A former employee filed a lawsuit to force him to resign: arguments in favor of the employer (Galochkina A.B.)

Date of article publication: 07/06/2014

As practice shows, there are often situations when a former employee who quit due to at will, goes to court and talks about forcing him to write a letter of resignation. In this article we will look at how an employer needs to defend the legality of dismissing an employee.
What is the procedure for voluntary dismissal? How are the responsibilities for proving circumstances relevant to the case distributed? What arguments are not considered by the court as compulsion to dismiss?

The procedure for dismissal at will

In case of filing former employee in a claim to force him to resign at his own request, the former employer must justify that the procedure for dismissal provided for by labor legislation was followed.
According to 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, unless a different period is established by the Labor Code of the Russian Federation or another federal law. The specified period begins the next day after the employer receives the employee’s resignation letter.
By agreement between the employee and the employer, the employment contract can be terminated even before the expiration of the notice period for dismissal.
In the case when an employee’s application for dismissal on his initiative (at his own request) is due to the impossibility of continuing his work (upon enrollment in educational organization, retirement, etc.), as well as when a violation by the employer is established labor legislation and other regulatory legal acts containing labor law norms, local regulations, terms of a collective agreement, agreement or employment contract the employer is obliged to terminate the employment contract within the period specified in the employee’s application.
Please note that before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out unless another employee is invited in his place in writing, who, in accordance with the Labor Code of the Russian Federation and other federal laws, cannot be denied an employment contract.
Upon expiration of the notice period for dismissal, the employee has the right to stop working. On the last day of work, the employer is obliged to give the employee work book, other documents related to the work, upon the written application of the employee and make a final settlement with him.
If, upon expiration of the notice period for dismissal, the employment contract has not been terminated and the employee does not insist on dismissal, the employment contract continues.
Thus, the employer is recommended to justify compliance with the established procedure in objections to the statement of claim and to confirm the above, it is necessary to submit to the court copies of the employee’s application for dismissal, the dismissal order with the employee’s signature for familiarization, pages of the logbook for recording the movement of work books with a signature on receipt of the work book by the former employee, as well as other necessary documents.
If the resignation letter was written in advance (indicating the date of dismissal), no application to withdraw the resignation letter was received, these facts should be emphasized in court.

Responsibilities to prove circumstances relevant to the case

According to Art. 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis for its claims and objections, unless otherwise provided by federal law. The court determines what circumstances are important for the case, which party must prove them, and brings the circumstances up for discussion, even if the parties did not refer to any of them.
As explained in paragraph 22 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2 “On the application by courts Russian Federation Labor Code of the Russian Federation" (hereinafter - Resolution No. 2), 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 ) it must be borne in mind that termination of an employment contract at the initiative of an employee is permissible in the case where filing a resignation letter 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 obligation it is the responsibility of the employee to prove it.
Let's look at examples of court decisions on issues of forced dismissal of an employee.

An attempt to avoid dismissal on grounds that discredit an employee

Thus, by the appeal ruling of the Vologda Regional Court dated November 6, 2013 in case No. 33-5096/2013, the claim for reinstatement at work in the previous position, recovery of average earnings for the period of forced absence, compensation for moral damage was denied due to the plaintiff missing the deadline without good reason , established by Art. 392 of the Labor Code of the Russian Federation, and the lack of evidence confirming that the plaintiff was forced to contact the employer with an application for dismissal from work of his own free will.
The court noted: reaching an agreement on the date of dismissal implies that the rules of law providing for the right to withdraw the application and continue the employment contract in the event that it was not terminated upon expiration of the notice period for dismissal are applied taking into account the date of dismissal determined by agreement of the parties.
The circumstances to be proven when considering this case, in the opinion of the court, are circumstances confirming the presence or absence of the plaintiff’s will to resign at his own request.
Refusing satisfaction statement of claim, the court rightfully pointed out that an attempt to avoid dismissal on grounds that discredit the employee by using the right to file a resignation letter of one’s own free will and the subsequent termination of the employment contract cannot in themselves be evidence of pressure exerted on the employee by the employer; No other evidence indicating that the plaintiff was under pressure from the employer was presented to the court.
The resignation letter was submitted by the plaintiff in person, indicating the date from which the employee wishes to cease labor Relations with the defendant. After the dismissal order was issued and familiarized with it, the plaintiff did not go to work. These circumstances confirm the voluntary nature of the plaintiff’s actions and the existence of an expression of will to dismiss at his own request.
Thus, the court, having analyzed the above-mentioned rules of law and the circumstances of the case, came to the conclusion that the dismissal of the plaintiff was legal.

