Reinstatement at work: performance difficulties. Reinstatement to work - jurisprudence

New edition Art. 396 of the Labor Code of the Russian Federation

The decision on the reinstatement of an illegally dismissed employee at work, on the reinstatement of an employee illegally transferred to another job at the previous job, is subject to immediate execution. If the employer delays the execution of such a decision, the decision-making body issues a ruling on payment to the employee for the entire time of the delay in the execution of the decision of the average earnings or the difference in earnings.

Commentary on Article 396 of the Labor Code of the Russian Federation

In accordance with Article 396 of the Code, a delay in the execution of a court decision on the reinstatement of an employee who has been illegally transferred to another job is not allowed. The delay in the execution of a court decision should be understood, for example, as the employer did not issue an order for reinstatement, the provision of work in the wrong position (specialty), which is indicated in the court decision.

That is, a court decision on the reinstatement of an illegally dismissed employee is subject to immediate execution even before it comes into force (Article 211 of the Code of Civil Procedure). Even a cassation appeal filed by the employer does not release him from the obligation to immediately execute the court decision. This procedure was established in order to restore the violated rights of the employee as soon as possible.

According to the Federal Law of July 21, 1997 N 119-FZ "On Enforcement Proceedings", an executive document on the reinstatement of an illegally dismissed or transferred employee is executed immediately. The execution is considered completed from the moment the specified employee is actually admitted to the performance of his previous duties, following the issuance of an order by the administration to cancel his illegal dismissal or transfer order.

If the requirements of the court were not fulfilled without a good reason, then the bailiff applies to the debtor penalties and other measures provided for in Article 85 of the Federal Law "On Enforcement Proceedings". In addition, assigned new term execution of a judgment. Please note that each subsequent violation by the debtor of the new deadlines for the execution of the executive document doubles the amount of the fine.

In particular, such measures include a fine of 200 minimum wages for failure to execute, without good reason, an executive document obliging the debtor to take certain actions or refrain from doing them within the time period established by the bailiff.

In case of repeated non-execution without good reason of the executive document, the bailiff shall submit to the relevant authorities a submission on bringing to administrative or criminal liability, a citizen or official who, by virtue of their official duties, must execute the executive document.

If it is not possible to execute the court decision, then the bailiff issues a decision to return the writ of execution to the court or other body that issued it. The ruling may be appealed to the appropriate court within 10 days.

In accordance with Article 74 of the said Law, if the employer refuses to reinstate an illegally dismissed or transferred employee, the bailiff applies to the court for a ruling on the payment of average earnings to the employee during forced absenteeism or the difference in earnings for all the time from the date of the decision to reinstate the employee to the day the court decision is executed.

Another commentary on Art. 396 of the Labor Code of the Russian Federation

1. The decision to reinstate an employee unlawfully dismissed or transferred to another job, taken by the labor dispute resolution body (including the court), is subject to immediate execution.

The immediacy of the execution of the decision on reinstatement means that the employee must be reinstated on the day after the court decision (without waiting for the decision to enter into force).

The employer has the right to appeal against the court decision on reinstatement at work both in the cassation and in the supervisory procedure. But the filing of a cassation, and even more so a supervisory appeal, cannot be a basis for suspending the execution of a court decision. The employee must return to the job from which he was fired or to which he was transferred immediately after the court has ruled in his favor.

2. If the employer delays the execution of the court decision on the reinstatement of the unlawfully dismissed or transferred to another job, the court that made such a decision shall issue a ruling on the payment to the employee of the average earnings or the difference in earnings for the entire time of the delay.

3. In addition, officials representing the interests of the employer in labor relations, for failure to comply with a court decision, may be brought to justice. various types legal responsibility.

An official, through whose fault the employer will have to make cash payments in favor of the employee, may be held liable.

4. In practice, situations are possible when the employer, following the decision of the court of first instance, issued an order to reinstate the employee at work, and then, in a cassation or supervisory procedure, this court decision was canceled. The question arises: is the employer, after making the appropriate decision in his favor, entitled to issue an order canceling the previous one issued in connection with the decision of the court of first instance to reinstate the employee at work?

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 an unfair attitude on the part of the authorities. Wrongful dismissal must be challenged without fail.

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, 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, a medical commission has not been held that 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 the true reasons for the dismissal. 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, and it will be longer and more expensive, but there are more chances 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 need to 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. They need to be known in order to accept the right decision whether to ask for 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.

Another positive point is 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 compensation from the employer for moral damage and compensation for loss wages for the entire period that the plaintiff was not working.

Disadvantages of litigation

The only negative will be the length of the consideration of the complaint. Especially if the controversial issue has little evidence. In case of gross violation of 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 recent times judges try to resolve such disputes about reinstatement as quickly as possible, within a month. The process can be delayed only in the case of very controversial 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.

It is advisable, before filing an application with the court, for the last time to try to talk with the head, 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 lawsuit with the judicial authorities at the place of registration 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 an entry on 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 a lower-paid position to be illegal can apply. He can demand compensation through the court for the period that he was forced not to work or received a salary less. Can be sued by employees who do not agree with the wording of the reasons for their dismissal in work book.

Also, an employee of an enterprise can complain through the courts about a boss who did not respect confidentiality when processing employee 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.

The court hears the case different sides, 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. Worker in this process is called the plaintiff, as 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 puts forward 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 requires additional payments, for example, payment of a lawyer or compensation for moral 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 worker does not want to spoil his impeccable reputation 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 a court decision and receiving 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 Labor Code is not observed in production 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.

According to Part 1 of Art. 394 of the Labor Code of the Russian Federation, in the event that a dismissal or transfer to another job is recognized as illegal, the employee must be reinstated in his previous job by the body considering the individual labor dispute. And the employment contract with a person taken in the place of the dismissed person is subject to termination due to circumstances beyond the control of the parties (paragraph 2 of part 1 of article 83 of the Labor Code of the Russian Federation) - in connection with the reinstatement of the employee who previously performed it, by decision state labor inspectorate or court (they are the bodies that can reinstate an employee).
At the same time, according to Art. 392 of the Labor Code of the Russian Federation, an employee has the right to apply to the court for resolution of an individual labor dispute within three months from the day he learned or should have learned about the violation of his right, and in disputes about dismissal - within one month from the date he was served with a copy of the order on dismissal or from the date of issuance of his work book.
In accordance with Art. 356 of the Labor Code of the Russian Federation and by virtue of the powers vested in the federal labor inspectorate, state labor inspectors supervise compliance by employers with labor legislation and other acts containing norms labor law, through inspections, issuance of binding orders to eliminate violations, drawing up protocols on administrative offenses within the limits of authority, preparation of other materials (documents) on bringing the perpetrators to justice in accordance with federal laws and other regulatory legal acts of the Russian Federation.
Thus, in the event of receiving a court decision or an order from a state inspector to reinstate a dismissed employee, the employer must comply with this. At the same time, the decision to reinstate an illegally dismissed person at work is subject to immediate execution. If the employer delays the execution of such a decision, the body that made the decision issues a ruling on payment to the employee for the entire time of the delay in the execution of the decision of the average earnings or the difference in earnings (Article 396 of the Labor Code of the Russian Federation, Article 211 of the Code of Civil Procedure of the Russian Federation).

Note. The employer may also reinstate an employee in his previous job on the basis of a decision made independently. But in this case, it is no longer possible to dismiss a new employee on the basis of paragraph 2 of part 1 of Art. 83 of the Labor Code of the Russian Federation.

Restoring an old employee

As already mentioned, a court order or a court decision on reinstatement is subject to immediate execution (Article 211 of the Code of Civil Procedure of the Russian Federation), that is, reinstatement at work is not made dependent on the moment the court decision comes into force.

Note. Court decisions come into force after the expiration of the one-month period for appeal, if they have not been appealed (Articles 209, 321 of the Code of Civil Procedure of the Russian Federation).

In accordance with paragraph 4 of Art. 36 federal law dated 02.10.2007 N 229-FZ "On Enforcement Proceedings" (hereinafter - Law N 229-FZ), the requirements contained in the executive document for the reinstatement of an illegally dismissed employee must be executed no later than the first working day after the day the executive document is received by the judicial department bailiffs.
The requirement for reinstatement at work is considered to be actually fulfilled if the dismissed person is allowed to perform his previous job duties and the order (instruction) on his dismissal is canceled (part 1 of article 106 of Law N 229-FZ). According to Art. 428 Code of Civil Procedure of the Russian Federation the court issues performance list immediately after the decision is made.
As for the requirements of the state labor inspector to reinstate the employee at work and cancel the dismissal order, the legislation does not provide for their immediate execution by the employer, so he can first appeal against the inspector's order. By virtue of Art. 357 of the Labor Code of the Russian Federation, the employer has the right to appeal this order within 10 days from the date of its receipt.
So, within a day from the date of receipt of a copy of the decision of the bailiff, the employer must allow the employee to perform his job duties and issue an order. It is necessary to familiarize the employee with the order against signature.
Let's give an example.

Limited Liability Company "Granit"
(LLC "Granite")

14.12.2012
Kursk

Order N 35-k
on the reinstatement of I.G. Kaplina

In pursuance of the decision of the Leninsky District Court of Kursk dated December 13, 2012 in civil case N 3-15478 / 12

I ORDER:
1. Cancel Order No. 25-k dated October 25, 2012 "On the termination (cancellation) of an employment contract with an employee (dismissal)".
2. To allow Kaplina Irina Grigorievna to perform labor duties as an accountant-cashier from 12/15/2012.
3. Head of the personnel department M.A. Nikishina:
- notify I.G. Kaplin about the cancellation of the dismissal order, as well as the date from which she should start working;
- make corrections to the personal card and work book of I.G. Kaplina.
4. Chief Accountant M.A. Thunderous:
- pay I.G. Kaplina average earnings during forced absenteeism in the amount of 25,152 rubles;
- pay also compensation for non-pecuniary damage in the amount of 1000 RUB.
Reason: writ of execution of December 13, 2012 N 000154.

Director Kremnev V.V. Kremnev

Familiarized with the order:
Head of the Human Resources Department Nikishina M.A. Nikishina
Chief Accountant Valova S.R. Valova
Accountant-cashier Kaplina I.G. Kaplina

When an employee is reinstated, entries are made in the personal card and work book. In the "Additional Information" section of the personal card, it is necessary to enter that the employee has been reinstated by a court decision (indicating his details), and cross out the record of dismissal. The data entered in the personal card is certified by the signature of a personnel officer (Decree of the State Statistics Committee of Russia of 01/05/2004 N 1 "On approval of unified forms of primary accounting documentation for recording labor and its payment").

An entry in the work book is made as follows:
- column 3 indicates the full, and then the abbreviated name of the organization;
- in column 1 after the name of the organization - serial number;
- in column 2 - the date of making the entry;
- in column 3 they write "The entry for the number such and such is invalid, restored to the previous job";
- in column 4, a reference is made to the order (instruction) or other decision of the employer on reinstatement at work (clause 1.2 of the Instructions for filling out work books, approved by Decree of the Ministry of Labor of Russia dated 10.10.2003 N 69 (hereinafter referred to as the Instruction)).

Note! It would be a mistake to give in the work book a reference to a court decision or other document on the basis of which the employee was reinstated at work.

Sometimes an employee does not want to "spoil" the work book with such entries. By virtue of clause 33 of the Rules for maintaining and storing work books, making work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of 04/16/2003 N 225, if there is an entry in the work book about dismissal or transfer to another job, recognized as invalid, upon his written application, a duplicate of the work book is issued at the last place of work.
In this case, in the upper right corner of the first page of the duplicate work book, the inscription "Duplicate" is made. On the first page ( title page) of the previous work book, it is written "A duplicate was issued instead" indicating its series and number (clause 1.2 of the Instruction). Entries from the employee's work book are reproduced in the duplicate, with the exception of the dismissal record, which was declared invalid.
In addition, the employee responsible for maintaining the time sheet must make changes to it by compiling a corrective time sheet.

What are the benefits for a reinstated worker?

According to Art. 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate the employee for earnings that he did not receive in all cases of illegal deprivation of his opportunity to work, in particular, if he did not receive earnings as a result of his illegal dismissal. The decision on the payment of average earnings for the entire period of forced absenteeism is taken by the court. In addition, on the basis of a court decision, the employer is obliged to pay monetary compensation to the reinstated employee for moral damage caused to him by illegal dismissal. The amount of such compensation is determined by the court (parts 2, 9 of article 394 of the Labor Code of the Russian Federation).
When reinstating an employee, the question arises: when should the employer pay these amounts? After all, unlike the requirement to reinstate the employee at work (which must be executed immediately, regardless of when the court decision comes into force), neither the Labor Code nor the Code of Civil Procedure of the Russian Federation provides for the immediate execution of the decision in terms of collecting average earnings in favor of the employee during the forced walk. According to Art. 211 of the Code of Civil Procedure of the Russian Federation, the average earnings for the period of forced absenteeism, not exceeding three months, are subject to immediate recovery.
In addition, if the decision to reinstate the employee is canceled, the employer will no longer be able to withhold the average earnings allegedly paid for forced absenteeism. So, by virtue of Art. 397 of the Labor Code of the Russian Federation, the reverse recovery from the employee of the amounts paid to him in accordance with the decision of the body for the consideration of an individual labor dispute, when the decision is canceled by way of supervision, is allowed only in cases where the canceled decision was based on false information reported by the employee or forged documents submitted by him.
However, the Supreme Court, after analyzing the legal norms contained in various legislative acts, concluded that the obligation of the employer to pay wages during forced absenteeism occurs simultaneously with the cancellation of the dismissal order and the reinstatement of the employee in his previous position. The specified payment is an integral part of the process of reinstatement of the employee at work (Clause 6 of the section "Civil Court Practice" of the Review of Legislation and Judicial Practice of the RF Armed Forces for the II quarter of 2010, approved by the Resolution of the Presidium of the RF Armed Forces dated September 15, 2010; Determination of the RF Armed Forces dated April 23 .2010 N 5-B09-159).

Note that if, upon dismissal of an employee, he was paid severance pay, then when reinstating him in his previous job or recognizing his dismissal as illegal, the paid allowance is subject to offset.
When determining the amount of payment for forced absenteeism, the average earnings collected in favor of the employee during this time shall not be reduced by:
- the amount of salary 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 employee within the period of paid absenteeism;
- unemployment benefit, which he received during the period of forced absenteeism (paragraph 62 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2 "On the application by the courts Russian Federation Labor Code of the Russian Federation).

Note. If the employer delays the execution of the court decision, the court issues a ruling on payment to the employee for the entire time of the delay in the execution of the decision of the average earnings or the difference in earnings (Article 396 of the Labor Code of the Russian Federation).

Difficulties in reinstating an employee arise with compensation for unused vacation, which is paid upon dismissal. Can the employer keep her, because when reinstated at work, the legal status of the employee is also restored? His right to leave and the length of service giving the right to leave remain, which, by virtue of par. 4 hours 1 tbsp. 121 of the Labor Code of the Russian Federation is not interrupted.
An employee is entitled to leave regardless of the fact that he was paid compensation. The employer is not entitled to deduct overpaid compensation from the employee, since the list of cases when the employer can make deductions in accordance with Art. 137 of the Labor Code of the Russian Federation, is exhaustive and this situation not included in this list.
Clarifications on this issue were provided by Rostrud in Letter N 853-6-1 dated 14.06.2012: if the reinstated employee wants to use the vacation in full, the employer recalculates and provides this vacation with offset payments made as compensation for the unused part of the vacation. In other words, the payment for the unused part of the vacation is recalculated, which is taken into account when calculating earnings.

Responsibility for failure to comply with the requirements for the reinstatement of an employee

Please note that if the employer does not comply with the court decision to reinstate the dismissed employee within 24 hours from the receipt of a copy of the bailiff's decision, he will have to pay a performance fee. By virtue of Art. 105 of Law N 229-FZ, the bailiff issues an order to collect the enforcement fee and sets the debtor a new deadline for execution. The performance fee from the organization is 5000 rubles.
If the employer does not fulfill the requirements within the newly established period, the bailiff draws up a protocol on an administrative offense against the debtor and sets a new deadline for execution.
According to Art. 17.15 of the Code of Administrative Offenses of the Russian Federation, failure by the employer to fulfill the requirements within the time period established by the bailiff after the issuance of a decision to collect the performance fee, entails the imposition of an administrative fine: on officials - in the amount of 10,000 to 20,000 rubles; on the legal entities- from 30,000 to 50,000 rubles.
Failure to comply with the requirements contained in the executive document within the time period newly established by the bailiff after the imposition of an administrative fine, entails the imposition of an administrative fine: on officials - in the amount of 15,000 to 20,000 rubles, on legal entities - from 50,000 to 70,000 rub.

Note. The enforcement fee is returned to the debtor in full in cases of cancellation of: a judicial act, an act of another body or official, on the basis of which a writ of execution was issued; executive document; resolutions of the bailiff-executor on the collection of the performance fee (Article 112 of Law N 229-FZ).

It should also be noted that in case of non-fulfillment of the requirement contained in the executive document to reinstate the illegally dismissed at work, the damage caused to the organization by paying the specified employee amounts of money may be recovered from the head or other employee of this organization guilty of non-execution of the executive document (Article 120 of the Law N 229-FZ).

We vacate the position

So, if before the reinstatement of the dismissed employee, the employer has already hired another to his position, then simultaneously with the registration of the restoration, it is necessary to draw up the procedure for dismissing the employee working on it. At the same time, the employer cannot immediately dismiss the newcomer. First, he must offer a transfer to another position: all vacant positions available in the area are offered (both the corresponding qualifications of the employee, and lower positions or lower-paid work that he can perform, taking into account his state of health). The employer may offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract. The offer of other positions is sent to the employee in writing, against signature of receipt. At the same time, the employee expresses his decision (whether he agrees or disagrees with the transfer) either on the notification itself or in a statement addressed to the head.

Note! If the position of the dismissed employee was reduced, the employer will have to make changes to the staffing table.

If the employee agrees to another position, a transfer is made: an additional agreement is concluded to the employment contract, an order is issued and entries are made in the employee's personal card and work book. If he refuses the offered vacancies or there are none, the employer has the right to fire him. An employment contract with such an employee must be terminated on the grounds provided for in paragraph 2 of part 1 of Art. 83 of the Labor Code of the Russian Federation, - reinstatement at work of a person who previously performed this work, by decision of the state labor inspectorate or court.
Question: Is it possible to dismiss a pregnant employee on this basis? Yes, it is possible, since this ground occurs due to circumstances beyond the control of the parties, and an employment contract cannot be terminated with a pregnant employee only at the initiative of the employer. The same applies to the dismissal of an employee during the period of his temporary disability and during the period of vacation, which is not allowed only at the initiative of the employer.
So, the dismissal is formalized by an order, with which the employee should be familiarized against signature. As a basis, the order indicates the details of the court decision on the reinstatement of the employee who previously performed this work, and the document in which the employee’s refusal to be transferred to another position is recorded. If he refuses to sign, an appropriate entry is made in the order.
On the day of dismissal, it is necessary to make the final settlement with the employee. At the same time, in addition to lost wages and compensation for unused vacations, it is necessary to pay a severance pay in the amount of two weeks of average earnings. An employment or collective agreement may establish an increased amount of severance pay (parts 3, 4 of article 178 of the Labor Code of the Russian Federation). It is also necessary to give the employee a work book with a record of dismissal. The entry should look like this: "Fired due to the reinstatement by a court decision at work of an employee who previously performed this work, clause 2 of part 1 of Article 83 of the Labor Code of the Russian Federation" or "Dismissed due to the reinstatement by decision of the state labor inspectorate at work of an employee who previously performed this work, clause 2 of part 1 of article 83 of the Labor Code of the Russian Federation.

Cancellation of the decision to restore

Despite the fact that the employee has been reinstated at his former place of work, the employer has the right to appeal against the court decision on reinstatement, which is subject to immediate execution, in the appeal and cassation proceedings, as well as in the supervisory procedure (Articles 320, 376, 391.1 of the Code of Civil Procedure of the Russian Federation).

Note. An appeal can be filed by the employer within a month from the date of the final court decision through the court that made the decision (Article 321 of the Code of Civil Procedure of the Russian Federation), a cassation appeal is filed with the cassation instance within six months from the date the court decision enters into legal force and upon provided that before the day it comes into force, the employer has exhausted other methods of appeal established by the Code of Civil Procedure of the Russian Federation (part 2 of article 376 of the Code of Civil Procedure of the Russian Federation). A supervisory appeal is filed directly with the Supreme Court of the Russian Federation within three months from the date of entry into force of the court decision or ruling listed in Part 2 of Art. 391.1 Code of Civil Procedure of the Russian Federation (Art. 391.2 Code of Civil Procedure of the Russian Federation).

Decisions of state labor inspectors may be appealed against to the relevant head of subordination, the chief state labor inspector of the Russian Federation and (or) to the court. The decisions of the chief state labor inspector of the Russian Federation can be appealed to the court (Article 361 of the Labor Code of the Russian Federation). The appeal period, as mentioned above, is 10 days from the date of receipt (Article 357 of the Labor Code of the Russian Federation).
Recall that for an employee by virtue of Part 1 of Art. 392 of the Labor Code of the Russian Federation, the period for applying to the court for disputes about dismissal is one month from the date of delivery of a copy of the dismissal order to him or from the date of issuance of the work book. Therefore, if a case is initiated in court to challenge the order to cancel the order to dismiss the employee outside the specified period, the employer has the right to declare the application of the consequences of missing the deadline by the employee.
If, as a result of consideration of the complaint, a ruling is made to cancel or invalidate the decision of the court or the labor inspectorate to reinstate the employee, then the employment contract with the employee is terminated, respectively, under clause 11, part 1, art. 83 of the Labor Code of the Russian Federation. In this case, it is not necessary to cancel the order to restore, a new one is issued - to dismiss the employee in connection with the cancellation of the decision to restore. Records are made in a personal card and work book. Here is an example of filling out a work book.

N records	Admission information for work, translation into another constant jobs, qualifications, dismissal (indicating reasons and reference to article, statute)	Name, date and number document, on basis whom made record
N records		Name, date and number document, on basis whom made record


	Limited
	responsibility
	"Granite" (OOO "Granite")
	Hired	Order from
	cashier accountant.

	Labor contract	Order from
	canceled due to
	single rough
	violation of labor
	duties -
	absenteeism, subparagraph "a"
	paragraph 6 of the first part
	article 81 of the Labor
	Code of the Russian
	Federation.
	Specialist Murzina
	A.K. Murzina
	M.P. Kaplina
	Limited
	responsibility
	"Granite" (OOO "Granite")
	Entry No. 8	Order from
	invalid,
	restored to
	previous work.
	Labor contract	Order from
	discontinued due to
	annulment of the court decision on
	recovery
	worker at work,
	paragraph 11 of the first part
	article 83 of the Labor
	Code of the Russian
	Federation.
	Specialist Murzina
	A.K. Murzina
	M.P. Kaplina

In conclusion, we note that the restoration of a former employee with the simultaneous dismissal of a newly hired one is not a very pleasant and rather complicated procedure. And the reason for this situation, as a rule, is a violation by the employer of the procedure for dismissal on his own initiative (when reducing staff, for absenteeism, etc.). As an example, consider one of the court decisions.
G. worked as an executive director of the representative office of LLC "B-L-G Logistics Solutions GmbH" (hereinafter - LLC) on the basis of an employment contract from 23.08.2011. On January 13, 2012, the director of the representative office, due to financial inexpediency, made changes to the staffing table of the representative office from March 13, 2012, according to which the position of executive director, which was occupied by G., was excluded from the staffing table. with a reduction in the staff of the organization's employees on the basis of paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation with the payment of severance pay. G. was acquainted with the dismissal order on 03/23/2012.
At the same time, no vacant positions for G. were offered. In violation of Part 2 of Art. 180 of the Labor Code of the Russian Federation, a notice of the upcoming dismissal and a proposal to transfer to another job dated 01/13/2012 were handed to her on 03/23/2012 - on the day of familiarization with the dismissal order, thus, the LLC violated the dismissal procedure established by law: G. was not warned in in writing within the period prescribed by law about the upcoming reduction of her position, no vacancies were offered to her, in addition, three days after the reduction of the position of the executive director of the LLC, another position was introduced - development director.
When G. applied to the court, her demands for recognition of her dismissal as unlawful, reinstatement of her at work and collection of average earnings and compensation for non-pecuniary damage were satisfied. The company filed an appeal with the court. In its complaint, LLC referred to the fact that G. had been warned about his dismissal due to e-mail, and also that she submitted an application for consent to dismissal in the event of a lump sum payment of monetary compensation in the amount of two months average daily earnings 03/27/2012, that is, after the termination of employment. But these arguments were not accepted by the appellate instance and the decision of the court of first instance was left unchanged, and the complaint of LLC was not satisfied (Appeal ruling of the Moscow City Court dated November 08, 2012 in case No. 11-26319).

If a former employee organization proves in court the illegality of his dismissal, then he can be reinstated at work. Then the accountant and personnel officer will have a lot of problems: with granting leave to a reinstated employee, with the dismissal of an employee who has taken a vacant position, with adjusting the time sheet, etc. Today we will answer questions from our readers on this difficult topic.

The settlement agreement has the force of a court decision

A.I. Petrenko, Murmansk

The legal dispute with the employee ended with the conclusion of a settlement agreement, according to which we must reinstate him at work as illegally dismissed.
The settlement agreement was approved by the court ruling. Are we entitled on this basis to dismiss a new employee who has already been hired to replace the dismissed one? Indeed, according to the Labor Code of the Russian Federation, the basis for dismissal is a “decision”, and not a “definition” p. 2 h. 1 art. 83 of the Labor Code of the Russian Federation.

: You are obliged to reinstate a dismissed employee and have the right to dismiss a newly hired one. A settlement agreement approved by a court ruling has the same force as a court decision. Part 3 Art. 173 Code of Civil Procedure of the Russian Federation; Clause 15 of the Decree of the Plenum of the Supreme Court of June 24, 2008 No. 11. After all, the forms of court decisions can be different - not only a decision, but also a definition, a court order, a decision. Art. 13 Code of Civil Procedure of the Russian Federation. But all of them are obligatory for you.

However, do not forget that you can fire a new employee only after offering him other vacancies that your organization has in a given area (settlement) Art. 83 of the Labor Code of the Russian Federation; clause 16 of the Decree of the Plenum of the Supreme Court of March 17, 2004 No. 2. And not only those that correspond to his qualifications, but also those who are lower (lower paid). It is necessary to offer vacancies in another locality only if it is provided for by the collective / labor agreement or agreements. The offer of vacancies and the refusal of them must be made in writing.

If you do fire an employee, be sure to pay him a severance pay equal to two weeks of average earnings. Art. 178 Labor Code of the Russian Federation. At the same time, it is impossible to withhold excessively accrued vacation pay (if they were paid) from the estimated amounts. Art. 137 of the Labor Code of the Russian Federation.

Pregnancy is not an obstacle to dismissal in connection with the reinstatement of another employee

I.R. Semenov, Lermontov

A pregnant woman works for us at the place of the dismissed employee. And he was restored by court order. What if she can't be fired?

: Alas, you can. During pregnancy, a woman cannot be fired only at the initiative of the administration. paragraph 1 of Art. 261 of the Labor Code of the Russian Federation. And in case of dismissal in connection with the restoration of another employee, there is no initiative from the administration. Such a circumstance is considered independent of the will of the parties. p. 2 h. 1 art. 83 of the Labor Code of the Russian Federation. But if the manager is interested in this employee, he can offer her a transfer to another job.

Cancellation of grounds for dismissal under Art. 83 of the Labor Code of the Russian Federation does not entail the obligation to reinstate an employee

O.I. Kolosova, Moscow

The magistrate disqualified our driver for a year for "drunk driving", and we fired him due to the deprivation of a special license. p. 9 h. 1 art. 83 of the Labor Code of the Russian Federation. And now the court of the supervisory instance recognized the decision of the magistrate as illegal and canceled it. The driver demands to reinstate him at work, but we cannot - we have already taken another person in his place. Are we required to reinstate a fired driver?

: Not. A court decision to set aside a magistrate's order does not, in itself, bind you to anything. If an employee wants to be reinstated at work, then he must demand this in court.

FROM AUTHENTIC SOURCES

Deputy Head of the Federal Service for Labor and Employment

“ The employer is obliged to reinstate the employee at work only if the issue of reinstatement was the subject of consideration in court and a court decision was made on this Art. 394 of the Labor Code of the Russian Federation. In this case, the obligation of the employer also arises to accrue and pay the employee wages for the time of forced absenteeism.

In this case, you will also have a legal basis for dismissing a newly hired employee. p. 2 h. 1 art. 83 of the Labor Code of the Russian Federation.

Forced absenteeism must be reflected in the report card

A.A. Stasyuk, Perm

We fired an employee for absenteeism, but the court declared this decision illegal and ordered us to reinstate him at work. How to reflect this in the spreadsheet?

: If possible, then you need to make corrections to the time sheet, if not (due to lack of space), then make a new time sheet, taking into account changes for the corresponding period.

The period of absence of the employee (starting from the first day after the dismissal and ending with the last day before reinstatement), mark the PT code "Time of forced absenteeism in case of recognition of the dismissal, transfer to another job or suspension from work as illegal with reinstatement at the previous job" or digital code 22 Decree of the State Statistics Committee dated 05.01.2004 No. 1.

The period of absenteeism needs to be adjusted only if the court found the reasons for the absence from work to be valid. So, if the employee has a paid sick leave, then replace the days of absenteeism with the letter code B or digital 19. If the reason for the restoration is different, for example, procedural violations upon dismissal, then nothing can be changed in this part.

The reinstated worker did not show up for work - this is absenteeism

MM. Vereshchagin, Cheboksary

The employee reinstated through the court did not come to work and submitted a letter of resignation of his own free will. How to reflect the days of his absence after recovery in the report card?

: You can put down the letter code HH "Absence for unexplained reasons" or digital 30 for the period from the day the employee was admitted to work until the day of dismissal. And remember that the court decision on reinstatement is binding not only for the employer, but also for the employee himself. He is obliged to go to work, and after submitting a letter of resignation of his own free will, work for 2 weeks (if the administration does not agree to let him go earlier) Art. 80 of the Labor Code of the Russian Federation.

Therefore, if a reinstated employee is notified that he was allowed to work, but does not come, then this is a reason to start the procedure for dismissing him for absenteeism.

The period of forced absenteeism is included in the vacation period

O.I. Vernitsky, Omsk

We paid the employee all the amounts indicated in the court decision: the average earnings for several months of forced absenteeism and compensation for non-pecuniary damage. But he worked a week after the restoration and is now leaving. What payments are due to him?

: He is entitled to the usual payments upon dismissal of his own free will:

salary for hours worked;
compensation for unused vacation. Keep in mind that when calculating compensation, the period of forced absenteeism is included in the length of service. Art. 121 Labor Code of the Russian Federation, so count it as hours worked. But the average earnings paid to the employee for this period, and the period itself, do not need to be taken into account in the calculation sub. "a" p. 5 of the Regulation, approved. Decree of the Government of December 24, 2007 No. 922.

The reinstated employee has the right to take annual leave

A.V. Seleznev, Kazan

The employee was fired on June 18, 2012 for repeated non-compliance official duties. On April 8, 2013, he was reinstated in his previous position by a court decision. Now he is demanding that he be given paid leave during his forced absenteeism, and we do not have such an opportunity now.
During what period after the restoration is the organization obliged to provide the employee with leave during forced absenteeism?

: Vacation is not granted for the period of forced absenteeism, but for the working year. Reinstatement at work means the restoration of all labor rights of the worker a. Therefore, the period of forced absenteeism is considered a period of work Art. 121 Labor Code of the Russian Federation, and the working year is counted like everyone else - from the date of employment (and not from the date of restoration).

TELLING THE MANAGER

The period of forced absenteeism is taken into account when assessing "holiday" rights reinstated worker. That's why vacation it should be provided to him before the end of the current working year(counting from the date of initial employment).

The restored employee has the right to leave in accordance with the general procedure. This employee is not on the schedule (due to dismissal). Therefore, it should be assumed that leave should be granted annually about Art. 122 of the Labor Code of the Russian Federation. That is, no later than the end of the current working year, if the employee does not have the right to a benefit to provide leave at any time convenient for him Art. 123 Labor Code of the Russian Federation.

Suppose your employee's current working year is from July 1, 2012 to June 30, 2013. Therefore, leave for him must be granted no later than June 30, 2013. You can transfer it to the next working year only if two conditions are met Art. 124 Labor Code of the Russian Federation:

production needs;
the written consent of the employee.

First they kicked out, now we don't let go

A.E. Osadchaya, Volgograd

Our driver was reinstated at work on the basis of an order from the labor inspector. After that, there was a court that recognized this order as illegal and canceled it. But during this time, the management has changed, and the new director no longer wants to fire the employee. How to arrange it correctly?

: Formally, you must first dismiss the employee after the entry into force of the court decision p. 11 h. 1 art. 83 of the Labor Code of the Russian Federation and then take it to work as usual. The same opinion is shared by Rostrud.

FROM AUTHENTIC SOURCES

“The provisions of paragraph 11 of part 1 of Art. 83 of the Labor Code of the Russian Federation that an employment contract is subject to termination upon cancellation of a court decision on reinstatement at work are imperative. After termination of the employment contract, a new employment contract may be concluded with the employee.

Federal Service for Labor and Employment

Of course, if the employee agrees to continue working for you, then it would be easiest to do nothing. But then there is a risk that some zealous inspector will fine you later for violating the Labor Code Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

A reinstated worker does not have to return holiday compensation

E.A. Bunko, St. Petersburg

Upon dismissal, the employee was paid compensation for unused vacation. Should the employee, after being reinstated at work by a court decision, return this compensation to the employer?

: There is no such obligation, you can only offer the employee to do this voluntarily. There are no grounds for withholding previously paid compensation from the salary of the reinstated employee or from other accrued payments either. Art. 137 of the Labor Code of the Russian Federation.

However, Rostrud considers it possible to offset the amount paid when granting the next vacation. After all, she compensated for part of the vacation not used by the employee, and now the employee uses this part Rostrud Letter No. 853-6-1 dated June 14, 2012. That is, you will need to make a new calculation of vacation pay at the time when the employee goes on vacation, and subtract the previously paid compensation from the accrued amount.

In case of reinstatement of an employee, a new entry must be made in the book of accounting for the movement of work books

V.M. Chelishcheva, Izhevsk

How to correctly enter information about the work book of a reinstated employee into the book of accounting for the movement of work books?

: This issue is not regulated by law. Since this accounting book does not reflect admission / dismissal, but only the movement of work books, it seems that the mark on the issuance of a work book on the day of dismissal clause 41 of the Rules, approved. Decree of the Government of April 16, 2003 No. 225 no need to cancel. After all, it was really issued to the employee and was not stored in the organization during his absence.

After the restoration of the employee and the transfer of the work book to personnel service make a new entry in the accounting book under the next serial number with a note that the employee has been reinstated at work.

And in column 9 of the book of accounting for the movement of work books (intended to indicate the details of the document on employment), you must indicate the data of the order for reinstatement at work. For example, like this: “01/28/2013 No. 20-K (on reinstatement)”.

