If the employer forces you to resign of your own free will. Coercion by the employer: dismissal “not of their own free will. When the threats are real

Anyone can find themselves in this situation - an offer to quit comes unexpectedly and almost always a person agrees to write a statement. Why does the employer not fire an unwanted employee under the relevant article and what is coercion to dismiss.

Try to simulate the situation. You have permanent job, with which you have been quite coping for more than one year. You put knowledge, strength into your work, worry about the results of your work.

You plan all your affairs on the basis that your source of income is constant - you are going on vacation to the sea, investing in the construction of a summer house. And suddenly, completely unexpectedly, a threat arises in your life that can destroy all your plans.

Your manager invites you to his office and tells you that the firm appreciates your efforts, but no longer needs you. You are offered to apply for on their own". A measured calm life collapses in one moment, and the only question persistently sounds in my head: "How to live further ?!" It looks like a disaster ...

No one is immune from such situations - neither a conscientious experienced specialist, nor a person who has faithfully served the common interests for many years. There may be several reasons. In your place, there may be a person who suits the bosses more (son, brother, matchmaker, lover, in the end). The economic situation may change, rebuild technological process, there is a conflict with the leadership. Often the tyranny of your boss can be the reason.

Be that as it may, situations when from the side of management comes an unreasonable proposal to write a statement "on their own", it is not at all uncommon. The usual reaction is tears, sedative drops, a scandal ... We consider this behavior unconstructive and suggest considering civilized options for getting out of the current circumstances.

Labor Code RF contains several articles concerning the procedure for dismissal. We will consider only those that relate to the persistent desire of the employer to dismiss the employee under article 77 paragraph 3 (self-will) or article 77 paragraph 1 (agreement of the parties).

The legislation provides for the possibility of dismissing a negligent employee, so why does management so often prefer to fire a person of their own accord? It's simple - to fire a guilty employee, you need proof of guilt, an official investigation, evidence of malicious intent, etc.

All these actions require qualified specialists who understand not only labor legislation, but also have experience in litigation on labor disputes... Dismissal documents must be prepared flawlessly, otherwise the court will not side with the employer during the proceedings. Therefore, bosses are trying to make life easier for themselves by offering a way out that suits them. It seems that everything is according to the law - the person wanted to quit and applied. But it’s not that simple.

Anyone who has happened to face a similar situation should know that there is such legal concept as coercion to dismiss. The task of a person subjected to such coercion is to get out of this situation without loss. And, possibly, receive some compensation for moral damage.

Options for getting out of the situation

So, if a manager insists on filing an application “on his own,” you have two options for how to react. The choice depends on the goal you are striving for. Remember that in this situation you should only think about respecting your own interests, and not about the impression you will make on your boss, team or someone else.

First option

You consider all the chief's claims unfounded, you have reason to believe that he had a nervous breakdown or a fit of tyranny. You have decided to stay at your workplace.

Use the patience that comes in handy as you smile at your boss every morning and respond politely to his question about the application. Remaining calm, firmly explain to your boss that you enjoy your job and prove in an argumentative way that you are doing well in your tasks.

If there were bugs after all, explain their reason for the appearance and promise to work on the bugs. Ask for advice on how to correct the situation. Notify your manager that your plans do not include a job change in the near future, so you will not write a statement. This is an approximate scheme for communicating with your boss. Further actions depend on how long you can defend your interests. Quite often, the issue of dismissal gradually dies down, not meeting support from the employee.

If the pressure is active enough, and it becomes clear that you will not be able to withstand it for a long time, collect facts to prove that your dismissal was not voluntary. Audio and video recordings of conversations with the head, testimony, copies service notes with a statement of the situation registered in the office - all this will be the necessary factual material.

If the dismissal does happen, you will be able to pretty much shake the nerves of your former boss, recover on the spot, get earnings for the days of forced absenteeism and compensation for moral suffering. It will take time and effort, but you will surely win the court. Sane employers know about this and try to avoid such a development of events.

Second option

The offer to apply was unexpected, although you yourself have already thought about changing jobs? No signs of joy! Calmly find out the reasons for such a proposal, agree with the fact of dismissal. The only "but" - the dismissal should not occur of their own free will, but by agreement of the parties.

RF, " an employment contract may be terminated by the employer in the following cases:

1) liquidation of an organization or termination of activities by an individual entrepreneur;

2) reduction of the number or staff of employees of the organization, individual entrepreneur;

3) inconsistency of the employee with the position held or work performed due to insufficient qualifications, confirmed by the results of certification;

4) change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant);

5) repeated non-performance by the employee without good reason of labor duties, if he has disciplinary action;

6) one-time gross violation of labor duties by an employee:

( shifts);

b) the appearance of the employee at work (at his workplace or on the territory of the organization - the employer or facility, where, on behalf of the employer, the employee must perform labor function) in a state of alcoholic, drug or other toxic intoxication;

c) disclosure of secrets protected by law (state, commercial, official and other) that have become known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;

d) committing at the place of work theft (including small) someone else's property, embezzlement, deliberate destruction or damage, established by a court verdict that has entered into legal force or by a decision of a judge, body, official authorized to consider cases of administrative offenses;

e) violation of labor protection requirements established by the labor protection commission or the labor protection authorized by the employee, if this violation entailed grave consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences;

7) the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to the loss of confidence in him on the part of the employer;

8) an employee performing educational functions has committed an immoral offense incompatible with the continuation of this work;

9) adoption of an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;

10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;

11) submission by the employee to the employer of forged documents at the conclusion employment contract;

12) is no longer valid. - Federal Law of 30.06.2006 N 90-FZ;

13) provided for by an employment contract with the head of the organization, members of the collegial executive body organizations;

14) in other cases established by this Code and other federal laws. "

Moreover, in case of liquidation of an enterprise or reduction of staff, you have the right to payment of severance pay and preservation of average earnings for the period of employment, and all other reasons for dismissal - if you really did not give them a reason! - easy to challenge c. That is why the employer invites you to write a statement "on your own" - especially since it is faster and easier to issue a dismissal on the initiative of an employee than any other.

You are writing a termination statement labor relations from the specified date, the employer signs this application, the accounting department draws up the final calculation and pays you the balances of wages and vacation pay. And that's all - from tomorrow your place is vacant.

Another argument in favor of voluntary dismissals- it is almost impossible to dispute. According to the resolution of the plenum The Supreme Court RF, " if the plaintiff claims that the employer forced him to submit a letter of resignation of his own free will, then this circumstance is subject to verification and the obligation to prove it rests with the employee ".

So it turns out that dismissing you at your request is much faster, easier, cheaper and safer than at the request of the employer. In theory, of course, you can flatly refuse to sign the statement “on your own”, but in practice it will be very difficult for you to work after such a refusal. "Heavy artillery" will be used: the deprivation of bonuses and bonuses, an increase in the volume of work, a tightening of the schedule, psychological pressure, the creation of an unfavorable atmosphere in the team. How to get out of this situation with the least losses? There are at least two ways here.

If we can agree

If you value your job very much and want to keep it, try to find out in a conversation with your employer what exactly does not suit you and what can be done to change it.

If he is not satisfied with your qualifications, you can agree to extra education in free time, etc.

Very often those who have several years left before retirement find themselves in such a situation. In this case, the employer decides to replace the older employee with a younger one in advance. Explain to him that you do not plan to leave work as soon as you approach. retirement age that you feel the strength to work for many more years and that youth is, of course, good, but your many years of experience are also worth a lot.

Another category of workers who are often forgiven “on their own” is pregnant women. According to the law, it is impossible to fire you for this period, but your rights are significantly increased: this is additional free time, and a shorter working day, and more easy job... Promise your boss that you will not abuse your position and are ready, if health permits, to work as before.

In addition, many employers fear that your pregnancy, and subsequently a baby, will cause additional financial costs for your organization. Explain to him that this is not the case, that all benefits for insured women (and everyone who officially works and receives a "white" salary has such insurance) are paid at the expense of the Fund social insurance RF.

Also, the employer is afraid of your future maternity leave... This means finding a replacement and learning what will temporarily do your job. The employer has two options here. The first is to take in your place temporary worker, in the contract of which it will be written that the employment contract was concluded for the period of your stay on parental leave. The second is to distribute your responsibilities among other employees with their written consent, with the establishment of appropriate additional payments for them at the expense of funds freed from your salary. This possibility is stipulated in Art. 60.2 of the Labor Code of the Russian Federation.

In turn, you can offer the employer, in the time remaining before the decree, to select and train a replacement, or to bring those employees who will perform your duties up to date. In addition, you can offer to advise your substitute by telephone and online during maternity leave.

If, in spite of everything, it was not possible to agree with the employer, write a letter of resignation of your own free will, having prepared in advance for reinstatement at work through the court. To this end, you need to stock up on evidence that you were forced to write a statement. The easiest way is to record the conversation with the employer on a dictaphone. In this case, the record must contain threats or other pressure on you. For example, a promise to deprive of prizes or bring “under the article”.

