The institution of labor relations under consideration receives an ambiguous understanding, and, accordingly, its application both by persons who act on one side or another of the employment contract, and by the judicial authorities considering the relevant cases.
Issues of forced dismissal are addressed in subsection. “a” clause 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, by virtue of which when considering disputes about termination at the initiative of an employee of an employment contract concluded for an indefinite period, as well as a fixed-term employment contract (clause 3 of 1 Article 77, Article 80 of the Labor Code of the Russian Federation), courts must keep in mind that termination of an employment contract at the initiative of an employee is permissible in cases where filing a letter of resignation was his voluntary expression of will. If the plaintiff claims that the employer forced him to submit a resignation letter of his own free will, then this circumstance is subject to verification, and the responsibility to prove it rests with the employee.
Thus, when resolving cases related to forced dismissal, courts must proceed from this clarification.
By order of the employer, the employee was dismissed from work on the basis of a personal statement of his own free will (Determination of the Nizhny Novgorod Regional Court # 33-5607 dated November 20, 2007). With the new order, the previous order was changed and stated in a new wording, according to which the employee was fired for two days of actual absenteeism under sub. "a" clause 6 of Art. 81 Labor Code of the Russian Federation. Having gone to court, the employee indicated in his statement of claim that, having written a letter of resignation of his own free will, he withdrew it two days later, but was informed that another employee had been invited to take his place.
The employer appealed the court decision by which the employee was reinstated in his position.
The prosecutor also asked to cancel the decision due to a violation of procedural law, including Part 1 of Art. 198 Code of Civil Procedure of the Russian Federation.
The courts of both instances found it established that at the time of filing a letter of resignation, the employee had no intention of terminating the employment contract with the employer.
The courts also considered it proven by the case materials that the application for dismissal at his own request was filed by the plaintiff involuntarily, out of fear of being fired due to actually committing two days of absenteeism.
Let us immediately note that below we will consider a case in which an employee’s application for resignation of his own free will due to fear of being fired for absenteeism was not regarded as forced dismissal.
When reviewing the decision, the judicial panel noted that the employer’s argument that there was no intention on his part to dismiss the employee for violating labor discipline was not confirmed at the court hearing.
The intention to dismiss the plaintiff is evidenced by the employer’s consistent actions, his issuance of an order to amend the previously issued order regarding the grounds for dismissal under sub. "a" clause 6 of Art. 81 of the Labor Code of the Russian Federation for two days of absenteeism.
Agreeing with the decision, the panel of judges noted that the plaintiff’s reference to the employer’s threats to fire him for absenteeism as a circumstance confirming pressure and coercion to dismiss was rightfully taken into account by the court as relevant to the case.
The plaintiff submitted a resignation letter to the employer at his own request without indicating the date of dismissal. In this case, the employer had the right to dismiss the plaintiff only after two weeks from the date of receipt of the resignation letter. However, in violation of Part 4 of Art. 80 of the Labor Code of the Russian Federation, the employer denied the plaintiff the right to withdraw his application before the expiration of the notice period for dismissal, explaining that, in accordance with this norm, another employee was invited to take his place and who could not be denied an employment contract.
The courts of both instances considered that in this way the defendant had significantly violated the dismissal procedure.
The argument that another employee was invited to take the place of the plaintiff, who cannot be refused employment, was not confirmed by the case materials, and therefore the judicial panel declared them insolvent.
The court of first instance correctly concluded that the dismissal at one's own request was illegal and unfounded.
The definition in question does not indicate the circumstances that allowed the courts to recognize that the plaintiff had a real threat of being fired for absenteeism.
The courts did not provide other evidence confirming that at the time of dismissal the plaintiff was forced to write a letter of resignation of his own free will.
The court concluded that the plaintiff was forced to resign on the basis that he initially resigned of his own free will, and then the corresponding order was changed by the employer to dismissal under subsection. “a” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, and this indicates that the employer had grounds for threatening to fire for absenteeism.
It follows from this that the presence of other grounds for the employer to dismiss an employee before dismissal at his own request allows the courts to consider such a dismissal committed under duress. In the final version of the order, the defendant was fired for absenteeism.
If the employee was subject to reinstatement, it was for reasons of violation of dismissal procedures, such as, for example, violation of the right to withdraw a notice of dismissal before the expiration of a two-week period, but not due to forced dismissal.
Thus, even if the employer, based on the goal of not spoiling the employee’s performance, fired him on a more lenient basis than absenteeism, such a procedure for terminating the employment contract will be recognized as forced dismissal.
It also does not take into account the fact that in this way the employer, in fact, created higher guarantees for the employee compared to the consequences that could have occurred when applying labor legislation.
Changing the basis for dismissal from one made at the employee’s personal request to dismissal for another lawful reason is also considered forced dismissal.
Therefore, in some cases, courts may attribute to the totality of the employer’s actions, indicating a common violation of the law upon dismissal, the sign that the employee was forced to write a letter of resignation of his own free will.
The absence of grounds for this is also shown by the conclusions of the courts themselves that the dismissal is illegal, unjustified and carried out in violation of the established procedure.
When the employee's will is required for dismissal, ordinary situations of illegal dismissal of an employee can be regarded at the same time as coercion.
The employee’s claim against CJSC “Water Company “Stary Istochnik”” was left unsatisfied due to the following (Determination of the Stavropol Regional Court).
The employment contract between the parties was terminated at the initiative of the employee in accordance with clause 3, part 1, art. 77 Labor Code of the Russian Federation. The employee believed that she wrote a resignation letter under forced pressure from the employer, who repeatedly asked her to write a resignation letter without explaining the reasons.
The court, which considered the employee’s appeal, indicated that no evidence was presented to the court indicating that the plaintiff was under pressure and psychological influence on the part of the employer, aimed at forcing her to write a letter of resignation of her own free will.
An attempt to avoid dismissal on defamatory grounds by using the right to file a resignation letter of one’s own free will and subsequent termination of the employment contract cannot in itself be evidence of pressure exerted on the employee by the employer.
From the decisions outlined above, it is clear that in some cases, even if disciplinary offenses have been committed, employees are reinstated at work if they managed to quit on their own initiative. At the same time, this does not prevent other courts from rejecting the claim of employees citing the fact that their dismissal was dictated by the desire to avoid disciplinary liability.
The employee filed a lawsuit for reinstatement at work, indicating that from a certain time she was suspended from work and was not allowed into the territory (Determination of the Moscow Regional Court # 33-16512 dated 08/26/2010). After about two months, she was fired voluntarily. I do not agree with the dismissal, since due to the unlawful actions of the defendant, she wrote an application for leave with subsequent dismissal. She was not informed of the orders for dismissal and leave. According to the employer's order, she was suspended from work and was prohibited from entering the plant during an internal investigation.
At the end of the period established by the order, the plaintiff was again not allowed to enter the workplace, which is confirmed by the relevant acts and is not disputed by the defendant.
Then the plaintiff, with various periods and interruptions, was undergoing treatment due to incapacity for work.
The plaintiff also sent an application via mail for leave with subsequent dismissal.
At the end of the vacation period, she was dismissed under clause 3, part 1, art. 77 Labor Code of the Russian Federation.
The court of first instance recognized the forced nature of the dismissal as unproven.
The panel of judges did not agree with this, since the employee’s application did not indicate the grounds for dismissal provided for by the Labor Code of the Russian Federation, as well as a reference to dismissal at his own request. Considering the content of the application, as well as the circumstances of the case: the plaintiff’s removal from work, prohibition from entering the plant’s territory, sending the application by mail, voluntary dismissal cannot be considered legal. The will to resign at one's own request is not expressed in the application.
Illegal actions of the employer committed in the period before the employee’s voluntary dismissal may serve as evidence that the employee was forced to submit an application for dismissal.
In order for the registration of an employee’s dismissal to be complied with, it is necessary that the employee indicate in the application the date and reason for dismissal provided for by the Labor Code of the Russian Federation, as well as a link to dismissal at his own request.
When the court considered the dismissal case, it was established that the plaintiff did not have a voluntary expression of will to terminate the contract and sign the agreement (Determination of the Moscow City Court # 33-8111 dated March 24, 2011).
At the time of dismissal, the plaintiff was six months pregnant. The court referred to the fact that in accordance with Part 3 of Art. 254 of the Labor Code of the Russian Federation, pregnant women are exempt from work while maintaining their average earnings when undergoing a mandatory examination. Having applied this norm in the case under consideration, the court made a conclusion that went beyond its limits that the employer does not have the right to prevent a pregnant woman from undergoing a medical examination and regard absence from work as a disciplinary offense.
It is worth emphasizing, however, that on the day in question the plaintiff did not undergo a mandatory examination, but only had an appointment with a doctor. However, the court did not establish that she underwent a medical examination throughout the entire working day, and that she could not return to work after visiting a medical facility.
It was also established that the plaintiff notified the employer about the need to visit a antenatal clinic and actually attended the doctor’s appointment. The next day, the employer demanded an explanation for her absence from work, and the plaintiff was sent to the personnel department to resolve the issue of dismissal.
Under these circumstances, the court concluded that the plaintiff had no intention of resigning, since she was deprived of the guarantees provided by law for women upon the birth of a child. In addition, the court indicated that the agreement does not contain additional guarantees or compensation for early termination of the contract.
If, according to the plaintiff, she was absent from work for good reasons, then she could reflect such circumstances in the explanatory note. She did not do this.
As will be seen from another decision, the court, in similar circumstances, recognized the dismissal as legal. The plaintiff knew that she had committed absenteeism, but fearing dismissal on the basis of a disciplinary offense, she preferred to accept the employer’s offer to resign of her own free will.
The conclusion that an employee is forced to resign at his own request may follow from the court’s assumption that in this case the employee is deprived of the material benefits provided to a working citizen.
By order of the employer, the employee was dismissed under clause 3, part 1, art. 77 Labor Code of the Russian Federation.
The plaintiff is a distance learning university student, and he was issued a summons certificate to undergo intermediate certification (Determination of the Moscow City Court # 33-20388 dated 07/08/2010). The plaintiff applied to the employer for additional leave with pay to participate in the interim certification, which he was denied, which is confirmed by the resolutions on the application.
The plaintiff was informed by the defendant of the refusal to provide additional leave to participate in the intermediate certification.
At the court hearing, the plaintiff explained that he was forced to apply for another paid leave due to the refusal to provide additional paid leave.
However, he was also denied another leave and was asked to write a letter of resignation, which was done by the plaintiff.
The court of first instance correctly indicated that within the meaning of paragraph 3 of Art. 77 of the Labor Code of the Russian Federation, a resignation letter must be a voluntary expression of the will of the employee, and not the result of influence from the employer.
Having checked the case materials, the court of second instance considered that the court's conclusion about the sufficiency of the evidence in the case that the plaintiff's application for dismissal at his own request was not his voluntary expression of will, but was caused by the unlawful and illegal actions of the defendant, corresponds to Art. 67 Code of Civil Procedure of the Russian Federation.
In accordance with Art. 173 of the Labor Code of the Russian Federation, the employer is obliged to provide the employee with additional leave with preservation of wages to undergo interim certification.
The defendant violated this requirement.
The plaintiff was forced to submit his resignation at his own request two weeks after submitting his application for leave.
At the same time, if he had information that the provision of the next leave had been agreed upon for him, he (the plaintiff) would not have submitted a letter of resignation, which he wrote only in connection with the refusal to provide the required additional and main leave.
Dismissal of one's own free will, following the employer's refusal to provide the employee with the required non-working days, is considered illegal, since the employee was forced to resign in order to use these days, which are necessary for him and required by law.
Having applied to the court for reinstatement at work, the employee, in support of her claims, indicated that she worked as an accountant on the basis of an open-ended employment contract and was in hospital for two weeks (Determination of the Voronezh Regional Court # 33-340 dated January 25, 2011) . In order to receive wages, one day she came from the hospital to the enterprise, where the director, knowing about her pregnancy, offered to write a letter of resignation of her own free will, citing the fact that the term of the employment contract allegedly expired that day, and if If she does not resign of her own free will, she will be fired on the initiative of the administration, which will negatively affect her subsequent employment. In the statement of claim, she indicated that, being in a state of confusion, she wrote a statement, indicating the date that was before her admission to the hospital. After leaving the medical institution, the director of the company refused to accept and pay for the certificate of incapacity for work.
The materials of the case established that, indeed, the employer, based on the plaintiff’s application, by his order fired the plaintiff from the specified date.
The court of first instance, satisfying the employee’s demands, found that on the day of writing the resignation letter of her own free will, she was under psychological pressure from the director of the company, who stated that she should write a statement due to the expiration of the employment contract. This fact was confirmed by the evidence examined at the court hearing, including the testimony of witnesses.
An offer to an employee to write a letter of resignation of his own free will may be considered coercion to resign.
The employee went to court due to the fact that, as she believes, she was illegally dismissed from the position of a methodologist at the Center by agreement of the parties (Determination of the Yaroslavl Regional Court # 33-430 dated 02/04/2010). She also claims that she had no intention of resigning; she was forced to write a statement under pressure from her employer; through the fault of the employer, she was deprived of the opportunity to work.
Refusing to satisfy the stated requirements, the court came to the conclusion that the parties had voluntarily reached an agreement to terminate the employment contract by agreement of the parties.
At the same time, the court indicated that the reasons for which she wrote this statement do not have legal significance for assessing the legality of the dismissal.
During the investigation of the circumstances of the case, the court found that the plaintiff was repeatedly brought to disciplinary liability by her employer. The plaintiff did not dispute this circumstance. The reference in the complaint to the fact that disciplinary sanctions were imposed by the employer not for the main area of her work - working with children - has no legal significance when considering this dispute.
The plaintiff applied for dismissal herself after she was familiarized with the order of dismissal for repeated failure to perform job duties without good reason under clause 5 of Art. 81 of the Labor Code of the Russian Federation, i.e. the employer had the intention to dismiss the plaintiff on other grounds, but did not implement it, because. Having received the plaintiff’s application for dismissal by agreement of the parties, the employer agreed to change the grounds for dismissal and dismiss by agreement of the parties.
The court of first instance indicated that in case of disagreement with the initial order of dismissal for repeated failure to perform job duties without good reason, the plaintiff, considering that there were no such grounds for her dismissal, had the right, having received such an order, to appeal it in court. But the plaintiff, independently assessing the situation, at her own discretion decided to file an application for dismissal by agreement of the parties. The employer agreed with the plaintiff’s statement, as evidenced by the manager’s resolution on the statement and the issuance of a new order to terminate the employment contract by agreement of the parties.
Thus, if the employee had real reasons to fear being fired, but instead she accepted the employer’s offer to resign of her own free will, such dismissal is considered legal.
The panel of judges, like the court of first instance, considered that under the given circumstances there was no reason to believe that the parties had not reached an agreement to terminate the employment contract by agreement of the parties; the conclusion of any additional agreement between the parties was not required for this.
At the same time, it was noted that there was no evidence in the case that objectively demonstrated that the letter of dismissal by agreement of the parties was written by the plaintiff involuntarily, involuntarily, under pressure and threats from the employer. The mere fact that the employer initially planned to dismiss the plaintiff under clause 5 of part 1 of art. 81 of the Labor Code of the Russian Federation is not sufficient evidence of the involuntary and forced nature of her resignation by agreement of the parties.
Judging by the practice of considering cases on claims for reinstatement, the courts are selective in their approach to the issue that the plaintiff must provide evidence that objectively indicates forced dismissal.
The presence of a separately executed dismissal document, which reflects the dismissal agreement reached between the employee and the employer, is not required for dismissal by agreement of the parties.
The above definition contains the conclusion that the employee’s motives for writing a resignation letter of his own free will have no legal significance for assessing the legality of the dismissal.
The plaintiff appealed to the court with a demand to reinstate her at work, indicating that she was illegally dismissed from her position as an artificial insemination technician (Determination of the Tula Regional Court 33-3098 of September 15, 2011). The work was of a traveling nature, since in the summer the herd is divided and located at a distance of more than 12 km, and the plaintiff is forced to travel significant distances to work with the drugs. She turned to the manager to provide her with transportation due to the fact that she previously used vehicles allocated to a veterinarian, but now she is not provided with this facility due to the doctor’s dismissal.
At the same time, the plaintiff believed that the employer was obliged, in the absence of the opportunity to provide transport, to compensate her for expenses associated with business trips.
Considering that, due to her age, the plaintiff could not move such significant distances, she wrote a statement to her employer to dismiss her from the position of artificial insemination technician.
By making this application, the plaintiff did not intend to terminate the employment contract, but was counting on being transferred to another position due to the employer’s violation of her working conditions.
However, immediately after she submitted her application, an order for her dismissal was issued.
I believed that the employer was obliged to clarify the employee’s will reflected in the application.
An employment contract was not concluded with her, her job responsibilities were not specified, and in her activities she was guided by the recommendations for insemination of the Ministry of Agriculture of the Russian Federation, that is, by the knowledge that she received during the advanced training course.
The work book is in her hands, so there is no record of her dismissal. She also believes that she has hostile relations with management, due to the fact that she was not included in the list of shareholders during the reorganization of the economy, which is confirmed by a statement to the police, as indicated in the application for dismissal from her position.
When writing her application for dismissal from her position, she implied other work on the farm. On the same day, her secretary called her and asked her to rewrite the statement of her own desire, but she refused.
The employer explained that the employee was fired on her own initiative and there was no pressure put on her. The application indicates release from the position held, and not from the work performed, which confirms the employee’s desire to quit.
Another proof of the employee’s desire to quit is also the fact that on the day she received the dismissal order, she handed over all material assets, handed over documentation of her activities to another employee, but did not withdraw the application and did not raise the question of offering another job.
The head of the farm explained that he had no objections to the plaintiff’s application and granted it, since he had complaints about her work.
The panel of judges recognized as correct the decision of the trial court to reinstate the plaintiff at work, adding that the application does not contain a clear request for dismissal from his position at his own request and mainly contains a statement of the applicant’s dissatisfaction with working conditions and the actions of management.
At the court hearing, the plaintiff explained that, when submitting an application to the chairman of the farm, she did not want to terminate her employment relationship, but had the intention of transferring to another position.
She was familiarized with the dismissal order, after which she made a note, from which it follows that she did not express her voluntary will to resign, indicating that she was forced to resign.
According to the employer’s explanations, he had questions regarding the wording of the application, which once again confirms the existence of disagreements between the parties.
The representative of the defendant did not provide evidence that the plaintiff was asked about the reasons for writing this statement, and the ambiguities contained in it were eliminated. The plaintiff’s statement to the employer, in its content, is not a voluntary expression of will to dismiss, and therefore cannot be regarded as an employee’s statement of resignation of his own free will.
Having established these circumstances, the court correctly concluded that when the plaintiff was dismissed, violations of labor legislation were committed, since the employer did not clarify the will to dismiss from the employee who submitted the application for dismissal from position, and therefore this statement could not serve as a basis for dismissal under Art. 80 and paragraph 3, part 1, art. 77 Labor Code of the Russian Federation.
The employee’s application for voluntary resignation must clearly indicate that he wants to resign from his position and terminate his employment relationship with the employer.
In a statement of resignation at her own request, the employee, in addition to the reason and date, also indicates the position from which she is resigning.
In order to avoid different interpretations of the notes that the parties to the employment contract made in the application or in the dismissal order at the court hearing, it should be indicated that clarity was achieved between the employer and the employee on all points of dismissal.
The employee appealed to the court with a demand for reinstatement, indicating that she was absent for one of the days with the verbal permission of the head of the institution, which ultimately became the cause of the conflict with him (Determination of the Court of the Yamalo-Nenets Autonomous Okrug # 33-851 dated May 17, 2012. ).
According to the plaintiff, she was presented with unfounded claims regarding her absence from work and regarding the quality of the work itself, which had a detrimental effect on her health, and therefore she sought help: she was in outpatient treatment for two weeks. On the day the plaintiff went to work, the manager invited her to his office and rudely demanded that she write a letter of resignation, which she did.
The plaintiff justified the involuntary dismissal by the fact that during the conflict she was confused and wrote the statement solely under pressure from the employer.
The court of second instance came to the conclusion that by order of the employer the plaintiff was dismissed under paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation on the day she wrote her resignation letter of her own free will. And provided for in Part 2 of Art. 80 of the Labor Code of the Russian Federation, an agreement between the employee and the employer to terminate the employment contract before the expiration of the notice period for dismissal was reached.
The arguments about the employer forcing the plaintiff to resign were not confirmed during the consideration of the case.
The fact that management had complaints against the plaintiff regarding her work does not indicate that psychological pressure was exerted on her in order to force her to resign of her own free will.
As for the arguments that management unreasonably found fault with her at work, this is the plaintiff’s subjective opinion, which is not confirmed by objective evidence.
Thus, to conclude that an employee was forced to resign, it is not enough for the employer to simply express complaints about his work. A necessary condition is also that such claims are intended to force the employee to resign of his own free will.
All other things being equal, if the content of the application makes it difficult to determine whether the employee wants to resign or wants other consequences to occur, preference will be given to the fact that the employee will not be recognized as asking for dismissal.
Any actions of the employer can be qualified as coercion to dismiss if they were aimed at getting the employee to quit on his own initiative.
Violation of working conditions, as well as the creation of an intolerable situation in which the employee has to work, leads to recognition of the forced nature of the dismissal.
An important issue that the justice authorities pay attention to when considering this category of cases is whether it follows from the circumstances of the case that the employee had the intention to resign. And if such an intention is not detected, the dismissal will be considered committed under duress.
In addition, the verification may be carried out to determine whether the continuation of the employment relationship with the employer was beneficial to the employee compared to if the employment contract had terminated.
Hello! Let me start with the fact that resigning at your own request is your right, not your obligation.
You are asking: Can I record his threats on a tape recorder, or on camera and contact the labor inspectorate with them?
Yes, and you can also use all the SMS that your manager sends you. You have the right to state in a complaint all the actions of the manager that violate your rights.
It is also stated in the collective agreement that during the closing of the month from the 1st to the 7th of each month we work irregular working hours, but no more than 12 hours, I actually worked for one and a half days, is this a violation of labor laws?
Yes, this is a violation of the Labor Code of the Russian Federation.
According to Article 104 of the Labor Code of the Russian Federation
When, due to the production (work) conditions of an individual entrepreneur, in an organization as a whole, or when performing certain types of work, the daily or weekly wages established for this category of workers (including workers engaged in work with harmful and (or) dangerous working conditions) cannot be met. duration of working hours, it is allowed to introduce summarized recording of working hours so that the duration of working hours for the accounting period (month, quarter and other periods) does not exceed the normal number of working hours. The accounting period cannot exceed one year, and for recording the working time of workers engaged in work with harmful and (or) dangerous working conditions - three months.
Thus, working hours during the accounting period cannot exceed the normal number of working hours, i.e. if the accounting period is a week, then it is 40 hours.
According to Article 99 of the Labor Code of the Russian Federation
Overtime work is work performed by an employee at the initiative of the employer outside the working hours established for the employee: daily work (shift), and in the case of cumulative accounting of working hours - in excess of the normal number of working hours for the accounting period.
Involving an employee in overtime work by an employer permitted with his written consent in the following cases:1) if necessary, perform (finish) work that has begun, which, due to an unforeseen delay due to technical production conditions, could not be performed (finished) during the working hours established for the employee, if failure to perform (non-complete) this work may lead to damage or destruction of property the employer (including the property of third parties located at the employer, if the employer is responsible for the safety of this property), state or municipal property, or create a threat to the life and health of people;
2) when carrying out temporary work on the repair and restoration of mechanisms or structures in cases where their malfunction may cause the cessation of work for a significant number of workers;
3) to continue work if the replacement employee fails to appear, if the work does not allow a break. In these cases, the employer is obliged to immediately take measures to replace the shift worker with another employee.
Thus, any involvement of an employee in overtime work is permitted with his written consent.
The duration of overtime work should not exceed 4 hours for each employee for two consecutive days and 120 hours per year.
According to Article 101 of the Labor Code of the Russian Federation
Irregular working hours- a special work regime, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them. The list of positions of employees with irregular working hours is established by a collective agreement, agreements or local regulations adopted taking into account the opinion of the representative body of employees.
Thus, the collective agreement must indicate a list of professions of workers who can be hired occasionally to work outside working hours without additional pay. Time worked in excess of working hours must be compensated by additional paid leave of at least 3 days, regardless of whether the employee was involved in work. The duration of work beyond the calculation of working hours during irregular working hours is not regulated. It is determined by the collective agreement.
If you worked more than 12 hours, then this work must be paid as overtime.
According to Article 97 of the Labor Code of the Russian Federation
The employer has the right, in the manner established by this Code, to involve an employee in work beyond the working hours established for this employee in accordance with this Code, other federal laws and other regulatory legal acts of the Russian Federation, collective agreements, agreements, local regulations, employment contract (hereinafter referred to as the working hours established for the employee):
- for overtime work (Article 99 of this Code);- if the employee works on irregular working hours (Article 101 of this Code).
According to Article 119 of the Labor Code of the Russian Federation
Employees with irregular working hours are provided with annual additional paid leave, the duration of which is determined by a collective agreement or internal labor regulations and which cannot be less than three calendar days.
Thus, you have the right:
File a complaint with the State Labor Inspectorate, stating
Insults to the manager
The fact that additional leave was not provided when working irregular working hours
Fact of non-payment of overtime work beyond 12 hours according to the collective agreement
Request that measures be taken to eliminate these violations
Take measures to impose disciplinary punishment on the manager
Bringing an employer to administrative responsibility for violating the Labor Code of the Russian Federation.
An employee can also be “removed” for violating work regulations (periodically documented lateness, showing up at the workplace while drunk, etc.) and for a discrepancy between the skills and abilities of the position held.
However, both methods require very serious documentary evidence. Therefore, many employers prefer to simply “press” their subordinates in order to achieve their voluntary departure from service.
Assault with the aim of forcing someone to write a statement “of their own free will”
Having decided to get the coveted statement from an employee, the employer can use a very different set of psychological pressure tools.
So what kind of behavior of the boss should be considered an inclination to write a statement “on his own”?
- A heart-to-heart conversation in the office, ending with the words “it’s better to quit yourself.” As a rule, this is often preceded by the threat of dismissal under the article.
True, in most cases the boss does not specify under what mythical article they are going to fire an unwanted employee. And since many of our compatriots are not legally savvy, they are immediately afraid that they will actually “hang” something on them, and right on the spot they write the paper that the leader is trying to achieve.
As a result, a person is suddenly left without work, without a livelihood and with damaged pride.
- Real collection of information aimed at proving the employee has committed disciplinary offenses. This method of influence is applied to those employees who are not afraid of a personal conversation.
What can the boss find fault with? Yes, for anything: being late for work, leaving for lunch or going home a little earlier than expected (even one minute can be a reason to draw up the appropriate document), failure to follow some instructions from the manager.
Important! Here, double standards are very often demonstrably applied, say, the entire office left for lunch five minutes earlier, but as soon as the misconduct of an objectionable employee is documented, the rest will simply turn a blind eye.
- Boycott is also an effective means of coercion. It is very easy for a boss with the proper level of influence to organize an intolerable situation, “silent persecution” of an employee within the team.
- Threats of physical harm against the employee himself or his family members. Such things are said as if by chance, but they have a very strong impact on a person already exhausted by an unequal struggle, and they can be the last straw.
Defense: how to act when forced to resign?
How will they punish for coercion under the article?
Unfortunately, most often the employer who engages in forced dismissal remains unpunished - the fact of forced dismissal is very difficult to prove in court.
All conversations take place face to face, and even if the employee manages to record the conversation on a voice recorder, the court is unlikely to accept the recording as evidence - a serious examination will be required to prove that the voices on the tape belong to the boss and subordinate.
How can an employee prove in court that he was forced to resign (and it is the employee who must prove this)?
The author of the article very classically competently and thoroughly equips the employer with instructions on how to avoid making factual and procedural errors in situations where the employee agrees to resign himself (without commissions, and so on).
Situations often arise when an employer, not wanting to continue the employment relationship with an employee, pushes him to resign, usually on the initiative of the employee (his own free will) or by agreement of the parties. The employer's position in this situation is clear - dismissal on the initiative of the employee or by agreement of the parties is the fastest and most painless way to end the relationship for both parties. There is no need to prove anyone’s guilt in a disciplinary offense, create commissions, conduct inspections, etc. And here various actions of the employer can be qualified as forcing the employee to resign. The institution of labor relations under consideration receives an ambiguous understanding and, accordingly, its application both by persons who act on one side or another of the employment contract, and by the judicial authorities considering the relevant cases. Mistakes are made on all sides, including the employer.
Issues of forced dismissal are addressed in paragraphs. "a" clause 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation", by virtue of which, when considering disputes about termination at the initiative of an employee of an employment contract concluded for an indefinite period, as well as a fixed-term employment contract (clause 3, Part 1, Article 77, Article 80 of the Labor Code of the Russian Federation), courts must keep in mind that termination of an employment contract at the initiative of an employee is permissible in cases where the filing of a resignation letter was voluntary. If the plaintiff claims that the employer forced him to submit a resignation letter of his own free will, then this circumstance is subject to verification and the responsibility to prove it rests with the employee. When resolving cases related to forced dismissal, courts must proceed from this clarification.
The cost of mistakes that employers make in the process of dismissing an unwanted employee is claims from supervisory and administrative authorities, reinstatement of the dismissed person, and material costs when paying for court decisions. Each situation is individual and the mistakes that employers can make can be very different. Having analyzed the judicial practice on dismissals, we will highlight the most common ones.
For ease of analysis and understanding, we divide them into two types: 1) actual, or those that employers allow when implementing the process of coercion; 2) procedural- admitted when documenting the process of termination of relations.
Let's take a closer look at the most common factual errors upon dismissal.
1. Deception and misrepresentation regarding the actions performed. In this case, as a rule, the employer or his representative asks to take some legally significant action, for example, to write a letter of resignation, and they inform that this is the only way out to transfer to work for another employer, who in turn will hire them . As a result, not everyone is hired by the new employer. Taking advantage of employees' ignorance of labor legislation, the employer misleads them regarding the consequences of the decision made. In this regard, indicative is the Determination of the Nizhny Novgorod Regional Court dated July 14, 2009 N 33-5168 on the cassation appeal against the decision of the Pavlovsk City Court to satisfy the employee’s demands. The court reinstated the employee and declared the dismissal illegal.
2. Brutal pressure when writing a letter of resignation. Dismissal at the initiative of an employee (Clause 3, Part 1, Article 77 of the Labor Code of the Russian Federation) presupposes his voluntary expression of will to terminate the employment relationship (Article 80 of the Labor Code of the Russian Federation, Clause 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2). Pressure from the employer to obtain a resignation letter from the employee excludes his freedom of expression.
If the employee refers to being forced to resign under clause 3, part 1, art. 77 of the Labor Code of the Russian Federation, then he must prove this fact (clause 1 of article 56 of the Code of Civil Procedure of the Russian Federation, clause 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2). The resolution of the dispute will depend on the court’s assessment of the totality of evidence presented by the employee and employer (clause 3 of Article 67 of the Code of Civil Procedure of the Russian Federation). Pressure can come in many different forms. Most often, the employer requires you to write a statement of your own free will under the threat of dismissal on incriminating grounds. Such grounds may be absenteeism, appearing at work in a state of intoxication, professional incompetence, etc. As a rule, testimonies of witnesses of pressure, audio and video recordings of statements, correspondence, etc., which can be regarded by the court as pressure, can be used as evidence (Appeal ruling of the Supreme Court of the Republic of Tatarstan dated July 22, 2013 in case No. 33-8066 /2013, Appeal ruling of the Supreme Court of the Republic of Kalmykia dated July 10, 2012 N 33-435/2012).
Let's look at the most common procedural errors when completing the dismissal process.
1. Failure to comply with the written form of the resignation letter. A written form of warning about termination of an employment contract at the initiative of the employee is provided for in Part 1 of Art. 80 Labor Code of the Russian Federation. The employee's resignation confirms his desire to terminate the employment contract under clause 3, part 1, art. 77 of the Labor Code of the Russian Federation (own desire).
An analysis of judicial practice shows that if the cause of the dispute was the dismissal of an employee under clause 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation, in the absence of his written application (the employer was unable to provide its original or copy to the court), the dismissal will be considered unlawful.
If the cause of the dispute was the dismissal of an employee in the presence of a copy of his application (including that received by fax or e-mail), its resolution will depend on the court’s assessment of the evidentiary value of the available copy of the application in conjunction with other evidence presented by the employee and the employer (clause 3 of Art. 67 Code of Civil Procedure of the Russian Federation). Example: Appeal ruling of the Supreme Court of the Republic of Karelia dated January 10, 2014 in case No. 33-211/2014. In addition, the application must be submitted by the employee in person or by mail. In any case, it was written in my own hand. Any photocopies and scanned copies are unacceptable when dismissing and determining the principle of voluntariness (Cassation ruling of the St. Petersburg City Court dated January 27, 2011 N 33-1136/2011).
2. Termination of an employment contract based on an application that does not indicate the date of dismissal. In accordance with Part 1 of Art. 80 of the Labor Code of the Russian Federation, an employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance. The head of an organization has the right to terminate his employment contract early by notifying the employer in writing no later than one month in advance (Article 280 of the Labor Code of the Russian Federation). By agreement between the employee and the employer, the employment contract can be terminated before the expiration of the notice period for dismissal (Part 2 of Article 80 of the Labor Code of the Russian Federation). After the specified period, the employee has the right to stop working (Part 5 of Article 80 of the Labor Code of the Russian Federation). If, upon expiration of the notice period for dismissal, the employment contract is not terminated and the employee does not insist on dismissal, then the employment contract continues (Part 6 of Article 80 of the Labor Code of the Russian Federation).
An analysis of judicial practice shows that if the cause of the dispute was dismissal later than two weeks after receiving an application from the employee that did not indicate the date of dismissal, such dismissal will be considered unlawful. If the employer in such a situation fired the employee before the expiration of the two-week notice of dismissal, the resolution of the dispute will depend on the court’s assessment of the employee’s actions (whether he showed his disagreement with the early dismissal immediately upon dismissal), on the employer’s arguments, the court’s assessment of their legality, and the accompanying circumstances of the case , evidence presented by the parties (Appeal ruling of the Ulyanovsk Regional Court dated January 21, 2014 in case No. 33-169/2014, Appeal ruling of the Kurgan Regional Court dated May 30, 2013 in case No. 33-1443/2013).
3. Termination of an employment contract at one’s own request (clause 3, part 1, article 77 of the Labor Code of the Russian Federation) on a date other than that indicated by the employee in the application. In accordance with Part 1 of Art. 80 of the Labor Code of the Russian Federation, an employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance. By agreement between the employee and the employer, the employment contract can be terminated before the expiration of the notice period for dismissal (Part 2 of Article 80 of the Labor Code of the Russian Federation). The employer’s obligation to dismiss the employee within the period specified in the application arises in cases provided for in Part 3 of Art. 80 of the Labor Code of the Russian Federation (for example, in connection with the employee’s retirement, enrollment in an educational institution, violation by the employer of labor legislation, etc.). Unilateral change by the employer of the date of dismissal initiated by the employee is not provided for by labor legislation. An analysis of judicial practice shows that if the cause of the dispute was the dismissal of an employee before the date specified in the application, it will be considered unlawful. If the dismissal is made within the two-week warning period provided for in Part 1 of Art. 80 of the Labor Code of the Russian Federation, but the date of dismissal does not coincide with the date indicated by the employee in the application, the resolution of the dispute will depend on the court’s position on the issue of whether the employer can independently set the date of dismissal of the employee at his own request, referring to the provision of Art. 80 of the Labor Code of the Russian Federation on a two-week notice period, as well as from accompanying circumstances of dismissal, including whether the employee has the right to terminate the employment contract on a date determined by him in accordance with Part 3 of Art. 80 of the Labor Code of the Russian Federation (Appeal ruling of the Supreme Court of the Republic of Tatarstan dated April 1, 2013 in case No. 33-3718/13).
4. The employer’s refusal to dismiss the employee in accordance with Part 3 of Art. 80 of the Labor Code of the Russian Federation on the date specified in the application for voluntary dismissal, if it was submitted in connection with the employer’s violation of labor legislation. According to Part 1 of Art. 80 of the Labor Code of the Russian Federation, an employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance. By agreement between the employee and the employer, the employment contract can be terminated before the expiration of the notice period for dismissal (Part 2 of Article 80 of the Labor Code of the Russian Federation). In some cases, according to Part 3 of Art. 80 of the Labor Code of the Russian Federation, the employer is obliged to dismiss the employee within the period specified by him in the application: for example, in connection with the employee’s retirement, enrollment in an educational institution, an established violation by the employer of labor legislation, etc. Violation by the employer of labor legislation can be recorded by the bodies implementing state supervision and control over compliance with labor legislation, trade unions, labor dispute commissions, courts (clause 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2). If the refusal of the employee’s request to dismiss him at his own request on a specific date due to the occurrence of the circumstances specified in Part 3 of Art. 80 of the Labor Code of the Russian Federation, became the cause of the dispute, its resolution will depend on the court’s assessment of the totality of evidence presented by the employee and employer (clause 3 of Article 67 of the Code of Civil Procedure of the Russian Federation), the presence or absence of such circumstances (Determination of the Moscow City Court dated August 26, 2011 in case No. 33 -26923, Determination of the Lipetsk Regional Court dated August 11, 2008 in case No. 33-1446/2008).
5. Revocation by the employee of his resignation letter at his own request (clause 3, part 1, article 77 of the Labor Code of the Russian Federation). According to Part 1 of Art. 80 of the Labor Code of the Russian Federation, an employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance. Before the expiration of the notice period for dismissal, the employee may withdraw his application (Part 4 of Article 80 of the Labor Code of the Russian Federation). The procedure for filing and the method of withdrawing a resignation letter are not regulated by law. If the employer’s refusal to continue the employment relationship with the employee after his withdrawal of the resignation letter has become the cause of the dispute, then its resolution will depend on the court’s assessment of the circumstances surrounding the dismissal. In particular, the court’s assessment of the method of sending the review (by mail), the time the employer received the review (before or after dismissal), the time the employee submitted the review, etc. is important. If, when considering such a dispute, the employer refers to the fact that the review was not received by him, judicial practice shows that the resolution of the dispute will depend on the court’s assessment of the totality of evidence presented by the employee and employer confirming the existence of a review, including witness testimony (clause 3 of article 67 of the Code of Civil Procedure of the Russian Federation). If the application is withdrawn, the employee will not be dismissed if another employee has already been invited in writing to take his place, who cannot be refused by force of law. For example, in accordance with Part 4 of Art. 64 of the Labor Code, it is impossible to refuse an employee invited by way of transfer within a month after dismissal from his previous place. If the cause of the dispute is the dismissal of an employee who has withdrawn his resignation letter, but another employee has already been invited to replace him by way of transfer, the resolution of the dispute will depend on the court’s assessment of the circumstances of the dismissal of the invited employee from his previous place of work and whether the employer has legal grounds for refusing to conclude a contract with him. nim of the employment contract (Decision of the Supreme Court of the Russian Federation dated July 11, 2008 N 48-B08-6, Determination of the Moscow City Court dated November 2, 2010 in case No. 33-33831).
From the above analysis it is clear that, unfortunately, employers are very inattentive to the preparation of personnel documents. And an employee’s resignation letter may generally look quite strange: without dates or with other dates, with vague wording, even without the employee’s signature. And the manager’s resolution is generally absent from the application as a document requisite. But if you have agreed with the employee that the dismissal will take place before this date, then the agreed, specific date must be in the text of the application. Otherwise, the dismissal can be challenged.
If the application does not indicate a specific date when the employee asks to terminate the employment contract with him, then the courts believe that dismissal earlier than 14 calendar days allotted for warning deprives the employee of the right to withdraw his application.
The employer needs to provide evidence that an agreement was reached with the employee to dismiss on that very day. Otherwise, the court may declare the dismissal illegal (Decision of the Moscow City Court dated October 7, 2010 in case No. 33-31548). However, it should be clarified that the courts consider all the circumstances of the case, including assessing the employee’s actions upon dismissal (whether he expressed disagreement with the dismissal). The absence of written evidence (statements, letters) that would confirm that the employee objected to dismissal on this date will testify in favor of the employer (Appeal ruling of the Pskov Regional Court dated 05/03/2012 in case No. 33-596).
At any job, various situations periodically arise, sometimes pleasant, and sometimes not so pleasant. However, it is the unpleasant cases that are especially memorable. Unfortunately, some of them may even force a person to change jobs or at least give rise to similar thoughts. These may be moments related to relationships in the team or with management, or with the working conditions themselves.
But what to do if they want to fire you? Without your desire, the manager can directly force you to write a statement of your own free will. The Labor Code itself does not make it easy to fire an employee if the reason for dismissal is only personal hostility or other wishes of the manager. But what to do if you are forced to resign of your own free will? More on this later in our article.
For what reasons can your manager fire you?
If a manager wants to fire you, then by law he cannot do so without reason. That is, simply telling a person that he is fired, he does not have the right. According to Art. 81 of the Labor Code of the Russian Federation, on the part of the employer can only be in cases where:
- The organization is being liquidated, or the individual entrepreneur suspends its activities;
- The workforce is being reduced. However, it is the employer who will not benefit. In this case, the employer will need in the amount of average wages up to two months after layoff;
- The employee does not have enough qualifications for the current position, and the relevant certification was failed;
- The owner of the company changes, as well as the management as a whole. The change of one of the leaders does not apply to this, since this refers to a change on a more global scale;
- The employee does not perform his work duties and at the same time already has a disciplinary sanction;
- The employee committed a gross violation while performing his job duties. This may also include coming to work under the influence of alcohol or drugs or stealing;
- There was truancy. If you are absent from your workplace for more than four hours in a row and you do not provide a valid reason, ;
- There was a fact of disclosure of a legitimate secret of the organization. This includes commercial, state and bank secrets.
The article itself is extremely voluminous, but even with such a variety of options, the employer does not have the opportunity to get rid of the employee at will. Each reason requires evidence, and the justification must be strong enough to be applied.
Leaving at your own request is the most beneficial solution, as well as the easiest legally. The manager will not have to make any payments and no additional paperwork will be required. In fact, this results in termination of the employment contract in the easiest way without any liability on the part of the organization.
What actions are considered forced dismissal?
For some, even rare hints may look like coercion; for others, coercion becomes obvious only after real threats from the employer. However, if we talk about actions that legally constitute coercion, there are few of them.
So, coercion will be:
- Requests. Typically, they are verbal; they can be either rare recommendations from the managers themselves or extremely urgent ones. It is recommended, if possible, to record them as audio or video recordings. If this happens during phone calls, then recording conversations will also be useful to you;
- Threats. They can mainly consist in the fact that you will be fired under the article. Do not succumb to such provocations under any circumstances. For this kind of dismissal, compelling reasons are needed, and in the future, for such dismissal “under the article” the employer may be subject to severe punishment. Threats can even go so far as to promise you physical violence. In such cases, be sure to remain calm and record incoming threats in all possible ways;
- Psychological pressure on employees. These could be additional tasks, difficult or almost impossible work, tight deadlines, even a pay cut. Similar pressure can be expressed in the team turning against you. It will be more difficult to collect evidence, but try to record these events.
If you do not want to leave your current position or the organization as a whole, then all of the above actions will constitute coercion. Be sure to try to record such cases, because any material evidence may be useful to you in the future.
If at this time you are under pressure from your employer, you can contact one of our lawyers for advice. It is provided free of charge. Each case is unique and requires separate consideration, especially if you receive threats.
How to punish an employer for coercion?
First of all, you will need evidence. Once you have them, you can already contact the required authorities regarding this violation. You can When drawing up the complaint itself, you will need to not only indicate the full legal name of the organization and your data, but also describe the current situation in detail.
Remember that every case is unique. To assess the possible damage and help identify the articles of the law that your employer violated. On our website you can get a complete consultation completely free of charge.
