Unlawful dismissal: what it is and what consequences it entails for the employer. Options for dismissal not according to the law

Termination of a fixed-term employment contract without warning in writing three days in advance (Article 79 of the Labor Code of the Russian Federation) entails the recognition of dismissal as illegal. If the employer fails to comply with the requirements of the law on the preliminary (before issuing the order) consent of the relevant higher elected trade union body to terminate the employment contract or on contacting the relevant elected trade union body to obtain a reasoned opinion of the trade union body on the possible termination of the employment contract with the employee, when this is mandatory , the dismissal of an employee is illegal and he is subject to reinstatement (clause 26 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

If the dismissal is declared illegal, legal consequences arise.

The employee must be reinstated at his previous job by the body considering the individual labor dispute (state labor inspectorate or court). Reinstatement at work involves a return to the previous legal status, the employee is given the same job (position).

If there is a delay in the execution of the decision to reinstate the employee at work, the employer faces certain legal consequences. Thus, the body that made the decision makes a determination to pay the employee the average earnings or the difference in earnings for the entire time of delay in execution of the decision (Article 396 of the Labor Code of the Russian Federation, Article 74 of the Federal Law of July 21, 1997 N 119-FZ "On Enforcement Proceedings" "). By decision of the bailiff, in case of violations without good reason of the deadline for execution of the decision, the employer is obliged to pay a fine on the basis of Art. 85 of the Federal Law "On Enforcement Proceedings".

The employer is obliged to make appropriate entries in the employee’s work book. For example, “The entry for number so-and-so is invalid, reinstated to previous job.” In column 4 of the work book, a reference is made to the employer’s order for reinstatement at work. The basis for issuing such an order is a decision of the court or control and supervisory authority declaring the dismissal illegal. In accordance with clause 1.2 of the Instructions for filling out work books, the legal consequence of illegal dismissal from work is the employer’s obligation to issue, upon a written application from the employee, a duplicate work book without making an entry about illegal dismissal.

The employee is paid the average salary for the entire period of forced absence, regardless of its duration. When collecting average earnings, the severance pay paid to the employee is subject to offset. However, when determining the amount of payment for forced absence, the average earnings recovered in favor of the employee are not subject to reduction by the amount of wages received from another employer, regardless of whether the employee worked for him on the day of dismissal or not, temporary disability benefits paid to the plaintiff within the period of paid absenteeism, as well as for the amount of unemployment benefits that he received during the period of forced absenteeism, since these payments by current legislation are not included in the number of payments subject to offset when determining the amount of payment for forced absenteeism.

Clause 17 of the Regulations on the specifics of the procedure for calculating average wages, approved.

The Decree of the Government of the Russian Federation dated April 11, 2003 * (72) provides that if tariff rates (official salaries, monetary remuneration) were increased during forced absenteeism, then the average earnings determined to pay for forced absenteeism must be increased by a coefficient calculated by dividing the tariff rate (official salary, monetary remuneration) established for the employee from the date of restoration to his previous job by the tariff rate (official salary, monetary remuneration) established in the billing period.

At the request of the employee, the body considering the labor dispute may limit itself to making a decision to collect compensation in his favor without reinstatement at work.

At the request of the employee, the body considering the labor dispute may decide to change the wording of the grounds for dismissal to dismissal at will. If the wording of the reason for dismissal is found to be incorrect or does not comply with the law, the court is obliged to change it and indicate in the decision the reason and basis for dismissal in strict accordance with the wording of the Labor Code or other federal law. If the incorrect formulation of the reason for dismissal in the work book prevented the employee from taking another job, then the court decides to pay the employee the average salary for the entire period of forced absence. Only if there is evidence of impossibility of employment, the period of time during which the employee did not work after dismissal is considered forced absenteeism.

If an employee with whom a fixed-term employment contract was concluded was illegally dismissed from work before the expiration of the contract, the court reinstates the employee in his previous job, and if at the time the dispute is considered by the court, the term of the employment contract has already expired, it recognizes the dismissal as illegal, changes the date of dismissal and the wording grounds for dismissal upon expiration of the employment contract (clause 60 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004).

From the date of reinstatement at work, the employee’s continuous length of service is restored, and the time of forced absence is included in the length of service, including the length of service giving the right to annual basic paid leave (Article 121 of the Labor Code of the Russian Federation).

From the date of reinstatement at work, the employee has the right to temporary disability benefits, even if he has not actually started work.

In case of illegal dismissal, regardless of the employee’s demands (reinstatement, changing the wording of the reason for dismissal, payment for forced absence), a decision may be made to pay the employee monetary compensation to compensate for the moral damage caused by the employer’s illegal actions. The issue of compensation for moral damage is resolved at the request of the employee. The final decision on the payment of monetary compensation and its amount is made by the court (Article 394 of the Labor Code of the Russian Federation). The court must take into account the specific circumstances of each case, the extent and nature of moral or physical suffering caused to the employee, the degree of guilt of the employer, other circumstances worthy of attention, as well as the requirements of reasonableness and fairness.

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The dismissal of an employee is considered illegal when it is carried out without legal grounds or in violation of the established procedure for dismissal. For example, the dismissal of an employee is considered illegal if the employment contract is not terminated on the grounds provided for by the Labor Code of the Russian Federation or other federal laws (dismissal at the request of the work collective, at the request of a trade union body). Termination of a fixed-term employment contract without warning in writing three days in advance (Article 79 of the Labor Code of the Russian Federation) entails the recognition of dismissal as illegal. If the employer fails to comply with the requirements of the law on the preliminary (before issuing the order) consent of the relevant higher elected trade union body to terminate the employment contract or on contacting the relevant elected trade union body to obtain a reasoned opinion of the trade union body on the possible termination of the employment contract with the employee, when this is mandatory , the dismissal of an employee is illegal and he is subject to reinstatement (clause 26 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

If the dismissal is declared illegal, legal consequences arise.

If at the time of the employee’s reinstatement the position is occupied, then the newly hired employee is subject to dismissal under clause 2 of Art. 83 of the Labor Code of the Russian Federation (or transferred to another job with his consent). If it is impossible to be reinstated at the previous job due to the liquidation of the organization, the employee is considered dismissed under clause 1 of Art. 81 of the Labor Code of the Russian Federation in connection with the liquidation of the organization. If there is a delay in the execution of the decision to reinstate the employee at work, the employer faces certain legal consequences. Thus, the body that made the decision makes a determination to pay the employee the average earnings or the difference in earnings for the entire time of delay in execution of the decision (Article 396 of the Labor Code of the Russian Federation, Article 74 of the Federal Law of July 21, 1997 N 119-FZ "On Enforcement Proceedings" "). By decision of the bailiff, in case of violations without good reason of the deadline for execution of the decision, the employer is obliged to pay a fine on the basis of Art. 85 of the Federal Law "On Enforcement Proceedings".

From the date of reinstatement at work, the employee has the right to temporary disability benefits, even if he has not actually started work.

Compensation for moral damage may be recovered from the employer. As a general rule, moral damage is compensated only in case of violation of personal non-property rights and other intangible benefits (Article 151, 1099 of the Civil Code of the Russian Federation). Article 237 of the Labor Code of the Russian Federation provides for compensation for moral damage as a result of any unlawful actions of the employer. According to established practice, the employee’s suffering of moral damage in the event of an employer’s violation of his labor rights is presumed. This is another consequence of the illegal dismissal of an employee.

At the request of the employee, the body considering the labor dispute may limit itself to making a decision to collect compensation in his favor without reinstatement at work.

Dismissal is considered illegal carried out without legal grounds or in violation of the established procedure for dismissal.

In case of illegal dismissal, an employee must be restored at previous work by the body considering an individual labor dispute (state labor inspectorate or court). If at the time of the employee’s reinstatement the position is occupied, then the newly hired employee is subject to either transfer to another job with his consent, or dismissal under clause 2 of Art. 83 of the Labor Code of the Russian Federation.

If it is impossible to be restored to the previous job due to the liquidation of the organization, the employee is considered dismissed under clause 1 of Article 81 of the Labor Code of the Russian Federation in connection with the liquidation of the organization with all the ensuing consequences (the corresponding severance pay is paid, changes are made to the work book).

After the employee is reinstated at work, he must be paid average earnings for the entire period of forced absence, regardless of its duration. If there is a delay in the execution of the decision on reinstatement at work, the employer is also obliged to pay the average earnings or the difference in earnings for the entire period of delay. The employee may refuse to continue the employment relationship, therefore the body considering the labor dispute may limit itself to making a decision to collect compensation in his favor without reinstatement at work. If the wording of the grounds for dismissal is changed, the court is obliged to indicate in the decision the reason and basis for dismissal in strict accordance with the wording of the Labor Code of the Russian Federation or other Federal Law. If the incorrect formulation of the reason for dismissal in the work book prevented the employee from taking another job, then the court decides to pay the employee the average salary for the entire period of forced absence.

In accordance with Art. 121 of the Labor Code of the Russian Federation, from the date of reinstatement at work, the employee’s continuous length of service must be restored, and the time of forced absence is included in the length of service, including the length of service giving the right to annual basic paid leave. From the date of reinstatement at work, the employee also has the right to temporary disability benefits, even if he has not actually started work.

In case of illegal dismissal, regardless of the employee’s demands, a decision may be made to pay the employee monetary compensation to compensate for the moral damage caused by the employer’s illegal actions. The fact of causing moral harm by illegal dismissal is proven by the employee. He must also indicate the amount of compensation he would like to receive. The final decision on the payment of monetary compensation and its amount is made by the court.

The procedure for formalizing, changing, and terminating labor relations is enshrined in the Labor Code of the Russian Federation. In case of violation, the employer faces legal consequences for illegally dismissing the employee or transferring him to another job. We will analyze the most common problems and show you how to avoid them.

Translation errors

Labor legislation provides for several types of transfers:

permanent (to another job or position with the same employer, transfer to work in another area together with the employer);
temporary (by agreement of the parties for a period of up to one year or until the main employee returns to work; without the consent of the employee in any exceptional cases (catastrophes, accidents, natural disasters, etc.) threatening the life or normal living conditions of the population, for preventing these cases or eliminating their consequences, as well as in cases of downtime - for a period of up to one month);
transfer to another job in accordance with a medical report - for a period of up to four months, more than four months or permanent;
transfer to another employer.

The main mistakes when preparing a translation include the following:

Violation of documentation and transfer procedures (lack of agreement in writing, violation of the procedure for warning employees (Chapter 12 of the Labor Code of the Russian Federation)).
Introducing wording that does not correspond to reality into the basis of the reason for the transfer.
Late familiarization of employees with changes in labor relations and violation of deadlines determined by law, etc.

Mistakes during dismissal

Dismissal may be invalidated if the grounds are illegal or the registration procedure is violated.

All legal grounds are listed in Chapter 13 of the Labor Code of the Russian Federation.

When completing the procedure, the most common mistakes made are:

absence or incorrect execution of supporting materials upon dismissal at the initiative of the employer;
introduction of language into the grounds for dismissal that does not comply with the Labor Code of the Russian Federation;
violation of the procedure for warning employees and familiarizing themselves with administrative documents;
violation of deadlines for familiarization with changes in labor relations;
non-payment of wage arrears.

Consequences for the employer

An employee whose rights are violated must be reinstated in his previous position, and the employment contract with him is considered not to be terminated. The same requirement applies to illegal transfer and dismissal as a result of transfer.

The employer is obliged to pay the subordinate for the time of forced absence (Part 2 of Article 394 of the Labor Code of the Russian Federation). If salaries were increased during this period, then the amount to pay for forced absence is recalculated taking them into account. Additionally, by a court decision, compensation for moral damage may be paid (Article 237 of the Labor Code of the Russian Federation).

If a new employee is hired for a position, he must be dismissed in connection with the reinstatement of the employee who previously performed this work by a court decision (Clause 2, Part 1, Article 83 of the Labor Code of the Russian Federation).

Violation of the deadlines for issuing a work book and delays in payment or incomplete payment entail legal consequences for the employer in the form of payment of penalties and average earnings for each day of delay.

