Actions of the employer if the employee has not signed the dismissal order - rules and deadlines for familiarization according to the Labor Code of the Russian Federation

Time limits for familiarization according to the Labor Code of the Russian Federation

Labor legislation does not establish a single and specific rule for the time period within which an order to dismiss an employee must be familiarized with.

But it affirms the employer’s obligation to issue a full paycheck and work book to the employee on the day of immediate dismissal.

Therefore, the order must be signed by the employee no later than the day of dismissal.

To avoid problems, employers try to inform the resigning person in advance. But even a signature placed on the day of settlement will not be considered a violation of the law.

Personal reasons for urgent dismissal requiring proof

It is sometimes necessary to resign urgently without completing a two-week period due to other circumstances that arise for the employee. These include:

• the need for an urgent change of residence, for example, in connection with the transfer of a family member of a resigning employee to another place of work;
• sending the husband or wife of an employee on a long business trip if it is necessary to travel with a relative;
• a significant deterioration in the employee’s health, making it difficult to perform his duties and requiring a change of place of residence due to poor environmental conditions;
• pregnancy of an employee, which does not allow her to work until maternity leave, because working conditions threaten the bearing of an unborn child.

These are only some of the reasons that may become grounds for urgent dismissal of an employee. Each reason must have mandatory documentary evidence. In order for the employer to be unable to refuse the employee’s request for urgent dismissal, it is necessary to indicate a valid reason for urgent resignation in the application and attach documents confirming it. All documents in the event of immediate non-acceptance of the application by the employer can be sent by courier.

How to inform if a fired person is absent from work

The dismissal order requires mandatory review and signature of the employee.
If the latter does not come for the paycheck and documents on the day of dismissal, the employer sends him a written notice of the need to come to the employer to get a work book and familiarize himself with the order.

This indicates that the company notified the employee of the settlement.

In such circumstances, a special mark is placed on the order, indicating that it is impossible to familiarize the employee with the order due to his absence.

Signature of the order by power of attorney

The employer must personally familiarize the employee with the dismissal order. Therefore, if he does not appear on the day of settlement and does not sign the order, a corresponding entry is made in it.

Orders regarding personnel are not signed by proxy, since they concern the employee personally. The actions of a trusted person can always be challenged.

Therefore, the option of entrusting the right to sign a dismissal order to another person does not work.

What to do if an employee does not sign and refuses?

According to the law, an employee’s refusal to sign an order cannot serve as an obstacle to its execution.
When an employee refuses to affix his visa, the personnel officer will affix o.

At the same time, labor legislation requires in such circumstances to additionally draw up an act of refusal.

There is no standardized form for such a document. The employer can issue it in a free form. If it is not drawn up, the employee will be able to challenge the dismissal order.

Example:

Suppose the director decided to dismiss an employee under an article. He issues an appropriate order to this effect. But the employee refuses to sign for it.

The employer does not pay attention to the lack of signature and simply terminates the employment contract. An employee files a lawsuit demanding reinstatement at work due to failure to familiarize him with the dismissal order.

Under such circumstances, the employer will not be able to prove that the employee simply refused to sign. For this purpose, an act is drawn up, in which witnesses to the incident put their signatures.

So, the employer’s procedure is as follows:

1. In the presence of at least two people, the employee is invited to familiarize himself with the document upon signature.
2. If the person being dismissed does not sign the documentation or is absent, a notice of refusal is drawn up. It is recommended to arrange it in advance.
3. Witnesses put their signatures on the act. The employee is also asked to put a visa on it.
4. If the employee refuses to sign here too, a note is made “refuses to sign”, and the witnesses put another signature next to each other.

Important! Refusal notes must be handwritten only, just like signatures.

Conditions under which there are no consequences for the employer from the absence of a signature on the order:

• the resignation letter is written at the employee’s own request;
• the employee did not withdraw the submitted application;
• There is also no application to continue working.

When all three conditions are present, dismissal can be carried out without fear.

Sample act of non-signing

Since the law does not provide for a special form of the document, the employer develops it independently.

However, the form must comply with the basic rules of office work. The mandatory points of the act are as follows:

Introductory part:

• date of document execution;
• number;
• a reference to an order that the employee does not want to read;
• composition of the commission with the designation F.I.O. and positions.

The main part contains the facts of the case, findings and conclusions. That is, what exactly the commission established.

The final part contains the signature of all participants in the investigation (commission members).

If the act is executed incorrectly, there is a risk that the employee will go to court to challenge it.

The act is drawn up by a personnel service employee. The data of the employee who refused to sign the document and all members of the commission must be reflected here.

act of failure by the employee to sign a dismissal order - word.

Limited Liability Company

"Cornflower"

ACT

25.08.2019 №27

Read also:  Compensation for moral damage in labor relations

Moscow

on the employee’s refusal to sign a dismissal order

By me, HR department specialist P.R. Popova. in the presence of chief accountant Sidorova A.A. and accountant Ivanova I.A. on August 25, 2021 at 14-00 to accountant Pulemetova A.Yu. the contents of the dismissal order No. 80-LS dated August 25, 2019 were read. about her dismissal.

Apply your signature to the dismissed employee A.Yu. Pulemetova. refused.

Accountant Pulemetova Pulemetova A.Yu.

The contents of the order are confirmed by personal signatures:

Senior accountant Sidorova A.A. Sidorova

Accountant Ivanova Ivanova I.A.

The form should be free of errors, corrections and clerical errors. In judicial proceedings, this can play a decisive role.

Therefore, if a mistake is made, it is recommended to rewrite the document to avoid controversial situations.

Does an employee have the right not to sign?

The duties and rights of an employee are specified in Article 21 of the Labor Code of the Russian Federation.
The list of responsibilities does not include such an action as putting a signature on orders. Refusal to sign, according to Article 379 of the Labor Code of the Russian Federation, can be recognized as self-defense by an employee of his labor rights. Such provisions of regulations are fully justified, since in practice it is impossible to force a person to sign. At the same time, the law obliges the employer to familiarize its employees with the order upon signature. Some contradiction is created. However, legislators provided for the situation of a specialist’s refusal. An employee’s refusal, according to Article 84.1 of the Labor Code of the Russian Federation, cannot become an obstacle to the execution of a dismissal order. In such a situation, you need to make this entry in the document: “Refused to sign.”

Article 193 of the Labor Code of the Russian Federation states that the employer must also draw up a certificate of refusal. The preparation of this document must be carried out in accordance with the rules. If this paper is not drawn up, the manager’s order will not be valid. An employee can challenge the validity of this document.

Let's look at an example. The manager wants to fire an employee. He draws up an appropriate order. The employee refuses to sign. The employer still terminates the employment contract. The employee is challenging his dismissal in court. He argues his claim with the fact that he was not familiarized with the order. The employer cannot challenge the plaintiff’s argument in any way, since both the signature confirming familiarization and the document are missing.

conclusions

Several main conclusions can be drawn from the topic studied:

• If the dismissed person fails to appear at the organization, a note is made on the order indicating the impossibility of familiarization on the day of payment due to his absence.
• If the employee refuses to sign the order, a note of refusal is made in the order and a corresponding act of non-signing is additionally drawn up.
• Signatures are not affixed by power of attorney, just as you cannot write a letter of resignation by power of attorney. Under such circumstances, the employee can always challenge the action of the trustee.
• The act of refusal and non-signing does not have a special form. But it must contain mandatory items: data of both parties, the fact of refusal and signatures of all participating witnesses.
• The act of refusal to sign does not tolerate errors, typos or corrections; this is fraught with consequences in court.
• If the employee refuses to sign the act, a corresponding note is also made about this and the witnesses re-sign next to it.

Application to the Labor Inspectorate

An application to the labor inspectorate is completed in free form. There is no single legally approved model.

However, there is information that must be reflected in the document:

• name of the organization to which the application is submitted;
• first name, last name, patronymic of the applicant;
• place of registration and residence of the applicant;
• name of the enterprise where the applicant worked;
• the essence of the complaint, what prompted the employee to write a statement;
• legally sound grounds for recognizing the applicant as an injured party;
• list of attached documents;
• date, signature.

Please note that certain information must be accurately reflected in the body of the application:

• surname, name, patronymic of the head of the organization, position held by him;
• facts that directly indicate a violation of the employee’s rights;
• what, in your opinion, the leader should have done in this situation;
• date and signature are an integral part of any document.

Please note! An application to the Labor Health and Safety Inspectorate can be submitted in several ways:

• personally through the office of the authority;
• by mail, registered mail;
• You can submit an appeal online on the official website of the Labor and Safety Inspectorate.

It is believed that an appeal to the inspectorate can be submitted only within three months from the date of discovery of the employer’s violation. However, a similar rule applies to filing an appeal to court.

After receiving the application, inspection specialists initiate an inspection of the employer. The results are recorded in a special act.

If a violation is confirmed, an order is issued:

• eliminate the existing violation;
• dismiss the employee guilty of the violation;
• bring the offender to disciplinary action;
• prepare documentation for submission to the court and prosecutor's office.

If an employer refuses to comply with the inspection requirements, administrative proceedings may be initiated against him.

Drawing up an act of refusal to sign a dismissal order in 2021

The executed act is kept at the enterprise for at least 3 years. The execution of the document in question, in accordance with the norms of current legislation in Russia, must be carried out in the presence of several witnesses with the obligatory appointment of a responsible person.

At the same time, at the end of drawing up the act, all citizens participating in the process must sign it, and if at least one signature is missing, the document will be considered invalid!

Gross errors that can also lead to the above-mentioned invalidity of the act include:

• Lack of indication of exactly when and where the manager tried to familiarize the dismissed employee with the order.
• Errors, exaggeration, inaccuracies and various types of blots. Experienced lawyers of the website “Legal Ambulance” recommend starting to draw up a new document if an error was made in the old one, however, it can be corrected by crossing out the incorrect information with an even solid line, writing the corrected data next to it and putting o. In this case, the correction must be certified by the signature of all participants in the process.

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Also, it is worth noting that for the convenience of filling out the act, an electronic device can be used . At the same time, the printed document must be certified with “live” signatures.

Statement of claim to a judicial authority

If you are unable to resolve the conflict on your own, you can contact the prosecutor’s office or court. The statement of claim to the court is drawn up in the form approved by the territorial division of the judicial authority.

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There is information required to be included in the claim:

• name of the judicial authority;
• name, surname, patronymic of the plaintiff, his place of residence, registration;
• name of the organization that violated the employee’s right;
• first name, last name, patronymic of the head of the company;
• the essence of the claim, what the violation of the employee’s rights is;
• what the applicant wants to achieve, the requirements are listed in a list with mandatory justification from a legislative point of view;
• a list of documentation that serves as evidence in the case and is attached to the statement of claim;
• date of filing the claim and signature.

Please note that the statement of claim is drawn up using the rules described in Article 131 of the Civil Procedure Code of the Russian Federation.

Remember! The statement of claim is submitted to the magistrate, district or city court:

• at the place of registration of the employee;
• at the place of registration of the enterprise;
• at the location of the company.

This is also important to know:
How is dismissal under an article for drunkenness carried out: the procedure

The choice of instance depends on the value of the claim. If its price is up to 50 thousand rubles, the application is submitted to the magistrate court, more than 50 thousand rubles - to the city or district court.

State duty, according to Article 333.36 of the Tax Code of the Russian Federation, is not collected from employees in disputes with the employer.

The Magistrate's Court considers the application within one month from the date of registration. The district court has two months to do this. After this, the applicant is sent a notice of the appointment of the trial. All interested parties are present.

The court makes a decision solely on the basis of available evidence. They are collected by the applicant. If the defendant wishes to defend himself, he has the right to provide the court with any papers.

Watch the video. Dismissal at your own request: