What should I do if my employer refuses to let me resign?
When should the calculation and the work record book at dismissal if the dismissal at own will occurs because of a conflict with the employer? The employer refuses to fire you on purpose and will not let you leave your job until he finds a replacement. What should an employee do if he has already found a new job and is expected to work there?
Answer: 1. The employer is obliged to pay the employee the final wage payment in connection with his dismissal and to give him his work record book irrespective of the reason for dismissal, on the day of dismissal of the employee. 2. In order to quit at your own request, you must give your employer (or the employer’s legal representative) two weeks’ notice by writing an application for dismissal in two copies and giving it to the employer (or the employer’s legal representative) with a request to return the second copy of the application with a note of receipt by the employer (or the employer’s legal representative). The employee also has the right to send the application for dismissal in two copies to the employer by mail with the above-mentioned request. Upon expiry of the notice period, the employee will be entitled to stop working and the employer will be obliged to make full settlement with him on the day of his dismissal and to give him a properly executed work record book. With the consent of the employer, the employee may terminate the employment contract before the expiry of the notice period. If the employer prevents the employee from resigning at his own request, the employee must seek protection of his rights by contacting the territorial authority of the Federal Labor Inspectorate (including through this resource), the labor dispute commission (if available in the organization), the prosecutor’s office, as well as the court.
Legal reasoning:
According to part 1 of Article 80 of the Labor Code of the Russian Federation, the employee has the right to terminate the employment contract by notifying the employer in writing no later than two weeks in advance, unless another period is established by the Labor Code of the Russian Federation or any other federal law. This period begins the next day after the employer receives the employee’s notice of termination.
If the employer and the employee agree, the employment contract may be terminated before the notice period has expired (Article 80.2 of the Russian Labor Code).
Upon expiry of the notice period the employee is entitled to terminate the employment. On the last day of the employment the employer must give the employee his/her work record book and other work related documents upon written request of the employee and make the final payment to the employee (Article 80.5 of the Russian Labour Code). According to Article 352 of the Labor Code everyone has the right to protect his labor rights and freedoms by all means not prohibited by law.
The main means of protecting labour rights and freedoms are:
- self-protection of labor rights by employees;
- Protection of labour rights and lawful interests of employees by trade unions;
- state control (supervision) over the observance of the labour legislation and other regulatory legal acts containing labour law regulations;
- judicial protection.
In accordance with Article 353 of the Labor Code of the Russian Federation, federal state supervision of compliance with labor legislation and other regulatory legal acts containing norms of labor law is carried out by the Federal Labor and Employment Service (Rostrud) and its territorial bodies (state labor inspectorates). The employee can apply to the State Labour Inspectorate at the employer’s location for protection of his labour rights, including through this resource.
The employee may appeal to the Labor Dispute Committee within three months from the date when he/she became aware or should have become aware of the violation of his/her rights (Article 386.1 of the Russian Labor Code).
If the deadline is missed for good cause, the labour dispute committee can restore the deadline and resolve the dispute on the merits (Article 386.2 of the Russian Labour Code).
The employee has the right to apply to court to resolve an individual labor dispute within three months from the date he learned or should have learned of the violation of his right, and in regards to disputes regarding dismissal – within one month from the date of delivery of a copy of the order to dismiss or from the date of delivery of the employment record book.
For resolution of an individual labor dispute about non-payment or incomplete payment of wages and other payments due to the employee, he/she has the right to apply to court within one year from the date of the established deadline for payment of these amounts, including in case of non-payment or incomplete payment of wages and other payments due to the employee on termination of employment.
If the abovementioned deadlines are missed for good reason, they may be restored by the court (Article 392 of the Russian Labour Code).
Claims for reinstatement of labor rights can also be brought in the court at the place of the plaintiff’s residence (part 6.3 of Art. 29 of the Civil Procedural Code).
It must be borne in mind that the state labor inspector has no right to issue an employer an order subject to compulsory execution, claims accepted by the court, or the issues on which there is a court decision (paragraph 2 of Art. 357 of the LC RF). Thus by filing a lawsuit in court the employee forfeits the possibility of protecting his labor rights by appealing to the state labor inspectorate.
What to do if the employer does not accept the letter of resignation
It is a legal right of an employee to resign at his own request, as provided by the Labor Code of the Russian Federation. However some employers avoid or refuse to accept the resignation if there is a rush at work, deadlines are imminent, and the dismissing employee has no one to quickly replace him. Such actions of the employer are illegal. We tell you what to do if an employee’s application for termination is not accepted.
The procedure for resigning at one’s own request
When an employee resigns, most often it is at his or her own request. Dismissal at the employer’s initiative occurs statistically much less frequently.
The general grounds for voluntary resignation are specified in Clause 3 of Article 77 of the Russian Labour Code and Article 80 of the Russian Labour Code.
The procedure for voluntary dismissal is as follows:
- The employee writes an application for dismissal.
- After that he works off the due time.
- At the same time the employer issues an order of dismissal.
- At the end of the period of work, the employer makes a final payment to the employee and gives him/her the documents necessary for dismissal.
According to Article 80 of the Labor Code of the Russian Federation, after making the decision to dismiss, the employee must write a corresponding statement to the head of the organization no later than two weeks before the intended date of dismissal. This two-week period begins the day after the employer receives the application for dismissal. During this period, the employee must complete current affairs and transfer duties to a substitute.
This two-week period may be shortened by agreement with the employer.
What are considered valid reasons for resignation at will without a period of work, told the experts “ConsultantPlus”. Get free online trial access to K+ and proceed to the explanations.
IMPORTANT: The employee must put his own handwritten signature on the letter of resignation. This will serve as proof that submitting such a document is the employee’s goodwill.
The employer has no right not to accept the resignation
If the situation in the organization is such that there is no one to promptly replace the dismissing employee, some employers sometimes abuse their authority and violate the LC RF by not accepting the employee’s resignation.
Rostrud explains that an employer’s refusal to accept an employee’s application is a direct violation of Article 80 of the Labor Code. If such a situation arises, the application for dismissal must be sent to the employer by registered mail with notification. The two-week notice period begins on the day following the day the registered letter is received by the employer. The employee should keep the receipt of the mailing.
After the two-week notice period ends, the employee has the right to stop working, and the employer will be obliged to make full payment on the day of dismissal and to give the employee his or her work record book. In the event of friction over the issuance of documents and payment of pay, the employee may seek assistance from the labor inspectorate.
If the employer refuses to receive the registered letter (does not sign for its receipt from the courier), the employee has the right to apply to the court to establish the fact of termination of employment relations.
Upon receipt of the court’s decision, the new employer will be entitled to make a record to the employment record book on its basis.
The bottom line is .
The employer has no right not to accept an employee’s resignation at his own request. If such a situation arises, the application should be sent by registered mail. If the employer does not accept the letter, you need to go to court with a lawsuit to establish the fact of termination of employment.
For more information about the procedure for terminating an employment contract on different grounds, see our section on Termination.
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