What is the best way to quit voluntarily or by agreement. Dismissal by agreement of the parties is a great option for both the employee and the employer

There can be any number of reasons for dismissal - this is moving to a new place of residence, obtaining a new highly paid position, and others. However, this process is not always quick and easy. Dismissal by agreement of the parties can be considered the best option if the employee entered into an employment contract (TD) with the employer, but at the same time, few people are aware of whether any payments are provided in this case and how to properly follow all the stages of the procedure for terminating labor relations.

What does dismissal by agreement of the parties mean?

Already from the expression itself, it is clear that the 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 of one's own free will. A TD break is possible with a fixed-term or open-ended contract. The main feature of the procedure should be called the fact that each of the parties is obliged to notify the other of such a decision.

At the initiative of the worker

If we turn to practice, we can see that more often the termination of the contract occurs at the initiative of the employee himself. If you decide to terminate the employment relationship with the employer, you must notify the authorities of your desire by writing a corresponding application. After that, the CEO imposes a resolution on the consent of the management. 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 the expiration date. This method is relevant when management wants to fire an employee, but there is no good reason for this. To do this, the employee is sent a written notice, which reflects the expected date of termination of cooperation. For its part, the subordinate, in case of disagreement, may refuse or indicate his own conditions. They can be set out in writing or reach consensus through negotiation.

Regulations and laws

If we turn to the legislation, then we will not be able to find any exact recommendations regarding the termination of employment relations between the employee and employers by mutual agreement. All questions lying in this plane relate to the practice that exists in a single enterprise. Only in the Labor Code there is a small chapter number 78, which says that cooperation can be terminated at any time. In addition, it says that the initiator of the dismissal can be either one or the other side of the contract.

Termination of TD

Termination of TD by mutual agreement has recently been gaining popularity. This is due to the fact that for 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 the 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 the employer and employees is not always simple and can take a long time, then in the event of termination of the contract by agreement, it is easy to resolve this issue, 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 here that neither the employee nor the employer are required to notify each other in writing of their intention to terminate cooperation. However, lawyers advise to stick to documenting your desire. This will help subsequently resolve issues regarding mutual claims and disputes in court, where the drawn up document will be provided as evidence.

Negotiation of the terms of the procedure

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

Modification and cancellation only by mutual agreement

The termination of relations by the consent of the participants in the TD has a distinctive feature - it does not have a reverse course. This means that the agreement cannot be cancelled. However, in some cases, changes are possible, but only if, again, both parties agree. This circumstance distinguishes the procedure from leaving work at will, when the employee can withdraw his application.

As for the very process of changing the agreements reached earlier, here it is desirable to observe some formalities. So, for example, if an employee sends his management a proposal to amend the agreement in writing, then the employer is recommended to respond to him in writing, where he expresses his disagreement with the conditions put forward or expresses his willingness to make concessions.

The possibility of dismissal of employees of any category

If you turn to the legislative framework, you can see that you can terminate cooperation with an employee at any time, regardless of whether a fixed-term or open-ended contract is concluded with him. This circumstance does not prevent the dismissal of 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 dismiss them.

Dismissal from office by agreement of the parties is often used when a TD is broken with an employee who has committed a disciplinary violation. This is beneficial to both parties, since the employer gets rid of an objectionable employee who receives a work book that does not indicate that he was fired "under the article." In addition, it is possible to be reinstated in office only by a court decision, which will be unrealistic to obtain, because the citizen himself gave his consent.

It should be specially noted that the employer can also dismiss a pregnant woman, but (!) only if she herself expresses such a desire - there can be no other exceptions. When such a proposal is received, 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 letter, 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 requirements, especially if the initiative comes from the employer. In addition, the management of the organization must fully pay off the departing employee, and the deadline for payments is considered to be the last day before leaving.

Pay for hours worked

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

In case of non-payment due to the fault of the employer of the funds due within the time limits established by the Labor Code, the employee must first contact the employer and request written guarantees for the transfer of money within a month. In addition, it is necessary to file a complaint with the Labor Disputes Commission at the enterprise. If none of the above has brought results, each citizen can apply to the 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 calculation of the payment 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 hours worked.

severance pay

Most of the questions arise with the payment of severance pay. If, upon downsizing 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 at all, especially if the agreement is reached as a result of a disciplinary sanction.

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

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

Procedure steps

The legislation does not prescribe the process of dismissal from work by mutual agreement. The employer has the right not to notify the employment service, the trade union organization of the termination of the TD and not to pay the dismissed employee a severance pay, unless otherwise specified by the labor / collective agreement or other local regulatory legal acts. As a rule, they are guided by the practice established at the enterprise.

The procedure is not lengthy and consists in performing a certain procedure:

agreements are reached;
an order is drawn up for the enterprise and given to the retiring person for familiarization;
within the period specified by the parties, a full settlement with the employee takes place and he is issued a work book.

Drafting an agreement to terminate an employment contract

Since the consent between the parties to the contract is the basis for dismissal, it is drawn up and signed by both participants in 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 (the agreement of the parties);
date of dismissal;
signatures of both parties.

The agreement itself can be in the form of a statement from a retiring specialist (worker), which necessarily indicates the date of termination of cooperation determined by the parties. The resolution of the employer is superimposed on it. In addition, a separate document can be drawn up. It prescribes 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:

Dismissal order

According to the resolution of the State Statistics Committee of Russia No. 1 of 01/05/2004, the order for dismissal is drawn up in 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 items:

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

Familiarization of the dismissed person with the order against signature

After registering the order, the resigning person should familiarize himself with the content. Without fail, he must sign, which will indicate agreement with all the points set out. 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 an act is drawn up on the refusal of the employee to familiarize himself with the contents of the order.

Entry in a personal card and work book

When a person is hired, a personal card is created for him, in which all changes related to official duties are recorded. For this, the approved T-2 form is used. It is also necessary to make a record of dismissal by agreement of the participants in the trading house, the details of the order and the date. The personnel department inspector puts his signature, and after familiarization, the resigning 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 the first part 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 resigning person. 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 the form T-61

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

Full payment on the last day of work of the employee

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

What documents are handed out

When leaving with the consent of the participants in the TD, an employee of the organization receives a certain set of documents in his hands:

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

Features of taxation of severance pay

Provided that the amount of the severance pay determined by the agreement, the average monthly earnings for the period of employment, monetary compensation to the manager, his deputies and the chief accountant does not exceed three times the average monthly earnings or six months for an employee of the regions of the Far North and areas equated to them, are not subject to personal income tax. Anything above that amount will be subject to income tax. This rule also applies to insurance contributions to the Pension Fund and other organizations.

Video

The legislation provides that the parties can terminate the employment contract by negotiating among themselves and reaching an agreement. Dismissal by agreement of the parties is allowed to be issued only if the administration and the employee mutually agree on the conditions established in the agreement. Despite the fact that the procedure is regulated by the Labor Code of the Russian Federation, many of its points are determined by court decisions.

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

Negotiations allow you to settle most of the emerging conflict situations and disputes. It must be remembered that the agreement on dismissal by agreement of the parties will be valid if, at the time of preparation, all parties voluntarily agreed to sign it.

Both the employee who has a desire to leave the enterprise, and the administration of the company, which has decided to terminate, have the right to start this procedure.

In the first case, the employee sends a letter of resignation to the personnel department of the enterprise by agreement of the parties. If the initiative to dismiss comes from the management, then the employee is sent a corresponding letter on letterhead.

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

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

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

This type of termination of relations with an employee has a number of positive and negative points. Let's consider them in more detail.

Benefits for the employee

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

Cons for the employee

If an employee leaves by agreement, then he cannot change his mind and not terminate the contract, as is possible with a statement of his own free will. To terminate the dismissal procedure, he must obtain the consent of the company's administration.
It is impossible to revise the terms of the agreement after it has been signed.
The agreement cannot be canceled even in the courts.
The employee independently decides on the issue of his dismissal, the opinion of the trade union body in the company is not taken into account.

Is such a layoff beneficial for the employer?

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

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

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

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

Another side that has positive points for the employer is that when the parties are dismissed, it is possible to agree with the employee that he will help find a person to replace him with the relevant experience or length of service, or he will train him.

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

Dismissal by agreement of the parties or voluntarily, which is better

When deciding to terminate an employment relationship between a firm and its employee, each party has the right to choose how to do so. Before starting this process, you need to weigh all the positive and negative sides of each of the methods, as well as correctly orient yourself in the current situation, determining the goals of dismissal.

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

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

Can an employee be fired without written consent?

An agreement to terminate an employment contract must be drawn up and signed on a voluntary basis.

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

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

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

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

How to terminate an employment contract by agreement of the parties?

Step 1. We draw up an agreement with an employee

The labor code does not indicate in what form such an agreement should be drawn up - in writing or orally. But in order to further prove the agreements reached, it is better to do this in writing in duplicate - each party receives one copy.

Some points to be mentioned in the document:

Last day of work in the company;
Opportunity to get leave before dismissal;
The amount of the cash payment, including the availability of compensation for dismissal;
The procedure for training a new employee;
Etc.

Attention! If signed, then it will be possible to change any conditions only with the consent of both parties. Doing this unilaterally is prohibited.

Step 2. Issuing an order for dismissal

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

Step 3. Familiarizing the employee with the dismissal order

After the order is drawn up and signed by the head, the form must be handed over to the resigning employee for review and signature. Thus, he confirms the fact of reading the document. The signature and date are put in the columns specially designated for this.

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

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

Step 4. Making the necessary entry in the personal card

Attention! In the event that the employee refuses to sign the card, an act is drawn up in the presence of the commission. In the future, these documents are stored together in the archive.

Step 5. Entering information into the work book

When the termination of an employment contract is based on an agreement between the parties, the entry in the employment contract should include a reference to Article 77 of the Labor Code of the Russian Federation: "Fired by agreement of the parties, clause 1 of part one of Article 77 of the Labor Code of the Russian Federation".

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

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

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

1	2			3	4
				Limited Liability Company Ladya (Ladya LLC)
7	20	05	2013	Recruited as Accounting Clerk	Order dated 05/20/2013 No. 21-L
8	18	11	2016	Dismissed by agreement of the parties, paragraph 1 of the first part of Article 77 of the Labor Code of the Russian Federation	Order dated 11/18/2016 No. 94-L
				HR Specialist Ignatova M.I.
				Acquainted by: Zhurba G.I.

The employee who is responsible for making an entry in the document is financially responsible for its correctness to the leaving citizen. If a mistake was made in it, and it further prevented him from getting a job, then the guilty person will have to pay the average earnings for all those days that the victim could not work due to the identified mistake.

Step 6. Making a note-calculation at the end of the employment agreement

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

Step 7. Issuing payroll

On the day that is the last for an employee in this company, he needs to hand over all the money due.

These include:

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

Sometimes on the final day it is not possible to give the calculation to the hands of the resigning person. Most often this happens due to the fact that he is absent from the workplace on this day due to illness or other good reason. In such a situation, the money must be kept at the enterprise, and they are issued the next day after the former employee declares his readiness to receive the settlement.

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

buchproffi

Important! If, for any reason, a dispute arises between the employee and the employer over the amount of the amounts payable, then on the specified day, only that part that is not disputed by both parties must be issued. The remaining amount is being negotiated, or one of the parties must start legal proceedings.

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

Step 8. Preparation and issuance of documents to be issued upon termination of the contract

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

Work book of the employee. In it, the personnel worker enter information about the dismissal and hands over the document to the resigning employee on the last day.

The employee needs to make a signature under the entry in the labor, as well as confirm its receipt by marking in a special journal of work books at the enterprise. If a situation arises that the employee cannot pick up the labor on the last day, for example, he went on a business trip, fell ill, or for some reason simply refuses to do this, the personnel officer needs to draw up a notification.

It should inform about the need to approach to get a labor, or give your consent to send the document by mail or courier service. From the moment such a message is sent to the dismissed employee, the organization is relieved of responsibility for failure to issue a work permit within the prescribed period.

, which was accrued to the employee for the previous two years and the year of dismissal. It will be necessary to calculate sick leave in a new place. Help is drawn up on a special form.
for each year of employment with the company.
On the right about accrued and transferred contributions to the PF. The document is drawn up on a special form developed in the fund.
Copies of internal forms relating to the activities of the dismissed employee. These can be orders, rewards, thanks, etc. They can be issued upon written request within 3 days. The organization has no right to refuse to issue copies of documents.
Information about the average salary for the employment service. The document must be issued within three days of the request. There is a special form, but organizations may not use it, but draw up a certificate arbitrarily.

buchproffi

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

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

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

Termination of an employment contract by agreement of the parties is one of the safest for an employer. However, there are pitfalls here as well. Which? Now we'll find out.

