The employer forces you to write a resignation of your own free will: what to do?

What the law says

Methods for terminating an employment contract are described in detail in Chapter.
13 Labor Code of the Russian Federation. It also specifies situations when an employer has the right to dismiss an employee on his own initiative, and Art. 80 of the Labor Code of the Russian Federation regulates situations when an employee resigns of his own free will. The Labor Code of the Russian Federation does not indicate reasons for dismissal at will: they can be any. The main thing is to notify the employer in writing at least two weeks before the expected date of dismissal. The specified two weeks are counted starting from the next day after the employer receives a written application from the employee.

By agreement of the parties, the two-week period may be reduced.

And here is Art. 81 of the Labor Code of the Russian Federation, which regulates situations with dismissal at the initiative of the employer, is more stringent. An employer cannot fire an employee simply because he wants to: there must be a compelling reason. The list of grounds is given in paragraph 1 of Art. 81 Labor Code of the Russian Federation. This includes dismissal:

• in connection with the liquidation of the employer;
• staff reduction;
• failure of the employee to pass professional certification;
• change of owner of the organization;
• gross violation by the employee of his duties;
• repeated failure by the employee to fulfill his duties (in the presence of formalized disciplinary sanctions).

Despite the fact that the list of grounds is not closed (Subclause 14, Clause 1, Article 81 of the Labor Code of the Russian Federation allows for dismissal “... in other cases...”), it is possible to dismiss an employee at the initiative of the employer only based on the Labor Code of the Russian Federation or other federal laws.

ConsultantPlus experts spoke about the employer’s liability for the illegal dismissal of an employee. Get trial access to K+ for free and proceed to the explanations.

Application to the Labor Inspectorate

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

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

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

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

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

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

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

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

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

If a violation is confirmed, an order is issued:

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

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

What to do if the employer forces you to quit “at your own request”

Forcing people to resign at their own request (including psychological pressure) is illegal. But here it is necessary to distinguish between obvious coercion and situations when the employer simply offers the erring employee not to spoil his work record by dismissal “under the article”.

Before starting to defend his rights, the employee should decide whether, in his case, dismissal “on his own” would really be an infringement of his interests. If an employee has committed an offense that allows him to be dismissed under a less lenient article, it may be worth agreeing so as not to spoil his future employment prospects.

1. If the employee is confident in his integrity and does not want to resign, the following actions must be taken: Do not write a letter of resignation.

2. If it has already been written, it is necessary to draw up a review of the application and be sure to register it in the office or with the secretary (include the entry number). If the secretary refuses to accept and register the application for revocation, it should be sent to the organization by registered mail with notification. The postal receipt must be kept.

However, it should be borne in mind that an application can be withdrawn if another employee is not invited in writing to take the place of the employee. Therefore, you should not delay. The sooner the review is made, the less likely it is that a replacement has already been invited to fill the vacated position.

3. When you receive a dismissal order for signature, you must indicate on the document itself that you do not agree with it and consider the dismissal to be illegal.

4. After which you should file a complaint with the state labor inspectorate, prosecutor's office or court.

In such a situation, it will be difficult to calmly continue working in the organization, but many employers, realizing the prospect of the courts, offer to formalize the termination of the employment contract due to staff reduction or by agreement of the parties. In this case, the employee can count on monetary compensation.

You can find out what payments an employee is entitled to upon dismissal by agreement of the parties from the “ConsultantPlus” material. Get trial access to K+ for free and see the list of payments.

Why an employer may not sign

The employer must write its resolution on the application. It must contain an instruction to the head of the human resources department or another person to prepare an order for dismissal. Thus, the employer indirectly confirms his consent to dismissal.

Reasons why there is no entry signed by the boss on the application:

• violation of deadlines for document submission;
• incorrect, undocumented reason for the calculation;
• debt to the company, which is withheld from the resigning employee’s salary;
• material shortage with criminal liability;
• unfinished mandatory period of work after training at the expense of the enterprise.

At enterprises with a workforce of many thousands, consent to dismiss an employee is recorded by the immediate supervisor. For example, the chief accountant signs a statement from an ordinary subordinate that he does not object.

The application is registered: it is assigned an incoming number and date. The further procedure is the preparation of a dismissal order. The employee is given a bypass sheet, which he is obliged to hand in before the termination of the employment relationship.

Based on the application, bypass sheet, a dismissal order is issued. On the last working day, the resigning employee gets acquainted with the order against signature, certifies his personal registration card, and puts his signature in the work book. He is given a final payment and a work book.

Results

Forcing a conscientious employee to resign at his own request is illegal. Even a submitted resignation letter can be withdrawn if another employee is not invited in writing to replace it. You should stock up on documents confirming your disagreement with dismissal “at your own request” and file a complaint with the State Tax Inspectorate.

We talked in more detail about the procedure for terminating an employment contract in our “Dismissal” section.
You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Reasons for an employer's refusal to dismiss

The most common reasons for a manager to refuse dismissal at the initiative of an employee are:

• after the termination of the contract is completed, the dismissed person plans to get a job in a competitor’s company;
• lack of desire to look for a new specialist;
• high level of qualification of the employee who wants to resign. whose departure cannot but affect the functioning of the organization;
• the specialist leaves behind a large amount of unfinished work;
• the boss’s personal interest in continuing the relationship.

If management does not want to fire an employee on these grounds, then its actions can be regarded as a violation of worker rights. Hired personnel have every right to leave their positions after the expiration of the two-week period. But this does not mean that during this period it is possible not to perform official duties in accordance with the contract. If it contains an item that requires work to be completed within a specified time frame, then its execution is mandatory.

Fact

The immediate supervisor, secretary, human resources specialist, clerk or other responsible service of the company must mark the acceptance of the application. This condition is mandatory to comply with.

This function should be enshrined in the internal regulations of the enterprise and job descriptions of specialists involved in receiving and processing correspondence. In addition, if the worker has the right to submit an application, then the other party to the contract is obliged to accept it.

If the boss refuses to endorse a subordinate’s resignation letter, the document must be submitted to the personnel service. HR department employees are required to accept the notice even without the signature of their immediate supervisor, and schedule work off and a day of dismissal. The contract is terminated on the last working day. Thus, the boss’s visa does not have legal force, but it greatly simplifies the process of dismissal.

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Specific cases of filing an application

Employee leave

When an employee is on regular vacation, the process of terminating a contract does not differ from generally accepted cases:

• The employee notifies the manager in writing of his desire to resign.
• after making a decision, the boss forwards the document to the organization’s personnel service;
• after this, an order is issued, after which the parties sign it, the contract is considered terminated.

This is also important to know:
Dismissal for absenteeism

If the period of work coincides with the period the specialist is on vacation, then there is no need for work. It is important to know that it is not necessary to submit the application in person. The notice can be sent by registered mail. After completing the termination of the contractual relationship, the employer will transfer all due payments to the dismissed person’s account, and send the work book by registered mail or using a courier service.

Employee illness

The law does not prohibit notifying the employer of dismissal during sick leave. The date of dismissal does not always coincide with sick leave, so the employee will have to return to the workplace after the end of his illness and work for the required period.

Payment for sick leave is made within ten days after it is submitted to the accounting department, and settlement payments are made on the day of departure. If on the last working day the dismissed person is absent, then in the T-8 order he makes a note about the impossibility of one of the parties getting acquainted with it.

Refusal to terminate the employment contract and threats from the manager

When refusing to approve an application for upcoming dismissal, the employer sometimes resorts to intimidation tactics. At the same time, he threatens to accuse the employee of committing disciplinary offenses and other violations.

In this case, the dismissed person should know that each accusation must be supported by documents, and a penalty for such an offense may be imposed only within one month after its commission. If the penalty was imposed a month later, then this is regarded as a violation of the employee’s rights, and he has the right to file an application with the court demanding the recovery of moral compensation.

Is it possible to give an application to the secretary?

Secretaries are often given verbal instructions from management not to accept such documents. Employees, in this case, should be aware that such a refusal is illegal, and the secretary has the right to accept the document during the absence of the boss or in case of refusal to sign.

Situation 3. Forced to write a statement

Ever since Antonina made a bad joke in front of her elderly boss, her working days have become a real hell. The girl was subjected to constant comments, nagging and disciplinary sanctions. The last straw was a significant reduction in wages. Antonina decided to talk to her boss about the current situation and prudently took a voice recorder with her. The recording turned out to be interesting: shouts and insults from the management, as well as crude blackmail “either you write your own way, or I will frame you for the article.” The girl quit, went to court, and was reinstated at work. History is silent about what happened to the quarrelsome boss.

Why did it happen?

The former employee must prove that he was forced to resign. Audio recordings with time stamps, email correspondence with the offender, and witness statements will help here. In this case, both the reason for dismissal and the evidence presented must be sufficiently convincing. For example, the court will side with an employee who was denied well-deserved leave and was forced to resign due to chronic fatigue. But the arbitrators will not support a specialist if he was caught stealing and offered to “leave on good terms.”

For example, pregnant employees often win such labor disputes. If the employer was aware of the lady's delicate situation, he is unlikely to be able to prove that the woman really wanted to quit.

Is it possible to quit without the employer's consent?

An accepted and registered application will help avoid problems during dismissal.

In fact, in this way the employee fulfilled his obligations prescribed in labor legislation in full. After registering the form, you can take the following steps:

1. Give up the intention of being fired. Dismissal at will obliges the employer who accepted it to change the agreed conditions if the employee expresses his desire. Before the expiration of the mandatory service period, the employee has the right to change his mind. This point can only be prevented by the fact that there is an official replacement who was invited after the document was submitted.
2. Work the required 14 calendar days, but do not go to work on the 15th day. The absence of an issued order, prepared documents on the calculation and payment of estimated compensation is the problem of the employer, not the quitter. Therefore, if the organization’s management refuses to take legal actions, the employee is still considered dismissed on the 15th day after registration of the application.

The employer's reluctance to voluntarily cooperate on the issue of termination of the contract allows the dismissed person to defend his rights in higher authorities.

What to do if the boss prevents the termination of the employment contract at the initiative of the employee?

The employer does not have the right to prevent the dismissal of an employee at his own request, even under the following pretexts:

• conducting an inspection;
• transfer of cases (supposedly the whole procedure will take more than two weeks);
• debt service, etc.

In accordance with Art. 37 of the Constitution of the Russian Federation and Art. 4 of the Labor Code of the Russian Federation, forced labor in any of its manifestations is prohibited. By this, labor legislation understands work under threat of punishment.

Responsibilities for military or alternative civil service, work under emergency circumstances or in wartime are not considered forced labor and are regulated by special norms.

Many managers are confident that they have the right to refuse dismissal if:

• the employee was trained in a targeted area, and the employment contract specifies the minimum period of work in a certain organization (for example, 2 years or 5 years);
• the employer entered into an apprenticeship agreement with the employee (Article 198 of the Labor Code of the Russian Federation).

This opinion is also wrong. In both cases, an employee resigning without good reason will have to reimburse training costs (Part 2 of Article 207 of the Labor Code of the Russian Federation), which is confirmed by Rostrud letter No. 852-6-1 dated 10/18/2013.

The legislator did not provide an exact list of valid reasons. The courts are guided by the Resolution of 07/09/1980 of the State Committee for Labor of the USSR No. 198 and the Secretariat of the All-Union Central Council of Trade Unions No. 12-21, which has actually lost force, and part 3 of Art. 80 of the Labor Code of the Russian Federation (grounds for dismissal without two-week work):

• health conditions that do not allow you to continue working in such a position;
• conscription into the army;
• retirement (if the employee has not previously been dismissed on this basis);
• the need to care for a disabled relative;
• transfer of a spouse to work in another area;
• other reasons that may be considered valid.

In what forms can this manifest itself?

Obstruction of dismissal can manifest itself in a variety of forms.

1. Persuasion to quit later.

At first glance, this form seems harmless. The employer will say: “wait a little, we’ll find someone to replace you, then write an application.” But the waiting period may drag on, and a job with more attractive conditions that the employee would like to switch to may go to someone else during this time.

1. The employer refers to a local act that prohibits quitting during certain periods.

The internal documents of the organization cannot establish periods during which an employee is obliged to work. However, similar requirements can be reflected:

• in labor legislation (emergency situations, etc.)
• in certain legislative acts (for example, Federal Law No. 342 “On service in internal affairs bodies”, according to which a police officer cannot resign at will during an armed conflict, emergency situations, etc.).

The above acts do not directly prohibit dismissal. If the same police officer does not want to participate in the counter-terrorism operation and wants to leave the service at that time, he will be released. But only on the basis of refusal to serve under special conditions, and not of one’s own free will.

1. Prohibition of employment in a competitor's organization.

Formally, the employer does not prohibit resigning, but does not allow you to get a job with a competitor after leaving (for example, the seller of Magnit PJSC will be prohibited from getting a job at Dixie Group JSC), citing the terms of the employment contract. Such demands are contrary to the law.

This is evidenced by the Letter of the Ministry of Labor dated October 19, 2017 No. 14-2/B-942, in which the legislator refers to Art. 34 and 37 of the Constitution of the Russian Federation.

At the same time, the Letter talks about the protection of trade secrets (Federal Law No. 98 dated July 29, 2004).

Important! An employer can hold a former employee financially liable for disclosing a trade secret if he had access to it under the employment contract and additional agreement, and if it is discovered that it was the employee who disclosed it.

1. Employer threats.

The employer can threaten dismissal for guilty actions (“under the article”), by hanging a shortage or framing it in some other way. The employee is required to record such threats and, if possible, attract witnesses to prove a violation of his labor rights.

1. Refusal to sign or register an application.

Often, the employer refuses to accept the resignation letter without explanation or does not sign it (simply ignores it) - we’ll figure out what to do with this below. If the employer has prohibited those responsible for personnel work from dismissing an employee, then this will also be a violation of labor laws.

Legislative norms for regulating labor relations

The choice of the nature of work activity, as well as the place of its implementation, is the prerogative of the person himself and is his personal responsibility. Satisfaction with one’s work, prospects for growth and material well-being, as well as the favorableness of business relations with the employer depend on the choice of place of work.

Expert commentary

Kamensky Yuri

Lawyer

When entering into an employment relationship with an employer, every person should know that he is legally protected by the Constitution of the Russian Federation. Thus, the main principle of Article 37 of the Constitution is the right to freely choose the type of activity and the prohibition of forced labor.

Based on the Constitution, legal documents have been developed regarding labor relations between an employer and a specific employee. The main document regulating these relations is the Labor Code of the Russian Federation. In particular, Article 16 of the Labor Code of the Russian Federation gives the right to officially begin labor relations between an employer and an employee on the basis of a concluded employment contract. Article 21 of the Labor Code of the Russian Federation defines the basic rights and obligations of an employee that arise after concluding an agreement with the employer. According to them, the employee receives the right not only to conclude and change the employment contract itself, but also to voluntarily terminate it. Therefore, if an employee does not sign a resignation letter and ignores his desire to quit, it is regarded as an attempt by the employer to force him to work. This could threaten him with sanctions.

Where can I complain about my employer?

If the application was not accepted or accepted, but the payment was not issued in a timely manner and the documents were not returned, then the person has the right to complain to other higher authorities.

There are three authorities that deal with the resolution of labor disputes:

1. Labour Inspectorate.
2. Prosecutor's office.
3. Court.

You can contact any of them completely free of charge. Hierarchy in this case does not matter. You can start with the Labor Inspectorate, or you can immediately file a claim in court.