Withdrawing a resignation letter: when is it possible and when is it not?
An employee leaving the company must submit a written application to the company's human resources department no later than two weeks before the intended departure.
However, if for some reason he changes his mind, he has the right, before the specified two-week period expires, to withdraw his application and continue to work in the company (Article 80 of the Labor Code of the Russian Federation). This is a general rule.
However, there are situations in which an employee will no longer be able to withdraw his resignation letter.
For example, this practice is widespread: an employee goes on vacation, immediately after which he leaves the company. In this case, it is important for the employee to keep in mind that it is possible to withdraw the application, but only if this is done before the vacation begins, and also provided that another person has not taken the place of the dismissed person by way of transfer (Article 127 of the Labor Code of the Russian Federation).
For more information about dismissal immediately after a vacation, read the article “How to properly arrange a vacation followed by dismissal .
In addition, it may happen that while the employee was thinking for two weeks, the employer had already found a replacement for him and sent the potential new employee a written offer to conclude an employment contract. In this situation, for the successful return of the previous employee, it is necessary that the new candidate does not belong to the category of persons who cannot be refused employment by virtue of the norms of the Labor Code of the Russian Federation (for example, if this is a person who, by way of transfer, left his previous place of work for no more than a month back).
IMPORTANT! This rule also applies to vacations. If the employer has invited a specialist to work in writing as a transfer from another company, then even in a situation where the resigning employee changed his mind before the start of the vacation after which he planned to leave, he will not be able to withdraw the application (as we noted above, referring to Art. 127 of the Labor Code of the Russian Federation).
The employee should keep in mind that he will not be able to withdraw his application only if the company does not have the right to refuse a new candidate by force of law. Therefore, the employer’s voluntary choice in favor of a new specialist will be illegal (determination of the RF Armed Forces dated July 11, 2008 No. 48-B08-6).
What legal disputes may arise during voluntary dismissal? Sign up for a free trial access to ConsultantPlus and get acquainted with a selection of labor disputes in case of voluntary dismissal.
Situation 2. Fired before the expiration of the two-week period
Inna actually wrote the statement voluntarily, but did not indicate the date of her dismissal. According to the law, she could change her mind within two weeks, but the employer did not give her such a chance. The dismissal order was signed within five days, which deprived the woman of the right to withdraw her application. Inna went to court and was reinstated at work.
Why did it happen?
If the application did not indicate the date of dismissal, it is considered according to the general rules. The Labor Code of the Russian Federation states that an employment contract is terminated 2 weeks after filing an application. By failing to comply with these deadlines, the employer violates the employee's rights.
Reinstatement is not the only option. Sometimes the court orders to change the date of dismissal to the one required by law and to pay the former employee the average salary for this time.
What documents should an employee draw up to withdraw his resignation letter?
But how can an employee document his intention not to leave the company? The Labor Code of the Russian Federation does not regulate this issue. Therefore, it is best to submit a written application (memo, notification) to the HR department.
Russian labor legislation does not provide for a specific form of notification of the withdrawal of a notice of dismissal. This means that you can compose it in any form. The main thing is that it contains all the necessary details (to whom, from whom, etc.), and also clearly indicates the employee’s intention to withdraw the resignation letter. In this case, it is imperative to put the correct date and sign it in the HR department (so that there is evidence that at the time of withdrawal of the resignation letter, the two weeks allotted by the Labor Code of the Russian Federation have not expired).
ATTENTION! The employee should understand that the withdrawal of the resignation letter, in turn, cannot be cancelled. That is, if an employee who has withdrawn his resignation letter still decides to quit, he will have to write a new letter and work for the required two weeks.
Employee's dismissal date
The employee must give notice of dismissal at least two weeks in advance. The deadline starts from the next day after you receive the application.
For some employees, the law sets a different deadline:
- The director of the organization must notify the founder of dismissal at least one month in advance.
- An employee on a probationary period, a seasonal employee and an employee with whom a fixed-term employment contract has been concluded for a period of up to two months - no later than three days.
The employee may not comply with the two-week period and determine the date of termination of the contract himself if:
- he is unable to work due to going to college or retiring;
- dismissal is associated with a violation of labor legislation, which is recorded by the labor inspectorate, trade union, labor dispute commission or court.
By agreement with the employee, the two-week period may not be observed. For example, you both don’t mind terminating the contract after 5 days.
You cannot dismiss an employee before the deadline.
What documents and how can an employer formalize the withdrawal of an employee’s resignation letter?
Suppose the employer received written confirmation from the employee of his desire to remain with the company. At the same time, at the time of withdrawal of the employee’s application for voluntary resignation, the organization had not yet had time to formulate a dismissal order, and the relevant information about leaving the company had not been entered into the employee’s work book.
In this case, everything is simple for the employer: it is enough to put a mark on the employee’s letter of resignation that it has been cancelled. As the reason for cancellation, you should indicate the details of the notification received from the employee about the withdrawal of the application.
But what to do if all procedural issues related to the dismissal of an employee have already been resolved (a dismissal order has been issued (in Form No. T-8), a corresponding entry has been made in the work book, etc.)?
For information on how to correctly draw up a dismissal order, read the article “Unified Form No. T-8 - form and sample of completion .
In this case, you should, firstly, cancel the dismissal order with a new order (in free form), referring to the relevant notice of withdrawal provided by the employee, and secondly, make corrective entries in the work book of such an employee, indicating, in particular, that “ entry number X is invalid, the employee has been reinstated to his previous place of work.” In addition, the employing company should make changes to the employee’s personal card (Form No. T-2).
ATTENTION! The rules for maintaining work books in force from 09/01/2021 (approved by order of the Ministry of Labor dated 05/19/2021 No. 320n) do not provide for familiarization of the employee with the signature of the work records entered into the paper work book (previously, employees signed the dismissal record). Read more about the new rules for registering a work book, effective from September 2021, here.
The employer should also take into account that if a settlement was made with the employee and the amounts due upon dismissal were paid to him (for example, vacation pay during a vacation followed by dismissal), then a recalculation should be made in order to withhold the amounts excessively accrued to the employee.
This is possible, for example, if compensation was paid for unused vacation. For more information, see the article . ”
Situation 1. Falsified application
Nikolai’s relationship with his immediate supervisor completely went wrong. The latter was hostile to any ideas, found fault with little things and tried to survive the employee in every possible way. The case ended with Nikolai’s dismissal: the order stated that it was of his own free will, but the man did not write any statements. He decided not to start a scandal, but to take away his work book and go to court. At the meeting, the former employer presented a statement that he allegedly found on his desk, and emphasized that he was not obliged to check the authenticity of the document. The judge ordered a handwriting examination, which determined that the statement was not written by Nikolai. The employee was reinstated, paid wages for the period of forced absence and compensation for moral damage.
Why did it happen?
The resignation letter must be written and signed by the employee himself. Forgery of a document is a very slippery slope that can lead the employer not only to administrative, but also to criminal liability. Most often, judges do not consider evidence such as a dismissal order signed by the employee, the fact that they received a work book, or the search for a new job. Only the application confirmed by the employee’s personal signature is decisive.
A photocopy of the application provided by the organization cannot be evidence. The court takes into account only the original.
Results
Having decided not to resign from the company, it is important for an employee to understand that he needs to take back his resignation letter in a timely manner.
The employer, in turn, should know that if a new specialist is invited in writing to replace a departing employee, and the company has no right to refuse to hire him, then the Labor Code of the Russian Federation will not allow the application of the “old” employee to be canceled. It is also important not to forget to follow the procedure for documenting the revocation of an employee’s resignation letter: receive the appropriate notice of revocation from him, issue a number of internal documents reinstating the employee at work. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
Actions
When asking whether the manager’s signature on the application is necessary, it can be argued, according to the Labor Code of the Russian Federation, that for the employee who submitted the application for dismissal, its presence or absence on the document does not matter. An employee can terminate an employment contract without the consent of management.
A signature is required for personnel and accounting department employees to make relevant entries in the employee’s documents and calculate dismissal amounts.
If the manager does not accept the application for consideration personally, you can submit it in one of the following ways:
- Contact the office and register the application in accordance with the rules of office work. Need 2 copies. The secretary puts the date and assigned number on the employee’s document, puts his signature, and stamps “accepted.”
- If, by order of management or for other reasons, the secretary refuses to accept the application, it is sent by mail. The letter with the document is issued by registered mail, with a list of the attachments and with a notification of delivery. It is from the date when the letter is received by the manager (and not sent by the employee) that the countdown to dismissal begins.
- You can send an application online using your own digital signature. In accordance with Federal Law No. 63 dated April 6, 2011, an electronic application will have the same legal weight as a paper document. Note that judicial practice on the issue of “dismissal over the Internet” varies; the legislation does not directly prohibit or permit electronic document management of this kind. We can definitely say that sending an application without using an electronic signature, by regular email, is illegal.
After the expiration of the period established by law, usually two weeks, the citizen can stop working.
If, after the last working day, the payment has not been received, the dismissal documents have not been issued, the work book has not been handed over, i.e. the employee is not actually fired, they turn to the bodies that control labor legislation: the court, the labor inspectorate. The term for going to court is 3 months; the employee does not pay fees and court costs (Articles 392, 393 of the Labor Code of the Russian Federation). If the deadline for going to court has been missed, and the employee’s rights continue to be violated, you can contact the labor inspectorate with a statement. The powers of this body make it possible to check compliance with labor laws, bring the employer to administrative responsibility, demand that the violation be eliminated, and suspend the work of the company. The labor inspectorate can bring the company's management to court.
