Judgments on illegal dismissals

The employer was warned that the employee would not be able to go to work. He referred to a good reason - the child's illness and the need to visit the clinic. Nevertheless, he was fired from his job for absenteeism, since he did not provide any supporting documents explaining his absence from work.

The court's decision
The court upheld the opinion of the dismissed employee. Caring for a sick child was regarded as a good reason, even though the sick leave was not issued to the employee.

Having recognized the dismissal as unlawful, the court also considered it necessary to recover in favor of the plaintiff compensation for non-pecuniary damage - 3,000 rubles.

An employee did not come to work due to a burst of hot water mains, as a result of which an accident occurred in his apartment. The employer regarded his absence as absenteeism and dismissed him for a single gross violation of labor duties (paragraph “a”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation). He issued an order in which the following were given as evidence of absenteeism:

an act on the absence of an employee at the workplace from 08.00 to 16.18 hours;
memorandum of the head of the personnel department;
notification “On the need to provide written explanations”;
explanatory worker;
a copy of the minutes of the meeting of the personnel commission.
The dismissed employee went to court to reinstate his job. From the memo of one of the employees, it turned out that the dismissed employee informed her on the day of the accident that it was impossible to go to work at 8.20.

In the explanatory letter, the employee indicated the reason for the absence from the workplace - a utility accident in the apartment.

The court's decision
The first instance agreed with the dismissal. The submitted written evidence was considered, as well as the testimony of witnesses: the chairman and plumber of the HOA, the mother of the plaintiff. It turned out that the accident in the apartment was fixed from 12.00 to 13.00.

The court proceeded from the fact that the plaintiff had no grounds for absenteeism from work after the elimination of the accident. Therefore, absence from the workplace was regarded as absenteeism. Other reasons were also taken into account: the dismissed employee did not inform his immediate supervisor about the reason for his absence, and also did not take measures to resolve the problem - for example, he could ask for leave without pay.

But the Court of Appeal upheld the worker. He pointed out that:

the employee was absent from work after 13.00 and before 16.18 for less than 4 hours, which, according to the Labor Code of the Russian Federation, is not absenteeism;
the fact that the employee did not report the absence to the immediate supervisor and did not take measures to coordinate the situation is not a disciplinary offense.
The court concluded that the dismissal had no legal basis, as a result of which the employee suffered non-pecuniary damage. Compensation for non-pecuniary damage was collected in his favor - 5,000 rubles.

The employee, in accordance with the driver's work schedule, was supposed to go to the shift, but did not appear at the workplace at the specified time. It turned out that on the day off he left the city, and on the way back the car broke down.

At the same time, the employee warned the dispatcher of the depot about the situation. Later, he submitted a written explanatory note to the boss, in which he explained the reasons for the absence.

The employee was fired for a single violation of labor duties - absenteeism (paragraph “a”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation).

The court's decision
The court sided with the employer, considering that the plaintiff had a real opportunity to return to the city by bus or call a taxi. But he didn't.

Moreover, having arrived in the city in the first half of the day, the employee did not go to work until the end of his shift and did not inform his employer about the resolution of the situation.

On one of the days, the employee was absent from the workplace for more than 4 hours in a row. But this absence was agreed with the immediate supervisor in view of the company's practice of early completion of the working day on the birthday.

The employer considered that this was the reason for issuing a dismissal order under paragraphs. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation. An act was drawn up to conduct an internal investigation into the fact of committing a disciplinary offense.

The court's decision
So far, even the court has not come to an unambiguous opinion on this dispute. So, in particular, the first instance supported the ex-employee and canceled the dismissal. But the appellate ruling of the Judicial Collegium for Civil Cases overturned this decision.

The court needed to find out:

what was the reason for leaving work earlier than established by the internal labor regulations;
whether the immediate supervisor was notified of the need to leave and for what reasons;
whether the early departure from work was caused by valid reasons.
To resolve the issue of the legality of dismissal for absenteeism, the court of appeal should establish:

whether the employer, when imposing a disciplinary sanction in the form of dismissal, took into account the severity of the offense committed and the circumstances under which it was committed;
previous behavior of the employee;
his attitude to work.
As a result, it was decided to send the case for a new appeal.

In the letter of resignation submitted to the employer, there was neither the date of preparation of the document, nor the date of dismissal. In the lawsuit, the employee explained this by saying that he initially did not intend to quit, and wrote the application under pressure.

The boss, before giving the application to the personnel officers, himself counted two weeks before the beginning of the month.

The employee went to court.

The court's decision
The court upheld the worker and pointed out important details:

the parties have not reached an agreement on termination of the employment contract at the initiative of the employee;
there is no evidence of agreement with the plaintiff on the date of dismissal;
upon dismissal of his own free will, the employer was not convinced of the will of the employee;
The Labor Code does not provide for the independent determination by the employer of the date of dismissal of the employee at his own request without agreement with the employee;
going to court with a claim to declare the dismissal illegal is just proof of the absence of a voluntary expression of will.

The employee first wrote a letter of resignation, but later, after considering the situation, decided to withdraw it. He approached the leadership, but he refused to accept the application. Therefore, he decided to send a review to the company's e-mail and notify the management via SMS.

The employer considered that the employee abused the right by withdrawing the application on the last working day at 17.41 by e-mail.

The court's decision
The court reinstated the worker. According to part 4 of Art. 80 of the Labor Code of the Russian Federation, before the expiration of the notice of dismissal, the employee has the right to withdraw his application at any time.

The Labor Code does not contain restrictions on the withdrawal by an employee of his letter of resignation by mail, telegraph, sending an application by e-mail.

The court did not consider the employer's arguments weighty, namely the arguments that:

the application for withdrawal of the application did not contain a signature;
there is no data in the electronic document to identify the sender.
The employer must take into account the application and, in case of doubt, ascertain the will of the employee. And this was not done.

The employee went out of town for the weekend in a private car, but could not return on a working day, as snow fell and the roads were covered.

The employee informed the immediate head of the department of his absence. The municipal service managed to clear the street in the village on a working day between 16.00 and 17.00.

The employer fired the employee for absenteeism.

The court's decision
In this case, the decision of the courts was ambiguous. So, for example, the first and appeal instances recognized the dismissal as legal, considering that the employee should be more prudent and take measures to return to the city in advance in case of bad weather.

But the Supreme Court took a closer look at the details. He drew attention to the fact that the employee was trying to go to the city, and therefore called a tractor to clear the road.

As a result, the Supreme Court sent the case back for a new trial.

The employee wrote a statement asking for two days of unpaid leave in connection with the funeral. The director gave verbal consent. The employee submitted an application for registration to the document manager, but the vacation was never documented.

When an employee did not show up for work, he was fired for absenteeism.

The court's decision
The first and second instances drew attention to the fact that no agreement had been reached on granting leave. Based on this, they considered the dismissal legal.

But the Supreme Court took a different view. He pointed out that the document specialist registered and filed the employee's statement in the inbox. At the same time, when going on vacation, employees never waited for an order to be issued. According to established practice, it was enough to get the consent of the general director.

In addition, the employer had to notify the employee of the refusal to provide rest days. He had enough time for this, as the employee had applied in advance.

An employee (Director of the Department of Legal Affairs) decided to work with working files at home and sent them to his e-mail. The employer regarded this act as disclosure of trade secrets and fired him.

It turned out that the files did contain confidential information that the employee had no right to transfer to third parties. And he knew about it.

The court's decision
The court upheld the dismissal. An internal audit showed that the employee systematically sent from the corporate address to his personal address:

official and local regulatory documents related to official (confidential) information;
personal data of employees.
By sending documents to a third-party repository, the employee thereby created risks for confidential information to get out of the control of the employer.

The employee was notified of the reduction in staff almost a month later than the rest of the staff. The employer explained this by the fact that he was waiting for his return from vacation. By the time of notification of the current situation, there were no vacancies in the company.

It turned out that only one employee was fired due to staff reduction without assessing the pre-emptive right to stay at work. The rest of the staff was transferred to other places.

The dismissed decided to defend his rights in court.

The court's decision
The first instance did not see any violations, but the appeal agreed with the employee - the employer did not take into account his pre-emptive right to remain at work. This opinion was supported by the cassation.

The court clarified another important detail: “observance of the plaintiff’s labor rights and the guarantees established by labor legislation could not be made dependent on the employee being on regular paid leave and worsen his position compared to other employees who were not on regular paid leave.”