Claim for reinstatement at work, recovery for forced absence

When and where to complain

According to the law, an employee whose rights have been violated has the right to appeal to the prosecutor’s office, the labor inspectorate, or the court. If the first two instances have not resolved the issue of violation of rights, you should write an appeal to the court yourself or with the help of legal advisers. Although this is allowed to be done before officials take action against the employer.

IMPORTANT!

Remember that Part 1 of Article 392 of the Labor Code of the Russian Federation limits the period for filing an application for reinstatement at work, and it is no more than 1 month from the day when the employee was given a copy of the dismissal order, issued a work book, or from the day when he refused receiving these documents.

According to the decision of the judges, the deadline for filing a claim for reinstatement at work is sometimes extended, but provided that the plaintiff had valid reasons for missing it, for example, the person was sick.

As stated in the resolution of the plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, an application for the restoration of labor rights should be submitted to the district court, based on Article 24 of the Code of Civil Procedure of the Russian Federation. Speaking about jurisdiction, we note that according to Article 28 of the Code of Civil Procedure of the Russian Federation, a claim against an organization is filed at the location of the defendant (address specified during registration). But at the same time, clause 6.3 of Article 29 of the Code of Civil Procedure of the Russian Federation is also in effect, allowing a person whose rights have been violated to submit an application for reinstatement and compensation for damage to the court at the place of residence.

The claim may be sent by mail or brought directly to the court. The court websites provide a schedule for accepting documents. There are also sample documents available for downloading. The legislation does not specify whether to fill them out yourself, if the person knows how to write an application for reinstatement, or to involve lawyers. This issue is resolved by the injured employee.

IMPORTANT!

In connection with the threat of the spread of coronavirus, a resolution was issued by the Presidium of the Supreme Court of the Russian Federation and the Presidium of the Council of Judges of the Russian Federation dated March 18, 2020, which suspended the admission of citizens to the courts. All documents until April 10 are accepted in the form of mail or electronic papers. At the same time, a restriction on the consideration of cases is being introduced: temporarily, judges will only have cases of an urgent nature to work on.

How to write a claim

There are general requirements for filing claims, set out in Art. 131 of the Code of Civil Procedure of the Russian Federation, they must be observed by all plaintiffs. The Code of Civil Procedure of the Russian Federation does not separately regulate a claim for reinstatement. Let's look at the general rules.

Step 1. Introductory information

This is a required part of any application. On the right side of the sheet the name and address of the court are indicated, then below the line are the details of the plaintiff and defendant for identification, with names, addresses and contact details. Then write the title of the document in the middle, on a separate line.

Step 2. Description of the basis for the appeal

The document clearly states the reasons for the appeal, citing specific facts. Indicate when the employee was hired, where, for what position, when and why he was fired. Separately explain the illegality of terminating the relationship: for what reason does the citizen believe that he was not fired according to the law, and how this is confirmed.

Step 3: Claim compensation

According to Art. 394 of the Civil Code of the Russian Federation, an employee has the right to demand compensation for absenteeism through no fault of his own; the demand for its award should be reflected in the claim, and provide a calculation. The employee also has the right to recover moral damages, citing moral suffering caused by the employer.

Step 4. The essence of the request

After presenting the facts and references to the articles, formulate a separate part of the request to the court to satisfy specific demands (to restore, recover, etc.). If the formation of a legal basis raises questions, a lawyer will need to file a claim for reinstatement at work, contact labor dispute lawyers, the trade union, or the labor inspectorate.

Step 5: Application

Be sure to list all attached documents in a separate list, attach copies of orders, all documentary evidence, and work record books. Separately attached is a calculation of the amount of the claim (average earnings during forced absence). Put the date and signature.

https://youtu.be/SkyCi7I2qhU

Moral damage in case of illegal dismissal

Labor legislation provides for the possibility of compensation for moral damage to an employee who has illegally lost his job if such a claim includes an application to the court for reinstatement, but this issue is regulated in detail by civil law. The plaintiff sets the amount of damage independently, but the court has the final say. It is the arbitrators who will decide how much to estimate the consequences of violating the labor rights of the illegally dismissed person. You should request compensation for moral damages directly in your application for reinstatement.

