The nuances of reinstatement after dismissal at will or for other reasons

Recovery methods

There are three ways to legally reinstate an employee who quit on his own initiative. Two of them allow the issue to be resolved at the level of the head of the organization, while the third involves the former employee turning to the state labor inspectorate or judicial authorities.

Withdrawal of application

The first method of returning to the workplace is the simplest. To do this, the resigning specialist must notify the employer in writing of the withdrawal of the application for termination of the employment relationship. In other words, he should draw up a new application and deliver it in person or send it by mail. Typically, the administration accepts the notice without objection, and the employee continues to perform his job duties.

Re-employment

The second method is somewhat more complicated, since it considers cases in which the deadline for revoking a notice is missed and the employee is, accordingly, fired. But still, this option for resolving the issue is preferable for both parties to the last resort - filing a claim in court.

A dismissed employee can appeal to the management of the enterprise with a request to hire him. If a person is a good specialist, complies with all the requirements of labor discipline during work, and the reason for terminating the contract was only his personal initiative, then, most likely, the employer will agree to resume cooperation.

But it should be remembered that this is only possible when there are vacancies at the enterprise. In addition, the returning employee will not be reinstated, but will be rehired to the same or another workplace.

Contacting the competent authorities

Unfortunately, management does not always agree to negotiate if an employee quits of his own free will, but you can be reinstated at work by contacting the competent authorities. This is relevant for employees who ceased cooperation for the following reasons:

• conflict relationships in the team;
• boss pressure.

A specialist who wants to return to his previous workplace must write a corresponding application to government services authorized to carry out internal audits in the field of organizations’ compliance with labor legislation. Such services include:

• prosecutor's office;
• labor inspection;
• Rospotrebnadzor;
• court.

It should be noted that after contacting the specified government bodies, the enterprise will most likely carry out inspections not only on the complaint received by the former employee, but also on the entire activities of the organization. Thus, its management may be subject to penalties both for wrongful dismissal and for other violations, if any.

If the audit confirms that the specialist was fired illegally, then the company will be obliged to carry out the procedure for reinstatement after dismissal, as well as pay him a salary for the entire time he was unemployed. In addition, the director and the enterprise itself may incur administrative liability and receive penalties, depending on the decision of the regulatory service.

How to return to your previous position?

The easiest way to return to your previous place of work is to withdraw your resignation letter sent to your employer before the notice period (working period) expires. After this, the document is considered canceled if another employee has not yet been officially invited to take the citizen’s place.

Reviews are made in 2 ways:

• the employee puts the appropriate mark on the application;
• the employee writes a second application to recall the first.

The law does not prohibit verbal information to the employer about a change in decision. Then the dismissal documents are not prepared, the employee continues to perform his official duties - the contract continues.

However, in practice, personnel officers prefer to record the withdrawal of the application in writing.

• If the dismissal has not yet been formalized, then no further action is required from the employer. However, when issuing an order to terminate the contract, it should be canceled by drawing up a new one.
• If an entry has already been made in the work book (for example, a person changed his mind about leaving on the last day of work), it must be declared invalid.
• If the warning period has expired or there has been no work, the employee is considered officially dismissed.

In this case, it is permissible to return to the organization after agreement with the employer: with his approval and if there are vacancies. In this case, the person is rehired: he writes an application for the position, a new employment contract is concluded with him, and an entry is made in the work book.

If, after the expiration of the notice period, the employee continues to work and the employer has not formalized his dismissal, it is considered that he did not quit. The employment contract continues to be valid.

Reinstatement in the organization through the court is possible - this method is used in case of illegal termination of the contract. For example, if a person was forced to write a letter of resignation by his own decision (forced, threatened with dismissal under the article if he disagreed, and so on). In this case, it is necessary to collect evidence of the offense (testimonies of witnesses, video and audio recordings, correspondence, and so on).

You can appeal the termination of your employment relationship by contacting:

1. To the management of the enterprise with a request to clarify the decision and take measures for reinstatement. It is advisable to provide links to current labor law standards.
2. To a trade union, if the employee is part of an association.
3. To the labor inspectorate at the location of the enterprise. In the complaint, describe in detail the circumstances of the situation, the norms of the Labor Code of the Russian Federation, and ask for an inspection. If violations are detected, Rostrud will issue an order to the organization, and possible administrative liability. The inspector has the right to initiate proceedings in court to reinstate the citizen in his position and pay compensation.
4. To the prosecutor's office, attaching facts proving a violation of the employee's rights, facts of forced dismissal.
5. To court. It is important to correctly draft a claim with a detailed description of the circumstances of the case and attach supporting documentation.

It is permissible to send claims to several authorities simultaneously.

According to Art. 392 of the Labor Code of the Russian Federation, filing a claim for wrongful dismissal is carried out within 1 month from the date of transfer to the employee of the relevant order or work book.

If the employer does not provide the citizen with documentation, the period for going to court is extended . In this case, it is calculated from the day when the person was informed or should have learned about the dismissal. For example, during an oral statement by the employer in front of witnesses.

If the permissible period for applying to the authority is overdue, the court has the right to restore it if there is a significant reason for the absence (illness of the plaintiff, his stay on a business trip, acts of force majeure, and so on). If the outcome of the case is positive in favor of the employee and the dismissal is declared unlawful, the court obliges the defendant to fully or partially satisfy the employee’s demands.

If the employee wishes to return to his previous place, he is reinstated in his position on the current conditions with payment of earnings for forced absence. Additionally, it is possible to recover compensation for moral damages from the employer.

The employee’s reinstatement starts on the day the court decision is announced:

1. The management of the enterprise cancels the order to terminate the employment contract, issuing a new one on the reinstatement of the citizen according to a court verdict.
2. The employee gets acquainted with the order against signature.
3. The data on the work time sheet is corrected - a “forced absenteeism” code is assigned for the period of validity of the old order.
4. Entries in the employee’s personal card are corrected (the previous one is crossed out), work book (a new one is entered, the old one is declared invalid).

The employee is notified in writing of the date of return to work; working conditions remain the same. The execution of the court order is controlled by bailiffs.

Term for challenging

After the end of the employment relationship, the dismissed employee is given 30 calendar days, including weekends and holidays, to file a claim with the court to challenge the dismissal. The countdown of the appeal period begins the next day after the employee receives the order to terminate the contract, and therefore it is necessary, when signing the original order, to indicate the date of familiarization with it.

If the application deadline is missed, then in some cases a deferment is allowed. This is possible if the employee was on sick leave and could not properly prepare a claim, as well as collect the necessary evidence. In this case, days of temporary disability are added to the period established by law.

The second reason for its extension is considered to be improper execution of the notice of termination of cooperation. The employer has the right to send the specified document by mail, for example, by registered mail, or hand it personally to the dismissed employee. To protect its position in a possible trial, it is better for the employer to make sure in advance that the original document bears the employee’s personal signature.

Employee actions

By exercising your right to dismiss an employee on your own initiative on the basis of Art. 81 of the Labor Code of the Russian Federation, the employer often invites the employee to leave the enterprise at his own request.

If the offer is accepted, reinstatement becomes very difficult. A citizen begins actions to protect his rights immediately after reading the order and within a month - by filing a complaint with the state labor inspectorate or filing a claim in court.

Contacting the state labor inspectorate has some advantages for the following reasons:

• the procedure is free;
• consideration of the complaint lasts only 15 days, it sets out only the facts of violation of the employee’s rights, which are confirmed by relevant documents;
• the employee is only required to write an appeal;
• the head of the enterprise will be punished administratively under Art. 5.27 of the Administrative Code for violation of the Labor Code of the Russian Federation.

If the violation is confirmed, the inspector will make a decision to reinstate the dismissed employee at work. According to Art. 393 of the Labor Code, a worker’s appeal to court will also not entail costs: no state duty is paid. The application is submitted to the people's court at the location of the company, the proceedings will last ≥30 days.

Expert opinion

Irina Vasilyeva

Civil law expert

The deadline for filing a claim in court, as well as in the labor inspectorate, is one month. If you are not sure of a positive result of the consideration of the application by the state inspector, it is better to submit applications simultaneously to both authorities.

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Judicial procedure

If an employee was dismissed of his own free will, then in order to be reinstated at work, he needs to pay special attention to the process of preparing evidence that would indicate the illegality of dismissal. When filing a claim, you must adhere to the following rules:

1. In a petition containing a request to return the specialist to his previous position, it is necessary to briefly describe such main points as the duration of work and the reason for termination of cooperation.
2. The document must be drawn up in two copies. The first must be handed over to the employees of the court office, and the second, with their receipt mark, will remain with the person submitting the application.

After reviewing the claim, the justice authority sets a hearing date. The plaintiff and defendant are notified of this by a corresponding summons. It also specifies the documents and information that will need to be provided. The employee may not be present in person at the court hearing, but only if he is absolutely sure that the court will rule in his favor.

If the determination is in favor of the employer, then the plaintiff has the right to challenge it in a higher court. If the claim is satisfied, based on a court decision, the employer issues an order to cancel the order to dismiss the specialist and enters the necessary information into the work book of the reinstated employee. The man takes his workplace again.

It should be noted that if the court confirms that the specialist is right, the latter has the opportunity to file a claim for full reimbursement by the organization of all legal costs. This concept includes the services of a lawyer, payment for travel of witnesses and the plaintiff to the court site, and the like.

FAQ

Question No. 1 My husband, who has the rank of captain, voluntarily resigned from the Ministry of Internal Affairs. He did this after the request of his immediate superior, as he once found himself in an unfortunate situation. Later the situation was resolved, my husband proved his innocence, and the circumstances of the dismissal disappeared. Does he have the opportunity to be reinstated at work?

Answer: Dismissal under Article 80 of the Labor Code of the Russian Federation (at one’s own request) does not imply the possibility of reinstatement if the contract is terminated. In such circumstances, returning to work can only be done in accordance with the general procedure, by submitting a job application.

Solution options

When going to court, a former employee must understand that the decision will be made on the basis of the evidence presented by the parties, which means that he can either win the process or lose it.

When the court issues a verdict confirming that the employee is right, the employer is obligated to return the dismissed person to his position at the enterprise. If a new specialist has been hired for the controversial workplace, he should be fired in accordance with the Labor Code of the Russian Federation or transferred to another job. The reinstated employee must be paid compensation in the amount established by the judicial authority.

In another case, the court recognizes the termination of the employment relationship as legal, that is, it denies reinstatement to the former employee. The employer does not bear any costs.

Difficulties of recovery

When executing a judicial act on reinstatement, the company is obliged to allow the employee to perform his previous job duties, that is, the employee must be reinstated in his previous position. But what to do when the position has already been excluded by the employer from the staffing table? In this case, the employer is obliged to reintroduce the position into the staffing table to enforce the court decision. And if this position was reduced, then after the employee is reinstated in full, carry out the reduction procedure in compliance with all the requirements of labor legislation.

From all of the above, we can conclude that if a specialist comes to the employer with a writ of execution for reinstatement, you should not prevent his admission to work, even if the company does not agree with the adopted judicial act, since in this case the employee will be forcibly reinstated, and the employer will have to incur additional material costs. The company has the right to appeal the adopted judicial act, however, this procedure does not in any way affect the timing of the execution of the court decision.

Return of a pregnant employee

Since 2021, the Supreme Court of the Russian Federation has been actively defending the rights of workers who have families, as well as pregnant women. This allows an employee who finds out about pregnancy after termination of the employment relationship to be restored to her previous position even in the event of voluntary dismissal.

If the employer does not want to rehire a pregnant woman, then she can appeal to the judicial authorities and he will be obliged to do this on the basis of legislative acts. In addition, the organization will be forced to pay such a specialist financial compensation for the time that he did not work due to court proceedings.

But despite the fact that the law establishes additional guarantee obligations for pregnant women that protect their rights in the event of illegal dismissal, reinstatement in their position directly depends on the reason for termination of the employment contract. Do not forget that in court each situation is considered separately, and therefore the employer also has the opportunity to defend the validity of termination of cooperation.

However, you need to take into account the possibility of a biased attitude towards an employee who is about to go on maternity leave. Perhaps she quit of her own free will due to pressure from the employer, who decided that she had become worse at performing her job duties or was taking sick leave too often.

Common mistakes when returning to your previous job

Error 1. You should know that each supervisory authority has its own powers to resolve labor disputes. In particular, the State Labor Inspectorate does not have the right, in fact, to reinstate dismissed persons to their previous jobs. In fact, it exercises supervision only over the correct and proper implementation of labor standards (Labor Code of the Russian Federation, laws). For this purpose, the State Inspectorate is authorized to initiate and conduct inspections and, based on their results, if violations of the law are identified, issue instructions to the employer, which he is obliged to comply with (in relation to Article 357 of the Labor Code of the Russian Federation).

Meanwhile, the State Labor Inspectorate has the right, in such an order, to put forward a requirement for the employer to cancel a specific dismissal order (but not to reinstate the fired person!) if it is associated with violations and is illegal. And the employer will also be obliged to comply with such an order.

Procedure for returning a position

If the court rules in favor of the employee, the employer is obliged to reinstate him in his position. Since the employee’s work book indicates that the dismissal was made at his own request, the procedure for returning to the workplace is carried out as follows:

• The employer issues an order according to which the employee is reinstated and allowed to perform professional duties. In addition, the order states that the previously issued order to terminate cooperation is canceled, and the employee is entitled to payment for forced absences.
• Based on the order of the manager, the personnel department notes in the work book that the entry on termination of the employment contract is invalid. Then a similar mark is removed from the employee’s personal card. In the accounting sheet, all working days that have passed from dismissal to return to work are marked as worked.
• After canceling the dismissal order, the specialist must be sent a notice indicating the date of his assumption of office. In it, you should ask the employee to provide a work book for making the necessary entries and its further storage at the enterprise. The document can be sent by registered mail, attaching a copy of the order to cancel the dismissal.

It is important to strictly follow all the nuances of the procedure, because otherwise the employee may regard errors in registration as attempts to violate a court decision. This, in turn, will give him a reason to seek legal protection again.

General procedure for challenging illegal dismissal

The appeal scheme is standard in all situations: a citizen writes a written appeal with a complaint and demands, then the authorized body checks the actions of the employer to determine their legality. Upon inspection, a decision is made: to satisfy the applicant’s demands or to refuse him. If the employee initially applied for reinstatement at work, then, accordingly, if the decision is positive, the authorized body takes appropriate measures to restore the dismissed person to his previous workplace in accordance with Part 1 of Art. 394 of the Labor Code of the Russian Federation (decisions on labor disputes regarding dismissal).

Important! The decision to reinstate a person illegally dismissed is subject to immediate implementation. This is evidenced by Art. 396 Labor Code of the Russian Federation.

Typically, both the employer and the employee are obliged to take all necessary actions to promptly implement such decisions. If the employer delays the reinstatement of a previously dismissed person, then for each day of such delay he will have to pay the average salary or the difference in earnings.

What does it mean to reinstate a fired person by decision of such and such an authorized body? This means that when executing this decision, the employer is obliged to:

1. Cancel (annul) your dismissal order.
2. Allow a previously dismissed person to perform his direct duties, i.e., the work that he performed before dismissal (for the same position).

If these two conditions are actually met, then the restoration of the previously dismissed person to work and his previous legal status is considered to have taken place.

Payment of compensation

The employee reinstated must receive financial compensation. Therefore, the management of the enterprise needs to prepare documents for making such payments as:

• salary for all missed working days;
• vacation compensation;
• payment of sick leave;
• dismissal benefits.

The employer should also be prepared to pay all legal costs, since they are paid by the losing party. In addition, do not forget that an employee may demand payment of moral compensation for illegal dismissal.

Even in the event of voluntary dismissal, an employee can count on reinstatement. How long it will take, as well as how simple the return process will be, depends on the reasons that prompted the employee to write an application to terminate the employment contract.