Ирина Володина — трудовые споры с работником

Legal briefing notes

Why is the accompaniment of a lawyer so important in conflicts between employee and employer?

1. Conflict dismissal of one employee may lead to an inspection of the entire enterprise by the inspection authorities concerning the implementation of the labor law. There is no enterprise that is protected from the fact that a conflict may arise with an employee, which may lead to the termination of the employment relationship or the dispute.

The offended employee may write a letter of dismissal and / or apply to the inspection authorities with a complaint that his rights are being violated, and he was forced to resign as a result of threats and harassment. The inspection of State labor inspectors may affect the entire human resources documents of the enterprise, and it is possible that the company may receive an impressive fine for violations of the labor rights of employees. In addition to the labor inspection, the aggrieved employee can apply to the court to challenge the dismissal of his own free will on the grounds that there was no voluntary dismissal, and the termination of employment is forced due to pressure from the employer. If the facts of pressure on the employee are established in court, the court will recognize the dismissal as illegal and reinstate the employee at work. So it may lead to the fact that the compensation will be recovered for the period of enforced absenteeism from the employer.

What does employer pressure mean?

  1. Deprivation of bonus as a way of discrimination;
  2. Psychological pressure,
  3. The requirement to write a letter of resignation from one's position (some employees can record a conversation with the employer, after which this recording can be presented in court as evidence of pressure),
  4. 04. Intimidation of the employee with disciplinary prosecution for any shortcomings during the work

2. If you feel that the employee can create potential conflict and dismissal, in order to be reinstated through the court and collect compensation from the employer, then the employer should:

  • check the internal code of labor conduct and other local regulations existing at your enterprise, and the signature of the problem employee that he knows them;
  • check the job description of the employee with a list of his duties and check the signature that he knows them;
  • fix the violation of labor discipline and non-fulfillment of labor duties by the employee;
  • When negotiating with an employee, do not allow a dismissive tone, humiliation and threats, try to be restrained;
  • try to negotiate dismissal by agreement of the parties with a small compensation, if the situation allows. The judicial practice of the Supreme Court in recent years shows that the absence of violations in the dismissal procedure will not be able to protect the employer from the possible reinstatement of the employee at work and payment of compensation for the period of enforced absenteeism. At the same time, the amount of legal costs will be significantly higher than the possible compensation to the employee for termination of employment by mutual consent;
  • try to ensure that the dismissal documents by mutual consent do not remain at the time of the employee’s thoughts in his hands: there is a possibility that the employee can use them against you or put a wrong name on the documents, challenging them in court.

3. What should you do if the conflict with the employee still not be avoided?

  • Follow the procedure for disciplinary and financial prosecution of the employee;
  • When requesting explanations from an employee about misconduct, do not rush to prosecute on the same day that the notice of supplying explanations is delivered and the employee's explanations are received. Wait for the expiration that is 2 work days from the date the employee was given a notice of giving explanations because the employee can change his explanations, indicating that he was pressured.
  • Conduct an investigation determining the circumstances of the professional misconduct by an employee.
  • Make sure that the documents confirming the disciplinary offense do not contain errors and contradictions, and also fully confirm the fault of the employee. Carefully describe the evidence of the employee’s guilt and the explanations provided, considering, if there are any employee’s merits, and if there are or no disciplinary offenses at the time of prosecution.
  • Study the order of the employee.
  • After the termination of the employment relationship, close the employee's remote access to corporate mail, CRM programs.

Even if there is a disciplinary offense, labor legislation does not prohibit termination with an employee by mutual consent. However, it will not be superfluous to get the investigation of the misconduct done: termination of the employment contract by mutual consent can be challenged by the employee in court and declared illegal due to the lack of voluntary will of the employee to conclude an agreement on the dismissal and pressure from the employer. According to the procedure for disciplinary prosecution of the employee, the employer has to prove that there was disciplinary offense and there was no pressure on the employee.

As we can see, the dismissal of a conflict worker is a very complicated and dangerous procedure, where even one wrong step may lead to legal dispute. And in labor disputes, the employer must prove that the rights of the employee were respected. And any clue about pressure on an employee may cause his reinstatement and the recovery of a large compensation for the period of enforced absenteeism.

The lawyers of the Tsentralny Okrug Law Firm can help you develop the algorithm of interaction with the employee, considering the documents you have. Our lawyers can give you the opportunity to terminate the employment relationship with the conflict employee without risks and according to the labor legislation and in the most comfortable for you way, that will save you money and time.

How can you contact us

You can call us + 7 (473) 20-30-161 or send a request using the feedback form on our website
Our e-mail: info@centraldep.ru
Office in Voronezh: lane Detskiy, b. 24, of. 44
Office in Moscow: Holodilny building 3, construction 8, of. 8304, phone number: + +7 (495) 118-27-79.
Author is Irina Volodina

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