You can also force the employer to talk in the presence of colleagues or other people who can later testify c. However, one cannot rely heavily on colleagues - few of them dare to go against the employer. After collecting evidence, you can write a statement, after which.

Most often, in such matters, the court takes the side of the employee. But this often does not solve the problem. By a court decision, you will, of course, be reinstated. Moreover, they will pay for the entire time of the forced absence: if, for example, the trial lasts six months, then you will be paid a salary for this period. But whether you will be able to calmly work for a defeated employer after that is another question. Most likely, you will find the same "heavy artillery", which has already been written about above.

Quit profitably

As soon as you were offered to write on your own, you understood: this is what you need now. Tired, it's time to change everything, and in general, why stay where you are not appreciated?

Write a statement. How this is done is stipulated by Article 80 of the Labor Code of the Russian Federation:

"The employee has the right to terminate the employment contract by notifying the employer about this in writing no later than two weeks, unless another period is established by this Code or other federal law... The course of the specified period begins on the next day after the employer receives the employee's letter of resignation. "

By agreement between the employee and the employer, the employment contract may be terminated even before the expiry of the notice of dismissal.

In cases where the employee's application for dismissal on his initiative (of his own free will) is due to the impossibility of continuing his work (enrollment in educational institution, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts containing norms labor law, local regulations, conditions collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee's application.

Before the expiry of the notice of dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not made, unless another employee is invited in his place in writing, who, in accordance with this Code and other federal laws, cannot be denied to conclude an employment contract.

Upon expiration of the term of the notice of dismissal, the employee has the right to stop working. On the last day of work, the employer is obliged to give the employee work book, other documents related to work, at the written request of the employee and make the final settlement with him.

If, after the expiry of the term for the notice of dismissal, the employment contract has not been terminated and the employee does not insist on dismissal, then the employment contract continues.

However, since your employer is so impatient to get rid of you, why not bargain?

You, for your part, promise to leave quickly and without conflict.

Instead:

Severance pay (amount - by agreement);

The dismissal is not today, but, for example, in the month that you use to find a job;

The opportunity to take a walk before dismissal unused vacation etc.

So that you are not cheated, demand dismissal not on your own, but by agreement of the parties (Article 78 of the Labor Code of the Russian Federation). The procedure for such dismissal is practically not spelled out in the labor code. You and the employer conclude an agreement to end cooperation. What will be in it depends on how you bargain.

If the employer refuses to conclude an agreement, but verbally agrees to fulfill the rest of your requirements, write a letter of resignation of your own free will with the traditional two weeks working off... If your requirements are not met within these two weeks, you can withdraw your application, which temporarily prevents the employer from firing you.

9476

Ask a Question

Forced to write a letter of resignation of their own free will

Forced to write a statement - Krasnodar Territory

work in the Olympic Park since mid-December 2013. 3 months ended. unlimited. the management decided to abruptly ... reduce the staff from 1500 to 400 by April 1. and everyone is forced to write an application for. is it legal? What options for dismissing an employee can be if you refuse to write a statement of your own free will? Is it possible to claim dismissal in connection with and payment of compensation? how to act competently in such a situation, if I am more inclined towards dismissal, but with the maximum material benefit?

Lawyers' answers

The best answer

Nikolay Nikolaevich(03.24.2014 at 00:08:49)

Hello dear Irina!

The worst option is to succumb to persuasion and write a letter of resignation of your own free will.

It is necessary to write of your own free will only if you have such a desire, and as far as I understand you do not have such a desire, therefore it is better to leave by agreement of the parties to the employment contract. Moreover, the agreement must contain favorable conditions for you, for example, the same as when reducing in accordance with Art. 178 of the Labor Code of the Russian Federation. Article 178. Severance payments In connection with the liquidation of an organization (clause 1 of part one of Article 81 of this Code) or a reduction in the number or staff of employees of the organization (clause 2 of part one of Article 81 of this Code), the dismissed employee is paid severance pay in the amount of the average monthly earnings, as well as the average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).

The best answer

Zubkov Sergey Vasilievich(03.24.2014 at 07:57:04)

Dear Irina. This is to be expected. Massive reduction in the number of employees. The Olympics are over, now they are trying to dismiss from minimal cost... Do not write a letter of resignation of your own free will. There is no doubt that this is a reduction. Its procedure is regulated by Article 81 of the Labor Code of the Russian Federation. "An employment contract may be terminated by the employer in the following cases: 2) reduction of the number or staff of employees of an organization, an individual entrepreneur. Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is allowed if it is impossible to transfer an employee with his written consent to another employer's job (how vacant post or work corresponding to the qualifications of the employee, and a vacant lower position or lower-paid work), which the employee can perform, taking into account his state of health. In this case, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the area. The employer is obliged to offer vacancies in other localities, if provided, by agreements, labor contracts. "

When carrying out measures to reduce the number or staff of the organization's employees, the employer is obliged to offer the employee another available job (vacant position) in accordance with Part 3 of Article 81 of this Code.

About the upcoming dismissal in connection with the liquidation of the organization, reduction in the number or staff of the organization's employees; employees personally and against signature at least two months before dismissal.

The employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the period specified in part two of this article, by paying him additional compensation in the amount of the employee's average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal (Article 180 of the Labor Code of the Russian Federation ).

Upon dismissal on this basis, the possibility of the employee's preemptive right to remain at work must be considered.

Article 179 of the Labor Code of the Russian Federation. "When the number or staff of workers is reduced, the priority right to remain at work is given to workers with higher productivity and qualifications.

With equal labor productivity and qualifications, preference in leaving work is given to: family - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is their constant and main source of livelihood); persons in whose family there are no other workers with independent earnings; employees who received a work injury or an occupational disease during the period of work for this employer; disabled people of the Great Patriotic War and disabled combatants to defend the Fatherland; employees who improve their qualifications in the direction of the employer on the job.

The collective agreement may provide for other categories of workers enjoying the preferential right to remain at work with equal labor productivity and qualifications. "

And as a result, payments should be made in accordance with Article 178 of the Labor Code of the Russian Federation. "Upon termination of an employment contract in connection with the liquidation of an organization (clause 1 of part 1 of article 81) or a reduction in the number or staff of employees of the organization (clause 2 of part 1 of article 81), the dismissed employee is paid severance pay in the amount of average monthly earnings, and he also retains the average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).

In exceptional cases, the average monthly salary is retained for the dismissed employee for the third month from the date of dismissal by the decision of the employment service, provided that within two weeks after the dismissal the employee applied to this agency and was not employed by him. "

In case of violation of any requirement stipulated by the above norms of the Labor Code of the Russian Federation, the employee must be reinstated in judicial procedure with payment for the committed violation.

Explain to your supervisor that you intend to go to court. Thus, you will act wisely and you will be fired with maximum material benefit. The options for dismissing an employee in case of refusal to resign of their own free will is, first of all, an attempt to dismiss an employee for violation of labor discipline. They will pay you extra attention. But, believe me, you can survive without problems.

Good luck. Sergey. My answer is your feedback.

Looking for an answer? Ask a question to lawyers!

9476 lawyers are waiting for you Quick response!

Ask a Question

Sedchenko Sergey Nikolaevich(03.24.2014 at 00:42:05)

Hello Irina. It is impossible to force you to quit your job of your own free will. provides for the voluntary dismissal of one's own free will (Art. 80 Labor Code). If you are threatened with reprisals, record the conversation on a tape recorder or draw up a threat report. This will help you prove in court that the dismissal was not of your own free will, but under pressure. The court will reinstate you with payment of compensation for the time of the forced absence and compensation for moral damage. My answer, your feedback. If the question is resolved, click +.

Iskenderov Emil Eldarovich(03.24.2014 at 01:01:05)

Good day!

Agree to dismissal at the initiative of the employee (your own desire) or not agree - it's up to you to decide, since only you know the situation "inside" the work collective. They have no right to fire you for refusing to resign. If your employer is fundamentally your dismissal and at the same time he is categorically against dismissing you in connection with the reduction in the number, then you can offer him to dismiss you by agreement of the parties with payment in accordance with the text of the agreement of some compensation, the amount of which suits you.

If the employer somehow persecutes the refusal to write a letter of resignation, you have the right to file a complaint with the labor inspectorate or send it. served according to the rules of Art. 131, 132 Code of Civil Procedure of the Russian Federation. The state duty for the plaintiff is not subject to claims arising from individual claims.

Good luck to you!

Morozov Igor Vladimirovich(03.24.2014 at 04:35:27)

Don't write anything. Let them warn you in writing about dismissal in 2 months about the reduction of staff, and get two in addition, and if you are recognized as an official unemployed, then in the third month you will be paid another salary. This is the maximum that can be squeezed out.

Galushka Igor Vladmirovich(03.24.2014 at 04:39:52)

Irina, hello!

