Restoration to work - judicial practice. Consideration of labor disputes in court

In case of illegal dismissal, the employee has the right to take all possible measures to restore the violated labor rights(for more details on the actions of an employee required to recover at work, read the article "What to do in case of illegal dismissal?"). In particular, an employee can go to court with a claim for reinstatement at work.

After the court recognizes the dismissal as illegal and obliges the employer to reinstate the plaintiff at work, the stage of execution of the court decision begins, which in in this case has its own characteristics, both in relation to the employer and in relation to the employee. Next, we will describe the procedure for reinstatement at work by a court decision..

According to Art. 396 Labor Code RF, a court decision on the reinstatement of an unlawfully dismissed employee at work is subject to immediate execution. This means that immediately after the announcement of the decision, the employee can receive an extract from the decision and demand reinstatement at work, and the employer is obliged to immediately reinstate the employee. The fact of an appeal against the court decision by the employer does not affect his obligation to reinstate his job.

The judgment is binding on all persons throughout the territory of the Russian Federation. Therefore, if the employer participated in the court session in which the decision was made, then he is obliged to comply with it immediately - by general rule the day after the announcement of the decision. If he did not participate in the court session, then he has the right to demand from the employee to provide an extract from the court decision or a writ of execution, confirming that the court satisfied the employee's claim for reinstatement at work.

To reinstate at work, the employer is obliged to perform the following steps:

1. Issue an order to cancel the order of dismissal and reinstatement at work. The employee must be familiarized with this order against signature, if he refuses to sign, a corresponding act is drawn up. If the employee subsequently does not go to work, then this is the basis for his dismissal for absenteeism.
2. Make changes to the work book in accordance with clause 1.2 of the Instructions for filling out work books. The employer must indicate that the termination record is invalid and the employee has been reinstated in his previous job. In addition, in accordance with clause 33 of the Rules for maintaining and storing work books, an employee may demand to issue him a duplicate work book that does not contain a record of dismissal.
3. In fact, be allowed to work in the previous position.

In addition, the employer should amend the timesheet. The time of forced absenteeism is marked with the PV code or digital code 22.

If the employer does not comply with the court decision on reinstatement at work, then the employee must apply to the bailiffs-executors with a requirement to initiate enforcement proceedings. In this case, measures of compulsory execution of the court decision will be applied to the employer, and he may also be held liable for failure to comply with the requirements of the bailiff. In addition, the employee in this case may demand payment of the average earnings for the entire period of non-execution of the court decision.

If, at the time of the court's decision on reinstatement at work, the employer accepted another employee instead of the dismissed one, then the employment contract with such an employee is terminated on the basis of paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation. However, the employer should pay attention to the fact that dismissal on this basis is possible only if there are no other vacant positions, or the employee does not agree to these positions. Therefore, before dismissal, the employer should offer the employee replacing the position of the reinstated employee in writing with another job.

In conclusion, we note that the procedure for reinstatement at work is rather complicated and requires strict adherence to the prescribed order. Inaccurate actions by the employer can lead to new litigation and related costs.

The relevance of the article and its compliance with the legislation are confirmed as of January 01, 2017.

________________________________________________________

You may be interested in reading other articles on labor law.

Features of the rules for dismissal different reasons you should know to ensure the protection of your own rights. If the person disagrees with the employer's order to terminate the employment relationship, it is possible to defend the rights in court. In this way, it is possible to achieve not only recovery at the place of work, but also receiving payments due to forced absenteeism. It is necessary to recover at work, observing the norms of the law, personnel issues.

Labor Code of the Russian Federation

The rights of every working citizen are protected by the Labor Code of the Russian Federation. Article 392 of the Code discloses the issue of the right of a citizen who does not agree with dismissal to apply to the district court within one month, and for payments - within a year.

Attention

The term is extended if there are valid reasons.

Among them, for example, are the following grounds:

• illness of the citizen himself or his relative requiring care (with documentary evidence);
• being on a long business trip;
• other reasons.

The amount of compensation for loss of income during the period of forced absenteeism is calculated according to average earnings for the last year worked.

Average earnings calculated when taking into account:

• salary received from another employer;
• payments for hospital documents and unemployment benefits during forced downtime;
• the amount of the paid severance pay.

