How to resign at your own will: the procedure, reasons and conditions for dismissal. What to do if they want to be fired

Question: - If the head of the company suggested that you write a letter of resignation for own will by agreement of the parties, but with compensation amounting to only half of the average monthly earnings of the employee.

If the employer conducts a procedure for reducing the number or staff of employees, then he is obliged to carry it out in accordance with the law, with the payment of all due compensation, and not try to get rid of employees without paying them the due. Dismissal by agreement of the parties implies the mutual desire of the employer and employee to terminate the employment relationship. In this case, the payment of compensation is not obligatory, but possible. The amount of compensation may be established by an additional agreement.

Therefore, there are two real ways: 1 . Continue work, ignoring the "offer" of the employer to quit, while preparing for the court to appeal against a possible dismissal at the initiative of the employer. Remember that the employer has enough wide opportunities to dismiss an employee for various reasons, including negative ones (Article 81 of the Labor Code of the Russian Federation). 2. Continue negotiations with the employer on dismissal by agreement of the parties, while seeking the payment of the maximum amount of compensation (at least not less than in case of dismissal by reduction - 2-3 average monthly earnings). The final decision is up to the employee.

Question: - What should be done if the boss verbally compels to dismiss of his own free will, referring to the "crisis", "the decision of the owners." After the employee’s refusal, he is not invited to meetings, is not sent on business trips, he is not given assignments, to his requests, there is only one answer - “look for a job” or you will leave for a reduction, you will not pass certification, they do not discuss work issues with him. Its performance is now zero.

Answer: — First of all, we recommend that you understand the situation: what is still going on in your organization? If there is a reduction in the number or staff of employees, you must be fired in connection with the reduction and, accordingly, with the payment of a severance pay in the amount of 2 average monthly salaries. Any kind of persuasion to quit of one's own free will is a trick of the employer. Unfortunately, it is difficult to prove the fact of forced dismissal of one's own free will. You can write a statement to the prosecutor's office and (or) to the labor inspectorate, but keep in mind that, in addition to your statements, the statement must be accompanied by factual evidence of such coercion - voice recordings, evidence that you have ceased to be entrusted with work, which - something orders, in general, everything that, in your opinion, indicates coercion to dismissal. However, remember that such a step requires careful consideration. the employer may try to fire you on "negative" grounds.

In our opinion, the best way is to wait until the employer moves from persuasion to some specific steps to dismiss you - in this case, you have a better chance of proving your case in the prosecutor's office and in court. In any case, do not rush to write a statement.

Question:- If a person got a job in one company, after a few months he found another job and went there, but when calculating, he was paid only for the days that he worked after the last salary, and they refused to pay compensation for unused vacation, citing that he did not work for a year. Are the actions of the employer legal and what should the employee do to achieve full payment?

Answer:- The very right to leave arises for the employee after 6 months of continuous work with this employer, but upon dismissal, regardless of the hours worked, he must receive compensation in proportion to the hours worked.

Question: - If the employee applied for dismissal of his own free will, which was signed with a working off of 2 weeks, but fell ill during this period, and the period of 2 weeks has expired. Does the manager have the right to demand to work 2 weeks after the sick leave is granted.

Answer:— In accordance with Art. 80 of the Labor Code of the Russian Federation, the employee has the right to quit at his own request, notifying the employer in writing 2 weeks before his dismissal. The employer needs a 2-week period in order to find a suitable replacement for the employee. There is no such thing as "mandatory work" in the current Labor Code. Thus, the main requirement - the submission of a written application 2 weeks before the dismissal by the employee - is fulfilled, and he can be dismissed after 2 weeks, regardless of whether he was on sick leave at that time or not.

Question:- If the employee resigned by agreement of the parties (Article 77, clause 1 of the Labor Code of the Russian Federation) with the payment of compensation to him and all the debts of the company, received a work book, and after a while the questions of the former employer began to him about money allegedly taken into account and not returned counterparty under the scheme "cash + non-cash".

Answer:— In this situation, only one thing can be advised: if the employer believes that the employee owes him something, then let him demand this amount from him in court. If a former employer tries to get some amount from an employee bypassing the court (through blackmail, violence or threats), contact the police, as this will already be considered extortion.

G.A. Pysina,

Senior Counselor of Justice, Colonel, Legal Counsel of the SVGB

In the context of the developing financial crisis and cost optimization by enterprises, specialists have developed advice for workers who are about to be made redundant. Here are the main ones:

Do not write a letter of resignation of your own free will, because in this way you will deprive yourself of the opportunity to get what you are entitled to when reducing;

By law, the employer must notify the trade union of the enterprise and you in advance of the planned reduction and pay wages at least two months in advance.

WHAT TO DO IF YOU ARE FIRED?

Seven tips from a lawyer:

Most often, an employee is offered to quit of his own free will, with the alternative to warm up this desire by dismissal "under the article." Maybe it's a bluff, maybe not. Now is the time to delve into your memory and remember if you asked your boss for one day at your own expense for the last month. If you didn’t document this in any way, but there was a so-called gentleman’s agreement, there is a chance that the authorities will completely forget that there was an agreement and the personnel department will fire you for absenteeism if you don’t provide supporting documents. Were you late for work, did you complete all the tasks within the time limits regulated by the company's internal documents?

Tip one

All movements are documented. If you need to be absent from work, write a statement in duplicate, on which your management puts its resolution "I do not mind", the date and signature. The first copy is with the authorities, the second is pressed to the heart and hidden at home in the most fireproof place. Remember that a disciplinary sanction can be imposed on an employee within a month from the moment the misconduct is discovered.

Tip two

It's time to reread your labor contract, job descriptions, internal labor regulations, safety regulations and other documents that you signed when you were hired and later. Often the employer is cunning and makes these documents in one copy, which are stored in the personnel or accounting department, depending on who is involved personnel work. This is a violation of your rights. You have the right, upon written request, to familiarize yourself with your personal file and make copies of documents. The most important thing is that on the second copy, which will remain with you, there is the number of the incoming document and the signature of the one who accepted it. You copy the entire personal file of the employee from cover to cover.

Tip three

I do not recommend going to personnel officers for advice, and even more so to your own personnel department, they will lie from three boxes out of love for art and loyalty to the company. You need an employment lawyer. A lawyer of even the broadest profile with the most big name fits tight.

Tip Four

You have collected documents, figured out what you owe and what will be for whom. You consulted with a lawyer and found out what rights you have and what you can claim. If the salary is paid in a black envelope, it is better to agree on some compensation and part ways with the company amicably. Proving the value of the "black" salary in court is troublesome, and often not possible.

Tip five

Suppose you do not intend to quit, although you are openly hinted at. Naturally, there can be no talk of any delays, every gesture must be documented.

Tip six

Watch what you sign. Often, especially cunning employers slip you documents in which you admit that until the forty-fifth year you worked as the main Hitler in the Third Reich. Do not sign anything without the advice of a lawyer, otherwise you will look pale in court.

Tip Seven

You are still fired, and even with the wording: "one-time gross or a system of violations." Nothing wrong. You have a month to file a claim with the court, but before that you must receive disciplinary orders, a dismissal order, a work book with a record of dismissal. Why is this needed? If the dismissal was illegal, within a month you have the right to file a lawsuit with the court at the location of the defendant. In the statement of claim, in part of the requirements, it is written "I ask to be reinstated at work, to recover for forced absenteeism." The trial will go from four months to one and a half years. If the process is won, then for the entire time from the moment of dismissal until the decision is made, the employer is charged for your forced absenteeism. (With)

24 Aug 2009

5 typical "crisis" layoffs: how to protect yourself?

Lawyers Center for Social and Labor Rights call 5 basic situations in which employees find themselves due to the crisis, and typical mistakes workers leading to the infringement of their rights.

Situation one

Employer action: The company's management strongly recommends that all employees write a letter of resignation of their own free will, threatening to fire them for absenteeism, incompetence and other negative grounds.

Employee error: Yielding to the excitement and threats of the employer to give a negative recommendation for a new job, the employee writes a statement and quits "of his own free will."

Result: An employee is fired without severance pay, he does not have time to look for a new job. New employment due to lack of time to search for a suitable vacancy occurs with a loss of earnings. The employee's family is left without a livelihood for several months, and is not in the New Year mood at all ...

Lawyer comment: Before writing a letter of resignation, think about yourself and those close to you who are dependent on you. If you don't have enough money set aside to live on for at least a few months, don't agree to quit on your own! If the employer decides to fire you for fictitious reasons (for example, for absenteeism, which you did not commit), you will most likely succeed in going to court to recover from the employer average earnings during the forced walk. As a result, you will have something to give money borrowed from friends for food and basic necessities.
Also keep in mind that arbitrage practice proceeds from the fact that the termination of the employment contract at the initiative of the employee is permissible in the case when the filing of a letter of resignation was his voluntary will. If the employee claims that the employer forced him to submit a letter of resignation of his own free will, this circumstance is subject to verification by the court. However, the obligation to prove the facts of exerting pressure rests with the employee.
Therefore, if the employer puts psychological pressure on you and voices threats, try to record these facts using a voice recorder and other technical means. Enlist witnesses who can, in the event of a dispute, confirm that you were forced to quit. Keep contacts of retired employees - often people simply cannot find their former colleagues who witnessed the facts of forced resignation. You can challenge the dismissal "of your own free will" within a month from the date of delivery of a copy of the order of dismissal or issuance work book.
Do not forget also that you have the right to withdraw your letter of resignation within two weeks from the date of receipt of the application by the employer (Article 80 of the Labor Code of the Russian Federation). It is necessary to withdraw the application in writing, keeping the second copy of the application with a note of receipt by the employer.

Situation two

Employer action: The company's management tells employees about the need to write an application for leave without saving wages(popularly "administrative leave" or "vacation at one's own expense"). Often, such actions are accompanied by the distribution of a corresponding application form, in which employees are invited to put their full name, date and signature.

Employee error: Out of a sense of collectivism and in the hope that such loyal behavior will be "received" by management in the future, most employees agree to sign a leave application.

Result: The employee is left without a livelihood, trying to find a temporary part-time job" or "hack work", which, as a rule, turns out to be less paid and unstable. Therefore, if you have already applied for unpaid leave, you run the risk of New Year on a starvation diet.
True, unlike a retired employee, an employee who is on unpaid leave has the right to withdraw his application at any time, after which the employer will either have to pay wages or dismiss the employee after two months of reduction with the payment of severance pay .

Lawyer comment: If you do not have a real part-time job, this option does not promise you any benefit. Continuous work experience has lost its former legal meaning and no longer affects the appointment of a pension. Most likely, the employer simply does not want to pay you the severance pay, compensation for unused vacation. The period for granting leave without pay is not limited by law. The calculation of the employer is simple - most likely, employees sent to "free swimming" will, after hesitating, find themselves new job and they will come with a letter of resignation of their own free will, in order only to pick up their work book. Conclusion - if you have one job, then most likely it is not in your interests to write an application for leave without pay. Refuse to write a statement, and if you have already signed it, write a new one - about refusing to grant leave without pay - and go to work.
If you have evidence of pressure on you when writing applications for unpaid leave, you can expect to receive average earnings from the employer during the period of illegal suspension from work by going to court.

Situation three

Employer action: Two weeks before the end of the probationary period, the boss calls the employee and says that there are serious comments on his work and the most The best way- resign of their own free will. At the same time, the employee is informed that if he refuses to write a statement, he will be fired as he did not pass the test and is unlikely to be able to find a decent job. The actions of the employer are often explained good attitude to the employee and unwillingness to spoil his business reputation and work record.

Employee error: Because of the fear of getting a negative entry in the work book, the employee writes a letter of resignation of his own free will and leaves the company.

Result: The employee is left without a livelihood, trying to look for another job. Unlike an employee who left of his own free will, having an "indefinite" employment contract, an employee undergoing probation more adapted to the situation of finding a new job from a moral point of view. As a rule, finding themselves in a similar situation, a person believes that he was simply unlucky and continues to search for work again. But, new year holidays spoiled - looking for work until mid-January is almost pointless - hiring decision makers are skiing out of the country.

Lawyer comment: According to Art. 71 of the Labor Code of the Russian Federation, an unsatisfactory test result must be motivated by the employer. The employer is obliged not later than 3 days before the dismissal to warn the employee about the dismissal on this basis, setting out the reasons that served as the basis for recognizing the employee as not having passed the test in writing. The burden of proving the validity of the reasons and the fact that they took place lies with the employer.
If you were dismissed on this basis unfairly, we recommend that you apply to the court within a month from the date of dismissal with a claim for reinstatement and recovery of average earnings for the days of forced absenteeism, as well as moral damage. If you do not have outstanding tasks, absenteeism, etc., it is highly likely that the court will restore justice and your suffering will be compensated.
Do not be afraid to get a negative entry in the work book. Everyone knows that during a crisis, many employers fire employees, grossly violating the law. The main thing is to correctly explain the situation with a new job.
Remember also that the probationary period is not a reason for not paying you severance pay in the event of a reduction in your position. In case of reduction, you are subject to the same reduction procedure as for other employees - a notice of dismissal of at least two months and payment of severance pay.
Thus, if you manage to withstand the attack and force the employer to comply with the law and fire you for redundancy, you are guaranteed to save income for 5 months. So, two months after the notice of dismissal, you continue to work in your position, then upon dismissal you receive a severance pay in the amount of the average monthly salary. If you do not find a job, then you retain the average earnings for the second month after the dismissal. If you register with the employment service and register as unemployed within two weeks from the date of dismissal, then the average earnings are retained in case of unemployment and for the third month from the date of dismissal.

Situation four

Employer action: The company's management strongly recommends that employees resign "by agreement of the parties" in connection with the financial crisis. Two salaries are offered as compensation. The HR service assures that this is an offer that cannot be refused and its validity period is limited to a few hours. Those who were not fired “by agreement of the parties” are threatened with dismissal for absenteeism or inconsistency with their position.

Employee error: Having decided that “at least a tuft of wool from a black sheep,” the employee signs an agreement to terminate the employment contract.

Result: Having come to his senses and discussed what happened with relatives and friends, the employee sometimes regrets what he did, because in two months it is not always possible to find a job, even during a crisis. Sometimes the employee recalls that of the two salaries specified in the agreement, one of them should have been paid anyway as compensation for unused vacation. However, despite some disappointments, in this case, the employee has something to cover New Year's table, and there is also time to realize mistakes and start looking for a new job.

The employer does not fire at will - this situation is becoming more common, but employees sometimes do not know what to do after a refusal. This material discusses the rights of the employee and the consequences for the employer that prevents dismissal.

Legislation of the Russian Federation on the right of an employee to dismiss at his own request

The rights of an employee to work, free disposal of it and the inadmissibility of forced labor are enshrined in Art. 37 of the Constitution of the Russian Federation. Based on these norms, it is obvious that no employer should interfere with the exercise of the employee's right to dismiss on his own initiative, enshrined in Art. 77 and 80 of the Labor Code of the Russian Federation. Additional clarifications regarding dismissal of one’s own free will are given by the letter of Rostrud “On the procedure for dismissal ...” dated 05.09.2006 No. 1551-6.

What can an employer do if they don't want to fire an employee?

The employer does not have the right to prevent dismissal of his own free will, but in practice such cases occur, which means that possible situations need to be considered.

Refusal to accept an application

Art. 80 of the Labor Code defines the procedure for informing the employer about the employee's intention to quit. To do this, he informs the employer in writing about his desire at least 2 weeks in advance. At the same time, the Labor Code does not explain how exactly this message should reach the employer. Rostrud letter No. 1551-6 allows informing by mail with notification or even by internal e-mail with an electronic signature. There are cases when the employer does not register a letter of resignation and then claims that he did not receive it. To avoid this, the employee can:

Non-issuance of documents

Another problem is the desire of the employer to impose on the employee a lot of "urgent" and "important" things that he must do before he receives the calculation and work book. At the same time, Art. 80 of the Labor Code of the Russian Federation states that after the expiration of the notice period for dismissal, the employee has the right not to go to work anymore, and the employer is obliged to issue him a work book and make a calculation. If the employee did not receive his payments and work book on time due to obstacles caused by the employer, then in accordance with paragraph 35 of the Decree of the Government of the Russian Federation “On work books” dated April 16, 2003 No. 225, he has the right to count on compensation in the amount of earnings for all the delay time. To obtain it, as well as to restore their rights related to dismissal of their own free will, the employee can go to court on the basis of Art. 391 of the Labor Code of the Russian Federation.

Additional responsibilities as an obstacle to dismissal

No additional duties assigned to the employee can serve as an obstacle to dismissal. But during the entire period of working out, the employee must fully fulfill his obligations, submit all required reports on time and be responsible for material values. Evasion from the performance of official functions can be a reason for imposing a disciplinary sanction or even dismissal on negative grounds provided for in Art. 81 of the Labor Code of the Russian Federation.

In conclusion, we say that the employer cannot legally prevent the dismissal of an employee. Otherwise, the employee has the right to defend his interests by any legal means, including in court.

Any employee has the right to dismissal of his own free will. What to do if the employer does not fire you, does not accept the application? Read about it in the article.

General rules for voluntary dismissal

By general rule, established by the Labor Code of the Russian Federation, any employee can quit at his own request. To do this, he must notify the employer of his dismissal in writing no later than two weeks in advance. This period begins on the day after the employer receives a written application from the employee.

Two weeks is the most common time frame. For certain categories of employees, other terms for warning the employer of dismissal are provided:

shorter terms (for example, for seasonal workers, workers who have concluded an employment contract for up to two months);
longer terms (eg for executives, athletes, coaches).

Not later than the period prescribed by law, the employer is obliged to dismiss the employee by terminating the employment contract with him.

Actions of the employee when applying

If you submitted an application according to the rules established in the organization (applied to the immediate supervisor, head of the personnel department, director of the organization, etc.), but your application for resignation of your own free will was rejected (not accepted, destroyed, etc.) , then you are advised to proceed as follows.

Send the letter of resignation or take it personally to the department of the enterprise responsible for incoming and outgoing correspondence (office, secretariat, etc.).

It is better, of course, to submit the application in person and in this case try to obtain evidence that you have submitted this application. But this is not always possible. Therefore, you can follow one of the paths suggested below. In particular, it is recommended:

register the application with the relevant department (office, secretariat or the person responsible for registering correspondence). In addition, it is necessary to make a copy of the application and invite the responsible employee of the unit to put the date and incoming number on the copy of the application, as well as his full name, position and signature;
send a letter of resignation of their own free will to the employer by registered mail with acknowledgment of receipt. After sending the letter, you will have a receipt in your hands. And after the letter is received by the employer, you will receive a notification about to whom and when your letter was delivered;
you can also send a telegram to the employer with the text of the application. Of course, it is better that the telegram be with a notification of receipt.

What to do after filing a resignation letter

So, you submitted an application (submitted in person, sent by mail, etc.). Further, from the moment you filed an application in which you announced your resignation of your own free will, until the date of dismissal that you indicated in the application, you are obliged to fully fulfill your labor duties and prevent violations of labor discipline. This is especially true in cases where it was not possible to reach an agreement with the employer on your dismissal.

After the deadline for dismissal (if this period does not contradict the period established by law), you have the right to stop working. On the last day of work, the employer is obliged to issue you a work book and make the final settlement with you. The employer must also issue other documents related to your work (but provided that you made a written request for documents and met the deadlines required for the preparation of documents by the employer).

If the employer did not issue you a work book on the last day of work and did not make the final settlement with you, then you can apply to the state labor inspectorate, the prosecutor's office or the court.

Moreover, if the employer did not issue you a work book and for this reason you could not get a job, then you can demand compensation from the employer for lost earnings during the time you did not have a work book.

Suppose the following situation arose in your life: you decided to quit your job of your own free will, for example, you were offered a new job on more favorable terms, you wrote, and the employer does not fire you and does not want to sign your application, is this legal and what if you don't get fired?

Where to go if not fired

First of all, you need to contact Labor Code, namely to article 80, which talks about. If you want to quit yourself, you need to notify the manager about this in writing, two weeks before the expected date of dismissal. As a result, after a two-week period, you have the right not to go to work anymore. On the last day of work, the manager must issue you, as well as make the final payment. Some managers do not fire an employee of their own free will, but such actions are illegal. The statement that you wrote is not a request to allow you to quit, it is an advance warning so that the manager has the opportunity to pick up a replacement for you within two weeks.

What do you do if you don't get fired?

The first thing to do is to record the very fact of submitting your application, register it in the office or in the personnel department. And don't forget to duplicate! If your application is denied registration, you need to go to the post office, where you can send your application to the address of the organization, by registered mail with a mandatory notification and description of the attachment. In this case, if the employer does not fire you, you will have 2 documents that confirm that the manager was notified of your dismissal: a receipt for sending the letter and a mail notification signed by the addressee. However, the two-week work will begin from the moment the addressee receives the letter.

Let's assume your application has been accepted. On your last day labor activity you come for the calculation, as well as, however, they refuse to give you documents and the money due to you. In this case, there are 2 types of solution:

Labour Inspectorate;
- Court.

First of all, you need to write a statement that will be sent to the labor inspectorate. Within a month, it must be considered, after which the inspection must issue instructions that will eliminate the violations. In this case, if the manager is not fired of his own free will, he will have only 2 options for exiting: either give the work book voluntarily or receive a penalty in the form of a fine or complete disqualification. In many cases, if the employer does not fire his employee, the latter only needs to threaten with an inspection and the matter does not come to a statement. You also have the right, on the basis that you are being deprived of the opportunity to work, since without a work book, you cannot draw up an employment contract with a new leader. Also, if the employer does not fire you, you have the right not only to demand the return of your work book, but also to recover compensation for the delay in your documents.

So, what to do if your employer doesn't fire you: first of all, remember that the law is on your side, no one has such a right to refuse you to terminate the employment contract, in this case you must record the very fact of filing an application in any of the above ways, work for another 2 weeks, and after this deadline to require payment and documents.