What to do if you are facing dismissal. The employer forces you to resign at your own request. What to do
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Reasons when an employer requires an employee to write a statement at will, can be very different - the company does not have enough money to pay an 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 department labor law Institute of Professional Personnel Tatyana Shirnina.There may be several ways out of this situation:
- Do not write a letter of resignation of your own free will and continue to work as if nothing had happened;
- Do not write the above statement, but contact the regulatory authorities with a complaint against the employer;
- Offer the employer to part ways by agreement of the parties with payment of a certain amount.
"Often it is last option 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 verification of 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 is making threats in an attempt to get fired, his behavior is a legitimate reason to contact him. labor inspection, to the court and 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 official or individual entrepreneur. Punishment for legal entities more severely: they are required to pay compensation in the amount of 30 to 50 thousand rubles.
What is evidence of pressure being exerted?
According to Shirnina, most often the courts recognize audio recordings of conversations recorded independently 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.
"The employer does not have legal ways seek the dismissal of an employee at his own request. These actions are basically illegal. Traditional methods“survival” of an unyielding employee from an organization represents various variations of certain rights of the employee (primarily - 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 for himself work time“smoke breaks” and tea parties. In general, fully comply with labor discipline. In addition, perform your duties carefully and efficiently job responsibilities, 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 cause harmful effects per person. In addition, it is necessary to certify specialists who use during their work hand tool, including electrified or mechanized. The latter also includes participation in the procedure office workers, spending 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 workshops 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 an absence? job description and fire the 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 work responsibilities and qualification requirements are not registered anywhere with the position held, 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. Forcing an employee to sign something without his desire already during labor activity impossible.
“By the way, the absence of a mandatory condition of the employment contract is regarded as a violation 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. Arbitrage 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.
As shown by a survey conducted Research Center recruiting portal site (), almost every third Russian has had a situation where he had to threaten his employer with leaving his job.
If all the ways to achieve improved working conditions have been exhausted, there is only one thing left: to threaten the employer with leaving. This measure, although not without risk, in many cases helps to achieve the desired. This opinion is shared by 31% of Russians who have already experienced similar situations in their lives. Men take this step more often than women (36% versus 27%). Largest number those who have ever given an employer a choice are observed among respondents aged 30 to 40 years (38%). It can also be noted that attempts to improve their situation in this way were more often made by survey participants with average and high level income than workers with modest salaries.
At the same time, many respondents are aware that, firstly, the use of blackmail does not characterize an employee with the best side, and secondly, after such a demarche you can lose your job: “Blackmailing the employer is not an option. If you do this, then be prepared to be fired as soon as an adequate replacement is found.” However, the majority of those who took this step (69%) report that in their case the matter was crowned with success: “Both the employer and I were interested in the result”; “I am a very valuable employee!” Interestingly, women who ever threatened their bosses with dismissal achieved a positive result more often than men (72% versus 66%).
In turn, 17% of Russians who threatened their employer with leaving the company were left without work because of this. Mostly, respondents left the company themselves after the employer refused to satisfy their requests. “At least I got rid of the illusion that the management of this company values me. I found out everything and left this organization”; “I talked to my boss several times about my salary, but he kept asking me to wait. In the end, I wrote a statement and quit. And I didn’t regret it,” they comment.
Another 9% of respondents remained in the company, but many of them did not have a future in this organization: “Not for long”; “Our department was cut anyway.”
61% of Russians (55% among men and 66% among women) have never threatened their employer with leaving. According to them, “this method will not help achieve any result, except that it will help to fall in the eyes of people,” “the employer must value his employee and offer him more decent working conditions.”
Study population: economically active Russians over 18 years of age
Sample size: 7000 respondents
Question:
“Has a situation ever happened to you when you had to threaten your employer with leaving your job in order to achieve what you wanted (increase in salary, improvement in working conditions, etc.)?”
| Possible answer | All | Floor | Age, years | Monthly income, rub. | |||||||||
| husband | wives | until 23 | 24-29 | 30-39 | 40-49 | 50 and older | up to 14999 | 15000-24999 | 25000-34999 | 35000-44999 | from 45000 | ||
| Yes | 31% | 36% | 27% | 22% | 33% | 38% | 34% | 25% | 18% | 25% | 32% | 36% | 38% |
| No | 61% | 55% | 66% | 71% | 59% | 54% | 60% | 67% | 75% | 67% | 61% | 56% | 55% |
| I find it difficult to answer | 8% | 9% | 7% | 7% | 8% | 8% | 6% | 8% | 7% | 8% | 7% | 8% | 7% |
“No” – 61%
“This method will not help achieve any result, except that it will help you fall in the eyes of people.”
“I’m not the most conflicted person. I believe that it is better to resolve such issues at the negotiating table.”
“I think I will. And very soon!”
“I think this is a useless exercise.”
“An employer must value his employee and offer him more decent working conditions.”
“It’s now easier for employers to find a new person without whims.”
“I don’t consider blackmail to be appropriate behavior for a specialist.”
“I was just changing jobs.”
“I never made any threats, I packed up and left without talking.”
“Yes” – 31%
“The employer met me halfway.”
"It didn't help me."
"Many times."
“It just doesn’t work out any other way.”
“I didn’t threaten, but offered a choice: if the company needs me, pay the average market price, if not, we’ll part ways.”
“Blackmailing an employer is not an option. If you do this, then be prepared to be fired as soon as an adequate replacement is found.”
“I was fired after that.”
“Difficult to answer” – 8%
“I didn’t threaten, but I said that I couldn’t work with this level of salary anymore, therefore, I would look for a new job.”
“Not directly, but she always made it clear that I was a valuable employee and there were other offers, so the employer raised my salary on his own.”
Location of the survey: Russian Federation, all districts
Date: January 25-26, 2010
Study population: economically active Russians over 18 years of age who have ever threatened their employer with leaving their job
Sample size: 1800 respondents
Question:
“Did you manage to achieve what you wanted in situations where you had to threaten your employer with leaving your job?”
The respondents' answers were distributed as follows:
| Possible answer | All | Floor | Age, years | Monthly income, rub. | |||||||||
| husband | wives | until 23 | 24-29 | 30-39 | 40-49 | 50 and older | up to 14999 | 15000-24999 | 25000-34999 | 35000-44999 | from 45000 | ||
| Yes | 69% | 66% | 72% | 65% | 70% | 68% | 70% | 72% | 63% | 68% | 66% | 69% | 72% |
| no, and I had to quit my job | 17% | 19% | 14% | 20% | 17% | 17% | 16% | 9% | 21% | 20% | 19% | 16% | 16% |
| no, but I stayed at work | 9% | 9% | 9% | 12% | 8% | 10% | 8% | 10% | 11% | 8% | 10% | 11% | 7% |
| I find it difficult to answer | 5% | 6% | 5% | 3% | 5% | 5% | 6% | 9% | 5% | 4% | 5% | 4% | 5% |
Some comments from respondents:
“Yes” – 69%
“The employer has reconsidered its attitude.”
“I believe that a competent specialist costs less than that equipment on which it works..."
“I am a very valuable employee!”
“Before you threaten your employer with leaving, you need to be sure of the result.”
“Yes, but then I left the company anyway.”
“But it was a temporary result.”
“Both the employer and I were interested in the outcome.”
“No, and I had to quit my job” – 17%
“My conscience gnawed at me. I believe that it is not worth achieving good in this way. Either there is good conditions, or not, and then you have to leave.”
“If you threaten to leave your employer, you should be ready to quit if necessary. I spoke with my boss several times about my salary, but he kept asking me to wait. In the end, I wrote a statement and quit. And I didn’t regret it.”
“At least I got rid of the illusion that the management of this company values me. I found out everything and left this organization.”
“No, but I stayed at work” – 9%
"Not for long."
“Our department was cut anyway.”
“They didn’t give me any answer to my questions.”
“Difficult to answer” – 5%
“There were different situations.”
“One time it worked, the other time it didn’t.”
“Not always, but sometimes it worked.”
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Threat of dismissal
As a survey conducted by the Research Center of the recruiting portal SuperJob.ru (http://www.superjob.ru) showed, almost every third Russian had a situation where he had to threaten his employer with leaving his job.