Conversations about forced dismissal

By the appeal ruling of the Arkhangelsk Regional Court dated March 18, 2013 in case No. 33-1407/2013, the claim for reinstatement at work and recovery of average earnings during forced absence was also rightfully denied, since the plaintiff’s dismissal was voluntary in nature, there was evidence that there was coercion for dismissal by the defendant, she did not submit.
The citizen filed a lawsuit against the administration municipality on reinstatement at work in the previous position, recovery of average earnings for the period of forced absence, as well as the cancellation of the order of the head of the administration of the municipality to reduce temporary disability benefits and pay this benefit in full, recovery of compensation for moral damages for violation labor rights and legal expenses, citing the fact that the employment contract with her was terminated under clause 3, part 1, art. 77 of the Labor Code of the Russian Federation, that is, on the initiative of the employee, meanwhile, she did not set as her goal dismissal, but filed an application for this forcedly, as a result of hasty pressure on her from the head of the administration, who also by her order decided to reduce her temporary disability benefits, allegedly due to a violation hospital regime.
At the court hearing, the citizen explained that she was called by the head of the administration of the municipality to her office and offered to write a statement of her own free will, threatening that otherwise she would be fired for other reasons. The head of the municipal administration also said that she did not provide her with adequate support during the election campaign. Being under stress, she performed this requirement, the dismissal was carried out within an hour, she was immediately given a work book.
The head of the administration did not recognize the claim, explaining that filing a written resignation was a voluntary expression of the plaintiff’s will in connection with the conversation about the loss of trust in her as a financially responsible person and due to her inadequate business qualifications, while no pressure was put on her, the possibility The plaintiff did not take advantage of withdrawing her application before dismissal.
The court made the above decision, with which the citizen did not agree with the dismissal of the claim; in the appeal filed, she asks to change it in this part due to the court’s incorrect assessment of the circumstances of the case and the evidence presented, as well as due to the discrepancy between the court’s conclusions and the circumstances of the case.
In the appeal, the plaintiff insists that she has proven that her employer, under moral and psychological influence, forced her to write a letter of resignation of her own free will. The court unreasonably accepted as evidence the testimony of witnesses who, at the time of her dismissal, had no longer worked in the administration of the municipality for a long time and could not confirm the reasons for her dismissal. According to the plaintiff, the head of the municipality said that she did not want to spoil her work record, and explained that the transfer of cases was not required, since there is interchangeability between the plaintiff and the financier, however, the financier testified that the transfer of cases was required, but she refused to accept the cases from her, and also testified that after a conversation with the head of administration, the plaintiff returned in an upset state and said that she was fired. The court also did not take into account her explanation that the real reason for the plaintiff’s dismissal was the fact that she did not support the candidacy of the current head of administration in the elections. The court unreasonably found that she agreed with the head’s order on dismissal, since she agreed not with the dismissal, but with clause 2 of this order on the withholding of amounts for unworked vacation. In addition, the court did not take into account that the defendant terminated her employment contract at the initiative of the employer and fired her without two weeks of work.
The panel of judges believes that there are no grounds for canceling the court decision, based on the following.
The court of first instance correctly established the factual circumstances of the case, which boil down to the fact that the plaintiff, who held a position in the municipal administration under an employment contract, submitted a written statement of resignation from work of her own free will, which is available in the case materials. The case file contains a statement addressed to the head of the municipality, in which the plaintiff asks to dismiss her at her own request (indicating a specific date). The writing of this statement indicating the date from which the plaintiff wishes to terminate her employment relationship with the defendant is not denied.
Based on this statement and in accordance with paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation, the defendant issued an order to dismiss the plaintiff at her own request, as well as to withhold from her amounts for unworked 14 calendar days vacation. On the same day, the plaintiff was issued a work book with a record of the termination of the employment relationship.
