Dismissal of an employee by agreement of the parties. Step-by-step instructions for dismissal by agreement of the parties

1. How does dismissal by agreement of the parties differ from dismissal for other reasons?

2. How to formalize the termination of an employment contract with an employee by agreement.

3. In what order are taxes and contributions calculated on compensation paid upon dismissal under an agreement.

An employment contract with an employee can be terminated both at the initiative of the employee himself and at the initiative of the employer, as well as due to circumstances beyond the will of the parties. In addition to these grounds, the Labor Code of the Russian Federation also provides for dismissal by “mutual consent,” that is, by agreement of the parties. However, a situation where both the employee and the employer are simultaneously interested in terminating the employment relationship is extremely rare in practice. As a rule, the initiator is still one party, and most often, the employer. Then why do employers prefer to “negotiate” with employees instead of dismissal, for example, to reduce numbers or staff? You will find the answer to this question in this article. In addition, we will find out what are the features of registration and conduct of the dismissal procedure by agreement of the parties, how it can be beneficial for the employer and employee.

Article 78 of the Labor Code of the Russian Federation is devoted to dismissal by agreement of the parties. And the verbatim content of this entire article is as follows:

An employment contract can be terminated at any time by agreement of the parties to the employment contract

The Labor Code does not contain any more explanations regarding the procedure for carrying out and formalizing the dismissal of an employee by agreement of the parties. Therefore, when terminating an employment relationship with an employee on this basis, one should be guided by established practice, primarily judicial practice, as well as explanations provided by individual departments, such as the Russian Ministry of Labor.

Features of dismissal by agreement of the parties

To begin with, let's determine how dismissal by agreement of the parties is fundamentally different from dismissal for other reasons. These features explain why employers and employees in certain situations prefer to part ways by formalizing an agreement.

Simplicity of design.

All that is required to carry out dismissal by agreement is the will of the employee and the employer, documented. Moreover, the entire procedure can take only one day - if the day the agreement is drawn up is the day of dismissal. Neither the employer nor the employee is required to notify each other in advance of their intention to terminate the employment contract. In addition, the employer does not need to notify the employment service and the trade union. Thus, it is obvious that it is much easier for an employer to “part” with an employee by agreement than, for example, by agreement.

Possibility to agree on the terms of dismissal.

According to the meaning of the very wording “dismissal by agreement of the parties,” termination of the employment contract in this case is possible if the employee and the employer agreed to the conditions put forward by each other, that is, they reached an agreement. However, the conditions can be very different. For example, the agreement may provide for the payment of monetary compensation to the employee (severance pay) and its amount, as well as the period of work, the procedure for transferring cases, etc. It should be noted that the payment of severance pay upon dismissal under an agreement is not a mandatory condition, and its minimum and maximum amount is not established by law. Also, the working period may not exist at all (dismissal on the day the agreement is signed), or, on the contrary, it may be quite long (more than two weeks). It is obvious how these terms of dismissal by agreement affect the interests of the employee and the employer: for the employee, the advantage is the opportunity to receive monetary compensation, and for the employer, the opportunity to set the required period of work and transfer of work to a new employee.

Change and cancellation only by mutual consent.

Once an agreement establishing a specific date and conditions for dismissal has been signed by the employee and the employer, it can only be amended or waived by mutual agreement. That is, an employee with whom an agreement to terminate an employment contract has been signed cannot unilaterally “change his mind” about quitting or put forward new conditions for dismissal (Letter of the Ministry of Labor dated April 10, 2014 No. 14-2/OOG-1347). This is one of the main advantages of dismissal by agreement of the parties for the employer compared, for example, with dismissal of an employee at his own request, in which the employee has the right to withdraw his resignation letter.

! Please note: If an employee sends a written notice of his desire to terminate or change a previously signed dismissal agreement, the employer should also respond in writing, arguing his position (to meet the employee halfway or leave the agreement unchanged).

The absence of “exceptional” categories of employees who are not subject to dismissal under the agreement.

The Labor Code of the Russian Federation does not provide for any restrictions regarding employees who can be dismissed by agreement of the parties. Therefore, an employee’s being on vacation or sick leave cannot be considered as an obstacle to terminating an employment contract with him on this basis, in contrast, for example, to dismissal at the initiative of the employer (Part 6 of Article 81 of the Labor Code). Under the agreement, employees who have entered into both a fixed-term and open-ended employment contract, as well as employees during a probationary period, can be dismissed.

Also, from a formal point of view, the legislation does not prohibit the dismissal of a pregnant employee by agreement of the parties: such a prohibition is valid only for dismissal at the initiative of the employer (Part 1 of Article 261 of the Labor Code). However, when terminating a contract with a pregnant woman, the employer should be especially careful: firstly, consent to terminate the contract must really come from the employee herself, and secondly, if the employee did not know about her pregnancy at the time of signing the dismissal agreement, but found out later and expressed a desire to annul the agreement, the court may recognize her claim as legal (Decision of the Supreme Court of the Russian Federation dated September 5, 2014 No. 37-KG14-4).

No special justification is required for dismissal.

Unlike, for example, dismissal for disciplinary violations, in which the employer must have sufficient evidence that they were committed by the employee, dismissal by agreement is based solely on the will of the parties and does not require any evidence or confirmation (the main evidence is the agreement itself, signed by the parties) . Thus, if the employee is “at fault,” then dismissal by agreement can be beneficial to both parties: the employee will avoid an unpleasant entry in the work book, and the employer will not have to additionally confirm the legality of the dismissal.

These are the main distinctive features of dismissal by agreement of the parties, which explain its attractiveness for both parties to the labor relationship. Employers especially like dismissal on this basis: this is the fastest and surest way to part with unwanted employees, which practically eliminates the possibility for workers to challenge its legality and be reinstated at work– after all, they personally agreed to terminate the employment contract. Of course, we are talking about the employee’s voluntary consent to dismissal, and not about situations where such consent was obtained under pressure or fraudulently (which, however, the employee will have to prove in court).

The procedure for registering dismissal by agreement of the parties

Drawing up an agreement to terminate an employment contract.

Such an agreement between the employee and the employer is the basis for dismissal, so it must be documented. However, the form of the dismissal agreement is not regulated, that is, the parties have the right to draw it up in any form. The main thing is that this document must contain:

grounds for dismissal (agreement of the parties);
date of dismissal (last working day);
written expression of will of the parties to terminate the employment contract (signature).

An agreement to terminate an employment contract can be drawn up:

in the form of an employee application with a written resolution from the employer. This option is the simplest, but it is suitable in cases where only the date of dismissal is agreed upon (which is indicated in the application);
in the form of a separate document - an agreement to terminate the employment contract. Such an agreement is drawn up in two copies, one each for the employee and the employer. In addition to the mandatory components, it may contain additional conditions agreed upon by the parties: the amount of monetary compensation (severance pay), the procedure for transferring cases, granting leave with subsequent dismissal, etc.

Issuing a dismissal order

An order for the dismissal of an employee by agreement of the parties, as well as for dismissal on other grounds, is drawn up according to the unified form T-8 or T-8a (approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1) or according to. In this case, the order states:

in the line “Grounds for termination (termination) of the employment contract (dismissal)” - “Agreement of the parties, clause 1, part 1, art. 77 Labor Code of the Russian Federation";
in the line “Base (document, number and date)” - “Agreement on termination of employment contract No. ... dated …”.

Filling out a work book

When an employee is dismissed by agreement of the parties, the following entry is made in his 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.”

The dismissal record is certified by the employee responsible for maintaining work books, the seal of the employer, as well as the signature of the dismissed employee (clause 35 of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”). The work book is issued to the employee on the day of dismissal (Part 4 of Article 84.1 of the Labor Code of the Russian Federation), and the fact of its receipt is confirmed by the employee’s signature in the personal card and the log book of work books and inserts in them.

Payments upon dismissal by agreement of the parties

On the day the employee is dismissed, that is, on the last working day, the employer must pay him in full (Article 84.1, 140 of the Labor Code of the Russian Federation). The following amounts are payable:

remuneration for hours worked (up to and including the day of dismissal);
compensation for unused vacation;
severance pay (if its payment is provided for by agreement of the parties).

! Please note: The final payment to the employee must be made on the day of termination of the employment contract. The employer does not have the right to set a later payment period (after dismissal), even if the employee himself does not object and such a period is provided for in the agreement on termination of the employment contract (Article 140 of the Labor Code of the Russian Federation).

The calculation and payment of wages for days worked and compensation for unused vacation (withholding for vacation used in advance) upon dismissal by agreement of the parties are no different from similar payments upon dismissal on other grounds. Therefore, we will dwell in more detail on the “specific” payment - monetary compensation in the form of severance pay.

As already mentioned, the amount of severance pay does not have any legally established restrictions and is determined only by agreement of the parties. In practice most often The amount of severance pay is determined for the employee:

in the form of a fixed amount;
based on the official salary (for example, double the official salary established by the employment contract);
based on average earnings for a certain period after dismissal (for example, in the amount of average earnings for two months after dismissal).

! Please note: If the amount of severance pay is established based on average earnings, its amount is determined in accordance with Decree of the Government of the Russian Federation dated December 24, 2007 No. 922 “On the specifics of the procedure for calculating average wages.” At the same time, the procedure for calculating average daily earnings for the payment of severance pay differs from that used for calculating vacation pay and compensation for unused vacation. Average daily earnings for severance pay are calculated by dividing the amount of payments included in the calculation for the last 12 calendar months preceding the day of dismissal by the number actually spent for this period of days (paragraph 5, paragraph 9 of Resolution No. 922). Thus, the amount of severance pay depends on the number of working days in the period for which it is paid.

Taxes and contributions from severance pay by agreement of the parties

Personal income tax on severance pay paid upon dismissal by agreement of the parties

In accordance with paragraph 3 of Art. 217 Tax Code of the Russian Federation, are not subject to personal income tax the following payments related to the dismissal of employees:

severance pay,
average monthly earnings for the period of employment,
compensation to the manager, deputy managers and chief accountant of the organization,

provided that the amount of such payments does not exceed in total three times the average monthly earnings(six times - for employees of organizations located in the Far North and equivalent areas). Amounts exceeding three (six times) average monthly earnings are subject to personal income tax in accordance with the general procedure (Letter of the Ministry of Finance of Russia dated August 3, 2015 No. 03-04-06/44623).

! Please note: According to the clarifications of the Ministry of Finance of the Russian Federation, for the purpose of applying clause 3 of Art. 217 of the Tax Code of the Russian Federation, the following must be taken into account:

If the severance pay due to the employee upon dismissal by agreement of the parties is paid to him in parts, then in order to determine the amount of the benefit not subject to personal income tax, it is necessary sum up all benefit payments, even if they are made in different tax periods (Letter of the Ministry of Finance of Russia dated August 21, 2015 No. 03-04-05/48347).

To determine three (six times) average monthly earnings should be guided by Art. 139 of the Labor Code of the Russian Federation and the procedure for calculating average wages (average earnings), established by Decree of the Government of the Russian Federation dated December 24, 2007 No. 922 “On the specifics of the procedure for calculating average wages” (Letter of the Ministry of Finance of Russia dated June 30, 2014 No. 03-04-06/31391) . Average daily earnings are calculated in the following order:

* Billing period – equal to 12 previous calendar months

Contributions from severance pay paid upon dismissal by agreement of the parties

By analogy with personal income tax, insurance contributions to the Pension Fund, FFOMS and Social Insurance Fund are not credited for the amount of payments in the form of severance pay and average monthly earnings for the period of employment, not exceeding in general three times the average monthly earnings(six-fold - for employees of organizations located in the regions of the Far North and equivalent areas) (subclause “e”, clause 2, part 1, article 9 of Law No. 212-FZ, subclause 2, clause 1, article 20.2 of Law No. 125-FZ). Part of the severance pay paid upon dismissal by agreement of the parties, exceeding three times (six times) the average monthly salary, is subject to insurance contributions in the general manner (Letter of the Ministry of Labor of Russia dated September 24, 2014 No. 17-3/B-449).

Tax accounting of compensation upon dismissal by agreement of the parties

Employers using both the OSN and the simplified tax system, have the right to include in expenses for wages, the amount of severance pay for employees dismissed by agreement of the parties (clause 6, clause 1, clause 2, article 346.16; clause 9, article 255 of the Tax Code of the Russian Federation). The main condition: the payment of such benefits must be provided for by an employment or collective agreement, an additional agreement to the employment contract or an agreement to terminate the employment contract. Severance pay is taken into account for tax purposes in its full amount without any restrictions.

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Regulatory framework

Labor Code of the Russian Federation
Tax Code of the Russian Federation
Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund”
Federal Law No. 125-FZ of July 24, 1998 “On compulsory social insurance against industrial accidents and occupational diseases”
Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”
Decree of the Government of the Russian Federation of December 24, 2007 No. 922 “On the specifics of the procedure for calculating average wages”
Resolution of the State Statistics Committee of the Russian Federation dated January 05, 2004 No. 1 “On approval of unified forms of primary accounting documentation for recording labor and its payment”
Ruling of the Supreme Court of the Russian Federation dated September 5, 2014 No. 37-KG14-4
Letters from the Ministry of Labor

dated April 10, 2014 No. 14-2/OOG-1347
dated September 24, 2014 No. 17-3/B-449

10. Letters from the Ministry of Finance of Russia

dated 08/03/2015 No. 03-04-06/44623
dated 08/21/2015 No. 03-04-05/48347
dated June 30, 2014 No. 03-04-06/31391

Find out how to read the official texts of these documents in the section

♦ Category: , , .

One article in the Labor Legislation is devoted to dismissal by agreement of the parties - Art. 78 Labor Code of the Russian Federation. It says little: the employment agreement can be terminated by mutual consent.

In fact, neither the employees nor the employer understand the essence of such termination and its consequences. In this regard, many questions arise: how the process works, whether the employee is entitled to any payments, what reasons there may be that prompted the employee and the employer to make such a decision.

Features of dismissal by agreement

There are two features of dismissal for cause:

an employee can resign whenever he pleases (on vacation, during illness);
On this basis, the student agreement can be terminated.

There is some nuance in this basis - you don’t have to work out the required 2-week period, which is mandatory in case of voluntary dismissal.

Pros and cons for the employee

Here you can highlight the pros and cons of such dismissal for the employee. The advantages include:

the initiative to terminate the contract can come from both the employee and the employer;
the reason for dismissal may not be indicated in the application;
There are no deadlines for submitting an application;
You can terminate an employment contract at any time, even in cases prohibited by law;
you can “bargain” with the employer - discuss with him the terms, the amount of severance pay, etc.;
the record of dismissal by agreement does not “spoil” the work book;
may be an alternative to dismissal if the employee is at fault;
with this wording of dismissal, the continuity of service lasts another 1 calendar month;
If you then register with the employment center at your place of registration, the unemployment benefit will be slightly higher.

But there are also disadvantages. They are considered disadvantages for the employee. This:

the employer can terminate the contract at any time, even in cases prohibited by law;
there is no control over the legality of dismissal on the part of the trade union;
the employer is not obliged to pay the employee severance pay unless this is stipulated in the collective agreement, additional agreement or other local regulation;
you cannot unilaterally change your mind and withdraw your resignation letter if the agreement has already been signed;
Judicial practice in such cases is scanty, since it is almost impossible to challenge the actions of the employer.

Registration of dismissal

It is necessary to draw up the actual agreement on termination of the employment contract (the initiator can be either the organization or the employee). Art. 67 of the Labor Code of the Russian Federation establishes the need for a written conclusion of an employment contract, therefore it is more expedient to draw up the agreement on paper rather than in words. The document is drawn up in 2 copies and has all the necessary details.

Sample and contents of the agreement

It should contain the following information:

mutual content of the parties;
details of the employment contract that needs to be terminated;
date of termination of employment, that is, the date of the last working day;
the amount and terms of payment of monetary compensation to the employee, if provided;
date and place of his imprisonment. Without this information, the document will be considered void;
position and full name of the employee;
full name of the employer indicating the organizational and legal form;
position and full name of the person who represents the interests of the employer and has the authority to sign documents;
passport details of the dismissed employee;
employer's tax identification number;
Signatures with transcripts.

The agreement is signed by both parties. The document can provide for the payment of monetary compensation to the employee for termination of the contract (compensation for dismissal by agreement is not a mandatory condition for such termination of the contract).

Payments upon dismissal

Based on Art. 140 of the Labor Code of the Russian Federation, the employer is obliged to pay the employee on the day of dismissal. The amount paid to the employee includes:

salary for hours worked;
compensation for unused vacation;
compensation for termination of the contract, if provided for in the agreement.

What kind of compensation should I ask for?

The amount of compensation is not specified in the law. She can be anyone! Its size may be specified in a collective agreement or local regulation.
The main condition is that the employee and employer can agree. As a rule, the amount of compensation is no less than for dismissal due to staff reduction - a maximum of 3 average employee salaries. This is what HR practice shows. The employee has the right to ask for more, the employer has the right to offer less.

The employer is obliged to pay compensation only if it is stipulated in the regulations of the enterprise. In all other cases, it is his right!
The amount of compensation is specified in the agreement, which is signed by both parties. Only in this case will the employee be able to sue if the employer violates the terms of termination of the employment contract, according to this document.

Such an agreement cannot be terminated by one of the parties; its cancellation requires the desire of two participants in the labor relationship: the employee (employee) and the employer - clause 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004.

Agreement with payment of compensation

In any case, the employee writes a statement. It must contain the following information:

position and full name of the employer or person. authorized by him to sign applications;
position and full name of the employee;
request to terminate the contract;
reference to paragraph 1 of Art. 77 of the Labor Code of the Russian Federation or at Art. 78 Labor Code of the Russian Federation;
number and date of the current employment contract;
the date when the contract is planned to be terminated;
request to pay the compensation specified in the agreement;
date of application;
applicant's signature with transcript.

The agreement is an annex to the contract. It can be drawn up by both the employee and the employer. The employer has the right not to sign the application until the parties reach a consensus.
The period for discussing the conditions may be somewhat delayed. All issues discussed by the parties are recorded in the protocol of disagreements. When mutual understanding is reached, it is necessary to draw up a new text of the agreement, or make adjustments to the old document, making reference to the protocol of disagreements.

The dismissal is formalized by an order, where an indication must be made of clause 1, part 1 of Art. 77 Labor Code of the Russian Federation. The order is signed by the employee, or a note is made about the impossibility of familiarizing him with the document (in case of absence or unwillingness).

A corresponding entry is made in the work book of the dismissed employee, indicating that the contract is terminated by mutual agreement.

Entry in the work book

The recording is made by a human resources employee.
There are 2 options for how an entry in an employee’s work book should look when dismissed on this basis.

Option one:

the record number is indicated;
the date it was made;
in column 3 it is written: “dismissed by agreement of the parties, clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation”
date and order number.

Option two:

in columns 1, 2 and 4 the same information is indicated as in the first case;
in column 3 you can write: “the employment contract was terminated by agreement of the parties, paragraph 1 of part 1 of article 77 of the Labor Code of the Russian Federation.” Both entries have the same legal force.

A copy of the order and work record book is given to the employee on the day of dismissal.

More information in our infographic

Reasons for dismissal and advantages of such grounds for dismissal

Reasons prompting an employee to leave the employer:

by article (for example, absenteeism);
the likelihood of receiving “compensation” from the employer (beneficial for women on unpaid “children’s” leave);
the need to go to another job, but there is no time to work out the allotted time.

Reasons prompting an employer to fire an employee:

the need to terminate the employment relationship with an unwanted employee;
the need to dismiss employees who cannot be dismissed for other reasons (pregnant women on sick leave, students, employees on vacation).

Benefits for the employer:

there is no need to consult and notify the union of the proposed dismissal;
the employee with whom the agreement has been drawn up can be fired in any case, since changing the decision on the part of the employee himself is not possible without the consent of the organization.

When concluding an agreement, it must be taken into account that the employee has the right to challenge it in court, arguing his position by pressure from the employer, especially when it comes to workers in the most vulnerable categories who were dismissed without monetary compensation.

Payments at the labor exchange

Within 2 weeks after dismissal, the employee has the right to register with the employment center at his place of residence. The following documents are required for this:

passport;
document on education;
work book;
a copy of the parties' agreement on dismissal;
certificate of the applicant’s earnings for the last 3 months of work;
application in the prescribed form.

In 2018, only:

able-bodied citizens;
who have reached the age of 16;
who are not pensioners or full-time students;
not engaged in entrepreneurial activities;
those who do not hold the position of founders of enterprises and firms;
sentenced to correctional labor or imprisonment.

The amount of the benefit depends on the average earnings of the unemployed over the last 3 months at the last place of work. Average earnings are determined based on the data presented in the certificate from the last place of work.
In the first 3 months of being unemployed, the applicant will receive 75% of his average earnings. In the next 4 months - 60%, and then - 45%.

The benefit is accrued and paid only for 12 months over a period of 1.5 years. If an unemployed person was unable to find a job within a year through no fault of his own, the benefit will be paid for another 1 year. Its size will be equal to the minimum benefit in the region.
The applicant receives unemployed status on the 11th day from the date of submission of all documents. In the first 10 days, employees of the employment center offer him all available vacancies that suit his qualifications.

If the applicant has an “unpopular” specialty, he will be offered training or retraining. If within 10 days he does not find a suitable job or place of registration, on the 11th day he will receive the status of unemployed and will receive unemployment benefits from that day.

The amount of the benefit paid cannot be less or more than established by Law No. 1032-1 of April 19, 1991 “On Employment” - 850 rubles and 4,900 rubles, respectively.
The authorities of some regions make additional payments to their unemployed. So, in Moscow, the government compensates for transportation costs in the amount of 1,190 rubles, and makes an additional payment of 850 rubles to the minimum and maximum amount. Thus, unemployed Muscovites receive 2,890 and 6,940 rubles, respectively.

If the applicant gets a job through the exchange or on his own, then he is deregistered and ceases to receive benefits. Also, he is not deregistered if he refuses the offered vacancies 2 times or refuses to undergo retraining in the direction of the center.

Step by step instructions

Does the employer offer to terminate the employment contract by mutual consent? To ensure that your rights as an employee are not violated, you must use the following instructions:

this agreement must be drawn up. Both parties must participate. The employee has every right to introduce his own conditions for subsequent dismissal. He himself may offer to pay him compensation, he may indicate its amount, etc. It is worth considering Art. 349.3 of the Labor Code of the Russian Federation, which indicates the categories of employees who are not entitled to severance pay. The agreement is drawn up in 2 copies;
registration of the agreement. This is done by the secretary or clerk in the order that the employer has. For example, in the agreement log;
handing the second copy to the employee. Delivery is confirmed by the employee’s signature on the employer’s copy. Experts recommend writing “I have received a copy of the agreement”;

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 is concluded with the employee on the termination of the employment contract, 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 assist 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 advisability 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

It is most suitable for a company to dismiss 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, compensation, as a rule, amounts to two or three salaries.

Either the employee or the employer can speak. The most commonly used type of dismissal of an employee from the staff is dismissal by agreement of the parties. In this case, the employer does not spoil the labor statistics of the entire enterprise and avoids a rather lengthy and complex procedure for preparing the required documents, and the employee does not receive negative entries in his work book. However, the most common cases are when an employee expresses a desire to terminate an employment contract under this scenario. In this regard, such an expression of will is often confused with the dismissal of an employee at his own request. It should also be noted that the dismissal procedure by agreement of the parties has many positive aspects.

Advantages of dismissal by agreement of the parties for the employer

For example, the undoubted advantages for the employer are:

the possibility of terminating an employment contract concluded with an employee before its expiration;
the possibility of non-compliance with obligations and guarantees in relation to women who are pregnant or already have children;
absence of any obligations leading to dismissal by agreement of the parties;
decommissioning from the staff of an employee on leave.

In addition, the employer reserves the right not to notify the relevant trade union organization, as well as the employment service. The employer also has the right to withhold severance pay if such situations are not covered by local regulations.

Benefits for the employee

In turn, the employee also receives several benefits such as:

termination of the employment relationship at any convenient time, it is possible either dismissal “one day” or the allocation of another day different from the date of signing the agreement;
payment of monetary compensation may be higher than for dismissal due to reduction (but may not be at all, depending on the agreement of the parties);
there is no need to work for two weeks, in contrast to expulsion from the state at one’s own request;
when registering with the employment service, a person dismissed by agreement of the parties receives a larger benefit.

Perhaps the most important thing is the procedure for drawing up proper documentation, since the successful completion of the employment relationship depends on the correctness of the wording.

Dismissal procedure

So, the first thing to do is set a termination date that both parties agree to. Then, dismissal by agreement of the parties takes place in the described manner: the employee orally or in writing enters into an agreement with the employer on the date of dismissal from the state, then writes a statement in which it is required to indicate a clearly formulated justification in connection with which the dismissal is made by agreement of the parties, and also the agreed date. Otherwise, it may give rise to all sorts of differences and difficulties of interpretation, which, if things go unfavorably, could lead both parties to litigation. The application can be endorsed either by the head of a structural unit, or by the chief accountant, if such a document was drawn up by a financially responsible person.

Two conditions

The agreements on the basis of which dismissal can be made by agreement of the parties have already been announced earlier, but we will repeat them again:

Determining the specific expiration date of the employment contract.
Reaching an agreement between the parties on termination of employment obligations.

Every 2 citizens of the Russian Federation went through the procedure of terminating their employment relationship. In most cases, dismissal occurs by agreement of the parties. The employer and subordinate can terminate the employment relationship by mutual agreement. Each party needs to have an idea of how to correctly formalize the termination of an employment contract.

The following factors may serve as reasons for cancellation of an employment contract by agreement of the parties:

Receiving monetary compensation from the company in the form of dismissal payments.
Violation of obligations under an employment contract. When a citizen seriously violates the rules of labor discipline, this may result in forced dismissal. In order not to spoil the reputation, the head of the organization can make concessions and terminate the relationship by mutual agreement.
An opportunity for an employer to dismiss categories of persons whom it does not have the right to dismiss under other circumstances (women on maternity leave or pregnant women).

Most often, the employer is the first to take the initiative when dismissing someone, since it is beneficial for him to get rid of, for example, an unscrupulous employee or to hire an acquaintance for the position. If something does not suit an employee, he may well resign of his own free will.

Pros and cons for an employee when terminating a business relationship by agreement

Cancellation of an employment contract by agreement of both parties can be beneficial for both the employer and the subordinate. As with all situations, there are pros and cons.

Positive aspects

Dismissal of an employee by agreement of the parties is beneficial to him for the following reasons:

Both the worker and the employer can offer to resign;
a staff member has the right not to indicate in the application the reason for leaving work;
the applicant is not required to work 14 days before leaving the place of work completely;
if the employer was the first to take the initiative, then the applicant has the right to demand monetary compensation in the form of severance pay, and negotiate its amount and terms of payments;
an entry in the employee’s book will not in any way ruin the employee’s reputation;
if you are asked to resign due to any violation, ending the working relationship by agreement of the parties is a beneficial option;
after this type of dismissal, the person will still have work experience for a month;
leaving work by agreement of the parties will give the citizen the right to register with the labor exchange and receive a good unemployment benefit.

Cons for a repaired one

In this case, there are some disadvantages for the employee:

in this situation, the employer can fire even in cases prohibited by law;
trade union organizations cannot control the legality of the procedure;
the director of the enterprise may refuse to pay monetary compensation;
if the application has already been agreed upon and signed by the manager, the employee will not be able to change his mind and cancel the application;
in this situation, the manager is almost always right, and the courts are on the employer’s side.

Is this procedure beneficial for the employer?

Dismissal by agreement of the parties may be convenient for the manager in the following cases:

The employer is not satisfied with how the subordinate performs his duties, and he wants to dismiss him in an amicable manner.
Dismissal by mutual consent is convenient for the director in cases where there is no desire or opportunity to carry out the staff reduction procedure.
An employer can resort to this procedure when he wants to get rid of a person whom he does not have the right to fire in any other way.

Most often, the initiator of termination of a working relationship by mutual agreement is the manager.

Important! Neither party in this matter has the right to put pressure on the other in its own interests.

What is better: an agreement among ourselves or only personal desire?

A certain type of dismissal from an enterprise can be beneficial for either the employee or the manager. For the first, most often, it is advantageous to leave of his own free will, and for the employer - by agreement. There are advantages and disadvantages in both the first and second cases.

The main advantages of dismissal by agreement:

The employee has the right to set his own dismissal date. This is beneficial to a citizen when he is looking for a new job, but does not yet know exactly when he should start it. In this case, in the old place, the person himself regulates the terms of dismissal, but in agreement with the manager.
When a citizen leaves his place of work in this way, he can go to the labor exchange, register for unemployment and receive decent pay for this. This option is valid when the initiator of the cancellation of the relationship is the head of the enterprise.
If dismissal is, first of all, the desire of the manager, then the employee always has the right to count on monetary compensation.
The work experience still lasts for 30 days after the termination of the employment relationship.

Among the disadvantages of this method are the following:

If the employee and the employer have agreed and discussed everything, the application is signed by both parties, then the resigning citizen will no longer be able to change his mind. Dismissal in this situation will occur in any case.
Dismissal by agreement does not provide for any benefits or payments by law; everything happens by agreement of the parties. If you come across an unscrupulous employer, he may not pay the citizen a penny.
No one has the right to unilaterally cancel an application for dismissal by agreement of the parties.
When applying for a new job, the director may ask to explain the reason for his dismissal from the previous place.
An employer can even fire a pregnant or maternity woman using this method.

Dismissal on your own initiative has the following advantages:

This method of dismissal gives the citizen great guarantees. Always with such a turn of events, the person resigning receives compensation payments.
When resigning on personal initiative, a person receives a standard entry in the work book, which does not raise questions from subsequent employers.
Having expressed a personal desire to leave the enterprise, an employee may change his mind and remain employed.

Among the disadvantages of this type of dismissal are the following:

After a citizen’s personal request for dismissal, he is still required to participate in the work process for 14 days.
Dismissal is always agreed upon with trade union organizations.
Unemployment benefits will be minimal.
The internship is terminated immediately.

The director of the company and the employee have the right to independently choose the most profitable method of dismissal for themselves, weighing all the pros and cons.

Reduction or by agreement?

When an enterprise plans to reduce staff, some managers offer their subordinates a different arrangement - to leave their position by agreement of the parties. What is more beneficial for the employee and the employer?

This can be beneficial for managers in the following situations:

There is no need to warn the subordinate about dismissal in advance; an agreement to terminate the working relationship can be drawn up at any time convenient for the parties.
It is unlikely that an employee can start a lawsuit for leaving work and win it.

For an employee in this situation, the main thing remains the financial side of the issue. If it is more profitable for the manager to dismiss a citizen by agreement of the parties, then he will have to offer him a good financial reward.

There are no legislative acts stipulating the financial side of the issue when terminating a relationship by agreement of the parties, so the employer and employee can come to a common denominator in matters of severance pay. If the director of the company offers a subordinate compensation in the amount of 3-5 salaries, then formalizing the resignation with the consent of the persons can be beneficial for both.

Another advantage of terminating the contract by agreement of the parties is the prospect of further employment. If the workforce is reduced, the employee will not be able to immediately find a new job. He must not work for 2 months if he wants to register as unemployment, and receive compensation for this. After dismissal, by agreement of the persons, the former employee of the organization can formalize a new working relationship.

Is it possible to perform the procedure without written consent?

When dismissing employees by mutual agreement, its formalization is always provided. It is recommended to do this in writing, but there are no provisions in this regard in the Labor Code.

If the initiator is the head of the company, then he sends a letter to the citizen in writing indicating the reason and deadline. When a worker does not agree with the rules for terminating a business relationship proposed by the employer, he can also express his point of view in writing.

If an employer needs to fire several employees at once, he must convene a general meeting and hold negotiations in which everyone will express their opinion. If during the negotiations all employees agree with the leader, then a letter of agreement is drawn up separately for each. The dismissal agreement by mutual consent of the parties is always drawn up in 2 copies.

How to correctly cancel an employment contract with the consent of persons?

Termination of the contract and preparation of all necessary documents takes place in several steps:

Registration of written consent of both parties.
Drawing up a dismissal order by the employer.
Familiarization with the worker's documents.
Entering data into the employee's personal file.
Reflection of the entry required by law in the workbook.
Drawing up settlement documents and familiarizing the employee with them.
Payment of all required compensations, benefits, bonuses to the employee.
Give the employee the documents he is entitled to.
If necessary, inform the military authorities in a timely manner about the employee’s dismissal.

Each point has its own nuances and requires detailed consideration and explanation.

Registration of written consent

the last day that the citizen will work at this enterprise;
the right to paid leave before dismissal;
required compensation payments to the employee;
rules for transferring work responsibilities.

Attention! Neither party can protest against the terms of the agreement drawn up and refuse to comply with them. Any clauses of the agreement can be changed only by mutual agreement.

Drawing up an order

The main document that serves as the basis for termination of an employment contract is an order drawn up by the employer. This document is registered under an individual number by the enterprise secretary in the order journal.

The order does not indicate a specific reason for dismissal, but puts the entry “by agreement of the parties.” Also, the conditions of dismissal specified in the agreement are not specified.

Familiarization of the employee with the documentation

The dismissed employee must be familiar with the written dismissal order. To confirm that the employee has read the document, he puts his signature on it.

An employee, if desired, can ask for copies of the necessary papers, and the head of the company should not refuse the request.

When the employer does not have the opportunity to familiarize the dismissed person with the document so that he can sign, then a corresponding note is made on the order about the impossibility of familiarization. The same is done if the employee refuses to sign this document.

Entry in personal file

When an employee is hired for a position in a company, a personal file is created for the employee. During the procedure for dismissal from an enterprise, a certain mark is also placed in the personal file, which indicates the order number and the date of termination of the employee’s work. The employee must be familiar with the entry in the personal card and sign. If the person leaving does not want to sign this document or does not have the opportunity to do so, then the HR department employee and the employer sign the document in their own hand and draw up a corresponding act.

Mark in the work book

A note is placed in the employee’s book that the employee was dismissed in accordance with the order (the number of the order and the date of its preparation are indicated). The entry will contain the following content: “Dismissed by mutual decision,” and a reference to Article 77, Part 1 of the Labor Code of the Russian Federation is indicated. The reason for the termination of the relationship is not indicated in the work book.

Responsibility for entering information into the work book rests entirely with the head of the organization, and he will be punished and will return monetary compensation to the employee in the event of incorrect wording or illegal dismissal.

Drawing up settlement documents

The settlement document is drawn up to take into account all the required compensation in cash equivalent to the employee upon dismissal. Such compensation may include unused vacation, sick days, unpaid days worked before dismissal and other payments.

HR services are responsible for drawing up and processing settlement documents, and accountants are responsible for calculating all payments.

The first page contains general information about the company and the employee, and also notes how many days the employee did not take as vacation. On the second page, a complete calculation of all funds is carried out, all tax accruals and withholdings are indicated, and as a result, the amount receivable in cash is worth.

Full payment calculation

Upon dismissal, the employer is obliged to return all accrued funds due to the employee.

These include:

payment for days worked by the employee until the date of termination of participation in the work process of the enterprise;
payment of unused days of annual leave;
payment of severance pay, if stipulated in the agreement.

The issuance of all due funds is made on the day that will be the last for work at this enterprise. If this is not possible due to the employee’s absence from the workplace, then the manager is obliged to make all payments no later than one day following the date of the employee’s request for payment.

The Labor Code of the Russian Federation provides for the payment of benefits in connection with the dismissal of an employee with the consent of the manager. In accordance with Article 181, Part 1 of the Labor Code of the Russian Federation, such benefits cannot be paid to an employee who had to be fired due to a violation of labor regulations. The Labor Code also provides for a certain amount of compensation upon dismissal by agreement of the parties for certain categories of employees. These categories include managers, their direct deputies, as well as accounting employees.

Issuing documentation to the employee

On the last day of the employee’s participation in the work process, the director of the company must hand over the necessary documents:

A work record book with a corresponding entry on the employee’s dismissal in accordance with the order. The employee must sign for receipt of the work permit.
Certificate of salary calculation for the last 24 months.
Certificate of insurance pension contributions for the entire period of work.
Certificate of average salary (issued if the employee plans to register for unemployment after dismissal).
Certificate with a note on work experience.
Other documents that the employee has the right to request.

All documents must be issued to the employee directly on the day of dismissal. If this is not possible, then within 3 working days.

Notification of military authorities about the dismissal of an employee

If the dismissed employee is a citizen liable for military service, the employer is obliged to notify the relevant authorities of his dismissal within 14 days.

What controversial situations may arise?

Often when dismissal, the parties' opinions on any issue differ. For example, an employer does not want to deal with the reduction procedure, since it requires more time and serious costs. The employee must be notified of the planned layoff 60 days before the expected date.

Dismissal by agreement of the parties in this case will be a beneficial help for the manager, since it is not necessary to keep the employee in office for a long time, and the director can get off with a small severance pay if dismissed by agreement of the parties. This approach is used by managers who need to quickly get rid of an employee in order to hire a friend or relative.

Sometimes an employee can start disputes. For example, he needed to reschedule his dismissal a little. In this case, you must start the entire document submission procedure again. Have a conversation with the manager, and if he agrees to change the date, a new agreement is drawn up and a new statement is written. If the parties come to a mutual opinion, then the old documents are canceled and new ones are drawn up.

Conclusions

So, dismissal by agreement of the parties can be convenient for both the employee and the employer. The employee's benefit mainly depends on the reliability and integrity of the manager. Even in the event of a staff reduction, dismissal by mutual agreement may be more profitable if the manager well rewards the subordinate for compliance.

The employee and the manager must discuss everything in detail so that later controversial situations do not arise. If the citizen and the employer are able to come to an amicable agreement, the director, for his part, pays good compensation, and the employee does not make high demands for dismissal, then the parties will be able to end their labor relationship on a positive note.