Recovery procedure

If an employee was illegally fired, he has the right to restore his labor rights and return to the workplace. A court decision is binding on all persons on the territory of the Russian Federation. The employer is obliged to comply with the decision the next day after the trial. If the obligation is not fulfilled, the applicant should contact the bailiffs and demand the initiation of enforcement proceedings. The employer is subject to enforcement measures.

If another person is hired to replace the employee, the contract with him is terminated. Dismissal is possible subject to:

• There are no other vacant positions;
• The employee refuses to move to another position.

The restoration procedure is complex, but the employer in any case must comply with the procedures specified in the law. Any wrong actions lead to a new appeal to the court.

How to get a decision on reinstatement at work, how to file a lawsuit against an employer?

If an employee is fired in violation of current legislation, he can sue. Dismissal must be carried out in accordance with the Labor Code. An employee can be dismissed only at his own request, by agreement of the parties or on the initiative of the employer. The grounds for dismissal from work are established in Article 77 of the Labor Code of the Russian Federation. Some categories of workers should be dismissed with additional guarantees.

After a court decision is made, the employer must accept the dismissed employee:

1. Issue an order for reinstatement or cancellation of a previously issued dismissal document.
2. Change time sheet
3. Make changes to the employee’s work book - indicate that the dismissal record is invalid, the employee has been reinstated. Cancel the current order.
4. Pay all funds: wages during forced absence, payment during incapacity due to illness, compensation for moral damage.
5. Allow the employee to perform duties.
6. Notify the bailiffs that the order has been fulfilled.

Application deadlines

An employee’s application for reinstatement at work is submitted to the district court within one month from the date of delivery of a copy of the dismissal order or from the day the work book is issued, or from the day the employee refused to receive the dismissal order or work book.

The timing of the employee's application is very important. If you miss the deadline, you must declare its reinstatement. The court may restore the time limit for filing a lawsuit if there are good reasons. Circumstances that prevented the employee from timely filing a claim in court for resolution of an individual labor dispute may be regarded as valid reasons for missing the deadline for filing a lawsuit, for example:

• plaintiff's illness;
• being on a business trip;
• impossibility of going to court due to force majeure;
• the need to care for seriously ill family members.

How to avoid a scandalous return

Often people are stopped from going to court by the fear that even if the trial ends in your favor, working after a “scandalous return” will be very difficult due to the negative attitude of management. These fears are often justified, so keep in mind that, having declared the dismissal illegal, the judge may, at your request, simply change the wording of the grounds for terminating the employment contract to “his own desire.” This is true if you are dismissed for so-called “guilty reasons” - you will restore your good name, receive the due monetary compensation and move on in life with your head held high.

How to file a claim

An employee’s application for reinstatement may be submitted to the court:

• on paper;
• in electronic form by filling out a form posted on the official website of the court on the Internet.

A statement of claim submitted by filling out a form posted on the official website of the court on the Internet, containing a request to secure the claim, is signed with an enhanced qualified electronic signature in the manner established by the legislation of the Russian Federation.

Documents for filing a claim in court

Attach the following documents to the statement of claim:

• copies of the statement of claim for the defendant;
• a power of attorney confirming the authority of your representative;
• documents confirming the circumstances on which you base your claim, and copies of them for the defendant and third parties. Such documents include a copy of the work record book, a copy of the employment contract, an order for employment, an order for dismissal, an order for disciplinary action, internal labor regulations in the organization;
• a statement of the amount you are charging, signed by you or your representative.

The procedure for submitting an application and documents is described in the next section.

When to file a claim for reinstatement

A statement of claim is filed if the employee does not agree with his dismissal in principle or believes that the dismissal procedure was violated. For example, an employee does not agree with his dismissal due to a reduction in staffing levels. Or he believes that the procedure for his dismissal for absenteeism was violated, while he does not deny the very fact of committing a violation of labor discipline.

Form and content of the statement of claim for reinstatement at work

The statement of claim for reinstatement at work and recovery of wages for the period of forced absence due to illegal dismissal must comply with the requirements of Art. 131 Code of Civil Procedure of the Russian Federation.

