The procedure for terminating an employment contract by agreement of the parties. An example from judicial practice

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 single 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 either in writing or 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 a fixed-term or open-ended contract has been concluded with him. 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, when reducing staff or liquidating 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, 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, 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, but 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 at once - 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.

Video

Maria Soboleva

Dismissal by agreement of the parties. What does it mean?

What is dismissal by agreement of the parties, what are its features and differences from other types of termination of employment relations? How can an employee properly leave work by mutual agreement with maximum benefit - let’s figure it out.

What does dismissal by agreement of the parties mean?

The word “agreement” itself implies a mutual agreement between two parties. Since we are talking about labor relations, the employee and the employer must come to an agreement on the issue of dismissal.

Moreover, both Russian and Ukrainian labor legislation does not particularly go into detail about how and under what specific conditions the contract with an employee is terminated.

Discuss details and find consensus. Dismissal by agreement of the parties, by the way, can be proposed by both the employee and the management. But conditions will be required that suit everyone.

Dismissal by agreement of the parties - benefits

When is it beneficial for an employee to quit his job under the above article? He may take such a step if he urgently needs to part with his current employer. The agreement of the parties does not provide for mandatory two-week work, as in the case of leaving of one’s own free will.

Or, for example, the situation is the opposite: an employee wants to quit, and decided to notify his superiors in advance. Let’s say, so that management has the opportunity to find a replacement for him, and the employee himself can calmly prepare all his work for delivery and look for another place of work without leaving his current one. You can write in the application that you want to leave by agreement of the parties after a month or a month and a half.

The wording “dismissal by agreement of the parties” is often beneficial to the employer. Perhaps he wants to part with an unwanted employee, but without resorting to dismissal under article. Then you have to negotiate with the employee on mutually beneficial terms.

Or, in this way, management intends to disguise the reduction in staff, avoiding the need to comply with all the formalities that dismissal under such an article implies.

Because the dismissal procedure for staff reduction is quite complicated: it is necessary to warn the employee at least 2 months in advance, make sure that he can be laid off according to the law, and pay all the money due - salary, severance pay, various compensations.

And if the dismissal occurs by agreement of the parties, the question is mainly only in the amount of compensation. And here the employee has every chance to achieve favorable conditions for himself.

Dismissal by agreement of the parties - procedure

There is one important document that both parties to the employment relationship must draw up. It is called the “Agreement on Termination of Employment Contract”.

It must indicate the date of dismissal of the employee (his final working day), indicate the reason for termination of the employment contract - agreement of the parties - and the corresponding article of labor legislation.

In this agreement, it is necessary to specify the conditions under which the agreement was reached: the amount of compensation - a specific figure or the number of monthly salaries, additional payments (if they are provided for by a mutual agreement, because the law does not oblige the employer to make them).

Perhaps the parties agreed to provide the employee with leave before dismissal; this should also be indicated in the agreement on termination of the employment contract. The document is drawn up in two copies, signed by both parties, one remains with the employer, and the second with the employee.

After the agreement to terminate the employment contract is signed, the employee writes a letter of resignation by agreement of the parties, and the employer issues a corresponding order.

We must not forget about one nuance - if this agreement is concluded, then it can no longer be terminated, as in the case of voluntary dismissal. There is, however, an exception - if both parties wanted to continue the employment relationship. Then the employee remains in his place.

Entitled payments

The law provides that when an employment contract is terminated, the employer is obliged to pay wages for the period worked by the employee, compensation if the vacation was not used, and other stipulated amounts in the form of allowances and bonuses.

But the so-called compensation will have to be negotiated by the employee himself if the initiative for dismissal belongs to the management. Otherwise, you may not reach agreement.

When there is a choice between dismissal due to staff reduction and by agreement of the parties, the second option should be preferred only if more favorable financial conditions are offered.

Experienced employers, simplifying the dismissal procedure, prefer to pay a person about one and a half times more and dismiss him by agreement of the parties. And as a bonus they also offer good recommendations to the employee.

But trusting verbal promises is unwise. All benefits offered must be confirmed by specific entries in the “Agreement on Termination of the Employment Contract”.

Dismissal by agreement of the parties, as well as by reduction of staff, gives the right to register with the employment center and immediately receive unemployment benefits. But in case of leaving at your own request, payments will begin only after 3 months.

Are you about to be fired and the situation is quite conflicting? Read about your rights yourself or get legal advice, and choose the best option for leaving work, when your interests are taken into account and labor laws are not violated.

Take it for yourself and tell your friends!

What does the law say?

The law in this case is laconic: Art. 78 of the Labor Code allows parties to labor relations to use this basis for terminating the relationship at any time.

It turns out that this basis allows separation both during vacation or sick leave, and while the employee is undergoing testing. The initiative to terminate an employment contract on this basis can be expressed by both the boss and the employee, and the law does not regulate the form of such a proposal - it can be either a written or oral statement. In practice, to record mutual desire, the parties draw up a written agreement that regulates the conditions of the upcoming dismissal, the absence of mutual claims and other nuances. Based on this document, an internal dismissal order is issued, after which an entry is made in the work book.

What is the difference from voluntary dismissal? According to Art. 80 of the Labor Code, in order to be dismissed on the initiative of an employee, he, if the employer wishes, will have to work for 2 weeks. In this case, the employee is given the right to withdraw his resignation before the end of 2 weeks, while “by agreement” this will require the desire of both parties. In some cases, this is convenient for each party, since the dismissal procedure can be carried out within one working day.

At the same time, the range of these very reasons and motives can be very wide: a change in management, a conflict with superiors, a desire to informally reduce staff, a disciplinary offense, or the employee’s desire to quickly move to another job. And this, of course, is a plus for those employees who would like to hide the reasons for their dismissal. But only when there is something to hide from the future employer - in other cases this entails certain risks and unnecessary questions from potential employers.

Hidden risks

At first glance, an amicable dismissal may seem harmless to the employee, and in most cases it will be. But not when the employer is trying to reduce its own costs in this way. For example, if an employee is dismissed due to layoffs or as a result of liquidation of the company, by virtue of Art. 178 of the Labor Code, he can qualify for severance pay in the amount of the average salary, retained for him for a 2-month period, but before official employment. If these reasons are hidden behind the wording “by agreement of the parties,” the employee can only count on compensation for unused vacation and other standard payments.

There is an opinion that along with them, if the initiative to leave “by agreement” came from the employer, the employee can claim some kind of compensation. In practice, such payments will take place if they are discussed in the notorious “agreement of the parties” - the law does not oblige the employer to pay compensation. In this regard, it is logical to raise the issue of compensation even when the management proposed to separate.

But the financial issue is far from the only disadvantage that an employee may face. Thus, when registering a dismissal “by agreement,” there is no control on the part of the trade union, which, however, does not always take the position of the employee. In addition, if the reason for dismissal is unlawful and there is no written agreement, it is almost impossible to challenge this in court. The only option is if the former employee proves that he lacks his own will to sign the notorious “agreement of the parties.” But only a few succeed in this and only in cases where such agreements were signed en masse - in otherwise cases, supervisory and judicial authorities take the side of the employer.

It should be noted that one of the obvious advantages is The absence of a statutory deadline for dismissal can be an obvious disadvantage for the employee. In particular, he may be fired on a day off, on vacation, on sick leave, and sometimes even retroactively. In this case, it does not even matter whether there are grounds for any benefits. And after signing such an agreement, it will no longer be possible to withdraw your signature. Take this into account when following your employer’s lead and resigning “by agreement of the parties.”

Upon employment

It is also worth noting the risks that can materialize after dismissal - when looking for a new job. Thus, being a candidate dismissed by agreement of the parties, the applicant may face reduced interest in himself, and therefore the employment process risks being delayed. This may be related both with the reason for termination of the employment relationship and with the status of a “non-working candidate”. Many employers consider an applicant’s employment status to be one of the most important indicators of his demand, and therefore his professionalism. The lack of work during the search process, if there is a dismissal “by agreement of the parties” in the work book, scares off some employers, since such a reason is considered suspicious. But they will not be able to find out about its presence before the interview, which is why the candidate gets an excellent chance to prepare for possible questions on this matter.

It is important to understand that the agreement of the parties indicated as the reason in the work book does not constitute an explanation of the reason for leaving. An agreement between the parties is a result, the achievement of which was facilitated by individual corporate circumstances, personal motives or the initiative of the employer. So, in order not to scare off a potential employer, you should come up with a competent explanation of why this particular reason for dismissal appears in your work book. You need to immediately dispel the employer’s doubts by pointing out that the wording does not cover misconduct or disciplinary sanctions (this is what HR will think about first, don’t doubt it). If they did occur, don’t be shy - come up with a legend about professional downtime, financial problems etc. True, in this case, you should hope that the potential employer will not ask the previous boss for recommendations...

There is no need to talk about having your own motivation - in this case, you would obviously quit “of your own free will,” and recruiters are well aware of this. You can emphasize that you yourself were not against leaving the company, but a situation arose that the management offered a mutual option.

To summarize, we note that dismissal by agreement of the parties is far from the most harmless option for dismissal, especially considering that it can hide the illegal motives of the employer and thereby violate the rights of dismissed employees. In some cases, the features of such dismissal can still play in favor of the employee, but the consequences can be unpredictable. So don’t neglect your own labor rights for the sake of corporate interests - no one will protect them better than you yourself.

Note that dismissal by agreement of the parties (UPSS) has appeared in the Labor Code of the Russian Federation since 2001, and precedents for its use have taken place since 2002. However, this formulation of the legal basis for dismissal today has the most enforceable practice as a basis for dismissal. Moreover, it is, frankly speaking, preferred by both personnel officers and heads of commercial companies.

Hire contract form attribute

Dismissal by agreement of the parties (Article 77 of the Russian Labor Code) is often encountered in connection with the spread of the contract form of employment in the Russian labor market. This form of contractual relations between employers and staff is an indispensable element of the market system.

Is this leadership in the labor market justified? Is the ease of interruption of the employment relationship inherent in this form of dismissal positive? This is a controversial issue. According to official statistics, the unemployed make up 2-3% of the total working population.

These data are objectively underestimated throughout the world. The fact is that not all unemployed people are registered at the labor exchange for various reasons. Therefore, it is a generally accepted fact that the International Labor Organization data is 4-5 times higher than the official unemployment statistics.

And the absolute leader in interrupting labor relations is dismissal by consent of the parties. The features of this type of dismissal in the context of the existence of a labor market are more clearly visible in comparison with other forms of termination of employment relations.

By staff reduction and by agreement of the parties

It is well known that dismissal during staff reduction is a concomitant of economic crises and their consequences - optimization of the organization’s staffing structure. Its legal basis (see paragraph 2 of Article 81 of the Russian Labor Code) is quite organizationally complex and labor-intensive.

The employer is obliged to warn the staff being laid off in advance in advance and, in addition, offer candidates for dismissal an alternative full-time position (note that the existing staff is often characterized by a shortage of vacant positions).

It must also identify personnel who are legally guaranteed a preferential right to remain on staff and exercise it. Therefore, some employers, optimizing their personnel, try to replace “staff reduction” with “agreement of the parties,” achieving certain benefits for the company to the detriment of those being laid off.

Paragraph 1 of Article 77 of the Russian Labor Code offers a less organizationally involved method - dismissal by agreement of the parties. This method of terminating an employment relationship involves a short deadline and joint regulation of the dismissal process by the company’s management and the employee. In this case, the administration is not required to comply with the above formalities and the participation of the trade union organization.

At your own request and by agreement of the parties

The absence of a period of mandatory service distinguishes the method we are studying from dismissal at will, in which the application is written only by the employee himself.

In case of voluntary dismissal (UPSJ), such a statement is drawn up fourteen days before the agreed date of leaving work. During the above two weeks, the employee continues to perform his previous job duties. He also has the right to take leave for this period. However, even if the employee is on sick leave, the 14-day period will not be considered interrupted.

Dismissal by agreement of the parties is also significantly simplified in relation to the PSJ. First of all, the difference lies in the absence of a two-week period of work - before the date of dismissal. The date of leaving work is negotiable, and the director also negotiates with the dismissed employee by mutual agreement some additional conditions. The employment relationship can be terminated on a date agreed upon in advance, even if the employee is on vacation or sick leave.

Legal differences between the two types of dismissals

Dismissal by agreement of the parties involves the procedure for terminating the employment contract between the employer and the employee in accordance with Article 78 of the Russian Labor Code. Employers most often use it in cases of labor violations on the part of employees (absenteeism, appearing at the workplace in a state of intoxication, failure to perform official duties). However, even more often, this dismissal is initiated by the employees themselves. It, as you noticed, has similar features to voluntary dismissal. However, there are differences (see table 1)

Table 1. Comparative characteristics of UPSS and UPSG

When analyzing the information contained in the table above, pay attention to the detail: it is impossible to unilaterally challenge dismissal by agreement of the parties (unlike the UPSG). Under the UPSS, it was adopted jointly, and therefore ceases to operate by mutual agreement.

Dismissal cannot be prevented at the request of one of the parties. However, if it was carried out under the coercion of the employer, it can be challenged in court. In this case, the employee is reinstated to his previously held position with payment of average earnings for forced absence.

Payment of compensation

If there is dismissal by agreement of the parties, compensation for unused vacation must be paid to the employee. In addition to this, he must be paid the accrued wages for the current month until the last day of work, as well as bonuses and various allowances taken into account in the organization’s wages (for length of service, qualifications). Then the employee receives a work book and a certificate of average monthly salary.

However, not only mandatory payments promise an employee dismissal by agreement of the parties. Compensation in the amount of one salary is often stipulated by the employer in organizational orders.

The law does not establish a specific framework for such payments, therefore, an agreement between the employer and employee may establish a negotiated amount of additional compensation.

It is no secret that this type of dismissal is more beneficial to the employer than to the employee. The motivation is well known: the employee cannot independently withdraw a written application, and the trade union, in turn, also cannot influence this process in any way.

Therefore, by an employee who has chosen dismissal by agreement of the parties, compensation must necessarily be considered as a section of the contract with the employer. Federal Law No. 330-FZ of November 21, 2011 established the procedure for assessing personal income tax compensation. In accordance with paragraph 8 of paragraph 3 of Article 217 of the Russian Tax Code, compensation not exceeding three employee salaries is exempt from taxation.

Article 178 of the Labor Code regulates the payment of such severance pay. According to it, provisions for its payment can be included in the collective labor agreement. The second option for regulating such compensation is stipulated directly in the documents that accompany a specific dismissal by agreement of the parties. At the same time, according to paragraph 3 of Article 217 of the Tax Code of the Russian Federation, personal income tax was not levied on severance pay not exceeding three salaries, and for the regions of the Far North - six salaries.

Registration of dismissal

The current practice of registering such dismissal does not provide for any standard documents. However, the preferred design option remains an agreement drawn up jointly by the employee and the employer. An indication of the desired legal consequences of termination of the employment relationship due to mutual agreement of the parties, an indication of the date accompany the dismissal by agreement of the parties. The payment of severance pay, the timing of the transfer of affairs and positions to the new employee are also negotiated. Let's imagine an example of the above agreement.

Agreement on termination of employment contract

The employer, Alfa-Trade LLC, represented by director Konstantin Borisovich Pavlov, acting on the basis of the charter, and the employee, merchandiser Marina Viktorovna Selezneva, have agreed that:

The employment contract dated 02.21.2010 N 35 will be terminated by agreement of the parties.
The employment contract is terminated on July 20, 2014.
The employee is paid compensation in the amount of one official salary.

The agreement is drawn up in 2 copies with equal legal force, 1 for each party.

Director Print Pavlov Konstantin Borisovich

Worker Selezneva Marina Viktorovna

Initiator of dismissal - employee

However, the proposed registration method can often be preceded by writing a statement on the part of the employee or a corresponding appeal from the administration to him. However, there is no single sample of how to write a letter of resignation by agreement of the parties. Therefore, let us present an example of such a document.

Sample employee application

To the Director of Alfa-Trade LLC

Pavlov Konstantin Borisovich

Statement

I ask for your consent to terminate my employment contract from July 20, 2014, according to paragraph 1 of Art. 77 of the Labor Code (reason - by agreement of the parties).

I consider it appropriate to set the severance pay in the amount of two salaries.

Until I receive your consent in writing, I reserve the right to withdraw this application at any time.

Merchandiser Selezneva

Marina Viktorovna.

The agreement, as an option, may also be preceded by an appeal from the administration, initiating dismissal by agreement of the parties. The sample text is similar to that presented in the application.

Letter from the administration

Dear Marina Viktorovna!

We invite you to terminate the employment contract, guided by clause 1 of Art. 77 of the Labor Code (i.e. by agreement of the parties) from July 20, 2014

Compensation is established, according to the collective labor agreement, in the amount of two salaries.

Director

Pavlov K.B.

Drawing up a dismissal order

Based on the agreement, the head of the organization signs the corresponding order. Dismissal by agreement of the parties gains legal force at this moment. Often, together with this order, an order is issued for the acceptance and transfer of cases and for conducting an inventory.

Alfa-Trade LLC

07/20/2014 No. 15-k

Moscow

On the dismissal of Selezneva M.V.

FIRE:
Marina Viktorovna Selezneva, merchandiser, 07/20/2014 by agreement of the parties (Article 37 of the Labor Code).

The accounting department will pay M.V. Selezneva monetary compensation in the amount of three salaries.

Reason: statement of M.V. Selezneva dated July 15, 2014.

Director of Alfa-Trade LLC K.B. Pavlov

Selezneva M.V. has read and agreed with the order.

Through such an order, dismissal is carried out by agreement of the parties. The entry in the work book must necessarily mention paragraphs 1 of Part 1 of Article 77 of the Labor Code.

Should the wording “dismissal by agreement of the parties” be avoided when dismissing?

This question, of course, is controversial and associated with myths.

Myth No. 1: an employee dismissed by agreement of the parties is a violator of labor discipline.

Myth No. 2: an employee who terminates an employment relationship in this way is insufficiently qualified.

The reason for the emergence of these prejudices was the practice of employers to “lay off” negligent employees under Article 77 of the Labor Code. However, if the employee is confident in his qualifications, as well as in the fact that he will be hired immediately in another place, then these myths are insignificant. On the contrary, a person will be able to quickly get the expected job.

Conclusion

Is the UPSS in its current form ideal as a labor market instrument? Based on macroeconomic patterns, its parameters (for example, non-participation of trade unions in its process) are incorrect when the level of unemployment is significant.

For such a market mechanism to fully operate in the labor market, ideally there needs to be a growing economy and a sufficient level of supply of competitive jobs. However, the simplified organizational aspects accompanying the UPSS are, in many cases, preferable for prompt termination of labor relations. This factor determines its widespread use.

A person dismissed by agreement of the parties should take into account that in some cases an incorrectly drawn up agreement and, accordingly, an order for dismissal by agreement of the parties may ignore payments or benefits due to him. Therefore, everything should be foreseen and taken into account.

Dismissal by agreement of the parties is suitable for the company in almost all cases, even when the initiative for dismissal comes from the employee. In the agreement, you can specify all the conditions of dismissal: the period of dismissal, the amount of amounts to be paid to the employee in connection with the dismissal, the procedure for transferring the work record book, the amount and procedure for compensation for material damage caused by the employee.

There is always a risk of lawsuits, but in this case it is less likely than with dismissal on the initiative of the employee, and even more so on the initiative of the employer. There is a possibility that an employee will go to court to challenge an agreement to terminate an employment contract if the terms of such an agreement are clearly illegal, violate or infringe on the rights of employees.

An agreement on termination of the employment contract is concluded with the employee, in which it is recommended to stipulate: the term of termination of the contract, the terms of payment and the amount of compensation paid upon dismissal, the conditions for compensation for material damage, the procedure for issuing a work book to the employee, the condition that the employee has no claims against the employer, including including the amount of compensation to be paid.

In order to receive the average earnings retained for the second month, the employee submits to the employer a corresponding application and a work record book, which does not contain a record of employment at the end of the second month from the date of dismissal.

In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it. An employee may initiate dismissal by agreement of the parties under any circumstances. In practice, the initiative in most cases comes from the employer.

To minimize the demotivational effect on the remaining employees, you need to show loyalty to them, encourage them, hold events that support the corporate spirit in the company, and generally behave like human beings.

Anton Tolmachev, General Director of the legal company "YurPartner"

According to, an employment contract can be terminated at any time by agreement of the parties. Thus, both the employee and the employer can initiate dismissal on this basis. Such dismissal is formalized either by an employee’s statement with the employer’s resolution, or by a separate document - an agreement to terminate the employment contract. Each party must have the original or a certified copy of this agreement in hand. In addition, the employer is obliged to issue a dismissal order and familiarize the employee with it against signature.

When terminating an employment contract by agreement of the parties, the most important thing is that the fact of dismissal and its conditions suit both the employee and the employer. The agreement of the parties, as a rule, contains the employer’s obligations to pay severance pay, provide vacation, and assistance in further employment. In addition, this document may stipulate the employee’s obligation to conduct an inventory, submit financial statements, transfer certain documents, or vacate the workplace. I believe that the more detailed the agreement is drawn up, the easier the dismissal itself will be.

From a procedural point of view, dismissal by agreement of the parties is the easiest and fastest way to “say goodbye” to an employee: in this case, there is no need to send advance notice of dismissal, offer to transfer to another job, or exercise the preemptive right to remain at work. In addition, it is possible to terminate an employment contract by agreement of the parties with a minor, with a pregnant woman, and with an employee on vacation or sick leave. Therefore, employers often “disguise” other methods of dismissal under the agreement of the parties.

For example, you don’t like this or that employee, but there is no reason to fire him “under the article.” Inform him of your desire to terminate the employment contract by agreement of the parties, offer good recommendations, a free schedule while looking for a new job, or a small monetary compensation - and the problem can be solved. If your company is planning a staff reduction that partners and competitors should not know about, agree with the candidates for dismissal to terminate the contract by agreement of the parties. The main thing is to ensure that the agreement includes conditions that are beneficial to both you and the employee. This can only be done through negotiations.

Sometimes the employee himself is happy to initiate the termination of the employment contract by agreement of the parties. It is especially “beneficial” for an employee to terminate the employment relationship in this way if he has committed an offense for which he faces dismissal: he was absent without good reason for the entire working day, appeared in a state of intoxication, or committed theft at the place of work. So you shouldn’t think that if a person was fired by agreement of the parties, his former employer is necessarily hiding something or pursuing bad goals.

Ultimately, the parties may decide to terminate the employment contract by agreement and without any reason. So this wording is no worse than the entry “dismissed at his own request.” And some employers even believe that the dismissal of an employee from his previous job by agreement of the parties indicates his loyalty, non-conflict behavior and willingness to compromise, which is very much valued in difficult times of crisis.

Alexander Yuzhalin, leading lawyer of the Department of Labor Law of the Institute of Professional Personnel

The initiator of termination of an employment contract on this basis can be either the employee or the employer. At the same time, the key feature of this basis for terminating an employment contract is the expression of the will of the two parties. Accordingly, if one of the parties objects to the conclusion of such an agreement, termination of the employment contract on this basis cannot be applied.

A distinctive feature of this procedure is that the employment contract in the case under consideration can be terminated at any time. The legislation of the Russian Federation does not define the procedure for drawing up and concluding an additional agreement. In practice, a proposal to terminate an employment contract on this basis can be drawn up by a party in writing, indicating the conditions under which the employment contract will be terminated. If the second party agrees, it is subsequently drawn up and signed.
additional agreement in writing, indicating the terms to be negotiated.

It is necessary to pay attention to two conditions for terminating an employment contract: the date of termination of the employment contract and the payments that the employer undertakes to make upon dismissal. These conditions are not regulated by law, so the parties must agree on this themselves. As practice shows, the conditions for payment to the employee of a certain amount of money upon dismissal are key when deciding whether to agree to terminate the employment contract or refuse. In this case, the employee and the employer must decide on the appropriateness of such payments and make a decision for themselves - to agree or refuse the conditions proposed by the other party.

If the employer needs to terminate the employment contract with the employee on this basis, and the employee is against such termination, the only way to achieve the desired result is to offer the employee more favorable conditions under which he will agree to terminate the employment contract. It is quite problematic to name the average amount that is usually paid in such cases. This is due to the fact that each case of termination of an employment contract on this basis is individual in nature. The size of the payment may depend on the financial condition of the employer; on the amount of wages the employee receives; from the position held by the employee; on the reason that served to put forward the initiative to terminate the employment contract.

Svetlana Lenkova, HR Director at TNG GROUP

The company is best suited to dismissing employees by agreement of the parties, when the employer wants to get rid of the employee, but cannot or does not want to use any “unfriendly” articles of the Labor Code to dismiss the employee.

Dismissal by agreement of the parties does not provide for any control on the part of trade union organizations. The employer is not obliged to coordinate his decision with anyone, even if we are talking about minor workers. Therefore, such a decision on the part of the employee must be as balanced and responsible as possible: he must take care of his own interests.

Dismissal by agreement of the parties does not in itself provide any compensation or guarantees to the employee (unless this is expressly stated in the employment or collective agreement). That is, all compensation to an employee is regulated only by his agreement with the employer - there is no need to rely on “automatic” payments. Everything depends on the results of negotiations between the employee and the employer.

The employee will not be able to unilaterally withdraw his consent and “cancel” his dismissal - the agreement between the employee and the employer to terminate the employment contract comes into force immediately after it is signed by both parties.

The procedure for terminating an employment contract upon dismissal by agreement of the parties:

The employee is asked to sign the document “Proposal to terminate the employment contract”, on which the employee writes by hand “I have read the proposal”.
The employee writes by hand the consent to dismiss by agreement of the parties and the date of termination of the contract.
The dismissal agreement is signed.
A dismissal order is issued.
The employee signs the dismissal order and receives a work book and a paycheck.

If dismissal by agreement of the parties occurs on the part of the employee, then the procedure is the same, only the employee brings the proposal, and the employer writes the consent.

An employee can initiate dismissal by agreement of the parties when he urgently needs to quit without working for two weeks. Dismissal by agreement of the parties gives him just such an opportunity: this wording does not provide for the need to work off; it is possible to agree on a specific date for dismissal.

The following situation is also possible: an employee has decided to quit and wants to notify the employer about this in advance in order to be able to attend interviews more freely, but would not like to leave until he finds a new position. For example, an employee is sure that within a month he will definitely find a new job. And dismissal by agreement of the parties gives him the opportunity to agree on any date of dismissal - even after a few months.

The employee is asked to sign the document “Proposal to terminate the employment contract”, on which the employee writes by hand “I have read the proposal”. If the dismissal occurs in order not to dismiss the employee under the article, then compensation is not provided. If the dismissal is due to other reasons, the compensation, as a rule, is two to three salaries.