Compulsion to resign “at one’s own request.” Dismissal under pressure and company mistakes

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:

a categorical refusal to write an application, supported by the legal framework. Thus, the employer will be interested to know that on March 17, 2004, the Plenum of the Supreme Court of Russia issued Resolution No. 2, according to which the dismissal of an employee on his initiative is possible only if the filing of the 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, the 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 will not be deprived of their freedom for this, but compulsory labor and a considerable fine are guaranteed.

In the Labor Code forced dismissal is not subject to special provisions, and the employer can use many tricks to force a person quit . How to protect your interests?

In what cases can one be forced to resign?

People often do not know their rights well or are simply afraid to go against the system. But if, finding yourself in a similar situation, dismissed will not be confused and will collect enough evidence that illegal and forced dismissal , he will be able to retain his position or receive monetary compensation.

Reasons why an employer forces an employee to write an application voluntary dismissal , most often lie in management’s desire to save money or time. coerce employee to be dismissed may in the following situations:

Cuts are being made state or liquidation of the enterprise.
The employee commits systematic or serious violations of labor regulations.
The employee's qualifications do not correspond to the position he occupies.
Personal hostility or desire to place “your” person in a position.

By law, compulsion to resign at one's own request on the part of the employer is unacceptable; the definition itself initially assumes only the desire of the dismissed person to terminate contract

How to recognize forced dismissal?

If a person is satisfied with his position and salary, then any attempts to force him to give up this position fit the definition of “ forced dismissal " An employer can apply pressure in the following ways:

Report that the quality of work is not satisfactory and offer to resign on your own.
Threaten to fire under the article if the employee does not agree to do this himself, or threaten with physical violence.
Find fault and fine for the slightest offense, deprive of bonuses and so on.
Openly violate the rights of an employee: reduce his salary, demand that work be done overtime, and the like.
Issue documents retroactively or forge the signature of an unwanted employee.

According to Article 81 of the Labor Code of the Russian Federation, in order to dismiss an employee against his will, not only good reasons are needed, but also compliance with the procedure for terminating the contract. The employee must be notified in writing of the decision within 2 to 6 months, depending on the reason.

In addition, in some cases compensation payments are due. Here are unscrupulous leaders and forced to resign under Article 77 of the Labor Code, which contains general grounds for dismissal from office.

How to legally protect yourself from management pressure?

Anyone can face the situation forced dismissals . In such cases, you should be prepared to take the following actions:

Inform management about your awareness of labor law and the illegality of what is happening.
Strictly follow the working Request schedules and instructions in writing so that management does not have a reason to find fault.
If the employer creates provocative situations in order to discredit the employee, make sure that there are witnesses who can speak in court.
If there is such an opportunity, it makes sense to think about transferring to another division of the company.
If the current job is not very important, forced dismissal by agreement of the parties You can turn this to your advantage by insisting on monetary compensation.
File a statement of claim in court, providing evidence of violations by the employer.

Knowing your rights, you can solve such a problem yourself or seek help from a lawyer.

Nuance! Having discovered the knowledge of the intricacies of the law and the determination of the employee, management usually prefers to resolve the issue in a peaceful manner that suits both parties.

Where to go, and what evidence of coercion do you need to have?

Achieving justice in case of illegal dismissal is quite difficult. But, knowing what evidence will be accepted by the court, you can defend your rights. When contacting the labor inspectorate or the prosecutor's office before signing the resignation letter, the relevant services will conduct an inspection and issue the employer a warning about the illegality of his actions. If the application has already been signed, but the person does not want to quit, there are three solutions:

write a complaint to the labor inspectorate;
contact the prosecutor's office;
file a claim in court.

The period within which you must contact the authorities is limited to one month after termination of the contract.

Sample application to the labor inspectorate.

The labor inspectorate or prosecutor's office will check the data and, if declared violations are detected, will refer the case to court. In order to confirm in court the fact of forced resignation from work, the following evidence is needed:

Written evidence or audio recordings of disputes, disagreements and threats from the administration of the enterprise.
Copies of orders indicating forced resignation: deprivation of bonuses, fines, demotion, and so on.
Testimony of people who saw and heard threats and demands to vacate their positions.

If, immediately after termination of the employment contract, another person is hired to fill the vacated position, this may serve as evidence of the employer's prior knowledge of the vacancy.

Attention! Difficult financial situation and other unfavorable conditions resulting from job loss can also indirectly confirm what happened compulsion to resign.

How does pressure on an employee threaten an employer from a legal point of view?

Of course, for coercing an employee The management will not face a prison sentence upon dismissal, but they will still have to answer for violations of rights. Depending on the severity of the violations, the following types of punishments are applied:

Disciplinary sanctions according to labor law standards.
In accordance with administrative law, the imposition of a fine and financial compensation to the victim with subsequent reinstatement (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).
If management is forced to dismiss a pregnant employee, management will incur criminal liability ranging from forced labor to suspension of business activities (Article 145 of the Criminal Code of the Russian Federation).

If forgery in documents or damage to health from psychological or physical pressure is detected, criminal proceedings may also be initiated against the perpetrators.

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 at the moment is not the best, so all those who have a job are trying in every possible way to stay in 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 will always find a reason why 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 according to the 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 deals with situations of 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 the management is awarded mandatory enforcement work and the 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.

Most often, court decisions are made by judges in favor of employees who have suffered from violations of labor laws by employers.

Reinstatement after voluntary dismissal is one of the most likely consequences of violating the procedure for terminating an employment contract established by the Labor Code of the Russian Federation. In the material below, we will consider the procedure for challenging dismissal and judicial practice in such cases.

Forced or illegal dismissal - a regulatory framework for challenging

Constitution of the Russian Federation in Art. 37 recognized the right of every citizen to work and free disposal of his abilities. Guided by Art. 77 of the Labor Code of the Russian Federation, an employee may at any time voluntarily, of his own free will, terminate his employment relationship with the employer in the manner prescribed by law. In addition to the Labor Code, there are other regulatory acts complementing it that regulate labor activity and the dismissal of certain categories of workers:

Law “On the State Civil Service of the Russian Federation” dated July 27, 2004 No. 79-FZ,
explanatory documents of the Plenums of the Supreme Court of the Russian Federation, Rostrud, etc.

However, in practice, there are often various violations of this procedure that make dismissal illegal, starting from purely procedural issues (for example, indicating the wrong date of dismissal in an order) and ending with forcing employees to terminate the employment contract under pain of dismissal under the article (that is, forced dismissal) . In such cases, the provisions of Chapter 60 of the Labor Code of the Russian Federation, which is entirely devoted to the resolution of labor disputes, and the Code of Civil Procedure of the Russian Federation are applied regarding the procedure for considering the case in court.

How to challenge voluntary dismissal?

Challenging any illegal dismissal, including termination of an employment contract at the request of the employee, occurs in the manner prescribed by Ch. 60 Labor Code of the Russian Federation. So, according to Art. 381, the parties to a labor dispute can be not only actual employees and the employer, but also persons who were previously in an employment relationship, which means that one can be fully guided by the above chapter of the Labor Code of the Russian Federation even after dismissal. At the same time, Art. 391 established an exclusively judicial procedure for considering cases of reinstatement of an illegally dismissed employee.

Challenging the termination of employment relations with certain categories of employees may be regulated by separate regulations that do not contradict the Labor Code of the Russian Federation. For example, paragraph 14 of Art. 70 of Law No. 79-FZ determined that the dismissal of a civil servant is contested in court, regardless of the grounds for termination of the contract.

In Art. 22 of the Code of Civil Procedure of the Russian Federation and the resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by courts...” dated March 17, 2004 No. 2, the jurisdiction and jurisdiction of such cases is clarified: their consideration falls within the competence of district (city) courts of general jurisdiction. When filing a statement of claim, the plaintiff is exempt from paying state duty on the basis of Art. 393 of the Labor Code of the Russian Federation and clause 1 of Art. 333.36 Tax Code of the Russian Federation.

Art. 392 of the Labor Code of the Russian Federation gives the employee a month to appeal to the court to challenge dismissal at his own request. The period begins to run from the date of receipt of a copy of the order of dismissal at one's own request or the work record book. The same article allows for the restoration of the statute of limitations in such cases. For example, this is possible if the employee was in a hospital for treatment, was called up for military training, etc. Simply put, if there are good reasons, the plaintiff may be given another month to protect his violated right.

Pre-trial settlement

The law does not provide for mandatory pre-trial settlement of disputes regarding illegal dismissal at will, but sometimes such measures can give a positive result and help avoid lengthy litigation. In particular, an employee can write a letter to the employer demanding reinstatement, justifying the illegality of dismissal at his own request, and also contact the State Labor Inspectorate. The inspection itself cannot reinstate an illegally or involuntarily dismissed employee, nor change the grounds for dismissal specified in the work book, but its employees may well provide legal assistance or conduct a conversation with the employer.

Legal consequences of challenging illegal dismissal

If the fact of illegal dismissal at one’s own request is recognized, in accordance with Art. 394 Labor Code of the Russian Federation:

the employee, by court decision, is reinstated in his previous position at his previous place of work;
the dismissed person is paid monetary compensation for the entire period of forced absence, calculated on the basis of average earnings in accordance with clause 4 of the regulation on the specifics of calculating average wages, approved by Decree of the Government of the Russian Federation dated December 24, 2007 No. 922;
in some cases, the employee is also compensated for moral damage;
An entry is made in the employee’s work book stating another reason for dismissal if the organization was liquidated.

Such decisions are subject to immediate execution on the basis of Art. 396 Labor Code of the Russian Federation. Otherwise, the employee must be compensated for the entire delay in execution of the decision in the form of average earnings for the additional time of forced absence.

What is illegal dismissal?

As one of the grounds for termination of an employment contract and termination of relations with the employer, Art. 77 and 80 of the Labor Code of the Russian Federation determined the employee’s own initiative. The procedure for expressing such an initiative has also been determined.

So, on the basis of Art. 80 of the Labor Code of the Russian Federation, the law “On Electronic Signature” dated 04/06/2011 No. 63-FZ, the explanations of Rostrud in the letter “On the procedure for dismissal...” dated 09/05/2006 No. 1551-6 and some other acts, we can conclude what conditions are mandatory must be observed in order to avoid challenging the legality of dismissal at will. That is, conditions, if violated, we can safely say that termination of the employment contract is illegal.

In particular, we are talking about the form and content of the resignation letter. A resignation letter is a document that must be certified by the employee’s signature. The signature can be either handwritten or, on the basis of Art. 6 of Law No. 63-FZ, electronic. The application can be submitted personally to an employee of the HR department, in the form of a postal item or an email sent by corporate mail. No verbal assurances shall be considered legal grounds for dismissal.

The wording of the expression of will itself is no less important. It must be clear and unambiguous. “I ask you to fire me”, “I ask you to terminate my employment contract” - these expressions clearly express the essence of the statement. Otherwise, the employee may later claim that he simply wanted to take administrative leave or transfer to another position.

When notifying the employer of his dismissal, the employee must indicate the date on which the employment relationship will be terminated. It is important to indicate it correctly. So, despite its popularity, the wording “I’m sorry to dismiss you from…” is not the most correct option, since it can be interpreted in two ways and, as a result, lead to difficulties in determining the date of the employee’s last working day. In this case, the date must be indicated by the employee himself; a manager's visa changing it is obviously illegal, since it violates the meaning of the employee's own will.

Don't know your rights?

What kind of dismissal can be considered forced?

The voluntariness of dismissal at the employee’s own request is the most important condition for recognition of its legality. That is why forced termination of an employment contract is considered a case of illegal dismissal. So, sometimes a statement of one’s own free will is written as a result of hints or open instructions from the employer or threats of dismissal “under the article,” that is, for negative reasons. In this case, the actual circumstances do not correspond to the wording of the dismissal and the employee is left to either challenge the legality of the dismissal or demand a change in the wording. This is especially true for pregnant women who, according to Art. 261 of the Labor Code of the Russian Federation cannot be dismissed at the initiative of the employer, with the exception of cases of liquidation of the enterprise. At the same time, the Labor Code does not prohibit dismissing them at will.

Any form of pressure on an employee to force him to write a letter of resignation, be it outright threats or hints of demotion in position or salary in case of refusal to terminate the employment contract, can become a reason for reinstatement. However, it is worth saying right away that it is extremely difficult to prove forced dismissal if the employee did not initially collect supporting materials, since on the basis of subsection. “a” clause 22 of the above-mentioned resolution of the Plenum of the Supreme Court of the Russian Federation No. 2, the burden of proving forced dismissal rests with the employee.

Challenging illegal and forced voluntary dismissal. Arbitrage practice

Russia is not one of the countries with a case law system, that is, judicial practice is not a source of law. Nevertheless, the position of the courts on the issues of reinstatement of employees illegally dismissed at their own request is very indicative. Having analyzed court decisions in this area, you can find a lot of similar cases and with a high probability predict the prospects of almost any dispute about dismissal, as well as highlight the main types of violations of the procedure for dismissal at will, most often committed by each of the parties, and understand the position of the judges on them.

Violation of the procedure for filing an application at your own request

The first step to terminating the employment relationship at the employee’s initiative is to write a letter of resignation of his own free will. Labor Code of the Russian Federation in Art. 80 indicates that the employer must be notified in writing by the employee of the upcoming dismissal. A verbal warning cannot be considered a basis for terminating an employment contract at will.

This norm was also applied in the appeal ruling of the Moscow City Court dated 06.06.2016 No. 33-22057/2016. The complaint of Glavmosstroy-Region LLC against the decision of the Khamovnichesky District Court of Moscow was considered, which decided to cancel the order of dismissal at the employee’s own request, restore him to his previous position, and also recover from the defendant the average salary for the period of forced absence, compensation for moral damages and legal costs.

According to the defendant's statements, the plaintiff warned him of his dismissal via a telephone call, after which he promised to send a statement by e-mail, which he ultimately did not do. The plaintiff stated that he did not plan to quit and did not write a statement. The appellate court supported the position of the district court and left the decision unchanged.

Separately, it is worth noting cases where an employee is forced to write 2 applications at once during employment: about hiring and about dismissal at his own request with an open date. This practice is illegal, but such facts have to be confirmed by experts.

One of these cases became the basis for the appeal ruling of the Moscow City Court dated June 4, 2012 in case No. 11-8888. The court upheld the decision of the court of first instance to reinstate the employee to his previous place of work, based on the results of a handwriting examination, which confirmed the fact that the date of drawing up the application was not in the employee’s handwriting.

Reinstatement of employees who withdrew applications

Article 80 of the Labor Code of the Russian Federation gives the employee the right to withdraw his resignation at any time until the last day of work. You can even withdraw your application by post (but no later than the end of working hours on the last day of dismissal), and the date of receipt of the application by the employer is not important.

Thus, the Moscow City Court considered case No. 33-252/2016 and issued an appeal ruling dated January 12, 2016 on a complaint against the decision of the court of first instance to refuse to reinstate an employee dismissed at his own request, who sent a telegram to withdraw his application after familiarizing himself with the dismissal order, receipt of payment and end of working hours. The appellate instance dismissed the complaint.

Violations relating to the date of dismissal

Often, the basis for reinstatement of an employee to his previous position is violation of the terms of dismissal. As a general rule, this is 2 weeks from the date of notification to the employer. The exceptions mentioned in Art. 71, 296 and 292 of the Labor Code of the Russian Federation apply to seasonal workers, probationary employees and fixed-term workers with a contract concluded for less than 2 months.

Separately, cases of dismissal without work and dismissal of managers are considered, for which the notice period for dismissal is, according to Art. 280 Labor Code of the Russian Federation, 1 month. Ignoring these features causes the employee to be reinstated or the date of dismissal to be changed with subsequent payment for forced absence.

An example of such a decision is the appeal ruling of the Lipetsk District Court dated January 13, 2016 No. 33-59/2016, when the employer dismissed a managerial employee from his position before the expiration of a month, thereby violating his right to work. The panel supported the decision of the court of first instance in terms of payment of material compensation, overturned it in terms of refusing to recognize the illegality of dismissal and obliged the employer not only to change the date of dismissal in the work book, but also to pay for forced absence.

About the application for forced dismissal

Most of the lawsuits challenging illegal dismissal at will are related precisely to coercion to write a statement. The burden of proof in this case falls on the plaintiff, which in itself is quite difficult. You need to collect evidence in advance, for example, write a memo addressed to the manager about coercion - in court it will serve as evidence that the employee was under pressure. Otherwise, the claim will be denied.

Most of the claims in such cases come to the courts from pregnant women. Employers mistakenly believe that they can manage to fire an employee who has informed about pregnancy verbally, i.e., without providing certificates. However, judicial practice shows something slightly different.

So, based on Part 3 of Art. 11 of the Code of Civil Procedure of the Russian Federation and applying the norms of the International Labor Organization Convention No. 183 and Art. 261 of the Labor Code of the Russian Federation, the Moscow City Court issued an appeal ruling dated October 22, 2015 and overturned the decision of the Khoroshevsky District Court of Moscow in case No. 33-35618/2015, which refused to recognize the illegality of the plaintiff’s dismissal, ordered the employer to reinstate a voluntarily dismissed employee who was able submit a certificate of pregnancy only the next day after dismissal.

Another mistake an employer makes is accepting statements written by proxy. TC does not provide such an opportunity.

This position was reflected in the cassation ruling of the Moscow City Court dated February 14, 2013 No. 4g/5-595/13, which upheld the decisions of the courts of the first and second instances, which recognized the illegality of dismissal by proxy. The ruling of the Moscow City Court dated March 4, 2011 in case No. 33-5838 is similar. In addition, the cassation ruling of the St. Petersburg City Court dated November 2, 2011 No. 33-16328/2011 supported the position of the court of first instance, which recognized the dismissal by proxy as forced, since the application for voluntary dismissal was written by the employee’s wife, who feared her husband’s dismissal on defamatory grounds.

In conclusion, it remains to be said that most illegal dismissals at will involve coercion. However, employees, not being able to prove such facts, usually look for other grounds for declaring their dismissal illegal.

Under forced dismissal It is customary to understand the actions of the employer, which are aimed at forcing the employee to write a statement on his own initiative or to complete this process by mutual agreement of the parties (draw up an appropriate agreement).

The head of the company does not have the right to groundlessly announce dismissal to an employee and immediately issue him a work book. Even if we are talking about forced dismissal at will, the employer is obliged to focus on the grounds determined by labor legislation (Article 81 of the Labor Code of the Russian Federation).

Liquidation of a company or reduction of its staff;
Inconsistency of the candidate with the position held;
Gross violation of labor regulations, etc.

It is important to add that after the company’s management recognizes an employee as unsuitable for the position held, two months must pass, and after absenteeism or other violation - six months. Only after this can the dismissal procedure be carried out. As for dismissal due to a reduction in activity or liquidation of the company, the obligatory condition here is the payment of severance pay.

Since not all employers are ready to wait such a long time, many of them begin to put pressure on “undesirable” employees so that they leave the organization of their own free will. Is this behavior legal? How can an employee protect himself? Read the answers to these many other questions in this article.

Why and in what ways are workers forced to resign?

As defined above, the employer receives many benefits by forcing an employee to resign, including:

You can get rid of an employee very quickly;
The dismissed person will not need to pay any severance pay.

However, terminating an employment contract with an employee is in fact not at all easy. The employer must support its decision with compelling reasons that are prescribed in labor legislation. In this case, each of the grounds will have its own dismissal procedure.

In what ways can an employer put pressure on an employee to write a statement of his own free will?

We kindly request. The employee is notified of the decision to dismiss him and is insisted that he write a statement of his own free will.
Blackmail. The manager forces the specialist to write a statement, threatening otherwise to fire him under the article.
Pressure. The employee is subject to fines, detentions, and public reprimand even for minor offenses (leaving early for lunch, being slightly late, etc.).
Rights violation. In this case, we are talking about deprivation of wages, coercion to perform overtime work, and threats of physical violence.

In some cases, employers even resort to outright forgery: they write an application on behalf of the employee and forge his signature.

All four options for the employer’s actions can be considered illegal, since to one degree or another they violate the rights of the employee. If such facts are revealed, an administrative or criminal case will be initiated against the employing company.

How to protect yourself from being forced to resign?

No employee is protected from the above situations. Many employees of organizations do not even know that their rights are being violated, they submit to the employer’s threats and write a letter of resignation, thereby depriving themselves of legal payments and the right to work in the organization until they find a new job.

What should a specialist do who has become a “victim” of being forced to resign? Despite the fact that all situations are purely individual, there are several practical tips:

Prioritization. The employee must clearly decide for himself how important his current work and payments from his employer are to him. It is possible that the time and effort spent on analyzing this conflict situation is not commensurate with the magnitude of the result. If a dispute with an employer does not promise benefits, it makes sense to write a statement and leave the organization on your own;
Definition of position. An employee who is forced to write a statement of his own free will must clearly indicate to the employer the fact that he is aware of the illegality of his actions and his rights, citing the labor legislation of the Russian Federation.
Avoiding mistakes. If an employee of an organization is afraid of losing his job, but is under the threat of coercion, then he should not give the employer reasons to terminate the employment contract. In this regard, it is necessary to strictly follow the labor regulations, request in writing from management an explanation of the tasks received, and report in writing on the impossibility of implementing certain activities.
Readiness for provocations. The employer himself can provoke the employee to drink alcohol, provide conditions for being late by changing the arrival time of the service bus, or prevent him from working due to the lack of any medical certificate. In these types of incidents, it is important to promptly find witnesses who will help the employee defend his interests in court.

What to do if the actions listed above literally interfere with your work? In such a situation, it is extremely important for the employee not to lose the presence of calm and act:

Firstly, if the company is large, then it makes sense to transfer to another division;
Secondly, you should not immediately agree to dismissal of your own free will - you can achieve termination of the contract by agreement of the parties with the payment of compensation or by reducing staff with the provision of severance pay;
Thirdly, submit a statement of claim to the court presenting the facts of violation of your rights (if forced dismissal took place orally, then it is advisable to record the conversation with the employer on a voice recorder).

At the initial stage, you can make a categorical refusal to terminate the employment relationship, citing the fact that there is an article for forced dismissal (Article 5.27 of the Code of Administrative Offenses of the Russian Federation or Article 145 of the Criminal Code of the Russian Federation). In addition, termination of an employment contract at the request of the employee must be in the form of a voluntary expression of the latter’s will (Resolution of the Armed Forces of the Russian Federation No. 2 of March 17, 2004).

How to prove forced dismissal and what are the consequences for the employer?

In judicial practice, forced dismissal at one's own request, there are negligibly few precedents regarding forced dismissal. What is the reason that employers go unpunished?

It is difficult for the employee to provide evidence. Since the employer conducts most conversations with an “undesirable” employee orally, the latter does not have any material evidence in his hands. In the best case, a complaint about forced dismissal is supported only by a voice recording. However, it does not have legal force, and it is quite difficult to prove its authenticity.
Checks do not give results. Such measures in the company, at the request of the employee, can be carried out by the prosecutor's office or the Federal Labor Inspectorate. Since a specialist can write a statement of his own free will at any time, it is almost impossible to identify a violation.
The warning is a speculative measure. As a rule, if an employee has not yet been fired, but has already contacted the prosecutor’s office regarding the fact that he was forced to terminate the employment contract, then the state authority can issue a warning to the employer. However, such a measure does not have any legal consequences, and therefore is unlikely to help protect the employee.
Lack of staff awareness. Many employees agree, under pressure from the employer, to write a statement of their own free will, because they do not even imagine that their rights in this case can be protected.

It is important to understand that when filing a claim, you will need to submit not only a statement written under pressure from the employer, but also other evidence of the fact of coercion. Otherwise, his claims will be considered unfounded.

In light of the above circumstances, a completely logical question arises: how to prove coercion to dismiss? To answer this, it makes sense to review the legislative acts relating to this issue.

Firstly, if the plaintiff indicates that he was forced to write a letter of resignation, then it is important to support this point with some evidence, including written threats from the employer, witness testimony, a voice recording of the conversation, etc. (Articles 55-56 Code of Civil Procedure of the Russian Federation);
Secondly, the evidence presented must be thorough - the testimony of witnesses should not be based on guesswork, the voice recorder must be of good quality, etc.

The strength of the evidence is important. Thus, in some cases, employees submit to the court an expert report on their personality, which proves their potential to become a victim of coercion, and also demonstrates their unfavorable psycho-emotional state provoked by dismissal; such paper will not be recognized as solid evidence by the court.

It should be added that the employer may have grounds for dismissing an employee on his own initiative (Article 81 of the Labor Code of the Russian Federation). If, at the same time, the employee wrote statements of his own free will, this is also not an indicator of his coercion: he could have done this himself, not wanting to have “unseemly” articles in the work book.

At the same time, the court recognizes the employer’s guilt if, on the day the employee writes the application, he hires a new person in his place. The fact is that the likelihood of finding the right specialist so quickly is extremely low.

If this makes it possible to prove the employer’s guilt, then the court will readily side with the employee if he was forced to write statements or falsified this important document.

Forcing dismissal, as already defined earlier, is an illegal act. If guilt is identified and proven, the employer will be held accountable:

In the general case - administrative: fine, reinstatement of the employee, payment of compensation to him (Article 5.27 of the Administrative Code of the Russian Federation);
If a pregnant woman was fired, she will be subject to criminal liability: compulsory work, suspension of activities (Article 145 of the Criminal Code of the Russian Federation).

A criminal case can also be initiated if measures of serious psychological pressure and actual illegal actions were used against the employee.

Forced dismissal is a common type of violation of employee rights. By forcing specialists to write statements of their own free will, the employer protects itself from long waits for the day of dismissal and the financial costs associated with paying severance pay. However, even if the employee was forced to terminate the employment contract, within two weeks he has every right to withdraw his application and return to work.