The employer insists on firing you. How to protect your rights?
Many companies have suspended operations, others have had to cease operations, and some have decided to downsize. What should you do if your employer insists on firing you? How do you protect your rights if you were fired illegally?
The epidemic of coronavirus negatively affected almost all spheres of life, and labor relations were no exception. Many companies suspended work, others had to cease operations, and some decided to reduce the number of employees. What to do if the employer insists on dismissal? How to protect the rights, if dismissed illegally? Let’s answer these questions in this article.
Employment relations can be terminated on various grounds, one of which is the initiative of the employee, and this option is most beneficial to the employer. As a rule, when deciding to terminate the employment relationship with an employee, the employer offers him to resign at his own request. This type of termination is quick, the employer is not required to pay compensation, as, for example, in the case of downsizing, and it is more difficult to challenge a dismissal at the employee’s own initiative in court.
What should I do if my supervisor suggests that I write a letter of resignation? The answer to the question depends on the position and plans of the employee.
1. If the employee does not agree to dismissal.
Dismissal at one’s own request implies personal initiative of the employee to terminate the employment relationship. The employer may not use any methods to force the employee to write such a statement.
If the employer forces you to resign, it is advisable to start gathering evidence of pressure from the employer in advance. Such evidence may include: – dictaphone recordings of conversations (including telephone conversations) with the manager, confirming the fact of coercion to dismissal; – screenshots of correspondence by e-mail or messengers (WhatsApp, Viber, Telegramm, etc.), reports, memos, explanatory notes, other written documents about the actual circumstances of the case, – drafts of written documents offered to be signed by the employee.
Try to conduct all negotiations with management in the presence of witnesses who can later confirm the fact of pressure from the employer.
Try to get the documents about your employment in advance: – Employment contract, all its appendices, – Job description, – Internal work rules, – Other local acts available to the employer, – 2-NDFL certificate of income, as well as pay slips (if they are issued in the company).
If you do not have the original, ask your employer for a copy. Also, employers sometimes post local regulations on their websites; check the website for these documents. It is advisable to download them in advance and make a screenshot confirming that they have been posted as of a certain date.
Let the employer know that you want to resolve the conflict peacefully, notify in advance that you intend to defend yourself actively and, otherwise, you will send a complaint about illegal actions of the employer to the labor inspectorate and the prosecutor’s office at the location of the employer.
If the conflict could not be resolved by yourself, very often the lawyers are able to do it. If possible, cede the right to negotiate to specialists, wait for a pause.
However, if the conflict is not resolved even after negotiations conducted by lawyers, then there is only one option – to file a complaint against the employer to the competent authorities (the labor inspectorate and the prosecutor’s office). To save time, the complaint should be filed electronically through the electronic complaint form on the website of state authorities.
Perhaps after a check by the supervisory authorities, the employer will stop the unlawful actions.
If the employee still writes an application for dismissal under duress, but has relevant evidence of illegal dismissal (or coercion to dismiss), these facts will help to restore rights in court and obtain compensation for the time of forced absenteeism. At the same time, the employee does not pay the state fee for appealing to the court, which minimizes the costs of the employee.
What to do if the boss forces you to quit
Some employers want to save time and money when they fire employees. To do this, they ask for a letter of resignation instead of triggering layoff procedures or assembling a commission to evaluate professional suitability. But it is illegal to demand that a person resign if he or she has not been convicted of a serious offense.
In this article, I will tell you in which cases the employer has grounds for firing a person, and where to complain if the boss is forcing you to leave at your own request.
Find out what the reason for the dismissal is
If a person did not plan to leave the company, he should not immediately agree to dismissal and sign the documents. First of all, you need to ask the boss why he is asking to quit, and then assess whether the reason is legitimate.
All reasons for firing an employee are spelled out in the Labor Code. If they want to fire a person for a reason that isn’t there, it’s illegal.
I will now tell you what the most common legal reasons are for firing someone and how the procedures should be set up. I’ll also explain whether you should sign a letter of resignation right away if your employer offers to do so.
Mismatch of Position
Dismissal for mismatch means parting with an employee who has not proven qualifications. For example, if a sales associate doesn’t know the assortment, he or she may be deemed ineligible for the position.
How they should terminate. Recognition of inadequacy is possible only through certification. To carry it out, a commission is assembled, which decides whether the employee corresponds to the position. The attestation cannot be carried out for one person: it can be carried out for the whole team, for all employees in one department or for employees in certain positions.
If a person does not pass the assessment, they cannot be fired immediately. He should first be offered training or a transfer to another position.
It is worth it to sign a dismissal at one’s own request. In this case, the employee should first request that a commission be convened and a performance review be conducted. According to the law, it is not possible to dismiss for non-compliance with the position without a performance review, so you should not immediately agree to the employer’s offer to write a statement.
If a commission is assembled and it finds a mismatch, and the new position offered to the employee by the employer is not suitable, he will be dismissed with a corresponding note in his work record book. In this case, you can write a letter of resignation so as not to spoil your employment record.
If you are going to leave your job, read the procedure for resignation at your own request:
Single Gross Breach of Duty
A gross violation of job duties is, for example, absenteeism, coming to work while under the influence of alcohol or drugs, disclosure of state or trade secrets.
How should you be fired. Management must prove the fact of the violation: for example, that the employee did not come to work without a valid reason, or that he was really intoxicated. To do this, on the day of the violation, an act is drawn up, which the employee must read and sign.
Is it worth it to sign the dismissal at one’s own request. If a report of violation is drawn up on the person and offers him to resign voluntarily – it is legitimate. In this case, it is better to agree to leave at one’s own request, so that no undesirable marks will appear in the employment book and it will be easier to find a new job.
If the employer does not have a certificate of violation, he can not fire the employee. It is not necessary to write a letter of resignation.
Repeated failure to perform job duties without good cause
Failure to perform job duties is, for example, ignoring the obligations under the employment contract, job descriptions, rules of employment. For example, if the security guard, who opens the room before the start of the working day, is constantly late and makes the whole team wait, he can be fired.
How should he be fired. If an employee has committed at least two such violations in a year and they are confirmed by disciplinary orders, he or she can be fired.
Is it worth signing a resignation at will. If an employee has already had two disciplinary orders in the past year and is offered to write a letter of resignation, he should agree. In this way undesirable entries will not appear in the employment book.
If the violations are not confirmed by disciplinary orders, it is impossible to dismiss for this reason. Writing a letter of resignation is not worth it.
Company liquidation or downsizing
If a company closes, all employees will be laid off – this is called a liquidation. If the company decides to abolish a position or an entire department, lay off some employees – then it’s downsizing.
How they should lay off. The employer must notify the employee in writing at least two months in advance of the termination. If the employee is laid off, he or she is entitled to severance pay and vacation pay for the days not taken.
Read more about what the layoff procedure looks like and what benefits employees should receive:
Whether or not to sign a voluntary dismissal. In this case, it is not worthwhile to resign at will – so the employee will not receive the compensation due under the law.
If the reason is illegal – negotiate or complain
If an employee finds out that he is being asked to resign for a reason that is not in the FCRF, two ways are left: negotiate the dismissal on his own terms, or complain.
Negotiate
If you don’t mind quitting, there are two winning ways out of this situation. In both cases, the employee will not have to work the standard two weeks.
Quit by mutual agreement of the parties. You can sign a termination agreement that takes into account your terms and conditions, including the amount of compensation. Read what you need to consider to legally quit this way:
Transfer to another employer. If you’ve already landed a new job, you can sign an agreement to transfer to another company. This procedure has the advantage for the employee – he or she will not have a probationary period at the new location.
To transfer to another company, you need to execute a document involving the employee, the current employer, and the future employer.
Complain
If the employer insists on voluntary dismissal and no agreement is reached, it is necessary to complain. The rights of employees are protected by the constitution of the russian federation and the labor code.
It is possible to complain about the coercion to dismissal to the prosecutor’s office. The office must examine the information and may initiate an unscheduled inspection of the employing company.
In order to appeal to the prosecutor’s office, it is necessary to draw up a complaint and collect evidence of coercion to dismissal. A free-form statement is sufficient for a complaint, which must include the reason for the complaint, a description of the situation and a justification.
The coercion to dismissal can be confirmed with the help of:
- audio or video recordings of the conversation with the supervisor, screenshots of correspondence confirming the pressure;
- Orders of fines, salary reductions, deprivation of bonuses or demotions;
- Testimony of co-workers.
These confirmations shall be attached to the complaint. The complaint can be filed in person, sent by mail or via State Services.
It is important to truthfully describe the situation and correctly specify contacts for contact. If the complaint is anonymous, it will not be handled, and if it contains false information, the employer’s inspection may be suspended or cancelled.
By law, the prosecutor’s office must respond within 30 days.
Briefly: what to do if your boss forces you to quit
When a supervisor asks an employee to write a letter of resignation, the first thing to do is to find out the reason.
An employee can be legally dismissed if he or she is not fit for duty, has repeatedly failed to perform his or her duties without good reason, or has grossly violated them. In such cases, it makes sense to resign at one’s own request so as not to spoil one’s employment history.
If the employer wants to part with the employee due to the liquidation of the organization or staff reduction, it is not worth writing an application of his own free will. If the employee resigns rather than being made redundant, he or she will not receive severance pay.
If the reason is illegal, you can try to negotiate the terms of separation with the employer. You can draw up a termination agreement and specify the amount of compensation in it, or you can agree on a transfer to another company.
If the reason is illegal and you cannot reach an agreement, you can go to the prosecutor’s office. To do this, you need to draw up a complaint, attach evidence of pressure and send everything by mail or through State Services.
