How to correctly write a statement of claim to the court for illegal dismissal?

An employment contract reflects the free will of two parties: the employee and the employer. When terminating an employment contract, the employee has much more freedom than the employer: he has the right to terminate the contract at any time by notifying the employer in advance.

The employer has the right to terminate the contract only if there are grounds provided for by the Labor Code of the Russian Federation, and subject to compliance with the necessary procedure. If the dismissal took place without taking into account the norms of the Labor Code of the Russian Federation, the employee has the right to file a claim for illegal dismissal. A claim should be filed if:

• the basis referred to by the employer is not specified in the Labor Code of the Russian Federation;
• the basis referred to by the employer is present in the Labor Code of the Russian Federation, but the actual circumstances are not sufficient for its application. For example, the Labor Code of the Russian Federation allows an employer to fire an employee for just one-time absenteeism, but the mere fact of the employee’s absence from the workplace is not enough to recognize the fact of absenteeism. If an employee, for example, presents sick leave for a disputed day, but he is still fired, such termination of the employment contract is illegal;
• the procedure described in the Labor Code of the Russian Federation is not followed: for example, when bringing disciplinary action in the form of dismissal, the employee’s explanations are not required.

What documents will be needed

The statement of claim is accompanied by documents that confirm the applicant’s correctness and reveal the essence of the relationship between the employee and the employer. The composition of the documents varies depending on the situation, but you will definitely need:

• employment contract;
• order to terminate the employment contract;
• a copy of the work book indicating the grounds for termination of the relationship;
• calculation of the amount of the claim if the plaintiff makes monetary demands and the calculation is not given in the text of the application;
• copies of the statement of claim according to the number of persons involved.

In addition, it is necessary to attach documents confirming the illegality of the employer’s actions, for example:

• sick leave;
• leave order;
• the birth certificate of the applicant’s child, if a claim is filed to declare the dismissal on maternity leave illegal.

List of attached documents

To substantiate and confirm his point of view and reinstatement at work, the claimant will need to attach the following list of documents to the statement of claim:

• A sample order indicating the fact of his employment. When prepared by the HR department, such a document must be handed over to the hired employee, regardless of the activity in the state or under an employment contract.
• Direct employment contract with the employer. In such a situation, the document is initially kept by the employee. A copy is prepared for him when applying for employment.
• The work book is being sent. In order to avoid the loss of this document, which reflects all stages of work activity, a scanned version can be made, which will need to be certified by a notary or by the human resources department of the organization responsible for making the last entry.

If disciplinary sanctions were imposed on a dismissed employee during his working career, acts on their imposition must also be included in the package of documents.

Additionally, the author of the claim to eliminate the case of illegal dismissal may be sent documents showing its positive aspects. These may be letters of gratitude and other incentive documents, characteristics received at previous places of work. These materials are not mandatory, but they allow you to formulate the attitude of the judicial representative towards the author of the claim.

Procedure for drawing up a statement of claim

The statement of claim must indicate:

• name of the court where it is filed;
• Full name, address and contact telephone number of the applicant;
• name and address of the defendant;
• a brief history of the relationship between the parties: when the citizen was hired, for what position, what documents were drawn up, on what grounds and when he was fired;
• the reasons why the plaintiff considers the termination of the employment relationship to be illegal;
• monetary claims, if any, and the grounds for their collection;
• a list of requirements for the defendant, for example, reinstatement at work or changing the grounds for termination of the relationship;
• list of attached documents;
• date and signature of the applicant.

Sample statement of claim for recognition of dismissal as illegal

To Leninsky District Court

Ekaterinburg, Sverdlovsk region

Plaintiff: Ivanov Ivan Ivanovich,

st. Bardina, 1, apt. 2

Defendant: Vesna LLC

On July 4, 2020, I was hired by Vesna LLC for the position of senior logistician on the basis of employment contract No. 123 (hiring order No. 123 is attached).

On November 1, 2020, by order of the director No. 156, I was dismissed from work with the motivation “for absenteeism” by virtue of subparagraph “a” of paragraph 6 of part 1 of Article 81 of the Labor Code of the Russian Federation.

Expert opinion

Grigoriev Egor Kirillovich

Legal consultant with 7 years of experience. Specializes in criminal law. More than 3 years of experience in protecting legal interests.

The basis for the dismissal was the decision drawn up by a commission consisting of director P.P. Petrov and deputy director for personnel S.S. Sidorova. and the head of the legal department Sutyazhny S.S. certificate of my absence from work on October 30, 2020.

The act states that I did not inform the director about the fact and reasons for my absence from work (there are no supporting documents), I did not answer phone calls, and therefore the violation I committed is absenteeism.

I received my paycheck and work book on November 1, 2020. A copy of this order and the act at my request were made for me.

I consider the dismissal illegal and unjustified for the following reasons:

1. Article 193 of the Labor Code of the Russian Federation establishes the procedure for imposing disciplinary sanctions on an employee, including dismissal. This procedure presupposes the employer’s obligation to request written explanations from the employee before applying a disciplinary sanction. After requesting an explanation, the employee must be given at least two working days to prepare a response. Contrary to this rule, no explanations were required from me, and I was not informed of the intention to apply a disciplinary sanction. The fact that the employer did not comply with the requirements of the law on the procedure for imposing penalties is also evidenced by the length of the period of time that passed from the moment of the alleged absenteeism - October 30, 2019 - until the actual dismissal on November 1, 2019. This period is less than two business days.
2. My absence from work cannot be considered absenteeism, since there was a good reason for it: on October 30, 2019, I donated blood plasma at the donor department of City Clinical Hospital No. 1 of Yekaterinburg, which is confirmed by a certificate in form No. 402/u. In accordance with Art. 186 of the Labor Code of the Russian Federation, a donor of blood and its components is exempt from work on the day of donating blood or undergoing a related medical examination.

• 247 - number of working days for the year preceding the moment of dismissal;
• 4 - the current number of days of forced absence due to illegal dismissal.

Compensation for one day of forced absence is 4858 (four thousand eight hundred fifty eight) rubles 30 kopecks.

Taking into account all the above circumstances, in accordance with Articles 391, 394 of the Labor Code of the Russian Federation and 131, 132 of the Code of Civil Procedure of the Russian Federation, I ask the court:

1. Reinstate me as a senior logistician at Vesna LLC.
2. To recover from Vesna LLC in my favor the amount of average earnings from the date of dismissal to the day of actual reinstatement at work.

1. A copy of the claim.
2. A copy of the employment order.
3. A copy of the employment agreement with Vesna LLC.
4. A copy of the dismissal order.
5. Certificate of average earnings.
6. Certificate in form No. 402/у.

For your own purposes, copy the sample claim to court for illegal dismissal and enter your details, arguments and calculations.

Deadlines and procedure for applying

To submit a claim to the courts, you will need to take into account potential grounds that will need to be supported by documents. Among the conditions under which dismissal may be considered unlawful are:

• No objective reasons for removal from position and dismissal have been identified.
• The procedure specified in Article 77 of the Labor Code of the Russian Federation was not followed.

• Additionally, the grounds specified as the regulatory procedures for terminating labor relations with an employee are considered:
• Disciplinary action was applied incorrectly.

When reducing staff, the employer did not consider the prospect of offering the dismissed person an alternative position to continue production activities.

In favor of the person deprived of his position, specialists when considering the illegality of this procedure will also consider candidates by the branch of the trade union organization. In the absence of a formalized position of the trade union, the outcome of the employer’s decision may also be considered unfounded.

The complaint, which is planned to be sent to this authority, indicates:

• Complete information about the enterprise, which at the time of dismissal was the employer of the citizen who sent materials declaring the fact illegal.
• Accurate information about the author of the complaint.
• Competently and clearly written text of the complaint.

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The basis for filing a complaint is the right of the Prosecutor's Office to carry out inspections based on citizens' complaints about the activities of organizations. Officially, this government agency also has the right to conduct inspections of the implementation of the Labor Code of the Russian Federation. The dismissed citizen himself can initiate an inspection. Including sending a request to organize an inspection as a citizen’s request on the basis of Federal Law 59 of the Russian Federation.

Based on the results of such a request, an unscheduled inspection of the organization is initiated. The decision is made in accordance with legal requirements within 30 days from the date of receipt. The prosecutor's office cannot reinstate you at work, but it has the right to send recommendations to the employer.

In the case of using a citizen’s appeal to the prosecutor’s office, the period for consideration and resolution of the controversial situation takes the applicant one month. It is within this period that any government body is obliged to prepare and send a substantiated response to the applicant.

If a claim is considered in court, the duration depends on the date on which the hearing is scheduled. Civil cases, namely the court declaring the dismissal illegal, are considered by the courts before the expiration of two months from the date of receipt in court. When filing a claim, the applicant is recommended to obtain from a court employee a written confirmation of receipt of the claim and indicating the date.

about the author

Valery Isaev

Valery Isaev graduated from the Moscow State Law Institute. Over the years of work in the legal profession, he has conducted many successful civil and criminal cases in courts of various jurisdictions. Extensive experience in legal assistance to citizens in various fields.

What financial expenses should you prepare for?

According to Article 393 of the Labor Code of the Russian Federation, citizens filing claims against their employers are exempt from paying state fees; the filing of the application itself does not entail any monetary costs.

This is important to know: Grounds for leaving a claim without consideration under the Code of Civil Procedure of the Russian Federation

At the same time, in order to increase their own chances of success in the process, a citizen should take care of involving a professional lawyer in the process who can competently prepare all documents and represent the interests of the plaintiff. The cost of legal services varies widely and depends on:

• the region in which the proceedings take place;
• volume of services provided: it is permissible to involve a professional only in the representative office, without drawing up documents, which is cheaper than buying a full set of services;
• experience, qualifications and professionalism of a lawyer.

Drawing up a lawsuit - important points

1. Recognition of this dismissal as illegal with all relevant changes, both in the Labor Code and other documents.
2. Your reinstatement at work.
3. Payment of compensation for moral damage caused.
4. Collection of all amounts due to him upon dismissal.
5. And collection of wages for the entire period of forced “vacations”.

The following must be indicated:

1. Name of the court.
2. Plaintiff's name (+ home address).
3. Full name of the defendant organization + its address.
4. The essence of the violation of the plaintiff’s rights + all his demands (as well as all evidence of the circumstances that form the basis of the demands).
5. The amount of the claim when assessing it + calculation of the amounts for which the claim is brought.
6. Information that the pre-trial procedure for contacting the “violator” was followed.
7. Links to articles of law, according to which dismissal must be declared illegal.
8. A list of documents attached by the plaintiff to the claim.

The claim is usually accompanied by:

1. Copy of the passport.
2. Copies of the application by number of defendants.
3. The document is a receipt for payment of the state duty (this amount is usually reimbursed to the plaintiff by the defendant by a court decision).
4. Documents (+ copies thereof) that confirm the circumstances that formed the basis of the plaintiff’s claims.
5. Documents (+ copies thereof) that confirm the completion (attempt) of pre-trial settlement of a specific dispute.
6. Document (+ copies thereof) with calculation of the claimed amount of the claim.

Note: in case of filing a claim in court regarding labor relations, the employee is exempt from paying all legal costs/duties (Article 393 of the Labor Code of the Russian Federation).

This is important to know: Statement to eliminate deficiencies in the statement of claim: sample 2020

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I was fired illegally - how to write a statement?

On recovery of wages for illegal dismissal and reinstatement at work

In ______________ (name of court).

District Court of _______________

Plaintiff: ___________________ (full name).

Address (plaintiff): ___________________

Respondent: _______________________ (name of organization).

Address (defendant organization): ____________________

From “___”_______ ____ I (full name), according to the employment contract dated

“___”_______ ____ city N ______, worked for (in) _____________ (organization)

for the position of _______________ with a salary of ______ rubles.

"___"__________ ____ by order No. ___ dated "__"________ ____ I was

dismissed on the basis of clause 2 of Art. 83 Labor Code of the Russian Federation.

I consider my dismissal to be unlawful on the grounds that: - The defendant did not offer me all available vacant positions or a job that could match my qualifications. — The defendant did not offer me vacant lower positions or jobs with lower pay. — (Other circumstances)________________________________________ — Severance pay in the amount of two weeks’ earnings was (not) paid to me.

According to Art. 139 Labor Code and employment contract, my average salary is _______ rubles.

During the period of forced absence from “___”______ ____ to “___”_____ ____, and in total ____ days, _______ rubles are subject to recovery in my favor.

In accordance with clause 2 of part 1 and part 2 of Art. 83, Art. Art. 139, 391, 392, 394 of the Labor Code of the Russian Federation, and guided by Art. 22, 24, 131, 132 Code of Civil Procedure of the Russian Federation,

I ASK: 1. Reinstate me ______________ (full name) at work with (at) _______________________ (employer) in the position of _________________. 2. To recover from ________________ (employer) in my favor the average earnings during my forced absence from “___”______ ____ year to “___”_____ ____ year in the amount of _____ (and in words) rubles. I am attaching to the application: 1. Copies of the employment order and the employment contract. 2. A copy of the dismissal order. 3. Evidence of the validity of the arguments (acts and protocols, staffing list indicating vacancies, etc.). 4. A copy of the decision of the state labor inspectorate on reinstatement and an extract from the order for reinstatement. 5. Certificate of the amount of severance pay paid upon dismissal. 6. Certificate of salary. 7. Calculation of wages during forced absence. 8. A copy of the statement of claim for the defendant. “___”___________ ____ city ________________ (signature).

On recognition of dismissal as illegal and compensation for moral damage

In ___________ court (name)

Plaintiff: _________ (full name).

Address: _________ (plaintiff).

Respondent: _______________ (name of organization).

Expert opinion

Grigoriev Egor Kirillovich

Legal consultant with 7 years of experience. Specializes in criminal law. More than 3 years of experience in protecting legal interests.

Since “___”_____________ 20__ I was in an employment relationship with _______ (employer). An employment contract was concluded between us. Before I was fired, I worked___________ (position).

“___”_______________ 20___ I, along with other employees, was dismissed on the basis of clause 1 of Art. 81 of the Labor Code of the Russian Federation, due to the liquidation of the organization.

When dismissing the defendant, the dismissal procedure established by law was violated. In violation of the requirements of Part 2, 3 Art. 180 of the Labor Code of the Russian Federation, I was not warned by the employer personally and against receipt of my impending dismissal due to the liquidation of the organization at least two months before the dismissal.

This illegal dismissal caused me moral harm, which was expressed in moral distress due to the loss of my job. Based on the specific circumstances of the case, taking into account the nature and extent of the moral suffering caused to me, the degree of guilt of my employer, as well as the requirements of fairness and reasonableness, I ask on the basis of Art. 394 of the Labor Code of the Russian Federation to compensate for moral damage caused to me in the amount of _______ rubles.

Based on the above and guided by Art. 131, 132 of the Code of Civil Procedure of the Russian Federation, I ask: 1. To recognize my dismissal “___”_______________ 20__ as illegal and carried out in violation of the dismissal procedure, as established by Art. 180 Labor Code of the Russian Federation. 2. Oblige the employer to compensate for moral damage caused to me in the amount of _____ rubles. I am attaching to the application: 1. A copy of the statement of claim. 2. A copy of the work record. 3. A copy of the employment contract. 4. A copy of the dismissal order. 5. Certificate of average salary.

Painting (+ decoding) _________(__________)

On reinstatement at work, payment of average earnings for the period of forced absence and compensation for moral damage

In __________ (name of court).

Plaintiff: _____________ (full name, address).

Respondent: _____________ (name of organization).

Cost of claim ____________ (total amount of claims)

I have been working for _________ (employer) since “___”_________ ____ in the position of _________.

By Order No. ___ dated “___”_________ ____. I was fired from my job due to_________ (grounds from the order).

I consider my dismissal to be unlawful due to the fact that _________ (justification).

In connection with the wrongful dismissal, the defendant must pay me the average salary for the period of my forced absence from the day following the dismissal until my reinstatement. On the day I go to court with a statement of claim, the defendant must pay _______ rubles. The calculation is attached.

In accordance with Art. 394 of the Labor Code of the Russian Federation, in cases of dismissal without legal grounds or in violation of the established procedure for dismissal or illegal transfer to another job, the court may, at the request of the dismissed employee, make a decision to recover from the employer in favor of the employee compensation for moral damage that was caused to him by the above actions. The amount of compensation is determined by the court.

The unlawful actions of my employer caused me moral harm, which was expressed in _________ (stress, insomnia, depression, quarrels with my wife, etc.). I estimate the moral damage caused to me at _______ rubles.

Date of application “___”_________ ____

Plaintiff's signature _______ (+ transcript).

From the moment the statement of claim is received and within 5 days, the judge must decide to initiate a civil case or to refuse to accept the claim. The last option is an obstacle to a dismissed employee’s re-application to court with a similar claim.

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Illegal dismissal

Unlawful dismissal is far from uncommon these days. The reasons for this are different, but as usual, this fact is often based not on objective and legal circumstances, but on the employer’s ordinary personal hostility towards the employee, i.e. human factor.

You should know that dismissal is a type of disciplinary sanction (along with a reprimand and reprimand), and it can only be applied after the employer has requested a written explanation from the employee about the reasons for what happened. Violation of this procedural order leads to the fact that the dismissal can be declared illegal by the court, and the employee is reinstated in his workplace with payment of his salary for the period of forced absence through no fault of his own.

In practice, employers often draw up reports retroactively stating that you allegedly refused to give written explanations, which in turn does not prevent the employer from applying a disciplinary sanction. Therefore, if you have never previously had experience in declaring a dismissal illegal, we strongly recommend that you seek advice from experienced lawyers so that you know what the court will first want to hear from you and what evidence to see in order to satisfy your claims.

A claim for this type of dispute is filed at the place of the defendant. If you ask to be reinstated at work, the prosecutor must participate in the case.

Grounds of claim

The dismissal procedure is a certain procedure for the employer, which is determined by the Labor Code of the Russian Federation. Significant violations of this protocol may result in the employer's decision being subsequently declared illegal.

As such, the legislation of the Russian Federation does not provide for a definition of illegal dismissal. However, it is possible to define a number of conditions under which the dismissal of an employee from service is considered unlawful:

1. Lack of objective reasons for removal.
2. Failure to comply with the procedure prescribed in Art. 77 Labor Code of the Russian Federation.

In addition, the employer must prove that the specified grounds actually occurred. Otherwise, the court will declare the employer’s order illegal.

Different dismissal procedures are regulated for different reasons.

Among the most common violations are the following:

1. The employee is being disciplined inappropriately.
2. The employer refuses to offer an alternative position when staffing is reduced.

A situation where the opinion of the trade union is not properly taken into account (for individual cases of resignation of trade union members) is also considered a violation.

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IMPORTANT!

Also remember that the demand for wages and reinstatement is subject to immediate execution. That is, if a decision is made in your favor, you do not have to wait a month for it to come into force, because it comes into force in this part on the same day.

This is important to know: Statement of claim for invalidation of an agreement or transaction: sample 2020

In ________________________ (name of court and address) Plaintiff: ________________________ (full name and address) Defendant: ________________________ (full name and address) Third party: ________________________ (full name and address)

Cost of claim: ______ rubles; State duty: ______ rubles.

STATEMENT OF CLAIM for recognition of dismissal (for absenteeism) as illegal and reinstatement at work

I, _____________ (indicate full name), have been an employee at ____________ (indicate the name of the organization) since ___________ (indicate the start date of the employment relationship). ____________ (specify the date) I learned that I was dismissed according to the order dated ________________ (specify the date) on the basis of paragraphs. "a" clause 6 of Art. 81 of the Labor Code of the Russian Federation (absenteeism). The reason for dismissal, in accordance with the contents of the order, is absenteeism that allegedly occurred on __________ (specify date). I do not agree with this dismissal; I consider it illegal for the following reasons. My absence from work was due to the fact that _____________________ (indicate a valid reason for absence, provide evidence).

According to Part. 1, 3, 5 tbsp. 192 of the Labor Code of the Russian Federation for committing a disciplinary offense, that is, failure or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions: reprimand, reprimand, dismissal on appropriate grounds. Article 193 of the Labor Code of the Russian Federation provides that before applying a disciplinary sanction, the employer must request a written explanation from the employee. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up. Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action.

In this category of cases, the responsibility to prove the legality of dismissing an employee lies with the employer. According to the rules of Art. 393 of the Labor Code of the Russian Federation, if the dismissal is declared illegal, the employee must be reinstated in his previous job by the body considering the individual labor dispute. According to the rules of 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 entering into the work book an incorrect or non-compliant formulation of the reason for the employee’s dismissal.

When calculating wages for the period of forced absence, the plaintiff takes into account a five-day working week, and therefore the number of working days of absenteeism of the plaintiff is from DD.MM.YYYY and DD.MM.YYYY, and a total of _____ working days. In connection with this, the plaintiff’s earnings during the forced absence amount to ________ rubles. Also in favor of the plaintiff it is necessary to recover moral damages provided for in Art. Art. 22, 237 of the Labor Code of the Russian Federation in connection with unlawful actions of the employer. The court determines the amount of damage taking into account the established circumstances of the violation of the employee’s labor rights. The plaintiff estimates the moral damage caused to me by the employer in the amount of __________ rubles. According to Art. 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis for its claims and objections, unless otherwise provided by federal law. In accordance with Part 1 of 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 a violation of his right, and in disputes about dismissal - within one month from the date he was given a copy of the order dismissal or from the date of issue of the work book.

1. Recognize the dismissal of ________________ (name of employer) of plaintiff __________ (full name of plaintiff) by order No. __ dated _______ on the grounds under paragraphs. "a" clause 6 of Art. 81 of the Labor Code of the Russian Federation for absenteeism, absence from work without good reason - illegal;
2. Reinstate the plaintiff at work in the position of _____________;
3. To recover from ________________ (name of employer) in favor of the plaintiff wages for the period of forced absence for the period from ____________ to the day of the court’s decision;
4. To recover from ________________ (name of employer) in favor of the plaintiff compensation for moral damage in the amount of ___________ rubles.

Appendix: 1. A copy of the statement of claim for the parties to the case, the court and third parties; 2. A copy of the employment contract; 3. A copy of the dismissal order; 4. A copy of the work record;

Date of application “____”____________ 20____ Plaintiff's signature ____________

Grounds for dismissal

Among the reasons why an employee of an organization is relieved of his position, it is necessary to highlight:

• Termination of an employment contract by the employee. He is required to submit a letter of resignation and work at his job for another 2 weeks.
• Dismissal of an employee from his/her position at the initiative of the employer. This dismissal must have its justification, since without it it is illegal.

Currently, termination of an employment contract often occurs for the second reason, but without specifying or with falsification of reasonable arguments. In order to restore justice, the employee can submit a statement of claim to the court for illegal dismissal.

Every employee whose boss threatens him with dismissal, but at the same time requires him to write a statement of his own free will or sign an agreement between the parties, has reason to think about it.

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Lawsuit - general points

When drawing up any claim, the applicant will certainly be faced with a number of general issues that need to be clarified:

1. The claim we have identified, in accordance with Articles 23 and 24 of the Code of Civil Procedure of the Russian Federation, must be considered by the district court. According to clause 6.3 of Article 29 of the Code of Civil Procedure of the Russian Federation, you can go to court both at the place of registration of the organization (branch) and at the place of residence of the dismissed employee.
2. For claims of this kind, it is not necessary to pay state duty due to the benefits specified in subparagraph 1 of paragraph 1 of Article 333.36 of the Tax Code of the Russian Federation.
3. An assessment of the amount of claims should be carried out only in the case of collection of amounts due upon dismissal, average earnings that were lost during the period of absenteeism due to the fault of the organization, or collected as compensation for moral damage. Otherwise, it will be a claim of a non-property nature (i.e. a claim for which the price is not determined).
4. As for the requirements, the employee can either apply for reinstatement and present related material claims, or demand that the organization change the basis that is used for dismissal. The right to such a choice is secured by Article 391 of the Labor Code of the Russian Federation.
5. According to Part 1 of Article 392 of the Labor Code of the Russian Federation, after receiving a copy of the order (work book), the employee has 1 month to go to court. Article 154 of the Code of Civil Procedure of the Russian Federation also gives the court 1 month to consider the issue.