Which court should be applied to?

Do I need to pay stamp duty?

What should be included in the claim?

How to behave in court

Voluntary dismissal does not mean that the employee left the company once and for all. The law provides for the possibility of reinstatement at work. The peculiarity of the procedure depends on the circumstances under which the termination of the employment contract occurred.

In what situations is it possible to recover

Reinstatement in the workplace is allowed in several situations. For example, if before the date of dismissal of an employee, no one was hired for his position, then the application can be withdrawn. The employer must be notified of this in writing.

You can return to work after being fired for the same reason, when the place is still vacant. The employee is hired again for the same position.

However, there are other possible cases:

• the employee is under pressure from the team or superiors;
• groundless dismissal;
• senior colleagues are hostile to the employee.

In practice, there can be many such situations, but they all boil down to the fact that the employee was fired with violations or under pressure from outside.

How to challenge voluntary dismissal

First, an attempt should be made to resolve the issue peacefully. But if an agreement is not reached, then you will have to go to court.

Pre-trial settlement

This is an optional procedure, but the benefits of it can be quite tangible. Before taking the documents to court, the employee can send a letter to the former employer justifying the illegality of his dismissal and demanding reinstatement. It is possible that the problem can be solved already at this stage.

Another option for pre-trial settlement is to contact the labor inspectorate. Despite the fact that this organization does not have the ability to reinstate an employee or change the basis on which the contract was terminated, its employees will be able to provide advice in the field of labor law.

Also, the inspection has the authority to talk with the administration of the enterprise, which means that it is possible to resolve the issue of restoration without a trial.

Challenging unlawful and forced dismissal of one's own free will. Arbitrage practice

Dismissal is considered illegal if:

• the employee's application does not contain his personal signature (handwritten or electronic);
• there is no clear wording of the employee regarding his intention, as well as the exact date of termination of the employment agreement;
• the manager endorses the application with a different date than that specified by the employee.

Read also: Can the director of an organization fire himself?

Forced dismissal is the termination of an employment contract:

• due to threats from the management of the enterprise;
• putting pressure on an employee in any form in order to obtain a statement from him of his own free will.

IMPORTANT! Decree of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (paragraph 22) indicates that the employee should collect the evidence base for forced dismissal. It is advisable to prepare supporting materials in advance.

When filing a claim, it will not be superfluous to point out the outcomes of cases when the courts ruled in favor of the employees. Here are some examples.

Appeal ruling of the Supreme Court of the Republic of Tatarstan dated July 22, 2013 in case N 33-8066/2013

Worker Requirements: restore to work.

Circumstances of the case: The worker was reinstated as a janitor. He turned to the employer with a demand to ensure proper working conditions, to issue overalls and tools. The employer drew up an act in which he recorded the employee's refusal to go to work, and also indicated that the service life of the clothes and equipment issued to the employee before dismissal had not expired.

The employee wrote a letter of resignation of his own free will, in which he noted that the reason for the dismissal was the impossibility of fulfilling his labor duties.

Conclusion and justification of the court:

The writing by the employee of a letter of resignation of his own free will is due to the conflict situation that has developed between the parties, caused by the unlawful behavior of the employer. The application was written involuntarily under the threat of dismissal at the initiative of the employer, that is, under pressure from his side.

Worker Requirements: recognize the dismissal as illegal, reinstate at work.

Circumstances of the case: The employee, while on duty, felt unwell and, with the permission of the foreman, left the workplace to receive medical care. The employer drew up acts on his absence from work. The employee wrote a letter of resignation of his own free will.

Conclusion and justification of the court: The dismissal is unlawful. The employee's requirements are met. The decision of the court of first instance was upheld.

There was no voluntary expression of the will of the employee to terminate the employment contract on his own initiative. The writing of the letter of resignation was due to the prevailing circumstances (the actions of the employer, who forced the employee to resign at his own request, the employee's illness). Drawing up acts on the absence of an employee at the workplace without clarifying the reasons for the absence is regarded as a way of putting pressure on the employee in order to compel him to resign at his own request.

Read also: Types of enterprise reorganization. The process of firing employees step by step

Worker Requirements: reinstate at work.

Circumstances of the case: The employee submitted a voluntary resignation letter. Before the warning period expired, he withdrew his resignation letter. The employer issued an order to dismiss the employee of his own free will, however, after the employee withdrew his application, he made changes to the order, changing the wording of the grounds for dismissal for absenteeism.

Conclusion and justification of the court: The dismissal is unlawful. The employee's requirements are met. The decision of the court of first instance was upheld.

At the time of applying for dismissal, the employee had no intention of terminating the employment contract with the employer. The employee filed an application for resignation of his own free will, due to fear of being fired for absenteeism, which really took place on his part.

The intention to dismiss an employee for violation of labor discipline is evidenced, among other things, by amendments to the dismissal order regarding the grounds for dismissal - according to subclause “a”, clause 6, part 1, art. 81 of the Labor Code of the Russian Federation for absenteeism.

Signing a letter of resignation, many employees do not even suspect that their rights are infringed. Rjob asked experts about how unscrupulous employers violate labor laws and how to challenge a “wrong” dismissal.

Why get fired

It is one thing when you draw up an application of your own free will or by agreement of the parties. And it’s completely different when a discrediting entry appears in your work record.

“An employee can be dismissed “under the article”, despite the fact that he performs his labor functions conscientiously and efficiently. As a rule, everything is to blame for a conflict with the employer. In addition to resentment, illegal dismissal has more deplorable consequences, for example, in the form of an obstacle to employment in a new place,” comments Maria Smirnova, junior legal adviser at My Family Lawyer.

Consider the most typical situations of dismissal.

1. Truancy

Absenteeism is the absence of an employee from the workplace without good reason during the entire work shift or for more than four hours in a row during the shift. Dismissal for these reasons is regulated by paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

However, it happens that employers deliberately create conditions that lead to forced absenteeism. For example, they do not let an employee into the office by blocking an electronic pass.

What to do

Draw up an act and fix the impossibility of entering the territory of the employer due to the blocking of the pass, notify the employer of the situation in writing.

These documents will help confirm that the reason for the absence was not the personal desire of the employee, but circumstances beyond his control. You can use eyewitness testimony and CCTV footage.

2. Repeated failure to perform duties without good reason and disciplinary action

This ground for dismissal is provided for in paragraph 5 of Art. 81 of the Labor Code of the Russian Federation.

To dismiss an employee, employers entrust him with the performance of duties that are not included in the job description, and if they refuse, they impose a disciplinary sanction. Or they bring the employee to disciplinary responsibility for violating the dress code, if local acts establish requirements for the appearance of the employee, and he is familiarized with them against signature.

What to do

The employee must write an explanation. After two working days, the employer will draw up an act of violation. Based on these documents, the employer issues an order to apply a disciplinary sanction and announces it to the employee against signature within three working days.

You can challenge this reason if the employer violates the dismissal procedure.

Sometimes it happens out of ignorance. But often - with malicious intent. For example, an employer incorrectly terminates an employment contract if they do not want to pay severance pay. This trend was noticed by Vera Alshevskaya, HR Director of Barkley Corporation:

“An employee can safely defend his rights if, upon dismissal, he did not receive all the cash payments due to him (salary for the period worked, compensation for unused vacation), if the employee was fired during the period of vacation or sick leave, if the reason for dismissal was a single minor violation of the rules internal labor regulations, if the letter of resignation was written under severe pressure.

Legal grounds for termination of employment relations are consolidated in Art. 77 of the Labor Code of the Russian Federation. The details of the grounds are indicated in Art. 77 - 84 of the Labor Code of the Russian Federation. Regardless of the type of grounds for dismissal, in case of violations by the employer, the employee has the right to challenge his decision.

Wrong dismissal

Let's take a closer look at the procedure for terminating an employment contract. How can you tell if you've been scammed?

Dmitry Drachko, Head of Irkutsk Lawyers Bureau, recommends paying attention to the following points:

The deadline for providing an explanation is two working days. If the dismissal order is issued earlier, it will be canceled by the court.

The dismissal order must indicate the specific violation for which disciplinary action is applied. There are cases when an employee is fired for violation of his duties, and in court the employer cannot explain which clause of the employment contract or job description contains the employee's obligation, for violation of which he is fired. In this case, the court cancels the dismissal order and reinstates the employee.

The order must indicate the same violation for which an explanatory note was previously received from the employee.

The dismissal order must be handed over to the employee against signature, and in case of refusal, an appropriate act must be drawn up.

How to protect your rights

In many situations, the law takes the side of the employee. But not everyone knows their rights, and therefore lets things take their course. And some would be happy to complain, but do not know to whom and how.

Vera Alshevskaya advises to start by asking for copies of all personnel documents that are drawn up upon dismissal. Next, you need to write an appeal to the responsible representative of the employer, indicating all recorded violations and references to the norms of the current law.

But do not think that this will be enough, and the boss will come to his senses. He may refuse to consider your complaint and put his signature on the papers. Then feel free to contact the labor inspectorate and demand an objective investigation. If a violation of your rights is established, the labor inspectorate initiates an appeal to the court.

Dmitry Drachko notes the following nuances when applying to the court dismissed:

Claims are added to the statement of claim for the payment of earnings for forced absenteeism and compensation for non-pecuniary damage.

The claim is submitted to the court in writing.

The document must contain: the name of the court to which the application is submitted; name of the plaintiff, his place of residence; name of the defendant, his location; what is the violation or threat of violation of the rights, freedoms or legitimate interests of the plaintiff and his demands; the circumstances on which the plaintiff bases his claims, and the evidence supporting these circumstances.

The statement of claim is filed with the court with a copy for the defendant. Such a claim is not subject to state duty.

The limitation period for such claims is one month from the date the employee receives a copy of the dismissal order or from the date the work book is issued.

After filing a lawsuit, a subpoena will be sent to the court. First, a conversation is held, the judge finds out the position of the parties. Then a court session is scheduled, in which the issue of the legality of the order to dismiss and reinstate the employee is resolved.

It is the employer who must prove to the court the legality of the order and the observance of the dismissal procedure. The employee, for his part, must point out violations upon dismissal.

Real cases of contested layoffs

Evgeny Poluboyarov
HR audit expert, co-founder of Kadrium - HR Audit

A supervisor fired a subordinate for playing online poker during work hours from a work computer. The dismissed employee went to court and was reinstated in his position, received the average wage for forced absenteeism, compensation for unused vacation, compensation for moral damage, reimbursement of the costs of the trial and the state fee. Then he resigned of his own accord.

Court arguments:

1. There was no information in the internal labor regulations that visiting personal sites during working hours is a violation of labor discipline.

2. The employee was not familiar with which sites can be visited during working hours and which cannot.

3. The fact of visiting the gaming site was not recorded by the act, an explanatory note was not requested from the employee.

Dmitry Drachko
Head of the Bureau of Lawyers of Irkutsk

The manager demanded that the personnel department fire the employee for being intoxicated at the workplace. Which was done, but without meeting the deadlines for a written explanation. The court reinstated the employee, recognizing the dismissal order as a violation of the law.

An employee of the city administration was fired due to staff reduction. In court, we drew attention to the fact that the employee was not offered all the available vacancies. Administration lawyers tried to prove that the employee did not meet the requirements for vacancies, but failed to do so. The employee was reinstated as a result of the conclusion of a settlement agreement in court, that is, without a decision. The defendant realized his mistake and voluntarily corrected it.

The case is interesting in that the employee then worked for a long time in this structure, although it is believed that after the conflict and restoration by court, it makes no sense to work in the same place. There is even a special rule in the Labor Code of the Russian Federation that the employee has the right, instead of being reinstated at work, to demand that the wording of the dismissal be changed to “own desire” with the payment of all amounts due.

Do I need to go to court if you were fired, in your opinion, illegally? Is it worth wasting time and nerves trying to defend your case? It is my deep conviction that it is imperative to fight for your rights, especially since the law provides for the possibility for an employee not only to protect his good name, but also to receive material compensation from an unscrupulous employer.

What is an illegal dismissal?

Illegal dismissal is the termination of an employment contract with an employee at the initiative of the employer without legal grounds for this.

The most common violations of labor law by employers include: