A former employee filed a lawsuit to force him to resign: arguments in favor of the employer (Galochkina A.B.)

Date of article publication: 07/06/2014

As practice shows, there are often situations when a former employee, who resigned of his own free will, goes to court and talks about forcing him to write a letter of resignation. In this article we will look at how an employer needs to defend the legality of dismissing an employee.
What is the procedure for voluntary dismissal? How are the responsibilities for proving circumstances relevant to the case distributed? What arguments are not considered by the court as compulsion to dismiss?

The procedure for dismissal at will

If a former employee files a claim to force him to resign at his own request, the former employer must justify that the dismissal procedure provided for by labor legislation was followed.
According to Art. 80 of the Labor Code of the Russian Federation, an employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, unless a different period is established by the Labor Code of the Russian Federation or other federal law. The specified period begins the next day after the employer receives the employee’s resignation letter.
By agreement between the employee and the employer, the employment contract can be terminated even before the expiration of the notice period for dismissal.
In the case when an employee’s application for dismissal on his initiative (at his own request) is due to the impossibility of continuing his work (upon enrollment in an educational organization, retirement, etc.), as well as when it is established that the employer has violated labor legislation and other regulatory legal acts containing norms of labor law, local regulations, terms of a collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee’s application.
Please note that before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out unless another employee is invited in his place in writing, who, in accordance with the Labor Code of the Russian Federation and other federal laws, cannot be denied an employment contract.
Upon expiration of the notice period for dismissal, the employee has the right to stop working. On the last day of work, the employer is obliged to issue the employee a work book and other documents related to work, upon the employee’s written application, and make a final payment to him.
If, upon expiration of the notice period for dismissal, the employment contract has not been terminated and the employee does not insist on dismissal, the employment contract continues.
Thus, the employer is recommended to justify compliance with the established procedure in objections to the statement of claim and to confirm the above, it is necessary to submit to the court copies of the employee’s application for dismissal, the dismissal order with the employee’s signature for familiarization, pages of the logbook for recording the movement of work books with a signature on receipt of the work book by the former employee, as well as other necessary documents.
If the resignation letter was written in advance (indicating the date of dismissal), no application to withdraw the resignation letter was received, these facts should be emphasized in court.

Responsibilities to prove circumstances relevant to the case

According to Art. 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis for its claims and objections, unless otherwise provided by federal law. The court determines what circumstances are important for the case, which party must prove them, and brings the circumstances up for discussion, even if the parties did not refer to any of them.
As explained in paragraph 22 of Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution No. 2), when considering disputes regarding termination at the initiative of an employee of an employment contract concluded for an indefinite period , as well as a fixed-term employment contract (clause 3, part 1, article 77, article 80 of the Labor Code of the Russian Federation), it must be borne in mind that termination of an employment contract at the initiative of an employee is permissible in the case where filing a letter of resignation was his voluntary expression of will. If the plaintiff claims that the employer forced him to submit a resignation letter of his own free will, then this circumstance is subject to verification and the responsibility to prove it rests with the employee.
Let's look at examples of court decisions on issues of forced dismissal of an employee.

An attempt to avoid dismissal on grounds that discredit an employee

Thus, by the appeal ruling of the Vologda Regional Court dated November 6, 2013 in case No. 33-5096/2013, the claim for reinstatement at work in the previous position, recovery of average earnings for the period of forced absence, compensation for moral damage was denied due to the plaintiff missing the deadline without good reason , established by Art. 392 of the Labor Code of the Russian Federation, and the lack of evidence confirming that the plaintiff was forced to contact the employer with an application for dismissal from work of his own free will.
The court noted: reaching an agreement on the date of dismissal implies that the rules of law providing for the right to withdraw the application and continue the employment contract in the event that it was not terminated upon expiration of the notice period for dismissal are applied taking into account the date of dismissal determined by agreement of the parties.
The circumstances to be proven when considering this case, in the opinion of the court, are circumstances confirming the presence or absence of the plaintiff’s will to resign at his own request.
In refusing to satisfy the claim, the court rightfully pointed out that an attempt to avoid dismissal on grounds that discredit the employee by using the right to file a resignation letter at one’s own request and subsequent termination of the employment contract cannot in themselves be evidence of pressure exerted on the employee by the employer; No other evidence indicating that the plaintiff was under pressure from the employer was presented to the court.
The resignation letter was submitted by the plaintiff in person, indicating the date on which the employee wishes to terminate his employment relationship with the defendant. After the dismissal order was issued and familiarized with it, the plaintiff did not go to work. These circumstances confirm the voluntary nature of the plaintiff’s actions and the existence of an expression of will to dismiss at his own request.
Thus, the court, having analyzed the above-mentioned rules of law and the circumstances of the case, came to the conclusion that the dismissal of the plaintiff was legal.

Conversations about forced dismissal

By the appeal ruling of the Arkhangelsk Regional Court dated March 18, 2013 in case No. 33-1407/2013, the claim for reinstatement at work and recovery of average earnings during forced absence was also rightfully denied, since the plaintiff’s dismissal was voluntary in nature, there was evidence that there was coercion for dismissal by the defendant, she did not submit.
The citizen filed a lawsuit against the municipal administration for reinstatement in her previous position, recovery of average earnings for the period of forced absence, as well as for the cancellation of the order of the head of the municipal administration to reduce temporary disability benefits and pay this benefit in full, recovery compensation for moral damages for violation of labor rights and legal costs, citing the fact that the employment contract with her was terminated under clause 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation, that is, on the initiative of the employee, meanwhile, she did not set as her goal dismissal, but filed an application for this forcedly, as a result of hasty pressure on her from the head of the administration, who also by her order decided to reduce her temporary disability benefits, allegedly due to a violation hospital regime.
At the court hearing, the citizen explained that she was called by the head of the municipal administration to her office and offered to write a statement of her own free will, threatening that otherwise he would fire her on other grounds. The head of the municipal administration also said that she did not provide her with adequate support during the election campaign. Being in a stressful state, she fulfilled this requirement, the dismissal was carried out within an hour, and she was immediately given a work book.
The head of the administration did not recognize the claim, explaining that the submission of a written resignation was a voluntary expression of the will of the plaintiff in connection with the conversation about the loss of trust in her as a financially responsible person and due to her inadequate business qualifications, while no pressure was put on her, the possibility The plaintiff did not take advantage of withdrawing her application before dismissal.
The court made the above decision, with which the citizen did not agree with the dismissal of the claim; in the appeal filed, she asks to change it in this part due to the court’s incorrect assessment of the circumstances of the case and the evidence presented, as well as due to the discrepancy between the court’s conclusions and the circumstances of the case.
In the appeal, the plaintiff insists that she has proven that her employer, under moral and psychological influence, forced her to write a letter of resignation of her own free will. The court unreasonably accepted as evidence the testimony of witnesses who, at the time of her dismissal, had no longer worked in the administration of the municipality for a long time and could not confirm the reasons for her dismissal. According to the plaintiff, the head of the municipality said that she did not want to spoil her work record, and explained that the transfer of cases was not required, since there is interchangeability between the plaintiff and the financier, however, the financier testified that the transfer of cases was required, but she refused to accept the cases from her, and also testified that after a conversation with the head of administration, the plaintiff returned in an upset state and said that she was fired. The court also did not take into account her explanation that the real reason for the plaintiff’s dismissal was the fact that she did not support the candidacy of the current head of administration in the elections. The court unreasonably found that she agreed with the head’s order on dismissal, since she agreed not with the dismissal, but with clause 2 of this order on the withholding of amounts for unworked vacation. In addition, the court did not take into account that the defendant terminated her employment contract at the initiative of the employer and fired her without two weeks of work.
The panel of judges believes that there are no grounds for canceling the court decision, based on the following.
The court of first instance correctly established the factual circumstances of the case, which boil down to the fact that the plaintiff, who held a position in the municipal administration under an employment contract, submitted a written statement of resignation from work of her own free will, which is available in the case materials. The case file contains a statement addressed to the head of the municipality, in which the plaintiff asks to dismiss her at her own request (indicating a specific date). The writing of this statement indicating the date from which the plaintiff wishes to terminate her employment relationship with the defendant is not denied.
Based on this statement and in accordance with paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation, the defendant issued an order to dismiss the plaintiff at her own request, as well as to withhold from her amounts for the unworked 14 calendar days of vacation. On the same day, the plaintiff was issued a work book with a record of the termination of the employment relationship.
The court points out that the plaintiff did not provide evidence confirming that she was forced to write a resignation letter of her own free will.
In the appeal, as a circumstance preceding the writing of the letter of dismissal, the plaintiff points to a conversation that took place between her and the head of the municipal administration.
According to the explanations of the head of administration in this conversation, which took place in her office, the plaintiff was indeed asked to resign of her own free will due to the loss of confidence in her as a financially responsible person and because of her low business qualities. However, the conversation itself is not sufficient evidence that the said official forced the plaintiff to make a decision convenient for the employer’s representative, to write a resignation letter under pressure of her own free will.
The increased demands of the head of the administration of the municipality on the plaintiff in terms of correct accounting and timely submission of financial statements or a critical assessment of any actions of the employee by this superior manager are not sufficient evidence that this official is forcing the employee to resign.
The fact that a dismissal order was issued on the day the application was written does not in itself indicate the forced nature of writing such an application. In accordance with Art. 80 of the Labor Code of the Russian Federation, by agreement between the employee and the employer, the employment contract can be terminated even before the expiration of the notice period for dismissal, in particular on the day the employee who wishes to stop working submits an application.
From the testimony of the witness (on the plaintiff's side) - a financier (leading specialist of the municipal administration) questioned in the court of first instance - it does not follow that the application for dismissal was submitted by the plaintiff under duress from the employer - the head of the municipal administration. From the testimony of this witness contained in the protocol of the court session, all that is clear is that the plaintiff returned from the office of the head of the municipal administration in tears, saying that she had been fired, and asked to take over her cases.
The district court rightfully did not take into account the testimony of this witness about the plaintiff writing a letter of resignation against her will, since the witness did not know about this personally; she bases her testimony in this part on the words of the plaintiff.
For similar reasons, the court did not accept as evidence that the employee was forced to resign and the testimony of another interrogated witness on the plaintiff’s side.
In addition, the circumstances that with her signature the plaintiff agreed with the order of dismissal and before the actual termination of the employment contract, she did not submit an application to withdraw the resignation of her own free will, although she had a real opportunity to do so, and immediately took away the work book, according to In essence, they also express the plaintiff’s single, strong opinion on dismissal of her own free will on the day of filing the application.
The appellant’s reference to the fact that her signature in the dismissal order indicates her agreement only with clause 2 of the order (on the withholding of amounts for unworked vacation) cannot be taken into account by the judicial panel as justified, since this order does not contain her disagreement She did not state the grounds for dismissal and the specific date of termination of the employment contract. On the contrary, the plaintiff’s consent to withhold amounts for unworked vacation indicates her consent to dismissal, since by virtue of paragraph. 5 hours 2 tbsp. 137 of the Labor Code of the Russian Federation, the deduction of amounts from wages for unworked vacation days is strictly targeted and is carried out exclusively in the event of an employee’s dismissal at his own request before the end of the working year for which he has already received annual paid leave.
The plaintiff, due to her official position and the position she held, could not have been unaware of this.
The applicant’s arguments about the hasty nature of the dismissal, that is, without transferring cases to another employee, also do not indicate the court’s conclusion that there were no violations of labor laws on the part of the defendant when terminating the employment contract with the plaintiff.
Thus, the possibility of dismissing an employee without transferring cases is directly provided for by labor legislation, Art. 80 of the Labor Code of the Russian Federation does not prohibit this for the employer. At the same time, the employer’s argument that, given the actual interchangeability of workers, the transfer of cases on the merits was not required, the plaintiff has not refuted anything.
The reference in the complaint to the fact that the real reason for putting moral and psychological pressure on the plaintiff was her support in the election campaign of another candidate for the post of head of the municipal government does not indicate a cause-and-effect relationship between these events and the plaintiff being forced to write a letter of resignation of her own free will .

Person forcing dismissal

By the ruling of the Nizhny Novgorod Regional Court dated July 25, 2006 in case No. 33-3821/06, the claim for reinstatement at work was denied, since the case materials did not confirm that the employer forced the employee to submit a resignation letter of his own free will.
The judicial panel of the Nizhny Novgorod Regional Court came to the conclusion that the mere fact of conducting inspections cannot be considered as pressure from the employer on the employee subordinate to him.
As follows from the explanations given in Resolution No. 2, a necessary condition for recognizing the dismissal of an employee at his own request as illegal is the fact that the employer forced the employee to submit such an application.
However, as can be seen from the case materials, the plaintiff’s employer, who has the right to hire and fire, is the chief bailiff of the Nizhny Novgorod region. The plaintiff did not receive any proposals regarding the dismissal of the plaintiff from the chief bailiff, which is not denied by the plaintiff himself.
Based on the circumstances established in the case, the judicial panel believes that the plaintiff did not prove that the employer forced him to submit a resignation letter of his own free will; the plaintiff was dismissed according to his will in accordance with the requirements of the law.
In addition, the court noted that the temporary suspension of the plaintiff from office for the period of inspection was carried out within the framework of the law by an authorized person, and therefore cannot be regarded as putting pressure on the plaintiff when submitting an application for dismissal of his own free will.
Based on the foregoing, the judicial panel finds the plaintiff’s claims against the State Administration of the Federal Bailiff Service for the Nizhny Novgorod Region for reinstatement at work, recovery of wages for the period of forced absence, compensation for moral damage, unfounded and not subject to satisfaction.
From the considered court decision it follows that coercion must come from a manager vested with the authority to hire and fire a given employee. Otherwise, the dismissal cannot be considered illegal. Conversations about dismissal with other persons who do not have any authority over the former employee are not considered by the courts as evidence of forced dismissal.

Thus, the employer needs to justify compliance with the established dismissal procedure and confirm this with copies of the relevant documents. We especially note that conversations about coercion, coercion from a person not vested with the authority of the employer, the presence of circumstances allowing the dismissal of an employee on other grounds are not considered by the courts as circumstances confirming the exertion of pressure on the employee. The onus is on the former employee to prove the existence of coercion.

Reinstatement after voluntary dismissal is one of the most likely consequences of violating the procedure for terminating an employment contract established by the Labor Code of the Russian Federation. In the material below, we will consider the procedure for challenging dismissal and judicial practice in such cases.

Forced or illegal dismissal - a regulatory framework for challenging

Constitution of the Russian Federation in Art. 37 recognized the right of every citizen to work and free disposal of his abilities. Guided by Art. 77 of the Labor Code of the Russian Federation, an employee may at any time voluntarily, of his own free will, terminate his employment relationship with the employer in the manner prescribed by law. In addition to the Labor Code, there are other regulatory acts complementing it that regulate labor activity and the dismissal of certain categories of workers:

• Law “On the State Civil Service of the Russian Federation” dated July 27, 2004 No. 79-FZ,
• explanatory documents of the Plenums of the Supreme Court of the Russian Federation, Rostrud, etc.

However, in practice, there are often various violations of this procedure that make dismissal illegal, starting from purely procedural issues (for example, indicating the wrong date of dismissal in an order) and ending with forcing employees to terminate the employment contract under pain of dismissal under the article (that is, forced dismissal) . In such cases, the provisions of Chapter 60 of the Labor Code of the Russian Federation, which is entirely devoted to the resolution of labor disputes, and the Code of Civil Procedure of the Russian Federation are applied regarding the procedure for considering the case in court.

How to challenge voluntary dismissal?

Challenging any illegal dismissal, including termination of an employment contract at the request of the employee, occurs in the manner prescribed by Ch. 60 Labor Code of the Russian Federation. So, according to Art. 381, the parties to a labor dispute can be not only actual employees and the employer, but also persons who were previously in an employment relationship, which means that one can be fully guided by the above chapter of the Labor Code of the Russian Federation even after dismissal. At the same time, Art. 391 established an exclusively judicial procedure for considering cases of reinstatement of an illegally dismissed employee.

Challenging the termination of employment relations with certain categories of employees may be regulated by separate regulations that do not contradict the Labor Code of the Russian Federation. For example, paragraph 14 of Art. 70 of Law No. 79-FZ determined that the dismissal of a civil servant is contested in court, regardless of the grounds for termination of the contract.

In Art. 22 of the Code of Civil Procedure of the Russian Federation and the resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by courts...” dated March 17, 2004 No. 2, the jurisdiction and jurisdiction of such cases is clarified: their consideration falls within the competence of district (city) courts of general jurisdiction. When filing a statement of claim, the plaintiff is exempt from paying state fees on the basis of Art. 393 of the Labor Code of the Russian Federation and clause 1 of Art. 333.36 Tax Code of the Russian Federation.

Art. 392 of the Labor Code of the Russian Federation gives the employee a month to appeal to the court to challenge dismissal at his own request. The period begins to run from the date of receipt of a copy of the order of dismissal at one's own request or the work record book. The same article allows for the restoration of the statute of limitations in such cases. For example, this is possible if the employee was in a hospital for treatment, was called up for military training, etc. Simply put, if there are good reasons, the plaintiff may be given another month to protect his violated right.

Pre-trial settlement

The law does not provide for mandatory pre-trial settlement of disputes regarding illegal dismissal at will, but sometimes such measures can give a positive result and help avoid lengthy litigation. In particular, an employee can write a letter to the employer demanding reinstatement, justifying the illegality of dismissal at his own request, and also contact the State Labor Inspectorate. The inspection itself cannot reinstate an illegally or involuntarily dismissed employee, nor change the grounds for dismissal specified in the work book, but its employees may well provide legal assistance or conduct a conversation with the employer.

Legal consequences of challenging illegal dismissal

If the fact of illegal dismissal at one’s own request is recognized, in accordance with Art. 394 Labor Code of the Russian Federation:

• the employee, by court decision, is reinstated in his previous position at his previous place of work;
• the dismissed person is paid monetary compensation for the entire period of forced absence, calculated on the basis of average earnings in accordance with clause 4 of the regulation on the specifics of calculating average wages, approved by Decree of the Government of the Russian Federation dated December 24, 2007 No. 922;
• in some cases, the employee is also compensated for moral damage;
• An entry is made in the employee’s work book stating another reason for dismissal if the organization was liquidated.

Such decisions are subject to immediate execution on the basis of Art. 396 Labor Code of the Russian Federation. Otherwise, the employee must be compensated for the entire delay in execution of the decision in the form of average earnings for the additional time of forced absence.

What is illegal dismissal?

As one of the grounds for termination of an employment contract and termination of relations with the employer, Art. 77 and 80 of the Labor Code of the Russian Federation determined the employee’s own initiative. The procedure for expressing such an initiative has also been determined.

So, on the basis of Art. 80 of the Labor Code of the Russian Federation, the law “On Electronic Signature” dated 04/06/2011 No. 63-FZ, the explanations of Rostrud in the letter “On the procedure for dismissal...” dated 09/05/2006 No. 1551-6 and some other acts, we can conclude what conditions are mandatory must be observed in order to avoid challenging the legality of dismissal at will. That is, conditions, if violated, we can safely say that termination of the employment contract is illegal.

In particular, we are talking about the form and content of the resignation letter. A resignation letter is a document that must be certified by the employee’s signature. The signature can be either handwritten or, on the basis of Art. 6 of Law No. 63-FZ, electronic. The application can be submitted personally to an employee of the HR department, in the form of a postal item or an email sent by corporate mail. No verbal assurances shall be considered legal grounds for dismissal.

The wording of the expression of will itself is no less important. It must be clear and unambiguous. “I ask you to fire me”, “I ask you to terminate my employment contract” - these expressions clearly express the essence of the statement. Otherwise, the employee may later claim that he simply wanted to take administrative leave or transfer to another position.

When notifying the employer of his dismissal, the employee must indicate the date on which the employment relationship will be terminated. It is important to indicate it correctly. So, despite its popularity, the wording “I’m sorry to dismiss you from…” is not the most correct option, since it can be interpreted in two ways and, as a result, lead to difficulties in determining the date of the employee’s last working day. In this case, the date must be indicated by the employee himself; a manager's visa changing it is obviously illegal, since it violates the meaning of the employee's own will.

Don't know your rights?

What kind of dismissal can be considered forced?

The voluntariness of dismissal at the employee’s own request is the most important condition for recognition of its legality. That is why forced termination of an employment contract is considered a case of illegal dismissal. So, sometimes a statement of one’s own free will is written as a result of hints or open instructions from the employer or threats of dismissal “under the article,” that is, for negative reasons. In this case, the actual circumstances do not correspond to the wording of the dismissal and the employee is left to either challenge the legality of the dismissal or demand a change in the wording. This is especially true for pregnant women who, according to Art. 261 of the Labor Code of the Russian Federation cannot be dismissed at the initiative of the employer, with the exception of cases of liquidation of the enterprise. At the same time, the Labor Code does not prohibit dismissing them at will.

Any form of pressure on an employee to force him to write a letter of resignation, be it outright threats or hints of demotion in position or salary in case of refusal to terminate the employment contract, can become a reason for reinstatement. However, it is worth saying right away that it is extremely difficult to prove forced dismissal if the employee did not initially collect supporting materials, since on the basis of sub-clause. “a” clause 22 of the above-mentioned resolution of the Plenum of the Supreme Court of the Russian Federation No. 2, the burden of proving forced dismissal rests with the employee.

Challenging illegal and forced dismissal at will. Arbitrage practice

Russia is not one of the countries with a case law system, that is, judicial practice is not a source of law. Nevertheless, the position of the courts on the issues of reinstatement of employees illegally dismissed at their own request is very indicative. Having analyzed court decisions in this area, you can find a lot of similar cases and with a high probability predict the prospects of almost any dispute about dismissal, as well as highlight the main types of violations of the procedure for dismissal at will, most often committed by each of the parties, and understand the position of the judges on them.

Violation of the procedure for filing an application at your own request

The first step to terminating the employment relationship at the employee’s initiative is to write a letter of resignation of his own free will. Labor Code of the Russian Federation in Art. 80 indicates that the employer must be notified in writing by the employee of the upcoming dismissal. A verbal warning cannot be considered a basis for terminating an employment contract at will.

This norm was also applied in the appeal ruling of the Moscow City Court dated 06.06.2016 No. 33-22057/2016. The complaint of Glavmosstroy-Region LLC against the decision of the Khamovnichesky District Court of Moscow was considered, which decided to cancel the order of dismissal at the employee’s own request, restore him to his previous position, and also recover from the defendant the average salary for the period of forced absence, compensation for moral damages and legal costs.

According to the defendant's statements, the plaintiff warned him of his dismissal via a telephone call, after which he promised to send a statement by e-mail, which he ultimately did not do. The plaintiff stated that he did not plan to quit and did not write a statement. The appellate court supported the position of the district court and left the decision unchanged.

Separately, it is worth noting cases where an employee is forced to write 2 applications at once during employment: about hiring and about dismissal at his own request with an open date. This practice is illegal, but such facts have to be confirmed by experts.

One of these cases became the basis for the appeal ruling of the Moscow City Court dated June 4, 2012 in case No. 11-8888. The court upheld the decision of the court of first instance to reinstate the employee to his previous place of work, based on the results of a handwriting examination, which confirmed the fact that the date of drawing up the application was not in the employee’s handwriting.

Reinstatement of employees who withdrew applications

Article 80 of the Labor Code of the Russian Federation gives the employee the right to withdraw his resignation at any time until the last day of work. You can even withdraw your application by post (but no later than the end of working hours on the last day of dismissal), and the date of receipt of the application by the employer is not important.

Thus, the Moscow City Court considered case No. 33-252/2016 and issued an appeal ruling dated January 12, 2016 on a complaint against the decision of the court of first instance to refuse to reinstate an employee dismissed at his own request, who sent a telegram to withdraw his application after familiarizing himself with the dismissal order, receipt of payment and end of working hours. The appellate instance dismissed the complaint.

Violations relating to the date of dismissal

Often, the basis for reinstatement of an employee to his previous position is violation of the terms of dismissal. As a general rule, this is 2 weeks from the date of notification to the employer. The exceptions mentioned in Art. 71, 296 and 292 of the Labor Code of the Russian Federation apply to seasonal workers, probationary employees and fixed-term workers with a contract concluded for less than 2 months.

Separately, cases of dismissal without work and dismissal of managers are considered, for which the notice period for dismissal is, according to Art. 280 Labor Code of the Russian Federation, 1 month. Ignoring these features causes the employee to be reinstated or the date of dismissal to be changed with subsequent payment for forced absence.

An example of such a decision is the appeal ruling of the Lipetsk District Court dated January 13, 2016 No. 33-59/2016, when the employer dismissed a managerial employee from his position before the expiration of a month, thereby violating his right to work. The panel supported the decision of the court of first instance in terms of payment of material compensation, overturned it in terms of refusing to recognize the illegality of dismissal and obliged the employer not only to change the date of dismissal in the work book, but also to pay for forced absence.

About the application for forced dismissal

Most of the claims challenging illegal dismissal at will are related precisely to coercion to write a statement. The burden of proof in this case falls on the plaintiff, which in itself is quite difficult. You need to collect evidence in advance, for example, write a memo addressed to the manager about coercion - in court it will serve as evidence that the employee was under pressure. Otherwise, the claim will be denied.

Most of the claims in such cases come to the courts from pregnant women. Employers mistakenly believe that they can manage to fire an employee who has informed about pregnancy verbally, i.e., without providing certificates. However, judicial practice shows something slightly different.

So, based on Part 3 of Art. 11 of the Code of Civil Procedure of the Russian Federation and applying the norms of the International Labor Organization Convention No. 183 and Art. 261 of the Labor Code of the Russian Federation, the Moscow City Court issued an appeal ruling dated October 22, 2015 and overturned the decision of the Khoroshevsky District Court of Moscow in case No. 33-35618/2015, which refused to recognize the illegality of the plaintiff’s dismissal, ordered the employer to reinstate a voluntarily dismissed employee who was able submit a certificate of pregnancy only the next day after dismissal.

Another mistake an employer makes is accepting statements written by proxy. TC does not provide such an opportunity.

This position was reflected in the cassation ruling of the Moscow City Court dated February 14, 2013 No. 4g/5-595/13, which upheld the decisions of the courts of the first and second instances, which recognized the illegality of dismissal by proxy. The ruling of the Moscow City Court dated March 4, 2011 in case No. 33-5838 is similar. In addition, the cassation ruling of the St. Petersburg City Court dated November 2, 2011 No. 33-16328/2011 supported the position of the court of first instance, which recognized the dismissal by proxy as forced, since the application for voluntary dismissal was written by the employee’s wife, who feared her husband’s dismissal on defamatory grounds.

In conclusion, it remains to be said that most illegal dismissals at will involve coercion. However, employees, not being able to prove such facts, usually look for other grounds for declaring their dismissal illegal.

​Unfortunately, many people face this problem. Employers often deliberately create an atmosphere in an organization in which it is impossible for any specific employee or an entire department to work productively. And as a result, the employee writes a letter of resignation, indicating the reason: “at his own request.” Often, after such an incident, an employee wants to prove that the dismissal was not his will, but was provoked by the will of the employer. But how to do it right? What arguments can you give, how to act in such a situation, and how can you ultimately prove that the voluntary dismissal was forced? The answers to these questions can be found in this article.

Regulatory framework

Of course, if a person actually wrote a letter of resignation on his own, indicating the reasons for his own desire, it will be quite difficult to prove that he was released from work duties illegally. But nevertheless, it is worth arming yourself with a regulatory framework. Thus, let us recall the Resolution of the Supreme Court of the Russian Federation, which states that termination of an employment contract at the request of the worker is possible only if he makes a voluntary decision. That is, the problem is this: you need to prove that you You were forced to write such a statement, and your decision was made not voluntarily, but under pressure.

It’s good if you knew in advance that a conversation would take place with the employer, and he would persuade you to resign or even suggest it in direct text. Or, perhaps, you yourself entered into this conversation, having prepared in advance: armed yourself with a voice recorder. If during the conversation a negligent boss used threats or used pressure on you, this will play into your hands and will be strong evidence of the illegality of dismissal during the trial. You can also call the employer to have a similar conversation in the presence of other employees of the organization, who can then confirm the fact of the conversation and give testimony.

Only after you have secured reliable evidence can you begin to write your application. But after the dismissal has been carried out, you should go to court.

How to declare dismissal illegal?

We'll tell you some legal tricks with which you can get your dismissal declared illegal - by drafting it incorrectly. For example:

• the text of the application will not contain your clearly visible desire terminate the employment relationship. That is, you only used figures of speech: “I ask you to relieve me of my duties” or “from my position...”. And in fact, an employee’s request to be released from performing work duties or from his position does not at all mean his initiative to terminate the employment relationship in principle. Thus, in court you can prove that you did not want to terminate the employment contract at all.
• if in the process of writing an application you do not formulate phrases such as: “on your own initiative”, “at will” and others - in this case, in court you will be able to talk about what conditions for work were created by the employer and that these are not yours a desire, but simply a way out of the current situation, but you don’t really want to stop working.

Remember also about your right enshrined in the Labor Code of the Russian Federation: Article 80 states that until the warning period has expired (under normal conditions it is two weeks), the employee has the legal right to withdraw his application. And the dismissal procedure will not be carried out, provided that this place another employee is not invited in writing, which in this state of affairs can no longer be refused acceptance. If the employer cannot provide the court with such a document about inviting another employee, you have every right to remain at your job.

In other words, it is illegal for an already invited employee to refuse to hire him for a month, but not from the date of creation of that very written invitation, but from the moment when he ended his employment relationship with his employer and is ready to start working in a new place.

Thus, the Labor Code of the Russian Federation protects the rights of all subjects of the labor sphere and at the same time creates some difficulties for dishonest employers who may try to use a written invitation as a way out of a controversial situation in the case of the unlawful dismissal of an unwanted employee. That is, the employer will need to prove both the fact that he invited a new employee in writing, and the fact that this person terminated his current employment relationship (at the previous enterprise).

Claim for illegal dismissal

So that you are fully armed with theoretical knowledge, we will tell you exactly what circumstances the court finds out when considering a claim to establish the fact of illegal dismissal:

• the conditions that were in place when the employee submitted the application;
• the presence of a real desire of the employee to terminate the employment relationship;
• the reasons for writing a statement are considered, the psychological climate in the team, the relationship between superiors and subordinates/subordinates are studied;
• It is also important when the application was submitted and the date of the actual dismissal of the employee: whether the two-week period was met or whether the employer terminated relations with the employee as quickly as possible;
• the court also pays attention to the fact whether the employee has withdrawn the application;
• The dismissal procedure itself is analyzed for its legality.

Necessary documents for the court

Be prepared that the court will ask you for the following documents (we therefore recommend preparing them in advance):

• order (its copy) on employment;
• employment contract (its copy);
• document on dismissal from work;
• directly the employee’s resignation letter to analyze its content;
• as we said above - witness testimony or a recording of a conversation with the employer.

Thus, the article examines issues related to how it can be proven that dismissal by agreement of the parties is in fact forced. For example, to make a court decision to force an employee to resign It will not be enough for the employer to simply express complaints about work. A necessary condition is that similar the claims had a clear purpose to induce the employee to resign allegedly on their own initiative.

Thus, some actions of the employer may be regarded by the court as forced dismissal if they were aimed at ensuring that the employee himself initiated his dismissal: that is, violation of labor conditions and safety in the organization, creation of a situation where it is difficult for an employee to fulfill his duties and work productively, leads to recognition of the nature of the dismissal as forced.

If you still have unresolved questions or need a free consultation with a labor relations lawyer, then ask your question in the form below and our online lawyer on duty will promptly help you understand your specific situation.

The employer or its representative may be subject to disciplinary liability. But this is only possible if the employee managed to competently convey his position to his superiors and enlist his support.

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FOR FREE!

In practice, forced dismissal is carried out due to the employer’s personal hostility towards the employee or in cases where the employee is suspected of serious crimes and offenses, but in fact his guilt has not yet been proven.

Not wanting wide publicity at the enterprise, the employer tries to force the employee to fill out an application or even fires him retroactively.

What it is?

Forcing dismissal is an illegal measure by an employer aimed at terminating the employment relationship with an employee as quickly as possible. It can take the form of open coercion (demands to write statements, threats).

In practice, a representative of the employer (for example, the head of a certain department) creates difficult or unbearable working conditions for the employee.

A similar term is the concept of mobbing (a form of psychological violence in a team). It can be vertical and horizontal in nature.

In the first case, the employer acts on the sly - setting other team members who are loyal to such offenses against the unwanted employee.

With vertical bullying (bossing), the employer directly puts pressure on the employee. It may be accompanied by open provocations - the creation of unbearable working conditions.

An employee may be unreasonably deprived of a bonus, subject to disciplinary sanctions for far-fetched reasons, etc.

Law

The prohibition of discrimination against an employee is outlined in the Labor Code of the Russian Federation. Administrative responsibility is established in Art. 5.27 Code of Administrative Offenses of the Russian Federation.

Criminal liability in such cases is complicated in that there is no directly provided article for forced dismissal.

Art. 145 of the Criminal Code of the Russian Federation contains punishment only for unfounded or mothers who have a child under 3 years old. Legal disputes are resolved according to the rules of the Code of Civil Procedure of the Russian Federation and the CAS of the Russian Federation.

Forced resignation

Labor relations imply that the employee in them is considered the more vulnerable party, since he actually sells his labor abilities for a certain fee.

However, this does not give the employer the right to unreasonably remove an employee from work, not pay him, etc.

An employer may motivate its decision to dismiss an employee by its reluctance to pay severance pay (for example, when reducing staff or liquidating a company).

These grounds cannot be assessed subjectively. Each fact of violation by an employee of labor discipline, theft, absenteeism, and other grounds must be recorded or confirmed by other information.

At your own request

Forced dismissal is not provided for under the articles of the Labor Code of the Russian Federation. Such events are manipulative in nature.

It is beneficial for the employer that the employee does not receive the required benefits and writes a letter of resignation without unnecessary fuss. In practice, this may be preceded by prolonged pressure.

The employer may invite the employee to do this by threatening to fire him “under the article.”

But this is difficult to do, since in order to terminate an employment agreement with an employee, you need to clearly confirm the grounds of Art. 81 Labor Code of the Russian Federation.

It is difficult to do this arbitrarily, especially if the company is large and values ​​its business reputation.

By agreement of the parties

Dismissal on this basis is not much different from a statement of resignation of one's own free will. The difference is mutual agreement.

The employer may ask the employee to terminate the employment relationship. He has the right to do this in writing, but he should not put pressure on the employee.

Contacting the labor inspectorate

Before going to court, you can try to fight through administrative means.

The labor inspectorate is obliged to accept employee applications for consideration and make appropriate decisions on them.

Inspectorate employees have the right to arrange unscheduled inspections of the employer and conduct preventive conversations with him.

Employees of the prosecutor's office can be involved in resolving the issue, who can advise the employer of the need to eliminate violations in labor legislation.

The labor inspectorate can assist in filing a claim. She also receives the employer's response to the current situation.

It is necessary to attract as much attention as possible to the problem from the control and supervisory authorities.

How to prove?

When resolving a dispute administratively, evidence must be presented - such that can confirm the conflict relations that have developed between the employer and the employee, the subject of which will be forced dismissal.

The following information can be provided:

• photos, audio, video recordings;
• written documents;
• testimonials from work colleagues;

Based on the current situation, the labor inspectorate makes a decision regarding the employer. She can act in court on behalf of an employee, for example, if he has a severe disability and the employer is trying to deprive him of his livelihood.

What are the risks for the employer?

In 2019, according to Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, the employer faces:

• administrative fine of 1-5 thousand rubles;
• disqualification for up to three years;
• for legal entities persons – fine up to 50 thousand rubles.

Dismissal of a pregnant woman or mother of a child under 3 years old threatens the employer with a fine of up to 200 thousand rubles. or compulsory work up to 360 hours.

An analysis of liability measures indicates that they are insignificant for an employer if he has decided to get rid of an employee at any cost.

But the employee, if the fact of forced dismissal is reliably established by the court, may demand compensation for moral damage.

Arbitrage practice

A claim for reinstatement at work can be filed within a month from the date of the dismissal order or the issuance of a work book.

Claims are not subject to state fees. If the employee’s demands are properly argued, he will be reinstated in the workplace.

If the application was signed and the employee left the organization, then it will be difficult to prove the illegality of the dismissal.

You can attach audio and video recordings as evidence, but you need to be prepared for the fact that the opposite side will reject their reliability. An expert opinion on the authenticity of the recordings may be required.

The reason for forced dismissal is usually disagreements between a boss and a subordinate, as well as illegal behavior of the employee that has not been officially proven. The desire to avoid disclosure sometimes pushes the manager to use the illegal measure of terminating the employment agreement - forcing him to resign on his own initiative.

Is it legal to force someone to quit?

Legislative regulation of forced dismissal is enshrined in the following regulations:

• Labor Code of the Russian Federation - Art. 77;
• Code of Administrative Offenses – Art. 5.27;
• Criminal Code of the Russian Federation - Art. 145.

A violation should be understood as pressure from a manager pursuing the sole goal of obtaining a statement from a subordinate confirming his desire to leave the workplace on his own initiative. Current regulations prohibit requiring an employee to resign.

Even if a subordinate is guilty, the employer must adhere to the procedure established in labor legislation. The manager may initiate the termination of the employment relationship in the following cases:

• admission of gross violations on the part of an employee (,).

Any of these procedures requires prior notification to the subordinate. The condition is unfavorable for the management team, so some decide to take illegal actions - pressure and bullying, forcing subordinates to.

How to prove forced dismissal

To prove coercion to terminate an employment agreement on the part of the boss, the employee must adhere to the following procedure:

1. Notification about awareness in the field of the labor code.
2. Strict adherence to the routine approved by the organization, unquestioning execution of the written orders of the boss within the framework of his job description.
3. Transfer to another department (if possible and appropriate).
4. Search for witnesses who can confirm the provocative behavior of the boss.
5. Handling the claim and available evidence.

In court, a citizen can represent his interests personally or seek the help of a lawyer.

Practice contains a negligibly small number of decisions regarding forced dismissal by the employer. Main reasons:

1. It is difficult for the worker to assemble proof. No manager will formalize illegal influence over a subordinate in writing, and an oral conversation, even recorded using a voice recorder, has no legal force.
2. Checks, carried out by the prosecutor's office or labor inspectorate, often do not bring the desired result. The caution is a speculative measure. An employee can file a complaint about the boss’s illegal behavior, but the main option for punishment from the government before dismissal is a warning. The measure does not carry any legal consequences and is therefore unable to provide protection.
3. Lack of awareness. Many citizens do not have information about their own rights and methods of protection, so they agree to the boss’s conditions.

At your own request

The current Labor Code does not consider forced dismissal as grounds for termination of an employment agreement at the initiative of the employee. The situation suggests that the employer, through manipulative actions, forces the subordinate to pass off his will as his own.

For any boss, leaving an unwanted employee in accordance with his personal will is the simplest and fastest option for separation. Coercion can be expressed in long-term bullying or “under the article”.

By agreement of the parties

Breaking the labor relationship is similar to voluntary dismissal. The only difference is the document confirming the mutual decision of the parties.

The employer may offer the subordinate to terminate the employment contract, but has no right to exert any influence. This method is less popular than termination on one’s own initiative, because signing the agreement should be interesting to both parties.

In other ways

The reason for bullying by superiors may be. Despite being right, the employer does not have the right to put pressure on a subordinate. Termination of an employment agreement for reasons and current legislation must be carried out in accordance with the established procedure.

What to do and where to go

An employee who is forced to submit a letter of resignation must adhere to the following approximate procedure:

1. Carefully study the documentation directly related to his work for the presence of requirements put forward by the manager.
2. Do not put your signature on any document without first reading it, especially if the date does not correspond to the current one.
3. Be sure to become a member of a trade union, if there is one in the organization. Or you can take the initiative, organize a primary trade union organization and become its leader. It is very difficult to fire a person holding this position without his desire.
4. Comply with the requirements set forth in the job description so that the employer cannot make claims regarding the work performed.

The director is unlikely to decide to force the dismissal of an employee who accompanies his actions with written documents and strictly follows the above recommendations. If such a situation does arise, you should resort to the support of government agencies.

To the labor inspectorate

You can complain about forced dismissal to the labor inspectorate. The following must be attached to the application:

• written documents;
• audio recordings confirming disputes, disagreements and bullying by the director of the enterprise;
• orders for deprivation of material rewards, fines, and reduction of status;
• witness's testimonies.

Confirmation of compulsion to write a letter of resignation on one’s own initiative can also be the rapid hiring of another specialist.

The text of the complaint must contain the following information:

• details of the addressee and the person applying (upper right corner of the form);
• main text, including information about the date of conclusion of the employment agreement, the position held, and the unlawful behavior of the boss;
• reference to articles of labor legislation (Articles 127, 236, 360, 419, etc.);
• the essence of the request-demand and the desired result;
• list of attached papers;
• date and signature.

If during the inspection the information contained in the complaint is confirmed, the labor inspectorate will apply to the court with a statement of unlawful actions of the employer.

Sample application to TI

To the prosecutor's office

If it is not possible to resolve the labor conflict, you can turn to the prosecutor’s office for help. When drawing up an application, you need to remember the following mandatory points:

• the upper right corner of the form is intended to indicate the name of the authority, full name of the chief and personal data;
• the main text should state the essence of the appeal, namely, how long the labor relationship lasts, what actions of the manager the subordinate considers illegal, what damage they caused him, etc.;
• existing written evidence, records and witness statements can be attached as evidence;
• in the request section you need to describe the result that the affected citizen is striving for;
• The document must be completed by the date of preparation and a personal signature.

The application must be submitted in accordance with the actual location of the employer.

Other organs

An employee who has suffered from pressure and bullying from the director of an institution can independently file a claim in court. The application must contain comprehensive information:

• name of the court;
• information about the plaintiff and defendant;
• the essence of the dispute is the specific actions of the leader;
• request – reinstatement, amount of financial compensation, postponement of the contract termination date, etc.;
• list of attached evidence;
• signature of the applicant and date of preparation of the paper.

The completed application must be submitted to the judicial authority.

Important: the claim must be accompanied not only by a forced resignation letter, but also by other evidence of coercion. The lack of objective explanations may lead to the court deeming the complaint unfounded.

Before contacting government agencies, you can try to resolve the conflict within the organization, for example, filing a complaint to the name (if the head of the department is forcing you to quit). The text of the document is similar to the complaints described above.

Arbitrage practice

1. T.V. Smirnova appealed to the Volgodonsk Court of Appeal, who had to part with her job due to bullying from the head of the department. The day after she left, S.I. Linko was hired. - cousin of the director. Smirnova T.V. appealed to the court with a request: to reinstate her in her previously occupied position and pay financial compensation in the amount of 95,000 rubles. (the amount of income for 2 months spent on restoring justice). The citizen attached copies of orders for the deprivation of quarterly bonuses and the imposition of fines to the statement of claim and brought 3 witnesses who confirmed her words. The court reviewed the case materials and came to the conclusion that Smirnova was illegally dismissed and fully granted her request.
2. The Nizhny Novgorod Regional Court received an application from citizen S.M. Mamonov. The plaintiff believes that the manager forced him to write a statement of his own free will. Mamonov S.M. stated that he had to resign due to disagreements with colleagues, but could not provide any documentary evidence. The court accepted the complaint of S.M. Mamonov. unreasonable, since coercion to dismiss may come directly from the manager who has the authority to enter into and terminate employment agreements.

The current Labor Code (Article 81) allows you to dismiss an employee who has committed serious violations. In this case, the employer must follow the established procedure and attach copies of the necessary papers. Forced dismissal is an illegal measure to terminate an employment agreement, and therefore can be fraught with litigation, punishment and significant material costs.

If an employee manages to collect evidence indicating unlawful behavior by his superiors, the latter may face:

• administrative penalty(Article 5.27 of the Administrative Code), as well as the obligation to restore the employee to his previous status and pay financial compensation;
• criminal prosecution(Article 145 of the Criminal Code of the Russian Federation): involvement in public works, suspension of business activities, if, due to pressure and bullying, a pregnant woman had to leave the workplace.

Criminal liability can also be applied in cases of the use of serious psychological measures and actual illegal behavior. Of course, they will not be deprived of their freedom for this, but they will not be able to avoid compulsory labor and a significant fine.

Forced to resign of their own free will - what to do? Watch the video below: