Author of the article: Anastasia Ivanova Last modified: January 2021 6347
Often, when hiring, employers ask hired employees to immediately write a letter of resignation without specifying a date. They motivate their request by saying that they want to avoid controversial situations in the future. However, an undated resignation letter is illegal. The Supreme Court of the Russian Federation confirms this.
Personnel employees should not accept applications for personal resignation with an open date from subordinates, even if it was drawn up on the instructions of the manager. Such a document violates the norms of the Labor Code of the Russian Federation, and a subordinate can apply to the labor inspectorate, prosecutor's office or court to protect his rights.
When is this possible?
Drawing up such a document is often a tool of manipulation on the part of the employer. Sometimes the company administration uses this technique to protect itself and fire an employee retroactively. There are precedents when, with the help of such a document, employees had to work overtime or do more work in order not to lose their position.
The organization takes such steps to reduce the number of payments to the employee in the event of liquidation of the company or planned staff reduction. Such methods contradict the current Labor Code of the Russian Federation.
Reasons for not specifying the number
There are cases when the employee himself does not indicate the date of the desired day of dismissal. This can happen for various reasons. Most often this is simple inattention when drawing up a document. Therefore, experts advise re-reading the document several times before submitting it to the organization’s office.
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According to Article 80 of the Labor Code of the Russian Federation, an employee is not required to indicate the date of dismissal in the application, but it is necessary to notify management of his decision at least two weeks before leaving. Labor legislation does not establish an employee’s obligation to work 14 days before dismissal; such requirements from management are contrary to the law. The employee must only notify of his decision no later than the specified period.
Reference! Sometimes a worker deliberately does not indicate the date of dismissal. This often happens if in the future he plans to go on sick leave or maternity leave, during which he does not have the right to fire him. Such actions also contradict current legislation; the company has the right to defend its rights in court in the event of such disputes.
On probation (without work)
Probationary period is a vague concept, which in different organizations implies its own periods of time. In most cases, this is 2 weeks, but even for this period it is necessary to write a job application indicating the time period of the probationary period. A person has the right to work without registration under the Labor Code for no more than three days.
Thus, if during the probationary period a person understands that the position is not suitable for him or that he does not like the working conditions, then he must submit a letter of resignation. It does not provide for 14 days of work.
"To the Director of LLC "Businessstroy"
I, Repina Anastasia Nikolaevna, ask you to dismiss me on March 2, _____, at my own request, without two weeks of work.
02.28._____ _______ Repin A.N.
In most cases, problems do not arise during the probationary period, so the employee has the right not to go to work the next day. The situation is typical with the consent of the manager.
If there is no one to replace the employee, then according to the Labor Code of the Russian Federation, a minimum working period of three days is provided.
Is it necessary to put a date?
In Russia there is no general form for filing an application for dismissal. It can be filled out in any form or according to the organization’s regulations. It is important that the document must be in writing; no oral agreements have legal force.
You can send your appeal to your employer in written, printed or electronic form. It is important to take into account that it is better to draw up such a document in two copies. To protect your rights, you should require the employee’s copy to be signed by management regarding the fact of receipt of the document.
According to the labor code, the date of termination of the employment relationship must be indicated in the application. You need to set the date carefully. If you indicate a specific date in the application, the employment contract will cease to exist on that date. If the application contains a request to dismiss at will from a certain date, the employment contract will be terminated the previous day.
The employee has the right to withdraw his appeal at any time and continue cooperation with the company. The exception is cases when a corresponding candidate has already been invited in writing to a vacant position.
Sample of a correct letter of resignation:
Employer's liability for violation of labor laws
Expert opinion
Sokolov Vladimir Timofeevich
Lawyer with 8 years of experience. Specializes in family law. Has experience in protecting legal interests.
In a situation where the employer convinced the employee to write a letter of resignation for manipulation, it can be assumed that such an employee will unconditionally fulfill the employer’s demands and perform any work under pressure.
The illegality of the employer’s proposal is reflected in Article 80 of the Labor Code of the Russian Federation, and liability in the field of violation of labor legislation is reflected in Article 5.27 of the Code of Administrative Offenses of the Russian Federation, according to which violation of labor legislation and other regulatory legal acts entails: a warning; imposition of an administrative fine on officials in the amount of one thousand to five thousand rubles; for individual entrepreneurs - from one thousand to five thousand rubles; for legal entities - from thirty thousand to fifty thousand rubles. There is no criminal liability for the employer in the area of violation of labor legislation.
During an inspection by the state labor inspectorate or the prosecutor's office, it is quite difficult to prove the fact of such a violation. Therefore, irrefutable evidence is required, which must be collected in the current situation (witness testimony, audio and video recordings, handwriting examination).
In most cases, the law is on the employee’s side. But for any employer, contacting the State Labor Inspectorate will be an effective measure, especially if it concerns the dismissal of employees.
Actions of the parties in controversial situations
Many companies, even at the time of hiring an employee, require that they write a letter of resignation of their own free will with an open date. Such demands are unlawful. The purpose of such actions on the part of the organization is the company’s own safety and interests.
In practice, it is simply not possible to apply for many vacancies without writing such an application. When this cannot be avoided, experienced lawyers advise applicants to fill out the document with their own hands using their own fountain pen. You should also make an endorsed copy for yourself. In order to further prove and defend your rights, it is recommended to record the conversation when drawing up the appropriate document using a voice recorder.
Attention! You can contact the prosecutor's office or the labor inspectorate regarding the unlawful demand of the enterprise administration to draw up an application for dismissal with an open date.
Court proceedings in disputes involving applications for dismissal will include:
- Conducting a chemical and biological examination, on the basis of which it will be clear that the date was entered later than the application was written
- Handwriting examination, which will show that the date is written in a different hand
- Analysis of existing audio or video recordings.
You can always prove infringement of your rights, but it is better to refuse such management requirements when applying for employment.
Another unlawful action of an employer is dismissing an employee before the established deadline. This applies to dismissal earlier than the date specified by the employee in the application, as well as if the date was not indicated and the employee was dismissed before 14 days had elapsed from the date the administration received the relevant application.
Where to contact a subordinate
If an employee was forced to write a letter of resignation without a date, then he has the right to contact the labor inspectorate or the prosecutor's office. He can also initiate legal proceedings. It is necessary to contact the district court within 1 month from the date when the person learned about the violation of his labor rights.
Labor inspection is designed to protect the rights of subordinates. The employee must send a written statement describing the circumstances and providing evidence of violation of his labor rights. You must also indicate in your application your full name, contact information and employer contacts. Anonymous requests will not be considered.
The prosecutor's office is obliged to monitor compliance with the legislation of the Russian Federation. The study of labor disputes is not within the powers of this body, but at the same time, a subordinate has the right to file a complaint against the actions of the employer and to this body.
Often employees do not have sufficient legal knowledge to hold the employer accountable. To do this, they have to seek legal assistance from specialists, but not everyone has the financial means to do this.
At the same time, the legislation exempts subordinates from paying state fees for court consideration of these circumstances.
The procedure for terminating a contract if the document only indicates the date of preparation
In such situations, termination of the employment relationship must be made after 14 days from the date of drawing up the contract. In this case, all days are taken into account, not just working days. The employee has the right to withdraw the specified application if he changes his decision and a candidate is not invited to his position. It is important that the employer has no legal grounds to demand that you work two weeks before dismissal.
In certain circumstances, it is possible to terminate an employment contract earlier than the period specified by law. To do this, the parties to the employment relationship must enter into a written agreement with a specified date for termination of the relationship.
Legal consequences for the employer
If authorized persons reveal the fact that the employer has indeed violated the labor rights of a subordinate, then he risks facing unpleasant legal consequences - for example:
- payment for forced absenteeism of a subordinate for the period from dismissal to reinstatement;
- compensation for moral damage;
- other penalties and payments.
If other offenses are detected - for example, gray wages, unofficial registration of subordinates - the employer will face additional penalties:
The procedure for terminating the contract if no dates are indicated in the application
The absence of dates in the document is a reason for the company’s management to treat the received application with great care. The administration may still ask the employee to indicate the desired date for termination of the employment contract and the date the document was written. If these actions are not possible to carry out, then experts advise the employer to do the following in order to avoid controversial situations when terminating the contract.
It is necessary to register the application in the appeal log. The recording must be made in the presence of witnesses who can confirm the actions of the HR department in the event of a trial. The court may also take into account available CCTV footage when considering the case. Only after registering the document can you begin to further formalize the termination of the employment relationship. The need to comply with the 14-day period from the date of submission of the announcement until the termination of the contract also remains mandatory.
For dismissal under an employment contract
Dismissal under an employment contract can be based on many reasons, ranging from the employee’s own desire to a gross violation of labor discipline, for which the employer has the right to terminate the contract unilaterally.
If there is no desire for further cooperation, it is necessary to write a corresponding statement on the part of the employee.
To the Director of JSC "Computer Technologies"
from the system administrator
I, Svetlana Vasilievna Kanishcheva, ask you to dismiss me from the position of system administrator on March 3, _____ due to the termination of employment contract No. 034875 dated 03/01/_____.
02.12._____ __________ Kanishchev S.V.
An important clarification is that the agreement continues to have legal force if neither party objects to further cooperation.
