There is such a fashion for employers to dismiss workers for no reason, just like that, the gentleman wanted to, wanted the punishment, slashed him from the shoulder and fired him. Joking jokes! But is it legal? How can they just lose their jobs? Of course not, there must be certain reasons for dismissing an employee, and such reasons must be enshrined in law, let's look at what and in what situations the employer can really fire the employee!
What are the legitimate reasons an employer has to quit?
Any dismissal should be justified by law, and all the reasons for the dismissal that seem at least unfounded or frankly invented or even suspicious, should be checked for legality. Below I will list all legal reasons for terminating an employment contract with an employee:
- The employer has the right to dismiss the employee, that is, to terminate the contract with him in case of liquidation of the organization or if you worked for an individual entrepreneur and he stops his activity, in simple words you have the right to dismiss if the organization stops your activity,
- If you fall into the number of employees that will be reduced. But be aware that if you reduce the number of employees, you must be notified 2 months before the start of the reduction,
- If, according to the results of the certification, the employee does not correspond to the position due to insufficient qualifications, please note that this fact must be confirmed by the certification results,
- The head or chief accountant may be dismissed if the owner of the property of the organization changes,
- The employer has the right to terminate the employment contract with the employee if the employee has repeatedly failed to fulfill the duties assigned to him without good reason. Moreover, violation means repeated violation of labor legislation, violation of obligations under an employment contract, violation of internal labor regulations at the workplace, violation of job descriptions, regulations, instructions, orders of the employer, technical rules. Or if the employee already has a warning or reprimand documented and he again neglected the performance of labor duties, then this also threatens with dismissal,
- The employer has the right to dismiss if the employee once grossly violated his labor duties: a) the employee skipped work, that is, was absent from his workplace throughout the working day, and also if the employee was absent from the workplace for 4 hours in a row during the working day b) If the employee came to work in a state of alcohol or drug intoxication or appeared in such a state on the territory of the employer. The state of alcohol or drug intoxication should be officially recorded, an examination should be carried out c) a gross violation is also the disclosure of secrets protected by law, which became known to the employee in the process of fulfilling work duties, and disclosure of another employee’s personal data is equivalent to a violation of this nature ) a gross violation is theft, including theft of another's property, damage or destruction of such property e) a violation is considered a violation by the employee of labor protection requirements if the violation resulted in an accident, accident, catastrophe, and a causal link between the violation and the consequences should be established by the labor protection commission, and the employee’s actions that constitute a violation of this kind are the threat of an accident, disaster, or industrial accident,
- The reason for the dismissal at the initiative of the employer may be the actions of an employee servicing monetary or commodity values, which served as the reason for the loss of confidence in the employee on the part of the employer. In order to lose the trust of the employer, the employee must make a mistake due to which the employer can no longer trust the employee in this work, the employee must be irresponsible or neglectful of his duties in such a situation, which caused the loss of money or goods,
- If an employee performing educational work in an organization has committed an immoral act, which in its significance is not compatible with further work in this position,
- As for the management team, the employer can dismiss the employee of the managerial staff after the manager makes the wrong decision, which entailed a violation of the safety of property, its illegal use or decision caused damage to the organization, this also applies to the chief accountant. Also, the reason for the dismissal of the head may be a single gross violation of labor duties,
- The reason for the dismissal may be the provision by the employee of the employer of fake (false) documents at the conclusion of the employment contract,
As you can see, there must be well-founded reasons for the dismissal and for no reason the employer has the right to dismiss you.
If you are dismissed due to a reduction in staff, or if you do not correspond to your position, which is confirmed by the results of the certification (clauses 2 and 3 of Article 81 of the Labor Code of the Russian Federation), then the employer must first transfer you from your written consent to another position, including again a vacancy that matches your qualifications for another vacant subordinate position or for a position with a lower wage and if the employee refused the offer and did not give written consent, then only after ie it comes termination of employment. Also, when dismissing under paragraphs 2 and 3 of Article 81 of the Labor Code of the Russian Federation (reduction, non-compliance with qualifications), the employer is obliged to offer the employee all the vacant positions he has in the area.
Also know that the employer does not have the right to dismiss the employee on his own initiative if the employee is on sick leave or on vacation, but there is one exception, the employer can dismiss even if you are on sick leave or on vacation in case the organization is liquidated or an individual entrepreneur with you work ceases to operate.
How to protect your rights in case of illegal dismissal? What to do and where to complain?
As a rule, the dismissal of an employee is executed by order of the employer. The employer is obliged, on the basis of part 2 of article 84.1 of the Labor Code of the Russian Federation, to familiarize the employee with the order for dismissal against signature. If you need a copy of the order, then the employer, on the basis of the same part of the law, is obliged to issue you a copy of the order of dismissal, certified by his signature or seal. On the basis of part 4 of article 84.1 of the Labor Code of the Russian Federation, on the day of dismissal, the employer is obliged to issue the employee a work book and upon written request of the employee to give him copies of documents related to the work certified by signature or seal.
But what should an employee do after an illegal dismissal?
See, according to paragraph 1 of Article 392 of the Labor Code of the Russian Federation, the employee has the right to apply to the dismissal court within 1 month from the date of delivery of a copy of the dismissal order or work book to him. Of course, you can limit yourself to a work book, but still it is better to ask for a certified copy of the dismissal order.
As you can see, you have exactly 1 month, for this category of disputes, the statute of limitations is only 1 month, this is due to the specifics of recovery at work. If you missed this period, then it will be extremely difficult to restore it and only if you had good reasons, for example, a serious illness, caring for a seriously ill loved one.
Many make a mistake and make a complaint to the labor inspectorate, of course, after checking and revealing the fact of illegal dismissal, it will issue an order to eliminate the violation and if the employer does not eliminate it, then it will be fined under Article 5.27 of the Code of Administrative Offenses of the Russian Federation, although this may not come to that, although for legal entities, the fine is quite substantial from 30,000 to 50,000 rubles, which is not to say about individual entrepreneurs, they are fined for such matters in amounts from 1,000 to 5,000 rubles. Therefore, the labor inspectorate for the priority authority is for you, since we have a limitation period of 30 days, and if you file a complaint with the labor inspectorate, according to paragraph 1 of Article 12 of the Law "On the Procedure for Considering Applications of Citizens of the Russian Federation", your application will be considered within 30 days can be considered on the 10th day, maybe on the 20th, or maybe on the 30th and that you will sit and wait for the weather all this time, and then make the labor inspection move, and in the meantime the statute of limitations will pass and restore it will not work.
It is necessary to act immediately and first of all we are preparing a statement of claim to the court, demanding that you be reinstated in your workplace, since the dismissal was not legal. Even if the employer indicated the reason for the Labor Code, this does not mean that your efforts are pointless, the employer will need to prove the fact of violation of labor discipline on your part. And since he will have no evidence, then the court will be on your side.
You, in turn, must also prepare well for the court, prepare your arguments, evidence to state your position, all this is indicated in the statement of claim, as well as indicate which articles the employer violated.
Even if the employer allegedly fired you for absenteeism, he will have to prove that you were not at the workplace without good reason for more than 4 hours in a row or during the whole working day, if he does not prove it, the court will take your side.
It will not be bad for you to bring witnesses who will confirm that you did not violate labor discipline, you were at the workplace. That is, the more evidence you have, the higher your chances in court. Witnesses can also confirm the fact of forced dismissal, that the employer exerted pressure on you and the decision to write a letter of resignation of your own free will was not your initiative. If you are fired for absenteeism, then remember, perhaps on the day when you allegedly went out of work, you signed some documents or did some kind of work, documented with dates, all this can be claimed in court.
It is necessary to file a claim with the district court at your place of residence, that is, at the place of residence of the plaintiff in accordance with clause 6.3 of article 29 of the Code of Civil Procedure of the Russian Federation.
When the court decides to reinstate the employee at work, it turns out that now, by the court’s decision, it is recognized that the employer violated the labor code and dismissed you illegally, which served as a reason for a forced absence.