Restoration at work by a court decision is carried out the next day after the issuance of the relevant decision. Moreover, the order of the procedure provides not only for the return to a person of the opportunity to work in his previous position, but also involves a number of mandatory payments. Directly, the algorithm of actions for restoration at the workplace includes a number of stages, the mechanism for the implementation of which is quite clearly honed and cannot be changed.

Illegal dismissal: main violations

All kinds of labor disputes between the employer and the employee are allowed to be resolved in court proceedings. In particular, if there are clear violations of the provisions Labor Code concerning the dismissal of an employee, he is vested with the absolute right to file a lawsuit with the judicial authorities (paragraph 391 of the Labor Code). Moreover, if the citizen's arguments are considered fully justified, his request will be granted. What does it mean to be restored to the same place of work.

The most common violations committed by employers upon dismissal are:

dismissal during the employee's stay on sick leave or on vacation (Article 81 of the Labor Code);
lack of real grounds for terminating an employment relationship (for example, a person’s non-compliance with the dress code cannot act as a motive for dismissal);
dismissal during maternity leave or at the time of pregnancy;
violation of the dismissal procedure.

If the statement of claim received from the dismissed citizen is considered in a positive way, the management of the organization will need to reinstate him in his position. In this case, the opinion of the administration and its attitude towards a particular employee does not play a role.

Recovery order

On the basis of paragraph 396 of the Labor Code of the Russian Federation, a court decision certifying the fact of the reinstatement of a dismissed employee is subject to immediate execution. In most cases, on the day following such a verdict. If the management does not agree with the court ruling, it is allowed to launch an appeal procedure, but only after the implementation of the decision.

The recovery procedure consists in the sequential execution of the following steps:

issuance of an order;
correction of timesheets;
provision of due payments;
employee leaving for work.

The stages differ in a lot of nuances, so it does not hurt to consider them in a little more detail.

Order

Here it would be more correct to say that it will be necessary to issue several orders, and not one. First of all, a document is being prepared canceling the order to terminate work activities. Paper does not have a single form. It all depends on the standards of a particular office.

However, in any case, the act will need to indicate the following information:

the name and full details of the institution;
manager data;
date of issue of the order and its number;
details of the order to be canceled;
information about the restored employee - full name, position, salary;
a note on the grounds for the return of the workplace - a court decision indicating its date and number;
leader's signature.

After signing the document for the enterprise, an order is issued for the restoration of a person at the place of work, where the above data are entered, as well as materials on making adjustments to the work book and schedule. It also indicates the amount of compensation to be paid.

Making changes to the worksheet

Correction of marks in the timesheet of hours worked consists in entering the name and position of the restored employee in a separate cell of such a document and indicating the PV code or the number 22 opposite his data. If this cannot be done, you will need to prepare a new timesheet.

Entry in the work book

When an employee is reinstated, the entry in the work book recorded upon dismissal does not change. However, a note is made next to it that the wording is no longer valid, and the person has been returned to his position. The basis is the corresponding order. By a similar principle, adjustments are made to a personal card.

When canceling the dismissal order, the administration of the enterprise is obliged to provide the employee with payments that compensate for the forced absence (truancy). In this case, the time will be paid according to his average earnings (Article 394 of the Labor Code).

In addition, when filing a claim with the court, an unfairly dismissed employee has the right to demand compensation for non-pecuniary damage and all kinds of legal costs. If at the time of the forced absence from work a person was sick, then the employer will need to pay additional sick leave.

The beginning of the performance of labor duties

As for when to go to work after issuing a reinstatement order, the employee must appear at the place of work the next day after signing the document. True, in this case, the employer is obliged to notify the citizen of the deadlines in a timely manner.

If an employee is aware of the date of resumption of activities, but does not appear on time, then his employer has a good chance to initiate the dismissal process again.

Features of the recovery procedure

There are a number of moments when it is difficult to return to the previous position of an employee who was dismissed earlier.

This happens in the following cases:

The position has been reduced. In this case, the manager must draw up an order to cancel the decision to reduce the state unit. After that, the person is returned to his former position.
The position is occupied by a newly hired employee. In this case, the new employee is offered a job of a different order, and the former employee is reinstated. The expression of refusal on the part of a person who has recently entered the service is a motive for his dismissal.

Another option is the liquidation of the enterprise in full. In this case, a return to work is in principle not possible, but the right to payments is retained. Compensation must be provided by the body that made the decision to close the enterprise.

Is there a statute of limitations

There is a statute of limitations for litigation in the field of labor law. The period of appeal to a higher authority in case of disagreement with the motives of the employer that caused the need for dismissal is provided for in Article 392 of the Labor Code. The deadline is 30 days from the date of reading the termination order labor activity or from the date of issue of the work book.

However the period may be extended if there are good reasons. These may be:

serious illness of the dismissed person or his close relative;
stay outside the settlement and so on.

If a we are talking on other labor disputes, the limitation period is extended to 3 months. The countdown is from the moment when the employee learned about the violation of his rights and infringement of interests as an employee.

Dismissed illegally, carried out in accordance with generally accepted regulations. Moreover, a person should be returned to work immediately, in other words, immediately after the court makes an appropriate decision. In addition, the employer is obliged to pay compensation to the citizen for those days that were involuntarily missed. The calculation of the payment is made taking into account the average earnings.