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Armed forces: untimely notification about the expiration of the employment contract is not evidence of illegal dismissal

Legal advice 30.10.2018 at 12:34

Legal advice

The Court

refused reinstatement to the worker, dismissed in connection with

expiry of the employment contract (paragraph 2 of part 1 of article 77 of the Labor

code), despite noncompliance by the employer with the requirements of article 79 of the labour code

on the necessity of notifying the employee of the termination of the employment contract

on the basis of at least three calendar days before the dismissal.

the Judges felt that this violation can not be independent

the basis for recognition of dismissal illegal, since, concluding

the employment contract, the employee knew about his urgency (appeal

the determination of the Supreme Court of the Republic of Mordovia of September 11, 2018.

case No. 33-1677/2018).

a Similar approach is often found in

judicial practice (the definition of Krasnoyarsk regional court from 17

Aug 2016 n 33-11098/2016, the definition of the Smolensk regional court

may 27, 2014 No. 33-1972, the Supreme Court's determination

the Karachay-Cherkess Republic of 19 March 2014 No. 33-511/14). However,

presented in court and a somewhat different perspective on this situation. [Newline] the opinion of some judges, the employer's failure to perform the requirements of article 79 TK

, Russian Federation for the timely notification of the worker about dismissal in connection with

expiry of the employment contract shows

the illegality of the dismissal. However, by the reinstatement of the employee at work is

still does not. The fact is that, if the dismissal is deemed

illegal, and the term of the employment contract during the pendency of the dispute by the court

has expired, the decision of the court in accordance with part 6 of article 394 of the labour code

consist only in the change of date and formulation of dismissal

dismissal on the expiry of the employment contract. Because a violation of

the duty on the advance notice of dismissal does

employment contract of indefinite duration and does not prevent the expiration of his term,

dismissal in connection with the expiration has already made the grounds for

reinstatement or change of date and formulation of dismissal

not available (the definition of the Omsk regional court dated 30 July 2014 No.

33-4793/2014, determination of the Leningrad regional court dated 23 may 2013

, No. 33-2448/2013, the definition of the Moscow city court of 2 February

2011 # 33-510).