What is the best way to resign of your own free will or by agreement? Dismissal by agreement of the parties is an excellent option for both the employee and the employer

There can be any number of reasons for dismissal - moving to a new place of residence, getting a new highly paid position, and others. However, this process does not always go quickly and without difficulties. Dismissal by agreement of the parties can be considered the best option if the employee entered into an employment contract (EA) with the employer, but at the same time, few people know whether any payments are provided in this case and how to correctly follow all the stages of the procedure for severing the employment relationship.

What does dismissal by agreement of the parties mean?

It is already clear from the expression itself that termination of the contract is possible only if agreements are reached between the two parties - the employer and the employee. This is the main feature and difference between the procedure and dismissal at will. Termination of a TD is possible with a fixed-term or open-ended contract. The main feature of the procedure is that each party is obliged to notify the other of such a decision.

At the initiative of the employee

If you turn to practice, you will notice that more often the termination of the contract occurs on the initiative of the employee himself. If you decide to sever your employment relationship with your employer, you must notify your superiors of your desire by writing a corresponding statement. The CEO then imposes a management consent resolution. If the employer does not agree, the subordinate can write another statement, for example, of his own free will.

At the initiative of the employer

The employer can also offer to terminate the contract before its expiration date. This method is relevant when management wants to fire an employee, but there are no compelling reasons for this. To do this, the employee is sent a written notice, which reflects the expected date of termination of cooperation. For his part, the subordinate, if he disagrees, can refuse or indicate his own conditions. They can be put in writing or reach consensus through negotiations.

Regulations and laws

If we turn to the legislation, we will not be able to find any precise recommendations regarding the termination of labor relations between an employee and employers by mutual agreement. All issues in this area relate to the practices existing at a particular enterprise. Only the Labor Code has a small chapter numbered 78, which states that cooperation can be terminated at any time. In addition, it says that the initiator of dismissal can be either one or the other party to the contract.

Termination of TD

Termination of a TD by mutual agreement has recently gained popularity. This is due to the fact that to carry out the procedure there is no need to prepare a large package of documents. The consent of the parties to the agreement is the only condition of the procedure. Termination of a contract gives a person the opportunity to quit as soon as possible without unnecessary bureaucratic delays.

Simplicity and convenience of design

If for other reasons the procedure for terminating cooperation between an employer and an employee is not always simple and can take a long time, then in the case of termination of a contract by agreement, this issue is easy to resolve, but only when the two parties agree to sign. In addition, the legislation does not establish any deadlines, so dismissal is possible even on the day of notification.

As for the convenience of the procedure, it should be noted that neither the employee nor the employer are required to notify each other in writing of their intention to terminate cooperation. However, lawyers advise sticking to documenting your desire. This will help subsequently resolve issues regarding mutual claims and controversial situations in court, where the document drawn up will be provided as evidence.

Agreeing on the terms of the procedure

The wording itself contains the main meaning - in order to terminate the TD, the parties must come to mutual agreement. They can put forward their demands both in writing and orally. Achieving optimal conditions provides a good opportunity to get the most from the procedure. Thus, compensation may be provided for the employee, and management, for example, may put forward conditions for mandatory work for a certain period of time in order to transfer cases to a new employee or liquidate existing debt.

Change and cancellation only by mutual consent

Termination of relations by consent of the parties to a trade union has a distinctive feature - it has no reversal. This means that the agreement cannot be canceled. However, in some cases changes are possible, but only if, again, both parties agree. This circumstance distinguishes the procedure from leaving work of his own free will, when an employee can withdraw his application.

As for the process of changing previously reached agreements itself, it is advisable to observe some formalities. So, for example, if an employee sends his management a proposal to make changes to the agreement in writing, then the employer is recommended to respond to him in writing, stating his disagreement with the conditions put forward or expressing his readiness to make concessions.

Possibility of dismissal of employees of any categories

If we look at the legislative framework, we can see that you can terminate cooperation with an employee at any time, regardless of whether he has a fixed-term or open-ended contract. This circumstance does not prevent you from dismissing a subordinate during the vacation period or if he is on sick leave, but for this his consent must be obtained. The employer cannot unilaterally fire them.

Removal from office by agreement of the parties is often used when a contract is terminated with an employee who has committed a disciplinary violation. This is beneficial to both parties, since the employer gets rid of an unwanted employee who receives a work book that does not indicate that he was fired “under the article.” In addition, reinstatement can only be achieved by a court decision, which will be impossible to obtain because the citizen himself has given his consent.

It should be especially noted that an employer can fire a pregnant woman, but (!) only if she herself expresses such a desire - there can be no other exceptions. When receiving such an offer, the employer must be careful, because if the woman was not aware of her situation before signing the agreement, but found out about it later, she has the right to withdraw her resignation, and the court of first instance will be on her side.

What payments are due?

Russian legislation does not provide for any compensation payments upon signing a mutual agreement. However, this does not mean that leaving work by agreement of the parties does not give any privileges to the subordinate, since you can always put forward your own demands, especially if the initiative comes from the employer. In addition, the management of the organization must pay the resigning employee in full, and the deadline for payments is usually considered to be the last day before leaving.

Remuneration for hours worked

As already mentioned, the employee must receive money, or rather wages, for the time actually worked, including the last day at work, no later than the last day before leaving, which is specified in the agreement. This also applies to other accruals that are due to a person under a collective agreement. This could be various types of additional payments, annual financial assistance, etc.

In the event of failure to pay due funds within the time limits established by the Labor Code due to the fault of the employer, the employee must first contact the employer and request written guarantees that the money will be transferred within a month. In addition, it is necessary to file a complaint with the Labor Dispute Commission at the enterprise. If none of the above brings results, each citizen can go to court with a request to collect the debt in the prescribed manner.

Compensation for unused vacation

According to Article 115 of the Labor Code, the minimum paid leave is 28 days. If by the time of dismissal the employee has not taken the vacation due, the management of the enterprise is obliged to pay him compensation for each day. The payment calculation is no different from the standard calculation for any employee. Provided that part of the vacation is spent or the employee has worked for less than a year, the days are calculated in proportion to the time worked.

Severance pay

The most questions arise with the payment of severance pay. If, upon staff reduction or liquidation of an organization, an employee is entitled to a certain amount specified by law, then by agreement of the parties, the law does not establish any requirements for this procedure. This suggests that the employer may not pay anything to the resigning employee at all, especially if the agreement was reached as a result of disciplinary action.

If an agreement is reached or if such a clause is included in the TD, the employer pays a certain amount. The remuneration can be set regardless of any circumstances and be any amount. To calculate it you can use:

• average monthly salary;
• a certain amount of salary, etc.

Stages of the procedure

The law does not stipulate the process of dismissal from work by mutual consent. The employer has the right not to notify the employment service or trade union organization about the termination of the labor contract and not to pay severance pay to the dismissed person, unless otherwise determined by the labor/collective agreement or other local regulations. As a rule, they are guided by the established practice at the enterprise.

The procedure is not lengthy and consists of performing a certain order of actions:

• agreements are reached;
• an order for the enterprise is drawn up and given to the person leaving for review;
• within a period determined by the parties, a full settlement is made with the employee and he is issued a work book.

Drawing up an agreement to terminate an employment contract

Since agreement between the parties to the contract is the basis for dismissal, it is drawn up and signed by both parties to the TD. As for its form, there are no exact instructions here, so the form can be any, but it must be indicated there:

• grounds for termination of labor relations (agreement of the parties);
• date of dismissal;
• signatures of both parties.

The agreement itself can be in the form of a statement from the resigning specialist (worker), which must indicate the date of termination of cooperation determined by the parties. It is subject to the employer's resolution. In addition, a separate document can be drawn up. It specifies all the conditions, and the agreement itself is drawn up in two copies - for each participant in the agreement. An example form looks like this:

Order of dismissal

According to the resolution of the State Statistics Committee of Russia No. 1 of 01/05/2004, the dismissal order is drawn up according to the unified form T-8 or T-8a. It is standard for everyone, however, each enterprise can develop its own order form, which should contain the following points:

• grounds for termination (termination) of the employment contract – Agreement of the parties, clause 1, part 1, art. 77 Labor Code of the Russian Federation;
• the document on the basis of which the decision was made - Agreement on termination of the employment contract with number and date.

Familiarization of the dismissed person with the order against signature

After registering the order, the person leaving must familiarize himself with the contents. He must sign, which will indicate agreement with all the stated points. In addition, he can receive a copy of the document or an extract from the order. If a person refuses to sign a document or cannot do so due to temporary disability, a note about this is put in the order, and in the presence of witnesses, a report is drawn up on the employee’s refusal to familiarize himself with the contents of the order.

Entry in personal card and work book

When a person is hired, a personal card is created for him, which records all changes related to job responsibilities. For this, the approved T-2 form is used. Here you must also enter a record of dismissal by agreement of the TD participants, details of the order and date. The HR department inspector puts his signature, and after familiarization, the person leaving must put his own.

The following entry is made in the work book: “The employment contract is terminated by agreement of the parties, paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation.” It is certified by the signature of the responsible employee, the seal of the employer and the signature of the person leaving. The book itself is in hand on the day of dismissal, which is recorded in a personal card and a special journal.

Drawing up a note-calculation in form T-61

From the moment the dismissal order is signed, the organization is obliged to make a final settlement with its employee. To do this, you need to fill out a note according to the established form T-61. It is filled out first by the HR department, which enters all the necessary information, and then by the accounting department, drawing up the calculation. The form of the document was developed by statistical authorities, however, each enterprise has the right to have its own version, taking into account the specifics of work activity.

Full payment on the employee's last day of work

As already noted, settlement with the employee must be made before he leaves his place of work. An important aspect is that the entire due amount is paid immediately - the management cannot apply any installment plans. The only payment that can be paid after a person leaves is a bonus, which is calculated based on the results of the enterprise’s work for the previous period.

What documents are issued by hand?

Upon resigning with the consent of the TD participants, an employee of the organization receives a certain set of documents:

• work book with a record of dismissal;
• a certificate in form 182n, which provides information on the employee’s salary for the last two years, which is necessary for calculating sick leave payments.
• a certificate containing information on contributions to the Pension Fund (RSV-1 or SZV-M);
• certificate of average earnings, if a person registers with the Employment Service;
• certificate in the form SZV-STAZH indicating the length of service;
• copies of internal documents, if such were requested by the resigning employee.

Features of taxation of severance pay

Provided that the amount of severance pay determined by the agreement, the average monthly salary for the period of employment, monetary compensation to the manager, his deputies and the chief accountant does not exceed three times the average monthly salary or six months for an employee in the Far North and equivalent regions, are not subject to personal income tax. For everything paid above this amount, you will have to pay income tax. This rule also applies to insurance contributions to the Pension Fund and other organizations.

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The legislation provides that the parties can terminate an employment contract through negotiations between themselves and reaching an agreement. Dismissal by agreement of the parties can only be formalized if the administration and the hired employee mutually agree to the conditions established in the agreement. Despite the fact that the procedure is regulated by the Labor Code of the Russian Federation, many of its aspects are determined by court decisions.

Since the dismissal of an employee by agreement of the parties implies the achievement of mutual agreement, this method is the least conflicting for ending the employment relationship.

Negotiations make it possible to resolve most conflict situations and disputes that arise. It is imperative to remember that a dismissal agreement by agreement of the parties will be valid if, at the time of preparation, all parties voluntarily agreed to sign it.

Both the employee who has a desire to leave the enterprise and the administration of the company who made the decision to terminate have the right to begin this procedure.

In the first case, the employee sends a resignation letter to the enterprise’s personnel service by agreement of the parties. If the initiative for dismissal comes from management, then the employee is sent a corresponding letter on company letterhead.

Attention! If any of the parties refuses to sign it, then it must be carried out, which involves mandatory warning to the administration in a certain time, or at the initiative of the employer with the payment of various types of compensation and the execution of a number of documents.

Current practice shows that dismissal by consent of the parties has recently been carried out more often at the initiative of the employer. To convince the employee, they may be offered compensation upon dismissal by agreement of the parties in an increased amount and other compensation in favor of the employee.

Dismissal by agreement of the parties - pros and cons for the employee

This type of termination of relations with an employee has a number of positive and negative aspects. Let's take a closer look at them.

Benefits for the employee

• An employee who wishes to formalize his dismissal using this method may, by agreement with management, not work out the period established by the Labor Code of the Russian Federation.
• The employee does not need to explain to the company the reason why he decided to quit.
• An employee can request from his employer increased amounts of severance pay and compensation, as well as recommendations, etc.
• Also, dismissal by agreement between the parties gives the offending employee a chance, with the consent of the administration, to avoid an undesirable mark on his work record.
• Due to increased compensation, when registering with the employment service, the amount of unemployment benefits will be higher than with traditional methods of terminating a contract.

Disadvantages for the employee

• If an employee leaves by agreement, then he cannot change his mind and not terminate the contract, as is possible when applying at his own request. In order to terminate the dismissal procedure, he must obtain the consent of the company administration.
• It is impossible to revise the terms of the agreement after it is signed.
• The agreement drawn up cannot be canceled even in court.
• The employee independently makes a decision on his dismissal; the opinions of the trade union body in the company are not taken into account.

Is such dismissal beneficial for the employer?

For the employer, this type of dismissal is more profitable, even though it requires additional costs or concessions.

If an undisciplined employee works for a company, then upon termination of the contract with him, by agreement between the parties, the administration has the opportunity to part with him without drawing up a number of relevant documents.

In addition, this person will not be able to review the signed agreement in court and return to the company.

Attention! You can part with an unwanted employee even while he is on vacation or on sick leave, which cannot be done when the company initiates this procedure.

Another side that has positive aspects for the employer is that when the parties are dismissed, it is possible to agree with the employee that he will help find a replacement person with relevant experience or experience, or will provide him with training.

Thus, the work process will not stop for a long time.

Dismissal by agreement of the parties or at your own request, which is better?

When deciding to terminate the employment relationship between a company and its employee, each party has the right to choose how to do this. Before starting this process, you need to weigh all the positive and negative aspects of each method, as well as correctly navigate the current situation, determining the goals of dismissal.

Most often, employees leave their place of work in search of more promising employers. This could be a larger salary, comfortable working conditions, etc. They are in a hurry to leave in a short time. Therefore, dismissal by agreement between the parties is more beneficial for them.

Attention! When the employee does not have a new job, he has uncertainty about the new place, then when completing the documents he may change his mind. In this case, it is better for him not to formalize dismissal by agreement between the parties in order to be able to return.

Is it possible to fire an employee without written consent?

The agreement to terminate the employment contract must be drawn up and signed under the condition of voluntariness.

The Labor Code of the Russian Federation does not establish in what form the agreement reached should be recorded. Therefore, an oral form of agreement between the employee and the employer is allowed, or it can be drawn up in writing.

In the first case, it is best for the parties to reach an agreement in the presence of witnesses in order to avoid further disputes and disagreements.

If the document is drawn up on paper, the employee’s signature must be present on it. This option is safer for management, as it allows you to prove the existence of this agreement.

Attention! Based on the above, an employee can be fired without his written consent, but only if a verbal agreement has been established with him.

How to formalize the termination of an employment contract by agreement of the parties?

Step 1. Draw up an agreement with the employee

The Labor Code does not indicate in what form such an agreement should be drawn up - written or oral. But in order to further prove the agreements reached, it is better to do this in written format in two copies - each party receives one copy.

Some points to mention in the document:

• Last day of work in the company;
• Opportunity to get vacation before dismissal;
• The amount of monetary payment, including the availability of compensation for dismissal;
• Procedure for training a new employee;
• Etc.

Attention! If signed, then any conditions can be changed only with the consent of both parties. Doing this unilaterally is prohibited.

Step 2. Drawing up a dismissal order

After the document is completely completed, it must be registered in the order register and submitted to the head of the company for signature.

Step 3. Familiarization of the employee with the dismissal order

After the order is drawn up and signed by the manager, the form must be given to the resigning employee for review and signature. Thus, he confirms that the document has been read. The signature and date are placed in the fields specially designated for this purpose.

If the employee cannot familiarize himself with the order, or he refuses to sign on it, it is necessary to draw up a report on this event. In the presence of witnesses, a document is drawn up, the details of which must then be indicated on the order in the field intended for signature.

The employee may receive a copy of the dismissal order, but to do this he must submit the request in writing. The employer does not have the right to refuse such a request, and must hand over a copy within three days.

Step 4. Making the necessary entry in your personal card

Attention! In the event that an employee refuses to sign the card, a report on this is drawn up in the presence of the commission. These documents are subsequently stored together in the archive.

Step 5. Entering information into the work book

When the basis for termination of an employment contract is the concluded agreement of the parties, the entry in the employment contract must include a reference to Article 77 of the Labor Code of the Russian Federation: “Dismissed by agreement of the parties, paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation”.

An entry must be made only on the basis of an existing dismissal order. Information about it must also be reflected in the labor document in the last column.

The entry made is certified by the personnel officer, manager, or employee whose duties include performing such work. According to the new rules, a seal impression is no longer required. The employee must familiarize himself with the finished record and put his signature in confirmation of this.

Example, entries in the work book about dismissal by agreement of the parties:

1	2			3	4
				Limited Liability Company "Ladya" (LLC "Ladya")
7	20	05	2013	Recruited to the accounting department as a billing accountant	Order No. 21-L dated May 20, 2013
8	18	11	2016	Dismissed by agreement of the parties, paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation	Order No. 94-L dated November 18, 2016
				HR specialist Ignatova M.I.
				Reviewed by: Zhurba G.I.

The employee who is responsible for making an entry in the document is financially responsible for its accuracy to the resigning citizen. If an error was made in it, and it subsequently prevented him from getting a job, then the culprit will have to pay the average earnings for all those days that the victim was unable to work due to the identified error.

Step 6. Drawing up a settlement note upon completion of the employment agreement

This document must be drawn up in order to accurately determine the amount of compensation due for unused vacation, salary for the current month and other payments. To fill out the form, there is a special form T-61, which was created by the State Statistics Committee. He also made recommendations for its use.

Step 7. Issuance of salary calculations

On the day that is the last for the employee in this company, he needs to be given all the money due.

These include:

• Payment for the last month of work;
• Severance pay upon dismissal by agreement of the parties. Also, additional payments can be determined by labor or internal regulations.

Sometimes on the final day it is not possible to hand over the paycheck to the person leaving. Most often this happens due to the fact that he is absent from work that day due to illness, illness or other valid reason. In such a situation, the money must be kept at the enterprise, and it is issued the next day after the former employee declares his readiness to receive payment.

In addition to cash, settlement payments can be transferred to a salary card or bank account. In these circumstances, the transfer date may be postponed to the next banking day.

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Important! If, for any reason, a dispute occurs between the employee and the employer about the amount of amounts to be paid, then on the specified day only that part that is not disputed by both parties must be paid. Negotiations are underway for the remaining amount, or one of the parties must begin legal proceedings.

If, before resigning, an employee decides to use the available vacation days, then he is not paid compensation for them. However, it must be remembered that providing such a rest period is the goodwill of the employer, and not an obligation.

Step 8. Preparation and issuance of documents that need to be completed upon termination of the contract

After the termination of the employment contract has occurred and the payment has been transferred, the former employer is obliged to prepare and hand over some mandatory documents:

• Work book of the employee. The personnel employee enters information about the dismissal into it and hands over the document to the resigning employee on the last day.

The employee needs to sign the entry in the work record, and also confirm its receipt by noting it in a special journal of work records at the enterprise. If a situation arises that an employee cannot pick up a work permit on the last day, for example, he went on a business trip, got sick, or for some reason simply refuses to do so, the HR officer needs to draw up a notification.

It must inform you of the need to come up to receive a work permit, or to give your consent to send the document by mail or courier service. From the moment such a message is sent to the dismissed employee, the organization is relieved of responsibility for failure to issue the work permit within the prescribed period.

• , which was accrued to the employee for the two previous years and the year of dismissal. It will be needed to calculate sick leave at the new place. The certificate is drawn up on a special form.
• for each year of work in the company.
• On the right about accrued and transferred contributions to the Pension Fund. The document is drawn up on a special form developed by the fund.
• Copies of internal forms related to the activities of the dismissed employee. These could be orders, incentives, thanks, etc. They can be issued upon written request within 3 days. The organization has no right to refuse to issue copies of documents.
• Certificate of average salary for the employment service. The document must be issued within three days from the submission of the request. There is a special form, but organizations may not use it and issue the certificate arbitrarily.

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Important! For failure to issue a new SZV-STAZH certificate, the company employee faces a fine of up to 50 thousand rubles.

Step 9. Submitting information about dismissal to the military registration and enlistment office (if necessary)

According to the current law, if an employee liable for military service is dismissed from an organization, the company must report this fact to the regional branch of the military registration and enlistment office. This must be done within two weeks of the dismissal. There is a special form for notification, which was put into effect by the rules for maintaining military records at enterprises.

Termination of an employment contract by agreement of the parties is one of the safest for the employer. However, there are pitfalls here too. Which? We'll find out now.

The agreement of the parties is easy to document. The employer’s actions are practically undeniable in court, since in this situation there are no preferential categories - the employment contract can be terminated even with a pregnant woman.

For an employee, dismissal under clause 1, part 1, art. 77 of the Labor Code of the Russian Federation is a characteristic of its non-conflict nature, which future employers will appreciate.

Dismissal strategy by agreement of the parties

What to do if an employee does not agree to the terms of dismissal?

In this case, experts advise conducting competent negotiations with him. Here are a few secrets that will help you achieve results.

If the employer has decided to dismiss, the dismissal must take place for any reason. There is no turning back. Therefore, it is necessary to study various methods of dismissing an employee at the initiative of the employer (they are listed in Article 81 of the Labor Code of the Russian Federation) and analyze which of them can be applied in a certain case - that is, prepare a plan B.

It must be remembered that dismissal is possible due to both “guilty actions of the employee” - for example, appearing at the workplace in a state of intoxication, absenteeism, gross violation of labor duties, and “innocent” actions - for example, staff reduction, changes in the terms of the employment contract. Moreover, if the employer has chosen a “guilty” strategy, then, when developing Plan B, he must adhere only to it - for example, collect evidence. The situation is similar with the “innocent” strategy. Throwing is not allowed.

You should prepare for dismissal negotiations carefully, but it is more effective to conduct them in one day, as they say, “resolve the issue immediately,” even if the negotiations drag on and everyone wants to disperse, postponing the decision until tomorrow. Perhaps tomorrow everything will be different and the employer’s efforts will be dashed against the wall of doubts and thoughts, often unreasonably erected by the employee during the break provided.

When preparing for negotiations, you need to collect as much information as possible about the employee: does he have a mortgage, do he have dependents, what is his family like. Those who are single and not burdened with payments make concessions more easily than those who are bound by financial obligations.

The structure of the negotiations is also important. As a rule, it is as follows: reconciliation with dismissal, discussion of alternative moves (plan B), bargaining, final part, drawing up an agreement. Some people think that the main thing in this process is bidding. In fact, the process of reconciliation with dismissal is key. For an employee, being informed of an upcoming dismissal is a shock. And how well the contact is established with the employer at the first stage of negotiations, the result will be so successful. How long can reconciliation take? As much as needs. Only after the employee understands that dismissal is inevitable and it is not as scary as it seems at first glance, can we move on to the next stage.

At the end of the negotiations, you need to encourage and thank the employee, turning his attention to the paperwork.

Pitfalls of dismissal by agreement of the parties

Now, using examples of specific court cases, we will consider several issues related to the termination of an employment contract by agreement of the parties.

Can an employee be reinstated at work if he believes that the dismissal by agreement of the parties was signed by him under pressure from the employer?

If the employee proves that the employer forced him to sign a dismissal agreement under clause 1 of part 1 of art. 77 of the Labor Code of the Russian Federation, then reinstatement at work is possible. If he doesn’t prove it, the court will side with the employer. Example - Appeal ruling of the Moscow City Court dated March 18, 2016 in case No. 33-9523/2016. The employee, dismissed by agreement of the parties, tried to be reinstated at work. At the trial, he stated that he signed the dismissal documents under pressure from his employer.

Due to the requirements of Art. 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis for its claims and objections.

The employee was unable to provide convincing evidence for his claim. The employer provided the court with an order of dismissal by agreement of the parties, issued on the basis of the employee’s application.

Since the employee and the employer agreed on the grounds and term for termination of the employment contract, the court came to the conclusion that the termination of the employment relationship was legal on the grounds indicated in the order.

A similar situation was considered by the Moscow City Court in the Appeal ruling dated September 26, 2016 in case No. 33-8787/2016.

The deputy director for medical affairs was dismissed by agreement of the parties at the end of the probationary period. The employee tried to be reinstated in court, pointing out that she signed the agreement under pressure from the employer. The court found the employer's actions to comply with labor laws for the following reasons.

During the probationary period, the employee was reprimanded for improper performance of her duties, which was the reason for her dismissal. The court found that the employer had grounds for reprimanding him, the procedure for imposing a disciplinary sanction and the terms provided for in Art. 193 of the Labor Code of the Russian Federation, not violated, the severity of the offense is taken into account. The employee received a notice of termination of the employment contract, which contained information about the unsatisfactory result of the test. On the same day, an agreement was concluded between her and the employer to terminate the employment contract under clause 1, part 1, art. 77 of the Labor Code of the Russian Federation, which was signed by the employee herself.

Checking the plaintiff’s argument that she was pressured by notification of her upcoming dismissal due to failure to complete the probationary period, the court came to the conclusion that the presentation of such notification is the right of the employer on the basis of Art. 71 of the Labor Code of the Russian Federation in the presence of an established probationary period and it cannot be considered as putting pressure on the employee, that is, the employer legally put her before the choice of dismissal on the basis mentioned or by agreement of the parties. The plaintiff did not provide the court with any other evidence of pressure exerted by the employer, so the court rightfully refused to satisfy her demands for recognition of the dismissal as illegal and reinstatement at work.

Can an employer change the grounds for dismissal if the employee refused to resign by agreement of the parties?

If the employee is against concluding an agreement to terminate the employment contract, the agreement in accordance with Art. 78 of the Labor Code of the Russian Federation does not sign with him, therefore dismissal under clause 1, part 1, art. 77 of the Labor Code of the Russian Federation is impossible. In this case, the employer has the right to dismiss on other grounds specified in labor legislation.

Let us consider as an example the Appeal ruling of the Moscow City Court dated August 16, 2016 No. 33-31927/2016. The director was announced his dismissal under clause 1, part 1, art. 77 of the Labor Code of the Russian Federation by agreement of the parties, and two days later - on changing the grounds for dismissal to dismissal under Part 2 of Art. 278 Labor Code of the Russian Federation. Considering that the employer’s actions were illegal, the director went to court, pointing out that he had not expressed his will to dismiss by agreement of the parties, and the employer had no right to change the basis for dismissal after termination of the employment relationship.

The court sided with the employer for the following reasons. At the meeting, a decision was made to terminate the powers of the director; he was offered to resign by agreement of the parties. However, due to the director’s disagreement with concluding an agreement to terminate the employment contract, the agreement in accordance with Art. 78 of the Labor Code of the Russian Federation was not signed with him and the dismissal under clause 1 of part 1 of art. 77 of the Labor Code of the Russian Federation did not take place.

At an extraordinary general meeting of the organization's participants, a decision was unanimously made to terminate the powers of the director. The employee was dismissed on the basis of clause 2 of Art. 278 of the Labor Code of the Russian Federation (the adoption by an authorized body of a legal entity of a decision to terminate an employment contract). The court indicated: in paragraph 2 of Art. 278 provides for the right to terminate an employment contract with the head of an organization at any time and regardless of whether the manager has committed guilty actions, as well as regardless of the type of employment contract - fixed-term or indefinite. Moreover, this norm allows for the possibility of terminating an employment contract with the head of an organization by decision of the owner of the organization’s property, an authorized person (body) without indicating the reasons for the decision.

Is it legal to dismiss an employee by agreement of the parties if he signed such an agreement, but then demanded to cancel it?

If an employee demands to cancel the dismissal agreement by agreement of the parties, then the employer cannot dismiss him under clause 1, part 1, art. 77 of the Labor Code of the Russian Federation, since an agreement between the parties has not been reached. It should be borne in mind that some courts consider the employee’s demands to be legal only if the reasons for refusing to sign the agreement are quite significant, for example, the woman found out about her pregnancy. In this case, dismissal must be at the initiative of the employer in compliance with all requirements of labor legislation.

Let us consider as an example the Determination of the RF Armed Forces dated June 20, 2016 No. 18-KG16-45. The procurement department specialist went to court demanding her reinstatement at work. She signed an agreement to terminate her employment relationship, but upon learning of her pregnancy, she asked her employer to cancel this agreement and was refused.

In refusing to satisfy the woman's claims, the court of first instance proceeded from the fact that the dismissal was carried out by agreement of the parties, and not at the initiative of the employer. The mere fact that an employee is pregnant, which she was not aware of at the time of signing the agreement to terminate the employment relationship and dismissal, is not grounds for deeming the dismissal illegal. The appellate court agreed with the findings of the trial court and their legal basis.

The Judicial Collegium for Civil Cases of the RF Armed Forces considered the conclusions of previous courts to be incorrect. The agreement of the parties to terminate the employment contract could not remain valid due to the lack of expression of the will of one of the parties - the employee filed an application for refusal to fulfill the agreement reached with the employer to terminate the employment contract in connection with pregnancy, which she did not know about at that time. Since no agreement was reached between the parties, the dismissal was actually carried out at the initiative of the employer. And termination of an employment contract with a pregnant woman at the initiative of the employer is not allowed. (Part 1 of Article 261 of the Labor Code of the Russian Federation). The situation when the employer did not know about the pregnancy of the dismissed employee is specified in paragraph 25 of the Resolution of the Supreme Court of the Russian Federation No. 1, which states: since the dismissal of a pregnant woman at the initiative of the employer is prohibited, the employer’s lack of information about her pregnancy is not a basis for refusing to satisfy the claim for reinstatement at work. Consequently, the guarantee in the form of a ban on dismissal of a pregnant woman at the initiative of the employer is also applicable to relations arising upon termination of an employment contract by agreement of the parties.

A similar decision was made by the St. Petersburg City Court in Determination No. 12785 dated September 28, 2009. At the time of concluding this agreement, the employee also did not know about her pregnancy. Having found out, she sent the employer a statement refusing to fulfill the agreement in connection with the pregnancy and a certificate from the antenatal clinic, and despite this, she was fired by agreement of the parties.

The court indicated that when initially signing the agreement, the woman assumed that her dismissal would entail legal consequences exclusively for her personally. However, in the changed circumstances, she realized that termination of the employment contract could lead to a deterioration in the material well-being of her unborn child. Therefore, the court considered the reasons for refusing the initial decision to be significant. But the employer did not take into account the significance of these motives and did not consider it necessary to inform the employee of his opinion regarding her application to refuse to fulfill the agreement, although he had the necessary documents. The indicated actions were qualified by the court as an abuse of law.

Is dismissal by agreement of the parties legal if the dismissal agreement is not drawn up in a separate document?

The dismissal agreement does not need to be drawn up as a separate document. Let us consider as an example the Appeal ruling of the Moscow City Court dated March 18, 2016 in case No. 33-9523/2016. Resolving a dispute about reinstatement at work after dismissal by agreement of the parties, the court correctly considered the dismissed employee’s argument that the parties had not signed a written agreement to terminate the employment contract to be untenable. The Labor legislation does not indicate as a mandatory condition for dismissal under clause 1, part 1, art. 77 of the Labor Code of the Russian Federation, signing a separate agreement (Article 78 of the Labor Code of the Russian Federation).

Is it permissible to dismiss an employee by agreement of the parties during the liquidation of an organization?

If the employee himself expressed a desire to sign a dismissal agreement, then dismissal by agreement of the parties is legal even on the day of liquidation of the organization. When the employer offered to sign such an agreement to the employee immediately before making a decision to liquidate the organization, then this dismissal is unlawful, since in fact there is a dismissal in connection with the liquidation of the organization.

When terminating the contract due to the liquidation of the organization, the employee must be provided with all guarantees and compensation provided by law. Thus, the “Bulletin of Judicial Practice of the Omsk Regional Court” (No. 3(44) for 2010) states: sometimes employers, in order to avoid paying compensation upon termination of an employment contract due to the liquidation of an organization, established by Art. 178 of the Labor Code of the Russian Federation, terminate employment contracts on other grounds, including by agreement of the parties, which entails recognition of the dismissal as unlawful. Example - Determination of the judicial panel for civil cases of the Omsk Regional Court dated January 27, 2010 in case No. 33-516/2010. In connection with the entry into force of Law No. 244-FZ, the employer decided to liquidate the organization. Employment contracts with casino managers were terminated by agreement of the parties the day before the liquidation. The court declared the employer's actions illegal.

Is the employer obliged to pay compensation to the employee upon termination of the employment contract by agreement of the parties?

Labor legislation does not oblige payment of compensation to an employee upon termination of an employment contract by agreement of the parties. However, if the provision for this compensation is contained in the agreement on termination of the employment contract and it is included there lawfully (does not contradict the requirements of labor legislation and previously established agreements), then the employer is obliged to pay compensation.

When an agreement to terminate an employment contract, which provides for the payment of compensation upon dismissal of an employee by agreement of the parties, contradicts, for example, a previously concluded employment contract or the Labor Code of the Russian Federation, the payment of compensation is illegal, as indicated by the Armed Forces of the Russian Federation in Resolution No. 36-KG15-5 dated August 10, 2015 . The employee was asked to terminate the employment contract by agreement of the parties with payment of compensation. The provision for payment of compensation upon dismissal was contained in the additional agreement to the employment contract. However, after dismissal, the employer did not pay compensation in the agreed amount.

The court of first instance, where the woman appealed, recognized the employer’s actions as correct, but then the appeal court overturned this decision. Further, by a decision of the presidium of the regional court, the decision of the court of first instance was upheld - the employee was not entitled to compensation upon dismissal. The Supreme Court confirmed this, based on the following. The court found that the additional agreement to the employee’s employment contract actually provided for social guarantees, including the employer’s obligation to pay the specified compensation upon termination of the employment contract with the employee in connection with the decision of the person exercising the rights and obligations of the employer.

Satisfying the employee’s claims, the court of first instance came to the conclusion that the condition stipulated in the agreement on termination of the employment contract regarding the payment of compensation to the employee on the basis of an additional agreement to the employment contract is applicable in the event of termination of the employment relationship by agreement of the parties.

Wrong position of the courts

Among other things, the court of first instance proceeded from the fact that the employer has the right to establish additional guarantees for the employee beyond the mandatory ones defined by the labor legislation of the Russian Federation. In this regard, an agreement on the payment of compensation upon termination of an employment contract is the unconditional right of the employer and cannot be considered to violate the rights and legitimate interests of the parties to the employment contract, since there is no local regulation prohibiting the establishment and payment of compensation upon dismissal of employees in the organization.

Supporting the decision of the court of first instance, the presidium of the regional court indicated that labor legislation does not contain a prohibition on establishing directly in the employment contract or additional agreements thereto conditions for the payment of severance pay in an increased amount. According to the presidium, the agreement to terminate the employment contract is an act containing the norms of labor law, which, by virtue of Art. 11 of the Labor Code of the Russian Federation, the employer is obliged to be guided in labor relations with the employee.

The appellate court sided with the employer. In overturning the decision of the court of first instance to satisfy the employee's claim, it proceeded from the fact that the collective agreement, local regulations, and the employment contract do not contain conditions for the payment of monetary compensation to the employee upon termination of the employment contract by agreement of the parties; labor legislation also does not provide for this payment.

The Judicial Collegium for Civil Cases of the RF Armed Forces also found that the conclusions of the courts that upheld the claim of the dismissed employee violated the norms of substantive and procedural law. Indeed, by virtue of Part 3 of Art. 11 of the Labor Code of the Russian Federation, all employers in labor relations and other directly related relations with employees are obliged to be guided by the provisions of labor legislation and other acts containing labor law norms.

Chapter 27 of the Labor Code of the Russian Federation regulates the provision of guarantees and compensation to employees related to the termination of an employment contract. Payment of severance pay to an employee is not due for any dismissal, but only for dismissal on the grounds specified in the law - a list of grounds for paying severance pay to employees in various amounts and in certain cases of termination of an employment contract is given in Art. 178 Labor Code of the Russian Federation.

Termination of an employment contract by agreement of the parties is one of the general grounds for termination of an employment contract under clause 1, part 1, art. 77 of the Labor Code of the Russian Federation - in this case, payment of severance pay to the employee is not provided for by law.

But in addition to those established by law, the employment contract may determine additional cases of payment of severance pay and their increased amounts. The provision on this is contained in Part 4 of Art. 178 Labor Code of the Russian Federation.

Indeed, the employment contract and additional agreements to it provided for the payment of compensation upon termination of the employment contract with the employee (in addition to the grounds established by law). Here the Supreme Court, like the appellate court, pointed out one essential condition contained in the listed documents: payment was expected only if the dismissal occurs by decision of the employer, and termination of the employment contract by agreement of the parties is not such.

Therefore, the agreement on termination of the employment contract, which provides for the payment of compensation upon dismissal of an employee by agreement of the parties, was found by the Supreme Court to be contrary to both the employment contract previously concluded by the parties and Part 1 of Art. 9 of the Labor Code of the Russian Federation (by virtue of which contractual regulation of labor relations must be carried out in accordance with labor legislation).

But if the condition for compensation upon dismissal by agreement of the parties was drawn up in a separate document and was not based on the compensation agreement from the employment contract, the employer would have to fulfill it.

The correct position of the courts

In the opinion of the Supreme Court of the Russian Federation, the indication of the presidium of the regional court that an agreement to terminate an employment contract is an act containing labor law norms is also untenable. The list of acts containing labor law norms is given in Art. 5 Labor Code of the Russian Federation.

Among them, the employment contract and the agreement to terminate the employment contract are not named, since they do not contain labor law norms, but are agreements between the employee and the employer that determine the working conditions or the conditions for terminating the employment relationship of a particular employee. That is why the actions of the employer, who promised compensation to the employee upon dismissal by agreement of the parties, but did not pay the promised money, were recognized by the Supreme Court as not contrary to the law.

Dismissal by agreement of the parties, that is, according to clause 1, part 1, art. 77 of the Labor Code of the Russian Federation, the procedure is quite simple. However, the employer should remember that the agreement must be bilateral. If the employee provides evidence to the court that this agreement was signed against his will, the dismissal will be declared illegal. The employee must not forget that termination of an employment contract by agreement of the parties is often carried out by the employer in order not to pay compensation to the dismissed person (for example, provided for dismissal at the initiative of the employer).

In preparing this part of the article, materials from the speech of the managing partner of the BLS law firm E. Kozhemyakina at the forum “Personnel Affairs - 2016” were used.

Resolution of the Plenum of the Armed Forces of the Russian Federation dated January 28, 2014 No. 1 “On the application of legislation regulating the work of women, persons with family responsibilities and minors.”

Federal Law of December 29, 2006 No. 244-FZ “On state regulation of activities related to the organization and conduct of gambling and on amendments to certain legislative acts of the Russian Federation.”

The best way to end an employment relationship for an employer is dismissal by agreement of the parties. But the director of the company needs to be extremely collected in order to prevent possible attacks from employees. Directors are accused of putting pressure on subordinates, forcing them to leave the organization. Therefore, it is very important to correctly formalize the dismissal by agreement of the parties.

Labor Code on dismissal by agreement of the parties

The Labor Code offers approximately 40 options for ending labor relations with employees. Dismissal by agreement of the parties is a priority. This is due to the fact that the principle of freedom of contract is one of the dominant ones not only in labor legislation, but also in the entire legal system.

According to Article 78 of the Labor Code of the Russian Federation, the relationship between an employer and a hired specialist can be terminated by agreement of the parties at any time.

Article 349.4 of the Labor Code states that severance pay, compensation, and other payments for this type of dismissal are not made for managers, their deputies, municipal and state institutions, companies and societies in which more than 50% of the authorized capital belongs to municipalities or the state.

It can be said that regarding dismissal by agreement of the parties, the law leaves everything to the discretion of the head of the organization and the subordinate, allowing them to independently prescribe the conditions for termination of employment in the contract.

Pros and cons of dismissal by agreement of the parties

Dismissal by agreement of the parties: advantages for the employee

1. When you need to choose a convenient date for ceasing to perform your duties (for example, you need to leave service on the same day or, conversely, after some period of time).
2. When there is a likelihood of receiving more attractive compensation from management above what is paid for other forms of dismissal (for example, the manager is ready to issue severance pay in a larger amount than what the specialist would be paid if the number and staff were reduced).
3. When an employee, after dismissal, plans to register with the employment service, since in this case the benefit will be paid more and for longer than if he resigned of his own free will without good reason.

Dismissal by agreement of the parties: disadvantages for the employee

According to Article 78 of the Labor Code of the Russian Federation, dismissal is possible even if a specialist is absent due to illness or vacation. As a rule, when an employment contract is terminated at the request of the head of the organization, this is impossible. But still, this cannot be considered an absolute drawback, since the employee has the right to refuse this form, since the matter concerns a mutual agreement. If the specialist agrees to the proposed compensation, such a departure from service will even be beneficial for him.

Dismissal by agreement of the parties is not controlled in any way by trade union organizations. The manager does not need to send documents to the trade union body for approval, even if it is planned to dismiss a minor employee. Therefore, in this situation, dismissal by agreement of the parties may have disadvantages for the employee; he needs to carefully consider his decision and protect himself as much as possible.

Termination of relations by mutual consent does not provide for any additional monetary compensation for the employee, unless otherwise specified in the employment contract or local regulations. In this regard, dismissal by agreement of the parties with payment of compensation is possible only if this is agreed upon with the manager.

On his own initiative, the employee does not have the right to terminate the agreement and make a reverse decision, since this document acquires legal force from the moment it is signed by both parties.

Termination of an employment relationship if there is a mutual agreement is not subject to challenge in court, that is, if dismissal is planned by agreement of the parties, the employee must think about the pros and cons in advance. The decision should not be spontaneous, so as not to regret it.

Advantages of dismissal by agreement of the parties for the employer

1. The scheme is not clearly regulated by law, so this termination of employment can be formalized by agreement with the subordinate, which is much more convenient than other methods of dismissal.
2. You don’t have to spend money on additional payments upon dismissal by agreement of the parties if they were not discussed in advance, so this operation can be carried out without any extra costs.
3. This form of termination of employment can be applied to various categories of employees, even if under other conditions they are not subject to dismissal (for example, a pregnant woman or a single mother with a minor child).

Disadvantages of the procedure for the employer

1. Dismissal by agreement of the parties is precisely why it is called that, because it is possible to terminate relations with an employee only after his consent.
2. Cash payments are made only from net profit.

How to talk to an employee about dismissal: conversation script

When dismissing a subordinate, ensure the safety of corporate data, try not to offend the person and prevent rumors in the team. An article in the electronic magazine “General Director” will help you choose the right words and behavioral tactics.

Dismissal of an employee by agreement of the parties: step-by-step instructions

Step 1. We offer in writing to the employee to resign by agreement of the parties.

First of all, the subordinate or manager invites the other party in writing to terminate the employment relationship. For a specialist - an application for dismissal by agreement of the parties; for the manager - notification to the employee.

The next thing is to obtain the consent of the opposite party. It also needs to be in writing, but it is acceptable to leave the resolution “I do not object” or the word “I agree”, as well as the date and signature of the other party.

Step 2. Draw up a dismissal agreement.

Its provisions depend on the specific circumstances and working conditions of the employee.

After concluding an agreement, it can be changed in the same manner as provided for its conclusion. An employee cannot finish work before the specified time, but the head of the company does not have the right to fire a specialist earlier.

This requirement was approved by the Resolution of the Plenum of the Supreme Court No. 2 of March 17, 2004, as well as the Determination of the Constitutional Court of the Russian Federation No. 1091-О-О of October 13, 2009.

Step 3. On the day specified in the agreement, we issue a dismissal order.

Its form, in contrast to the agreement, was approved by Resolution of the State Committee of the Russian Federation on Statistics No. 1 of January 5, 2004.

In this case, the T-8 form is used. In accordance with the Law “On Accounting”, since 2012, enterprises can develop unified forms themselves, but companies use the T-8 template.

Step 4. Introduce the employee’s order.

The employee must be familiarized with the order against signature. At the written request of a specialist, they can make a photocopy or an extract from the document. Management has no right to refuse this.

In the event that an employee does not want to sign an order or for some reason cannot do so, a note about this must be put on the document, and then, in the presence of witnesses, a statement of refusal to review the order must be drawn up.

Step 4. We register the employee’s dismissal in his personal card.

Information about dismissal must be entered into the personal card of form T-2, compiled when registering a specialist for the enterprise. The details of the order and the date of completion of work are entered in the “grounds for termination of employment relationship” column.

After registration, the person must be presented with a personal card against signature. In case of refusal, a report should be drawn up in the presence of witnesses.

Step 5. We make the appropriate entry in the work book.

The next step is to enter the relevant information that the dismissal occurred by agreement of the parties. The entry in the work book must contain a reference to paragraph 1 of part 1 of Article 77 of the Labor Code of the Russian Federation. Moreover, the terms of this agreement should not be included in the labor contract.

The details of the order must be written in the appropriate column if dismissal occurs by agreement of the parties. The work book is issued to the employee on the day of official termination of activity.

Step 6. We make the final payment with the employee.

On the employee’s last working day, the employer is obliged to make a full payment and pay:

• remuneration for the last working month;
• money for unused vacation, if any;
• severance pay, if dismissal by agreement of the parties with payment of compensation is provided for by a collective, labor or additional agreement between the parties.

If for certain reasons an employee cannot receive funds on the last day of work (for example, in case of a business trip or illness), the payment must be made when he expressed this desire.

If a dispute arises between the parties regarding the amount of payments, management is obliged to issue an amount that suits everyone. The remaining money is subject to negotiation, or the case goes to trial.

Please note that compensation for an unused vacation period is not paid if the agreement stipulates that the employee goes on vacation with subsequent dismissal.

Step 7. We hand over to the employee all the documents due to him.

Simultaneously with the payment, the employee must receive the following documents:

• employment history;
• a certificate in form 182n for calculating sick leave indicating the salary for the last two years of work;
• a certificate of the amount of contributions transferred to the Pension Fund of the Russian Federation (for example, RSV-1 and SZV-M);
• a certificate for the employment service about the average salary (issued upon request by the employee within three working days);
• certificate in the form SZV-STAZH. This is a new document adopted in 2017. This certificate specifies the employee's length of service. If it is not issued, the employer may be fined up to 50 thousand rubles;
• photocopies of internal documents at the employee’s request.

Step 7. We notify the military registration and enlistment office of the employee’s dismissal.

If an employee is liable for military service, the employer must send a notification within two weeks to the military registration and enlistment office where the person was registered.

How to draw up a severance agreement

The sample agreement is not approved by law, so companies can independently develop its form.

Be sure to include in the agreement the full name of the enterprise, full name and position of the employee, the fact of the agreement reached and detailed conditions that meet the requirements of the Labor Code of the Russian Federation.

As a rule, an agreement is formed a few days before dismissal, but some organizations do it differently. The manager does not draw up a separate document; instead, he simply writes the corresponding resolution on the employee’s application indicating the date of termination of the employment contract.

The agreement is drawn up in two copies, one for each party.

The document is signed first by the employee, then by the manager.

Compensation upon dismissal by agreement of the parties

The final amount of payments to the employee consists of the following parts:

• salary for days worked in the current month and bonus (required);
• compensation for unused vacation (at the employee’s request, it can be replaced with paid vacation before dismissal);
• severance pay (or compensation).

The last component is given great importance when drawing up a dismissal agreement. The employee has the right to agree on the amount of compensation and the date of its issuance, but he will receive wages and compensation for vacation only on the last working day.

Currently, the procedure for calculating the due funds has changed somewhat if there is a dismissal by agreement of the parties. Personal income tax and contributions are not collected from them if the amount paid is less than or equal to three average monthly salaries (in the Far North - no more than six).

Despite the fact that the amount of compensation for dismissal is determined by the employee and the employer, in practice it is best to form compensation as follows:

• fixed amount of severance pay;
• taking into account the amount of official salary;
• according to the formula:

Severance pay = average daily salary * number of working days in the period specified in the agreement after dismissal

At the same time, according to Article 133 of the Labor Code of the Russian Federation, the average monthly income of a specialist who has worked standard working hours cannot be less than one minimum wage.

Let's look at this with a specific example. The manager agreed with the employee’s wish to receive compensation in an amount equal to the average salary for two months. During the seven months preceding dismissal, the specialist had 150 working days.

Let's calculate the average daily salary: divide the amount of payments for seven months (in our example, 350 thousand rubles) by the days worked (150). It turns out 2333.34 rubles.

We multiply the resulting amount by the number of working days that fall within the declared two months (43 days). 2333 rubles 34 kopecks * 43 = 100333.62 rubles.

This amount will be equal to the severance pay.

Let's look at the second example. The employee's duration of work in this organization was five months. The agreement provides for compensation in the amount of one month's earnings.

Third example. The employee worked for nine months, 191 days. When drawing up the agreement, the amount of compensation was determined in the amount of three average monthly salaries. The man worked part-time - two hours a day.

Let's calculate the average hourly earnings:

Hours worked during this time: 191 * 2 = 382 hours.

We divide the amount of wages for nine months (in this case 27 thousand rubles) by hours worked.

As a result, the average hourly earnings are 70.68 rubles.

In the envisaged three month period there would be 64 working days (128 hours). 128 * 70.68 = 9047.12 rubles. This is the amount of severance pay.

The employee received approximately 3,000 rubles per month. But due to the short working hours, this is a normal salary. If a specialist were hired full-time, the remuneration should have been raised to the minimum wage.

Compensation upon dismissal by agreement of the parties for the director

Based on Part 2 of Article 278 of the Labor Code of the Russian Federation, the dismissal of a director by agreement of the parties is permitted only when an appropriate decision is made by the authorized body of the legal entity.

Upon dismissal, the director is entitled to compensation, the amount of which is usually specified in the employment contract. The amount of compensation cannot be less than three times the monthly salary. It should be noted that the director is entitled to compensation upon dismissal only if no illegal actions were discovered in his work.

In the economic environment there is a term “golden parachute”. This is an agreement between top managers and employers. Upon termination of the employment relationship between the parties, the former employee receives significant financial compensation from the company. There are cases where top managers dismissed by agreement of the parties received wages, bonuses, benefits, including pensions, as well as privileges and share packages.

“Golden parachutes” began to be actively discussed in the Russian media in 2009. The reason for this was the scandals associated with the dismissal of top managers of leading enterprises, mostly energy ones. Discussions at that time were more of an ethical nature. They talked about the fact that managers should receive “parachutes” after dismissal, discussed their volume, defining it as prohibitive. The topic of motivation was also frequently raised. Experts assessed how “golden parachutes” would affect the relationship between employee and employer: will they reduce the number of conflicts, or will such support be beneficial only from a material point of view and is only insurance against dismissal. The technical side was not touched upon.

The size of the “golden parachute” is determined by many parameters. The amount depends on the status of the company and the country in which it operates. The legislation of the Russian Federation does not define the dimensions of “parachutes”.

What the employer faces for non-payment of benefits upon dismissal by agreement of the parties

According to Article 236 of the Labor Code of the Russian Federation, a delay in the payment of compensation specified in the agreement may entail financial liability of the head of the company.

Also, the debtor may be required to accrue additional interest in an amount equal to or greater than 1/300 of the refinancing rate of the Central Bank of the Russian Federation on the severance pay not issued on time, based on each day of delay.

In addition, a specialist can legally demand indexation of unpaid wages due to inflation.

Two months after the appointed date, the employee has the right to sue. In accordance with Article 145.1 of the Criminal Code of the Russian Federation, the head of the company may be sentenced to the following punishment:

• a fine in the amount of 120 thousand rubles or the total salary for the year;
• removal from office or a five-year ban on certain activities;
• imprisonment for a term of up to two, and in especially serious cases up to seven years.

Typical mistakes of companies when dismissing by agreement of the parties

Managers and HR directors believe that when dismissing an employee, they must act firmly and harshly in order to suppress possible blackmail and demands.

A lawsuit, the transfer of compromising material or confidential information to the media or competitors are clear signs of unsuccessful negotiations.

Do not try to intimidate specialists who do not agree to your terms, do not threaten to terminate his future career. Such actions will primarily ruin your professional reputation.

To resolve the conflict, you can do the following: send another specialist to negotiate and promise the person being fired a larger payment. But in any case, the HR manager and the organization as a whole again remain in the red.

We must be prepared that during negotiations both sides may slip into accusations and insults. The company's managers begin to recall all the concessions made and reproach them with blunders and mistakes made. Don't stoop to this. Negotiations are necessary to calmly discuss the terms of the agreement and find a compromise.

How to negotiate dismissal by agreement of the parties

1. Always, even if the dismissed employee has seriously committed a crime, behave with restraint when talking to him. Create conditions for conflict resolution. An incorrect attitude is expressed not only in unkind communication, but also in an attempt to hide your plans regarding him from the dismissed employee, at a time when rumors have already spread throughout the organization.

It is even more wrong when rumors about an upcoming dismissal come from a career employee. This hurts a person, and he may decide that the time has come for him to move away from ethical standards.

2. Do not provoke the employee into conflict, do not escalate the situation. If during negotiations you start loading him with impossible tasks, turning off the computer, the Internet, regularly demanding explanations, and the like, you will only anger the employee and turn him against you. It is precisely such actions that push a specialist to unethical behavior - collecting incriminating evidence, leaking secret data to the media, discord in the team, etc.).

3. Start negotiations in private. Often a manager wants to gather the whole team to talk with an employee. You shouldn't do this. This puts emotional pressure on the employee and represents your lack of self-confidence.

You will be able to involve other workers in negotiations as needed. If a controversial situation arises regarding cash payments, it is worth inviting an accountant or asking him to create an appropriate calculation.

4. There should be no impromptu, all questions and decisions are subject to preliminary discussion. Controversial situations that arise during negotiations will only weaken the leader’s position. Moreover, the disagreements that have arisen may lead the specialist to the idea that the agreement reached during the negotiations may not come into force.

5. Don’t insist on something you can give in to.. This usually concerns non-material benefits that a person asks for: recommendations, a flexible work schedule and the possibility of simultaneously searching for another place of employment. The same applies to procedures and regulations. Without obvious reasons, do not limit the subordinate’s right to agree on the date of negotiations, issues brought up for discussion, or the assistance of a representative. Mutual respect and trust only help in negotiations. Be loyal and friendly.

6. Look for reputational benefits, not economic ones, both for yourself and for the company. The situation, especially if the dismissal is related to conflicts, is monitored by the entire team. Those who are committed to the organization today will change their minds and start looking for a new job tomorrow.

Dismissal made by agreement of the parties is a fairly common practice between employees and employers. And this is a good sign, since reaching agreement on dismissal means, on the part of the employee, remaining on good terms with his superiors, receiving good recommendations, and for the employer, it is a guarantee of security against the risk of challenging the legality of dismissal.

What are the nuances of this process, how it happens and what documents are supported, we explain in this article.

Legal regulations

This type of dismissal is described in Article 78 of the Labor Code of the Russian Federation, and this article contains only two lines without additional explanations, indicating only the possibility of terminating the employment relationship at the mutual desire of the parties at any time. The procedure for dismissal is set out in more detail in the previous Article 77. Article 36, paragraph 1. The Labor Code provides generally accepted rules for such dismissal.

That is why personnel officers and those being dismissed often have questions regarding this basis:

• the employee leaves or is fired;
• whose initiative prevails;
• what should be the working period;
• what to include in the application;
• what monetary payments are due, etc.

FOR YOUR INFORMATION! Fearing "pitfalls", employers and employees sometimes prefer dismissal for other reasons, whereas it is worth familiarizing yourself with all the advantages and disadvantages of the method, and only then making a final decision. Remember, the devil is not nearly as scary as he is painted.

Good aspects of the agreement between the parties for the employee

A resigning employee should consider the agreement of the parties as a reason for dismissal, because:

• the application can be submitted at any time during the term of the employment contract;
• the reason for leaving is not required in the application;
• the moment of leaving is discussed with the employer, there is no mandatory service;
• you can agree with the employer on the conditions of care – terms, compensation, etc.;
• neutral entry in the work book;
• an excellent alternative in case of threat of dismissal for guilty behavior;
• the length of service is not interrupted for another month after leaving on this basis;
• When registering with the Employment Center, the benefit will be higher.

What does the employee risk?

The disadvantages of this formulation of the basis include the following points:

• the contract can be terminated in any situation, even on sick leave, on vacation, or if the employee belongs to a preferential category;
• if an employee changes his mind about quitting, it will no longer be possible to withdraw the application signed by his superiors;
• the union does not control such dismissals;
• It is impossible to challenge the employer's actions in court.

Why does an employer benefit from an agreement between the parties?

An employer often recommends this form of grounds to a dismissed person because it is beneficial: the agreement does not provide for the payment of additional severance pay unless this is specified in the collective agreement. There is no need to consult with the trade union organization for such dismissals. Another important point is that by agreement of the parties, a pregnant woman, a minor employee, an employee on maternity leave, and other preferential categories can be dismissed. This makes it convenient to terminate student contracts. And finally, the most important thing is insurance against litigation.

Everything is relative

If an employee is thinking about which reason to choose for leaving, it makes sense to compare the features of the parties’ agreement and other popular reasons.

1. Your own desire or agreement? When choosing one of these methods, it is worth taking into account the main differences:
   • when leaving at your own request, you must notify about it 2 weeks in advance, the agreement does not oblige you to work off;
   • the date of departure is determined at will, and by agreement it can be set for mutual convenience;
   • the employee can withdraw the application at his own request, and the agreement of the parties provides for the will of the employer;
   • material unemployment compensation for someone who left on their own initiative is lower than for someone who entered into an agreement with the employer.
2. Agreement or reduction? Here the initiative often belongs to the employer: if the employee still has to be fired, you can invite him to indicate another reason for this; the advantages for management are obvious. But should the employee agree?
   • It makes sense if the employer is interested in such an employee financially. It is necessary to calculate which amount will be greater: three (in some cases 5) salaries of severance pay paid upon layoffs, or the “goodies” that the employer offers when concluding an agreement. It doesn't have to be money: sometimes a good recommendation is much preferable.
   • Another possible advantage of choosing an agreement for the employer is preferences for future employment. To receive maximum compensation from the Employment Center, a registered dismissed employee must not be employed for 2 months. And if the agreement of the parties provided for any compensation, they will be paid to the employee regardless of his future plans, so he can not waste time and immediately get a new job.

NOTE! In order for all the promises of the entrepreneur to be guaranteed to be fulfilled, the agreement must not be oral, but drawn up in writing and signed in 2 copies, although the Labor Code of the Russian Federation does not insist on a specific form: .

Whose initiative?

Despite the fact that the term “agreement” implies equality of the parties, the initial initiative necessarily comes from one person. The law does not differentiate between them: it is enough to obtain written notification from one party and consent from the other (also written).

In practice, most often the application for dismissal by agreement of the parties is written by employees, even if the verbal initiative belongs to the employers. This makes it easier to keep records and insure yourself against challenges and litigation.

How does dismissal occur by agreement of the parties?

The procedure for such dismissal takes place in the following order:

1. Oral initiative of either party, negotiation of the terms of dismissal, reaching agreement.
2. The resignation letter is in free form, but must contain:
   • Full name of the person leaving;
   • a request to terminate the employment relationship under Article 77 or 78 of the Labor Code of the Russian Federation;
   • details of the employment contract;
   • expected date of departure;
   • date of application;
   • applicant's signature.
3. Visa “I agree” from the employer on the application.
4. Written agreement, signing and registration. It must indicate all the conditions of dismissal, which cannot be changed unilaterally. Required elements:
   • indication of reciprocity of the decision;
   • details of the contract that will be terminated;
   • the last day of work of the dismissed person;
   • the amount and conditions for calculating compensation (if any);
   • ID details of the departing employee;
   • name of the organization and TIN of the head;
   • signatures of both parties.
5. Issuance of the order on the basis of a signed agreement, familiarization with the employee’s signature in the usual manner.
6. Entering into the work book the entry “Dismissed by agreement of the parties, clause 1, part 1, article 77 of the Labor Code of the Russian Federation” or “The employment contract was terminated by agreement of the parties, clause 1, part 1, article 77 of the Labor Code of the Russian Federation.”
7. On the day of departure - the employee’s calculation of wages, sick leave and compensation for vacation, if it was not used. Issuance of a work book and a copy of the order to the outgoing employee.

Possible compensation

If the employment contract does not specify the amount of compensation upon dismissal by agreement of the parties, its purpose is the good will of the employer. But the agreement is just that: an agreement that it is possible to reach a mutual consensus on any issues, including the amount of severance payments.

The law does not limit possible payments upon dismissal, so theoretically an employee can ask the employer for any amount. Depending on how profitable it is for the latter to let the employee go, a “bargain” may occur, after which the parties will agree on an acceptable amount. Most often, it does not exceed the amount required for staff reductions - three (maximum five) standard salaries.

To be able to claim a “severance” amount, you need to ask your employer about it in writing. To do this, the departing person writes a statement asking for compensation. The application requires the following essential details:

• Full name and position of the employee;
• Full name of the head;
• Name of the organization;
• expression of intention to terminate the Employment contract (indicate its number and date of conclusion) by agreement of the parties;
• link to article 78 of the Labor Code of the Russian Federation or clause 1 of Art. 77 Labor Code of the Russian Federation;
• planned date of termination of work;
• a request for compensation (preferably indicating the amount);
• date of writing;
• personal signature, transcript.

The employer may not satisfy the request for the stated amount of compensation in whole or in part. The signing of the statement will occur only after reaching consensus.

ATTENTION! It is advisable to include in the statement or agreement a final phrase stating that the parties have no claims against each other.

In any case, upon leaving by agreement of the parties, the employee will necessarily receive the following payments on his last working day:

• calculation of wages for hours worked;
• compensation for unused vacation days;
• allowances and bonuses, if they were due under the employment contract.