According to article 234 of the Labor Code of the Russian Federation, an employer has an obligation to compensate an employee for lost earnings in all cases when the employee was unlawfully deprived of the opportunity to work due to the fault of the employer, and the obligation to compensate the employee for lost earnings as a result of forced absenteeism arises from the employer if the employee is illegally removed from work. That is, if you were illegally fired, and then reinstated, then the employer pays you for all the days of forced absenteeism, which is an appropriate order that you and the employer must sign.
Also, if the court decision was in your favor and the court ordered the employer to reinstate you at work, the employer issues an order to reinstate you at work and then makes an entry in your work book on reinstating you at work. Make sure that the employer indicates in the work book that the entry under this serial number is not valid and indicate the order number with which he restored you to work.
Know that a court decision to reinstate you at work must be enforced immediately, no later than the day after this decision is made.
Conclusions from the article!
As you can see, it’s quite possible to recover at work, the main thing is to comply with all deadlines and have evidence of illegal dismissal. And we have considered all legal reasons for dismissal.
The main thing is not to lose heart and do not give up, if it’s hard for you to understand all the intricacies of the law, then just contact a lawyer, he will help you make a statement of claim and will advise you on all issues.
I hope that the article turned out to be useful and helped you with something.
Signs of impending dismissal
An employer may terminate relations with an employee only according to the norms prescribed in the Labor Code of the Russian Federation, taking into account clauses of the collective and individual contracts. In reality, illegal dismissal without explanation is by no means uncommon. This is due to the unwillingness of the organization to lose money or personal motives for which the employee ceased to arrange a boss.
Determine that they are preparing to leave a person without legal grounds, possible according to the following criteria:
- Creating uncomfortable working conditions.
- Frivolous demands, constant nit-picking and comments.
- Humiliation and insults, verbal reprimands on elevated tones.
- Increased control and endless checks.
- Threats, moral and physical pressure.
- Requirements to switch to a lower paid job.
- Salary reduction, delayed payments, lack of bonuses and allowances.
- Greater accountability and reduced authority.
- Fines and other penalties for any reason and without it.
All these factors may indicate that a person is forced to write a letter of resignation of his own free will. It is often openly said that they will dismiss him under such an article with which it will be impossible to get a job in the future, and the improper performance of his duties by an employee will be easily proved in court.
Labor Security Issues
Most workers know where to apply if they are dismissed from work for no reason - to the labor inspectorate. In this case, it is worth trying to neutralize the conflict, as well as to hedge against possible provocations. This will at least give time to prepare for departure, find a new place. The main thing is not to give in to emotions and not to aggravate the situation with rash acts.
Here are some ways to protect yourself:
- Behave politely, restrained, correctly.
- Avoid violations.
- Take a vacation.
- Take sick leave. It reliably protects against dismissal.
- If it comes to the application of sanctions, you should be required to file a complaint in writing, with specific references to norms that are allegedly violated.
- Clearly comply with all work-related requirements, instructions. This applies even to those items that have not been applied in practice for a long time, but which have not been canceled by documents. For example, clean up a workplace or fill out an accounting journal in a timely manner.
- To study labor laws and their actions to motivate them with provisions. Indicate them to the authorities.
- Contact your immediate boss or get a meeting with a higher manager and try to clarify the situation, look for a compromise solution.
- When threats, illegal demands sound, it is better to fix them on the recorder and make a copy of the recording. In the future, if the relevant authorities and the court have to be involved in the situation, this can play a tangible role.
- If the company has a union, it is necessary to apply to it with an official statement. It is possible that he will take the side of the worker.
- Formally declare your intention to contact the supervisory authorities.
By an indicative attitude to the performance of labor duties, the employee can convince the employer who is about to part with him. The need to document violations that are not in fact can reduce the number of claims by management.
Following simple rules can defuse the situation. If dismissal still cannot be avoided, the person will get time to prepare an official base for contacting supervisory and other authorities.
Dismissal by agreement of the parties
If possible, one should not consent to the dismissal of one's own free will, if there is none. The exit may be dismissal by agreement of the parties - all requirements can be prescribed in separate paragraphs (up to the size of the compensation payment).
The advantages of this approach are obvious:
- The document can include those requirements that the employee considers necessary.
- The agreement may stipulate all conditions for termination of relations.
- The material side of the issue will be documented.
- In the future there will be no problems with new employment.
The employer may not agree to such an option, but if you are dismissed for no reason, you should try in any case, explaining to the employer the benefits of such an agreement.
When the employer is not to blame
An employee cannot be fired without explanation. Но прежде чем добиваться справедливости, стоит убедиться, что у руководства действительно нет аргументов для увольнения. Возможно, что за работником все-таки имеются нарушения либо прекращение отношений обусловлено не зависящими от сторон обстоятельствами. These include:
- Прекращение деятельности предприятия, организации, сокращение ее штата. However, this does not eliminate the compensation and documentation of each step of the employer.
- Post mismatch. For example, an employee needs a certain certification result. It’s not easy to challenge him. In this case, the employee must be offered a different position, and if he does not agree to it, the employer has the right to dismiss the employee.
- Repeated failure to perform work duties - but only those that are prescribed in the contract.
- Absenteeism, drunkenness, other violations for which a person was subjected to disciplinary action. Absenteeism must be recorded properly, and intoxication - medical report.
- Violation of safety rules at work, which entailed or could entail consequences in the form of an accident.
- Theft at work.
- Loss of trust in the employee (as a rule, as a result of damage caused by a financially responsible person).
- Autopsy of the provision of false information upon entry to work.
- Loss of qualification recognized in an administrative manner.
- The restrictions established by the medical commission, which relate to the mental or physical abilities of a person and impede the normal performance of a certain work.
In such cases, the employee is more profitable option of dismissal at his own request. After all, this is definitely better than getting a compromising entry in the work book.
Where to contact the employee
In case of illegal dismissal, you should contact the authorities that regulate labor relations. Practice shows that they quite often side with the victim. There are several options what to do if dismissed for no reason:
- Apply to the labor inspectorate. The inspection is obliged to conduct an audit and determine whether the claims of the dismissed are real and whether the actions of the employer are legal. The organization may not fulfill the decision of this instance, but it will be of great help in court.
- Write a statement to the prosecutor. The supervisor has the authority to bring legal entities and their leaders to serious responsibility, and can also stand on the side of the victim in court. In addition, if it came to illegal dismissals, there are probably other violations at the enterprise, and it will be easier for the employer to resolve the issue of payments or reinstatement than to attract too much attention from the prosecutor's office.
- To file a lawsuit in court. Here, the employer will have to prove all the violations allegedly committed by the employee with documents on hand, to motivate every step.
- Contact a reputable law firm. Here they will help with documents, write claims, draw up a lawsuit and represent the interests of the victim in court.
If the dismissal was an unreasonable whim, due to the personal desire of the leader, it will almost certainly come up during the proceedings. In this case, the authorities will help the worker to restore their rights. This process, however, can be a long one, but it is not only a matter of money, but also of justice.
If you have doubts about the legality of the actions of the employer, you should not go about it. At a minimum, you can contact a lawyer - he will tell you what to do if you want to dismiss from work for no reason. It is unlikely to be comfortable to work in the same place, but the chances of receiving various payments, including compensation for non-pecuniary damage, are quite large.
Reasons to quit your job
Reasons for changing the place of work can be of a different nature. The current standards define a clear list of such reasons.
First of all, the dismissal can be initiated by the employee himself. Most often this happens if the director fails to fulfill his obligations. For example, the worker was not provided with special clothes or necessary equipment, or paid less than what was agreed in advance.
Sometimes a person initiates a care procedure for objective reasons. This mainly happens if a person has found a more profitable work option, for example, a higher-paying job, or the new organization is located closer to the place of his actual residence. To realize his intention, it is enough to simply notify the manager in writing of his desire to leave no later than two weeks before the planned dismissal. By mutual agreement of the parties the specified period may be reduced. If the worker leaves due to violations of existing standards by the head, the dismissal should take place on the day specified in the statement of the employee. If a person changes his mind about quitting, he has the opportunity to withdraw his appeal before the expiration of the notice period.
Another reason for the termination of working interaction may be circumstances whose occurrence did not depend on the intentions of the parties to the relationship. The current general rules include:
- Bringing a worker to fulfill the obligation of military or alternative service.
- The reinstatement of a former specialist in the conclusion of an authorized instance, for example, a court.
- Not appointing as a result of the election campaign,
- Application of criminal measures to a person, which creates an obstacle to the further implementation of professional activities. An example is isolation from society or a ban on holding certain positions.
- A restriction in the physical or mental capabilities of a medical report that impedes further work.
- The death of a worker or the recognition of the deceased by a court decision.
- War, natural disasters and other circumstances of a global nature making it impossible to continue to perform official duties,
- Deprivation of qualifications in an administrative order.
- Suspension of action for more than two months, expiration or deprivation of a special right, if it is a prerequisite for fulfilling its obligations. Examples include the deprivation of a driver’s license or a license to carry a weapon.
- Restriction of access to information resources of the company, if one is required for the performance of duties.
- Annulment of a judicial or other official opinion on a person’s reinstatement.
Leaving may also take place due to the expiration of an urgent agreement. That is, if the validity period was limited by the time frame or the onset of certain circumstances. This applies to urgent agreements, to agreements that were concluded for seasonal work, a certain amount of work, as well as for replacing a worker who is temporarily absent for good reason.
Mutual agreement of the parties also acts as an occasion for the termination of professional cooperation. This method of dismissal is perhaps the most optimal.
However, the most common reason for termination of employment is the initiative of the head of the company.
Dismissal on the initiative of the head
The manager can initiate dismissal, guided by personal intention. The current standards in this case have established a fairly voluminous list of reasons:
- The complete termination of the company or individual entrepreneur.
- Change in the staff structure of the company or the number of employees. In such circumstances, part of the workers may be reduced. It should be noted that it is impossible to reduce specialists without offering them an alternative way of labor.
- Inconsistency of the worker due to low qualifications. This fact should be confirmed by the results of knowledge assessment.
- Change of ownership of the company. Such an occasion most often concerns the head himself, his deputies or the chief financial specialist.
- Repeated failure by a worker to perform official duties if disciplinary measures were previously applied to him.
- Absenteeism, that is, the absence of a worker in place without a good reason for more than four hours in a row.
- The use of alcohol or illegal drugs at the workplace or on the premises of the company, or occurring under the influence of these substances.
- Communication of restricted information to unauthorized persons.
- Theft, loss or damage to material assets of a company or employees.
- Violation of the rules of internal security, which caused an accident or accident, or created the prerequisites for the occurrence of such.
- Loss of confidence in the employee. Most often, such an occasion applies to those who serve inventory or cash.
- An act of immoral nature, which was committed by a specialist engaged in the upbringing of the younger generation.
- unreasonable decision that caused the damage.
- Submission of false information and data upon appointment.
What to do to the employee
It should be noted that the intentions of the boss to dismiss a person are not always justified, in terms of current standards.
There are frequent cases when the leader seeks to get rid of the worker for personal reasons.
In such situations, the leader uses several solutions to the problem. First of all, he can implement this for far-fetched reasons. Of course, the boss can adhere to the position that a person has violated the requirements of existing standards, without having documentary justification. The leader can simply force a person to voluntarily write a letter of resignation.
Many workers faced such situations, but not everyone knows what to do in such circumstances.
The current standards have determined the unconditional opportunity for each employee to protect themselves from actions of this kind on the part of the boss. That is, a person can complain to various authorities.
If dismissed for no reason
Any employment contract always indicates the reasons for which it may be terminated. The worker should know that dismissal will not happen instantly. It will be preceded by prior information. To solve the problem in a simple way, you need to perform a few simple steps.
First you need to carefully study the contents of the previously signed cooperation agreement. It should be noted that a detailed list of reasons is indicated there, most likely, will not be. Therefore, you should refer to the general applicable rules and determine for yourself whether there is a reason for dismissal by applicable law. It will be useful to get professional advice from a specialist, and also to find out if there is documentary justification for the position of the leader.
After clarifying all the information and data, it will be correct to draw up a written appeal to the chief, setting out his arguments on paper. It is necessary to inform the manager of his opinion and intention to contact the competent authorities in case of dismissal. Such an approach will make it possible to have documentary evidence of the fact that a person sought to resolve the issue peacefully, even at the stage of negotiations.
In principle, you can use a simpler option. You can contact the boss orally and try to find a compromise in the course of personal communication.
Forced to write a letter of resignation
The manager may want to get rid of the worker quickly enough without collecting the necessary documentary materials for this.
In such circumstances, a person begins to be forced to submit a letter of resignation. The bullying method is mainly used. A person can be entrusted with tasks that he cannot initially perform, or not stimulate him financially, arrange sudden checks, thereby knocking him off the labor rhythm. That is, to carry out any actions, the purpose of which is to make a person want to leave the company on their own.
In situations of this kind, it is necessary to immediately appear in person to the head or to send a written request with a request to explain the reasons for this attitude to yourself.
If the problem could not be solved in this way, it will be correct to apply to the labor dispute committee, to supervisory or judicial authorities.
Everyone should know that they can only be fired if they have legal grounds.
However, most people do not have special knowledge; they cannot determine situations when they are dismissed illegally. If a person cannot figure it out on his own in this situation, he should seek help from a specialist who will provide theoretical and, if necessary, practical help.
The situation with the dismissal of this kind has a number of distinguishing features.
First of all, the circumstances that were used as an excuse to terminate professional cooperation are not provided for by the requirements of the general rules.
Then, if the termination of the relationship took place at a time when a person was absent in his place for good reason, for example, was sick or was on compulsory rest, such dismissal will also be unreasonable.
The groundlessness can also be judged in the case when there was no obligatory preliminary informing the worker about the upcoming dismissal, or the worker was dismissed from among the preferential workers, for example, a future woman in labor.
The right to judicial protection
Judicial protection is an unconditional opportunity for every worker who seeks to restore violated rights.
In this situation, it does not matter whether the person is in an employment relationship with the company or is already fired.
An interested person has the opportunity to appeal to the court within three months from the moment when he became aware or could become a violation of his rights. To resolve the issue of reinstatement after dismissal, this period is one month. If the problem is related to arrears in cash payments, the circulation period is one year.
In order to realize your intention, it is necessary to draw up a written appeal, which reflects what opportunities were limited and what requirements should be met.
It will be correct to attach documentary evidence to its application confirming the validity of its position. All these materials must be submitted to the court. This can be done in person, hand-to-hand, by mail or through your representative.
In one of the courts of the Russian Federation, a person’s request for reinstatement, payment of earnings for the period of an unforeseen break and compensation for moral harm was considered.
In the course of studying the content of the appeal, it was found that the initiator was in labor relations with the organization on the basis of a working agreement. In the process of professional activity, a change of ownership occurred, which was unknown to the initiator. However, notes were written in his personal workbook stating that he left the former organization for his personal intention and therefore was accepted to the new leader on the same basis. After some time, he was fired for absenteeism, and the book was sent by mail. Nevertheless, the whole period until his dismissal, he was in his place and did not commit absenteeism. They did not inform him about the change of manager and entries in the labor. The actual location of the company has not changed, so he could not have imagined the changes that had taken place. Based on the foregoing, the initiator requested that he be reinstated at work, reimbursed for monetary losses and compensated for moral damage.
Representatives of both owners did not agree with the initiator’s request and explained that during the change of ownership the personnel documents had been lost and therefore could not be submitted to the court.
Having studied the appeal and after hearing the arguments of the parties, the court made its opinion. The person was reinstated in his previous position, he was paid earnings for the entire time of the unexpected break, moral damage was partially compensated. Money was collected from the company for considering the appeal.