Compulsion to resign at your own request. What should an employee do if the employer forces him to leave?

Is it possible to somehow improve the situation? Considering the real situation at enterprises, more than half of the workers were interested in this issue at least once. Will the Labor Code help in this case, and what does the employer face if his guilt is proven?

Legislation

“I am being forced to resign allegedly of my own free will,” “they are forcing me to resign from a good position”—many workers turn to lawyers with such problems.

If we turn to the Labor Code, it is immediately clear that only the working person himself can initiate dismissal at his own request. The manager cannot force him to resign or prevent his dismissal. In any unforeseen situation, if the worker has not violated the terms of the contract, only he decides how best to quit.

At the same time, an employee who submitted a letter of resignation on this basis may change his mind within two weeks and file a withdrawal of the letter. The dismissal process will not begin if a new worker is not found to fill the position of the dismissed person.

For reference! The nuances of dismissal at the initiative of a worker are described in Article 77 of the Labor Code.

Why does the manager force you to write a letter of resignation?

An employer may have many reasons to dismiss some workers from the organization. But any of the reasons implies the reluctance of management to continue maintaining employment relations with one or more employees.

The point may not be that this type of dismissal will most quickly solve the problems, but that the managers know about the upcoming dismissal due to the reduction or liquidation of the organization and offer to quit on their own. In this case, the reason is banal - there is no desire to pay large amounts of severance pay.

But sometimes there are situations when the head of an enterprise, on the contrary, acts as a benefactor and, in order not to fire an employee under an article, for example, for systematic absenteeism or safety violations, offers to leave on his own initiative.

Interesting! Dismissal due to staff reduction is most often replaced by resignation on the worker’s own initiative.

What to do when forced to quit?

In situations where the worker has violated the terms of the contract, there is no need to persuade him for a long time to resign on his own initiative. He understands what the consequences could be in the opposite case and makes concessions.

But what if you were offered to resign without any fault? Any sane person understands that if this proposal is not fulfilled, sooner or later a reason for terminating the employment contract will be found.

Therefore, the first advice that lawyers give is to under no circumstances agree to write a statement and strictly fulfill your direct duties, and not to succumb to provocations. For example, the boss may suggest that you go to work later, if there is no written confirmation of this, then you still need to come to the office on time.

Other tips may also help:

1. If requests to leave or threats from superiors occur regularly, you can try recording the conversation with a voice recorder. This will provide indirect evidence of his guilt.
2. Try to persuade the boss to terminate the contract by agreement of the parties, but with the payment of certain compensation.
3. Write a letter of resignation, but under no circumstances set the date to the present or tomorrow. Tomorrow it will be possible to write a review of the application, which must be sent by a valuable letter by mail if they do not want to accept it.

You can also try to provoke the boss himself by starting a conversation with requests not to fire in front of other employees. Thus, witnesses to arbitrariness will appear.

Contacting authorities regulating labor organization

The last step, if all else fails, is to contact higher authorities with a complaint against management. For example, if a recording was made of a conversation with superiors, you can submit it to the Labor Inspectorate; this will be enough to form the basis for filing a complaint and ordering an inspection of the organization.

In the application, which is drawn up in free form, addressed to the labor inspector, it is necessary to briefly describe the situation and ask to understand the legality of the actions of the authorities.

Verification can take up to 30 days. The manager will be given a warning; if such a violation occurs again, the labor inspector will file a lawsuit to bring administrative liability.

Important! If the worker has already been fired, the time frame for verification and restoration of justice is reduced to 10 days. The reinstatement of an employee to his position occurs through the court.

You can go to the district court yourself. He will not accept a voice recorder as evidence, so a lawsuit should be filed if there are witnesses, or after the dismissal has been made.

In a claim against the organization and the immediate supervisor, it is required to state the essence of the complaint and record the demands, for example, not only reinstatement. But also to pay a certain amount as compensation for moral damage.

However, in any case, after asking for help and conducting checks, even greater care will be required in fulfilling duties, since the relationship will be even more tense.

What threatens the employer?

The employer can be held accountable even at the stage of coercion to terminate the employment relationship. In a situation where there is psychological pressure, the manager may face administrative punishment if the employee goes to court.

If the authorities are not afraid to resort to physical or psychological violence, the wait for the opening of a criminal case will not be long. Even for ordinary insults, the boss can respond with administrative punishment under Article 5.61.

If management managed to force a worker to resign, the actions should not go unpunished - you should contact all possible organizations that can help:

• to the Labor Inspectorate;
• to the prosecutor's office.

Litigation, which can last several months, if the boss is found guilty, can benefit the fired person. In this case, the employer will have to reinstate the former worker; in addition, the organization will be obliged to pay the employee wages, according to his salary, for the period of forced absence, and this can be a considerable amount. Moral compensation, if mentioned in the claim, will also be paid.

Since the relationship will be completely ruined, you can still leave immediately, but at the same time the fired person will have a certain amount of money, which will be enough to live and look for another job.

As practice shows, in court it is difficult to prove coercion to terminate an employment relationship on the initiative of an employee, but it is possible. You should seek help from a lawyer if you have doubts about your own competence. He will be able to determine a plan of action based on the situation and, if necessary, adjust it. It is worth joining the fight for your own rights, but only fully armed.

Hello

My question is from the field of labor law. When I came to work yesterday, I found out that I was fired from today. That is, there is no need to go to work today. They gave me one day to sign the bypass sheet. I did not write any Application. I had no reprimands or warnings. Officially employed, according to a work book. My dismissal was explained by the fact that I couldn’t cope with my responsibilities. I haven’t received my salary for March yet, the salary is 20% off, everything else, as they say, is in the envelope. They said that if I was indignant about the dismissal, they would pay me based on my salary for both March and April.

Hello

My question is from the field of labor law. When I came to work yesterday, I found out that I was fired as of today. That is, there is no need to go to work today. They gave me one day to sign the bypass sheet. I did not write any Application. I had no reprimands or warnings. Officially employed, according to a work book. My dismissal was explained by the fact that I couldn’t cope with my responsibilities. I haven’t received my salary for March yet, the salary is 20% off, everything else, as they say, is in the envelope. They said that if I was indignant about the dismissal, they would pay me based on my salary for both March and April. Moreover, they ordered me to resign within one day, otherwise they would report absenteeism and be fired under the article. What should I do in this situation? What to do to get at least a salary for March. I'm really looking forward to your answer, because tomorrow I will have problems. They are not allowed to work.

Evgeniy, Moscow

Answer

Hello, Evgeniy

We cannot tell you what to do, but we can assess the legality of the employer’s actions. Since you did not apply to the employer to terminate the employment contract on the initiative of the employee (at his own request), then the employer’s actions are unlawful. Termination of an employment contract under clause 3 of Article 77 of the Labor Code (termination of an employment contract at the initiative of the employee) is unlawful without a corresponding application from the employee. In this regard, be prepared for the fact that the employer, in order to comply with the procedure for terminating an employment contract at the initiative of the employee, will also insist that you write a corresponding statement.

What should you do? First of all, do not write a letter of resignation of your own free will. But in this case, be prepared for the fact that the employer will look for a reason to terminate your employment contract on one of the grounds provided for in Article 81 of the Labor Code of the Russian Federation (termination of an employment contract at the initiative of the employer) and, possibly, create unbearable working conditions by forcing you thereby write a letter of resignation of your own free will.

Your employer does not allow you to work? In this case, there is downtime due to the fault of the employer. According to Article 157 of the Labor Code of the Russian Federation, the employee is obliged to inform his immediate supervisor or another representative of the employer about the beginning of downtime caused by reasons that make it impossible for the employee to continue to perform his job functions. That is, in this case, you have the right to contact the employer with a statement about the beginning of downtime due to the employer’s fault (in this case, it is advisable to submit the application under the mark on your copy in the acceptance of the application by the employer). Downtime due to the fault of the employer, according to the same Article 157 of the Labor Code of the Russian Federation, is actually paid in the amount of at least two-thirds of the employee’s average salary.

Downtime is not classified by Article 107 of the Labor Code of the Russian Federation as a type of rest time, and therefore during downtime the employee must be at the workplace. I understand that in your case this is at least strange, given that the employer does not allow you to work. In this case, in order not to provide the employer with a reason for dismissal at the initiative of the employer on such grounds as absenteeism, I recommend that you come to work every day with another person, so that if a labor dispute arises, this person confirms that due to circumstances beyond your control, you could not show up for work. your workplace.

If, nevertheless, the employment contract with you is terminated under clause 3 of Article 77 of the Labor Code of the Russian Federation, you have the right, within the period provided for in Article 392 of the Labor Code of the Russian Federation (1 month from the date of issue of your work book or from the date of issuance of a copy of the dismissal order) challenge the dismissal in court. However, in this case, be prepared for the fact that if the court grants the claim and you are reinstated at work:

• You will be paid an official salary (that is, as provided for in the employment contract).
• The time of forced absence (if, of course, this requirement is stated by you) will also be paid based on the official salary.
• The employer will look for a reason to terminate your employment contract on one of the grounds provided for in Article 81 of the Labor Code of the Russian Federation.

We often hear complaints from ordinary office workers that they have to work from dawn to dusk, and there is no gratitude from their bosses - instead, they also strive to load them with work beyond all measure. As a rule, such labor races end either in a nervous breakdown or in the dismissal of the employee at his own, true request. What should an honest worker do in such a difficult situation?

Understanding the concepts

When can an employee be required to work overtime?

In Art. 99 of the Labor Code of the Russian Federation provides a list of grounds for involving an employee in overtime work.

With the written consent of the employee

If uncompleted work leads to damage to property, no matter whose.
If failure to complete work paralyzes the work of the company.
If a no-show employee whose work cannot be interrupted is replaced

Without the employee's consent

If it is necessary to prevent a disaster, etc.
If there is a threat to the normal operation of water supply, gas supply, heating, lighting, sewerage, transport, communications systems;
If the work is required due to martial law, a natural disaster, or an emergency.

In other cases, involvement in overtime work is allowed only with the written consent of the employee and taking into account the opinion of the trade union. In the absence of the latter, only the written consent of the employee is sufficient.

The duration of such overtime work cannot exceed four hours for each employee on two consecutive days. Thus, all 10-12 hour work marathons during the work week are illegal. In addition, often the employer does not bother to obtain the employee’s written consent to engage him in overtime work. As a rule, the employer verbally informs the employee, they say, it is necessary, Vasya, it is necessary, and whoever works, eats! And “Vasi” does it right and does it until smoke pours out of his ears, and his face takes on an indefinite hue, in addition to this, a crazy look and nervous laughter. What kind of productive work can we talk about in this case? Here, like with a cornered horse, there is only one way out - shoot, that is, fire…

Gingerbread from the law

There are not many of them, or rather it would be one. Art. 152 of the Labor Code of the Russian Federation prescribes payment for overtime work at one and a half times the first two hours of overtime work and at double the rate for all subsequent hours of overtime. At the request of the employee, overtime pay can be replaced by additional rest time, but not less than the overtime worked, that is, we are talking about good old time off.

Disappointing Realities

Practice, as often happens in our country, is very far from the law. In many companies, it has long been a tradition to work not eight hours, but, for example, ten. And it doesn’t matter that during these two hours you will be blown up in the minefields of “Sapper” or puzzle over “Solitaire” or “Klondike” (see), the main thing is to be in good standing with your superiors, and if you also tell your superiors twice “ ku!”, wear a bell in your nose and curtsy, then over time the master will call you his beloved wife and you can hope for a salary increase!

At the same time, employers do not consider it necessary to pay for this form of voluntary service or provide time off, otherwise the whole point of such a “gift” to the company from the employee is lost. According to the strange opinion of a number of managers, overtime work is nothing more than a manifestation of the employee’s loyalty to the company, even if this work is not urgent and can be completed during the next working day. Although Western companies, which Russian business looks up to, have long been no longer guided by the opinion: “A good employee will not leave work early.” In their opinion, an employee who works 10 or more hours a day loses productivity and sooner or later makes mistakes. A month of high results for such workers is often followed by a decline, and without the necessary rest, they begin to get sick more often. A person, as a biological object, cannot work 12 hours a day for a long time - after some time, the body simply may not be able to withstand such a load. After 8 hours of continuous work, so-called workaholics lose control and clarity of reaction - hence chronic illnesses and nervous breakdowns.

What to do

Let's make a reservation right away, no one is calling you for a revolution or a lynching of your beloved bosses. If you are satisfied with this state of affairs, it’s your choice, just don’t be surprised if the children forget your face over time and run away shouting: “Man (aunt), who are you?!”

If you are tired of exchanging your personal life for the pseudo-incentive sign “Best Employee of the Month,” then, as usual, you have several options:

Change job. In a crisis, you won’t be able to find a job much, but if you want, you can find a suitable option.
Leave work on time. If you don’t have the courage to declare the end of the working day and unwillingness to work overtime, then you can come up with a lot of reasons: treatment, a summons to the investigator, activities for the child, etc.
Report where it should be. Where to go is the prosecutor's office and the labor inspectorate. How to report is described. If you report it personally, you will most likely not be allowed to work in the company, so people decide to take such a step when it comes to a conflict and before leaving they want to annoy the employer more.

The reasons when an employer requires an employee to write a statement of his own free will can be very different - the company does not have enough money to pay the employee, a personal conflict between a manager and a subordinate, an intention to vacate a position for “their” candidate. But all this does not mean that an employee is obliged to humbly resign just because the employer wants it. On the contrary, in most cases, Russian legislation is on the side of workers.

AiF.ru, together with experts, examined in detail the popular questions that arise among employees who are faced with an employer’s request to write a statement of their own free will.

How to behave if your boss demands that you resign at your own request?

In case of voluntary dismissal, only the employee can be the initiator. Otherwise, it will be the desire of the employer, not the employee. Such requests from superiors are illegal.

“If you do not plan to part with your employer, then, of course, you should not write such a statement. I also don’t recommend entering into open confrontation with your superiors. First of all, you should clarify with management what caused this decision, and, based on the answer, take specific actions,” advises senior lawyer of the labor law department of the Institute of Professional Personnel Tatyana Shirnina.

There may be several ways out of this situation:

1. Do not write a letter of resignation of your own free will and continue to work as if nothing had happened;
2. Do not write the above statement, but contact the regulatory authorities with a complaint against the employer;
3. Offer the employer to part ways by agreement of the parties with payment of a certain amount.
   “Often it is the latter option that suits both parties. The employee does not want to be “thrown out” of his job, and the employer is ready to pay if only the employee would leave. Therefore, there is always a choice, and it is up to the employee,” Shirnina emphasizes.

What to do if the employer is against the contract by agreement of the parties?

It happens that the manager stands his ground and does not want to hear about any agreement between the parties. In this case, he will have to deal with the labor inspectorate. After contacting this service, it must conduct a check on the employer.

“If these actions did not lead to anything, it is necessary to write a corresponding statement to the prosecutor’s office. If appealing to the help of the “eye of the sovereign” does not bring results, the employee must prepare to defend his interests in court. For this purpose, it is important to ensure the availability of an evidence base in advance,” points out lawyer Vladimir Postanyuk.

If the manager puts pressure

Typically, requests to write such a statement are accompanied by pressure on the employee. If your manager makes threats in an attempt to get fired, his behavior is a legal reason to contact the labor inspectorate, the court and the prosecutor's office.
“If the manager limited himself to verbal actions when putting pressure on the employee, without resorting to threats to the life and health of the subordinate, then the boss who violated the law will face punishment under Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation. At the same time, pressure should be understood as more than just a suggestion made at least once to write a statement. There must be a mandatory requirement, implying that if the employee disagrees, he will be subject to some kind of damage (he will be fired for an alleged gross violation of labor duties and theft in the workplace),” explains Postanyuk.
According to him, if there are no aggravating circumstances in the case (repeated commission of a similar crime), then the unscrupulous manager may be overtaken by either a warning or a fine of 1 to 5 thousand rubles in relation to an official or individual entrepreneur. The punishment for legal entities is more severe: they are required to pay compensation in the amount of 30 to 50 thousand rubles.

“If an employer uses violence against his employee, then he will face criminal liability under one of the articles of Chapter. 16 of the Criminal Code of the Russian Federation,” he adds.

What is evidence of pressure being exerted?

According to Shirnina, most often courts recognize audio recordings of conversations recorded on a voice recorder as inadmissible evidence.
“Moreover, the courts, as a rule, reject requests to order a phonographic examination of a voice recording of a conversation. But it must be said that even if the recording is not included in the case, but is heard by the court, this can form the internal conviction of the judge, so it is worth trying to file such a petition,” she notes.

What threatens an employer who forces him to write a statement of his own free will?

If an employee contacts the labor inspectorate with a complaint about the employer’s illegal actions, the latter should prepare for an inspection.

“As a rule, it rarely happens when all personnel documents are in perfect condition, so the likelihood of being brought to administrative responsibility is quite high,” Shirnina emphasizes.

“An employer has no legal means of achieving the dismissal of an employee at his own request. These actions are basically illegal. Traditional methods of “survival” of an uncompromising employee from an organization represent various variations of certain rights of the employee (primarily the employment contract). Due to this circumstance, the leader’s behavior can be used as a reason to bring a lawsuit: on charges of libel (Article 128.1 of the Criminal Code of the Russian Federation), insult (Article 5.61 of the Administrative Code), etc.,” adds Postanyuk.

Can an employer fire an intractable employee?

As practice shows, if an employer plans to get rid of an unwanted employee, he rarely abandons this idea.

However, the manager cannot fire an employee just because he refuses to write a statement of his own free will. But he can try to bring the subordinate under one of the grounds. For example, absenteeism or showing up at work while intoxicated.

“An employee who is asked to write a statement of his own free will should be more attentive to his job responsibilities, come to work on time, not be late from lunch, and not arrange “smoke breaks” and tea parties for himself during working hours. In general, fully comply with labor discipline. In addition, perform your job duties carefully and efficiently, because this employee is under the close attention of the employer,” advises Shirnina.

“You are not qualified for your position”

Often, in response to logical questions from employees, “Why are you asking me to quit?” the employer replies: “You are not suitable for your position. And management’s opinion on this issue is sufficient.”

No, not enough. The fact is that the employee’s inconsistency with the position held or the work performed must be confirmed by the results of certification (Part 3, Article 81 of the Labor Code of the Russian Federation), and not by the subjective opinion of the boss.

“At the same time, the certification process is applicable only to employees who, by the nature of their activities, are associated with equipment, mechanisms, machines, devices, devices and vehicles, as well as sources of hazards that can have a harmful effect on humans. In addition, it is also necessary to certify specialists who use hand tools during their work, including electrified or mechanized ones. The latter also includes the participation in the procedure of office workers, who spend more than half of their time at the computer. Certification in a specialty is carried out only on the basis of special educational institutions, courses or plants for both private companies and government agencies. Thus, the manager’s ability to influence the certification to his advantage is reduced to a minimum,” says the lawyer.

As a result, the certification mechanism is not available to an unscrupulous employer.

About the job description

Not all companies have employees with a job description and a clear area of ​​activity. Can an employer take advantage of the lack of a job description and fire an employee, citing this fact?

“The job description is not a mandatory document, so here we need to start from where the employee’s job function is stated. If it is stated directly in the text of the employment contract or in the job description (which the employee is familiar with), then this is one story and here the certification procedure can be launched, and based on its results a conclusion is made that the employee is not suitable for the position held.

If the job duties and qualification requirements for the position held are not specified anywhere, then the employer cannot dismiss such an employee for non-compliance with the position held by law,” Shirnina emphasizes.

This is due to the fact that first of all it is necessary to understand what the employee does not meet and what requirements were initially placed on the employee.

“In general, such a basis as an employee’s inadequacy for the position held or the work performed due to insufficient qualifications, confirmed by the results of certification, is quite slippery. As a rule, it is the employees who win in such disputes. The very procedure for such dismissal for commercial organizations is not regulated by law and, as a result, is carried out in violation; conclusions about the employee’s non-compliance are considered biased,” the expert adds.

Can an employer force an employee to sign a job description after the fact?

The job description specifies the employee’s job function, and it is a mandatory condition of the employment contract, experts say. Changes (including additions) to the terms of the employment contract are permissible only with the consent of the employee. It is impossible to force an employee to sign something without his desire already during his working life.

“By the way, the absence of a mandatory condition of the employment contract is regarded as a violation of labor legislation, for which administrative liability is provided (Part 3 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation),” Shirnina notes.

What to do if the application has already been written?

Another situation is if the employee, under pressure, wrote a letter of resignation, and then filed a lawsuit for reinstatement at work.

According to the expert, in this case, it is quite difficult to prove the employer’s coercion, since it is the employee who bears the responsibility to prove that he was forced to resign of his own free will.

“However, the employee still has a chance to prove that the employee filed the application of his own free will, out of fear of being fired. This is evidenced by judicial practice, for example, the ruling of the Nizhny Novgorod Regional Court dated November 20, 2007 in case No. 33-5607. In this decision, the court assessed the employer’s threats to fire the employee for absenteeism as a circumstance confirming pressure and coercion to dismiss. Judicial practice in disputes about restoration is quite diverse and depends on the specific circumstances of the case; it is always worth fighting for your rights,” summarizes Shirnina.

A situation where an employer forces you to resign “on your own” can happen to any employee. Then the questions become especially relevant: does the boss have the right to demand this? How to resist pressure? And also where to complain and what threatens the presumptuous boss? Let's try to figure it all out and explain the points of interest in as much detail as possible.

Let's start with the reasons why an employer may demand the dismissal of an employee. They can be very different - from a lack of funds to pay wages to the intention to vacate an official “place” for a new employee, but “through connections.” In any case, you should not humbly resign just because management wants it so. Even if we are talking about open conflict. You need to go to the end, defending your own rights, especially since in most such cases the current legislation supports the employee’s side.

Table of contents:

How to behave if your boss forces you to resign voluntarily

It is necessary to know and always remember that an employee can and should resign “of his own free will” only when he really has such a desire. The initiative in such matters cannot come from the employer. This is absolutely illegal. And punishable.

And for those who do not want to voluntarily part with their workplace, experienced lawyers advise not to immediately enter into open confrontation, but to first try to find out from their superiors the real reason for the decision. And act based on the information received.

In this situation, there are several possible options for further behavior. Can:

1. Ignore hints and open requests from management, continuing to work “as if nothing had happened.”
2. Do not write a statement “of your own free will”, but appeal the employer’s actions to the relevant regulatory authorities.
3. Discuss with your boss a legal separation “by agreement of the parties” with the payment of some kind of compensatory amount.

Most often, it is the latter option that can be a compromise that suits both the employee and the management of the enterprise. In this case, one party is content with the money, and the second gets rid of the unwanted employee by paying him. But the choice always remains only with the employee.

What to do if the employer is against the contract by agreement of the parties?

Sometimes the employer persists. He insists on dismissal “on his own” and does not want to hear about any agreements. Then you need to involve the local labor inspectorate in the matter.. It is this authority, at the request of the employee, that is obliged to conduct an audit of the actions of the organization’s management. But if her inspection activities did not bring the desired result, she will have to contact the prosecutor’s office.

It happens that the prosecutor's office is powerless. But you shouldn’t give up even in this case. There is also a judicial authority. We need to go there. True, here the employee will have to support his statement with evidence. And the extraction of such evidence falls on the shoulders of the applicant.

If the manager puts pressure

Illegal “requests” for dismissal from the employer rarely go without pressure. And if this happens, this is a serious reason to contact the appropriate authorities. To the labor inspectorate, prosecutor's office, court.

If the pressure did not go beyond verbal limits, the boss faces liability under Part 1 of Article 5.27 of the Administrative Code. Provided that he not only once asked the employee to write a letter of resignation, but resorted to threats of damage against the employee for insubordination. For example, he promised, in case of disagreement, to dismiss the latter for a fabricated “gross violation of labor duties” or “theft in the workplace,” etc. Then the supervisory authorities (whether it is an official or an individual entrepreneur) can:

• warn;
• or issue a fine of 1000-1500 rubles.

Legal entities are held accountable for this much more severely. Their fines in such situations range from 30 to 50 thousand rubles.

But all these punishments are nothing compared to the responsibility that an employer may incur if he has crossed verbal boundaries in attempts to put pressure on an employee. For threats to the life and health of an employee, as well as for violence against him, you will have to answer under the relevant articles of the Criminal Code, at the risk of losing your freedom.

What is evidence of pressure being exerted?

Of course, the fact of pressure from the boss will have to be proven. And this is not always easy. What can be considered evidence of such actions?

Text entries will be considered obvious pressure from the boss, but only those whose authorship can be identified. As well as identified audio files. True, recordings made independently by an employee using a voice recorder are rarely recognized by the courts as admissible evidence. And phonographic examinations are prescribed extremely reluctantly. This must be taken into account when collecting evidence. It is better to take care of the presence of witnesses in a given situation.

And still, if voice recordings are available, it is better to provide them at the court hearing. Even if they are not included in the case, but only heard, this may affect the formation of the judge’s internal conviction on the issue under consideration. So it’s worth making such a petition.

What threatens an employer who forces him to write a statement of his own free will?

If, after demanding dismissal, an employee wrote an application to the labor inspectorate, the management of the enterprise should prepare for the personnel verification procedure. And in the personnel of any organization everything is rarely in order. This means that responsibility (administrative) definitely cannot be avoided.

The law leaves no chance for the employer to seek dismissal “at his own request” using legal methods. Any measures taken in this direction will be illegal. And if the boss “traditionally” tries to survive an unwanted employee by arranging situations of forced violation of the concluded employment contract, his actions are a good reason to file a lawsuit, accusing the employer, for example, of slander (Article 128.1 of the Criminal Code of the Russian Federation) or insult (Article 5.61 of the Administrative Code) , etc.

Can an employer fire an intractable employee?

Practice shows: if the boss decides to get rid of an unwanted employee, he will not give up his goal just like that. And he will look for reasons to fire the latter for some violation. That is, under a “bad” article, since he refuses to resign under a “good” article. And that means you need to be on your guard. Do not skip or be late for work, do not stay late after lunch. No smoking breaks or tea drinking (and especially “drinking” stronger drinks at work).

Anything that falls under the concept of “violation of labor discipline” should be subject to a personal ban. But the employee’s performance of job duties must remain at a consistently high level. Taking into account the fact that now special attention of management will be focused on this moment.

Dismissal for inadequacy of the position held

Often, to an employee’s question like “why do they want to fire me?”, management responds with a standard phrase about “inadequacy for the position held.” And he adds that for the very fact of dismissal, the employer’s opinion on this matter is quite sufficient.

But this is not at all true. The subjective opinion of management is not enough to make an official conclusion about the suitability/inadequacy of the position held by a particular employee. Here, according to Part 3 of Article 81 of the Labor Code of the Russian Federation, certification will be required. And such certification is applicable only to employees whose duties are associated with:

• equipment, mechanisms or apparatus, devices or machines;
• vehicles;
• means of increased danger that have a harmful effect on humans.

It is also possible (and even necessary) to certify specialists who use hand tools (mechanical or electrified) in their work, including office managers who perform their job duties using personal computers and other office equipment (scanners, printers, etc.).

Certification of employees is carried out in specialized educational institutions (plants, schools, qualification courses). This is relevant for both state-owned companies and private structures.

And therefore, the ability of any particular manager to influence the results of certification in his favor is reduced to almost zero. For an unscrupulous employer, the certification mechanism turns out to be useless and therefore inaccessible.

About the job description

The basis of any work activity is the job description. However, not every employee has it. And in this regard, a logical question arises: can management who intend to fire an unwanted employee take advantage of her absence? Fire and refer to the absence of such instructions?

Experts in the field of labor law argue: a job description, according to the provisions of the current legislation, is not a mandatory document. In controversial issues, you can start from any other internal document that specifies the employee’s production functions. For example, information about an employee’s job responsibilities may be contained in an employment contract concluded with him. Then it is also possible to initiate the appropriate certification, based on the results of which a conclusion will be made about the employee’s suitability for the position he occupies.

Objectively speaking, such a basis as “inadequacy for the position held,” even obtained on the basis of a completed certification, is a very slippery reason for the actual dismissal of an employee at the initiative of the employer. If an employee challenges the certification findings in court, he will win.

In the vast majority of cases, judges side with workers in such situations. After all, the certification procedure is poorly regulated by law; there are a lot of “holes” in it, which an experienced lawyer can easily turn around in favor of his client. This means that conclusions about inappropriate qualifications will be considered biased.

Can an employer force an employee to sign a job description after the fact? The essence of any job description is to explain to the employee his job function. This is a mandatory condition when concluding an employment contract. And any change/addition to this document is permitted only with the voluntary consent of the employee

. Thus, it is illegal to require his signature on the job description after the contract has been signed.

But there must still be some kind of document that sets out the standards for the employee’s performance of his functions. Otherwise, we are talking about a violation by the employer of Part 3 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation and his liability under the points provided for in this article. But the absence of job descriptions will not affect the employee in any way.

What to do if the application has already been written?

Situations when, under pressure from management, employees nevertheless write a statement “of their own free will” are not uncommon. And only then, after dismissal, do people want to restore their rights and be reinstated at work through the courts. But here everything is much more complicated than in the cases described above.

And all because after the fact it is extremely difficult to prove the pressure that was exerted on the employee. And you will have to prove it, since it is the employee who, by law, has the evidentiary burden in such labor disputes. However, there are chances. And it may be possible to prove that the application for “voluntary” dismissal was written forcedly, under pressure from superiors. There is such judicial practice.

From all of the above, only one conclusion follows: it is necessary to fight for your labor rights. Whatever the situation may be. Moreover, the legislation in most cases supports the employee’s position. And even after forced dismissal, judicial practice is very diverse, and the decision in each specific case depends on a number of objective factors.