Dismissal for absenteeism is regulated by labor law. Absenteeism is considered when an employee is absent from the workplace during a working day for more than four hours in a row without good reason. Based on the position of the courts, absenteeism is also recognized when an employee independently takes days off or vacation days, without warning or notifying the employer.
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An employee must always notify about his absence from the workplace, by telephone, in person, or by email, the main thing is to have something to refer to in case of disagreement between the parties. The employer, upon discovering the absence of an employee, has the right to terminate the employment contract with him, that is, to fire him.
USEFUL : watch the VIDEO and find out how a fired employee can be reinstated at work, write your question in the comments of the video
To fire an employee for absenteeism, the following procedure must be followed; it is important for every employee and employer to know (in addition, the employer will be interested in reading how to fire an employee for absenteeism without good reason by clicking on the link):
Appealing dismissal in court
Sometimes the most effective way to appeal your dismissal is to file a claim in court and defend your rights in court. But you need to prepare for the process, write the statement of claim correctly, submit a set of documents and not miss the deadline for filing the claim.
The claim is drawn up taking into account procedural rules, that is, it is necessary to take into account the norms prescribed in Art. 130 – 131 Code of Civil Procedure of the Russian Federation. The following documents must be attached to the statement of claim:
- a copy of the claim for the defendant, that is, for the employer;
- documents confirming the plaintiff’s employment with this employer. All papers that are in one way or another related to the plaintiff’s employment must be issued by the defendant within three days after the plaintiff writes a written statement;
- receipt of payment of the duty. Without this document, the claim will not be accepted for consideration.
The plaintiff has the right to demand from the court a decision to reinstate him at work, as well as payment of wages for forced absence and compensation for damage caused by illegal dismissal. The calculation of the amount of damage is made by the plaintiff independently.
The amount of unpaid wages must be confirmed by relevant certificates from the accounting department. They are issued upon dismissal, and the employer has no right to refuse to issue them to his employee.
The case will be considered on its merits if the following conditions are met:
- all documents are ready;
- the claim is drawn up correctly;
- the duty has been paid in full;
- all documents were submitted on time.
Time limit for appealing dismissal in court
If an employee nevertheless decides to go to court to protect his rights, he must do so as quickly as possible. You need to calmly leave work, taking all the documents that the employer is obliged to issue. And immediately start preparing a claim. If you have no experience, it is recommended to contact labor law lawyers.
In Art. 392 of the Labor Code of the Pension Fund states that an employee has the right to go to court to protect his rights in an individual labor dispute, but only within three months from the moment his rights were violated.
It is necessary to pay attention to the fact that the dismissal dispute can be resolved in court within 1 month from the moment the employee signed the dismissal order. Therefore, you should not delay filing a claim.
If the court decides to restore
The procedure for reinstatement at work is regulated by Chapter 60 of the Labor Code of the Russian Federation. The execution of the relevant court decision must be carried out immediately. This process is accompanied by the following points:
- By issuing a writ of execution, which the manager is obliged to execute within 1 working day.
- Reinstatement, which is carried out even if another employee is hired to replace the dismissed employee.
- Cancellation of the dismissal order.
- Notifying the employee of the start date of work.
- By making corrections to the work book.
- Returning the employee to the same position and with the same working conditions.
- By crossing out the dismissal on the employee’s personal card.
- Changing the working time sheet.
Procedure for appealing dismissal
To appeal illegal dismissal, you must follow a certain procedure:
- do not interfere with the employer in preparing documents on termination of employment relations;
- you need to sign the order and write an application to receive all the necessary documents;
- pick up your work book and receive a full payment;
- make copies of all documents issued by the employer;
- prepare a complaint to a supervisory authority or court;
- receive a notification that documents have been accepted for consideration;
- wait for the decision on the complaint.
The application must clearly state your requirements:
- reinstatement at work;
- changing the grounds for dismissal and, accordingly, the entry in the work book;
- payment of not received cash payment upon dismissal;
- collection of monetary compensation for days of forced absence;
- recovery of moral damages from the employer.
Is it possible to challenge if one is fired from a job without reason?
Before dismissing an employee, the employer issues an appropriate order. The employee must read the paper and leave his signature.
If you disagree with the grounds for dismissal, you should not refuse the assurance, since then an act of notifying the employee is formed. It is signed by witnesses.
However, it is recommended that you keep a copy of the order for presentation in court. It is advisable to contact the authority to challenge the employer’s action in case of any type of dismissal, since it is carried out illegally:
- at the initiative of the employer - on the basis of staff reduction, the employee’s inadequacy for the position held, absenteeism, failure to perform duties, and so on, if the employee does not agree with such grounds;
- at the employee’s own request, if the employee did not write such a statement or wrote it under threats;
- by agreement of the parties, if in fact the dismissal is forced.
In cases of dismissal of one’s own free will and by agreement of the parties, challenging the dismissal will not be easy, since the employee documents his consent, and in order to understand whether they can be challenged in court, it is necessary to prove the fact of involuntary resignation or coercion on the part of the company’s management.
Confirmation may include audio and video recordings of conversations, testimony of witnesses, and indirect evidence (for example, difficult financial situation).
The basis for a challenge may also be an incorrectly formatted application - for example, the absence of the phrase “at my own request” or the replacement of “I ask to be dismissed” with “to be relieved from office” (which does not mean a request to terminate the contract).
When labor disputes arise, the law predominantly takes the side of the employee. However, when considering cases of illegal dismissal, the evidence base plays a big role. Therefore, a smaller percentage of satisfaction of claims in favor of the plaintiff occurs when the employment relationship is terminated at will.
It is assumed that the citizen filled out the application voluntarily, but it can be difficult to refute this - evidence is needed.
In this case, in addition to audio, video recordings, correspondence, and witness testimony, indirect evidence plays a significant role. They justify the employee’s lack of reasons to change jobs: difficult financial situation, there were no interviews or offers from other employers.
For example, the regional Astrakhan court satisfied the citizen’s claim: on April 28, 2007, an illegal order was issued for her forced dismissal at her own request and a work book was brought to her home. However, on this day the woman had no reason to resolve the issue of terminating the employment relationship, since her daughter was discharged from the maternity hospital on April 28.
The fact is confirmed by medical documentation. As a result of the proceedings, the court took the circumstantial evidence into account and ruled in favor of the plaintiff.
Also in judicial practice there are cases of satisfaction of claims, where in applications employees wrote, instead of asking to be fired, to be relieved of their positions or duties. Subsequently, when considering the case, representatives of the law sided with the employees, recognizing the dismissal as illegal under Part 3 of Art. 77 TK.
It turns out that the citizens did not ask to terminate the contract, limiting themselves to removal from office. That is, the employer could resolve the issue by giving them another position.
According to 2020 statistics, claims for recognition of wrongful dismissal with further reinstatement of employees at work were satisfied by the court in 44% of cases. This percentage is growing every year, as the courts and civil society try to take the side of the least protected party - the worker.
According to representatives of law firms, the Labor Code of the Russian Federation assumes 70% protection of the rights of employees, therefore a correctly formed claim and a correct presentation of the situation in court can achieve a positive outcome of the case.
Appeal against illegal dismissal
If an employee believes that he was fired illegally, he can file an application to protect his rights and restore violated interests.
He has the right to appeal to supervisory authorities:
- labor inspectorate;
- prosecutor's office
You can also apply to the court, bypassing all supervisory authorities. But first you need to take measures to resolve the dispute out of court. To do this, the employee must write a complaint addressed to the director with a request for clarification of the situation.
The claim must be drawn up in 2 copies, one indicating the date the application was accepted for consideration and the number of the incoming document. If the applicant does not receive a written answer, or he is not satisfied with it, then he can already file a claim with the court.
Appealing dismissal due to redundancy
Reducing staff is a rather complicated procedure. If management has decided to hold such events, then it must be prepared to prepare a huge number of documents.
In addition, a special commission should be created, which is obliged to carefully study candidates for reduction. The following factors are taken into account for the study:
- length of service with this employer;
- level of qualifications and labor indicators;
- the presence or absence of benefits provided to certain categories of workers.
After conducting the study, the entire selected team must be notified at least 2 months before the start of reduction measures. Important! The employee must be paid severance pay in the amount of two salaries.
If one of the conditions is violated, the employee can appeal his layoff. Like dismissal for any other reason, this method of terminating the employment relationship can be challenged through the supervisory authority. It is enough to write a complaint, and the legality of dismissal and measures to reduce staff or number of employees will be checked.
If the purpose of the complaint is specifically reinstatement at work, then it is recommended to file documents with the court. The powers of the labor inspectorate are not as broad as those of the court. Labor inspectors can issue a decision on reinstatement at work only when a violation of the employee’s rights is obvious, for example:
- the employer did not notify on time;
- there is no written evidence that the dismissed person was offered another vacancy;
- the employee did not receive severance pay in full;
- the employee belongs to the category of workers who cannot be laid off. For example, he laid off a pregnant employee.
In addition, the employer’s responsibilities include drawing up and approving a new staffing table.
Dismissal for failure to perform duties
In this case, the employer will have to prove the legality of the reprimand and dismissal. Often, a job description specifies a duty in a generalized form, but the manager fires you for specific actions. In court, it may be found that nothing was actually violated, since the instructions did not contain clear instructions and prohibitions.
We invite you to familiarize yourself with Close relatives - who are they according to the law: Family Code of the Russian Federation, who is the closest relative, husband and wife
In addition, employers do not always request explanations from employees, and also violate the established deadline for waiting for explanations, which is 2 days. This may be a reason to cancel the dismissal and reinstatement.
Application to appeal dismissal
If an employee firmly decides that he was fired illegally and he will complain, he needs to know how to write a statement. If this is an application to the labor inspectorate or the prosecutor's office, then there is no unified form. But you should adhere to the rules prescribed in Art. 7 of Law No. 59-FZ.
This article specifies all the information that should be contained in a citizen’s appeal to government agencies. This:
- "header" of the document. The following is indicated here: information about the receiving party;
- information about the applicant – full name, residential address and contact details;
If an illegally dismissed employee decides to immediately go to court, then he should know that the statement of claim must meet the requirements prescribed in Art. 130 – 131 Code of Civil Procedure of the Russian Federation. If the claim does not meet these requirements, it will not be accepted for consideration, and the deadline for appealing illegal dismissal may be missed.
Example of an application to the labor inspectorate
State Labor Inspectorate in the city ____________ To the head of the state inspection ___________________ inspection address_____________ ___________________________ from ________________________, residing at the address: _______ ____________________________ contact tel. ___________________
Complaint (statement)
I work (worked) in ___________________________, located at: _______________, in the position of _________________. General Director (Director)______________ (tel. _______, Chief Accountant _____________________ (tel._____________).
(the specific essence of the complaint is stated)
I ask you to restore my violated rights.
I am attaching copies of the following documents to the complaint:
1.
2.
________________ Petrov P.I. Date, Signature
The advantages of contacting the labor inspectorate are that you do not need to contact lawyers to draw up an application and prepare the necessary documents. If inspectors reveal a violation of workers' rights, the employer, as well as officials, will be held administratively liable.
