Workers are increasingly challenging “voluntary” dismissals in the courts
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Despite the fact that a job seeker’s market has developed in the personnel sector in the Russian Federation, employers are increasingly faced with legal difficulties, even when employees resign of their own free will. Thus, an increasing number of those who filed for dismissal subsequently refuse it – and demand millions in compensation from companies for forced absences through the courts. Trade unions, on the contrary, believe that the new approach makes it possible to protect in court the rights of those dismissed under pressure – or they do not see a sustainable trend in what is happening.
A new trend is emerging in judicial practice – an increasing number of courts are ready to take the side of an employee when he challenges voluntary dismissal. Law firms interviewed by Kommersant reported this. Let us remember that such dismissal is one of the most popular ways on the Russian labor market to formalize the end of the employment relationship between an employee and an employer. According to Rosstat, in 2022, voluntary departure was the most common reason for employee departure (77.4%), followed by dismissal by agreement of the parties (7.6%). Earlier, “Kommersant” already wrote about how employees began to challenge such dismissals (see “Kommersant” dated June 6, 2022).
According to Anna Ivanova, head of practice and labor law at BGP Litigation, over the past two years one can find more than three dozen cases at the cassation level, when the courts reinstated an employee only because the employer did not explain to him his right to withdraw the application. “We recently had a unique case. The employee was fired at her own request, then she went to court, saying that she decided to leave out of revenge and resentment, but did not want to quit, but hoped to understand how much her employer valued her, whether she was ready to increase her salary or offer an agreement between the parties with severance pay. The court reinstated her because the company did not clarify the true intentions and reasons for the dismissal,” Elena Kozhemyakina, managing partner of the BLS law firm, gives an example.
The Supreme Court (SC), following the trend of “social protection in difficult times,” in reviews of practice in labor disputes in 2023, gave a clear signal about enhanced protection of “the interests of the employee as the economically weaker party in the labor relationship,” says the director of the organizational development practice of KSK Group” Mikhail Merkulov. At the same time, according to him, the courts began to actively demand in cases of dismissal evidence of the absence of pressure on the employee.
According to Tatyana Obukhova, a lawyer at Grishin, Pavlova and Partners, in 2022, the judicial panel for civil cases of the Supreme Court indicated that a legally significant and subject to determination circumstance is the fact that the employer explained the consequences of the employee writing a letter of resignation and the employee’s right to withdraw it. These clarifications were included in the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 2 (2023), approved by the Presidium of the Supreme Court on July 19, 2023. “Now the courts, when checking the legality of the dismissal procedure, pay attention to the presence/absence of the fact that the employer has explained the right to the employee’s withdrawal of the resignation letter at his own request,” she notes.
At the same time, says Mikhail German, head of the labor law practice at the law firm Varshavsky and Partners, the basis for recognizing dismissal as illegal is not that the employer did not explain the right to withdraw the resignation letter, but that the application was written under pressure from the employer when the employee did not want to resign. .
In labor courts, a presumption of guilt of employers has actually been formed, notes Mikhail Merkulov. “Therefore, only preventive measures can effectively counteract abuse of the right to judicial protection of workers,” he believes. These, according to Marita Badaeva, a lawyer in the judicial and arbitration practice of the Shvarts and Partners law office, include finding out the reason for the dismissal of an employee, especially in the event of a conflict, as well as an attempt to resolve it, recorded in writing. If this fails, the employee must, when accepting the application for his dismissal, hand in a memo outlining Art. 80 of the Labor Code of the Russian Federation. The only thing employers can do now is to add the phrase “The employee has been explained the right to withdraw the application at his own request” to the standard form of the dismissal order, agrees Anna Ivanova. “But neither the Labor Code nor the plenum of the Supreme Court obliges the employer to conduct explanatory conversations with employees upon dismissal. The vast majority of such disputes involve the employer’s good faith behavior and the employee’s abuse of rights regarding the dismissal procedure,” she concludes. If the court recognizes that the employee is right, his employer will have to compensate for the forced absence; the compensation could amount to several million rubles, Anna Ivanova clarifies.
At the same time, says Pavel Kudyukin, a member of the council of the Confederation of Labor of Russia, many companies still, along with an application for employment, require the employee to submit a letter of resignation at his own request – and in fact create for them additional requirements for registering such dismissals Right. “Corporate lawyers proceed from the presumption of equality between the employee and the employer, which in reality does not exist. It is the employer who has the opportunity to put pressure on participants in the process and fabricate evidence, including creating documents retroactively,” he notes. However, as stated by the head of the legal department of the Federation of Independent Trade Unions of Russia, Yakov Kupreev, the appearance of such cases can hardly be called a trend. “In 2022, Russian courts considered 140 thousand cases related to violations of labor rights (125 thousand were won by workers). Against the background of such statistics, three dozen cases can hardly be taken seriously,” he says.
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