Dismissed for cause: how to get reinstated at work

"Dismissed for cause" is a colloquial phrase covering very different grounds: absence without leave, repeated failure to perform duties, loss of trust, gross misconduct. Each has its own procedure, and a breach of that procedure is in itself a ground for reinstatement, even where the misconduct did happen.

Deadlines you cannot afford to miss

A dispute over dismissal: one month from the day the employee is handed a copy of the dismissal order, or from the day the employment record book is issued or the employment history data is provided.

Disputes over unpaid wages: one year.

The one-month deadline can be restored by the court where there was good reason: illness, caring for a seriously ill family member, or an application to the labour inspectorate or the prosecutor's office made within a reasonable time. The last point matters: a complaint to the inspectorate does not of itself suspend the deadline, but combined with a reasonable wait for a reply the courts often accept it as a good reason.

What is checked first

The ground and the documents supporting it. Absence without leave means being away from the workplace for more than four hours in a row without good reason. You need the time sheet, absence reports, internal memos and the employee's written explanation.

The request for an explanation. Before imposing a disciplinary sanction the employer must request a written explanation. The employee has two working days to provide it. If it was never requested, or the employer did not wait, that is a breach which invalidates the order.

Time limits for imposing a sanction. No later than one month from the day the misconduct was discovered and no later than six months from the day it was committed. Periods of sickness and annual leave do not count towards the one month.

Proportionality. Even where the misconduct is proved, the court weighs its seriousness, the circumstances, the employee's previous conduct and attitude to work. Dismissal for a single instance of lateness after ten years of blameless service is treated as disproportionate.

Prohibitions. An employee cannot be dismissed on the employer's initiative during sickness or annual leave. Special protection applies to pregnant employees, women with children under three, single parents of a child under sixteen and sole breadwinners in a large family.

Repeated failure to perform duties

This is the most common ground for a "prepared" dismissal: the employee is given one sanction, a month later a second, then a third, and then the dismissal order.

Here every preceding sanction is examined. If even one of them is held unlawful, the dismissal collapses: there is no repetition. So the work has to cover not only the dismissal order but all the earlier ones as well: were they challenged, was the procedure followed, what exactly were they imposed for.

The second frequent defect is a vaguely worded duty. If the job description does not contain the duty the employee was punished for failing to perform, the sanction is unlawful.

What can be recovered

• Average earnings for the whole period of enforced absence from work, from the day of dismissal to the day of reinstatement.
• Compensation for non-pecuniary damage. The sums are modest, but they are awarded almost always where a breach is proved.
• Interest for late payment.
• Legal costs, including the cost of a representative.

Instead of reinstatement, the employee may ask the court to change the wording of the ground for dismissal to resignation at the employee's own request and to change the date. That is a sensible route where nobody intends to go back to the team, and what matters is the record and payment for the enforced absence.

What the employee should gather

The employment contract, the job description, the dismissal order, the orders imposing sanctions, pay slips and correspondence with management.

Separately, evidence of what actually happened: building access records, working time system data, correspondence in work chats, colleagues' evidence. In absence-without-leave disputes it is exactly these details that decide the case: if the person was on site rather than in the office, that shows up in the tasks and the calls.

What the employer should bear in mind

The mirror image: most lost cases are not bad faith but carelessness. No signature confirming the employee read the job description, a report drawn up by a single person, an explanation requested orally, an order issued the day after discovery without establishing the reasons.

If a dismissal for cause really is necessary, the procedure has to be flawless and the documents have to be drawn up as events happen, not reconstructed in time for the hearing. Documents backdated after the event are exposed by a simple comparison of dates and signatures.

This material is for information only and is not a substitute for advice on a specific case.

If you have been dismissed and believe it was unlawful, write to us. The first consultation is free of charge where an engagement agreement is signed.

Olga Lapina — advocate of the Kovalev, Malyutov, Tsypkalo & Partners Bar Association