The court points out that the plaintiff did not provide evidence confirming that she was forced to write a resignation letter of her own free will.
In the appeal, as a circumstance preceding the writing of the letter of dismissal, the plaintiff points to a conversation that took place between her and the head of the municipal administration.
According to the explanations of the head of administration in this conversation, which took place in her office, the plaintiff was indeed asked to resign of her own free will due to the loss of confidence in her as a financially responsible person and because of her low business qualities. However, the conversation itself is not sufficient evidence that the said official forced the plaintiff to make a decision convenient for the employer’s representative, to write a resignation letter under pressure of her own free will.
Increased demands from the head of the municipal administration towards the plaintiff in terms of proper management accounting and the timely filing of financial statements or a critical assessment of any of the employee's actions by this superior is not sufficient evidence that this official is forcing the employee to resign.
The fact that a dismissal order was issued on the day the application was written does not in itself indicate the forced nature of writing such an application. In accordance with Art. 80 of the Labor Code of the Russian Federation, by agreement between the employee and the employer, the employment contract can be terminated even before the expiration of the notice period for dismissal, in particular on the day the employee who wishes to stop working submits an application.
From the testimony of the witness (on the plaintiff's side) - a financier (leading specialist of the municipal administration) questioned in the court of first instance - it does not follow that the application for dismissal was submitted by the plaintiff under duress from the employer - the head of the municipal administration. From the testimony of this witness contained in the protocol of the court session, all that is clear is that the plaintiff returned from the office of the head of the municipal administration in tears, saying that she had been fired, and asked to take over her cases.
The district court rightfully did not take into account the testimony of this witness about the plaintiff writing a letter of resignation against her will, since the witness did not know about this personally; she bases her testimony in this part on the words of the plaintiff.
For similar reasons, the court did not accept as evidence that the employee was forced to resign and the testimony of another interrogated witness on the plaintiff’s side.
In addition, the circumstances that with her signature the plaintiff agreed with the order of dismissal and before the actual termination of the employment contract, she did not submit an application to withdraw the resignation of her own free will, although she had a real opportunity to do so, and immediately took away the work book, according to In essence, they also express the plaintiff’s single, strong opinion on dismissal of her own free will on the day of filing the application.
The appellant’s reference to the fact that her signature in the dismissal order indicates her agreement only with clause 2 of the order (on the withholding of amounts for unworked vacation) cannot be taken into account by the judicial panel as justified, since this order does not contain her disagreement She did not state the grounds for dismissal and the specific date of termination of the employment contract. On the contrary, the plaintiff’s consent to withhold amounts for unworked vacation indicates her consent to dismissal, since by virtue of paragraph. 5 hours 2 tbsp. 137 of the Labor Code of the Russian Federation, the deduction of amounts from wages for unworked vacation days is strictly targeted and is carried out exclusively in the event of an employee’s dismissal at his own request before the end of the working year for which he has already received annual paid leave.
The plaintiff, due to her official position and the position she held, could not have been unaware of this.
The applicant’s arguments about the hasty nature of the dismissal, that is, without transferring cases to another employee, also do not indicate the court’s conclusion that there were no violations of labor laws on the part of the defendant when terminating the employment contract with the plaintiff.
Thus, the possibility of dismissing an employee without transferring cases is directly provided for by labor legislation, Art. 80 of the Labor Code of the Russian Federation does not prohibit this for the employer. At the same time, the employer’s argument that, given the actual interchangeability of workers, the transfer of cases on the merits was not required, the plaintiff has not refuted anything.
The reference in the complaint to the fact that the real reason for putting moral and psychological pressure on the plaintiff was her support in the election campaign of another candidate for the post of head of the municipal government does not indicate a cause-and-effect relationship between these events and the plaintiff being forced to write a letter of resignation of her own free will .