The statement of claim is always submitted in writing; the statement of claim must indicate:

name of the court to which the application is filed

In the Ostankino District Court of Moscow

the name of the plaintiff, his place of residence, as well as the name of the representative and his address, if the application is submitted by a representative

Vasiliev Petr Ivanovich,

address: Moscow, st. Cosmonauts - 6/15,

phone: 9220508711

the name of the defendant, his place of residence or, if the defendant is an organization, its location

Department of Education

municipal district

address: Moscow, st. Cosmonauts - 20

Additionally, telephone numbers, fax numbers, and email addresses of the plaintiff, his representative, and the defendant may be indicated.

The reasoning part of the statement of claim must indicate the basis of the claim - the circumstances on which the claims are based, and evidence confirming these circumstances:

1. what is the violation of the rights, freedoms or legitimate interests of the plaintiff and his demands;
2. the circumstances on which the plaintiff bases his claims and evidence supporting these circumstances;
3. calculation of the collected amounts of money, in our case this is the calculation of wages for the period of forced absence and compensation for moral damage;

On October 20, 2020, employment contract No. 25 (hereinafter referred to as the employment contract) was concluded between me and the Defendant, according to which I was hired as a programmer in the information support and information security sector of the Education Department. The employment contract was concluded on a part-time basis for an indefinite period. On October 17, 2020, by order of the Defendant dated October 15, 2018 No. 32-k/l, I was dismissed on the basis of Art. 288 of the Labor Code of the Russian Federation in connection with the hiring of an employee for whom this work will be the main one. A copy of the Defendant’s order No. 32-k/l dated October 15, 2018 was handed to me on December 29, 2018.

I consider my dismissal illegal for the following reasons. In the period from October 15, 2020 to October 24, 2020, I was in hospital treatment, which is confirmed by certificate of incapacity for work No. 23140496222. In accordance with Part 6 of Art. 81 of the Labor Code of the Russian Federation, it is not permitted to dismiss an employee at the initiative of the employer during the period of his temporary incapacity for work. The defendant ignored this restriction on dismissal. In accordance with Art. 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, arises if earnings are not received as a result of illegal dismissal.

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If my dismissal is declared illegal by the court, as a result of the unjustified dismissal, I was deprived of the opportunity to work and, accordingly, did not receive all my earnings for the period from October 18, 2020 to the time the court made its decision. On the day of going to court, the duration of forced absence is 103 days. The declared amount of the claim is calculated as 103×1020.74=105136.22, where: 103 - the number of days of forced absence; 1020.74 - average daily earnings. During forced absence, 105136.22 (one hundred five thousand one hundred thirty-six) rubles and 22 kopecks are subject to recovery in my favor.

In addition, I experienced mental and moral suffering due to the loss of my job, because... in the absence of a constant income and funds to support two young children. I estimate the moral damage caused to me as a result of illegal dismissal in the amount of 15,000 (fifteen thousand) rubles.

The pleading part of the statement of claim must indicate the plaintiff’s demands against the defendant

Ask:

1. Reinstate me as a programmer in the information support and information security sector of the Education Department.

2. To recover from the Education Department the average salary for the period of forced absence in the amount of 22 (one hundred five thousand one hundred thirty-six) rubles 22 kopecks.

3. To recover from the Education Department in my favor an amount of 15,000 (fifteen thousand) rubles for compensation for moral damage caused by unlawful actions.

List of documents attached to the application

According to Art. 132 of the Civil Procedure Code of the Russian Federation the following are attached to the statement of claim:

• its copies in accordance with the number of defendants and third parties;
• power of attorney or other document certifying the authority of the plaintiff’s representative;
• documents confirming the circumstances on which the plaintiff bases his claims, copies of these documents for defendants and third parties, if they do not have copies;
• calculation of the amount to be recovered and the amount of money, signed by the plaintiff, his representative, with copies in accordance with the number of defendants and third parties.

Applications:

1. A copy of the employment contract. 2. A copy of the dismissal order. 3. A copy of the certificate of incapacity for work. 4. Certificate of average daily earnings 5. Copies of the statement of claim and documents attached to it for the Defendant.

The statement of claim is signed by the plaintiff or his representative if he has the authority to sign the statement and present it to the court.