How can an employee quit if the company has violated its obligations
If the employer does not fulfill his obligations, then the employee can leave ahead of time. But the mistake of the employer – for him not yet an occasion to sign a statement. How to quit competently, says Alexander Zhuk, director of the law firm “SPRAVA Consulting.”
- An employee may terminate the contract ahead of time if the employer has violated labor laws, collective agreements or contract provisions (part 1, article 41 of the Labor Code).
The employer breaks the law if
- Does not pay or pays out on time wages, travel, vacation.
- Does not grant a vacation or provides it on time.
- Does not provide healthy and safe working conditions. For example, it does not provide overalls, work shoes, personal protective equipment: helmets, masks, goggles, antinoise headphones.
- Does not notify or notify in writing not on time about changes in material working conditions (not later than 7 days).
- Admits to work without conducting instruction (introductory, primary), etc.
The law does not contain an exhaustive list of essential working conditions. But they include, in particular, the size and the wage system, the working time regime, labor benefits and employee guarantees.
In my experience, the greatest number of violations is associated with issues of pay – violation of the timing of payment of wages, payment in part. Also, it is common to impose obligations on the employee that are not provided for in the employment contract, failure to pay (advance payment) of advance, daily subsistence allowance, other travel expenses, non-observance of guarantees for remuneration for work overtime, public holidays, holidays and weekends.
How to quit if the employer has violated the law
The employee has the right to inform the employer about the violations and demand their elimination. But if the employer does not eliminate them, then this will not become the basis for the early termination of the contract.
Therefore, if the violation has not been eliminated, the employee should apply not to the employer, but to the labor inspectorate department, the trade union with the application for violation or immediately to the court.
Any of these bodies must confirm in writing the fact of the violation. Without this confirmation, the tenant has no right to terminate the contract ahead of schedule.
It is better to apply to the Department of Labor Inspection, and not to the trade union, because it is this body that has the right to impose fines and give binding orders.
How to prepare a statement. The form and requirements for the application are not established. In practice, it should specify the name, address of residence, contacts, by whom, where and how long you work.
Then write, when and which violations of labor legislation, in your opinion, the employer allowed. It will not be superfluous to consult the violated norms of the Labor Code from the lawyer and indicate them in the application. But this is optional.
Complete the statement with the phrase “In accordance with the foregoing, I ask you to check (the name of the employing organization) for violation of the labor legislation, give a legal assessment of these facts and, if there are grounds, bring to justice those responsible. Please provide me with an answer in writing in the time frame established by law. “
The check will take up to 30 days. As a result, an act will be drawn up. It confirms the fact of violation with references to specific norms of legislation.
Then the employee appeals to the employer with the application for dismissal with enclosing copies of the verification documents.
If the employer rejects the application for dismissal
If the employee received a confirmation of the violation of the law and applied for dismissal to the employer, and the employer rejected it, the employee can apply to the court for a premature termination of the contract.
This can be done within 3 months from the date of receipt of the refusal from the employer. If you miss this period for a good reason, it can be restored by the court.
The court can be contacted directly, bypassing the controlling bodies and the trade union. However, in this case, the employee will have to prove the fact of the violation himself, while in the first case such evidence will be presented in the form of acts of control bodies or the trade union.
If the court determines the fact of the violation, it has the right to oblige the employer to terminate the employment contract ahead of schedule at the request of the employee, if the employee himself wants it.
The date of termination of employment is determined by the court, depending on the circumstances of the case.
Before issuing the dismissal order, the employee must continue to work, otherwise the employer may dismiss him for absenteeism.
Upon the termination of the contract in connection with the violation by the employer of labor legislation, collective or labor agreement, the employer pays the dismissed employee (with the exception of pensioners) 3 average monthly salaries.