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Reinstatement Court. Recovery after the army. The settlement agreement has the force of a court decision

In all countries, and ours is no exception, there are cases when the authorities make an unlawful decision to dismiss an employee or transfer him to another position. And the employee does not want to leave a cozy place at all. He really liked the work, especially since it was not far from home. Yes, and there was a terrible resentment from unfair treatment by the authorities. Illegal dismissal is necessary in without fail challenge.

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

When is dismissal illegal?

In the event that the employee conscientiously performed his work, did not skip work, did not come to work drunk, did not steal anything and did not violate safety regulations, his dismissal will be considered illegal. It is also considered illegal dismissal if:

  • the employee was not warned in advance, for example, about a staff reduction at the enterprise;
  • if the specified reason for dismissal is not true and a completely different reason is indicated in the order;
  • when an employee is dismissed because he does not correspond to his position and does not cope with his duties, a proper certification of the employee was not carried out;
  • an employee is fired due to poor health, he often gets sick and does not cope with his work, medical board who can confirm this;
  • the employee was allegedly fired due to a reduction in staff, but in fact there is no reduction;
  • the employee has not been paid the wages due to him.

In the event that an employee commits an official crime or some serious misconduct, the boss may offer him to quit on his own. In this case, he is doing you a favor and you must definitely agree. But if the dismissal is illegal, and the boss suggests writing a statement in his own way own will, then you should know: you cannot write it, since the court will not accept your claim for consideration later.

However, if it is proved that such a statement was written under pressure and coercion, the judge must take into account and try to understand true reasons layoffs. Most employers make mistakes in the preparation of such documents.

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

Complaint to the State Labor Inspectorate

When an employee is fired, he writes a statement. Often, employers are asked to write a letter of resignation of their own free will. If you think that the dismissal is illegal, then in no case do you need to write it. After the dismissal order is issued, you can contact the labor inspectorate. This is done simply. A statement is written in which all the circumstances of the case are clearly indicated, without speculation and your judgments.

Your application must be reviewed within 15 days. The decision will be made on time if the employer has violated labor laws too obviously. In the event of difficulties arising in the consideration of the complaint, the case may be delayed, and this should not be allowed. After a period of one month, it is no longer possible to file a lawsuit in court. So the choice is yours. Or go to court right away, which will be longer and more expensive, but more likely to return your position and be reinstated in your workplace, or first try to act through the state labor inspectorate. It will be much cheaper, but there are some nuances. The case can be delayed or rejected, and service inspectors are not as professional as judges.

They have the right to conduct an administrative audit of the incident at the enterprise, review all documents and contracts, and review orders. For the rest, namely, reinstatement in the workplace, payment of any Money and compensation, the inspector will still advise you to apply to the district court. If after the expiration of the prescribed period no decision has been made, then there is no more time to wait, you must urgently file a lawsuit in court for illegal dismissal.

It should be less than a month from the termination order to the filing of a reinstatement claim. Later, the matter is considered by the court only in case of extraordinary reasons for the delay. Prolonged consideration of the case by the Inspectorate is not considered as such a reason. You can first contact the labor inspectorate, and after 15 days immediately file a claim with the court, at the same time. Questions on reinstatement to work in judicial practice are considered within a month.

Benefits of going to court

Consideration of labor disputes in court has a number of advantages. You need to know them in order to make the right decision whether to seek help or not. A claim for reinstatement is filed with the court at the location of the enterprise. After the application is submitted, an enforcement judge is appointed to listen to your claims and consider the evidence base. The trial takes place with a thorough study of all controversial issues, with the call and interrogation of all parties to the labor dispute.

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

One more positive moment to file a lawsuit. The unlawful dismissal of an employee assumes that the corresponding costs are borne by the employer. Based on Article 393 of the Labor Code of the Russian Federation, a dismissed employee is completely exempt from paying state duty and court costs. Also a pleasant moment will be the opportunity through the court to demand from the employer compensation for moral damage and compensation for loss of wages for the entire period that the plaintiff did not work.

Disadvantages of litigation

The only negative will be the length of the consideration of the complaint. Especially if the controversial issue has little evidence. At gross violation labor legislation, reinstatement to work in judicial practice is easier, less time is spent on clarifying the circumstances of the case. If there is no valid written confirmation of the violation by the employer of the rights of his employee, then the consideration of the case may be delayed.

But in Lately judges try to resolve such disputes about reinstatement as quickly as possible, within a month. The process can be delayed only in case of very contentious issues. If the evidence of the illegality of the dismissal of an employee is high, then the case for reinstatement in judicial practice is considered much faster.

Preparing to go to court

Before applying for reinstatement by court order, an employee must carefully prepare in advance. Usually they are not dismissed abruptly, but the person feels and understands that everything leads to this. At the time of dismissal, the employer is unlikely to want to meet you halfway and give everything Required documents that the judge will require. When signing employment contract one copy must be in the hands of the employee.

The contract must specify the salary you will receive. If cash payments are not stipulated there, but you need to take a certificate from the place of work about the salary for six months. This will be needed by the judge if the employee wants to pay the debt.

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

What documents are required to apply to the court?

If it was not possible to agree with the manager and solve the problem of returning to the previous place of work, then you need to file a claim with judiciary at the place of residence of the enterprise. Sometimes the case may be referred to the court at the place of residence of the plaintiff. When filing a claim, in addition to the application, the following documents must be submitted:

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

You can also submit any documents that confirm that you worked at this enterprise. Each document in hand must be filed with the case. This is very important, since the employer can safely say that he sees you for the first time, and you did not work for him.

Individual labor disputes

According to the court, any employee who considers his dismissal and transfer to lower paid position, illegal. He can, through the courts, demand compensation for the period that he was forced not to work or received less salary. Employees who do not agree with the wording of the reasons for their dismissal in the work book may sue.

Also, an employee of the enterprise can complain through the courts about the boss who did not respect confidentiality when processing the employee's data. The issues of unlawful refusal to hire a person, discrimination of his rights on the basis of nationality, pregnancy or the fact that a woman has a small child are considered.

When conducting a case, the court listens to different parties, looks through all the documents, judicial assistants are sent to the enterprise to check all the documentation. Also, if necessary, various professional experts, various witnesses can be involved, certifying your work activities at this enterprise. The employee in this process is called the plaintiff, since he filed a claim, and the manager or private entrepreneur is considered the defendant.

Judgment by the court

When applying, the employee plans that the decision to reinstate at work in court will satisfy his requirements. After a careful study of the case materials, the judge makes a reasoned decision, confirmed by labor legislation, indicating the chapters and articles of this code.

In the event that the plaintiff makes claims for compensation for material damage or other compensation, the court decision must clearly indicate the amount of the due payment. Since the trial can take a long time, according to the law, it is decided that compensation to a dismissed worker should not exceed six months' salary. If the plaintiff claims additional payments For example, payment of a lawyer or compensation for non-pecuniary damage, the judge also determines and clearly indicates this amount. Since no state duty is charged from the employee in case of an individual labor dispute, a 50% tax is levied on additional payments at the request of the plaintiff.

When reinstated at work by a court, a person has the right to demand compensation not only for the payment to the lawyers, but also for the physical and psychological suffering caused to him. The degree of guilt of the defendant is also taken into account. But usually such compensation is small.

Reinstatement at work

If the consideration of labor disputes in court ends with a decision to reinstate an illegally dismissed employee, the employer is obliged to reinstate him in the same position on the same day. In this case, the employee submits a court decision and writes an application for reinstatement at work.

An order for reinstatement at work is issued by a court decision and given to the employee for signature. After that, it is necessary to make an appropriate entry in the work book: the entry under No. (the entry number is put, it is in this work book) is invalid, restored to the previous job. But if the employee does not want to spoil his impeccable reputation with such an entry in the book, he has every right to demand that he be given a duplicate without corrections.

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

But after the court decision on reinstatement, judicial practice shows that not everything goes so smoothly. Usually a person who has thus achieved his requirements is not very welcome at his old place of work. The moral atmosphere is so tense, and the boss's nit-picking becomes so critical that a person often then independently comes to the decision to quit and write. The employee must understand this, and after the court decision and receipt monetary compensation start looking for another job.

Illegal redundancy

When a reduction in staff is planned at an enterprise, the head, according to the law, must comply with all the rules. To begin with, it is necessary in advance, namely, to warn the employee about changes in his life two months in advance. During this time, a letter is also submitted to the employment service about the need to provide a person with an appropriate place within this period, according to his experience, length of service and education.

Also, the boss can offer another position, if, of course, there are vacancies. The employer must pay compensation to the employee if the forced dismissal occurred ahead of schedule. In case of non-compliance with these rules, an illegal dismissal on reduction will take place.

Categories of citizens who are illegal to reduce

There are several categories of workers who, under the law, in any case, do not have the right to dismiss, let alone reduce:

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

  • a father who has a young child in his upbringing, but no mother;
  • a father who is the sole breadwinner in a family with three young children;
  • people who at the time of the reduction are on planned leave or on leave at their own expense;
  • people who are on sick leave at the time of the reduction;
  • if the employee with whom the contract was signed is not yet 18 years old, then he can be dismissed by agreement with the labor inspectorate or the inspector for minors.

In any case, upon dismissal, the employee must know his rights, be able to act professionally, defend himself, if necessary, in court. If the production is not observed Labor Code and lawlessness of the authorities reigns, then punishment must follow without fail.

The labor collective must unite and protect the rights of employees. Unfortunately, trade union organizations in our country do not have the same strength as in other states, and often workers cannot get the necessary support. That's what the judiciary is for. You can always sue. Illegal dismissal must be punished.

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

Dismissals contrary to the law are not uncommon in Russia. However, according to statistics, only every thirtieth illegally dismissed Russian goes to court.

One of the main reasons for such disappointing statistics is the frank ignorance of citizens of their rights and legal incompetence. Meanwhile, if illegally dismissed workers defended their rights more actively, the number of illegal layoffs would also decrease.

Any dismissal that is contrary to the Labor Code of the Russian Federation is considered illegal.

The most common options for wrongful dismissals:

  • voluntarily without application;
  • downsizing, job renaming;
  • during sick leave;
  • not passed probation without evidence of failure to pass the test;
  • pregnant women and those on parental leave;
  • for absenteeism without fulfilling the requirements for duration;
  • for being able alcohol intoxication without a medical opinion.

And this is not the whole list. Regardless of the situation, the algorithm of actions of an illegally dismissed employee should be approximately the same.

Reinstatement at work by court order

The court often takes sides unfairly or not according to the rules of the laid-off worker. This happens because employers often violate the dismissal procedure itself: they incorrectly draw up personnel documents, do not have time to familiarize the citizen with the order, etc.

Note!

Such violations can lead to the fact that the employee will be reinstated in his original position. He is entitled to a payment for forced absenteeism according to the average daily earnings.

It is necessary to restore the employee in the same place, observing all the norms of the Labor Code of the Russian Federation and personnel issues.

Illegal dismissal can occur not only at the initiative of the employer, but also by agreement of the parties, and even at the employee's own will

In Art. 392 of the Labor Code of the Russian Federation says that in case of violation labor rights a citizen has the right to apply to the court within a year from the date of violation. However, in the case of illegal dismissal, the employee has only one month from the date of receipt of the work book, familiarization with the decision to dismiss, etc. This period may be extended only if there is a good reason for the plaintiff. By the way, the term “good reason” itself is not disclosed in any way in the legislation and remains at the discretion of the court. Most often to good reasons relate:

  • the plaintiff's illness, confirmed by a certificate of incapacity for work;
  • disease close relative who required the departure of the plaintiff. To confirm this fact, an extract from the hospital or testimony of witnesses will be required;
  • long business trip.

So, the court may consider an application filed within a month from the date of dismissal in the following cases:

  • the reduction occurred at the initiative of the employer, while the norms for drawing up or terminating an employment contract were violated;
  • at the employee's own request under psychological or moral pressure from the employer.

The latter most often occurs in cases of downsizing, reorganization or liquidation of the enterprise, when the employer does not want to pay the employee the compensation required by law. In this case, through pressure, the management forces the employee to write a statement "of his own free will."

There are many cases in which recovery by court order is highly unlikely. These include:

  • the employee simply “changed his mind” about quitting, although he had previously voluntarily submitted a statement;
  • the employer has strong evidence of the employee’s guilt (absenteeism, theft, being in a state of intoxication, etc.);
  • liquidation of the enterprise.

These cases are not hopeless, but they will require much more effort and time to collect arguments and evidence. It is almost impossible to resolve them on your own.

Note!

If an employee is sure that his dismissal was illegal and wants to be reinstated at his place of work, then the first thing he must do is file a lawsuit in the district court.

It must be remembered that the statement of claim must be impeccably drawn up in writing and taking into account all the requirements of Art. Art. 131 and 132 of the Civil Procedure Code. Incorrectly drawn up document may be the reason for refusal to accept the claim. It must contain:

  • full name of the court;
  • full details of the claimant;
  • accurate information about the employer;
  • the facts that make up the essence of the claim - the period of work, position, prerequisites for dismissal, etc.

Also, in the lawsuit, you must state your request, claims against the employer. Drafting this document is not an easy task and is best left to professional lawyers to increase the likelihood of success.

Within one month, the court considers the application of the employee.

If the court decision is in favor of the employee, the employer is obliged to immediately reinstate him in his previous position and pay all compensation due to him

By the way, the plaintiff and the defendant can conclude a settlement agreement in court. In the event that it is concluded, it will have the same force as the decision or order of the court. Therefore, the employer in this case will also have to carry out all the procedures provided for by law to reinstate the employee.

The procedure for reinstatement at work by court order

The labor legislation does not provide for the procedure for the immediate execution by the employer of the decision to restore. That is why such verdicts are difficult to enforce. Indeed, in case of violation of the procedure, the employee may return with a new claim.

The restoration of a citizen implies the implementation of a whole range of his rights, which are provided for by law. They include:

  • the right to provide the previous job - that is, necessarily work in the same function, with the same conditions and the same job responsibilities;
  • payment of the time of forced absenteeism or payment of the difference in wages for the time of performance of work paid below;
  • recovery of monetary compensation for non-pecuniary damage;
  • payment for the entire time of the delay in the execution of the decision to restore the average earnings or the difference in earnings.

Since it is often impossible to complete this entire list of actions immediately (that is, on the day the court decision is made), the employer will be forced to make payments with a delay.

The current labor legislation cannot give unambiguous answers to several questions that arise in the execution of court decisions on reinstatement. For example, it is not entirely clear what exactly a manager should do with an employment contract concluded with a reinstated employee. The legislation only states that the company's management is obliged to cancel the dismissal order. It means that by canceling this order, the director confirms that the previously terminated contract is again valid.

It often happens that during the trial, structural changes occur at the enterprise, production technologies change, in the end, another employee may be hired. These are circumstances in which the immediate execution of a court decision is simply impossible for objective reasons.

Another question is what to do with an employee who has already been hired to the position of an illegally dismissed employee? It turns out that the leader in one working day must restore the second and dismiss the first, and so that all this is in accordance with the letter of the law.

Labor law does not provide for any deadlines for warning a new employee about dismissal, offering him another position and providing any guarantees

He should simply be fired, and this, in turn, violates his labor rights. At the same time, special categories of employees are not distinguished - pregnant women, minors, and the disabled can be fired. This is due to the fact that the reason for the termination of labor relations is not the initiative of the company's management, but a court decision. In this case, recovery is impossible, but the citizen still has the right to payments.

The obligation to transfer compensation may be assigned to the liquidation commission of the company or another body that has taken a decision on its liquidation. If the liquidation occurs due to bankruptcy, the employee will be able to receive money only in order of priority for paying debts.

Regardless of the circumstances, the employer must carry out several procedures. After receiving the court decision, he needs to issue an order on personnel to reinstate the employee. There is no single form for such an order, so it can be drawn up in a free form. However, the following items are required:

  • serial number of the document;
  • Date of preparation;
  • employee data;
  • position;
  • salary or rate;
  • grounds for restoration;
  • position of the head and signature.

Note!

After reading this order, the employee must put his signature on it. In the event that a citizen refused to familiarize himself with the order or sign it, or is absent from the workplace, the employer must take all possible measures to inform him.

It is necessary to draw up an act, which should indicate: refusal to sign the order, the fact of familiarization with the text of the order, or the employee's refusal from his immediate duties.

It is important not to forget to make an appropriate entry in the citizen's work book. The serial number of the entry, the date of restoration, as well as the entry canceling the previous one should be indicated there. In addition, the details of the order for restoration are entered.

It often happens that after receiving a decision on reinstatement, the employer immediately takes all necessary measures: issues an order to cancel the dismissal order, allows a person to do work, correctly draws up all the documents ... However, the employee is in no hurry to go out and fulfill the court decision, as well as his official duties. In this case, the task of the company's management is to warn the employee about the voluntary execution of the court decision on their part by all accessible ways.

To avoid sanctions and disputes, the employer should record in writing the issuance of the order indicating the time frame in which the employee must go to work. Since sending a letter can take time, it is also worth sending a telegram to the citizen, calling and notifying by e-mail.

Thus, the reinstatement of an illegally dismissed or transferred employee is a rather complicated procedure. Its correctness depends on the factors provided for by labor, civil procedural legislation, legislation on enforcement proceedings, and, of course, on the lawful actions of the participants in the case. All this greatly complicates the process. Therefore, we recommend contacting qualified lawyers of our firm. Consultations are available online through the form on the website and by phone.

A qualified lawyer will help defend your rights both in the labor inspectorate and in judicial order. The lawyer will accompany the verification process and make sure that it passed in accordance with applicable law. At this stage, it is important to prevent violations and defend your position.

During court hearings, a lawyer is indispensable. It is necessary to develop specific requirements, correctly draw up a statement of claim and provide evidence that the dismissal was illegal. It is also possible to file claims for compensation for non-pecuniary damage.

You may also need to change the reasons for leaving.

If some unfavorable grounds are indicated in the work, this may cause the new employer to have great doubts about the competence of the specialist and the suitability of the proposed position

The wording in the work book must be written exactly as indicated in the relevant part of the law or clause of the Labor Code of the Russian Federation. If the entry is incorrect, this is a direct reason to correct it.

Restoration at work by a court decision is subject to immediate execution by the employer. In practice, questions arise regarding the procedure for reinstating an employee on the basis of a court decision.

Briefly, in chronological order, reinstatement at work by a court decision of an employee is as follows.

On the day the court decision is made, the employer must issue an order to cancel the order to dismiss the employee and reinstate him at work, in his previous position, based on a court decision.

After the issuance of the said order, the employee must be familiarized with it against signature. At the request of the employee, he must be given a copy of this order.

After issuing the order, the personnel worker must correct the entry in the work book. An entry is made in it on the recognition of the dismissal record as invalid and an entry is made on the reinstatement of the employee at work by a court decision indicating the above order.

In the employee's personal card, the record of dismissal is crossed out and an entry is made about his restoration with a reflection of all the details.

Changes are also made to the time sheet. The period of time elapsed from the date of dismissal of the employee is marked with the code "PV".

From the moment the court decision on the reinstatement of the employee at work comes into force, in accordance with Part 2 of Article 394 of the Labor Code of the Russian Federation, he must be paid the average earnings for the time of forced absenteeism, the amount of which is indicated in the court decision. In the event of an appeal by the employer of a court decision on the reinstatement of an employee at work, the average earnings for the period of forced absenteeism are not paid until the court decision enters into force.

An order is issued on the dismissal of an employee accepted for the place of an employee reinstated by the court. However, the dismissal of this employee will be legal if it is impossible to transfer him to another job with written consent.

If the employee hired to replace the dismissed employee nevertheless quits, then an order is issued to dismiss him, a work book is issued with a corresponding entry, wage arrears are paid and severance pay in the amount of a two-week average earnings in accordance with part 3 of article 178 of the Labor Code of the Russian Federation.

It is necessary for the employer to execute a court decision on the reinstatement of an employee at work, since the law provides for liability for failure to comply with such a decision.

The execution of the court decision is monitored by the bailiff service. As mentioned above, the judgment must be executed immediately ... Otherwise, the bailiff may fine the employer:

organization in the amount of 30,000 to 50,000 rubles;

the head of the organization in the amount of 10,000 to 20,000 rubles.

Such sizes of fines are established by part 1 of article 17.15 of the Code of Administrative Offenses of the Russian Federation.

In addition to fines, the organization will have to pay the reinstated employee average salary for the period from the date of the judgment to the day of its actual execution. The bailiff can detect a violation during the audit or learn about it from the claimant's complaint.

Cancellation of the decision on reinstatement by a higher court

An employer who does not agree with the decision of the court of first instance on the reinstatement of an employee in a position has the right to appeal against it in an appeal, and subsequently in a cassation procedure. The procedure for filing such complaints is established in chapters 39 and 41 of the Code of Civil Procedure of the Russian Federation.

If a higher court reverses the decision of the district court, the employer has the right to fire the employee again. At the same time, the employer has the right to start the dismissal procedure even in cases where the cassation instance sends the civil case for a new consideration.

The dismissal order in such cases must be issued on the day the decision is made to cancel the court decision on reinstatement ... On the same day, a full settlement with the employee must be made and a completed work book must be issued to him.

Average earnings during the forced absenteeism will remain with the newly dismissed employee. An attempt to recover money, as a rule, ends in failure, since the courts believe that a turnaround in the execution of a decision is possible only if the first instance made its decision on the basis of unreliable testimony and evidence provided by the employee.

Winning the company in any instance means that an employee who was previously reinstated can be fired on the basis of a new court order. In this case, a special basis is applied - paragraph 11 of part 1 of Art. 83 of the Labor Code of the Russian Federation (cancellation of a court decision or cancellation (recognition as illegal) of a decision of the state labor inspectorate to reinstate an employee at work).

In practice, a situation is possible when the court of cassation (this is not provided for in the appeal) cancels the decision of the court of first and (or) appellate instances and, without resolving the case on the merits, sends it for a new trial ... Many employers doubt the possibility of dismissing an employee in in such a case.

In fact, for the dismissal on the specified basis, the accomplished fact of the cancellation of the court decision on the reinstatement of the employee is sufficient. This conclusion follows from the wording according to paragraph 11 of Part 1 of Art. 83 of the Labor Code of the Russian Federation.

Such haste may not be justified if the new review ends in favor of the employee. However, a literal reading of the said norm allows the employee to be fired, regardless of whether the case is resolved on the merits by a higher court or not.

To dismiss an employee in connection with the cancellation of a court decision, an order must be issued, which, as a rule, is drawn up in the form No. T-8. When compiling it, you will have to determine two dates - the preparation of the document and the dismissal of the employee.

6 months are allocated for filing a cassation complaint from the date of entry into force of the appeal ruling. Regarding the first date, there are no problems. Since such acts come into force from the date of their adoption (Articles 329, 391 of the Code of Civil Procedure of the Russian Federation), the employer has the right to terminate labor Relations with the employee, regardless of the time frame for the production of court decisions in the final form. For example, if the meeting of the court of appeal, at which the organization's claim was satisfied, took place on April 14, 2014, then on April 14, 2014, the employer can issue an order to dismiss the employee.

Determining the second date is more difficult. Some courts hold that the date of termination of the employment contract should be the date the employee was originally fired.

This position seems dubious. The reinstatement of an employee at work means the resumption of labor relations between the parties (the employee and the employer) in the same mode as if there had been no dismissal. After restoration and until a new (secondary) dismissal due to the cancellation of a court decision, the employee performs labor obligations, enjoys the corresponding rights (for example, he can go on vacation), and the employer pays him wages and makes insurance premiums.

Repeated dismissal is carried out on a special basis, clause 11, part 1, art. 83 of the Labor Code of the Russian Federation, which is applied in case of cancellation of a court decision or cancellation (recognition as illegal) of a decision of the state labor inspectorate to reinstate an employee at work. This means that the new day of dismissal must coincide with the date of the actual termination of employment relations. Otherwise, the rights of the employee will be unjustifiably infringed.

Thus, the employer has the right to issue an order to terminate the employment contract and dismiss the employee on the day the court decision is made. If it is difficult to do this, for example, in the case when the court session ended late, then it is advisable to wait for the employee at work the next day and then complete all the necessary documents.

In addition to drawing up an order, on the last day of work, you need to finally pay off the employee by paying him wages). In addition, you will need to fill out a work book and his personal card. In these documents, as well as in the order, the grounds for the termination of the TD, provided for in paragraph 11 of part 1 of Art. 83 of the Labor Code of the Russian Federation. If it is not possible to hand over the work book, then a notification is sent to the known addresses of the employee.

Reinstatement at work by order of the state inspector of the court

Restoration disputes are usually dealt with in the courts. But the GIT also has the ability to influence the fate of the dismissed worker.

Dismissal is possible not only because of the cancellation of the court decision, but also in connection with the recognition of the previously issued order of the state labor inspector as illegal. These acts are appealed on the basis of Part 1 of Art. 320 Code of Civil Procedure of the Russian Federation (judicial decision) and art. 361 of the Labor Code of the Russian Federation (order). In the latter case, you need to contact the higher head of the GIT employee, the chief state labor inspector and (or) the court.

Previously, there were disputes about the legality of the reinstatement of an employee on the basis of an order. It was noted that such decisions are not within the powers of the GIT, since this is the prerogative of the courts

In Review judicial practice(approved by the Presidium of the RF Armed Forces on 06/01/2011) put an end to these disputes. The order to cancel the dismissal order issued by the GIT is mandatory for the employer.

But they can issue it only in case of a clear violation of the procedure for dismissal. An unobvious or controversial situation is resolved in court (determination of the Supreme Court of the Russian Federation of 10.01.2014 No. 5-KG13-146).

Often, employers expect to reimburse expenses after the case is considered on appeal, since the Code of Civil Procedure of the Russian Federation and the Labor Code of the Russian Federation do not prohibit turning a court decision in this instance.

In the overwhelming majority of cases, the courts take the side of the workers. In their opinion, such a guarantee for the protection of the labor rights of employees, as a restriction on the reverse recovery of amounts paid during the restoration, does not depend on the level of authority that canceled the court decision executed by the employer. Therefore, even at the level of appeal, the company has little chance of defending its position. This is the prevailing jurisprudence.

Explanations of the Plenum of the Supreme Court

The nuances of the actual admission revealed Supreme Court RF in the new resolution of the Plenum. It is devoted to enforcement proceedings, including questions about the reinstatement of workers. The task of the employer is to allow the employee to fully fulfill the previous labor duties. For example, send him for a medical examination. Otherwise, the bailiff will decide that the employer has not reinstated the employee. For such a delay, the company will pay a performance fee, and the employee will collect the average earnings. So do not wait until the employee demands to be allowed to work. Cancel the dismissal and send him a letter about the readiness of the workplace. After that, it will not be possible to accuse the company of delaying the recovery. Solve the issue of paying for temporary absenteeism in this way. Immediately pay the average earnings for only 3 months, and the rest will be received by the employee after the appeal. If the court indicated that the employee is entitled to the entire amount on the day of recovery, then there are two ways: to challenge the decision or to give all the money. The last option is suitable for those who will not go to challenge the restoration.

For the delay in recovery, the employee will collect the average earnings.

The employee must be reinstated at work immediately. The longer the employer does not comply with the court decision, the more he will receive. For delayed recovery, the worker will be compensated based on average earnings. And if he received regular bonuses, then the court will add them to the salary.

A manifest delay in recovery is when an employer deliberately prevents an employee from entering the workplace. But employers make a number of other mistakes, which the court will regard as a delay in recovery.

You should not wait until the employee brings a writ of execution or in writing requires it to be restored. The admission of an employee to the performance of functional duties must be carried out immediately after the court session. And it does not matter whether the court indicates in the operative part that it needs to be restored immediately.

It happens when the execution of a court decision does not occur due to lack of office. The position of a dismissed employee is often removed from the staffing table. The same happens with a reduction in staff or numbers. But for the restoration of an employee, this is not a hindrance. Add a unit to staffing from the day following the court's decision.

Sometimes I don’t reinstate an employee because his position is occupied. After the dismissal of an employee, another specialist may be hired for his position. However, this is not a reason for non-execution of the court decision on reinstatement. In this situation, it is necessary to transfer the second employee to a free rate (part 2 of article 83 of the Labor Code of the Russian Federation). If it is not there, then dismiss it under paragraph 2 of part 1 of Art. 83 of the Labor Code of the Russian Federation. The date of dismissal will be the day when the court will issue a decision on reinstatement.

In some cases, admission to work is difficult due to the liquidation of the unit. The employee will have to be reinstated, even if the employer has liquidated the structural unit. Since there is no work for the employee, on the day of recovery, you need to put him on idle time or arrange annual leave. For paid leave outside the schedule, an application from the employee is required. Next, you need to agree with the employee on dismissal by agreement of the parties or reduce the staff.

So, the courts do not delve into the problems of the employer arising from the reinstatement of the employee. Therefore, the court order must first be executed. After the employee starts work, you can decide on his future fate.

When an employee does not return to work after recovery, then this is an abuse of the right. Average earnings for the delay in the execution of the decision are not due to him.

Sometimes employees deliberately ignore the fact that the court reinstated them at work. Then the workers apply to the court for average wages in connection with the delay in the execution of the court decision.

The employer will benefit if the employee does not return to work after recovery or does not go to court for a writ of execution.

The bailiff will close the writ of execution after the actual admission to work

In order for the employee not to recover additional money from the company, the court decision should be executed the next day after its issuance.

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Reinstatement at work (Labor Code of the Russian Federation) is provided for by Article 396. If the dismissed person can prove his case and the claims are satisfied in the court, the employer will be obliged to execute the verdict immediately.

Recovery procedure

If the dismissed person went to court and his claim was satisfied, the employee should be reinstated at work in his previous position on the day following the day the verdict was issued.

The period when the employee did not work due to the fault of the employer is payable as the time of forced absenteeism according to average earnings. He also has the right to demand compensation for moral damage during this time.

Court reinstatement requires the organization to:

  • issuing orders;
  • making changes to timesheets;
  • change of entry in the work book;
  • making payments;
  • exit of the employee to his workplace.

If the employer decides to challenge the reinstatement decision, he will still have to take all of the listed measures. In this case, file a complaint with the Court of Appeal.

Limitation of actions

An important point that everyone who has encountered a violation of their labor rights should know is the time limit for filing a lawsuit.

Employees often confuse the statute of limitations with general term for handling labor disputes, which is set at 1 year.

The term for reinstatement at work in case of illegal dismissal is 1 month (see article 392 of the Labor Code of the Russian Federation). And if this deadline is missed, it will be difficult to prove to the court its legitimacy. The district court at the place of residence of the plaintiff will consider the statement of claim.

Restoration at work by court: step by step instructions

Step 1. Issue an order.

First of all, the employer is obliged to issue orders to cancel the previously issued dismissal order, to reinstate the employee with all the previous conditions. Based this document in the future, an appropriate entry will be made in the work book.

There is no specific form of such an order, therefore it is issued in free form, but the following points must be indicated in it:

  • the date and number under which it will be entered in the order registration book;
  • details of the canceled dismissal order;
  • FULL NAME. employee
  • position;
  • wages (salary or tariff rate);
  • the basis for restoration - the date and number of the court decision;
  • FULL NAME. and the signature of the head of the organization.

Step 2. Make changes to the time sheet.

It is necessary to make adjustments to the timesheets by changing the code to PV or the numbers 22. If such actions are impossible, other timesheets must be redone.

Step 3. Make changes to the work book.

Restoration also entails making changes to the work book according to general rules. To do this, a note is made in the labor record about the recognition of the dismissal record as invalid and it is indicated that the employee has been reinstated in his previous position. The basis will be the order for restoration.

In addition, changes are made to the personal card.

Step 4. Make the necessary payments to the employee.

They are made by a court decision on the basis of an issued order for the payment of amounts due. Such payments include: payment for the time of forced absenteeism; payment of sick leave (if the employee was sick during the period of forced absenteeism); compensation for non-pecuniary damage, payment of legal costs (if he made such claims).

Step 5. Permission to work.

Tellingly, the obligations under the court decision arise not only from the employer, but also from the employee. His main duty is to arrive at the workplace in a timely manner the day after the decision is made by the court. If the employee does not appear and does not proceed with the performance of his official duties, he risks being fired again.

Some features of recovery

In addition to the standard cases of dismissal, we will also consider some special cases and their features. The most common cases are:

  • acceptance of another employee;
  • downsizing;
  • liquidation of the employing organization.

Position reduced

Legislatively in this case the following is provided. The manager cancels the previously issued reduction order and returns the reduced unit to the staff list, and then, in the usual manner, restores the employee to work.

A new worker was hired to replace the laid off employee.

By virtue of the requirements h. 1 Article. 83 of the Labor Code of the Russian Federation, the basis for the dismissal of a recently hired employee is a court decision. By law, he can be offered another job in the organization, and in case of refusal, the employment relationship with him can be legally terminated by paying compensation in the amount of two weeks of average earnings.

Enterprise liquidated

In the event of liquidation, when actual execution is impossible, the citizen remains entitled to all legal payments. At the same time, the responsibility for these payments should be assigned either to the liquidation commission or to another body that made the decision to liquidate.

When liquidation is carried out due to bankruptcy, the employee can receive what is due only in the order of his turn to pay the debt.

Liability of the employer for failure to comply with the court decision

Failure to comply with the court decision by the employer falls under the offense under Art. 17.15 Administrative Code of the Russian Federation, and threatens to impose administrative fine for an official from 10,000 to 20,000 rubles, for a legal entity - from 30,000 to 50,000 rubles.

At the same time, payment of a fine does not relieve the employer of the obligation to restore violated rights.

In case of non-execution of a court decision, a citizen has the right to apply to bailiffs and demand to force the employer to execute the court decision. And the time of non-fulfillment is regarded as forced absenteeism and, accordingly, is payable according to average earnings.

Do you think you are Russian? Born in the USSR and think that you are Russian, Ukrainian, Belarusian? No. This is not true.

You are actually Russian, Ukrainian or Belarusian. But you think you are a Jew.

Game? Wrong word. The correct word is "imprinting".

A newborn associates himself with those facial features that he observes immediately after birth. This natural mechanism is characteristic of most living beings with vision.

Newborns in the USSR for the first few days saw their mother have a minimum of feeding time, and most time we saw the faces of the staff of the maternity hospital. By a strange coincidence, they were (and still are) mostly Jewish. Reception is wild in its essence and effectiveness.

All your childhood you wondered why you live surrounded by non-native people. Rare Jews on your path could do anything with you, because you were drawn to them, while others were repelled. Yes, even now they can.

You cannot fix this - imprinting is one-time and for life. It is difficult to understand, the instinct took shape when you were still very far from being able to formulate. From that moment, no words or details have been preserved. Only facial features remained in the depths of memory. Those traits that you consider your family.

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System and Observer

Let us define a system as an object whose existence is not in doubt.

An observer of a system is an object that is not a part of the system it observes, that is, it determines its existence, including through factors independent of the system.

From the point of view of the system, the observer is a source of chaos - both control actions and the consequences of observational measurements that do not have a causal relationship with the system.

An internal observer is a potentially achievable object for the system in relation to which the inversion of the observation and control channels is possible.

An external observer is even an object potentially unattainable for the system, located beyond the event horizon of the system (spatial and temporal).

Hypothesis #1. All-seeing eye

Let's assume that our universe is a system and it has an external observer. Then observational measurements can take place, for example, with the help of "gravitational radiation" penetrating the universe from all sides from the outside. The capture cross section of "gravitational radiation" is proportional to the mass of the object, and the projection of the "shadow" from this capture onto another object is perceived as an attractive force. It will be proportional to the product of the masses of objects and inversely proportional to the distance between them, which determines the density of the "shadow".

The capture of "gravitational radiation" by an object increases its randomness and is perceived by us as a passage of time. An object that is opaque to "gravitational radiation", the capture cross section of which is larger than the geometric size, looks like a black hole inside the universe.

Hypothesis #2. Internal Observer

It is possible that our universe is watching itself. For example, using pairs of quantum entangled particles spaced apart in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, which reaches its maximum density at the intersection of the trajectories of these particles. The existence of these particles also means the absence of a sufficiently large capture cross section on the trajectories of objects capable of absorbing these particles. The remaining assumptions remain the same as for the first hypothesis, except:

Time flow

External observation of an object approaching the event horizon of a black hole, if the “outside observer” is the determining factor of time in the universe, will slow down exactly twice - the shadow from the black hole will block exactly half of the possible trajectories of “gravitational radiation”. If the determining factor is the “internal observer”, then the shadow will block the entire trajectory of interaction and the flow of time for an object falling into a black hole will completely stop for a view from the outside.

Also, the possibility of combining these hypotheses in one proportion or another is not excluded.