The Vitebsk Regional Prosecutor's Office has summarized judicial practice and prosecutorial supervision practice in civil cases on reinstatement to work

The Department for Supervision of Compliance with the Law of Court Decisions in Civil Cases of the Vitebsk Regional Prosecutor's Office has generalized judicial practice and prosecutorial supervision practice in civil cases concerning reinstatement at work.

The grounds for dismissal in the cases studied were absence from work without valid reasons, agreement of the parties, expiration of the contract term, refusal to continue work due to changes in essential labor conditions, entry into force of a court verdict, unsatisfactory preliminary test results, and others.

Reinstatement at work is the return of the employee to their previous legal status that existed before dismissal.

In accordance with Article 241 of the Labor Code of the Republic of Belarus (hereinafter referred to as the LC), labor disputes concerning employees' claims for reinstatement at work, regardless of the grounds for termination of the employment contract, are within the exclusive jurisdiction of the court.

During the generalization, a case was identified where an employee's claim for reinstatement at work, in violation of the current legislation, was actually considered by the labor dispute commission.

From the materials of the civil case on the claim of M. against CJSC for compensation of moral damage, it follows that the plaintiff worked for the defendant as an engineer. She was dismissed under Decree of the President of the Republic of Belarus "On Strengthening Requirements for Managers and Employees of Organizations" for a gross violation of labor duties, which consisted of refusing to comply with the verbal order of the director. By the decision of the labor dispute commission of the branch, M. was recommended to change the measure of disciplinary penalty from dismissal to a reprimand. After that, by order of the employer, she was reinstated at work, and paid her average earnings for the period of forced absence.

In this case, the labor dispute commission considered a labor dispute that did not fall within its jurisdiction, as specified in Article 236 of the LC.

Article 242 of the LC establishes the time limits within which employees can apply to the court in dismissal cases: within one month from the date of delivery of a copy of the dismissal order or from the date of issuance of the work record book.

with a record of the grounds for termination of the employment contract, or from the date of refusal to issue or receive the specified documents. If the specified deadlines are missed for valid reasons, they may be restored by the court.

For example, the court granted K.'s claim against OJSC for reinstatement at work and recovery of wages for the period of forced absence.

As established, the plaintiff worked at OJSC as a security guard. At the same time, as a person obliged to reimburse the expenses incurred by the state for the maintenance of children, he entered into an employment contract with a term of validity from 01.08.2017 until full reimbursement of child maintenance expenses.

In April 2019, K. was removed from the register as a liable person. After that, the employment relationship was actually continued, neither party demanded its termination, therefore the court recognized the employment contract as extended indefinitely.

A month later, K. was dismissed under paragraph 2 of Article 35 of the Labor Code due to the expiration of the fixed-term employment contract. Disagreeing with the order, on the day of dismissal, due to ignorance, he appealed not to the court, but to other state bodies. Upon receiving a response from them, he immediately filed a lawsuit in court, thereby missing the period established by law. Under these circumstances, the reason for missing the deadline for filing the lawsuit was recognized by the court as valid, and the period was restored. Having assessed the submitted evidence, the court concluded that K.'s dismissal was unlawful and reinstated him at work.

As a rule, in cases of reinstatement at work, plaintiffs file accompanying claims for the recovery of average wages for the period of forced absence, compensation for moral damage, as well as other property claims.

According to Part 2 of Article 243 of the Labor Code, if the court considers it impossible or inexpedient to reinstate the employee for reasons not related to the commission of guilty actions by the employee, it has the right to offer, with the employee's consent, to impose on the employer the obligation to pay the employee compensation in the amount of ten times the average monthly earnings.

For example, L. applied to the court with a claim

on establishing the fact of labor relations with CJTP, recovery of unpaid wages, reinstatement, recovery of average earnings for the period of forced absence, and compensation for moral damage.

The court decision established the fact of labor relations between CJTP and L., who worked as a cashier-salesperson at the store, and recognized the latter's dismissal as unlawful. The claim for reinstatement and recovery of wages for the period of forced absence was dismissed as inexpedient, as the plaintiff had found employment at another enterprise. The employer was ordered to pay L. compensation in the amount of ten times her average monthly earnings, unpaid wages, and compensation for moral damage.

The Judicial Board for Civil Cases of the Vitebsk Regional Court agreed that L. had been unlawfully dismissed, as the dismissal was carried out without issuing an order and specifying the grounds for dismissal. However, the court's conclusions on the inexpediency of reinstating L. to her former job with payment of ten times her average earnings were found to be inconsistent with the actual circumstances of the case, and the refusal to reinstate her was contrary to the requirements of the law.

Given that the defendant had vacant cashier-salesperson positions according to the staffing table, the appellate instance reinstated L. to her former job, ordering the defendant to pay her average earnings for the period of forced absence.

In accordance with the departmental order, the prosecutor's participation in proceedings on reinstatement cases is mandatory.

The task of the prosecutor participating in the consideration of cases in this category is to protect the constitutional right of citizens to work and to facilitate the administration of justice in all judicial instances with the aim of rendering a lawful and well-founded decision.

Where grounds exist, prosecutors take measures to protest court decisions that do not comply with the requirements of the legislation.

For example, by the prosecutor's appellate protest, the court decision on the claim of E., S. against the separate structural unit of the Enterprise for reinstatement was overturned.

at work, recovery of average earnings for the period of forced absence, monetary compensation for moral damage.

Based on the case materials, it was established that E. and S. were dismissed under paragraph 5 of Article 42 of the Labor Code of the Republic of Belarus for committing unauthorized absences without valid reasons.

According to clause 3 of Article 51 of the Civil Code of the Republic of Belarus, representative offices and branches are not legal entities. They are endowed with property by the legal entity that created them and act based on the provisions approved by it.

The defendant in the case was a subdivision that is not a legal entity, but rather a separate structural subdivision allocated to a separate balance sheet, which is confirmed by the relevant provision approved by the order of the Director of the Enterprise.

The enterprise itself was not involved as a defendant in the case, while the court's decision resolved the issue of the rights and obligations of this legal entity. Due to a significant violation of procedural law, which cannot be rectified in the appellate proceedings, the judicial board of the Vitebsk Regional Court, upon the prosecutor's protest, overturned the said court decision and sent the case for a new review to the court of first instance.

As judicial statistics show, the number of dismissals recognized as illegal by courts has recently decreased, which indicates an increase in employers' legal literacy in this matter. 

Prosecutor of the Department for Supervision
of the Legality of Judicial
Decisions in Civil Cases
of the Regional Prosecutor's Office
Irina Tavtyn