If the employer does not dismiss at his own request

Under what article can one be fired?

Dismissal under Article 77 is dismissal by agreement of the parties, at the request of the employee or for objective reasons. This is a completely harmless article that will not spoil your work background.

If the employment record indicates dismissal under paragraph 1 of Article 77, we are talking about dismissal by agreement of the parties. If under paragraph 3 - about dismissal of your own free will.

It is worse if Article 81 is indicated in the work book. This article lists cases of dismissal at the initiative of the employer.

Points 1 and 2 are dismissals due to the liquidation of an enterprise or staff reduction.

The procedure for dismissal at will

If an employee needs to quit his job, he can do this at any time without giving reasons for his decision. And the employer has no right to interfere with this. But the employee must do this correctly so that problems do not arise later. Since not all employers say goodbye to their employees peacefully and quickly. Any dismissal consists of three main stages:

1. Providing a written statement at work about your intention to quit.
2. Work for fourteen days, which is counted from the moment the application is submitted.
3. Obtaining a work book and cash payment.

Therefore, first of all, you need to write a letter of resignation, in which the employee indicates that he is doing this of his own free will. It is best not to give it to the employer, but to take it yourself to the HR department. Moreover, such a statement should be written in two copies and each of them should bear the stamp, date and signature of the person who accepted it. Or you can simply make a copy of the application, but in this case, the HR department must also put an acceptance mark on it.

There are situations when it is not possible to deliver the application yourself, or they simply do not want to accept it, in this case you can proceed as follows:

1. Send the application by mail and do it by registered mail with acknowledgment of receipt and a list of the contents. In this case, the employee will have a receipt confirming the sending of the letter and a signed postal notification.
2. Send a telegram with acknowledgment of delivery.
3. Submit an application through a notary.

In these cases, two weeks of work must be counted not from the moment the application was submitted, but from the time it reached the addressee.

But even after the employee has submitted an application and worked for two weeks, there are cases when the director does not fire him of his own free will. If you cannot quit peacefully, then you need to resort to extreme measures.

What to do if they want to fire you under article

Try to come to an agreement first. Explain why. If the company lost money through your fault, return it. The goal is to achieve dismissal on your own or by agreement of the parties.

If you can't reach an agreement, remember:

• You can be fired for being late only after the first warning - a reprimand or reprimand, and no more than a year must pass from the moment it was received.
• Absenteeism is considered absence from work for more than 4 hours in a row. If you are absent for a valid reason, take a certificate. In any case, you write an explanatory note within 2 days, but they can fire you for absenteeism only within a month from the date of absenteeism.
• The fact of theft is established only by a court decision or a resolution of an authorized body. If the management does not want or cannot prove the theft in court, you have the right to dismissal on your own
• People can be fired for appearing drunk only based on the results of a medical examination conducted with the consent of the employee.
• All charges - concealment of important information, disclosure of confidential information - must be proven. If there is no evidence, you cannot be fired under the article.

If an employee commits an offense, the employer must first draw up a report signed by the boss and two witnesses, and then request an explanatory note. If any of these documents are missing, you cannot be fired.

Where can I find help?

If you are fired from a job unlawfully or, on the contrary, do not want to fire you, you should follow all the steps listed above so that the employee has evidence of violations of the law, and then contact higher authorities.

For example, you can write a complaint to the prosecutor's office or the labor inspectorate, where you can explain the current situation. These authorities undertake to conduct an inspection and make a decision within 30 days; most likely, the case will be sent to court. You can file a claim directly to the district court, but then you need to act as quickly as possible, since the deadline for filing a statement of claim is no more than 30 days.

This is important to know: Dismissal under a student agreement

Organizational leaders should not resist dismissal. Often, those who wanted to retain an employee at any cost were brought to justice in court. If the employee acts reasonably, the management will have to pay considerable sums and still release the employee.

How to return to your previous position?

The easiest way to return to your previous place of work is to withdraw your resignation letter sent to your employer before the notice period (working period) expires. After this, the document is considered canceled if another employee has not yet been officially invited to take the citizen’s place.

Reviews are made in 2 ways:

• the employee puts the appropriate mark on the application;
• the employee writes a second application to recall the first.

The law does not prohibit verbal information to the employer about a change in decision. Then the dismissal documents are not prepared, the employee continues to perform his official duties - the contract continues.

However, in practice, personnel officers prefer to record the withdrawal of the application in writing.

• If the dismissal has not yet been formalized, then no further action is required from the employer. However, when issuing an order to terminate the contract, it should be canceled by drawing up a new one.
• If an entry has already been made in the work book (for example, a person changed his mind about leaving on the last day of work), it must be declared invalid.
• If the warning period has expired or there has been no work, the employee is considered officially dismissed.

In this case, it is permissible to return to the organization after agreement with the employer: with his approval and if there are vacancies. In this case, the person is rehired: he writes an application for the position, a new employment contract is concluded with him, and an entry is made in the work book.

If, after the expiration of the notice period, the employee continues to work and the employer has not formalized his dismissal, it is considered that he did not quit. The employment contract continues to be valid.

Reinstatement in the organization through the court is possible - this method is used in case of illegal termination of the contract. For example, if a person was forced to write a letter of resignation by his own decision (forced, threatened with dismissal under the article if he disagreed, and so on). In this case, it is necessary to collect evidence of the offense (testimonies of witnesses, video and audio recordings, correspondence, and so on).

You can appeal the termination of your employment relationship by contacting:

1. To the management of the enterprise with a request to clarify the decision and take measures for reinstatement. It is advisable to provide links to current labor law standards.
2. To a trade union, if the employee is part of an association.
3. To the labor inspectorate at the location of the enterprise. In the complaint, describe in detail the circumstances of the situation, the norms of the Labor Code of the Russian Federation, and ask for an inspection. If violations are detected, Rostrud will issue an order to the organization, and possible administrative liability. The inspector has the right to initiate proceedings in court to reinstate the citizen in his position and pay compensation.
4. To the prosecutor's office, attaching facts proving a violation of the employee's rights, facts of forced dismissal.
5. To court. It is important to correctly draft a claim with a detailed description of the circumstances of the case and attach supporting documentation.

It is permissible to send claims to several authorities simultaneously.

According to Art. 392 of the Labor Code of the Russian Federation, filing a claim for wrongful dismissal is carried out within 1 month from the date of transfer to the employee of the relevant order or work book.

If the employer does not provide the citizen with documentation, the period for going to court is extended . In this case, it is calculated from the day when the person was informed or should have learned about the dismissal. For example, during an oral statement by the employer in front of witnesses.

If the permissible period for applying to the authority is overdue, the court has the right to restore it if there is a significant reason for the absence (illness of the plaintiff, his stay on a business trip, acts of force majeure, and so on). If the outcome of the case is positive in favor of the employee and the dismissal is declared unlawful, the court obliges the defendant to fully or partially satisfy the employee’s demands.

If the employee wishes to return to his previous place, he is reinstated in his position on the current conditions with payment of earnings for forced absence. Additionally, it is possible to recover compensation for moral damages from the employer.

The employee’s reinstatement starts on the day the court decision is announced:

1. The management of the enterprise cancels the order to terminate the employment contract, issuing a new one on the reinstatement of the citizen according to a court verdict.
2. The employee gets acquainted with the order against signature.
3. The data on the work time sheet is corrected - a “forced absenteeism” code is assigned for the period of validity of the old order.
4. Entries in the employee’s personal card are corrected (the previous one is crossed out), work book (a new one is entered, the old one is declared invalid).

The employee is notified in writing of the date of return to work; working conditions remain the same. The execution of the court order is controlled by bailiffs.

Recovery of pregnant women

Since 2020, the Russian Supreme Court began to protect the rights of family employees, as well as working pregnant women, and this is proven by judicial practice.

Today, if an employee finds out that she is pregnant after dismissal, she can be reinstated at work, even if she had previously decided to leave it herself.

If the employer refuses reinstatement, he will be obliged to do so by a court decision. In addition, the company will pay the woman compensation for forced downtime due to court proceedings.

The law always protects the rights of those people who defend it. If the rights and interests of an employee were violated when forced to dismiss, you need to send an appeal to the competent department in order to restore justice. The ability of employees to protect their own rights allows them to regulate the actions taken by employers, as well as ensure that everyone, without exception, adheres to the law.

Algorithm of actions

Not every departure from a company is due to bad management. If you wish to return to your previous position, you should discuss this prospect with the management of the company. If an employee has not yet been hired to fill the vacant position, it is possible that the employer will bring the negligent employee back. And if it is not possible to reach a common agreement, you cannot do without the help of the judiciary.

Personal wish

Reinstatement at work after dismissal from an enterprise at one's own request, if the employer agrees to re-employ the departed employee, is not tied to specific terms or previous employment. Hiring takes place on a general basis with the drawing up of a new contract and the establishment of a personal file.

When it comes to the return of employees through the court, the dismissed person has 30 calendar days during which he can go to court to protect his labor rights. The period begins to count from the date of receipt of a copy of the dismissal order.