If you fully fulfill your job functions, then there is nothing to worry about.
I do not recommend writing a letter of resignation of your own free will under any circumstances
Let the employer either dismiss you on a layoff, or dismiss you by agreement of the parties, and then negotiate with him about the financial component of such a dismissal.

If the pressure continues, threaten to write to the labor inspectorate for violation. If it doesn't work, do so.
This will cool your direction.

Good luck!

Oleg Eduardovich(03.24.2014 at 08:46:27)

Good afternoon. Do not write such a statement, even if you are further dismissed, you will receive monetary compensation ... In case of dismissal of their own free will, compensation is not allowed. All grounds for termination of an employment contract are spelled out in Article 81 of the Labor Code of the Russian Federation: An employment contract may be terminated by an employer in the following cases: 1) liquidation of an organization or termination of activities by an individual entrepreneur; 2) reduction of the number or staff of employees of an organization, an individual entrepreneur; 3) inconsistency of the employee with the position held or work performed due to insufficient qualifications, confirmed by the results of certification; 4) change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant); 5) repeated non-performance by the employee without good reason of labor duties, if he has a disciplinary sanction; 6) one-time gross violation of labor duties by an employee: a) absenteeism, that is, absence from the workplace without good reason during the whole working day (shift), regardless of its (her) duration, as well as in case of absence from the workplace without good reason more than four hours in a row during the working day (shift); b) the appearance of an employee at work (at his workplace or on the territory of an organization - an employer or an object where, on behalf of the employer, an employee must perform a labor function) in a state of alcoholic, drug or other toxic intoxication; c) disclosure of secrets protected by law (state, commercial, official and other) that have become known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee; d) committing at the place of work theft (including minor) of someone else's property, embezzlement, deliberate destruction or damage, established by a court verdict that has entered into legal force or, a body, an official authorized to consider cases about; e) violation of labor protection requirements by the employee established by the commission for or authorized for labor protection, if this violation entailed grave consequences (industrial accident, accident, catastrophe) or deliberately created a real threat of such consequences; 7) the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to the loss of confidence in him on the part of the employer; 7.1) the employee's failure to take measures to prevent or resolve a conflict of interest to which he is a party, failure to submit or submit incomplete or inaccurate information about his income, expenses, property and property obligations, or failure to submit or submit deliberately incomplete or inaccurate information on income, expenses, on property and property obligations of their spouse and minor children, opening (having) accounts (deposits), keeping cash Money and valuables in foreign banks located outside the territory Russian Federation, possession and (or) use of foreign financial instruments by the employee, his spouse (wife) and minor children in the cases provided for by this Code, other regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to the loss of confidence in the employee by the employer; 8) an employee performing educational functions has committed an immoral offense incompatible with the continuation of this work; 9) adoption of an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization; 10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties; 11) submission by the employee to the employer of false documents when concluding an employment contract; 13) provided for by an employment contract with the head of the organization, members of the collegial executive body of the organization; 14) in other cases established by this Code and other federal laws. Please ask for additional advice if required.

Legal entity - from one thousand to five thousand rubles or administrative suspension of activities for up to ninety days; on legal entities- from thirty thousand to fifty thousand rubles or administrative suspension of activities for up to ninety days.

2. Violation of labor legislation and labor protection official previously subjected to administrative punishment for a similar administrative offense -

shall entail disqualification for a period of one to three years.

Also, the labor inspectorate has the right to draw up protocols and consider cases of administrative offenses within the limits of authority, prepare and send other materials (documents) to law enforcement agencies and the court on bringing the perpetrators to justice in accordance with federal laws and other regulatory legal acts of the Russian Federation.

Is it possible to request dismissal in connection with the reduction of staff and payment of compensation? Yes, you have every right to submit a competent written letter on these grounds with the subsequent payment of the entitlement.

how to act competently in such a situation, if I am more inclined towards dismissal, but with the maximum material benefit? Submit a written statement to management in two copies. 1st in the office, and on the 2nd (your) let them put Bx. No. and list of acceptance of the application. If you refuse to accept, send it by mail with a delivery receipt. Wait for a reaction if it is not positive - then work. inspection, the prosecutor's office, if they do not help, then a lawsuit is filed in court. Sincerely...

Sometimes the bosses can take actions aimed at getting the unwanted employee to write a letter of resignation of his own free will.
How to protect yourself from the employer's attempts to force you to write a statement of your own free will, whether there is liability for such an action, read the material below.

Coercion to dismiss

Forcing them to dismiss of their own free will, the employer pursues only one goal - to get rid of the employee.
According to the Labor Code of the Russian Federation, an employer cannot just fire his subordinate. This must be based on the grounds provided for by the Labor Code or other federal law. There are several levels of coercion.

First level - consists in a personal conversation. Ends with the phrase "Write a statement of your own free will, you are fired!" The most shy ones give up and write a statement. As a result, they are left without a job and without a livelihood.

Second - the employer threatens that he can dismiss under the article, sometimes evidence of violations committed by the employee is presented. At this level of coercion, the phrase “See this folder? It has collected your disciplinary actions for a long time, in which case, we can fire you at any time, or we simply won't let you work. "
Hearing such words, workers often give up as well.

Third level - involves specific actions aimed at creating evidence of the commission of disciplinary offenses. For example, the boss may incite a boycott, create uncomfortable conditions for continuing to work in the firm. As a result, many are also unable to withstand the pressure.

Level four - actions that can be classified as an administrative offense and a criminal offense. For example, physical impact and so on.

Protection against coercion to dismiss

You can protect yourself from being forced to leave your place of work as follows:

State your position clearly. In this case, unwillingness to sign the statement;
Observe strictly labor discipline... Come to the office and leave on time, we carry out all the tasks and orders of the bosses;
Don't get involved in conflicts. Do not succumb to provocations, and they will certainly be on the part of the employer;
When receiving instructions from the management, demand that they be stated in writing (useful in court).

Where to go if they are forced to resign of their own free will?

If you are forced to write a statement, you can contact the Federal Labor Inspectorate, the prosecutor's office or the court.

Federal Labor Inspectorate - a special body that oversees compliance with the Labor Code. On behalf of this organization, inspectors conduct inspections. To carry it out, you need to write a statement.

Prosecutor's office - has the right to carry out any checks. An employee can apply to the prosecutor's office with a complaint, in which case the correctness of the dismissal procedure and the circumstances will be analyzed.
The prosecutor may demand that an employee be reinstated to his previous position. In fact, it is not much different from the labor inspection.

Court - the only one government agency resolving the dispute on illegal dismissal finally. His decision is binding. The term for appeal to the court is 30 days from the date of publication.

Compulsion to dismiss of one's own free will - judicial practice

As a matter of practice, the court often takes the side of the employee, but it is not easy to make the unscrupulous boss responsible for forcing the dismissal. If, nevertheless, justice prevails, the employer will be brought to administrative responsibility (Article 5.27 of the Administrative Code). In some cases, prosecution is also provided for under the Criminal Code of the Russian Federation.

Penalty for forcing the dismissal of an employee

If the manager forces a pregnant employee to leave work, he faces criminal liability under Article 145. For violation of this article, the law provides for a fine of 120 thousand rubles, in addition, forced labor for up to two years.

Statement of Forced Dismissal - Sample

There is no established pattern. The complaint can be handwritten on A4 paper or printed on a computer.

Enter your full name in the header. contact details to whom the complaint is sent about coercion to leave a voluntary position. Below write the name of the document (Application or Complaint). State all the circumstances in detail. Try not to make mistakes. Do not forget to date and sign your transcript.

In the context of the developing financial crisis and optimization of costs by enterprises, specialists have developed recommendations for workers who are going to lay off... Here are the main ones:

Do not write a letter of resignation of your own free will, because in this way you will deprive yourself of the opportunity to receive what you are entitled to when reducing;

By law, the employer must notify the trade union of the enterprise and you in advance about the planned layoff and pay wages at least two months in advance.

WHAT TO DO IF YOU ARE FIRED?

Seven tips from a lawyer:

Most often, the employee is offered to quit of his own free will, with the alternative to stir up this desire by dismissal "under the article." Maybe it's a bluff, maybe not. Now is the time to delve into your memory and remember if you asked your superiors for one day at your own expense in the last month. If you did not document this in any way, but there was a so-called gentlemen's agreement, it is likely that the authorities will completely forget that there was an agreement and the personnel department will fire you for absenteeism if you do not provide supporting documents. Were you late for work, did you complete all the tasks within the timeframes regulated by the company's internal documents?

First advice

All body movements are documented. If you need to be absent from work, write a statement in two copies, on which your management puts its resolution "I do not mind", date and signature. The first copy is with the authorities, the second you press to your heart and hide at home in the most fireproof place. Remember that a disciplinary action can be imposed on an employee within a month from the moment the misconduct was discovered.

