The employer does not sign a letter of resignation: what to do

The employer does not sign the letter of resignation What should the employee do in this case? In the article we will consider this issue in more detail.

Ch. 13 of the Labor Code of the Russian Federation contains grounds for terminating labor relations between an employee and an employer. In particular, art. 80 gives the employee the right to quit on his own initiative by writing an appropriate application and handing it over to the employer. However, the notification of the head of the organization of the upcoming dismissal must be made, as a general rule, no later than 2 weeks before the expected date of termination of the employment agreement.

Upon dismissal on this basis, the parties must take the following actions:

the employee must fill out an application indicating the date of termination of the contract, and hand it over to the management;

an official of the enterprise is obliged to accept this document and proceed with the execution of the necessary personnel documents;
after the expiration of the period for working out, the director must sign an administrative document (order), which officially reflects the fact of termination of labor relations;
on the day of dismissal, the specialist receives a full calculation of wages and other types of payments, as well as a work book with a record of termination of employment at the enterprise.

Under normal conditions, sending an application does not cause problems - it is handed over to an official of the organization who is authorized to conduct personnel records management. In some cases, such documents can be submitted through a record keeping specialist, who will mark the receipt of the application.

Upon receipt of the application, the representative of the enterprise must confirm this moment by affixing the number of incoming correspondence or a mark on the copy of the employee. In any case, such a mark must contain the date of receipt of the document.

Does it have the right boss not signing a letter of resignation? Unfortunately, it is impossible to force an official to sign a document or at least mark its delivery. Cases of employer evasion from receiving an application are not so rare, which can make the problem of dismissal almost insoluble.

Terms of dismissal

In the normal case, the employee must notify the manager of the planned dismissal at least two weeks in advance. The period of working off begins on the day following the day the employer familiarizes himself with the application.

However, the law provides for exceptions to this rule. So, an employee on probation is required to notify management of the planned dismissal in just three days, but the head of the organization can resign only a month after the application is submitted.

Lists the reasons why the company does not have the right not to fire the employee within the period specified in the application. Here are some of them:

the impossibility of the employee to continue working (enrolling in an educational organization, retiring, etc.);
violation by the organization of labor legislation, agreements, contracts, etc.
the need to care for a child under the age of 14.

Can an employer refuse to sign an application and why

The authorities in some cases go to great tricks in the following cases:

if the employee wants to quit and go to work in a competing company;
the employer does not want to search for a replacement at the moment;
the employee is a true professional in his field, the manager does not want to lose him;
the employee has a lot of unfulfilled work, the performance of which is prescribed in the employment contract or in the instructions;
the employer is personally interested in the presence of the employee at the workplace.

All of the above actions on the part of the employer are illegal. The employee has the full right to stop performing labor duties after submitting an application. But do not use the law to cover up your shortcomings. If the employment contract is drawn up with the condition that all obligations are fulfilled on time, then their fulfillment is mandatory.

In any case, the manager or other service at the enterprise that registers incoming correspondence must mark the acceptance of the application.

Most often, such an obligation is reflected in the local acts of the enterprise, including job descriptions of authorized employees who receive incoming correspondence. In addition, it follows from Art. 80 of the Labor Code of the Russian Federation, according to which the worker has the right to transfer the application, respectively, the other party to the legal relationship must accept it.

A situation may arise when the manager does not put a visa on the application, according to which the employee must be fired after the notice period for dismissal has passed, thereby does not give the command to the personnel department to prepare the corresponding order. Then, according to the provisions of Part 5 of Art. 80 of the Labor Code of the Russian Federation, the worker has the right to no longer work, and the employer is obliged to terminate employment relations with him and issue a work book. Thus, the visa of the management to satisfy the application for dismissal has no legal significance, does not affect the possibility of termination of the employee's employment relationship.

Possible options for filing a resignation letter

There are two options for applying to an employer:

First

Write an application in 2 copies, one of which is transferred to the head or to an authorized division of the organization, and on the second, get the signature of the person who accepted the application that it was transferred, and count 14 days from this day.

It is unacceptable to give an application to any employee (for example, an accountant), since only individuals have the right to receive documents.

If the director refuses to put a visa on acceptance of the application, it must be given to the clerk or secretary, who are authorized to receive general incoming correspondence from the enterprise. In this case, on the second copy of the document put:

the signature of the person who accepted the form, with the decoding of the last name;
number of incoming mail;
date of receipt of the document.

From the specified list, only the number of incoming correspondence is not a prerequisite. The date of receipt will officially start the countdown for working off, and the signature of the responsible employee will make it possible to confirm the fact of receipt by the appropriate person.

Second

If for some reason the application is not accepted, then there is a second option - to send the document by registered mail with notification. Be sure to also write a description of the attachment. It is necessary to remember the deadlines for sending correspondence and write the date of dismissal in the application, taking into account this interval. The algorithm of actions of a specialist will look like this:

fill in the text of the document according to the usual rules, putting the date of the application, the position and data of the sender, as well as his signature;
before sending the letter, make an inventory of the attachment so that the recipient has no reason to claim that he has received an empty envelope;
send an envelope by registered mail with notification;
after a certain period, receive a notification by mail, which will record the date the letter was received by the employer.

The time required to notify the manager should be counted from the moment the employer's representative receives the letter.

From the moment the letter is received in this way, the management has an obligation to dismiss the employee, regardless of the desire of the director. The employee will only have to wait for the expiration of the two-week period for working out in order to stop working unilaterally.

These two methods will allow, in the event of a dispute, to prove that the employee notified the employer of his desire to quit, because Art. 80 of the Labor Code of the Russian Federation does not provide for the obligation of the employee to wait for the visa of the head in order to terminate the employment relationship with the organization. In other words, after the deadline for notifying management has expired, a citizen may not go to work, and this will not be considered absenteeism, since the worker is considered dismissed.

Despite the fact that labor legislation does not contain a list of ways to notify the employer of the upcoming dismissal, the main thing to pay attention to is the resolution of the question of how it can be proved that the employer was notified of the dismissal.

Algorithm of actions and where to start

The algorithm of what an employee should do if they do not sign a letter of resignation:

Prepare statement ().
Correctly calculate the date of dismissal.
Send an application to the employer in a convenient way.
Wait a deadline.
Having done everything as required, you can apply for a labor and calculation on the designated date.
If a refusal is received, appeal against it in accordance with the procedure established by regulatory enactments.

For this purpose, you can:

File a complaint with the Labor Inspectorate, which will send appropriate instructions to the organization.
Apply to the court in case of delay in payments and refusal to issue a work permit.

Most often, the case rarely comes to court, because when an employee contacts the inspection, the employer is already at risk of being disqualified. And if the resigning person goes to court, then he risks incurring certain monetary losses.

Be aware that if you do not sign a letter of resignation until the employee has worked for 2 weeks, having returned from vacation, he is breaking the law.

Upon dismissal on one's own, there is no obligation to work off. Therefore, it is not necessary to replace the concept of notification with processing. This is not true. An employee may be on vacation or on sick leave. This does not prevent dismissal.

Application to the Labor Inspectorate

An application to the labor inspectorate is drawn up in a free form. There is no single legally approved sample. However, there is information that must be reflected in the document:

the name of the organization to which the application is submitted;
name, surname, patronymic of the applicant;
place of registration, residence of the applicant;
the name of the enterprise where the applicant worked;
the essence of the complaint, which prompted the employee to write a statement;
legally justified grounds for recognizing the applicant as an injured party;
list of attached documents;
date, signature.

Please note that in the main part of the application it is necessary to accurately reflect some information:

surname, name, patronymic of the head of the organization, his position;
facts that directly indicate a violation of the employee's rights;
What do you think the manager should have done in this situation?
date and signature are an integral part of any document.

An application to the Occupational Health and Safety Inspectorate is submitted in several ways:

personally through the office of the body;
mail, registered mail;
You can send an appeal online on the official website of the Labor and Protection Inspectorate.

It is believed that it is possible to file an appeal with the inspection only within three months from the moment the employer's violation is discovered. However, a similar rule applies to the direction of the appeal to the court.

After receiving the application, the inspection specialists initiate an audit of the employer. The results are recorded in a special act.

If the violation is confirmed, an order is issued:

eliminate the existing violation;
remove the employee guilty of the violation;
bring the violator to disciplinary responsibility;
prepare documentation for submission to the court, prosecutor's office.

If the employer refuses to comply with the requirements of the inspection, an administrative case may be initiated against him.

Complaint to the court

If it was not possible to resolve the conflict on your own, you can contact the prosecutor's office or the court. The statement of claim to the court is drawn up in the form approved by the territorial division of the judicial authority. There is information that is required to be reflected in the claim:

the name of the judicial body;
name, surname, patronymic of the plaintiff, his place of residence, registration;
the name of the organization that violated the right of the employee;
name, surname, patronymic of the head of the company;
the essence of the claim, what is the violation of the employee's rights;
what the applicant wants to achieve, the requirements are listed in a list with mandatory justification from a legislative point of view;
a list of documentation that serves as evidence in the case and is attached to the statement of claim;
date of filing and signature.

Please note that the statement of claim is drawn up using the rules described in Article 131 of the Code of Civil Procedure of the Russian Federation.

The statement of claim is submitted to the world, district or city court:

at the place of registration of the employee;
at the place of registration of the enterprise;
at the location of the company.

The choice of instance depends on the value of the claim. With its price up to 50 thousand rubles, an application is submitted to the world court, more than 50 thousand rubles - to the city or district court.

The state duty, according to Article 333.36 of the Tax Code of the Russian Federation, is not charged from employees in disputes with the employer.

The Magistrate's Court considers the application within one month from the date of registration. The District Court has two months to do so. After that, the applicant is sent a notice of the appointment of the trial. All interested parties are present.

The court makes a decision solely on the basis of the available evidence. They are collected by the applicant. If the defendant wishes to defend himself, he has the right to present any papers to the court.

Documents for download

When applying for a dismissal, as well as when disputes arise, an employee may need sample documents:

Application for dismissal of an employee: special cases

employee on vacation

If the employee is on vacation, his dismissal is no different from the termination of the relationship between the employee and the manager:

the specialist writes a letter of resignation and provides it to the head;
the employer reviews the document and decides whether to sign it or not;
after the order is drawn up, the relationship is considered terminated.

The main difference between the dismissal of an ordinary employee and an employee on vacation is that he does not need to work for a two-week period if the period coincides with the vacation time. For example, if the vacation lasts from March 1 to March 28, and the application was written on March 10, then there is no need to work out. But if the document was drawn up on March 20, then you will have to work out 6 days.

Please note that the application does not have to be submitted in person. It can be sent by registered mail. And receive the payment on the card, documents - by courier.

employee on sick leave

You can also write a letter of resignation during a period of temporary disability. If the boss does not sign a letter of resignation directed at this time, he admits a violation. Sometimes the expected date of dismissal falls on the sick leave period. It is on this day that the accounting department makes a calculation, the head draws up a dismissal order, indicating in it the impossibility of familiarizing the employee with the paper, due to the lack of one at the workplace.

The employee can receive his documents in person or by mail - at his choice, and the calculation must be carried out as soon as the employee requests it, maximum - the next day. The allowance for temporary disability will be appointed within ten days from the date of delivery of the sick leave. He will receive it the next day after that the salary is issued.

What to do if the boss does not sign the letter of resignation and threatens

Threats against an employee who wants to terminate an employment agreement from the company's management is a real problem. The former employer may indicate in the characteristic incorrect information that discredits the reputation of a respectable and responsible employee, for example, convict of negligence, negligence or other fictitious things.

Dismissal of an employee on the basis of the aforementioned violations is possible only within one and a half working months from the date of receipt of a disciplinary reprimand. Termination of the employment contract that took place after the expiration of this period may be the reason for filing a claim with the court.

The issuance of a positive verdict will force the former employer to indicate the real situation in the work book and compensate for the moral damage to the injured party in the person of the former employee of the company.

Can I apply to the secretary?

The right of the worker - to leave and the right of the chief - to dismiss is established by law. The fundamental point is that the submitted application is signed by the employee, and the obligation (note) to accept it, putting the date of acceptance and the signature of the recipient, that is, his secretary can do this.

The latter, by the way, is usually strictly prohibited. And they, smiling sweetly and guiltily, hold it back, they say, go to the reception.

If you have applied for voluntary resignation from your current job, but employer does not accept resignation letter under no circumstances should you do the following:

in no case do not give in to panic, do not fall into hysterics and do not let your emotions take precedence over reason and common sense. This does not contribute to your event, but the management has a reason to impose a fine and dismissal under a disciplinary article;
a demonstrative manifestation of passive aggression is also an undesirable measure: in no case do not ignore the two-week working off;
the best option would be to draw up a statement of voluntary resignation and transfer both copies to the company secretary. It is necessary to make sure that the relevant data is entered, including the time, day, month and year, the personal signature of the secretary and a mark of receipt of the document;
the next step is to receive one of the two copies with the fields filled in and start working for an additional two weeks;
after this period, the employee has the right to leave the previous place of work without compensation. At the same time, he has the right to demand the return of the following documentation: a work book with an appropriate mark, a certificate from the accounting department on wages for the last working year (if the period of work is less, then for the specified period), an employment agreement (if necessary);
it is also necessary to present the right to receive free wages for the period worked.

If these measures do not have the desired effect, it is recommended to file a claim with the court at the place of residence.

Watch the video. Form and registration of a letter of resignation of one's own free will: