The reasons when an employer requires an employee to write a statement of his own free will can be very different - the company does not have enough money to pay the employee, a personal conflict between a manager and a subordinate, an intention to vacate a position for “their” candidate. But all this does not mean that an employee is obliged to humbly resign just because the employer wants it that way. On the contrary, in most cases, Russian legislation is on the side of workers.
AiF.ru, together with experts, examined in detail the popular questions that arise among employees who are faced with an employer’s request to write a statement of their own free will.
How to behave if your boss demands that you resign at your own request?
In case of voluntary dismissal, only the employee can be the initiator. Otherwise, it will be the desire of the employer, not the employee. Such requests from superiors are illegal.
Article on the topic
Give me your salary!
How to force an employer to repay debts? “If you do not plan to part with your employer, then, of course, you should not write such a statement. I also don’t recommend entering into open confrontation with your superiors. First of all, you should clarify with management what caused this decision, and, based on the answer, take specific actions,” advises Tatyana Shirnina, senior lawyer of the labor law department of the Institute of Professional Personnel.
There may be several ways out of this situation:
- Do not write a letter of resignation of your own free will and continue to work as if nothing had happened;
- Do not write the above statement, but contact the regulatory authorities with a complaint against the employer;
- Offer the employer to part ways by agreement of the parties with payment of a certain amount. “Often it is the latter option that suits both parties. The employee does not want to be “thrown out” of his job, and the employer is ready to pay if only the employee would leave. Therefore, there is always a choice, and it is up to the employee,” Shirnina emphasizes.
What should you do if you are threatened with dismissal?
Threats of dismissal are a common occurrence in many organizations, so it is important to know how to properly behave in such a situation. Here are some useful tips:
- An employee may take a position of completely ignoring threats coming from management - for some bosses this model of behavior is habitual and many use it as a way of influencing subordinates. Thus, if there is a firm belief that such threats will not develop into something more, then you can ignore them.
- If an employee does not agree with the state of affairs and wants to punish an employer who violates labor law and his legitimate interests, then he can complain to one of the higher authorities mentioned above. The employer may receive a fine, and the immediate superior may receive disciplinary punishment.
In general, it should be noted that it is impossible to identify a single model of behavior that should be chosen when threats of this nature are received. Certain actions should be taken based on the circumstances of a particular situation. In any case, one should strive for a peaceful resolution of the conflict, since, first of all, this is in the interests of the employee himself.
What to do if the employer is against the contract by agreement of the parties?
It happens that the manager stands his ground and does not want to hear about any agreement between the parties. In this case, he will have to deal with the labor inspectorate. After contacting this service, it must conduct a check on the employer.
Question answer
How to compensate for delayed wages?
“If these actions did not lead to anything, it is necessary to write a corresponding statement to the prosecutor’s office. If appealing to the help of the “eye of the sovereign” does not bring results, the employee must prepare to defend his interests in court. For this purpose, it is important to ensure the availability of evidence in advance,” says lawyer Vladimir Postanyuk.
If the manager puts pressure
Typically, requests to write such a statement are accompanied by pressure on the employee. If your manager makes threats in an attempt to get fired, his behavior is a legal reason to contact the labor inspectorate, the court and the prosecutor's office. “If the manager limited himself to verbal actions when putting pressure on the employee, without resorting to threats to the life and health of the subordinate, then the boss who violated the law will face punishment under Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation. At the same time, pressure should be understood as more than just a suggestion made at least once to write a statement. There must be a mandatory requirement, implying that if the employee disagrees, he will be subject to some kind of damage (he will be fired for an alleged gross violation of labor duties and theft in the workplace),” explains Postanyuk. According to him, if there are no aggravating circumstances in the case (repeated commission of a similar crime), then the unscrupulous manager may be overtaken by either a warning or a fine of 1 to 5 thousand rubles in relation to an official or individual entrepreneur. The punishment for legal entities is more severe: they are required to pay compensation in the amount of 30 to 50 thousand rubles.
Article on the topic
“We haven’t seen the money for a long time...” Who is to blame for salary delays? “If an employer uses violence against his employee, then he will face criminal liability under one of the articles of Chapter. 16 of the Criminal Code of the Russian Federation,” he adds.
Types of penalties from the employer
If the employer wants to dismiss at his own request, and not due to redundancy, sanctions related to discipline are possible. In case of a single tardiness, when a reprimand is given, the management has no legal leverage to dismiss the employee. Another thing is repeated lateness without good reason, followed by disciplinary action.
Repeated schedule violations
In cases of lateness, it is necessary that there be several disciplinary reprimands. In this case, the following conditions must be met:
- An act of lateness prepared by the boss is required.
- In case of lateness, an explanatory note must be written (no later than two days later), and a penalty must be imposed on the latecomer.
- Within two days, the employee is required to write an explanatory note.
- The person who is late will be penalized.
- In case of refusal to write an explanatory note, a corresponding act of refusal to provide this document is drawn up.
- The absence of an employee without a valid reason for more than four hours is equivalent to absenteeism, which may be followed by dismissal. If the time of absence was shorter, then the maximum sanction is a reprimand.
- According to Article 193 of the Labor Code of the Russian Federation, after reading the reprimand, the employee must sign about familiarization.
- If the employee refuses to sign, another act is drawn up, this time about the refusal to sign the reprimand.
- The second delay is already grounds for dismissal. But even in this case, all procedures must be done again.
Thus, to dismiss an employee, you need to correctly prepare many documents. In this case, the absence of at least one of them will lead to illegal dismissal.
Lawyers say that even two times being late by 15 minutes is enough for dismissal. Here the basis will be a systematic violation of official functions. Even the willingness to work out your absenteeism will not help. Being late is a violation for which management has the right to impose disciplinary sanctions.
Even if the employee has a verbal agreement with the employer to work out missed time, this should not be relied upon. The best option is to formalize such an agreement in writing. Only in this case such delays will not lead to the possibility of disciplinary action and dismissal on legal grounds.
If dismissal occurs under such an article, then the court will also take into account the severity of the offense that served as the basis for dismissal. According to lawyers, this will not be able to turn the situation in favor of the dismissed person. The fact is that the organization has an approved working time schedule, as well as various routine rules. Even one minute late is a serious reason to hold an employee accountable.
Thus, all actions should be documented. If a person needs to be absent from work, he must write a statement in two copies. Management must then sign and date the consent resolution. In this case, one copy will remain with the management, the other in the hands of the employee.
But it’s best not to sign the papers at all: there is a high probability of making a mistake.
Certification procedure
Article 81 also gives management another opportunity to dismiss an employee “under the article”. For example, based on the results of the certification, a person may be declared unfit to perform the duties assigned to him due to lack of qualifications. But there are a few points here:
- The employee’s colleagues must take part in the certification process.
- Before the certification itself, the employee must be warned in writing against signature. The basis is an order from management.
- The order must indicate the reason for its implementation.
- The certification commission consists of at least three people. At the same time, the composition of the commission must be independent.
- If there is a vacancy, it must be offered to the person being dismissed. In this case, the degree of compliance with the qualifications of the vacancy does not matter. Requirements may be much lower. For example, this could even be a cleaning position.
- The certification procedure itself is characterized by a high degree of uncertainty. This means that it is almost impossible to carry it out in compliance with all conditions.
- Employees must be familiar with the list of all questions included in the certification procedure.
Other grounds
There are other serious reasons for releasing an employee from his duties. According to Article 81 of the Labor Code, these facts include:
- Reduction of the organization's staff. It should be said that this procedure entails the employer’s obligation to pay severance pay to all released employees. During the period of employment, the dismissed person must be provided with an average monthly salary.
- An employee arriving at the workplace while intoxicated.
- Absenteeism.
- Disclosure of commercial or state secrets.
- Theft, embezzlement, damage or destruction of property committed at the place of work. At the same time, government agencies are involved to establish the fact of such offenses. This may be a court verdict that has entered into force or a resolution of other bodies considering cases of administrative offenses.
- Violation by an employee of mandatory labor protection requirements, if actions or inactions created a threat of serious consequences.
What is evidence of pressure being exerted?
Text records whose authorship can be identified, as well as audio files, in this case are considered as evidence of the employer’s guilt.
According to Shirnina, most often courts recognize audio recordings of conversations recorded on a voice recorder as inadmissible evidence. “Moreover, the courts, as a rule, reject requests to order a phonographic examination of a voice recording of a conversation. But it must be said that even if the recording is not included in the case, but is heard by the court, this can form the internal conviction of the judge, so it is worth trying to file such a petition,” she notes.
What threatens an employer who forces him to write a statement of his own free will?
If an employee contacts the labor inspectorate with a complaint about the employer’s illegal actions, the latter should prepare for an inspection.
“As a rule, it rarely happens when all personnel documents are in perfect condition, so the likelihood of being brought to administrative responsibility is quite high,” Shirnina emphasizes.
Article on the topic
Worker - get out! Will they be fired without explanation? “An employer has no legal means of achieving the dismissal of an employee at his own request. These actions are basically illegal. Traditional methods of “survival” of an uncompromising employee from an organization represent various variations of certain rights of the employee (primarily the employment contract). Due to this circumstance, the leader’s behavior can be used as a reason to bring a lawsuit: on charges of libel (Article 128.1 of the Criminal Code of the Russian Federation), insult (Article 5.61 of the Administrative Code), etc.,” adds Postanyuk.
Where should an employee go to avoid being counted out?
If you fail to reach an agreement with your boss peacefully, you can resort to other effective measures. We are talking about appealing to higher authorities. It could be:
- A visit to the top manager of the company - if we are talking about a large organization with several levels of management. For example, you can complain about your immediate superior to the general director of the company.
- Writing a complaint to the labor inspectorate - this body is authorized to monitor compliance with labor law.
- Contacting the prosecutor's office - the main function of this department is to monitor compliance with existing laws.
The regulations do not specify exact deadlines for contacting the above-mentioned authorities, so an employee can write a complaint at any time. The main thing is not to delay this. In addition, it is necessary to additionally collect evidence that will confirm the employer’s intention to illegally fire the employee. This could be a recording of a conversation with superiors on a voice recorder, correspondence, etc.
Having decided to act in a radical way, you need to seriously think about the prospect of further work in a particular organization. Even if the manager is held accountable and punished, in the future it is unlikely that it will be possible to work comfortably under his supervision. Therefore, often after filing a complaint, the best solution is to voluntarily resign from your position .
Can an employer fire an intractable employee?
As practice shows, if an employer plans to get rid of an unwanted employee, he rarely abandons this idea.
However, the manager cannot fire an employee just because he refuses to write a statement of his own free will. But he can try to bring the subordinate under one of the grounds. For example, absenteeism or showing up at work while intoxicated.
“An employee who is asked to write a statement of his own free will should be more attentive to his job responsibilities, come to work on time, not be late from lunch, and not arrange “smoke breaks” and tea parties for himself during working hours. In general, fully comply with labor discipline. In addition, perform your job duties carefully and efficiently, because this employee is under the close attention of the employer,” advises Shirnina.
Let's look at typical cases of forced dismissal
What to do if they threaten to fire a pregnant woman?
Pregnant employees are one of the most vulnerable categories of workers. The legislator, understanding this, granted them broader rights than other citizens. A pregnant woman cannot be legally forced to quit in most cases. The exception is the complete elimination or violation of the principles and morals of teaching staff (use of violence against students). Therefore, often as part of a company's staff reduction, a pregnant woman is forced to resign of her own free will. After all, it is impossible to free up the workplace otherwise.
A woman in this position has the right to be on sick leave for more than an ordinary employee, to be absent from work (absenteeism) for any period of time, and it will not be possible to terminate an employment agreement with her at the initiative of the employer, based on these reasons.
If a pregnant woman is forced to resign, threatening to terminate the contract due to absenteeism, it is worth knowing that this is impossible and the threats are unjustified.
Dismissal on your own instead of layoff
Staff reduction is a working tool in labor relations, which is necessary to optimize the company’s labor and financial costs. But along with the right to reduce the staff of an organization, labor legislation also establishes requirements for the procedure.
Undesirable conditions for the employer:
- two months notice,
- payment of compensation,
- additional paperwork.
Therefore, employers do not want to make cuts and force them to fire the workers themselves. Of course, such an action is illegal. It is prohibited to replace the concept of staff reduction with personal dismissal.
Dismissal of a pensioner under duress
Russian legislation does not provide an employer with the opportunity to dismiss an employee if he has become a pensioner. But the desire to “rejuvenate” the team leads to the fact that the pensioner is forced to resign of his own free will.
Dismissal due to retirement is one of the reasons that gives the right not to notify the employer of the desire to terminate the contract 2 weeks in advance. That is, pensioners have slightly more rights than an ordinary employee. But when it comes to the question of where to turn if a pensioner is forced to resign, they are equal to other employees. The employer’s actions should be challenged by complaining to the labor inspectorate and the prosecutor’s office, and if the very fact of dismissal is disputed, then it is permissible to file a lawsuit.
“You are not qualified for your position”
Often, in response to logical questions from employees, “Why are you asking me to quit?” the employer replies: “You are not suitable for your position. And management’s opinion on this issue is sufficient.”
No, not enough. The fact is that the employee’s inconsistency with the position held or the work performed must be confirmed by the results of certification (Part 3, Article 81 of the Labor Code of the Russian Federation), and not by the subjective opinion of the boss.
Three steps to a new job. Advice for applicants
More details
“At the same time, the certification process is applicable only to employees who, by the nature of their activities, are associated with equipment, mechanisms, machines, devices, devices and vehicles, as well as sources of hazards that can have a harmful effect on humans. In addition, it is also necessary to certify specialists who use hand tools during their work, including electrified or mechanized ones. The latter also includes the participation in the procedure of office workers, who spend more than half of their time at the computer. Certification in a specialty is carried out only on the basis of special educational institutions, courses or plants for both private companies and government agencies. Thus, the manager’s ability to influence the certification to his advantage is reduced to a minimum,” says the lawyer.
As a result, the certification mechanism is not available to an unscrupulous employer.
To give in to pressure or not to push for retroactive dismissal?
Without an unambiguous and obvious intention of the person himself to leave his position and in the absence of labor violations on his part listed in a closed list in Article 81 of the Labor Code of the Russian Federation, the employer does not have the right to terminate the contract, hiding behind the wording “at the employee’s own request . The subordinate must remember that by agreeing with this formulation, promoted by the administration using various methods of influence, but internally wanting to retain his job, the person creates difficulties for himself in a future trial.
About the job description
Not all companies have employees with a job description and a clear area of activity. Can an employer take advantage of the lack of a job description and fire an employee, citing this fact?
“A job description is not a mandatory document, so here we need to start from where the employee’s job function is stated. If it is stated directly in the text of the employment contract or in the job description (which the employee is familiar with), then this is one story and here the certification procedure can be launched, and based on its results a conclusion is made that the employee is not suitable for the position held.
Article on the topic
Keep it to yourself. 8 things that should not be mentioned in a resume If the job duties and qualification requirements for the position held are not specified anywhere, then the employer cannot dismiss such an employee for non-compliance with the position held by law,” Shirnina emphasizes.
This is due to the fact that first of all it is necessary to understand what the employee does not meet and what requirements were initially placed on the employee.
“In general, such a basis as an employee’s inadequacy for the position held or the work performed due to insufficient qualifications, confirmed by the results of certification, is quite slippery. As a rule, it is the employees who win in such disputes. The very procedure for such dismissal for commercial organizations is not regulated by law and, as a result, is carried out in violation; conclusions about the employee’s non-compliance are considered biased,” the expert adds.
Can an employer force an employee to sign a job description after the fact?
The job description specifies the employee’s job function, and it is a mandatory condition of the employment contract, experts say. Changes (including additions) to the terms of the employment contract are permissible only with the consent of the employee. It is impossible to force an employee to sign something without his desire already during his working life.
“By the way, the absence of a mandatory condition of the employment contract is regarded as a violation of labor legislation, for which administrative liability is provided (Part 3 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation),” Shirnina notes.
What to do if the application has already been written?
Another situation is if the employee, under pressure, wrote a letter of resignation, and then filed a lawsuit for reinstatement at work.
Article on the topic
Fired and ready to work. Who can help you find a job in Moscow? According to the expert, in this case, it is quite difficult to prove the employer’s coercion, since it is the employee who bears the responsibility to prove that he was forced to resign of his own free will.
“However, the employee still has a chance to prove that the employee filed the application of his own free will, out of fear of being fired. This is evidenced by judicial practice, for example, the ruling of the Nizhny Novgorod Regional Court dated November 20, 2007 in case No. 33-5607. In this decision, the court assessed the employer’s threats to fire the employee for absenteeism as a circumstance confirming pressure and coercion to dismiss. Judicial practice in disputes about restoration is quite diverse and depends on the specific circumstances of the case; it is always worth fighting for your rights,” summarizes Shirnina.
