Responsibility for forcing an employee to resign

Last modified: January 2021

Labor legislation contains an exhaustive list of grounds for termination of an employment contract. Dismissing an employee under an article is not so easy. The employer must follow a special procedure to confirm the objective reasons for releasing a citizen from his position. In practice, an employee is forced to resign at his own request. The employer uses psychological pressure to force a resignation letter. In this article we will look at what to do in such a situation and what responsibility the employer bears.

“Forced dismissal” in the language of law

The labor legislation of the Russian Federation provides a closed list of grounds on which an employer can dismiss an employee without his consent (Article 81 of the Labor Code of the Russian Federation). Mostly these are negative motives, reduction in numbers (staff) or liquidation of the organization itself. But often bosses, in flagrant violation of the Labor Code, force an unwanted employee to express his will to leave, supposedly “of his own free will”, “consent of the parties”, or falsify his statement.

Forcing dismissal is an employer’s actions aimed at influencing an employee to write a letter of resignation or draw up an agreement to terminate an employment contract.

Why, despite obvious unseemly behavior, do employers allow such actions? Because they are beneficial to them:

• you can quickly remove an unnecessary person from the staff;
• if you leave “at your own request” you will not have to pay severance pay or compensation;
• The team is shown a particular case of the use of superior power.

Inability to revoke the agreement

According to Part 4 of Art. 80 of the Labor Code of the Russian Federation, an employee may withdraw his application for dismissal before the expiration of the notice period for dismissal. In fact, at any time until he was allowed to familiarize himself with the dismissal order and was given a work book with a paycheck. But in the case of signing an agreement between the parties on dismissal, he, as a general rule, will not be able to do this.

None of the employees, with the exception of pregnant women, can also unilaterally refuse to fulfill the agreement.

This conclusion follows from the Rulings of the Supreme Court of the Russian Federation dated 06/20/2016 N 18-KG16-45 and 09/05/2014 N 37-KG14-4, which state that the guarantee in the form of a ban on dismissal of a pregnant woman at the initiative of the employer, provided for in Part 1 of Art. . 261 of the Labor Code of the Russian Federation, is also applicable to relations arising upon termination of an employment contract by agreement of the parties. Moreover, this rule also applies if the employee did not know about her pregnancy at the time of signing the agreement.

If at the time of cancellation of the agreement the employer had already issued a dismissal order, it must be canceled by another order.

Popular methods of coercion

It is a rare tyrant boss who will invent something new in this area. Ways to “squeeze” a subordinate out of work are old and few in number, but, alas, quite effective:

1. A request that cannot be refused. In most cases, the boss asks you to politely and convincingly write a letter of resignation. Or a threat may be used, even a physical one.
2. “There is always something to be fired for.” If the answer to the request for self-care is negative, management may resort to blackmail: threaten that they will find a negative reason for dismissal at the initiative of the employer.
3. "Extrusion." At work, at the instigation of superiors, an atmosphere of nagging and psychological discomfort is artificially created: public reprimands even for minor failures, disciplinary sanctions for the slightest violations of the routine, neglect of the right to promotion, deprivation of bonus payments, etc.
4. “But the Code is not a decree for me.” The employer clearly neglects the rights of the employee: fines him, calls him to work overtime, delays, reduces or does not pay wages, etc.

IMPORTANT! If the inspection body catches the employer in one of these types of behavior, it is lawful to bring him to administrative responsibility for violating the requirements of the Labor Code of the Russian Federation.

Forced to resign voluntarily - what to do?

When every day a person hears about his inadequacy and poor performance, he willy-nilly begins to believe in the validity of management’s claims. In order not to spoil his employment records and not to let the employer down, the employee comes to the conclusion that the only way out is dismissal. Such a decision is wrong if there are doubts about the words of the authorities. No one has the right to force a person to resign on his own initiative if he does not have such a desire.

If a conviction has arisen about forced dismissal, how to prove it is decided taking into account the individual situation. The main thing is to collect an evidence base that will help to hold accountable and protect your rights under the employment contract.

In fact, the situation is by no means powerless. Knowledge of legal regulations will help an employee overcome unreasonable pressure without losing his job:

1. The Plenum of the Armed Forces of the Russian Federation in Resolution No. 2 of March 17, 2004 stated that it is impossible to force someone to resign at their own request. The employee has the right to write a statement requesting termination of the employment relationship, and the employer grants the request if leaving is truly a person’s decision.
2. If a statement is written of one's own free will under duress, a person has the right to go to court with a demand to declare the dismissal illegal, since the decision was made under pressure. If during the trial the management reports that they did not know about the absence of intentions to quit, such a position will lead to reinstatement at work and payment of money for the entire missed period.
3. Compliance with labor discipline is a requirement not only for subordinates. Sometimes management is ready to resort to cunning, artificially creating situations in which there is a reason for dismissal. Blackmail often consists of artificially creating circumstances for absenteeism, violation of discipline and internal company regulations. Having caught the violator, the management offers to leave voluntarily, so as not to record a dismissal at the initiative of the employer. To avoid unlawful penalties, hired personnel are strongly advised to accept instructions from management only in writing. This will make it possible to prove that the employee was not at fault for violating the labor regulations.

The documents will help the person subsequently prove injustice towards the person through a complaint to the court. If there are signs of forced dismissal, the labor inspectorate, the prosecutor's office and the court will help protect your rights.

The sequence of how an employee should act is represented by the following steps:

1. Contacting the labor inspectorate. The employee writes a statement describing the situation at work. Representatives of the supervisory authority will organize an inspection upon application. It may take 1 month. If it is possible to prove injustice on the part of specific individuals, the administration reinstates the employee, or, if it is impossible to continue working, they pay compensation to the person who quit.
2. The Labor Inspectorate is a supervisory body that is designed to identify violations of the Labor Code of the Russian Federation and monitor the elimination of inconsistencies. However, often the proceedings in the inspection do not have the desired result (there is no sufficient evidence, the authority does not have enough powers). In this case, a trial is organized with the collection of maximum evidence.
3. Simultaneously with going to court, a citizen has the right to write a statement to the prosecutor and report facts of violation of the law. If the actions constitute a crime, a criminal case will be initiated and the perpetrators will be held criminally liable.

During the proceedings, it is important that there is sufficient evidence to demonstrate wrongdoing by management. As a rule, it is quite difficult to find written evidence, documents, orders that make it possible to identify injustice, since management is aware of possible problems and tries to make do with the oral form of influence.

• Termination of an employment contract at the initiative of the employer

In such situations, witnesses who are ready to prove the victim’s case in court will come to the rescue. However, the difficulty lies in the fact that many employees of the dismissed person are afraid of reprisals from management and do not dare to testify officially.

You can try to use video and audio recordings as evidence, but you will need to prove that they were performed with the consent of the perpetrators. Since it is obvious that violators will not consent to the recordings, they have no legal force.

Such difficulties are a serious obstacle in the fight for one’s rights, but the judicial body will consider the issue taking into account the interests of affected citizens. This gives hope for justice to be restored and the perpetrators to be brought to justice.

Sometimes it's better to quit yourself

There are situations when forced dismissal is a benefit for the employee on the part of the employer. This may occur in cases where the alternative is dismissal under the article, especially with payments for the employee’s financial responsibility. Sometimes it is easier for an employer to quickly get rid of a guilty employee by allowing him to “save face” and not spoil the work book with unpleasant entries. Evidence of negative grounds for dismissal requires additional time and effort from the employer, as well as legally correct documentation.

In such cases, employees gratefully accept the offer to leave “of their own free will,” although this would also be forcing them to resign.

Bureaucratic subtleties of the procedure

According to Article 78 of the Labor Code, it is always possible to terminate such relationships by mutual consent of the employee and the employer, even when the employee is on vacation or sick leave. Termination of relations at the initiative of the parties does not fall under the control of trade union bodies, the state labor safety inspectorate and the commission for minors when an employee under 18 years of age resigns. However, the procedure is always the same and consists of the following steps:

1. It all starts with the initiative to terminate the relationship of either party. The reasons may not be specified. Application - for the employee, for the employer - a memo to the employee. The form of these documents is free. This is followed by the consent of the second party in the form of an “I agree” visa, a date and a wet signature on the document itself.
2. Then follows the drawing up of the agreement itself, which will be discussed in detail below. Important! The terms in the agreement directly depend on the specific situation.
3. After signing the agreement, you can change it or make changes only by observing the entire previous procedure. The terms specified in the agreement are binding on both parties. Therefore, signing it must be taken with the utmost responsibility.
4. The employer issues an order on the day of dismissal. The order has a different form, which is permitted by the Federal Law “On Accounting” of 2012, but usually it is T-8.
5. Then the employee gets acquainted with the contents under his signature. An entry is made in the work book and it is handed over. The final calculation is being carried out. The dismissal took place and the employment relationship was terminated.

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It's easier to force, it's hard to prove

Legal practice suggests that coercive employers often get away with impunity. There are several reasons for this:

1. The offended party cannot prove duress. Often conversations about dismissal occur unexpectedly for an unwanted employee. As a rule, the employer makes sure that they take place without witnesses. Even if you press the record button on your phone in time, it will not be legal evidence for the court.
2. Positive test result. If an organization receives an inspection from the prosecutor's office or labor inspectorate, this does not mean that it will be able to establish the fact of coercion, because it leaves no traces.
3. The prosecutor's office will only “wag its finger.” Even if you complain to the prosecutor’s office and it takes the complaint seriously, all that it can do to the employer until the dismissal takes place is to issue a “warning” - simply a speculative measure that does not carry any legal consequences. A dismissal that has already taken place can only be challenged in court.
4. “They didn’t know what they were doing.” Due to legal ignorance, many workers do not even realize that their rights are being violated.

ATTENTION! For more timid employees, the phrase “You are fired, write a statement!” is often enough. The image of an all-powerful boss is often shown in movies, so such a dismissal may seem legitimate to the average person.

What is the penalty for coercion?

If, nevertheless, the employer’s guilt is proven, the law provides for the following administrative liability for him (under Article 5.27 of the Code of Administrative Offenses of the Russian Federation):

• fine 1000 – 5000 rubles;
• disqualification for up to 3 years;
• reinstatement of the unfairly dismissed;
• payment of money for forced downtime;
• compensation ordered by the court.

If a pregnant woman was forced to leave and this can be proven, the liability becomes criminal (Article 45 of the Criminal Code of the Russian Federation): according to it, the guilty manager faces compulsory labor, and his company faces suspension of activities.

Law

The prohibition of discrimination against an employee is outlined in the Labor Code of the Russian Federation. Administrative responsibility is established in Art. 5.27 Code of Administrative Offenses of the Russian Federation.

Criminal liability in such cases is complicated in that there is no directly provided article for forced dismissal.

Art. 145 of the Criminal Code of the Russian Federation contains punishment only for the unjustified dismissal of a pregnant woman or a mother who has a child under 3 years of age. Legal disputes are resolved according to the rules of the Code of Civil Procedure of the Russian Federation and the CAS of the Russian Federation.

What to do if you are forced to leave

The first thing to decide in such cases is whether you really need the job. If they so clearly don’t want to see you there, is it worth spending precious time and effort on this workplace? If you are ready to give in, we can recommend protecting your interests as much as possible:

• resolve issues with the employer regarding the period and conditions of voluntary resignation;
• write a statement not of your own free will, but by agreement of the parties, stipulating the payment of severance pay and compensation.

If the decision is made to fight, then the advice will be as follows:

• voice your position to the employer: you know that they want you to “survive”, but you do not intend to give up;
• under no circumstances write or sign any documents about dismissal; make it a rule to carefully read all signed documents;
• scrupulously observe labor discipline and internal regulations;
• record all controversial issues in writing;
• do not give in to provocations;
• be prepared for unpleasant surprises (for example, not being allowed to work due to a medical examination not completed on time, an overly biased safety check, a truant taking time off that was formalized only in words, etc.).

Arbitrage practice

A claim for reinstatement at work can be filed within a month from the date of the dismissal order or the issuance of a work book.

Claims are not subject to state fees. If the employee’s demands are properly argued, he will be reinstated in the workplace.

If the application was signed and the employee left the organization, then it will be difficult to prove the illegality of the dismissal.

You can attach audio and video recordings as evidence, but you need to be prepared for the fact that the opposite side will reject their reliability. An expert opinion on the authenticity of the recordings may be required.

If the decision was made in favor of the employee, then he will be reinstated at the request of the court, but you should be prepared for new provocations.

It is recommended to take into account the psychological and moral and ethical side of the issue. In case of open threats and conflicts, you should file a complaint with law enforcement agencies.

What will serve as evidence of coercion?

You can sue an employer within a month from the date of dismissal. Not everything can serve as evidence in court. If you intend to sue your employer, you will have to take care of the evidence base:

• maximum documentation (for example, if you need time off, you should not rely on verbal permission, but submit a written request and receive it);
• video and audio recordings (their authenticity must be proven);
• witness statements.

FOR YOUR INFORMATION! The only almost indisputable evidence of forced resignation is the hiring of another employee on the day the plaintiff wrote the application: with a “real” dismissal in such a short period of time, it is unlikely that the right specialist will be found.

Claim to a judicial authority

An employee who is under pressure from an employer can independently go to court.

The application must reflect the following information:

• name of the court;
• information about the applicant and respondent;
• the essence of the problem is the real actions of the authorities;
• request - return to the company's staff, financial compensation, transfer to another unit;
• list of evidence;
• signature and date.

The completed application is sent to the court.

In addition to the claim for forced dismissal, it is necessary to provide real evidence. If there are none, then there is a possibility that the complaint will be declared invalid.

Before contacting government agencies, you should try to resolve the problem peacefully with your superiors, for example, write a complaint addressed to the general director (if the initiative comes from the head of the department). The text of the statement coincides with the complaints discussed above. It takes up to 1 month to conduct a case in the courts.