Person forcing dismissal

By the ruling of the Nizhny Novgorod Regional Court dated July 25, 2006 in case No. 33-3821/06, the claim for reinstatement at work was denied, since the case materials did not confirm that the employer forced the employee to submit a resignation letter of his own free will.
The judicial panel of the Nizhny Novgorod Regional Court came to the conclusion that the mere fact of conducting inspections cannot be considered as pressure from the employer on the employee subordinate to him.
As follows from the explanations given in Resolution No. 2, a necessary condition recognizing the dismissal of an employee at his own request as illegal is the fact that the employer forced the employee to submit such an application.
However, as can be seen from the case materials, the plaintiff’s employer, who has the right to hire and fire, is the chief bailiff Nizhny Novgorod region. The plaintiff did not receive any proposals regarding the dismissal of the plaintiff from the chief bailiff, which is not denied by the plaintiff himself.
Based on the circumstances established in the case, the judicial panel believes that the plaintiff did not prove that the employer forced him to submit a resignation letter of his own free will; the plaintiff was dismissed according to his will in accordance with the requirements of the law.
In addition, the court noted that the temporary removal of the plaintiff from office for the period of inspection was carried out within the framework of the law by an authorized person, and therefore cannot be regarded as putting pressure on the plaintiff when submitting an application for dismissal of his own free will.
Based on the foregoing, the judicial panel finds the plaintiff’s claims against the State Administration of the Federal Bailiff Service for the Nizhny Novgorod Region for reinstatement at work, recovery of wages for forced absence, and compensation for moral damages as unfounded and not subject to satisfaction.
From the considered court decision it follows that coercion must come from a manager vested with the authority to hire and fire a given employee. Otherwise, the dismissal cannot be considered illegal. Conversations about dismissal with other persons who do not have any authority in relation to former employee, are not considered by the courts as evidence of forced dismissal.

Thus, the employer needs to justify compliance with the established dismissal procedure and confirm this with copies of the relevant documents. We especially note that conversations about coercion, coercion from a person not vested with the authority of the employer, the presence of circumstances allowing the dismissal of an employee on other grounds are not considered by the courts as circumstances confirming the application of pressure on the employee. The onus is on the former employee to prove the existence of coercion.

Every working citizen knows what the dismissal process is and for what reasons it is possible. Most often, employees quit on their own initiative and for various reasons. But there are cases when an employer forces you to write a letter of resignation. Therefore, next we will consider what to do correctly if such a situation arises.

Criteria for forced dismissal at will

The economic situation in our country is this moment not the best, so all those who have workplace They try their best to stay on it. An exception may be situations in which the employee himself has a desire to quit due to low pay or lack of friendly relations with work colleagues, and so on. All criteria by which an employer has the right to dismiss an employee are contained in.

But in situations where an employer forces an employee to write a letter of resignation, it is necessary to object. But this raises the question of why a particular employee did not please his superiors. Because according to our legislation, namely according to the Labor Code of the Russian Federation, an employer does not have the right to dismiss employees without good reason.

Typically, such requests from employers arise when an organization is liquidated or when staffing is reduced. Accordingly, any employee will indeed, of his own free will, write a request for his dismissal from the staff of this company.

But if a specific level of management does not like a person due to personal characteristics, and not just because he does not correspond to the position he holds, then he asks to sign a document of resignation of his own free will. With such a request, almost any person gives a negative answer. And there are threats from employers that if this document is not signed in good faith, they will fire the employee under the article.

And with such a dismissal, it is difficult to find a good job with the desired salary in the future. Every employer always will find a reason according to which it is legal to fire a person.

For example, frequent testing of knowledge in a specific area of ​​work activity may begin. Where this knowledge will be assessed biasedly and the subsequent action will be dismissal under the article for inadequacy of the position held.

Therefore, many employees agree to such requests from the management administration in order to avoid problems in the future. How to avoid such incidents will be described below.

How to prove forced dismissal?

Dismissal by an employer under duress, according to our legal norms, is illegal and punishable. In order to hold the employer accountable, you must prove to the relevant authorities that illegal actions were taken against you.
Various methods can be used for proof. The most significant are:

• Audio recording. In our time of advanced technology, you can secretly record your conversation with your boss. In which he forces you to leave your workplace, and if you disagree, he threatens you;
• Video recording. You can install a camera in your office without your boss noticing. This evidence is the most powerful of all the evidence;
• Testimony of witnesses. The fact that you are being forced to resign and leave your work post against your will can be confirmed by your work colleagues.

Important: colleagues can remain anonymous to the employer.

Where to file a complaint for forced dismissal?

If you have already collected the necessary evidence of your forced dismissal by management, then you should then write about the incident to the relevant authorities.

You can submit a complaint to the following authorities:

• Labor Inspectorate;
• Prosecutor's Office;

Employees of the labor inspectorate and the prosecutor's office are responsible for monitoring the implementation of all labor standards in law. These standards are described in the Labor Code of the Russian Federation.

The court is the final authority that makes a decision on the settlement of disputes in labor activity, and also understands situations involving forced dismissal. You should also know that the decision made by the court is binding.

In order to contact any of the above authorities, you need to submit a corresponding application and attach evidence of the guilt of your superiors.

The application must indicate:

• Employer's name;
• the name of your organization;
• name of the authority to which the complaint is filed;
• description of the incident;
• description of applications that prove the incident occurred;
• date and your signature.

After contacting one of these authorities, an investigation into the incident will begin. And if the presence of illegal actions is proven, the culprit will be held accountable.

Responsibility for forced dismissal from work

When employees of the prosecutor's office or labor inspectorate conduct their independent investigation and the guilt of management is proven, the employer will be held accountable.

Punishment for forced dismissal can be under administrative and criminal law. It all depends on how the violations of labor laws were made and how much the employee suffered from this. But in any case, the employer will not be deprived of his freedom for such a violation. As judicial practice usually shows, in such cases management is awarded mandatory executive work and payment of a large fine. If the proceedings are carried out in court, then the injured party, the employee, has the right to also file for compensation for moral damage.

Arbitrage practice

Such cases often occur in judicial practice. Since many, when applying to the labor inspectorate, do not receive what they deserve from the employer. Also, employees who are forced to resign often require compensation for moral damages. And as everyone knows, such payments can only be received by a court decision.

More often court decisions judges rule in favor of employees who have suffered from violations of labor laws by employers.

Modern legislation establishes a clear, comprehensive list of grounds for dismissal. Any additions or free interpretation of the law are unacceptable.

Provides for a number of circumstances under which an employee may be dismissed at the initiative of the employer. In the case of liquidation of an enterprise or reduction in the number of its employees, problems, as a rule, do not arise. But such grounds as the candidate for dismissal’s inadequacy for the position held, gross violation or failure to fulfill his job duties, absenteeism or appearing at the workplace in a drunken state require careful verification of their authenticity and appropriate registration, otherwise the termination of the employment contract will be considered unlawful.

Insufficient qualifications of the employee, that is, the inadequacy of his position, must be confirmed by the results of certification; absenteeism, that is, absence from work for more than four hours, is duly recorded; establishment of the fact of intoxication is made only through a medical examination.

At the same time, certification requires compliance with a number of standards, in particular, a corresponding order is issued in advance, which must be submitted to the employee for review. This document should reflect the timing of certification, the procedure for its production and other essential points. In addition, from the moment an employee is recognized as unsuitable for his position, the employer has exactly two months to make a decision to dismiss him. Later it will no longer be possible to do this; you will have to be allowed to work or transferred to another position.

As for absenteeism or other violations of official regulations, dismissal in this case is one of the types of disciplinary sanctions, the imposition of which also requires compliance with a certain procedure. For example, it is possible to punish an employee who has committed a crime only within six months from the moment the fact of misconduct is established. It is also necessary to obtain an explanation from him or record his refusal to provide it. And only after this is it possible to issue a dismissal order and present it to the employee for signature.

Despite this, dismissal for negative reasons does not oblige the employer to warn the employee about this in advance, however, it turns out that getting rid of an unwanted employee is not so easy. Therefore, unscrupulous managers often prefer the path of least resistance, in other words, they practice pressure on their subordinates in order to force them to resign of their own free will.

Protection from forced dismissal

Wanting to get the coveted resignation letter from an employee, the manager can use various methods of influence. As a rule, everything depends on the personality of the employee himself: for some, a short personal conversation is enough, the end of which will be a “convincing request” to voluntarily part with his position, while in the case of others, more powerful arguments have to be made, even uttering threats. Alternatively, an alternative may be offered - dismissal of one's own free will or for negative reasons.

The most unprincipled managers often resort to outright forgery, preparing a statement on behalf of their subordinate, or, more often, offering to sign a document with an open date.

The question “who is to blame” is irrelevant in this case; it is much more important to decide what to do. Unfortunately, there is no universal means of fighting for your rights, but knowledge of some legislative norms and compliance with basic rules of behavior at work may well come in handy:

• categorical refusal to write a statement, supported by legal framework. So, the employer will be interested to know that on March 17, 2004, the Plenum Supreme Court Russia issued Resolution No. 2, according to which the dismissal of an employee on his initiative is possible only if the filing of an application was the result of his voluntary expression of will. And any falsification in the application will be easily revealed by a handwriting examination.
• impeccable adherence to labor discipline down to the smallest detail. Provocations are possible, for example, offering alcohol under a plausible pretext. You need to be prepared for this and under no circumstances be tempted to accept such an offer.
• When receiving oral instructions from management, you should require them to be in writing. This may be useful in cases where such orders are obviously impossible to implement - the employee also retains the right to submit a reasoned conclusion in writing about the impossibility of completing the task. It makes sense to record any disputes and disagreements that arise - in cases where going to court cannot be avoided, such materials will be useful as evidence of forced dismissal.

Punishment of a manager for forcing an employee to resign

As practice shows, courts quite often side with an employee if he is dismissed on the basis of an undated statement or falsification of such a statement.

It is not easy to prove that forced dismissal actually took place, but if justice prevails, an unscrupulous employer may be held administratively liable under Art. 5.27 Code of Administrative Offenses of Russia. And for the unlawful dismissal of a pregnant woman, criminal liability is provided under Art. 145 of the Criminal Code. Of course, they won’t be deprived of their freedom for this, but compulsory work and a considerable fine is provided.

The procedure for dismissal at the initiative of the employer is complex, lengthy and requires large payments.

To make dismissal easier, it is quite common practice to put pressure on an employee who needs to be fired so that he leaves himself. But not all actions of the employer are forced dismissal. If you are forced to resign of your own free will, it is important to know what to do and where to complain.

Forcing dismissal is any action by the employer aimed at forcing an employee to quit on his own initiative or.

There are two key benefits for an employer from dismissing an employee at his own request:

• The separation will pass much faster.
• There is no need to pay upon dismissal.

Let's look at the main ways in which pressure can be exerted by an employer:

1. “A convincing request” - usually, if it is decided to act in this way, the employee is informed that they have decided to fire him, after which they are offered to do this of their own free will, convincing that such a departure will look more pleasant in the workplace.
2. Threats - if requests do not have an effect, and the employee agrees to be fired, but does not want to leave “on his own”, the employer may begin to threaten to fire, as they call it “under the article”, that is, create a negative background when looking for the next employer or intentionally create poor working conditions.
3. Pressure - if threats do not help, then they can begin to come true, the employee is created into unbearable working conditions, penalties and detentions are imposed on him, he is publicly reproached. Sometimes even outright falsification of documents may be involved, sometimes with the help of other employees, causing the employee who should be fired to receive a fine and penalties. It even happens that employers resort to forgery and forge an employee’s signature.
4. Threats of physical harm and its infliction are absolutely extreme measures, which, however, are also not excluded, are threats to the life and health of the employee and his loved ones, as well as causing harm to them. In this case, we will already be talking about a crime and the Criminal Code comes into play.

How to protect yourself from employer pressure?

Often, employees do not understand at all that the employer is violating their rights when they apply pressure and threaten to fire them, and they obediently write statements, independently depriving themselves of severance pay. However, it is quite possible to protect yourself from the employer.

Although the situations may be different, there are a few tips that can be applied in most of them:

1. Set priorities and decide whether the work is worth the struggle. If the benefits are not so great that you get involved in a fight, it makes sense to actually leave without conflict.
2. If the employee decides to fight, then you need to immediately indicate to the employer that his actions are illegal, and show that you know your rights, and also clearly voice your position on refusal.
3. Don't make mistakes. Since the employer’s goal is to fire you, your task is not to give him any reason to do this, to comply with all established rules. If some management tasks seem unclear or strange, then ask for written clarification regarding them (and it is quite possible that they will be canceled if the goal was to “set up” the employee).
4. Be prepared for provocations - first of all, it is important to look for witnesses if trouble arises. Various options are possible, such as being late due to the fact that the employer is in last moment changed the time of the meeting - and then it is important that there are witnesses who confirm that it was not the fault of the employee.

It is clear that in any case such actions on the part of the employer interfere with work. Then you need to take your own actions. There are different options for action if you are thus forced to resign of your own free will:

• , if you work in a large company.
• Seek dismissal with compensation.
• Go to court, presenting facts of violations.

Where to file a complaint?

Before the trial, you can contact the labor inspectorate by filing a complaint about forced dismissal.

As a result, an inspection and conversation with the employer will be carried out, which may cool his ardor. In addition, the prosecutor's office may be involved in the issue if violations are recorded, and then it may be decided that they should be eliminated. In general, if your conflict with your employer has become truly unbearable, do not hesitate to attract the attention of regulatory authorities to the matter and thereby complicate his life, just as he complicates yours. Also, the labor inspectorate can help with filing a claim in court if dismissal in violation of standards has already taken place.

What to do if you are fired from your job?

It is necessary to sue, and this requires evidence of coercion.

Written threats from the employer, voice recordings, and testimony of other employees are suitable as evidence. If you feel unwell, which allows you to put pressure on an employee, medical certificates are important (in the case of judicial practice we analyzed, reference was made to it). Thus, coercion to resign at one's own request can be proven, but it is not always easy.

Going to court

A lawsuit can be filed within a month, starting from the day the dismissal order was issued or the work record book was received. It is not subject to duty. If the application is signed by the employee himself, it will be more difficult to prove the violation, but it is still possible; then it is necessary to prove the fact of pressure, forcing the employee to resign.

If the employer's guilt is proven, he will be held liable.

This is usually an administrative liability in accordance with Article 27.5 of the Administrative Code, that is, a fine and/or deprivation of the right to hold positions for up to three years upon reinstatement of the employee and payment of compensation. In some cases, that is, when committing illegal acts or applying measures psychological impact, a criminal case may be opened.

Arbitrage practice

The legal practice is the claim of Mr. S. against IDGC of Center PJSC. Let us immediately make a reservation that the matter is very voluminous, therefore we present it in an abbreviated form, with full version you can find it here.

The plaintiff demanded to be reinstated in his position, to recover the average salary for the period of absenteeism, and also to recover 100 thousand rubles for moral damage.

As stated in the lawsuit and confirmed by the plaintiff at the meeting, representatives of the employer, after listening to the conversation between the plaintiff and his wife on May 2, began demanding that he resign. As a result, the plaintiff needed ambulance. After that, while under the influence of drugs, he wrote a statement, but warned his colleagues that there was no need to hand it over. However, then, while in the hospital, I found out that it had been accepted. On May 8 I wrote a statement about his recall, but on May 10 I received documents about his dismissal.

According to the plaintiff, his illness was taken advantage of. He noted that he did not intend to quit, and in principle could not have such an intention, since he has two dependent children and his wife does not work. As a result of his dismissal, his health worsened further.

After examining the case materials, the court found that S. had written a statement, as well as a subsequent request to withdraw it. Based on the application, the enterprise prepared a dismissal order dated May 10. The plaintiff was undergoing treatment from the 5th to the 18th. Thus, the key circumstances in the case became those that could confirm or refute that the employee did not express a desire to resign by agreement of the parties. Witnesses were called to identify them.

As a result, the court came to the conclusion that there were no grounds for terminating the contract, since the plaintiff did not intend to submit his letter of resignation to his boss. Having left the statement on the table, he nevertheless did not state that it should be handed over; on the contrary, he told several employees that this should not be done. One witness confirmed this directly, another indirectly.

The court found it proven that S. intended to continue working in his place, and the employer’s arguments about reaching an agreement between the parties were refuted. The dismissal was declared illegal by the court and the plaintiff's demands for reinstatement in his previous position were subject to satisfaction. The court also ordered to recover wages for the period of forced absence and compensation for moral damage in the amount of 20 thousand rubles.

Labor law in the Russian Federation, as in other countries, largely focuses on protecting the interests of the less protected party - the hired employee. It is almost impossible for an employer to fire a person without any reason other than his own intention. And then means are used to force the employee to agree to write a statement “of his own free will,” even if in fact he does not have such a desire.

In some situations, under such pressure, the application may be challenged and declared invalid. Let's look at the most common controversial situations related to forced dismissal, and we will explain how you can protect yourself from this.

“Forced dismissal” in the language of law

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

Coercion to resign - actions of the employer aimed at influencing the employee to write a letter of resignation or draw up an agreement to terminate the employment contract.

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

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

Popular methods of coercion

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

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

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

Sometimes it's better to quit yourself

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

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

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

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

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

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

What is the penalty for coercion?

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

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

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

What to do if you are forced to leave

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

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

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

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

What will serve as evidence of coercion?

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

• maximum documentation(for example, if you need time off, you should not rely on verbal permission, but submit a written request and get the “I don’t object” mark on it);
• video and audio recordings (their authenticity must be proven);
• witness statements.

FOR YOUR INFORMATION! The only almost indisputable evidence of forced resignation is the hiring of another employee on the day the plaintiff wrote the application: with a “real” dismissal for such short term Finding the right specialist is unlikely.