How to properly resign of your own free will: procedure, reasons and conditions for dismissal. What to do if you want to fire your job
Question: - If the head of the company suggested that you write a letter of resignation of your own free will by agreement of the parties, but with compensation amounting to only half of the employee's average monthly earnings.
If the employer carries out the procedure for reducing the number or staff of employees, then he is obliged to carry out it in accordance with the law, with the payment of all the required compensations, and not try to get rid of employees without paying them what they should. Dismissal by agreement of the parties implies the mutual desire of the employer and the employee to terminate the employment relationship. In this case, the payment of compensation is optional, but possible. The amount of compensation can be established by an additional agreement.
Therefore, there are two real ways: 1 ... Continue to work, ignoring the employer's "suggestions" to quit, at the same time prepare for court to appeal a possible dismissal at the employer's initiative. Remember that the employer has ample opportunities to fire an employee on various grounds, 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 striving for 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 only for the employee.
Question: - What should be done if the boss verbally forces them to resign of their own free will, referring to the "crisis", "the decision of the owners." After the employee's refusal, he is not invited to meetings, not sent on business trips, he is not given assignments, to his requests, the answer is one - “look for a job” or leave for a job, do not pass certification, they do not discuss working issues with him. He now has zero performance.
Answer: - First of all, we recommend that you understand the situation: what is still happening in your organization? If there is a reduction in the number or staff of employees, you must be dismissed in connection with the reduction and, accordingly, with the payment of severance pay in the amount of 2 average monthly salaries. Any kind of persuasion to resign of their own accord is an employer's trick. 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, you must attach factual evidence of such coercion - dictaphone records, evidence that you have ceased to be entrusted with work, what -the orders, in general, everything that in your opinion indicates compulsion to dismiss. However, keep in mind that such a step requires careful thought. the employer may try to fire you on a “negative” basis.
In our opinion, the best way is the following - to wait until the employer moves from persuasion to some specific steps on your dismissal - 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 his salary was counted only for the days he worked after the last salary, and they refused to pay compensation for unused vacation, motivating that he did not work for a year. Is the employer's actions lawful and what should the employee take to achieve full payment?
Answer:- The very right to a vacation arises for an 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 filed an application for dismissal of his own free will, which was signed with work in 2 weeks, but during this period he fell ill, and the period of 2 weeks has expired. Does the manager have the right to demand work 2 weeks after granting sick leave.
Answer: - In accordance with Art. 80 of the Labor Code of the Russian Federation, an employee has the right to resign of his own free will, notifying the employer in writing about this 2 weeks before his dismissal. 2 weeks are necessary for the employer in order to find a suitable replacement for the employee. There is no such thing as “compulsory 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 payment of compensation and all the company's debts, received a work book, and after a while the former employer began to ask him about the money allegedly taken into account and not given to the counterparty according to the “cash + non-cash” scheme.
Answer: - In this situation, one can only advise: if the employer believes that the employee owes him something, then let him claim this amount from him in court. If the former employer tries to get some amount from the employee bypassing the court (by 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 optimization of costs by enterprises, specialists have developed recommendations for workers who are going to lay off... 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 receive what you are entitled to when reducing;
By law, the employer must notify the trade union of the enterprise and you in advance about the planned layoff and pay wages at least two months in advance.
WHAT TO DO IF YOU FIRED?
Seven tips from a lawyer:
Most often, the employee is offered to quit of his own free will, with the alternative to stir 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 superiors for one day at your own expense in the last month. If you did not document this in any way, but there was a so-called gentlemen's agreement, there is a possibility that the authorities will completely forget that there was an agreement and the personnel department will fire you for absenteeism if you do not provide supporting documents. Were you late for work, did you complete all the tasks within the timeframes regulated by the company's internal documents?
First advice
All body movements are documented. If you need to be absent from work, write a statement in two copies, on which your management puts its resolution "I do not mind", date and signature. The first copy is with the authorities, the second you press to your heart and hides at home in the most fireproof place. Remember that a disciplinary action can be imposed on an employee within a month from the moment the misconduct was discovered.
Second tip
It's time to reread your employment contract, job descriptions, work house rules, safety rules 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 department or accounting, depending on who is engaged in personnel work. This is a violation of your rights. You have the right, upon written application, to familiarize yourself with your personal file and make copies of documents. The most important thing is that the second copy, which you will have, has the number of the incoming document and the signature of the person who accepted it. Copy the entire employee's personal file from cover to cover.
Third tip
I do not recommend going for advice to personnel officers, and even more so to your own HR department, they will lie three boxes out of love for art and loyalty to the company. You need a labor lawyer. A lawyer of even the broadest profile with the most famous name is a stretch.
Fourth tip
You have collected the documents, figured out what you owe and what will be to 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 break up with the company amicably. It is troublesome to prove the amount of "black" salary in court, and often it is not possible.
Fifth advice
Let's say you do not intend to quit, although they openly hint to you. Naturally, there can be no talk of any delays, every body movement must be documented.
Sixth tip
See what you are signing. 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.
Seventh tip
You are still fired, and even with the wording: "one-time rude or a system of violations." Nothing wrong. You have a month to file a statement of claim in court, but before that you must receive orders to impose a penalty, an order of dismissal, a work book with a record of dismissal. Why is this needed? If the dismissal was carried out illegally, within a month you have the right to file a claim in court at the location of the defendant. In the statement of claim regarding the requirements it is written "I ask to be reinstated at work, to recover for forced absenteeism." The trial will take from four months to one and a half years. If the process is won, then for the entire time from the moment of dismissal to the moment the decision is made, the employer is charged for your forced absenteeism. (from)
24 Aug 2009
5 typical “crisis” layoffs: how to protect yourself?
Lawyers Center for Social and Labor Rights call 5 basic situations,in which workers find themselves in connection with the crisis, and typical mistakes workers that lead to infringement of their rights.
Situation one
Employer's action:The company's management strongly recommends that all employees write a letter of resignation of their own accord, threatening to fire them for absenteeism, incompetence and other negative reasons.
Employee error: Having succumbed to the excitement and threats of the employer to give a negative recommendation for a new job, the employee writes a statement and resigns "of his own free will."
Result: An employee is fired without severance pay, he does not have time to find a new job. New employment due to lack of time to find a suitable vacancy occurs with a loss of earnings. The employee's family is left without a livelihood for several months, and is not at all in New Year's mood ...
Lawyer's comment:Before writing your letter of resignation, think about yourself and those close to you who are dependent on you. Unless you have enough money set aside to live for at least a few months, don't agree to quit your job! If the employer decides to fire you for fictitious reasons (for example, for absenteeism, which you did not commit), you will most likely be able to go to court to collect the average earnings from the employer during the forced absence. As a result, you will have something to give money borrowed from friends for food and basic necessities.
Please also keep in mind that the jurisprudence proceeds from the fact that termination of an employment contract on the initiative of an employee is permissible in the case when the application for dismissal 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 pressure rests with the employee.
Therefore, if the employer exerts psychological pressure on you and voices threats, try to record these facts using a dictaphone and other technical means. Enlist witnesses who can confirm that you were forced to resign in the event of a dispute. Maintain contacts of quit employees - often people simply cannot find their former colleagues who witnessed the facts of coercion to quit. You can challenge the dismissal "of your own free will" within a month from the date of delivery of a copy of the dismissal order or issuance of a work book.
Do not forget also that you have the right to withdraw your letter of resignation within two weeks from the moment the employer receives the application (Article 80 of the Labor Code of the Russian Federation). The application must be withdrawn in writing, keeping a second copy of the application with a note of receipt by the employer.
Situation two
Employer's action:The management of the company tells employees to write an application for unpaid leave (popularly referred to as “administrative leave” or “leave at their own expense”). Often, such actions are accompanied by the distribution of an appropriate application form, in which employees are asked 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 "credited" by management in the future, most employees agree to sign a vacation letter.
Result: The employee is left without a livelihood, trying to find a temporary job "or" hack ", which, as a rule, turns out to be less paid and unstable. Therefore, if you have already written an application for unpaid leave, then you run the risk of celebrating the New Year on a starvation diet.
True, unlike a resigned employee, an employee who is on unpaid leave retains the right to withdraw his application at any time, after which the employer will need to either pay wages or dismiss the employee after two months on reduction with the payment of severance pay ...
Lawyer's 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 severance pay stipulated by the legislation, compensation for unused vacation. The term for granting unpaid leave is not limited by law. The employer's calculation is simple - most likely, employees sent to "free float", having lost their minds, will find a new job and come with a letter of resignation of their own free will in order to just 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 granting leave without pay. Refuse to write an application, and if you have already signed it - write a new one - about refusing to provide 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 from the employer the average earnings for the time of illegal suspension from work by going to court.
Situation three
Employer's action:Two weeks before the end of the probationary period, the boss calls the employee and says that there are serious remarks about his work and the best way is to quit of his own free will. At the same time, the employee is informed that if he refuses to write a statement, he will be fired as having failed the test and is unlikely to be able to find a decent job for himself. The actions of the employer are often explained by a good attitude towards the employee and unwillingness to spoil his business reputation and work record book.
Employee error: For fear of getting a negative entry in the work book, an 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 resigned of his own free will, having an “open-ended” employment contract, an employee undergoing a probationary period is more morally adapted to the situation of looking for a new job. As a rule, finding himself in such a situation, a person believes that he is simply unlucky and continues to search for a job again. However, the New Year holidays are spoiled - looking for a job before mid-January is almost pointless - hiring decision makers go skiing outside the country.
Lawyer's 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, no later than 3 days before dismissal, to notify the employee about dismissal on this basis, stating the reasons that served as the basis for recognizing the employee as having failed 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 unjustly dismissed on this basis, we recommend that you go to 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 have no outstanding tasks, absenteeism, etc., there is a high probability that the court will restore justice and your suffering will be compensated.
Don't be afraid to get a negative workbook entry. Everyone knows that in times of crisis, many employers fire employees, grossly violating the law. The main thing is to correctly explain the situation with a new job.
Remember, too, that probation is not a reason for not paying you severance pay if your job is laid off. In case of layoff, you are subject to the same layoff procedure as for other employees - a notice of dismissal at least two months in advance 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 on the reduction of staff, you are guaranteed income preservation for 5 months. So, two months after the warning about dismissal, you continue to work in your position, then upon dismissal you receive severance pay in the amount of your average monthly earnings. If you do not find a job, then you will keep your average earnings for the second month after your dismissal. If you register with the employment service and register as an unemployed within two weeks from the date of dismissal, the average earnings remain in the event of unemployment and for the third month from the date of dismissal.
Situation four
Employer's action: The management of the company strongly recommends that employees leave their jobs "by agreement of the parties" in connection with the financial crisis. Two salaries are offered as compensation. The HR service assures that this offer cannot be refused and that its validity period is limited to a few hours. Those who are not dismissed "by agreement of the parties" are threatened with dismissal for absenteeism or inadequacy for their position.
Employee error: Having decided that "even a tuft of wool from the black sheep", the employee signs an agreement to terminate the employment contract.
Result:Having come to his senses and discussed the incident with family and friends, the employee sometimes regrets what he had done, because in two months it is not always possible to find a job, even during a crisis. Sometimes the employee recalls that out of the two salaries specified in the agreement, one should have been paid to him as compensation for unused vacation. However, despite some disappointments, in this case the employee has something to cover the New Year's table, and also has time to realize mistakes and start looking for a new job.
The employer does not dismiss of his own free 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 of preventing dismissal.
Legislation of the Russian Federation on the employee's right to dismiss of his own free will
The employee's rights to work, free disposal of them 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 their own accord are given by the Rostrud letter "On the procedure for dismissal ..." dated 05.09.2006 No. 1551-6.
What an employer can do if he doesn'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 the application
Art. 80 of the Labor Code determines 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 provide an explanation of how exactly this message should reach the employer. Rostrud's letter No. 1551-6 allows information to be sent by post with notification or even by internal e-mail if there is an electronic signature. There are cases when the employer does not register the letter of resignation and then claims that he did not receive it. To avoid this, the employee can:
Failure to issue documents
Another problem is the desire of the employer to entrust the employee with a lot of "urgent" and "important" things that he must do before he receives a payment and a work book. Moreover, Art. 80 of the Labor Code of the Russian Federation states that after the expiry of the notice of dismissal, the employee has the right to no longer go to work, 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 RF Government Decree "On work books" dated 04.16.2003 No. 225 he has the right to count on compensation in the amount of earnings for all the delay. To obtain it, as well as to restore his rights related to dismissal of his own free will, the employee can apply to the court on the basis of Art. 391 of the Labor Code of the Russian Federation.
Additional responsibilities as an obstacle to dismissal
Any additional duties assigned to the employee can not serve as an obstacle to dismissal. But during the entire period of working off, the employee must fully fulfill his obligations, submit all the due reports on time and be responsible for material values. Evasion of the performance of official functionality may become a reason for the imposition of a disciplinary penalty or even dismissal on negative grounds provided for in Art. 81 of the Labor Code of the Russian Federation.
In conclusion, let us 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 be dismissed at will. What if the employer does not fire you, does not accept the application? Read about this in the article.
General rules for dismissal of your own free will
According to the general rule established by the Labor Code of the Russian Federation, any employee can resign at his own request. To do this, he must notify the employer of his dismissal in writing not later than two weeks. The course of this period begins the next day after the employer receives a written application from the employee.
Two weeks is the most common period. For certain categories of employees, there are other periods for warning the employer about dismissal:
- shorter periods (for example, for seasonal workers, employees who have entered into an employment contract for up to two months);
- longer periods (for example, for managers, athletes, coaches).
The employer is obliged to dismiss the employee no later than the term stipulated by law, by terminating the employment contract with him.
Employee actions when submitting an application
If you submitted an application according to the rules established in the organization (you turned to your immediate supervisor, the head of the HR department, the director of the organization, etc.), but your application for dismissal was rejected of your own free will (not accepted, destroyed, etc.) , then you are advised to proceed as follows.
Send or take the letter of resignation personally to the department of the enterprise responsible for incoming and outgoing correspondence (office, secretariat, etc.).
It is better, of course, to present the application in person and try in this case to get evidence that you have submitted this application. But this is not always possible. Therefore, you can go along one of the suggested paths below. In particular, it is recommended:
- register the application with the appropriate department (office, secretariat or with the person responsible for registering correspondence). In addition, you need 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 his own free will to the employer by registered mail with acknowledgment of receipt. After sending the letter, you will have a receipt for the departure. And after the employer receives the letter, you will receive a notification about who 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 is with acknowledgment of receipt.
What to do after submitting a letter of resignation
So, you have submitted an application (submitted in person, sent by mail, etc.). Further, from the moment of filing the application, in which you informed about the dismissal of your own free will, until the date of dismissal, which you indicated in the application, you are obliged to fully fulfill your labor duties and not allow violations of labor discipline. This is especially true in cases where it was not possible with the employer to agree on your dismissal.
After the deadline for dismissal (if this deadline does not contradict the deadline established by law), you have the right to stop working. On the last day of work, the employer is obliged to give you a work book and make the final settlement with you. Also, the employer must issue other documents related to your work (but provided that you made a written request for documents and met the deadlines for the preparation of documents by the employer).
If the employer did not give you a work book on the last day of work and did not make a 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 give you a work book and for this reason you were unable to get a job, then you can demand from the employer compensation for the lost earnings during the time you did not have a work book.
Suppose the following situation has arisen in your life: you made a decision to quit your job of your own accord, 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 it legal and what if you are not fired?
Where to go if you don't get fired
First of all, you need to refer to the Labor Code, namely to article 80, which says about. If you want to quit your job, you need to notify your manager about this in writing, two weeks before the expected resignation date. 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 give you, as well as make the final calculation. Some managers do not voluntarily fire an employee, but this is illegal. The statement you wrote is not a request to leave you, it is an early warning so that the manager has the opportunity to pick up a replacement for you within two weeks.
What 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 make a duplicate! If your application is denied registration, you need to go to the mail, where you can send your application to the address of the organization, by registered mail with mandatory notification and a list of attachments. 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 a letter and a mail notification signed by the addressee. However, the two-week working off will begin from the moment the addressee receives the letter.
Let's assume your application has been accepted. On the last day of your labor activity, you come for the payment, as well as, however, they refuse to give you documents and money owed to you. In this case, there are 2 types of solutions:
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 dismissed of his own free will, he will have only 2 exit options: 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 the inspection and it does not come to the application. You also have the right, on the basis of the fact that you are deprived of the opportunity to work, because without having a work book, you cannot draw up an employment contract with a new manager. 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 to terminate your employment contract, in which case you must record the very fact of submitting an application in any of the above ways, work for another 2 weeks, and after this deadline to require calculation and documents.
