If forced to write a letter of resignation. Can they be forced to resign of their own accord? Compulsion to dismiss as a pervasive phenomenon

Naturally, this does not mean dismissals associated with violations of labor or production discipline. If an employee expresses a desire to terminate employment for personal reasons, then the amount of benefits and compensations paid to him is minimal. He loses the right to receive annual and quarterly bonuses, severance pay, and so on. Therefore, from a purely financial point of view, the employer from dismissal by on their own the employee wins, and sometimes quite large sums. This reason is quite serious, but most often it does not act as the main one, when the employee is forced by the boss to write a statement of his own free will. Most often, the main reason is the reluctance of the employer to have this particular employee. Falling into the category of "objectionable" can be explained by many factors.

The employer forces you to resign of your own free will. what to do?

Since a court hearing a case of illegal dismissal can last up to several years, in case of loss, the employer may suffer serious material losses. The employment center helps to find new job and pay an allowance while searching.

Attention

Learn about job placement for redundancy. Coercion to dismiss as a pervasive phenomenon Today employers avoid direct dismissal of employees "under the article", and try to force the employee to leave of his own free will. If an employee violates the terms of the employment contract, dismissal of his own free will be the best way out for him, but often employers try to force staff to lay off to reduce the staff.

What to do if you are forced to resign of your own free will

In a situation where there is psychological pressure, the manager may face administrative punishment if the employee goes to court. If the authorities were not afraid to resort to physical or psychological violence, it will not be long to wait for the opening of a criminal case.

Important

Even for ordinary insults, the chief can answer with an administrative penalty under Article 5.61. If the bosses managed to force the worker to leave, the actions should not go unpunished - you should contact all possible organizations that can help:

to the Labor Inspectorate;
to the prosecutor's office.

Litigation, which can last several months, if found guilty by the authorities, may benefit the dismissed person.

Do not rush to quit "of your own free will"

Info

WHY EMPLOYERS DO THIS Obviously, the main reason is the desire to get rid of the unwanted employee. Those. if you are asked to write a letter of resignation of your own free will, then, first of all, the employer wants your employment relationship to end.

Why, according to the employer, they should stop exactly at your request, will be discussed below. It should be noted here that getting rid of formal encroachments on your labor relations does not allow solving the main problem - the employer's unwillingness to continue labor relations with you.
From the point of view of the Labor Code, there are two different grounds for terminating an employment contract: at the initiative of the employer and at the initiative of the employee. The difference is obvious - whoever wishes to end the employment relationship is the initiator of the dismissal.

Coercion by the employer: dismissal "not of their own free will"

The optimal amount of compensation is considered to be three monthly salaries, since this is how much the employee will receive when reducing, having worked for another two months after receiving the notification and receiving a payment in the amount of one monthly salary when calculating. If it was not possible to agree with the employer on the payment of compensation, it remains only to demand an official reduction of the position.
About the date of issue work book upon dismissal read here. Documentary evidence of coercion to dismiss If an employee decided to collect documentary evidence of coercion to dismiss of his own free will to draw up a statement of claim, it is necessary to understand that it is not easy to prove the fact of coercion in court.
When the application has not yet been written, it is best to follow the advice above.

What to do if the employer forces you to resign of your own free will?

As a result, you can get good compensation, as well as restore your reputation, if the manager still fired you for alleged absenteeism or for other violations of the employment contract. Please note that if you still write a statement, and the manager did not threaten you with violence or death, or there is no evidence of this, then it will be almost impossible to prove your case.

5 Write the statement incorrectly if you can. For example, do not write that you are quitting on your own initiative or of your own free will: the absence of such wording will lead to the fact that the court recognizes leaving work as not voluntary. Write that you are asking to be relieved of your post, but do not mention termination of the employment contract.

The employer forces you to resign of your own free will: what to do?

Collect evidence that you are being forced to write a statement of your own free will. In particular, you can try recording your conversation. If the employer threatens the employee not just with dismissal for absenteeism or inadequacy, but with beating, murder, etc., it is enough to contact the police and ask to take action. For example, your phone can be tapped and you can prove the guilt of your employer. You can also declare that at the time of your dismissal you were in a difficult financial situation and did not have another job, which will make your statement illogical from the point of view of the court. 4 Consult an experienced lawyer. He will help you collect the necessary evidence, and will also defend your rights in court.

What to do if you are forced to resign "of your own free will"

If you do not have the strength to resist the employer, then you should write a letter of resignation of your own free will, having previously prepared for reinstatement at work in court. To do this, you should stock up on evidence of the "compulsion" of your "voluntary" dismissal.

For example, you can record your conversation with the employer on a dictaphone, while it is important that the dictaphone record records threats or other pressure on you from the employer. It is possible to provoke the employer into a conversation in the presence of colleagues or other persons who will subsequently be able to testify in court session (at the same time, do not rely too much on colleagues, since it is rare an employee will agree to testify against his employer). Having received evidence, you can write a statement. After the dismissal is made, you should go to court.
You can negotiate with the employer and quit by agreement of the parties, which will make it possible to receive additional compensation and benefits. Another scenario is more suitable for those people who value this particular job and are happy with everything in it.

They should talk to management and try to figure out the real reason why they want to part with them. It is possible that something will have to be changed in your habits or even in character, you may have to apologize for long-spoken words or committed actions.

A definite plus for a person will be the presence of high qualifications. As a rule, the management tries to keep such specialists at work.

You can enlist the support of the union, which in some cases is a very effective measure.

If you are forced to write a letter of resignation at work

And therefore, the ability of a particular manager to influence the results of certification in his favor is reduced to almost zero. For an unscrupulous employer, the certification mechanism turns out to be useless, and therefore inaccessible. About the job description The basis of any work activity is job description... However, not every employee has it. And in this regard, a logical question arises: can management take advantage of her absence, intending to dismiss an unwanted employee? To dismiss and cite the fact that there is no such instruction? Experts in the field labor law claim: the job description, according to the provisions of the current legislation, is not a mandatory document. In controversial issues, you can build on any other internal document that spells out the employee's production functions.

And yet, if there are dictaphone records, it is better to provide them in court. Even if they are not included in the case, but only heard, this can affect the formation of the judge's inner conviction on the issue under consideration.

So it's worth making a similar petition. What threatens an employer who makes him write an application of his own free will? If, after the demands of dismissal, the employee wrote an application to the labor inspectorate, the management of the enterprise should prepare for the personnel check procedure. And in the staff of any organization, everything is rarely all right.

This means that responsibility (administrative) cannot be avoided. The law does not leave the employer a chance to seek dismissal "of his own free will" by legal means.

Any of the measures taken in this direction will be illegal.
The following actions need to be taken:

Prevent violations of the employment contract. Even minor delays or disruptions to the work process in such a situation can serve as a reason, if not for dismissal, then for psychological pressure, so the employee must adhere to the following rules:
- arrive at work on time and not stay late at lunchtime,
- ask the employer to provide instructions in writing and report in writing on the results of the work,
- if you need to leave work for a good reason, be sure to write an appropriate application and wait for the approval of the truancy by your immediate boss.
Do not give in to the persuasion of the employer.

What if the employer decided to refuse your services in a simple way - he offered to write a letter of resignation of his own free will?

According to the current legislation, the employment contract can be terminated by both, and. List of cases when an employer can terminate an employment contract, limited by law (Article 81 of the Labor Code of the Russian Federation of December 30, 2001 N 197-FZ).

It becomes clear that no matter how carefully we look at this list of these circumstances and Labor Code in general, we will not find even a hint of the ability to force an employee to leave of his own free will.

The employer has no legal basis to compel the employee to such actions.

However, now such an illegal method of dismissal is very common - the employee is invited to write in case he, for some reason, has become disagreeable to his employer.

What if your boss forces you to write a letter of resignation of your own free will?

Of course, you can refuse to write an application and continue to fulfill your labor functions... However, no one here is safe from what is called "survival."

It is possible to "survive" an employee from work in different ways - they use psychological pressure, and bonuses under a variety of pretexts, and tightening control over activities, etc.

How to get out of the situation?

First of all, you need to answer the question for yourself - what result do you want to achieve in the end? There are not many variations here.

Your goal is to stay at your favorite job

In this case, you need to ask the employer about the reasons for this decision. It often happens that she finds herself in a forced situation, which is preparing to go on maternity leave. In this case, the employer may seek to get rid of the employee for fear that the company will incur costs. In fact, the employer will not bear any losses directly - all women will be paid from the Social Insurance Fund.

It will be useful to remind the employer that for the unjustified dismissal of a pregnant woman, criminal liability arises under Art. 145 of the Criminal Code of the Russian Federation.

If your employer has given another reason for your dismissal, try to refute it in a casual way. So, we can refer to the fact that now it is very difficult to find a suitable candidate in this area, but you are a highly qualified specialist and for several years (months) of work you have adapted perfectly to the working rhythm of the company.

If it was not possible to agree with the employer, then you can write a letter of resignation at your own request, and then immediately go to court with a claim about.

A claim for reinstatement at work can be filed with the district court at the location of the organization (either at the location of any of the branches of the organization, or at the place of work) no later than 1 month from the date of dismissal.

It is worth hurrying, because otherwise you will have to prove to the court the validity of the reason for missing the deadline.

In such disputes, the employee freed up from all legal costs, as well as from the payment of state fees. In addition to the demand for reinstatement at work, it is advisable to include in the claim a claim for the recovery of compensation for moral damage with a detailed listing of moral suffering.

However, after recovery, the employee often feels that they are still trying to “survive” and quit on his own. So immediately appreciate possible risks for the nervous system. You may decide to follow a different scenario.

You are ready to quit, but you want to get benefits for yourself.

To do this, you should contact the employer with a statement about, provide an annual paid one, if necessary, get a characteristic that may be useful in the future, etc.

You can make a pre-trial claim to the employer where you offer the employer to voluntarily pay the amount you assigned. But, unfortunately, this mechanism rarely works in practice, and you have to go to court to recover the appropriate compensation.

Problem

Good evening!

The situation is very complicated and confusing, I hope you will help me to correctly draw up a statement to the prosecutor's office and achieve justice.

So, the situation: I work as an assistant manager in an insurance company. there were no complaints about my work, no memos and other things. On July 21, I came to work an hour before the start of the working day. but, after half an hour, she left, warning general director (my immediate supervisor) that an emergency occurred at home and I was forced to leave work. I warned the deputy of the State Duma for personnel and provided a replacement. In the middle of the working day, a personnel officer calls me and says that the State Duma requires my application for an administrative one, to which I replied that there had never been a problem, when we came the next day and wrote "retroactively". (Apparently the leadership followed the principle). As a result, the personnel officer and I agreed that they would write a statement for me and hand over to the State Duma, allegedly I wrote the statement, respectively, signed the statement for me with my signature. The State Duma signed this statement with a resolution, they say, in an order on administrative leave. (I have no copy of this statement).

The next day I went to work, to which they tell me to transfer cases and release workplace, while writing a statement of their own free will. I say, ok, but then with the payment of compensation, which is usually paid by agreement of the parties to the employee. during the day I handed over all the cases, reported on all expenses and partially signed the bypass sheet. I wrote a statement, but did not give it to the management. wanted to wait for my terms to be approved. At the end of the working day, the deputy head of the State Duma informs me that they will not pay me anything, to which I replied that then I will not write any applications and tomorrow I will go to work. the next day, 23 July, I went to work as usual. I was summoned to a meeting by the deputy for human resources and the deputy of the State Duma for business development, where I was forced to write in my own conversation, to which I again put forward my conditions regarding the agreement of the parties and compensation. I was told that they would not pay any compensation, because they were allegedly not satisfied with my work and would conduct a commission on the work done by me, to identify shortcomings, in order to dismiss me under the article for inconsistency with my position. (apparently they are not familiar with TC at all). to which I replied that ok, do commissions, I will not write anything. They began to press with the pretext that I would spoil all my work and that they would give me bad recommendations... they also said that now, since I do not agree to write an application, they will transfer me to another workplace, since DG doesn't want me to be at my workplace. (I recorded this conversation on a dictaphone). as it turned out, they had already made a labor record that I was dismissed of my own free will on 21 July.

After the meeting, I went back to my room, sat down at my workplace and continued my work. the HR deputy came up to me and said that now they would transfer me to the reception in the call center and the girls would explain my duties to me, to which I replied that I would not do work that was not included in my work duties provided for labor contract, to which the deputy for personnel told me: "well, we are now an order to transfer to new position we will do ", I retorted:" according to the Labor Code, you must warn me 2 months in advance about the transfer to a new position and I have the right to refuse! "

she could not find what to answer and sat down at my workplace (she was put in my place), I was nearby. At lunchtime, I went home and on a nervous basis I had a relapse with my back, entered into my back that I had to call an ambulance and go to hospital. from work, the pressure continued for me to write an application. I am on sick leave until August 19 (my back is like that), and on August 20 I have to go to work. Recently, a lawyer from work called me and said that she was forced to sign a protocol on my absenteeism and that a new person had taken my place, but she was registered as a manager's assistant. As it turned out, they hid the administrative application with the State Duma resolution, and they expose the situation that I allegedly did not write anything and there were no statements.

i plan to write a statement to the prosecutor's office that I am forced to write a statement of my own free will, and I will also go to court in the future.

Naturally, I no longer plan to work there, but I hope that justice will prevail.

help, please, with writing a statement to the prosecutor's office indicating the correct articles, as well as consult on the situation. how much is it winning?

As for the possibility of dismissal for absenteeism, first of all, an explanatory letter should have been demanded from you. If you are fired for absenteeism in violation of the law, you will be able to challenge this dismissal in court, collecting compensation for moral damage from the employer and payment for the time of the forced truancy.

As for the fact that you are planning to "write a statement that I am forced to write a statement of my own free will" is a very correct step. The expert of our site, Victoria Kochetkova, specifically for such cases, developed an algorithm on the topic: Forcing to resign of their own free will, instead of dismissal to reduce the number or staff http://taktaktak.org/document/15217. I advise you to study it carefully, as it contains a sample application to the employer.

i also advise you to familiarize yourself with the solution to similar problems:

What if the employer hints at a dismissal of his own free will? http://taktaktak.org/problem/19074

At work they are forced to resign of their own accord http://taktaktak.org/problem/10383

The Judicial Collegium for Civil Cases of the Russian Armed Forces came to the conclusion that the dismissal was illegal after examining the application of a resident of Kogalym, who left for another region during her annual paid leave, where she fell ill and could neither return to work on time, nor report what had happened.

If you have to write an explanatory note, I recommend that you do it by all means, write in detail, specific facts. To help you I offer a small Instruction from one of my local regulations, which is developed for workers .

Explanatory letter - a document explaining the reasons for any action, fact, incident, drawn up by an employee and presented to a superior official. An explanatory note is drawn up on a standard sheet of paper and addressed to a specific official. The requisites of the explanatory note are: name structural unit; name of the type of document; date, title to the text; destination; text; the signature of the originator.

Before applying a disciplinary sanction, the employer must request from the employee a written explanation of the committed and identified misconduct, in which the employee will describe the situation - date, place, time, reasons, circumstances. When writing an explanatory note, the employee is advised to answer the following questions:

1. Whether there was a violation;

2. What is the employee's fault: willful, careless, there is no employee's fault;

3. Circumstances of the violation, its reasons;

4. The presence of witnesses;

5. The attitude of the employee to the violation;

6. The attitude of the employee to further work.

If, after the expiration of two working days, which are counted from the date following the day of filing the demand, the specified explanation by the employee is not provided, then a corresponding act is drawn up.

An employee's refusal to provide an explanation cannot be an obstacle to the application of disciplinary action.

Disciplinary penalties are applied by the Employer no later than one month from the date of its discovery, not counting the time of illness or the employee's vacation, as well as the time required to take into account the opinion of the representative body of employees.

A disciplinary sanction cannot be applied later than six months from the date of the misconduct, and based on the results of an audit, audit of financial and economic activities or an audit - later than two years from the date of its commission. The indicated time limits do not include the time of the criminal proceedings.

Disciplinary penalties are applied by order of the General Director to provide the immediate supervisor of the employee. The order must be accompanied by the employee's explanations, acts, certificates and other documents confirming the fact of misconduct and the guilt of a particular employee.

For every violation labor discipline only one can be applied disciplinary action.

When imposing a disciplinary sanction, the severity of the offense committed, the circumstances in which it was committed, the previous work and the employee's behavior must be taken into account.

An order on the application of a disciplinary sanction with an indication of the reasons for its application shall be announced to the employee subjected to the penalty, against signature within three working days from the date of its publication. If the employee refuses to sign the specified order, an appropriate act is drawn up.

If, within a year from the date of application of the disciplinary sanction, the employee is not subjected to a new disciplinary sanction, then he / she shall be deemed to have no disciplinary sanction.

In general, your employer, as regards the documents he is doing correctly, will be a mistake if he does not ask for an explanation. And here the deadlines in which he must meet in order to apply disciplinary action to you are important, I have indicated these deadlines to you.

I explained everything to you, let's not invent anything else. The package of documents confirming your absence may be different. It may not be an act, but, for example, just a memo from your immediate supervisor, a timesheet and your explanatory note. Or maybe a memo of the immediate supervisor, an act of absence from the workplace, a report card, your explanatory note. Or maybe an act of absence from work, i.e. even a memo is not needed, a time sheet, your explanatory note.

And all this as a result can be formalized by an order of punishment, it will either be a remark, a reprimand or dismissal for absenteeism. And before the order, for example, there may be another Act, where the employer, having studied all the documents, comes to the conclusion that you should be fired for absenteeism, and after that the order is already drawn up.

So that your employer collects the correct documents, the main thing is that he still meets the deadlines and that's it. And the fact that he will ask you for an explanatory note after your "truancy" every other day, a week, 20 days, it doesn't matter.

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

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

You plan all your affairs based on the fact 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 the office and tells you that the firm appreciates your efforts, but no longer needs you. You are asked to submit an application "of your own free will." A measured, calm life collapses in one moment, and the only question persistently sounds in my head: "How to live on ?!" 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 an unreasonable proposal is received from the management to write a statement "on their own" are 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.

The Labor Code of the Russian Federation contains several articles related to the dismissal procedure. We will only consider those that relate to the employer's persistent desire to fire 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 dismiss a person of their own accord? It's simple - to fire a guilty employee, you need proof of guilt, an official investigation, evidence of malice, etc.

All these actions require qualified specialists who understand not only labor legislation, but also have experience in litigation in 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 had 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, get some compensation for moral damage.

Exit options

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

First option

You consider all the chief's claims to be 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 will come in handy as you smile at your boss every morning and politely answer his question about the application. Remaining calm, firmly explain to your boss that you enjoy your job, and prove with reason 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 of communication with the boss. Further actions depend on how long you can defend your interests. Quite often, the issue of dismissal gradually dies down, without 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, gather facts to prove that your dismissal was not voluntary. Audio and video recordings of conversations with the head, witness testimony, copies of memos describing the situation registered in the office - all this will be the necessary factual material.

If the dismissal does happen, you can 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 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" is that the dismissal should not occur of their own free will, but by agreement of the parties.

It might be helpful to read: