EMPLOYEE DISMISSAL PROCEDURE
- complex and bureaucratic, which allows dismissed employees to win lawsuits to declare dismissal illegal and reinstate.
Employees in labor disputes are exempt from court costs, and the burden of proof lies with the employer, which also encourages employees to appeal the dismissal in court.
The dismissed employee appealed to the court to recognize the dismissal as illegal, reinstate, recover average earnings and compensation for food for the time of forced absenteeism, recover compensation for the delay in issuing a workbook, and recover moral damages. “Yurkon” LLC represented the interests of the employer.
In support of their claims, the employee argued the following:
- the employer did not prove the existence of reasons for staff reductions;
- not all available vacancies are offered by the employer;
- the employer has not requested a written refusal;
- the employer has not assessed the preemptive right to remain at work of the employee - the only working family member;
- the employee is not issued a work record;
- no employment center notified;
- the employer did not take into account the employee’s consent to the proposed vacancy sent by e-mail;
- a general meeting has not been held, while the constituent documents prescribe a general meeting to decide on staff reductions;
- simple written powers of attorney for non-russian-speaking managers of the employer are flawed, as they were issued in the absence of an interpreter.
These arguments were based on a misinterpretation of the law. Lawyers of LLC "Yurkon" arguments were refuted on the following grounds:
- According to the charter, the general director has all the powers to regulate the employer's relationship with the employees.
- The presence of a translator in the preparation of a simple written power of attorney, in contrast to the preparation of a notarized power of attorney, is not required.
- The employee refused the notarization certificate of the employee's email inspection, taking into account this and some other arguments of the employer, the fact of sending a letter with consent to the proposed vacancy remained unproved.
- The employer notified the employment center, but the lawyers also requested to pay attention to the fact that the notification of the employment center does not affect the legality of the dismissal and is not part of the dismissal procedure.
- The employee did not give a written consent to the direction of the employment record by mail, as required by the Labor Code. Accordingly, the workbook is at the employer.
- The preemptive right to remain at work is investigated by the employer if one of the same positions of a certain structural unit is reduced, that is, between employees occupying the same positions, some of which are to be reduced, since the degree of labor productivity and qualifications of workers can be compared only by evaluating the performance of the same labor functions. The plaintiff’s belonging to the category of workers enjoying the priority right to remain at work with equal labor productivity and qualification was not to be taken into account, since it did not require an assessment of the labor productivity and skills of the employees and because the only position in this division was reduced.
- Labor legislation does not oblige the employer to demand from the dismissed employee an official refusal from the proposed vacancies, especially to draw up an act about it.
- The employee was offered all the vacant positions according to the staffing table and certificate of vacancies. The Constitutional and Supreme Courts have repeatedly indicated that the employer, for the purposes of effective economic activity and rational property management, independently takes the necessary personnel decisions (selection, placement, dismissal of staff) ”and that“ entering into an employment contract with a specific person seeking employment is the right, not the duty of the employer. The Labor Code does not contain provisions requiring the employer to fill vacant positions or jobs immediately as they arise.
- In accordance with Article 234 of the Labor Code of the Russian Federation, the employer is obliged to reimburse the employee for his unearned income in all cases of unlawful deprivation of his ability to work. However, it should be noted that this provision applies if the dismissed employee was unable to find a job due to the delay in the issuance of a work record by the previous employer. The courts proceed from the obligation of the employee to prove the fact of the refusal of the potential employer in the employment of the employee due to his lack of a work record.
- Also, lawyers noted that according to par. 6 art. 84.1 of the Labor Code of the Russian Federation from the date of notification with a request to provide written consent to the sending of the employment record by mail, the employer is released from liability for delay in issuing the employment record.
The case was completed in favor of the employer, the dismissal was considered legal.