The procedure for calculating average earnings is reflected in Article 139 of the Labor Code. Payments are not exempt from taxation.

Documented moral damage caused by illegal dismissal (for example, treatment due to a nervous breakdown) is taken into account. The size of payments for moral damage (covered in Article 237 of the Labor Code of the Russian Federation) is decided by the court individually for each case. Payments are made upon the entry into force of the court decision.

Cancellation of a judgment

There are cases of disagreement between the employer and the court decision. He has the right, having reinstated the employee immediately, nevertheless, within 10 days, file a cassation appeal.

For your information

The panel of judges may overturn the decision of the district court on compelling grounds with a different decision to dismiss the claim against the dismissed person. With such a decision, the employment contract must be terminated due to the validity of the employer's position.

Based on a court decision. The question arises about the return of compensation payments received by a dismissed employee. This is allowed if the employee has proven the use of false information or forged documents.... In other cases financial resources are non-refundable.

Government Inspector's Order

Dismissal may refer to disciplinary action therefore, the dismissed person has the right to appeal it to the state inspection.

The State Labor Inspectorate (GIT) oversees compliance with the principles of legislation, organizing inspections to identify violations of rights. The GIT also influences the solution of labor law issues.

For your information

Government inspectors provide the prescriptions necessary for compliance. They have the right to issue instructions to employers on the need to eliminate violations of rights upon termination of employment contract and about prosecution.

However, orders can be issued by them only in case of obvious violations of the dismissal procedure. All controversial issues are within the competence of the court.

Additional Information

According to Article 356 of the Labor Code, state inspectors consider complaints about violations of the legal field, advise the parties on the norms of labor legislation, and check the fulfillment of requirements. The inspector can issue an order to cancel the dismissal, which the employer has the right to appeal in court.

Litigation in matters of reinstatement at work

Representatives of the judiciary in their work rely on the rich experience of judicial practice, which is regularly summarized and analyzed in the materials of the Supreme Court. This allows us to approach each issue more objectively, with the exception of excesses and mistakes.

Judicial practice shows that disputes about reinstatement at work occupy a leading position among cases related to the hiring of workers. About a third of court decisions in this category are accompanied by cassation appeals, but more than 80% of decisions remain unchanged. This is evidence of the validity of the decisions of the first court instance.

For your information

Of the considered labor conflicts it follows that in disputes on reinstatement at work, most employers do not have sufficient knowledge of the legal framework, incorrectly applying legal regulations... However, there are cases of deliberate disregard of these requirements.

In judicial practice, there are many examples when the courts side with the employee. The employer's actions reveal many violations of the dismissal procedure, including in the preparation of personnel documents.

Grounds for winning based on the summary of judicial practice:

• dismissal for reasons not covered by the TC;
• incompetence of the manager in matters of labor legislation, incorrect paperwork;
• admission of organizational errors during dismissal: failure to meet deadlines, not taking into account weighty reasons for the absence of an employee, other nuances;
• assignment of a dismissed citizen to the category of socially protected persons (pregnancy, for example).

Judicial statistics show that labor violations are gradually decreasing, but evidence of poor legal discipline is not yet rare.

Some nuances of judicial recovery in the workplace

Examples of reasons for the frequent consideration of illegal cases of dismissal in court.

1. The rules for formalizing dismissals have been violated (for example, there is no written notice with a signature in case of redundancies).
2. There is a proven fact of psychological pressure on the part of a manager upon dismissal. This happens, for example, during the liquidation of an enterprise, when a citizen writes a statement under pressure and, as a result, does not receive payments guaranteed by law. In this case, all the circumstances of the pressure are stated by the plaintiff when filling out the application.

Difficulties can arise for the following reasons:

• reason for dismissal - documented personal desire;
• the presence at the head of evidence of the employee's guilt (disciplinary offense);
• liquidation of the enterprise.

Upon liquidation of the institution, the employee cannot retain his job, but retains the right to relying payments.

Guarantees to an employee in case of judicial reinstatement at work:

• the person is saved workplace, labor function, position;
• seniority is subject to restoration with the inclusion of the time of forced absenteeism.

Additional Information

In the event of disputable (illegal) circumstances during dismissal, the employee has the right to recover and compensate for losses by filing a claim with the court. Labor legislation provides guarantees of protection against illegal dismissal.

Reinstatement at work by a court decision is subject to immediate execution by the employer. In practice, questions arise about the procedure for reinstating an employee on the basis of a court decision.

Briefly, in chronological order reinstatement at work by a court decision of an employee is as follows.

On the day of the court decision, the employer must issue an order to cancel the order to dismiss the employee and reinstate him at work, in his previous position on the basis of a court decision.

After the publication of the named order, the employee must be familiarized with it against signature. At the request of the employee, he must be handed a copy of this order.

After the issuance of the order, the personnel worker must correct the entry in the work book. An entry is made in it about the recognition of the dismissal record as invalid and a record is made on the employee's reinstatement at work by a court decision, indicating the above order.

In the employee's personal card, the record of dismissal is crossed out and a record is made about his reinstatement, reflecting all the details.

The time sheet is also amended. The period of time that has elapsed since the day of dismissal of the employee is marked with the "PV" code.

Since the entry into force of the court decision on the reinstatement of the employee at work, in accordance with Part 2 of Article 394 of the Labor Code of the Russian Federation, he must be paid the average earnings for the time of forced absenteeism, the amount of which is indicated in the court decision. In the event the employer appeals against the court decision on the reinstatement of the employee at work, the average earnings during the forced absence is not paid until the court decision enters into legal force.

An order is issued for the dismissal of the employee, who was recruited to the place of the employee restored by the court. However, the dismissal of this employee will be legal if it is impossible to transfer him with written consent to another job.

If the employee who was hired to replace the dismissed employee nevertheless leaves, then an order is issued to dismiss him, a work book is issued with a corresponding entry, wage arrears are paid and severance pay in the amount of two-week average earnings in accordance with Part 3 of Article 178 of the Labor Code of the Russian Federation.

It is necessary for the employer to carry out a court decision on the reinstatement of an employee at work, since the law provides for liability for failure to comply with such a decision.

The execution of the court decision is monitored by the bailiff service. As stated above, the judgment must be enforced immediately ... Otherwise, the bailiff may fine the employer:

organization in the amount of 30,000 to 50,000 rubles;

the head of the organization in the amount of 10,000 to 20,000 rubles.

Such amounts of fines are established by Part 1 of Article 17.15 of the Code of Administrative Offenses of the Russian Federation.

In addition to fines, the organization will have to pay the reinstated employee the average salary for the period from the date of the court decision to the day of its actual execution. The bailiff can discover a violation during the inspection or learn about it from the claimant's complaint.

Cancellation of a court decision on reinstatement at work by a higher court

An employer who does not agree with the decision of the court of first instance on the reinstatement of the employee in office has the right to appeal against it in the appeal, and subsequently in the cassation procedure. The procedure for filing such complaints is established in chapters 39 and 41 of the Code of Civil Procedure of the Russian Federation.

If a higher court overturns the decision of the district court, then the employer has the right to fire the employee again. At the same time, the employer has the right to start the dismissal procedure even in cases when the cassation instance sends the civil case for a new examination.

The order of dismissal in such cases must be issued on the day the ruling is made to cancel the court decision on reinstatement at work ... On the same day, a full settlement with the employee must be made and a completed work book must be issued to him.

The average earnings during the forced absence will remain with the newly laid off employee. An attempt to recover money, as a rule, ends in failure, since the courts consider that a reversal of the execution of the decision is possible only if the first instance made its decision on the basis of inaccurate testimony and evidence presented by the employee.

The company's gain in any instance means that an employee who was previously reinstated can be dismissed on the basis of a new court order. In this case, a special basis is applied - clause 11, part 1 of Art. 83 of the Labor Code of the Russian Federation (cancellation of a court decision or cancellation (recognition as illegal) of a decision of the state labor inspectorate to reinstate an employee at work).

In practice, a situation is possible when the court of cassation (this is not provided for in the appeal) overturns the decision of the court of the first and (or) appellate instance and, without resolving the case on the merits, sends it for a new consideration ... Many employers doubt the possibility of dismissing an employee in that case.

In fact, for dismissal on the indicated grounds, it is sufficient to have the accomplished fact of cancellation of the court decision on the reinstatement of the employee. This conclusion follows from the wording under paragraph 11 of Part 1 of Art. 83 of the Labor Code of the Russian Federation.

Such haste may not be justified if the new review ends in the employee's favor. However, a literal reading of the aforementioned norm allows the employee to be dismissed, regardless of whether the case was resolved on the merits by a higher court or not.

To dismiss an employee in connection with the cancellation of a court decision, you need to issue an order, which, as a rule, is drawn up in the form No. T-8. When drawing it up, you will have to determine two dates - drawing up a document and dismissing an employee.

6 months are allocated for filing a cassation appeal from the date of entry into force of the appellate ruling. There are no problems with the first date. Since such acts come into force from the date of their adoption (Articles 329, 391 of the Code of Civil Procedure of the Russian Federation), the employer has the right to terminate labor Relations with the employee, regardless of the time period for the preparation of final court orders. For example, if the court of appeal, at which the organization's claim was satisfied, took place on 04/14/2014, then on 04/14/2014 the employer can issue an order to dismiss the employee.

Determining the second date can be more difficult. Some courts consider that the date of termination of the employment contract should correspond to the date of the initial dismissal of the employee.

This position seems dubious. Reinstating an employee at work means resuming labor relations between the parties (employee and employer) in the same regime, as if there were no dismissals. After reinstatement and until a new (secondary) dismissal due to the cancellation of a court decision, the employee performs labor duties, enjoys the appropriate rights (for example, he can go on vacation), and the employer pays him his wages and makes deductions of insurance contributions.

Re-dismissal is carried out on a special basis, clause 11, h. 1, Art. 83 of the Labor Code of the Russian Federation, which is applied in case of cancellation of a court decision or cancellation (recognition as illegal) of a decision of the state labor inspectorate to reinstate an employee at work. This means that the new day of dismissal must coincide with the date of the actual termination of labor relations. Otherwise, the employee's rights will be unjustifiably infringed upon.

Thus, the employer has the right to issue an order to terminate the employment contract and dismiss the employee on the day of the court decision. If it is difficult to accomplish this, for example, in the case when the court session ended late, then it is advisable to wait for the employee at work the next day and then draw up all the necessary documents.

In addition to drawing up an order, on the last day of work, you need to finally pay off the employee by paying his wages). In addition, you will need to fill out a work book and his personal card. In these documents, as in the order, the grounds for the termination of the TD are indicated, provided for in paragraph 11 of Part 1 of Art. 83 of the Labor Code of the Russian Federation. If it is not possible to hand over the work book, then, by force, a notification is sent to the known addresses of the employee.

Reinstatement at work by order of the state court inspector

Restoration disputes are usually settled in the courts. But the GIT also has the ability to influence the fate of the dismissed employee.

Dismissal is possible not only due to the cancellation of the court decision, but also in connection with the recognition of the previously issued order of the state labor inspector as illegal. These acts are appealed against on the basis of Part 1 of Art. 320 Code of Civil Procedure of the Russian Federation (court order) and Art. 361 of the Labor Code of the Russian Federation (prescription). In the latter case, you need to contact the superior head of the GIT employee, the chief state labor inspector and (or) the court.

Previously, there were disputes about the legality of the employee's reinstatement on the basis of an order. It was noted that such decisions are not within the competence of the GIT, since this is the prerogative of the courts.

In the Review of Judicial Practice (approved by the Presidium of the RF Armed Forces on 01.06.2011) he put an end to these disputes. The order to revoke the order of dismissal issued by the State Inspectorate is binding on the employer.

But he can only be given out in case of a clear violation of the order of dismissal. An unobvious or controversial situation is resolved in court (ruling of the RF Armed Forces dated 10.01.2014 No. 5-KG13-146).

Often, employers expect to reimburse the costs after considering the case on appeal, since the Code of Civil Procedure of the Russian Federation and the Labor Code of the Russian Federation do not prohibit turning a court decision in this instance.

In the overwhelming majority of cases, the courts side with the workers. In their opinion, such a guarantee of the protection of workers' labor rights, such as limiting the recovery of the amounts paid upon restoration, does not depend on the level of the instance that canceled the court decision executed by the employer. Therefore, even at the level of appeal, the company has little chance of defending its position. Such is the prevailing arbitrage practice.

Clarifications of the Plenum of the Supreme Court

The nuances of actual admission were revealed by the Supreme Court of the Russian Federation in a new resolution of the Plenum. It deals with enforcement proceedings, including questions about the reinstatement of workers. The employer's task is to enable the employee to fully fulfill the previous labor duties. For example, send him for a physical examination. Otherwise, the bailiff will decide that the employer has not reinstated the employee. For such a delay, the company will pay an execution fee, and the employee will charge the average wage. So do not wait until the employee demands to be admitted to work. Cancel the layoff and send him a letter about the readiness of the workplace. After that, it will not be possible to accuse the company of delaying the restoration. Decide how to pay for a temporary absence. Pay immediately the average earnings for only 3 months, and the employee will receive the rest after the appeal. If the court indicated that the employee is entitled to the entire amount on the day of recovery, then there are two ways: to challenge the decision or to issue all the money. The last option is suitable for those who will not go to challenge the restoration.

For the delay in recovery, the employee will charge an average wage.

The employee must be reinstated at work immediately. The longer the employer does not comply with the court decision, the more he will receive. For the delay in recovery, the employee will receive compensation based on the average earnings. And if he received regular bonuses, then the court will add them to the salary.

An apparent delay in recovery is when the employer deliberately prevents an employee from entering the workplace. But employers also make a number of other mistakes, which the court will regard as a delay in recovery.

You should not wait for the employee to bring a writ of execution or demand in writing to restore it. Employee's admission to performance functional responsibilities should be done immediately after court session... And it doesn't matter whether the court will indicate in the operative part that it is necessary to restore it immediately.

It happens when the execution of a court decision does not occur due to the absence of a position. The position of a laid-off employee is often removed from the staffing table. The same happens when the staff or number is reduced. But this is not a hindrance to the recovery of an employee. You need to add one to staffing table with next day after the court makes a decision.

Sometimes I don’t reinstate an employee because his position is occupied. After the employee is dismissed, another specialist may be hired for his position. However, this is not a reason for non-execution of a court decision on reinstatement at work. In this situation, it is necessary to transfer the second employee to a free rate (part 2 of article 83 of the Labor Code of the Russian Federation). If it is not there, then dismiss according to clause 2 of part 1 of Art. 83 of the Labor Code of the Russian Federation. The date of dismissal will be the day the court makes a decision on reinstatement.

In some cases, admission to work is difficult due to the liquidation of the unit. The employee will have to be reinstated, even if the employer has liquidated the structural unit. Since there is no work for the employee, on the day of recovery you need to enter it into a simple or issue annual vacation... For paid leave outside the schedule, an employee statement is required. Next, you need to agree with the employee about dismissal by agreement of the parties or reduce the staff.

So, the courts do not delve into the problems of the employer arising from the restoration of the employee. Therefore, you first need to comply with the court's decision. After the employee starts work, it is possible to decide the question of his future fate.

When an employee does not return to work after reinstatement, it is an abuse of the right. He is not entitled to an average salary for the delay in the execution of the decision.

Sometimes workers deliberately ignore the fact that the court reinstated them at work. Then workers go to court for average earnings due to the delay in the execution of the court decision.

The employer will benefit if the employee does not return to work after recovery or go to court for a writ of execution.

The bailiff will close the writ of execution after the actual admission to work

To prevent the employee from collecting additional money from the company, the court's decision should be executed the next day after it is issued.

There are no related articles yet.

Termination of an employment contract is possible both on the initiative of the employee and on the initiative of the employer. And the employee does not always agree with the employer's decision. He can defend his rights in court, thereby achieving reinstatement in the workplace and payment for the forced absence.

Courts often take the side of the offended employee, since the employer often violates the dismissal procedure - incorrectly draws up personnel documents, misses the employee's notification deadline, and so on. All these violations can lead to the fact that the court recognizes the actions of the employer as illegal, and the employee will be reinstated in the previous workplace. In this case, the employer will have to pay the employee for the days of forced absenteeism according to his average daily earnings.

But it is also necessary to restore the employee to the previous position correctly. It is necessary to comply not only with the norms of labor law, but also personnel issues.
In Art. 392 of the Labor Code of the Russian Federation states that an employee has the right to go to court for the protection of his violated labor rights within one year from the moment when these rights were violated. However, if the employee believes that the employer fired him illegally, he only has 1 month from the date of firing. The beginning of this "moment" upon dismissal is the day when the employee got acquainted with the order of dismissal, or the day when he received his work book with the corresponding entry in his hands.

The employee files a claim with the district court at the employer's location or at his place of residence. The court decides to reinstate the plaintiff in the workplace with the payment of the due compensation. According to Art. 396 of the Labor Code of the Russian Federation, the employer must immediately execute the court decision and accept the employee back. In Art. 211 of the Code of Civil Procedure contains norms indicating that the employer must immediately execute the court ruling, without waiting for its entry into legal force.

Even the employer's submission of a cassation appeal to a higher court does not exempt him from immediate execution of a court decision on the reinstatement of an unlawfully dismissed employee.

Reinstatement at work in case of illegal dismissal

Illegal dismissal can occur not only at the initiative of the employer, but also by agreement of the parties, and by on their own the employee himself. The employee has the right to apply to the district court within one month from the date of dismissal.
This period can be extended if the plaintiff had a valid time limit for his admission. The concept " the serious reason»Is not disclosed by law, therefore, the recognition of one reason or another as a valid reason remains at the discretion of the court. But as the jurisprudence shows, these reasons include:

• the plaintiff's illness, which is confirmed by the presence of a certificate of incapacity for work;
• illness of a close relative who required the plaintiff's medical attention. This circumstance can be confirmed by an extract from the hospital or witness testimony;
• long business trip of the plaintiff;
• other reasons.

The court may consider the unlawful dismissal of the plaintiff if it happened:

• on the initiative of the employer, but in violation of the rules for processing the termination of the employment contract. For example, an employee is dismissed due to staff reductions, but he was not notified in writing, and, accordingly, his signature on the notification is not. This is a violation of the rules for terminating employment contracts with employees when the employer is downsizing;
• at the own request of the plaintiff or by agreement of the parties, but under psychological or moral pressure from the employer. Unfortunately, unscrupulous employers can apply to their employees "methods of additional influence" in the form of moral pressure, or pressure on the psyche. This most often happens when an enterprise is liquidated or staff downsizing occurs. In order not to pay their employees all the compensations required by law, the employer prefers to “push”. As a result, the employee writes a statement of his own free will or signs a dismissal agreement without receiving the due amounts.

When filing a claim in court for illegal dismissal under additional pressure on the part of the employer, the plaintiff must state all the circumstances in the application. As a rule, the court takes the side of the plaintiff, giving him time to prove these facts. But the burden of proof and collection of evidence falls on the plaintiff's shoulders.

To protect his violated labor rights, the employee must file with the district court statement of claim... The plaintiff has an alternative to choosing the place of consideration of the case - it can be a court at the location of the employer, or a court at the place of residence of the employee himself.

The statement of claim must be submitted only in writing in compliance with the provisions of Art. 131 and 132 of the Code of Civil Procedure of the Russian Federation, which indicate all the necessary information, which should be contained in the statement of claim. An incorrectly drawn up statement may become the basis for refusal to accept the claim and its further consideration on the merits. A sample statement of claim to the court should look like this, and it should contain the following information:

• full name of the court to which the claim is filed;
• information about the plaintiff - his name, address, where he lives, contact information;
• information about the employer (respondent) - his full name. It is necessary to write as the employer indicated in the work book when filling out the dismissal record. You also need to indicate the address where the company is located, and all the contact information that the plaintiff has;
• name of the document indicating the grounds for filing. In this case, you need to indicate "Statement of claim for reinstatement at work";
• then the plaintiff sets out the essence of the claim in detail and in detail, but indicates only the facts that are relevant to the case. This:
  • period of work with this employer. It must be indicated in the same way as in the work book;
  • the position in which the plaintiff worked;
  • details of the order of dismissal;
  • prerequisites for dismissal;
  • the plaintiff's opinion on the illegality of the dismissal, as well as the reasons for such an opinion. If the plaintiff was subjected to unacceptable pressure from the employer, then it is necessary to describe how this happened and under what circumstances;
  • further, the plaintiff presents his claims to the employer, relying on the norms of the law;
  • the claimant then sets out his request. In this case, it is the restoration of the workplace in the previous position, the recovery from the employer of compensation for forced absenteeism according to the average earnings, as well as the recovery from the employer of compensation for moral damage;
  • a list of documents that the plaintiff attaches to the application to confirm his words.

The court must consider the claim of the unlawfully dismissed employee within one month from the date of its filing. If the decision is made in favor of this employee, then the employer is obliged to comply with it immediately and restore the employee to the previous workplace.

How to register an employee after a court decision on reinstatement at work?

For this, the employer must issue an order on personnel about the restoration of the employee. Unified form there is no such order, so it is drawn up in free form, but with all the necessary details. Such as:

• serial number document;
• the date of its compilation;
• employee data;
• the position to which he is being reinstated;
• salary or tariff rate;
• the basis for restoration - the details of the court ruling;
• the position of the head, his signature, as well as a transcript.

The employee must familiarize himself with this order and put his signature. If the employee refuses to sign the order, or is absent from this moment in the workplace, the employer must take all possible measures to inform the employee.
The employee's behavior is formalized by the relevant act, which reflects the following points:

• the employee's refusal to familiarize himself with the order for reinstatement at the workplace;
• the employee is informed in another way about the issuance of the order and is not able to immediately start work;
• evades the performance of his immediate duties.

Based on the issued order, an entry is made to the reinstated employee in the work book. It is introduced in accordance with Resolution No. 69 as follows:

• Column No. 1 - serial number of the record;
• Column No. 2 - the date of restoration of this employee at the workplace;
• Column No. 3 - the following entry is made here: "The entry by number (the serial number of the employee's dismissal entry is indicated) is invalid, reinstated at the previous job";
• Column No. 4 - details of the order for restoration. Some personnel officers erroneously indicate the details of the court ruling as the basis for restoration. This is not true! The court's decision is the basis for reinstatement in the previous job, as well as the issuance of an order. And the basis for making an entry in the work book is precisely the order.

After the order is issued and an entry is made in the work book, it is necessary to make changes to the timesheet. On the basis of a court decision, the employer issues an order for the main activity on amending the timesheet.

According to Art. 234 of the Labor Code of the Russian Federation, the employer must also pay the employee compensation for the days of forced absenteeism, as well as moral damage that could have been caused to this employee by illegal dismissal. For example, such actions of the employer led to a nervous breakdown in the employee, which entailed expensive treatment. The employee has the right to claim reimbursement for the amount spent on medicines and treatment. It will be moral damage! The employee calculates the amount of such harm himself, applying the calculation to the claim, and all the necessary checks. The court reserves the right to reduce the amount of non-pecuniary damage.

But the court has no right to reduce the amount of compensation for forced absenteeism. It is calculated based on the average earnings of this employee for the last calendar year.
When calculating the average earnings to pay compensation for forced absenteeism, the following is taken into account:

• salary received by an employee from another employer, regardless of whether he worked for him on the day of dismissal or not;
• manuals on sick leave which were paid to this employee during the period of his forced downtime;
• unemployment benefits, which he received during forced absence;
• severance pay that was paid to him upon dismissal. This is stated in clause 62 of the Resolution of the Plenum of the RF Armed Forces dated March 17, 2004 No. 2.

An employee can sue and win, and the position from which he was fired has already been cut. How to properly formalize the reinstatement at work by a court decision when the position is reduced? Since the employee must return to his previous position and receive the same salary, the employer must return the reduced position to the staffing table.
To do this, he issues an appropriate order, according to which the position is returned. Then the above procedure begins to restore the employee to the previous place.

An employee can write a statement not only to the court, but also to labor inspection, and you can also try to negotiate with the employer, and carry out the restoration at work without trial. But for this it is necessary to have strong evidence of the violation by the employer of the rules for dismissing employees, as well as the norms of labor legislation.
Such restoration can be formalized with a simple application for employment and making a corresponding entry in the work book. But the employee runs the risk of not receiving compensation for forced absenteeism and for moral damage caused to him.

For the employer's untimely fulfillment of the court ruling on the reinstatement of the employee in the previous workplace, the employer is liable in accordance with Art. 17.15 of the Administrative Code of the Russian Federation and with Art. 396 of the Labor Code of the Russian Federation - payment of a fine and compensation to an employee of the difference in earnings.

Employees often dispute the dismissal of their own free will and by agreement of the parties. And even when almost every second employee believes that he was treated unfairly. Even when all grounds for dismissal have taken place, employers often violate established guidelines, which can also lead to negative consequences... As a result, the employer has to correctly formalize the reinstatement at work by a court decision.

Term of reinstatement at work in case of illegal dismissal

As a general rule, a court order is subject to execution after its entry into legal force. However, in cases of termination of an employment contract, the law makes an exception to the rules - reinstatement at work prescribes to be carried out immediately, i.e. the day after the court's decision. This requirement is not even affected by the fact that the employer does not agree with the court order and intends to appeal it on appeal. If the execution of such a decision is delayed, the court may issue a ruling on the payment of the average earnings to the employee for the entire period of the delay ( Art. 396 of the Labor Code of the Russian Federation).

We follow the procedure

To do this, the employer must issue an order on personnel to cancel the order to dismiss and reinstate the employee. There is no established form of such an order, therefore it is drawn up in free form, indicating all the necessary details:

order number

date of its compilation

details of the canceled order to terminate the employment contract

employee data

position to which he is reinstated

salary or wage rate

basis for restoration - the details of the court decision

manager's signature

The employee must be familiarized with this order against signature.

Order to cancel dismissal and reinstate an employee

After the publication of the order, it is necessary to make changes to the employee's work book. Clause 1.2 establishes the following algorithm for making such changes:

In column 1 indicate the ordinal number of the record

In column 2 - the date of the entry

· In column 3 they write "The entry for such and such number is invalid, reinstated at the previous job"

Some employers in column 4 of the work book indicate a link to the court decision. This is not true, since reinstatement to work in court is the basis for the employer to issue a corresponding order, and not for making an entry in the work book.

Financial questions

When reinstating at work, the judicial authority makes a decision on the recovery in favor of the employee of the average earnings for the entire period. In accordance with Art. 211 Code of Civil Procedure of the Russian Federation decision to pay wages three months in advance is also subject to immediate execution. The obligation to make all other payments awarded to the employee, incl. compensation for moral damage occurs only after the entry into force of the court decision.

What to look for

Taking into account the general rules for the rigor of the execution of court decisions by all organizations and citizens, the commission of actions aimed at the execution of the court decision is the responsibility of both parties to the employment contract: both the employer and the employee. However, the procedure for reinstatement at work by a court decision is not clearly spelled out in legislation. Article 106 of the Federal Law "On Enforcement Proceedings" clearly establishes only the obligations of the employer in the framework of the execution of the court order, which consist in the cancellation of the order to dismiss and the actual admission of the employee to the performance of previous labor duties.

Therefore, a reinstated employee is sometimes in no hurry to take up his duties and does not appear at the enterprise at all. In such cases, all possible measures should be taken immediately to notify the employee about the issuance of an order for his restoration. Send the employee the appropriate ordered letter with a notification, to which attach a copy of the order. From the point of view of the law, such actions will clearly indicate that the employer has complied with the court decision, and you will also prevent the possibility of a subsequent one.

In accordance with clause 1.2, if the dismissal is recognized as illegal, the employee has the right to receive the dismissal without a defamatory record of dismissal by submitting an appropriate application. In this situation, all existing records from the work book are transferred to the duplicate, except for the one that is recognized as invalid.

Arbitrage practice

An employee reinstated at work by a court order did not go to work and was fired for absenteeism. Then he went to court again, considering the dismissal illegal, t. To. the employer did not inform him about the cancellation of the order to terminate the employment contract, and he did not know that it was reinstated.

The court satisfied the claim, believing that the reinstatement of the employee at work entails the obligation of the employer to inform the employee about the cancellation of the order to terminate the employment contract and reinstate him in his previous job.