Second tip

It's time to reread your employment contract, job descriptions, internal rules work schedule, safety regulations and other documents that you signed when hiring and later. Often the employer is cunning and makes these documents in one copy, which are stored in the personnel department or accounting department, depending on who is involved. personnel work... This is a violation of your rights. You have the right, upon written application, to familiarize yourself with your personal file and make copies of documents. The most important thing is that the second copy, which you will have, has the number of the incoming document and the signature of the person who accepted it. Copy the entire employee's personal file from cover to cover.

Third tip

I do not recommend going to the personnel department for advice, and even more so to your own HR department, they will lie three boxes out of love for art and loyalty to the company. You need a labor lawyer. A lawyer of even the broadest profile with the most famous name is a stretch.

Fourth tip

You have collected the documents, figured out what you owe and what will be to whom for it. You consulted with a lawyer and found out what rights you have and what you can claim. If the salary is paid in a black envelope, it is better to agree on some compensation and break up with the company amicably. It is troublesome to prove the size of the "black" salary in court, and often it is not possible.

Fifth advice

Let's say you do not intend to quit, although they openly hint to you. Naturally, there can be no talk of any delays, every body movement must be documented.

Sixth tip

See what you are signing. Often, especially cunning employers slip you documents in which you admit that until the forty-fifth year you worked as the main Hitler in the Third Reich. Do not sign anything without legal advice, otherwise you will look pale in court.

Seventh advice

You are still fired, and even with the wording: "one-time rude or a system of violations." It's OK. You have a month to file a statement of claim in court, but before that you must receive orders to impose a penalty, an order of dismissal, a work book with a record of dismissal. Why is this needed? If the dismissal was carried out illegally, within a month you have the right to file a claim in court at the location of the defendant. In the statement of claim, regarding the requirements, it is written "I ask to be reinstated at work, to recover for forced absenteeism." The trial will take from four months to one and a half years. If the process is won, then for the entire time from the moment of dismissal to the moment the decision is made, the employer will be charged for your forced absenteeism. (with)

24 Aug 2009

5 typical “crisis” layoffs: how to protect yourself?

Lawyers Center for Social and Labor Rights call 5 basic situations, in which workers find themselves in connection with the crisis, and typical mistakes workers that lead to the infringement of their rights.

Situation one

Employer's action: The company's management strongly recommends that all employees write a letter of resignation of their own free will, threatening to fire them for absenteeism, incompetence and other negative reasons.

Employee error: Having succumbed to the excitement and threats of the employer to give a negative recommendation for a new job, the employee writes a statement and quits "of his own free will."

Result: An employee is fired without severance pay, he does not have time to search new job... New employment due to the lack of time to find a suitable vacancy occurs with a loss of earnings. The employee's family is left without a livelihood for several months, and is not at all in New Year's mood ...

Lawyer's comment: Before writing your letter of resignation, think about yourself and those close to you who are dependent on you. If you don’t have enough money set aside to live at least a few months, don’t agree to quit of your own accord! If the employer decides to fire you for fictitious reasons (for example, for absenteeism, which you did not commit), you will most likely be able to go to court to collect from the employer the average earnings during the forced absence. As a result, you will have something to give money borrowed from friends for food and basic necessities.
Also keep in mind that arbitrage practice proceeds from the fact that termination of an employment contract on the initiative of the employee is permissible in the case when the submission of the application for dismissal was his voluntary expression of will. If the employee claims that the employer forced him to submit a letter of resignation of his own free will, this circumstance is subject to verification by the court. However, the responsibility to prove the facts of pressure rests with the employee.
Therefore, if the employer puts psychological pressure on you and voices threats, try to record these facts with the help of a dictaphone and other technical means... Enlist witnesses who can confirm that you were forced to resign in the event of a dispute. Maintain contacts of quit employees - often people simply cannot find their former colleagues who witnessed the facts of coercion to quit. You can challenge the dismissal "of your own free will" within a month from the date of delivery of a copy of the dismissal order or issuance of a work book.
Do not forget also that you have the right to withdraw your letter of resignation within two weeks from the date of receipt of the application by the employer (Article 80 of the Labor Code of the Russian Federation). The application must be withdrawn in writing, keeping a second copy of the application with a note of receipt by the employer.

Situation two

Employer's action: The management of the company tells employees to write an application for unpaid leave (popularly referred to as “administrative leave” or “leave at their own expense”). Often, such actions are accompanied by the distribution of an appropriate application form, in which employees are asked to put their full name, date and signature.

Employee error: Out of a sense of collectivism and in the hope that such loyal behavior will be "credited" by management in the future, most workers agree to sign a vacation letter.

Result: The employee is left without a livelihood, trying to find a temporary job "or" hack ", which, as a rule, turns out to be less paid and unstable. Therefore, if you have already written an application for unpaid leave, then you run the risk of meeting New Year on a starvation diet.
True, unlike a resigned employee, an employee who is on unpaid leave retains the right to withdraw his application at any time, after which the employer will need to either pay wages or dismiss the employee after two months on reduction with the payment of severance pay ...

Lawyer's comment: If you do not have a real part-time job, this option does not promise you any benefit. Continuous work experience has lost its former legal meaning and no longer affects the appointment of a pension. Most likely, the employer simply does not want to pay you the severance pay stipulated by the legislation, compensation for unused vacation. The term for granting unpaid leave is not limited by law. The employer's calculation is simple - most likely, employees sent to "free float", having lost their minds, will find a new job and come with a letter of resignation of their own free will in order to just pick up their work book. Conclusion - if you have one job, then most likely it is not in your interests to write an application for granting leave without pay. Refuse to write an application, and if you have already signed it - write a new one - about refusing to provide leave without pay - and go to work.
If you have evidence of pressure on you when writing applications for unpaid leave, you can expect to receive from the employer the average earnings for the time of illegal suspension from work by going to court.

Situation three

Employer's action: Two weeks before the end of the probationary period, the boss calls the employee and says that there are serious remarks about his work and the most The best way- resign of his own free will. At the same time, the employee is informed that if he refuses to write a statement, he will be dismissed as having failed the test and is unlikely to be able to find a decent job. The actions of the employer are often explained good attitude to the employee and unwillingness to spoil him business reputation and a work book.

Employee error: For fear of getting a negative entry in the work book, the employee writes a letter of resignation of his own free will and leaves the company.

Result: The employee is left without a livelihood, trying to look for another job. Unlike an employee who resigned of his own free will, having an "open-ended" employment contract, an employee undergoing probation more adapted to the situation of looking for a new job from a moral point of view. As a rule, finding himself in a similar situation, a person believes that he is simply unlucky and continues to search for a job again. But, new year holidays spoiled - looking for a job before mid-January is almost pointless - hiring decision makers go skiing outside the country.

Lawyer's comment: According to Art. 71 of the Labor Code of the Russian Federation, an unsatisfactory test result must be motivated by the employer. The employer is obliged, no later than 3 days before dismissal, to notify the employee about dismissal on this basis, setting out the reasons that served as the basis for recognizing the employee as having failed the test in writing. The burden of proving the validity of the reasons and the fact that they took place rests with the employer.
If you were unjustly dismissed on this basis, we recommend that you go to court within a month from the date of dismissal with a claim for reinstatement and recovery of average earnings for the days of forced absenteeism, as well as moral damage. If you have no outstanding tasks, absenteeism, etc., there is a high probability that the court will restore justice and your suffering will be compensated.
Don't be afraid to get a negative workbook entry. Everyone knows that during a crisis, many employers fire employees, grossly violating the law. The main thing is to correctly explain the situation with a new job.
Remember, too, that probation is not a reason for not paying you severance pay if your job is laid off. In case of layoff, you are subject to the same layoff procedure as for other employees - a notice of dismissal at least two months in advance and payment of severance pay.
Thus, if you manage to withstand the attack and force the employer to comply with the law and fire you on the reduction of staff, you are guaranteed income preservation for 5 months. So, for two months after the warning of dismissal, you continue to work in your position, then upon dismissal you receive severance pay in the amount of your average monthly earnings. If you do not find a job, then you will keep your average earnings for the second month after your dismissal. If you register with the employment service and register as an unemployed within two weeks from the date of dismissal, the average earnings remain in the event of unemployment and for the third month from the date of dismissal.

Situation four

Employer's action: The company's management strongly recommends that employees quit their jobs "by agreement of the parties" in connection with the financial crisis. Two salaries are offered as compensation. The HR service assures that this offer cannot be refused and that its validity period is limited to a few hours. Those who are not dismissed "by agreement of the parties" are threatened with dismissal for absenteeism or inadequacy for their position.

Employee error: Having decided that "even a shred of wool from the black sheep," the employee signs an agreement to terminate the employment contract.

Result: Having come to his senses and discussed what happened with family and friends, the employee sometimes regrets what he had done, because in two months it is not always possible to find a job, even during a crisis. Sometimes the employee recalls that out of the two salaries specified in the agreement, he should have been paid one as compensation for unused vacation. However, despite some disappointments, in this case the employee has something to set the New Year's table for, and also has time to realize mistakes and start looking for a new job.

It might be helpful to read: