissal entry in the work book must strictly comply with the Labor Code of the Russian Federation.

In our difficult times, nothing can guarantee stability. After all, even if there is an official place of employment, almost any employee may turn out to be undesirable, and his employment contract will be terminated. In many cases of this kind, we are talking specifically about illegal dismissal. It is possible to prove that an employer has violated the rights of his employee only through court. If a favorable combination of circumstances occurs and a decision is made in favor of the plaintiff, he has the right to claim reinstatement in his position, receive wages for the entire period of unforced absence, compensation for legal fees, as well as moral damages. But before embarking on a legal battle, you need to find out in which cases dismissal is considered illegal, where to go first, what documents are needed for this and other nuances. They will be discussed further.

Recognizing dismissal as illegal: grounds and features

It is very problematic to list absolutely all the reasons why dismissal will necessarily be considered illegal. Each situation must be considered individually. But most often the following cases occur when the court protects the interests of the plaintiff:

Dismissal without legal reasons. A complete list of legal grounds on which an employee can be dismissed at the request of only the employer is contained in Article 81 of the Labor Code of the Russian Federation. Among the main ones are: liquidation of the enterprise, reduction of the workforce, violation of labor discipline, discrepancy between the employee’s qualifications and the position he occupies, etc. However, for the court to recognize the dismissal as legal, it is not enough for the dismissed person to have a reason in the work book that falls into the category of legal. The employer must additionally prove that this reason actually occurred, and that dismissal is a measure of punishment corresponding to the severity of a certain disciplinary offense.
Violation of procedure when dismissing an employee. It is possible to dismiss an employee for any of the existing reasons only in a strictly established manner. Among the main stages, the following can be identified: documentary recording of an employee’s violation of labor discipline (for example, an act of his absence from work during working hours); receiving an explanation from the violator of discipline about the offense committed; issuing a dismissal order and familiarizing the employee with it against signature; making a full settlement with the employee for all time worked and days of unused vacation; an entry in the work book with a mandatory indication of the reason for dismissal and a link to an article of the Labor Code. However, if certain procedures for dismissal are not followed, the court may accept them as insignificant for declaring the dismissal illegal. Significant reasons include:
- if the employer has not offered the employee another place of work that corresponds to his state of health (if any);
- bringing to responsibility of a disciplinary nature in violation of the norms of current legislative acts regulating labor relations;
- if the employer has not agreed on his decision on dismissal with the trade union in relation to employees who are members of the trade union.
Dismissal of certain categories of citizens. For example, it is always considered illegal to fire pregnant women, single mothers, and fathers who are raising a child/children under 14 years of age alone. The only exceptions are those cases when the dismissal of these citizens occurs due to the complete liquidation of the organization. In the event of its restructuring, the employer is obliged to provide a place of work for these citizens as a matter of priority.
Dismissal of employees on vacation. Moreover, we are talking about both regular and maternity leave, as well as the employee being on sick leave.

Among other grounds on which the court may declare dismissal illegal, the following situations can be identified:

non-compliance with the dress code or corporate ethics;
fictitious reduction of staff, which in reality does not exist;
forcing an employee to draw up a resignation letter on his own initiative;
the presence of several bases at the same time.

Which authorities should you contact and within what time frame if you were illegally fired?

Earlier in the article, we already looked at where to complain about an employer, but now we will analyze the case of illegal dismissal separately. If you are sure that your employer violated your rights when dismissing you, you should start seeking justice immediately. First of all, it is best to draw up and send a letter of claim addressed to the director of the enterprise. It is necessary to correctly and with references to regulations set out the circumstances that, in your opinion, indicate the illegal nature of your dismissal. Such a letter should be written in two copies.

If no action is taken from the employer, your complaints can be sent to the following authorities:

Trade union. Any trade union member cannot be dismissed without obtaining the latter's consent. The competence of the trade union includes the responsibility to consider complaints from illegally dismissed employees and forward claims to the Labor Inspectorate.
State Labor Inspectorate. There should be no delay in reporting to this body - the application must be sent no later than 1 month from the date of dismissal. It can be considered the day of receipt of the work book or the moment of familiarization with the order to terminate the employment contract. After accepting such an application, the labor inspector is obliged to conduct an inspection no later than 10 days and, based on its results, oblige the employer to return the employee to his previous position and pay him the due compensation. However, you should know that such an inspection is primarily of a formal nature, since the inspector will not be involved in obtaining explanations from witnesses, collecting evidence, etc. Therefore, it is best to prepare a lawsuit in court simultaneously with sending the application to the Labor Inspectorate.
Prosecutor's office. The functions of this body in terms of considering complaints from illegally dismissed citizens are similar to the functions of the State Labor Inspectorate. The prosecutor's office is also obliged to carry out an inspection and, if it determines that labor legislation has been violated, send the case to court.
Court. If there is little hope for the efficiency of employees of the State Labor Inspectorate and the Prosecutor's Office, contact directly the court at the location of the enterprise. This must be done within a month from the date of dismissal. In special cases, this period can be extended, but only if you can prove that you were unaware that your labor rights were violated upon dismissal. If you win the court, bailiffs will monitor the execution of the decision, which will not allow an unscrupulous employer to avoid the legal obligation to reinstate the plaintiff and pay him compensation.

Preparation and going to court

There are several advantages of going to court:

Availability of the legal process from a financial point of view. According to Art. 393 of the Labor Code of the Russian Federation, an individual is exempt from paying state duty when filing a claim in court to restore his labor rights. Therefore, the total cost of litigation is much less than usual.
Efficiency. Perhaps, only in court can they properly consider all the plaintiff’s claims and understand the entire background of the relationship between the employer and the employee.
Possibility of collecting compensation for causing moral damage. The State Labor Inspectorate does not have such a right.

The main disadvantage of going to court is the length of the proceedings. Although the legislative period for consideration of such cases is set at only one month, in reality it is extremely rarely observed.

So, if you decide to go to court, first prepare the necessary documents, namely:

Employment contract . It must be concluded at the time the employee is hired. However, not all employers give it to their employees. Therefore, make sure that you have this document that defines the basic conditions of work. Moreover, it is important that the real wages are indicated. Otherwise, it will be difficult to claim wages for the period of forced absence in the amount in which you actually received it before.
Work book with records of hiring and dismissal from it. If you worked unofficially, in court the employer may simply say that he is seeing you for the first time. This once again confirms the vulnerability of workers working informally.
Copies of hiring and dismissal orders.
A certificate indicating the position held, qualifications, average monthly salary, characteristics of the employee and his attitude towards work.
Documents on bringing to labor liability (if any).
Evidence that clearly confirms that the employer’s arguments are falsified.

The employer must provide all documents you request within five working days. If this obligation is evaded, this must be reflected in the claim and it is additionally indicated that the court itself requests the necessary certificates.

The statement of claim, a sample of which can be viewed here (Appendix), must include the following details:

Name of the court, details of the plaintiff and defendant.
The circumstances of hiring and dismissal from work, the reasons why the plaintiff assumes that the dismissal was not carried out according to the law.
The plaintiff's demand: return to his previous place of work, receipt of wages for unforced absences, compensation for moral damage.
List of attached documents.

Procedure for reinstatement at work

If the court decides that the dismissal was carried out illegally, a writ of execution is drawn up. According to this document, the head of the legal entity is obliged to restore the employee to his previous position no later than one working day from the moment the writ of execution is received by the bailiffs.

The HR department draws up an order to cancel the order to dismiss the employee, and the employee is familiarized with it. There is no order for reinstatement. Then the employee is informed about the day on which he can begin performing his duties again, and is asked to provide a work book. In it, the last entry is considered invalid and the details of the court decision are indicated. If an employee reinstated wishes to receive a duplicate of the work book with the restoration of all entries made in it, except for the last one about illegal dismissal, the employer is obliged to do this. In a similar way, corrections are made to the employee’s personal card, and adjustments are also made to the time sheet.

It is important that an illegally dismissed employee must be reinstated to his previous position, maintaining the same working conditions, even if the employer has already hired a new person for this position (he is fired) or this position has been reduced (it is restored).

In this way, the employee must be reinstated in his position. However, in practice, not all employers who lose in court want to rehire a legally competent employee into their staff. If the court evades execution of a court decision, the court may additionally fine the enterprise, and if it happens again, make a decision to pay an even larger fine.

Legal aspects of illegal dismissal

If the dismissal of an employee is considered illegal, the employer is obliged to:

reinstate him;
pay him wages for all time due (unforced absenteeism);
compensate for moral damage;
compensate for legal costs, pay for the services of the plaintiff’s lawyer;
pay a fine in case of failure to comply with a court decision;
pay an increased fine if there is a repeated delay in the execution of the court decision.

Here are the fines for employers in case of illegal dismissal of workers:

1000-5000 rubles - for an official of the enterprise;
1000-5000 rubles - for an individual entrepreneur or a decision to suspend his activities for a period of 90 days;
30,000-50,000 rubles - for a legal entity or termination of activity for up to 90 days.

In addition to these measures, if the judge makes an appropriate decision, organizations, individual entrepreneurs and officials may be additionally subject to disqualification for a period of one to three years.

The success of a judicial resolution of a case largely depends on how competently the requirements are stated in the statement of claim and how evidence is presented in favor of the plaintiff. Therefore, make sure in advance that your interests in court are represented by an experienced lawyer specializing in labor law.

Unlawful dismissal from work is the termination of an employment contract with an employee without legal justification. What should an employee who is fired in this way do? Where to go to protect your rights and get reinstated at work?

The legislator clearly states that in order to terminate an employment contract, one must be guided only by the grounds specified in the Labor Code of the Russian Federation and other legislative acts. This list is final and not subject to broad interpretation; in other words, an employer cannot fire an employee just because he doesn’t like him. But there are cases when one or another reason cannot be applied to an employee, but the employer ignores this fact and dismisses the person.

At the initiative of the employer

Termination of a contract at the initiative of the employer is regulated by Article 81 of the Labor Code of the Russian Federation. In the case when the management of an enterprise wants to get rid of an unwanted employee, it first of all turns to this article, especially since it contains a fairly large number of reasons.

The most common cases of illegal dismissal under this article:

Illegal dismissal due to staff reduction. This basis may be illegal in two cases: when there is actually no reduction, that is, the position is renamed (and sometimes the same name is left) and another employee is hired, and when categories of employees in respect of whom this is prohibited by law are reduced (pregnant women, single parents, women with children under three years old, etc.).
Several disciplinary actions and subsequent dismissal. In this case, it is necessary to pay attention to whether all punishments were legally imposed. It is also impossible to impose two penalties for the same offense (for example, a reprimand and dismissal).
Dismissal for failure to pass certification. If the test for suitability for the position was carried out only in relation to one employee, then this is illegal. It is necessary to carry out certification of the entire department (area of work), or all employees of the enterprise. The certification procedure must also be followed.

If an employee was fired for legal reasons, but the procedure established by law was violated, this may also serve as grounds for challenging the termination of the contract. For example, failure to comply with notice periods when reducing staff.

An employee's initiative is writing a letter of resignation of his own free will. Can dismissal be illegal if the employee himself writes a statement about it?

In some cases, an employer may put pressure on a person to force him to write a letter of resignation. This could be the creation of unfavorable conditions at work (transfer to another premises), moral pressure (nit-picking, remarks), deprivation of bonuses, bringing the employee to dismissal “under article”, etc.

If an employee feels that they are being pressured, it is necessary to begin collecting evidence before dismissal. This can be various papers (orders, memos), voice recordings of conversations with the employer, etc.

Also, illegal dismissal is considered to be the case when an employee wrote a letter of resignation and then changed his mind, but the employer refused to return the letter, citing the fact that he had already invited another employee. In this case, human rights will be violated:

If the employer invited another employee only in words and not in writing.
If, after dismissal, he did not accept the invited employee without good reason.

The dismissed employee will need to prove that he tried to withdraw the application, that is, this must be done in writing.

Where can you go to protect your rights?

If a dismissed employee believes that his rights have been violated and the employer did not have the right to terminate the contract with him, he can contact the relevant organizations:

Labor Inspectorate. An employee can file a complaint there about a violation of his rights. The State Tax Inspectorate, in turn, must send an inspector to conduct an investigation within 10 days from the date of the person’s application. You can also go and consult with an inspector first.
Prosecutor's office. The appeal algorithm is the same, but the investigation period is increased to 30 days. Depending on the situation, the prosecutor's office may send the employee's application to the labor inspectorate for consideration.
Court. In this case, the employee writes a statement of claim and submits it to the court at the location of the employer. This authority is the most universal, since it has the right to consider all cases of illegal dismissal, in contrast to the State Tax Inspectorate, which, for example, does not consider cases if they contain controversial issues about wages.

You can submit an application to all authorities at once.

The employer must comply with the decision of any of the above bodies, but he also has the right to appeal the decision in turn.

The period during which an employee must have time to appeal a dismissal is determined by the Labor Code of the Russian Federation and is one month. However, it can be extended if the employee can prove that he did not know that his rights were violated.

Therefore, if an employee intends to challenge his dismissal, he needs to start this as soon as he receives the work certificate or is informed of the order that he is fired.

To prepare an application to appeal the employer’s actions, the employee has the right to request a package of documents regarding his dismissal, which the employer must issue to him within three days. This must be done in writing. If the employer does not provide documents, this must be indicated in the application as an aggravating circumstance.

A period of one month is given for the employee to file a complaint; the period during which the proceedings will last does not matter. That is, he can submit an application even on the last day of the month.

What is the compensation for an illegally dismissed employee?

If the dismissal of an employee is declared illegal, the employer must not only reinstate him in his position, but also make the following payments:

Compensation for all days of forced absence. It is paid in the amount of the employee’s average earnings and is paid for all days, starting from dismissal and ending with the date of the decision on reinstatement.
Compensation for moral damage. Paid only by court decision. The State Tax Inspectorate and the prosecutor's office do not have the authority to establish such compensation.

In addition, the employer must correct the incorrect entry in the work book, and, if the employee wishes, issue a duplicate in which the incorrect entry will be absent. The duplicate is issued at the expense of the employer.

A person has the right to appeal his illegal dismissal in several instances at once. He must do this within one month. If the dismissal is considered illegal, the employer must reinstate the employee at work and pay him compensation for forced absence.

16.06.2017 |

Nillegal dismissal employee Any termination of labor relations carried out in violation of the procedure, the norms of the Labor Code, or in the absence of grounds may be recognized.

In this article you will find general grounds for appealing dismissals and you will find out what can you get if your dismissal is declared illegal?.

Who cannot be fired at the initiative of the employer? Where to complain about illegal dismissal and in what order?

How long does it take to file a lawsuit in case of illegal dismissal?

Read more about the different grounds for dismissal using the links below.

We recommend that you come for a consultation with our labor dispute lawyer Valentina Yuryevna Rumyantseva(via links, lawyer) . You can make an appointment for a consultation by phone+7-981-746-76-21 (on weekdays from 10 to 18)

What are the legal grounds for dismissal?

The basis for dismissal at one’s own request is the employee’s statement; there is no statement - dismissal is illegal (article ), Grounds for staff reduction (more details in the article) - the decision of the employer, and in this case the positions must actually be reduced, and not renamed, and the employee himself does not belong to a category that is not subject to reduction, such as, for example, a woman on maternity leave (more details in the article) .

For legal dismissal as someone who has not passed the probationary period, there must be not only an establishment of the probationary period itself, but also confirmation of failure to pass the test (more details in the article) .

To be fired for absenteeism, you must have evidence of absenteeism, adherence to the dismissal procedure, and other factors, which you can read about in the article "".

To dismiss pregnant women and those on maternity leave, the organization needs to be liquidated, not reorganized, changed owner, or renamed. (more details in the article

For legal dismissal under Art. 81 clause 5 of the Labor Code of the Russian Federation (repeated failure by an employee to fulfill labor duties subject to a disciplinary sanction) requires a disciplinary sanction that has not been lifted by the day of dismissal, evidence of non-fulfillment of duties, compliance with the procedure, etc.). You can read more in the articles: and How it was.

Dismissal during sick leave will be legal if it is not at the initiative of the employer (with the exception of liquidation of the organization). More details in the article about .

What can you expect if you appeal your dismissal?

When illegal dismissal you can be reinstated at work or the wording and date of dismissal changed, you can recover wages for the period of forced absence and compensation for moral damage.

IN In what cases can we talk about illegal dismissal of an employee?

First, let's look at the grounds for terminating an employment contract. All of them are listed in Art. 77 Labor Code of the Russian Federation.

The grounds for termination of an employment contract are:

1) agreement of the parties (Article 78 of this Code);

2) expiration of the employment contract (Article 79 of this Code), except for cases where the employment relationship actually continues and neither party has demanded its termination;

3) termination of an employment contract at the initiative of the employee (Article 80 of this Code);

4) termination of an employment contract at the initiative of the employer (Articles 71 and 81 of this Code);

5) transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position);

6) the employee’s refusal to continue working in connection with a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75 of this Code);

7) the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code);

8) the employee’s refusal to transfer to another job, which is necessary for him in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer does not have the corresponding job (parts three and four of Article 73 of this Code);

9) the employee’s refusal to be transferred to work in another location together with the employer (part one of Article 72.1 of this Code);

10) circumstances beyond the control of the parties (Article 83 of this Code);

11) violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work (Article 84 of this Code).

An employment contract may be terminated on other grounds provided for by this Code and other federal laws.

81 art. The Labor Code of the Russian Federation contains a list grounds for dismissal at the initiative of the employer, which is also not expandable.

An employment contract can be terminated by the employer in the following cases:

1) liquidation of an organization or termination of activities by an individual entrepreneur;

2) reduction in the number or staff of employees of an organization or individual entrepreneur;

3) the employee’s inconsistency with the position held or the work performed due to insufficient qualifications confirmed by certification results;

4) change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);

5) repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;

6) a single gross violation by an employee of labor duties:

a) , that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day (shift) );

b) the appearance of an employee at work (at his workplace or on the territory of an organization - employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication;

c) disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee;

d) committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;

e) a violation by an employee of labor safety requirements established by the labor safety commission or the labor safety commissioner, if this violation entailed serious consequences (industrial accident, breakdown, catastrophe) or knowingly created a real threat of such consequences;

7) commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer;

7.1) the employee’s failure to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or unreliable information about his income, expenses, property and property-related liabilities, or failure to provide or provide knowingly incomplete or unreliable information about income, expenses, on the property and obligations of a property nature of their spouse and minor children in cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to a loss of confidence in the employee on the part of the employer;

8) an employee performing educational functions has committed an immoral offense that is incompatible with the continuation of this work;

9) making an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;

10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;

11) the employee submits false documents to the employer when concluding an employment contract;

13) provided for in the employment contract with the head of the organization, members of the collegial executive body of the organization;

14) in other cases established by this Code and other federal laws.

Other cases established by the Labor Code include such grounds as the result of a test (Article 71 of the Labor Code of the Russian Federation), additional grounds for terminating an employment contract with a teacher (Article 336 of the Labor Code of the Russian Federation), with the head of the organization (Article 278 of the Labor Code of the Russian Federation), with athlete (Article 348.11).

In addition, there are additional grounds for terminating an employment contract with civil servants, rescuers, municipal employees, etc.

In any case, if you were fired on a basis that is not provided for by either the Labor Code or the Law on your work, dismissal from work may be considered illegal and challenge it in court.

Who cannot be fired at the initiative of the employer?

Even if there is a basis in the law, there are categories of workers who cannot be dismissed at the initiative of the employer, so dismissal is illegal during vacation and temporary disability, with the exception of cases of liquidation of the organization, you cannot be fired , women with children under 3 years of age, single mothers raising a child under the age of fourteen years (a disabled child up to eighteen years old), other persons raising these children without a mother, with the exception of dismissal on the grounds provided for in paragraph 1, 5 - 8, 10 or 11 of the first part of Article 81 (see above) or paragraph 2 of Article 336 of the Labor Code of the Russian Federation (use, including one-time, methods of education associated with physical and (or) mental violence against the personality of a student, pupil for teachers )

Is it necessary to follow the dismissal procedure?

Particular attention should be paid to the dismissal procedure. In some cases of dismissal, the union's opinion is required. In other cases, notice of dismissal is required at least 2 months in advance (liquidation, reduction) or a mandatory offer of vacancies.

For example, dismissal under clause 5 of Art. 81 of the Labor Code of the Russian Federation, in the event of repeated failure by an employee to fulfill labor duties without good reason, if he has a disciplinary sanction, it implies repeated violations, and disciplinary sanctions must be imposed for previous violations with the appropriate procedure. Before applying a penalty, the employer is obliged to request an explanatory note from you, if you refuse, draw up a report, then issue an order, give it to you against signature, and if you refuse, also draw up a report. In addition, there are deadlines for imposing and removing penalties. More details in a separate article (read).

Dismissal may be declared illegal by the court, if the reason for dismissing the employee is unimportant.

For a disciplinary offense, the employer has the right to apply one of the types of punishment: reprimand, reprimand. So, if the court finds that your disciplinary offense could have resulted in a reprimand or reprimand, then dismissal may be considered illegal. Everything is very individual, and each situation must be considered separately. Even to impose a disciplinary sanction, the severity of the offense must be taken into account.

Deadlines for appealing dismissal.

And the last thing you need to know about illegality of dismissal, this is that you can challenge it only within a month. This is limitation period for dismissal cases.

Where to go in case of illegal dismissal?

Has the right to deal with issues of dismissed employees exclusively the court , since this is an individual labor dispute. The competence of the labor inspectorate does not include issues of appealing dismissal!