Can the labor inspectorate reinstate you at work? Reinstatement at work by order of the labor inspectorate

In this article you will get the answer to the question: which government bodies can and should be contacted to protect your rights in case of illegal dismissal. I will also tell you which government agencies are effective to contact in case of illegal dismissal, and which are not. So, illegal dismissal: where to go.

There are three government bodies that can help with illegal dismissal: the federal labor inspectorate (state labor inspectorate), the prosecutor's office and the court. Let's figure out what powers they have in case of illegal dismissal of an employee.

Powers of the Federal Labor Inspectorate in case of illegal dismissal

The Federal Labor Inspectorate is provided for by the Labor Code of the Russian Federation as a specialized government body that supervises compliance with labor legislation and other regulatory legal acts containing labor law norms.

On behalf of the inspectorate, inspections are carried out by state labor inspectors, who are of two types. Some are involved in checking legal issues, others - checking compliance with safety regulations. In case of illegal dismissal, the employer will check compliance with labor laws by a legal state labor inspector.

In order for the employer to be inspected by the federal labor inspectorate in case of illegal dismissal, the employee must write a statement.

Based on the results of an inspection based on an application for illegal dismissal, the state labor inspector has the right to apply the following measures (Article 357 of the Labor Code of the Russian Federation):

Firstly, issue a binding order to the employer to eliminate violations of labor legislation and to restore violated rights.

Secondly, bring the employer to justice - draw up a protocol on an administrative offense, consider the case of an administrative offense and impose a punishment.

Can a state labor inspector force an employee to be reinstated? Yes, the state labor inspector has the right to issue an order to reinstate the employee at work. This is evidenced by the following norms of the Labor Code of the Russian Federation.

Article 234, which deals with the employer’s obligation to compensate for material damage to the employee in the event of illegal deprivation of the opportunity to work. An article of the Labor Code of the Russian Federation states that such an obligation arises when there is a refusal to execute or untimely execution of the decision of the state legal labor inspector to reinstate the employee to his previous job.

Article 373 regulating the procedure for taking into account the motivated opinion of the elected body of the primary trade union organization when dismissing an employee at the initiative of the employer. I quote: the state labor inspectorate, within ten days from the date of receipt of the complaint (application), considers the issue of dismissal and, if it is recognized as illegal, issues the employer a binding order to reinstate the employee at work with payment for forced absence.

In practice, I do not advise you to rely unduly on the labor inspectorate and delay in filing a claim in court for reinstatement. There are several reasons why you should not rely on GIT:

The Federal Labor Inspectorate, as a rule, checks the procedural aspects of dismissal - whether the procedure for making a decision on dismissal has been followed. The labor inspector will not interrogate witnesses to absenteeism, your witnesses who say that there was no absenteeism, will not compare their testimony and evaluate which ones can be trusted and which cannot. The labor inspector will not check whether a reduction is actually being carried out, whether the reduction is being carried out formally to dismiss an unwanted employee, etc.

The labor inspector's order can be challenged in court within three months from the date of its issuance. The court can cancel it not only due to unfoundedness, but also due to violation of the verification procedure. When appealing an order, the employer may file a petition for interim measures in the form of suspension of the order.

The period for consideration of an application by the federal labor inspectorate is one month.

And finally, the Labor Code of the Russian Federation establishes a shortened period for going to court in disputes about dismissal - 1 month from the date of delivery of a copy of the dismissal order or from the date of issue of the work book. This period can be restored, but it is better not to risk it again.

Powers of the prosecutor's office in case of illegal dismissal

The prosecutor's office has the right to conduct audits of any legislation. The prosecutor's office is an accessible body, because there is a prosecutor's office in every district (there are inter-district ones). The prosecutor's office is the most “terrible” government body. At least, this opinion has taken root in the minds of the majority of Russian citizens. The prosecutor's office will definitely help - this is another common opinion.

Will the prosecutor's office help with illegal dismissal?

If we put aside formalities, the powers of the prosecutor's office are not much different from the powers of the federal labor inspectorate. The prosecutor's office, like the State Labor Inspectorate, conducts inspections and, based on the results of the inspections, brings administrative liability, and may require the employer to eliminate the violations committed - to make submissions on eliminating violations of labor legislation. Likewise, nowhere in the law does it say that the prosecutor cannot demand that an employee be reinstated. Most likely, he will send the employer a protest (demand to cancel) the illegal dismissal order.

But like the federal labor inspectorate, the prosecutor’s office, as a rule, checks compliance with the order (procedure) of dismissal. You can competently unsubscribe from the protest and the prosecutor’s presentation. Want to know how? The prosecutor's office conducts an investigation within one month. As a rule, prosecutors are overloaded with work and will have very little time to respond to your complaint about illegal dismissal.

Although it is possible that contacting the prosecutor's office will help you get reinstated at work. Perhaps the employer will be afraid of the prosecutor's inspection. It is possible that if all possibilities for protecting your rights have been exhausted, the prosecutor will file a lawsuit in your interests with a claim for reinstatement at work. This right is granted to him by Art. 45 of the Civil Procedure Code of the Russian Federation.

Ultimately, contacting the federal labor inspectorate and the prosecutor's office is an excellent way to relieve yourself of responsibility for your future. Maybe they will help, maybe not. In the latter case, all responsibility can be placed on the state. For those who want to decide their destiny on their own, there is only one option - going to court.

Powers of the court in case of illegal dismissal

The court is the only government body that finally resolves the dispute over illegal dismissal. The court decision is binding. There is a federal bailiff service that enforces court decisions.

The court may rule on reinstatement, change the wording of the reason for dismissal, collect monetary compensation for unlawful deprivation of the opportunity to work in the amount of average monthly earnings, and also recover compensation for moral damage.

Some points you need to know when going to court.

The period for filing a lawsuit in disputes over dismissal is one month from the date of delivery of a copy of the dismissal order or from the date of issue of the work book. The deadline can be restored, but it is better not to risk it.

The employee is exempt from legal costs, including payment of state fees.

Monitoring the implementation of the norms and provisions of labor law is assigned, in accordance with Art. 353 of the Labor Code of the Russian Federation, to the State Labor Inspectorate. Employees have the right to file complaints to this supervisory body when labor rights and interests are violated by the employer.

Often, during a staff reduction or liquidation of an enterprise, a manager, reducing paperwork and personnel work, may dismiss an employee inappropriately, which is a gross violation of labor law. Then the employee can file a complaint with the labor inspectorate at the place of registration of the employer.

Within one month from the date of receipt of the request, inspectors will check the actions taken by the employer. If they find these violations, an order for reinstatement will be issued based on the decision of the labor inspectorate. In addition, the employer is obliged to issue the employee a salary for a given period, which is calculated based on the employee’s average income before dismissal.

Compliance with the instructions of the labor inspectorate

In accordance with the provisions set out in Art. 396 of the Labor Code of the Russian Federation, the decision on reinstatement at work is subject to immediate execution. If completion is delayed due to the fault of the employer, he compensates the employee for the days of forced downtime in the amount of the average salary or pays him the difference. However, in addition to the fact that there is reinstatement at work by the labor inspectorate, other options are possible:

• based on the submission of the prosecutor's office;
• by decision of a judicial authority;
• after staff reduction.

Each of them requires separate consideration.

Thus, in addition to the labor inspectorate, the employee has the right to write a complaint to the prosecutor’s office at the place of registration of the employer company. In it, he points out all possible violations and necessarily provides their evidence base. Then the prosecutor carries out an inspection at the enterprise - if these violations are detected, an order will be issued to reinstate the employee to his position. Like the decision of the labor inspectorate, it is subject to immediate implementation.

If reinstatement at work is carried out through the court, then the employee must contact this body no later than 1 month from the date of illegal dismissal. This period begins to count from the day the order is delivered to him.

The judicial authority considers such cases on the merits, but the employee must himself collect evidence of illegal dismissal and present it along with the application. In this case, the employee must comply with all personnel procedures upon dismissal - for example, sign the familiarization order.

The signature does not mean that he agrees with the order, but that he has familiarized himself with it. A copy of the order can be kept by the employee, as well as other documentation related to his work activity and subsequent dismissal. The employer has no right to prohibit this.

Features of recovery after reduction

Staff reduction is a fairly common reason for dismissal, and the procedure itself is very lengthy. The employer and personnel officer have the obligation to prepare a huge amount of documentation, which gives rise to so many violations of labor legislation. Employees dismissed in this way have the right to file a complaint with the labor inspectorate, court or prosecutor's office.

Article 179 of the Labor Code of the Russian Federation regulates the categories of employees who have preferential rights at work during layoffs. If the employer did not take this right into account, then they can write a complaint. In the provisions set out in Art. 396 of the Labor Code of the Russian Federation, it is stated that the execution of court decisions on reinstatement to a position is subject to immediate execution by the employer. The requirement is considered satisfied if the employee is reinstated at his previous job or the dismissal order is canceled.

The employer must follow the following algorithm of actions when reinstating employees:

• issuing an order to cancel the decision to dismiss the employee;
• familiarization of the employee with the order against signature;
• making appropriate changes to the work book;
• actual admission of an employee to perform his direct functions.

These actions should be carried out no later than the first working day from the moment the employer receives a writ of execution or a decision of a judicial authority.

Most problems usually arise in the case of reinstatement at work by court decision if the position has been reduced. Then the employer should issue another order that a new position is being introduced into the staffing table.

At the same time, wages should not be lower than they were before the reduction. In addition, the employer should pay the employee compensation for forced absences. Payments are made based on average earnings before layoffs.

Experienced lawyers of our company will provide competent assistance in resolving such issues. We will not only advise and inform, but also represent the interests of our customers when contacting higher authorities, regulatory authorities, courts and the prosecutor's office. Our lawyers have extensive experience in the labor field, so they offer comprehensive and effective solutions. Contact us!

Supervision over the implementation of norms and the provisions of labor law, according to Art. 353 of the Labor Code of the Russian Federation, carried out by the State Labor Inspectorate. An employee has the right to file a complaint with this government supervisory body in cases where the employer violates his labor rights and interests.
Often, when downsizing or liquidating an enterprise, an employer, trying to reduce paperwork and personnel work, fires employees inappropriately. This is a violation of labor law. An employee can write a complaint to the labor inspectorate at the location of the employer.

Within 30 days of receiving the complaint, inspectors must conduct an audit of the employer's actions. If these violations are discovered, an order will be issued to the employer to reinstate the illegally dismissed employee in the workplace. In addition, the employer will have to pay the employee wages for forced downtime, calculated based on the employee’s average earnings before dismissal.

According to Art. 396 of the Labor Code of the Russian Federation, the decision on reinstatement in case of illegal dismissal is subject to immediate execution. If the execution of the decision is delayed due to the fault of the employer, he will be obliged to compensate the employee for days of forced downtime in the amount of average earnings or pay him the difference in earnings.

Reinstatement at work on the basis of the prosecutor's office

In addition to the labor inspectorate, the employee has the right to write a complaint to the prosecutor’s office at the employer’s location.
He writes a complaint to the prosecutor's office, indicating all violations and, without fail, provides evidence of these violations. The prosecutor is conducting an inspection at the enterprise. If these violations are revealed, the prosecutor will issue an order to reinstate the employee in his workplace.
The order of the prosecutor, as well as the labor inspector, is subject to immediate implementation.

Reinstatement by court decision

In addition, the employee can go to court within 1 month from the date of illegal dismissal. The “countdown” of time begins from the moment the employee is given the dismissal order.
The court will consider the case on its merits. But the employee must himself collect evidence of his illegal dismissal and present it to the court along with the claim.
The employee must follow all personnel procedures upon termination of employment. He must sign the order for familiarization. The employee’s signature on the dismissal order does not mean his consent (as many people think), but acquaintance. The employee has the right to keep a copy of the order, as well as other documents related to his work activity and subsequent dismissal. The employer has no right to interfere with him.

Reinstatement after layoff

Reducing the number of employees is the most common reason for dismissal. This procedure is quite lengthy. The employer, together with the personnel officer, must prepare a lot of papers and documents. This is why so many violations of labor laws occur during staff reductions. An employee can file a complaint with the labor inspectorate, the prosecutor's office or the court.

In Art. 179 of the Labor Code of the Russian Federation lists the categories of employees who have a preferential right to remain at work during layoffs. If the employer does not take into account this right of the employee, then the employee can write a complaint.

According to Art. 396 of the Labor Code of the Russian Federation, execution of a court decision on reinstatement at work is subject to immediate execution by the employer. The request for reinstatement is considered satisfied if the employee is reinstated to his previous job or the order to dismiss him is cancelled.

The employer must take the following actions when reinstating an employee:

• Issue an order to cancel the order to dismiss the employee. The employee must also be familiarized with this order by signing
• Make appropriate changes to the employee’s work book
• Actually allow the employee to perform his direct job duties

These actions must be carried out no later than the first working day from the date the employer receives a writ of execution based on a court decision.

Difficulties arise when reinstatement at work by court decision, when the position is reduced. In this case, the employer must issue an additional order to introduce this position into the staffing table. The remuneration for the newly introduced position cannot be lower than it was before the reduction.
In addition, the employer must pay the employee compensation for forced absence. Compensation is paid based on the employee’s average earnings before his reduction and dismissal.

The procedure for my dismissal due to redundancy was violated. Filed a complaint with the labor inspectorate. There is an order to reinstate him at work. The order has not yet been canceled, but a personal conversation with the director showed the hellish prospect of my exit - either voluntary dismissal or an article would follow. Today baked 2 months after my dismissal. Can I, without waiting for a written invitation to my previous job (from day to day), get a job in another place?

• Question: No. 611 dated: 2014-04-23.

In accordance with Art. 353 of the Labor Code of the Russian Federation, federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms is carried out by the federal labor inspectorate in the manner established by the Government of the Russian Federation.

By virtue of Art. 354 of the Labor Code of the Russian Federation, the federal labor inspection is a single centralized system consisting of a federal executive body authorized to conduct federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms, and its territorial bodies (state labor inspectorates).

In accordance with Art. 357 of the Labor Code of the Russian Federation, state labor inspectors, when exercising federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms, have the right:

present to employers and their representatives mandatory regulations on eliminating violations of labor legislation and other regulatory legal acts containing labor law norms, on restoring the violated rights of employees, bringing those responsible for these violations to disciplinary liability or removing them from office in the prescribed manner.

By virtue of Art. 394 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.

The body considering an individual labor dispute makes a decision to pay the employee the average salary for the entire period of forced absence or the difference in earnings for the entire period of performing lower-paid work.

At the request of the employee, the body considering an individual labor dispute may limit itself to making a decision to collect compensation in favor of the employee.

If the dismissal is declared illegal, the body considering the individual labor dispute may, at the request of the employee, decide to change the wording of the grounds for dismissal to dismissal of one’s own free will.

By virtue of Art. 395 of the Labor Code of the Russian Federation, if the body considering an individual labor dispute recognizes the employee’s monetary claims as justified, they are satisfied in full.

According to Art. 396 of the Labor Code of the Russian Federation of an illegally dismissed employee, on reinstatement of the employee to his previous job subject to immediate execution. When delayed the employer of the execution of such a decision, the body that made the decision makes a determination to pay the employee for the entire time of delay in the execution of the decision the average earnings or the difference in earnings.

In accordance with 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.

Thus, in order to receive an order for reinstatement at work, to receive compensation under Art. 396 Labor Code of the Russian Federation. After being reinstated at work, write a letter of resignation of your own free will, agree with the employer on the date of dismissal and look for another job.

Attention! The information provided in the article is current at the time of publication.

The employee, in whose favor a court decision was made to reinstate him, then turned to the labor inspectorate with a statement to bring the employer to administrative responsibility for illegal dismissal. The employer executed the court decision on reinstatement in full with the payment of all required compensation.
Can the state labor inspectorate hold an employer administratively liable for violating labor laws?

In accordance with the Labor Code of the Russian Federation, everyone has the right to protect their labor rights and freedoms by all means not prohibited by law. Methods of protecting labor rights include, among other things, judicial protection, as well as state control (supervision) over compliance with labor legislation and other regulatory legal acts containing labor law norms (Labor Code of the Russian Federation).
At the same time, as follows from the Labor Code of the Russian Federation, a person’s appeal to the court for protection of his labor rights excludes the possibility of considering the same issue by the federal labor inspectorate and issuing an order to the employer.
At the same time, it must be remembered that bringing a person to administrative responsibility is possible only after the initiation and consideration of a case of an administrative offense. In turn, administrative cases on violations of labor legislation and other regulatory legal acts containing labor law norms (Administrative Code of the Russian Federation) are initiated on the basis of a protocol on an administrative offense or a ruling on the initiation of a case on an administrative offense if it is necessary to conduct an administrative investigation (clause 3 and 4, part 4, article 28.1, part and Code of Administrative Offenses of the Russian Federation), compiled or issued by the federal labor inspectorate (and Code of Administrative Offenses of the Russian Federation, Labor Code of the Russian Federation).
From the above it follows that the courts are not independently authorized to initiate cases of administrative offenses, and in order to bring a person to administrative responsibility it is necessary, first of all, to draw up or issue the above protocol or ruling. Therefore, the mere adoption by the court of a decision to reinstate an employee at work and holding the employer financially liable to the employee, provided for by the provisions of the Labor Code of the Russian Federation, does not mean releasing him from administrative liability to the state, since the question of bringing such liability to the court within the framework of resolving an individual labor the dispute is not considered.
In connection with the above, the Federal Labor Inspectorate may initiate a case for an administrative offense related to violation of labor legislation related to the dismissal of an employee, and after the court decision specified in the question. The reason for initiating such a case may be, among other things, an appeal from the employee himself, whose rights were violated (Administrative Code of the Russian Federation).
Such an offense falls under the signs of an administrative offense mentioned in the Code of Administrative Offenses of the Russian Federation, and therefore the administrative case is considered and the decision to hold the employer accountable, as a general rule, is made by an official of the federal labor inspectorate (Code of Administrative Offenses of the Russian Federation). If the employer previously committed administrative violations regarding the illegal dismissal of employees, then such an offense falls under the elements of an offense specified in the Administrative Code of the Russian Federation, and the case is subject to consideration by the court (Administrative Code of the Russian Federation). Let us note that by virtue of the Code of Administrative Offenses of the Russian Federation, an administrative case initiated under the Code of Administrative Offenses of the Russian Federation is considered by the court if it is referred for such consideration by the person to whom such a case was received.
In conclusion, we note that when deciding whether to bring the perpetrators to administrative responsibility and the applicable sanction, the nature of the offense committed and circumstances mitigating administrative responsibility must be taken into account (Part 1, Code of Administrative Offenses of the Russian Federation). Therefore, taking all necessary measures to eliminate violations of labor legislation, voluntary elimination of the consequences of the offense, compensation for damage caused may, by virtue of the Code of Administrative Offenses of the Russian Federation, be recognized as circumstances mitigating administrative liability and taken into account when imposing an administrative penalty (Resolution of the Altai Regional Court dated July 5, 2011 N 4a-348/2011, decision of the Samara Regional Court dated October 3, 2012 in case No. 21-540, Review of judicial practice on the consideration in 2011 by district (city) courts and magistrates of the Kaliningrad region of cases of administrative offenses, as well as complaints against decisions on cases of administrative offenses).

For your information:
We draw your attention to the fact that, in accordance with the provisions of the Labor Code of the Russian Federation, individual labor disputes upon an employee’s application for reinstatement at work, regardless of the grounds for termination of the employment contract, are considered in the courts. This means that if there is a dispute between an employee and an employer regarding the legality of dismissal, the federal labor inspectorate does not have the right to review the employer’s actions for compliance with the law. Only the court can do this. However, if the employer’s guilt in violating labor law norms was established by a court decision, then he may be held administratively liable.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Candidate of Legal Sciences Shirokov Sergey

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The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.