If the employee does not insist on reinstatement, the court may decide to change the grounds for dismissal. A corresponding entry is made in the work book.

How to avoid mistakes

Upon expiration of a fixed-term employment contract (Article 79 of the Labor Code of the Russian Federation), the employee must be notified in writing of the upcoming dismissal at least three days in advance. If the probation period is not completed (Article 71 of the Labor Code of the Russian Federation), 3 days are also allotted for written notification, and it is necessary to indicate clear reasons that served as the basis for recognizing the employee as having failed the test.

In case of application of Article 81 of the Labor Code of the Russian Federation, for each reason the law prescribes specific actions of the employer:

When reducing staff or liquidating an organization (clause 1.2 of Article 81 of the Labor Code of the Russian Federation), subordinates must be notified in writing no later than two months before dismissal (Article 180 of the Labor Code of the Russian Federation), and also be familiarized with the orders.
When making redundancies, the right of priority to remain at work must be respected (Article 179 of the Labor Code of the Russian Federation). To confirm completion, the employer needs to collect a package of documents with all the necessary signatures.
When dismissing an unscrupulous employee (clause 5.6 of Article 81 of the Labor Code of the Russian Federation), the package of documents must include: memos about identified violations, reports of absence from the workplace, reports of appearing at the workplace in a state of intoxication, a written explanatory note from the employee, a report from his name with a refusal to provide paper, confirmed by at least three signatures. It is mandatory to comply with the deadlines for imposing penalties (no later than 1 month, minus days on sick leave, on vacation, etc.). If an employee was dismissed for an offense for which he had already been given another disciplinary sanction, the violation was not gross (we are not talking about repeated violations), and the reason for the offense was not taken into account, then such actions may also entail legal liability.
Upon dismissal for inadequacy of the position held due to insufficient qualifications (clause 3 of Article 81 of the Labor Code of the Russian Federation), certification must be carried out and all necessary documents must be drawn up. In addition, written refusals of the subordinate to be transferred to another suitable position or notification that there are none are required.

Another requirement, the violation of which may result in a meeting in court, is the final settlement with the employee and the issuance of a work book (Part 4 of Article 84.1 of the Labor Code of the Russian Federation). This must be done on the last working day. If an employee fails to appear for documents, a notification letter must be sent to him by mail. This relieves the employer of responsibility for the delay in issuing the work book.

Termination of labor relations often occurs in the context of a conflict developing between the parties. At the same time, the employer, as a party empowered to make decisions and carry out documentation during the procedure, bears increased responsibility before the law. Meanwhile, an employee who is dissatisfied with the outcome of the case has ample opportunities to protect his rights in several ways at once - by contacting the labor inspectorate, the prosecutor's office or the judiciary. Of course, not in every case his appeal will be considered justified. However, the employer should still know all the nuances of declaring a dismissal illegal and its consequences, because no one is immune from mistakes.

In what cases is dismissal considered illegal?

The norms of the current Labor Code of the Russian Federation do not contain a definition of illegal dismissal. Nevertheless, judicial practice provides grounds for classifying several groups of diverse violations of the law on the part of the employer as such:

Termination of an employment agreement on grounds not provided for by the Labor Code of the Russian Federation or other federal law (the general list of grounds for dismissal contains Article 77 of the Labor Code);
Dismissal of an employee for legal but non-existent reasons (for example, for invented absenteeism);
Dismissal applied as a disciplinary measure, if it is not proportionate in severity to the employee’s offense. The employer, when deciding on the imposition of punishment, is obliged to take into account all the circumstances surrounding the commission of the violation.
Significant violations of the dismissal procedure. Assessing the significance of a particular violation falls within the competence of the body considering the issue, but, as a rule, the following are recognized as such:
- errors made when registering a disciplinary offense;
- violation by the employer of the procedure for dismissal for health reasons - lack of a written offer to the employee of suitable vacancies available on staff;
- violation of Labor Code norms requiring consideration of the reasonable opinion of the trade union organization when dismissing trade union members;
- dismissal of an employee who is absent from work due to being on vacation or sick leave;
- signing a dismissal order by an unauthorized person, etc.
Failure to comply with the statutory guarantees (rights) of certain categories of workers (pregnant women, mothers and single fathers, etc.).

Where can an employee turn to protect his rights?

An employee’s disagreement with dismissal in accordance with the provisions of Chapter 60 of the Labor Code of the Russian Federation is a conflict that can be defined as an individual labor dispute. The parties are the former employee and the former employer. Only the court is authorized to consider and make binding decisions on such individual disputes - cases of reinstatement at work, changing the wording of dismissal, etc. are within its exclusive competence (Article 391 of the Labor Code).

The consideration of labor disputes by the court has some features in comparison with ordinary civil law cases. First of all, for appealing dismissal by filing a lawsuit by a former employee, the legislator establishes special shortened deadlines - 1 month from the date of receipt of a copy of the relevant administrative document or work record book. In addition, all claims by employees containing demands for the protection of labor rights and interests are not subject to state duty. If the employer loses the dispute, by court decision the state duty will be collected from him in full.

Before filing a claim, a citizen should follow the claim procedure for resolving a dispute - send a written demand to the former employer for restoration of violated rights. A copy of this document is attached to the statement of claim along with documentation confirming the existence of an employment relationship and evidence of unlawful dismissal.

The responsibility to prove the lawfulness of dismissal in cases of reinstatement always lies with the employer.

Judicial bodies are vested with broad powers when considering and resolving labor disputes:

The judge examines absolutely all the circumstances of the case - right down to the reasons that led to the employee committing a disciplinary offense (for this purpose, witnesses can be questioned and all kinds of evidence can be studied).
The court may decide on:
- reinstatement of a former employee;
- compensation for moral damage;
- compensation for material damage (the calculation includes wages for the period of forced absence from work);
- reimbursement of costs incurred in the legal process (court costs and expenses for legal assistance);
- changing the wording of the grounds for termination of the employment contract - if the employee does not want to be reinstated.
The judge has the right to bring the employer (official or legal entity) to administrative liability.

A former employee who does not agree with the dismissal, in addition to a legal dispute, has several other options for protecting his own interests: filing a complaint with the labor inspectorate or the prosecutor's office. They differ from those described in several ways:

The competence of the listed bodies is to check compliance with the law at enterprises and organizations, which they can carry out either on their own initiative or at the request of a citizen.
Both the inspectorate and the prosecutor's office check only the procedural aspects of dismissal (that is, they will not delve into whether there really was a basis for dismissal).
The order of the labor inspectorate or the prosecutor's demand to eliminate violations of the law do not have the force of an executive document, and therefore, in comparison with a court decision, they are very conditional.

Otherwise, supervisory authorities act in the same direction as judicial authorities - based on the results of the inspection, a requirement is issued to eliminate violations and compensate for damage. In addition, the labor inspectorate, on its own, and the prosecutor's office, by sending a corresponding submission to the competent authorities, can bring the employer to administrative responsibility.

Please note that the period for filing a complaint with the state labor inspectorate begins at the same time as the statute of limitations, and it also expires in a month. The fact of contacting the inspectorate cannot serve as a valid reason for extending the deadline for filing a claim in court.

Consequences for illegal dismissal for the employer

Legal and financial

Regardless of the grounds and circumstances of the wrongful dismissal (whether it was formalized forcibly as an agreement of the parties, whether it occurred as a result of the probationary period, or the ground for termination of the employment contract was contrived absenteeism), after official confirmation of the fact of violation of the law, the employer faces the same legal and financial consequences:

Reinstating an employee to his position or changing an entry in the work book if the latter does not want to continue working.
Administrative liability with imposition of fines.
Compensation to the employee for material damage caused by dismissal.
Other unpleasant consequences (the need to terminate a contract with a person hired to replace someone who was illegally dismissed, verification of compliance with labor laws by competent authorities, etc.).

Reinstatement of a former employee

The employer is obliged to reinstate the employee immediately based on the relevant court decision, order of the labor inspectorate or the request of the prosecutor. The recovery procedure is as follows:

If there has been a court decision, a writ of execution based on it is issued on the day the decision is made and is sent to the bailiff service for execution.
If a new employee is hired to replace a reinstated employee, he must be fired; if the position is reduced, it must be reinstated.
The employer, no later than the day following the day the decision is made (receipt of the order or demand), issues an order to cancel the dismissal order (it should be remembered that the employee must be reinstated in the same working conditions - position, qualifications, bonuses, allowances, etc. - that existed before the dismissal order was issued);
Familiarization of the person reinstated with the order to cancel the previous order (a copy of the new order can be sent to the citizen by mail along with the requirement to submit a work book to the personnel service and notification of the day on which he must begin performing his work duties).
A correction entry is made in the work book - declaring the previous one invalid.
In the personal card and personal file, the entries corresponding to the dismissal are crossed out, and a record of reinstatement is entered in the additional information column, indicating the details of the court decision or other document obliging the employee to be reinstated.
In accordance with the court decision, corrections are made to the work time sheet (designation “PV” (digital code - 22) - forced absenteeism).

At the written request of the employee, he must be issued a duplicate work book without a record of illegal dismissal.

Administrative responsibility

For the fact of violation of labor legislation upon dismissal established by the authorized body (prosecutor's office, labor inspectorate, court), an official or legal entity, individual entrepreneur may be warned or fined. The maximum fines are contained in Art. 5.27 Code of Administrative Offenses of the Russian Federation:

for officials - from 1 to 5 thousand rubles; in case of repeated violation, a fine of 10 to 20 thousand rubles is imposed with disqualification from one to three years;
for individual entrepreneurs - from 1 to 5 thousand rubles, for repeated violations - from 10 to 20 thousand rubles;
for legal entities - from 30 to 50 thousand rubles, repeated violation - from 50 to 70 thousand rubles.

For the same offense upon dismissal, both the organization and the official (for example, a manager) can be held accountable at the same time.

Employee compensation

If the labor dispute is lost, the employer should prepare to pay several items of costs that are compensatory in nature:

Payment of average earnings during the forced absence of an illegally dismissed person from work. This period begins from the day following the day of dismissal and ends on the day of the decision (instruction, etc.), since the next day the employee must be reinstated at work. Taking into account the statute of limitations and consideration of the case established by labor and civil law, on average the duration of forced absenteeism can range from 1 to 2 months. This payment is mandatory - it is directly provided for in Art. 234 Labor Code of the Russian Federation.
Compensation for moral damage - the assignment of such payment is the prerogative of the court. The amount of this compensation is determined by the judge depending on the amount of the relevant claims made by the plaintiff and the circumstances of the case. Moral damage in monetary terms must be proportionate to the moral suffering suffered by the employee. The obligation to provide moral compensation is reflected in Art. 237 Labor Code of the Russian Federation.
Reimbursement of legal expenses incurred by the employee - legal costs (court costs for sending correspondence, etc.) and costs of legal assistance. Let us remind you that the employee is exempt from state duty when filing an application, however, when the case is resolved in his favor, the amount of duty established by law must be paid to the state by the employer who lost the case.

Other Possible Consequences

There is a possibility of other consequences of illegal dismissal (some of them are related to the official recognition of it, others are due to conflictual relations between the former parties to labor relations):

The obligation to dismiss (or transfer to another suitable place) an employee hired to replace an illegally dismissed one (if the fact of illegal dismissal is officially confirmed). Moreover, in case of dismissal, the citizen will have to give severance pay in the amount of two weeks’ average salary (Article 178 of the Labor Code of the Russian Federation).
Inspections by authorized government bodies - labor inspectorate, tax inspectorate, environmental protection inspectorate, etc. - depending on what violations in the work of the organization are known to its former employee.
Disclosure of trade secrets, unique technologies, etc. Despite the existence of powerful legal protection mechanisms, offended employees often decide to take this method of revenge.

Arbitrage practice

Judicial practice confirms the leading position of the category of reinstatement cases in the total number of labor disputes. In this case, most often the court recognizes the plaintiffs’ demands for reinstatement after dismissal made with the following violations as justified.