To prove coercion to resign at one’s own request – we describe in order

Actions of the employee, if the employer forces him to resign

In this article, we will give advice to those people who are being forced to resign from their job at their own request.

In this article, we will give recommendations to those people who are forced to resign from their jobs at their own request. The fact is that in the last year or two, there has been a very strong increase in the number of specific complaints that contain dissatisfaction of this nature – what justifies being forced to resign at one’s own request .

An 85-page review of court reviews of the huge number of cases involving employee-employer disputes over termination of employment contracts at the latter’s initiative, published in 2020 in December, shows that this topic is more than relevant.

How to behave if forced to resign at one’s own request

First of all, it is necessary to know the provisions and what the articles of the Labor Code of the Russian Federation are in general in terms of this type of dismissal. Article 77 of this document contains clauses on the basis of which the labor contract between the parties is terminated.

In particular, these are:

  • agreement between the parties;
  • the expiry of the term of the labor contract;
  • Termination of contractual obligations initiated by the employer;
  • Termination of contractual obligations initiated by the employee;
  • transfer of the employee to another employer either by agreement between the parties or at the employee’s request;
  • When the employee is elected and given a new position as a result of an election.

In Article 80 of the same code, the person hired can terminate this contract, but in order to do so, he must submit a written request to do so. It must be received by the employer 2 weeks in advance, at the latest, or another term is allowed if the parties have agreed on it in advance in a general contract. The dismissal at the request of the employee is the termination of this contract.

If the deadline set by the parties has not expired, and the person has changed his mind to quit, he can cancel his application, that is, withdraw it.

Such cases occur if the employee’s circumstances have changed.

In this case, the initiative to dismiss comes from the employee. But if the employee is forced to resign at his or her own request, without any reason, and pressure is exerted, it is clear that such actions are not legal, and the employer may be held liable for his or her actions. The law does not contain a list, much less a single case that would be considered compulsory for dismissal. But in practice, in the courts, there are more than enough such examples and cases.

Forced Dismissal – A Court Example

To make this more understandable, and for a person to navigate in such cases, we will consider compulsion to termination – a court example. Citizen B. complained to the Astrakhan District Court about her unlawful dismissal. Her unpleasant relationship with her supervisor, which she considered prejudicial and unreasonable, resulted in him forcing her to write an application for involuntary termination.

When he unlawfully disciplined her, he felt that these arguments were enough to force her to write a “voluntary” statement, and before doing so he created conditions under which it was unbearable for her to be in the workplace. The district court, taking all the circumstances into account, reinstated her in her position.

However, on appeal, the defendant argued that there was no evidence of psychological pressure on her or that it was not substantiated in any way. Nevertheless, on review, the final court sided with her, found the evidence strong, and concluded that her reinstatement was proper, and that her application was voluntary was out of the question.

The court concluded that Citizen B.’s writing of the application was coercive, and that the employer, in pressuring her prior to doing so, was in a state where he was exerting psychological influence on her.

Coercion to fire her is an absolutely unlawful action.

In the Astrakhan Regional Court – appeal of May 30, 2012.

What actions of the employer can be qualified by the judge as coercion to quit

If an employee is subjected to psychological impact, and regularly, and feels that the boss can force him to leave his job on his own, he needs to know what actions of the employer may qualify as coercion to quit by a judge.

These can be (worst of all) threats of physical harm or injury, various methods of personal reprisal, as well as threats of violence against family members, children or other relatives. These are, of course, radical measures, but they are, unfortunately, not uncommon.

The Supreme Court draws attention to the fact that when considering the question of what to do if an employee is forced to quit, the court must pay particular attention not only to the expression of will of the person working in the organization and whether it is voluntary, but also to the creation of unbearable conditions, which eventually lead to the fact that to perform their job duties in the future becomes unbearable. The Judicial Board ruled on this matter in Order 56 of August 16, 2021.

What an employee must do if he or she is forced to leave his or her job

If the fact of forcing an employee to write his own statement is established, what responsibility the employer will incur and what to do to an employee, if forced to dismiss . We will try to answer these questions. Article 5.27, parts 1 and 2 of the Civil Code provides for administrative liability for a person who hires employees and does not comply with the rules that are noted in the labor code.

If the employee believes that forcing him to write a statement and dismissal is illegal, he has the right to challenge such actions, namely – to apply to court, to demand both reinstatement in his position and compensation for damages in monetary terms. Our lawyers have prepared a manual, which is called “illegal dismissal”.

It states that the most important and basic is the very fact of proof that the statement was written under duress, rather than voluntarily. The presence of evidence is the main basis that will help in court to restore justice, that is, to return to work with an untainted reputation. How to collect this evidence?

First of all, you can provide audio recordings of conversations in which threats or other means of pressure were made. This should be taken care of in advance and when the next conflict arises, turn on the microphone.

Correspondence on social networks will also be a powerful argument, and should be left behind.

Colleagues who were present during this kind of proceedings, can help you and to speak in court. Such information will be extremely valuable and will be taken in your favor.

If a favorable court decision is obtained, your employer will be required to pay your average wage for all months of forced suspension. In addition, you will also have to pay for the moral damages that you have suffered. This is the law.

There are cases where the parties themselves resolve these issues without going to court.

The employer, presenting the employee with a claim to leave on their own, promises to pay both moral and material damages, as well as compensation for working on holidays or weekends, or for the days of forced downtime or unplanned vacation.

What to include in the claim if you are fired under duress

Every employee who has suffered so-called reprisals must know what to include in the claim if he or she has been subjected to forced dismissal.

Coercion to resign at one’s own request: court practice, what to do

In practice, there is often a situation where there is coercion to dismissal. The person does not want to leave the company, but he is forced to.

Important: they do not try to dismiss them at the initiative of the director, but to force them to write a letter of resignation. How can this be dealt with and what measures can be taken?

The layoff coercion

In scientific terms – it is a psychological impact of the employer on his subordinate, aimed at the employee to write a statement of resignation at his own request.

It is important to know the motives for which the boss may want to get rid of an employee. And then you can weigh all the pros and cons of different options for dismissal, and choose the right line of conduct. Sometimes, indeed, it is easier to write an application and leave quickly, but not always.

Causes of compulsory dismissal

Personal resentment

This reason does not apply to labor law at all. But it is also the most common. It happens so: the boss hired an employee. And everything seemed to be going well. But then the employee began to annoy. Or the employee did not like immediately, but it was impossible not to hire him because he is an excellent professional, or he was asked for it.

Whether or not to quit because of personal animosity is up to everyone. If the position is expensive, you have to stand up to it, to spite the employer and to benefit yourself. If the position is so-so, then you can very quickly leave at your own will – without working two weeks. Better yet, offer to sign a severance agreement with compensation to the boss. “You want me out of here, pay the money!”.

Liquidation of the company or staff reduction (headcount)

In this case, the employer already has a financial interest. If an employee is made redundant, he must be paid compensation, according to Article 180 of the Labor Code of the Russian Federation. In the worst case – for 3 months. If the employee quits on his own, he only gets:

  • salary for the time actually worked;
  • Compensation for unused vacation time, if he is entitled to it.

Forcing a pregnant woman to quit her job

If a woman who is pregnant or has a maternity leave is forced to resign her job, the motive is also clear. Such employees cannot be dismissed at the employer’s initiative (Article 261 of the RF Labor Code). This is why they use coercion. To make room for them. And in general, it is not profitable to keep an employee with a small child. Children get sick, the employee often goes on sick leave. And so on.

In this situation, it is better not to quit on your own. Again, you can try to get compensation out of the boss, concluding an agreement.

Leaving to get reinstated

Another cunning scheme: quit ostensibly on their own initiative, in fact – under compulsion, then, reinstate by court.

The pros of this method:

  1. Tension is relieved. The head by all means tries to remove the employee. And the subordinate leaves. Victory! The head of the company relaxes. And the cunning employee sues to get reinstated.
  2. A number of compensations can be recovered from the boss: for forced absence, for causing moral damage, etc. – depends on the specific situation.

if the employee has left on his own initiative, it is not easy to prove that someone forced him to do it.

Advice: if you plan to go to court and get reinstated, you need to collect evidence in advance. They can be:

  • audio recordings;
  • video;
  • Testimonies of witnesses;
  • Some other evidence.

Where to complain in case of coercion

  • labor inspectorate;
  • court;
  • Prosecutor’s Office

Inspectorate

In this agency is better to go with a complaint immediately, as soon as there were any facts of coercion. The labor inspectors, first, will make him wary, and secondly, can write a fine. His size will be discussed below.

Prosecutor’s Office

You can go to this body whenever you want. If the employee has not yet resigned, the prosecutor has the right to conduct an inspection, to send the head of the organization an order to eliminate all violations.

If the employee has already left the company, then the said body can also help, up to the point that they will advise how to draw up a claim, or will submit an application to the court for the citizen. And the participation of a prosecutor in cases of reinstatement at work is a must (Article 45 of the Code of Civil Procedure of the Russian Federation).

Reinstatement at work can be based on the decision of the body of justice. The claim is filed under the general rules prescribed in the Civil Procedural Code of the RF. The main thing is to have time to write and send the application within 1 month from the date of dismissal.

In court, as mentioned above, it is necessary to demand compensation for forced absence and for the harm caused. Still, the psychological impact on a person does not pass in vain.

Liability for Forced Dismissal

It is stipulated by Article 5.27 of the CAO RF. Liability is the same as for many other violations in the field of labor law:

  • officials and entrepreneurs are subject to fines of 1 to 5 thousand rubles;
  • Fines from 30,000 to 50,000 roubles for legal entities.

Is there a criminal responsibility?

The Criminal Code of the RF contains articles 144.1 and 145. They stipulate penalties for the illegal dismissal of certain categories of workers:

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