Forcing an employee to resign at his own request.

Chercher 23.01.2021

Accounting and taxes

Dismissal from a position without cause, only because the employee and his manager “do not get along” is, unfortunately, not uncommon. The norms of the Labor Code of Russia provide for the possibility of an employer to expel an employee who grossly violates labor discipline and does not fulfill his or her duties. functional responsibilities. Otherwise, stop labor Relations is possible only by mutual consent of the counterparties. Therefore, unscrupulous managers force people to resign due to at will a colleague they dislike.

Methods of influence

Having no legal grounds for expulsion, the manager tries to create conditions so that the subordinate wants to leave on his own. Forcing dismissal is carried out by the interested boss using the following methods:

“Commanding tone” for all requests, even minor ones;
Gradually imposing on the employee the idea of leaving;
Constant nagging, allowing the worker to understand his own uselessness, unsuitability, even if the work is done efficiently.

Often, a subordinate who has fallen out of favor begins to suspect that he is being forced to resign of his own free will. However, the boss may hide his true motives, justifying his behavior with the desire to get the best results. What to do if you encounter such actions? The main thing is to find out the employer's hidden motives. This can be done by paying attention to two indicators:

The direction of conversations between a manager and a subordinate. Boss motivating subordinate to career growth, will not hint at his dismissal;
Impact option. Conversations for improvement professional indicators are of a softer nature, and stimulate the desire to work more, rather than leave the profession.

In addition to ambiguous “subtle” hints, the manager may also resort to crude methods of forcing people to resign at their own request. The law directly interprets such actions as a violation of the norms of the Labor Code and the Civil Code of the Russian Federation. These include:

Intimidation. In a harsh form, the administration of the enterprise informs the worker about the termination of the employment agreement. And, without giving me time to come to my senses, he offers to write a statement. Not every employee is able to withstand such pressure, even when he does not want to quit;
Blackmail. If an employee does not want to write a letter of resignation, the administration may threaten removal “under the article” or worsening working conditions;
Manipulation of facts. To do this, the employer can attract colleagues of the dismissed person, with the help of whom he will try to create conditions for legal deduction;
Use of material or physical pressure (threat of such violence). This is an extreme measure of influence on an employee. Typically, outsiders who are not affiliated with the company are brought in to carry out threats. This is done to avoid evidence of the company’s involvement in the worker’s problems.

The acts described in the fourth paragraph fall within the scope of the offense provided for in the Criminal Code of the Russian Federation and may result in criminal liability for the owner of the enterprise.

Contacting the Labor Inspectorate

If the employer decides to get rid of the subordinate by any means, it is useless to conduct constructive negotiations. You can return your position, respect, and also receive compensation for moral damage caused by contacting state organizations on the protection of labor rights. For example, to the labor inspectorate.

To do this, you should submit an application detailing the facts of coercion with a request for reinstatement at work and payment of the material and moral damage suffered.

The inspector will inspect the organization within a month, and you will receive a reasoned decision. If the decision is in your favor, you will have money and work again. Otherwise, you can protect your rights in judicial procedure.

The administration's desire alone is not enough to cause dismissal. If the employee does not sign the application, the position will remain with him for the duration of the inspections.

Pressure confirmation

Unfortunately, arbitrage practice There are not many precedents for making decisions on punishing employers for forcing people to leave. And there are a number of reasons for this:

Lack of evidence. The majority of conversations aimed at removing an employee are conducted verbally and behind closed doors by management. And the illegally dismissed subordinate does not know how to prove the fact of pressure. The best he can get is a voice recorder. However, for the court such a record is not an argument;
Ineffectiveness of audits. How to prove a violation if there are no restrictions on dismissing an employee on his own initiative, and the reasons for dismissal at his own request are not indicated in the application?
A warning is not an effective measure of influence on the director of a company. Similar warnings are issued by labor inspectors during preventive audits. The lack of legal consequences for the employer (organization administration) does not help in protecting the rights of the worker;
Ignorance of your labor rights. Often, the organization’s personnel are not familiar with the norms of the Labor Code of the Russian Federation and any instruction from the employer is perceived as truth.

To win a trial, one statement written under pressure is not enough. In court, you will have to prove that your boss forced you to resign of your own free will. Otherwise, the subordinate’s claims will be considered unfounded.

Evidence presented to the court must meet the following criteria:

Do not raise doubts about authenticity (dictaphone recording good quality, written threats from the boss, direct witnesses to the conversations). This criterion is enshrined in Articles 55-56 of the Code of Civil Procedure of Russia;
Be thorough. The court will not take into account the testimony of witnesses based on their conclusions, a psychological assessment of the personality of the dismissed employee, or the existence of grounds for dismissal for violation labor discipline under Article 81 of the Labor Code of Russia. But hiring another person on the day the applicant was fired can become important evidence.

If it is possible to prove the employer’s guilt, the court will help the unfairly dismissed subordinate restore his labor rights.

Employer's liability

Violation of the Labor Code of Russia by the employer, namely, forcing a subordinate to leave on his own initiative, provides for administrative or criminal liability:

Article 5.27 of the Administrative Code of Russia provides for penalties, reinstatement of the worker at the enterprise, repayment of moral and material damage;
Article 145 of the Criminal Code of the Russian Federation provides for more severe consequences for unscrupulous management - public Works or imprisonment (up to 3 years), as well as suspension of the company's activities. Such liability is provided for an offense involving a pregnant woman.

Criminal liability of the boss is possible if facts of the use of psychological or physical influence that fall within the scope of a criminal offense are proven.

A professional lawyer can help you achieve justice, be reinstated in your position, and receive adequate compensation. He will draw up an appeal to the court and will accompany you at all stages of the trial.

Forcing people to leave on their own initiative is a common violation of Russian employers. This way, they avoid having to wait until the day of dismissal and pay severance pay. Any employee facing such a problem should know that within fourteen days he has the right to withdraw his resignation letter and continue working.

Employees often encounter the problem of forced dismissal, but many do not protect their rights due to ignorance or unwillingness to initiate proceedings. The rights of employees are protected by labor legislation, and for compulsory actions of the employer, serious consequences can be expected, including criminal liability.

General characteristics of the concept

Some employers force their employees to resign by writing a statement on their own initiative. The purpose of coercion is to quickly get rid of an unwanted employee, relieve oneself of responsibility for dismissal, and failure to pay the benefits due upon dismissal (reduction).

The legislative framework

Employee rights are reflected in the Labor Code. A separate concept illegal dismissal it does not address this, but section 394 provides for the rights of the employee in such a case and the possible outcome of the proceedings.

Coercion is possible due to discrimination, which is prohibited in accordance with Article 3 of the document.

In accordance with the Resolution of the Plenum Supreme Court RF, action employment contract can be terminated only with the voluntary expression of the employee’s will. If an employee is forced to terminate his employment relationship, then these circumstances must be verified, but the fact of coercion must be proven.

Options for liability for violation of labor laws are reflected in the Code of Administrative Offenses of the Russian Federation (Article 5.27). If a pregnant woman or a woman with a child under 3 years of age was injured, then liability is provided for in the Criminal Code (Article 145).

Common methods of forcing dismissal

Compulsory actions of the employer can be carried out in different forms:

A verbal recommendation or persistent request.
Threats up to and including blackmail. Typically, employers threaten dismissal under the article, deprivation of bonuses, and fines.
Psychological pressure. The employee is put under pressure for the slightest reason: being one minute late, shortcomings in work.
Forgery of documents. We are talking about falsifying a resignation letter. This method is used less frequently, since the responsibility for proving this fact is serious.

Actions of an employee who is forced to resign

If an employee is forced to resign, he can defend his rights. The problem is solved with the help of the labor inspectorate, the prosecutor's office and the court.

First stage - Labour Inspectorate. It is necessary to draw up a statement detailing the facts of coercion. The investigation of the case may take up to 30 days. If the decision is positive in favor of the employee, he is reinstated at work under the same conditions or given monetary compensation.

If the decision is negative, then you can go to court. The employee must prove the fact of coercion, which is very problematic, since employers usually carry out all actions orally.

Good evidence is the testimony of witnesses. The problem is that few people decide to testify for fear of losing their jobs.

A voice recorder recording has no legal force if it is made without the consent of the other party. Obviously, no one will give such consent.

In some cases, a dictaphone recording may be taken into account by the court, but its quality must be good.

The best option is written evidence. Today they may even be correspondence in in social networks– it can be notarized.

Responsibility

In most cases, a negligent employer will face administrative punishment for illegally forcing dismissal. It can be expressed:

the need to restore the employee to his previous place;
payment of compensation to the injured person;
payment of a fine (administrative - up to 5 thousand rubles, legal entities– up to 50 thousand rubles).

If a pregnant woman or an employee with a child under 3 years of age was forcibly dismissed, the employer faces criminal liability. This can be a fine of up to 200 thousand rubles or equivalent to the salary and other income of the convicted person for one and a half years. Another penalty is compulsory work for up to 360 hours.

The procedure for considering an employee’s complaint in court

An involuntarily terminated employee may file a claim within 30 days of receiving work book or issuing an appropriate order. There is no need to pay state duty for such a claim. The employee is also exempt from legal costs.

First you need to come with a complaint to the labor inspectorate. If she makes a negative decision, then you can contact the prosecutor's office. The court is the final authority. When contacting him, you should provide, along with other evidence, a complaint against the employer filed with the prosecutor's office.

The court of first instance may not satisfy the claims of the injured employee. In this case, you can file a cassation appeal to another authority.

Is it possible to legally fire an employee without resorting to coercion?

Legal dismissal means compliance labor legislation. The Labor Code distinguishes between dismissal based on the personal will of the employee (Article 80) or the initiative of the employer (Article 81).

You can legally fire an employee if:

the organization is liquidated or the activities of the individual entrepreneur are terminated;
staff needs to be reduced;
the employee is not suitable for the position held;
qualifications are insufficient to perform this work, as confirmed by certification;
the owner of the organization’s property has changed;
the employee has disciplinary action, repeatedly failed job responsibilities(fair in the absence of valid reasons);
the employee has grossly violated his job duties at least once;
the employee has lost the trust of the employer when committing guilty actions regarding the monetary or commodity assets served by him;
When concluding an employment contract, false documents were provided.

Any of the listed factors must be proven. In most cases, a corresponding act is drawn up and signed by the manager and other employees.

Lawyer Alexander Kuryanov talks about how to avoid forced dismissal in this video:

If an employee is forced to resign, he should file a claim with the labor inspectorate and collect as much evidence as possible, including witness testimony. It is difficult to prove that you are right, but the law is always on the side of employees.

There are often situations when a person is fired from work without reason, and the only argument from management is personal hostility. According to the law, the basis for severing the employment relationship may be actions that do not comply with the signed contract; in all other situations, termination of cooperation can only be by mutual consent. In this regard, many employers began to practice forced dismissal “at their own request”.

Since the employer does not have a legal basis to terminate the employment relationship, the only way out for him is to create conditions under which the subordinate expresses a desire to leave on his own.

Many managers, in order to receive a letter of resignation, resort to the following methods:

authorized persons present all their actions in a forced form;
communication with a subordinate most often takes place in a rude or dismissive tone;
during the conversation, an imaginary “own desire” to break the employment relationship is imposed on the employee;
in all areas of activity, the employee is pointed out about his professional unsuitability and inability to carry out his work (most often these are simply nit-picking and attempts to put pressure on the subject, although in reality the person performs all his duties efficiently);

In most cases, subordinates understand that communication style, increased demands and many other pressure factors are forced to resign at their own request, but how to prove such a violation of rights?
Often, a manager presents such actions as methods of stimulating employees to achieve greater productivity in their business. But in reality this is not always true.

There are two main indicators that can reveal the true motives of an employer:

The goal that is pursued in all conversations.

If the main motive of the director or other authorized person is to assist professional growth of your employee, then other goals will be set in the conversation, obviously not hints at vacating the position held.

Pressure form.

Motivating pressure, as a rule, is much softer and easier to convey, but most importantly, it contributes to the formation within a person of a desire to work harder and better, but not to quit.

What is forced dismissal?

In addition to ambiguous phrases and disguised hints, some officials also use more rude and straightforward methods, which are a direct violation legal rights person, both the Labor and Civil Codes.

In order to force dismissal, the manager resorts to the following actions:

Intimidation.

IN in this case the person is informed that he will be fired, and then required to sign a statement. Soft and weak-willed people are not able to withstand strong pressure from their leader, and therefore most often decide to leave.

Threats.

If a person refuses to sign a document, then the next step, as a rule, is a threat from the employer to fire him under the article, create unbearable working conditions, etc.

Manipulation of facts.

To achieve success using this method, the manager resorts to the help of other employees (possibly also under pressure from management), who help create conditions that lead, at a minimum, to an awkward position for a colleague, and at a maximum, to fines or legal dismissal.

Threats directed against the life and property of the subject.

The extreme measure of pressure on a subordinate is to cause him material and physical harm. As a rule, to carry out his plans, the director resorts to help from third parties who are able to carry out the assignment at a professional level. This is also necessary in order to prove the involvement of the company itself, but the victim was unable to do so.

Important! This type of onslaught already refers to offenses specified in the Criminal Code and can lead to imprisonment of the company owner.

Responsibility of the employer for forced dismissal from work

If an employee manages to prove his illegal dismissal through coercion to sign a resignation letter of his own free will, then the employer will have to answer for the following articles:

Article 5.27 of the Administrative Code;
Article 145 of the Criminal Code of the Russian Federation.

How to protect yourself from being forced to resign?

Such situations have become quite common among many companies and enterprises. In most cases, subordinates do not even realize that the director’s actions are a violation not only of their rights, but also of the legislation of the Russian Federation.

Therefore, they sign the application and are deprived of legal payments, the right to workplace until finding another job and other privileges specified in the Labor Code.
Each situation has its own characteristics and individual nuances that influence further actions.

However, there are several useful tips, which will help you determine what to do next.

Analyze whether the result is worth the effort and money spent.

Before taking any step to resolve the conflict that has arisen, it is worth analyzing the entire current situation and deciding what will be more effective under these circumstances: signing a statement or asserting legal rights through legal proceedings. It is very important to understand here that claims filed must be supported by evidence. Possible compensation may either cover the damage caused or not justify all the time and effort expended to obtain it, and therefore writing claims and lawsuits will be inappropriate and pointless.

Voice your position to the management of the organization.

During a conversation with your manager regarding signing an application of your own free will, you must voice your position (refusal to sign the document) and justify this with articles from Labor Code, as well as the terms of the contract. By pointing out the illegality of actions, first of all, you will demonstrate knowledge of your rights, which can positively influence the further actions of the manager, and, of course, this will serve as evidence during legal proceedings.

Become an exemplary employee of the company.

It is worth understanding that in this situation the main objective pursued by a director or other official is your dismissal, and therefore every mistake or inattention can negatively affect further development events. During this period of time, you should strictly follow labor regulations day, perform your duties efficiently and conscientiously, and avoid being late or making any other mistakes.

Important! Receiving tasks and reporting on their completion should be done in writing. If the case goes to court, these papers will serve as evidence that the manager violated the terms of the contract or found fault with the employee without reason.

Prepare for possible provocations.

Often, an unwanted employee is forced to write a letter of resignation of his own free will. The employee must prove that the dismissal occurred under duress in court. However, practice shows that courts find workers’ arguments unconvincing and in most cases refuse claims. A decision in favor of the employee can only be made if the employer has committed serious violations and there is evidence of this. For example, an employer offers an employee to resign of his own free will instead of dismissing him under the article. On the one hand, the courts do not consider such a situation as forced dismissal. But, on the other hand, if the court finds that real reasons the employee was not dismissed under the article, he will be reinstated at work. Employers often force pregnant workers to quit. It is prohibited to dismiss pregnant women at the initiative of the employer. The courts take into account this position of the employee since it is more difficult for a pregnant woman to control her emotions, and therefore it is easier to convince her to quit if she does not suit the employer.

The following situation is typical. The director of the company decided to replace one employee with another and gently invites the employee to transfer. When the employee refuses, the director begins to force her down by reprimanding her. After the reprimand is announced, the director invites the woman to resign of her own free will, otherwise she will be fired under the article... In this case, it is much more difficult to prove the illegality of the dismissal. The employees begin to get very worried, and during an emotional conversation they sign a letter of resignation. Due to stress, a pregnant woman becomes ill and faints or goes to the hospital. Having calmed down, the woman realizes that the director simply played on her condition. Therefore, immediately after leaving the hospital, the employee files a lawsuit in the district court.

In one of these civil cases, the court sided with the employee, indicating in its decision that the woman’s fainting was directly related to stress due to being fired. As follows from the extract, she was hospitalized with a diagnosis of “neurotic disorder”, the cause of which was a reaction to stress. Hence, the court concluded that there were reasons for the worker’s worries. And they are associated with job loss. The court concluded that the woman did not want to resign; the director forced her to do so. In addition, she could not withdraw the application because she was in the hospital. Also working against the employer was the fact that the employee was pregnant, since there was no point in quitting for a pregnant woman. After all, she would not have been able to receive benefits and go to maternity leave. Another typical case, when an employee is suspected of being intoxicated, is tested for intoxication at work and, in the form of an ultimatum, suggests that the employee either resign by agreement of the parties, or under an article for drinking alcohol. The employee agrees to leave voluntarily and writes a statement and agreement under dictation.

Before signing the resignation letter, the employee underwent a medical examination at medical examination, however, the results of a chemical test of blood and urine were not yet ready. A few days after his dismissal, the employee learns that a medical test showed no traces of drugs or alcohol in his tests. Then the employee realizes that he was in a hurry to quit. And goes to court. In court, the employee asks to take into account that he was not aware of his actions when he wrote the statement. After all, by that time he had not slept for two days. At first he had a shift, and then he was not able to sleep because of a trip to the director of the company, he was watched all the time and was not given any water or to go outside. In one of the cases, the court supported the employee, indicating that the director forced him to resign of his own free will. This is confirmed by the testimony of witnesses who confirmed that the director offered the employee to leave under the threat of dismissal under the article and that he wrote the statement and agreement under the dictation of the director. The employee was in stressful situation. The stress was caused by his lack of sleep for 2 days, the director’s threats and worries that he might lose his job and stable income. Laboratory testing showed that the employee did not use alcohol or drugs. This means that the employer had no grounds to fire him on defamatory grounds. There was no point in the employee quitting. He pays the loan and also alimony. However, he did not have any job offers. That is, in fact, he quit without prospects of finding a job in the near future. The court also took into account that the employee attended advanced training courses in his profession. Therefore, I planned to continue working in the company.

Scientifically technical progress does not stand still and many workers use its results to protect their rights. Thus, in one of the cases of reinstatement of work, an employee presented to the court an audio recording of a conversation with the director, recorded on a voice recorder.
The director called the unwanted employee for a heart-to-heart talk. Before going to the director, the employee turned on the voice recorder on his phone. He did this in case the manager decided to threaten them or force them to resign. The employee turned out to be right. The boss immediately told him to write a letter of resignation. And if they don't do this, she will fire him for absenteeism. He backed up his threat by calling security and demanding that no more employees be allowed into the office. As a result, the employees, under the pressure of circumstances, wrote a letter of resignation on the same day.

Having calmed down and talked with a lawyer, the employee went to court and demanded that the dismissal be declared illegal. He claimed that he was forced to resign. As evidence, the employee presented the court with an audio recording of a conversation with his boss. The court accepted the audio recording as evidence. He pointed out that from it one can understand who, when and under what circumstances made it. The employee recorded the conversation on his personal phone using the voice recorder program. The recording files contained the recording format and date. The employee also reflected all this information in a request to include the audio recording in the case materials.

As a result, the court found it proven that the manager forced the employee to resign. In addition, the court took into account the testimony of his partner, who confirmed the forced nature of the dismissal. Taking into account the evidence presented, the court declared the dismissal of the employee illegal.

The employer's complaint to a higher court was unsuccessful. The panel of judges explained that the employee recorded the conversation in work time in order to record violations of his labor rights. The record itself does not contain information about private life. Therefore, such a recording can be used as evidence.