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

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

Dismissal strategy by agreement of the parties

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

In this case, experts advise to conduct competent negotiations with him. Here are a few tips to help you achieve results.

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

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

It is necessary to prepare for dismissal negotiations carefully, but it is more efficient to conduct them on the same day, as they say, “to resolve the issue immediately”, even if the negotiations are dragging on and everyone wants to disperse, postponing the decision until tomorrow. Perhaps tomorrow everything will be different and the efforts of the employer will break against the wall of doubt and reflection, often unreasonably erected by the employee during the break provided.

When preparing for negotiations, you need to collect as much information about the employee as possible: whether he has a mortgage, whether there are dependents, what kind of family. Those who are alone and not burdened with payments make concessions more easily than those who are bound by financial obligations.

The structure of the negotiation is also important. As a rule, it is as follows: reconciliation with the dismissal, discussion of alternative moves (plan B), bidding, final part, registration of the agreement. Someone thinks that the main thing in this process is bidding. In fact, the key is the procedure for reconciliation with the dismissal. For an employee, the message of the upcoming dismissal is a shock. And how well contact is established with the employer at the first stage of negotiations, their result will be so successful. How long can reconciliation last? As much as needs. Only after the employee understands that the dismissal is inevitable and it is not as scary as it seems at first glance, you can proceed to the next stage.

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

Pitfalls of dismissal by agreement of the parties

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

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

If the employee proves that the employer forced him to sign a dismissal agreement under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation, then reinstatement is possible. If not, the court will take the side of the employer. Example - Appellate ruling of the Moscow City Court dated March 18, 2016 in case No. 33-9523 / 2016. The employee, dismissed by agreement of the parties, tried to be reinstated at work. At the trial, he said that he signed the documents on dismissal under pressure from the employer.

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

The staff member was unable to provide convincing evidence for his claim. The employer, on the other hand, provided the court with a dismissal order by agreement of the parties, issued on the basis of the employee's application.

Since the employee and the employer agreed on the grounds and term for terminating the employment contract, the court concluded that it was legal to terminate the employment relationship on the basis indicated in the order.

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

The Deputy Director for Medical Affairs was dismissed by agreement of the parties at the end of the probationary period. The employee tried to be reinstated through the court, indicating that she signed the agreement under pressure from the employer. The court considered the employer's actions to be in accordance with labor legislation for the following reasons.

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

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

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

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

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

The court sided with the employer on the following grounds. At the meeting, it was decided to terminate the powers of the director, he was offered to resign by agreement of the parties. However, due to the disagreement of the director to conclude an agreement on termination of the employment contract, the agreement in accordance with Art. 78 of the Labor Code of the Russian Federation was not signed with him and the dismissal under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation did not take place.

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

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

If an employee requires annulment of the dismissal agreement by agreement of the parties, then the employer cannot dismiss him under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation, since no agreement has been reached between the parties. At the same time, it should be borne in mind that some courts consider the requirements of the employee to be legitimate only if the reasons for refusing to sign the agreement are quite significant, for example, the woman found out about her pregnancy. In this case, the dismissal must be at the initiative of the employer in compliance with all requirements of labor legislation.

Let us consider as an example the Definition of the Armed Forces of the Russian Federation dated 06/20/2016 No. 18-KG16-45. The procurement department specialist went to court demanding her reinstatement at work. She signed an agreement to terminate the employment relationship, but, having learned about her pregnancy, she applied to the employer with a request to cancel this agreement and was refused.

In refusing to satisfy the woman's claims, the court of first instance proceeded from the fact that the dismissal was made by agreement of the parties, and not at the initiative of the employer. The mere fact that the employee was pregnant, which she was not aware of at the time of signing the agreement on termination of employment and dismissal, is not grounds for recognizing the dismissal as illegal. The Court of Appeal agreed with the findings of the Court of First Instance and their legal basis.

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

A similar decision was made by the St. Petersburg City Court in Ruling No. 12785 dated September 28, 2009. At the time of the conclusion of this agreement, the employee also did not know about her pregnancy. Upon learning, she sent the employer a statement with a refusal to fulfill the agreement in connection with the pregnancy and a certificate from the antenatal clinic, and despite this, she was dismissed by agreement of the parties.

The court pointed out that, when initially signing the agreement, the woman proceeded from the fact that her dismissal entailed legal consequences exclusively for her personally. However, in the changed circumstances, she realized that the termination of the employment contract could lead to a deterioration in the material well-being of her unborn child. Therefore, the court recognized the motives for abandoning the original decision as significant. But the employer did not take into account the materiality of these motives, did not consider it necessary to inform the employee of his opinion regarding her application for refusal to fulfill the agreement, although he had the necessary documents. These actions were qualified by the court as an abuse of the right.

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

The termination agreement may not be drawn up as a separate document. Let us consider as an example the Appellate ruling of the Moscow City Court dated March 18, 2016 in case No. 33-9523/2016. Resolving the dispute on reinstatement after dismissal by agreement of the parties, the court correctly considered the argument of the dismissed employee to be untenable that the parties had not signed an agreement to terminate the employment contract in writing. The Labor legislation does not indicate as a prerequisite for dismissal under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation signing a separate agreement (Article 78 of the Labor Code of the Russian Federation).

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

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

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

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

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

When an agreement on termination of an employment contract, which provides for the payment of compensation upon dismissal of an employee by agreement of the parties, contradicts, for example, a previously concluded employment contract or the Labor Code of the Russian Federation, the payment of compensation is illegal, which was pointed out by the Supreme Court of the Russian Federation in Ruling No. 36-KG15-5 dated 10.08.2015 . The employee was asked to terminate the employment contract by agreement of the parties with the payment of compensation. The condition for the payment of compensation upon dismissal was contained in an additional agreement to the employment contract. However, after the dismissal, the employer did not pay compensation in the agreed amount.

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

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

Wrong position of ships

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

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

The Court of Appeal sided with the employer. Reversing the decision of the court of first instance to satisfy the claim of the employee, he proceeded from the fact that the collective agreement, local regulations, labor contract do not contain conditions for the payment of monetary compensation to the employee precisely upon termination of the employment contract by agreement of the parties, labor legislation does not provide for this payment either.

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

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

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

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

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

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

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

The correct position of the courts

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

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

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

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

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

Federal Law No. 244-FZ of December 29, 2006 “On State Regulation of Organizing and Conducting Gambling and on Amendments to Some Legislative Acts of the Russian Federation”.

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

Labor Code on dismissal by agreement of the parties

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

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

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

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

Pros and cons of dismissal by agreement of the parties

Dismissal by agreement of the parties: pluses for the employee

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

Dismissal by agreement of the parties: cons for the employee

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

Dismissal by agreement of the parties is in no way controlled by trade union organizations. The manager does not need to send documents to the trade union body for approval, even if it is planned to dismiss a minor employee. Therefore, in this situation, dismissal by agreement of the parties may have disadvantages for the employee, he needs to carefully consider his decision and protect himself as much as possible.

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

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

Termination of labor relations in the presence of mutual agreement is not subject to challenge in court, that is, if dismissal is planned by agreement of the parties, the employee must consider the pros and cons in advance. The decision should not be spontaneous, so as not to regret it.

Benefits of dismissal by agreement of the parties for the employer

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

Disadvantages of the procedure for the employer

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

How to talk to an employee about dismissal: conversation script

When firing a subordinate, ensure the safety of corporate data, try not to offend the person and prevent rumors in the team. The article of the electronic magazine "General Director" will help you choose the right words and tactics of behavior.

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

Step 1. In writing, we offer the employee to resign by agreement of the parties.

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

The next step is to obtain the consent of the other party. It must also be in writing, but it is permissible to leave the resolution “I do not object” or the word “Agree”, as well as the date and signature of the other party.

Step 2. We draw up an agreement on dismissal.

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

After the conclusion of the agreement, it is possible to change it in the same manner that is provided for its conclusion. The employee cannot finish the work before the specified time, but the head of the company does not have the right to dismiss the specialist earlier.

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

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

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

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

Step 4. We get acquainted with the order of the employee.

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

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

Step 4. We prescribe the dismissal of the employee in his personal card.

Information about the dismissal is subject to inclusion in the personal card of the T-2 form, compiled when registering a specialist for an enterprise. In the column "reasons for termination of employment" the details of the order and the date of completion of work are entered.

After making an appointment, a person must be familiarized with a personal card against signature. In case of refusal, an act should be drawn up in the presence of witnesses.

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

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

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

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

On the last working day of the employee, the employer is obliged to make his full payment and pay:

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

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

In the event of a dispute between the parties about the amount of payments, management is obliged to issue an amount that suits everyone. The rest of the money is negotiable or the case goes to trial.

It should be noted that compensation for the unused vacation period is not paid if the agreement states that the employee goes on vacation with subsequent dismissal.

Step 7. We give the employee all the documents due to him.

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

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

Step 7. We notify the military registration and enlistment office about the dismissal of an employee.

If the employee is liable for military service, the employer must send a notice to the military enlistment office in which the person was registered within two weeks.

How to write a termination agreement

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

Without fail, in the agreement, write down the full name of the enterprise, full name and position of the employee, the fact of the agreement reached and detailed conditions that meet the requirements of the Labor Code of the Russian Federation.

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

The agreement is drawn up in two copies, one for each of the parties.

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

Compensation upon dismissal by agreement of the parties

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

salary for the days worked in the current month, and bonus (required);
compensation for unused vacation (at the request of the employee, it is possible to replace it with paid vacation before dismissal);
severance pay (or compensation).

The last component is given great importance in the formation of a dismissal agreement. The employee has the right to agree on the amount of compensation and the date of their issue, but he will receive wages and compensation for vacation only on the last working day.

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

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

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

Severance pay \u003d average daily salary * number of working days in the period specified in the agreement after dismissal

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

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

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

We multiply the amount received by the number of working days that fall on the declared two months (43 days). 2333 rubles 34 kopecks * 43 \u003d 100333, 62 rubles.

This amount will be equal to the severance pay.

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

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

Let's calculate the average hourly earnings:

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

The amount of wages for nine months (in this case, 27 thousand rubles) is divided by the hours worked.

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

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

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

Compensation upon dismissal by agreement of the parties for the director

On the basis of Part 2 of Article 278 of the Labor Code of the Russian Federation, the dismissal of a director by agreement of the parties is allowed only if an appropriate decision is made by the authorized body of the legal entity.

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

In the economic environment, there is the term "golden parachute". This is an agreement between top managers and employers. When the employment relationship between the parties ends, the former employee receives significant financial compensation from the company. There are cases when top managers dismissed by agreement of the parties received wages, bonuses, benefits, including pensions, as well as privileges and blocks of shares.

"Golden parachutes" in the Russian media began to be actively discussed in 2009. The reason for this was the scandals associated with the dismissal of top managers of leading enterprises, mostly in the energy sector. The discussions at the time were more ethical in nature. They talked about the fact that managers should receive "parachutes" after being fired, discussed their volume, defining the beyond. The topic of motivation was also often raised. Experts assessed how the "golden parachutes" will affect the relationship between the employee and the employer: will the number of conflicts decrease due to them, or is such support only beneficial from a material point of view and is only insurance against dismissal. The technical side was not affected.

The size of the "golden parachute" is determined by many parameters. The amount depends on the status of the company and the country in which it operates. In the legislation of the Russian Federation, the sizes of "parachutes" are not defined.

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

According to Article 236 of the Labor Code of the Russian Federation, a delay in the payment of compensation stipulated in the agreement may result in material liability of the head of the company.

Also, the debtor may be required to charge additional interest in the amount equal to or more than 1/300 of the refinancing rate of the Central Bank of the Russian Federation from the severance pay not issued on time, calculated for each day of delay.

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

After two months after the appointed date, the employee has the right to sue. In accordance with article 145.1 of the Criminal Code of the Russian Federation, the following punishment may be imposed on the head of a company:

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

Typical mistakes of companies when dismissing by agreement of the parties

Managers and HR directors believe that when an employee is fired, they must be firm and tough in order to suppress possible blackmail and demands.

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

Do not seek to intimidate specialists who do not agree to your terms, do not threaten to end his future career. Such actions will first of all ruin your professional reputation.

To resolve the conflict, you can do the following: send another specialist for negotiations and promise the dismissed person a large payment. But in any case, the HR manager and the organization as a whole again remain in the red.

We must be prepared that in the negotiations, both sides can slip into accusations and insults. The leaders of the company begin to recall all the concessions made and reproach them with mistakes and mistakes made. Don't stoop to this. Negotiations are necessary for a calm discussion of the terms of the agreement and the search for a compromise.

How to negotiate a dismissal by agreement of the parties

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

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

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

3. Start negotiations in private. Often a manager wants to gather a whole team for a conversation with an employee. You shouldn't do this. This puts emotional pressure on the employee and personifies your self-doubt.

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

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

5. Don't insist on giving in.. Usually this concerns non-material indulgences that a person asks for: recommendations, a free work schedule and the possibility of parallel search for another place of employment. The same applies to procedures and regulations. Without obvious reasons, do not limit the subordinate in the right to agree on the date of negotiations, issues to be discussed, in the assistance of a representative. Mutual respect and trust only help in negotiations. Be loyal and kind.

6. Look not for economic, but for reputational benefits both for yourself and for the company. The whole team monitors the situation, especially if the dismissal is associated with conflicts. Those who are committed to the organization today will change their minds and start looking for a new job tomorrow.

Dismissal by agreement of the parties is a fairly common practice between employees and employers. And this is a good sign, since reaching an agreement on dismissal is, on the part of the employee, staying on good terms with superiors, getting good recommendations, and for the employer, this is a guarantee of safety from the risk of challenging the legality of the dismissal.

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

Legal regulation

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

That is why personnel officers and dismissed people often have questions regarding such a basis:

the employee leaves or is fired;
whose initiative prevails;
what should be the turnaround time;
what to indicate in the application;
what payments are due, etc.

FOR YOUR INFORMATION! Fearing "pitfalls", employers and employees sometimes prefer dismissal for other reasons, while it is worth getting acquainted with all the advantages and disadvantages of the method, and only then make a final decision. Remember, the devil is far from being as terrible as he is painted.

Good sides of the agreement of the parties for the employee

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

the application can be submitted at any time during the validity of the employment contract;
you do not need a reason for leaving in the application;
the moment of leaving is discussed with the employer, there is no mandatory working off;
you can agree with the employer on the conditions of care - terms, compensation, and other points;
neutral entry in the work book;
an excellent alternative in case of threat of dismissal for guilty behavior;
the experience is not interrupted for another month after leaving on such a basis;
when registering with the Employment Center, the allowance will be higher.

What is the employee's risk?

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

the contract can be terminated in any situation, even on sick leave, on vacation, if the employee belongs to a privileged category;
if the employee changed his mind about quitting, it will no longer be possible to withdraw the application signed by the authorities;
the union does not control such layoffs;
judicial challenge of the actions of the employer is impossible.

Why is the agreement of the parties beneficial to the employer?

The employer often recommends this wording of the reason to the dismissed person, because it is beneficial: the agreement does not provide for the payment of additional severance pay, unless it is prescribed in the collective agreement. It is not necessary to consult with the trade union organization in such dismissals. Another important point is that, by agreement of the parties, a pregnant woman, a minor employee, a worker from a decree and other preferential categories can be fired. Thus, it is convenient to terminate student contracts. And finally, the most important thing is insurance against litigation.

Everything is relative

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

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

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

Whose initiative?

Despite the fact that the term "agreement" implies equality of the parties, the initial initiative necessarily comes from one person. The law does not distinguish between them: it is sufficient to obtain a written notice from one party and the consent of the other (also in writing).

In practice, most often employees write a letter of resignation by agreement of the parties, even if the oral initiative belongs to employers. This makes it easier to keep records and insure yourself against contestation and litigation.

How is dismissal by agreement of the parties

The procedure for such dismissal is as follows:

Oral initiative of any of the parties, negotiating the terms of dismissal, reaching agreement.
A letter of resignation in free form, but must contain:
- Full name of the person leaving;
- a request for termination of labor relations under Article 77 or 78 of the Labor Code of the Russian Federation;
- details of the employment contract;
- estimated departure date;
- date of application;
- applicant's signature.
Visa "agree" from the employer on the application.
Written agreement, signing and registration. It should indicate all the conditions for dismissal, which can no longer be changed unilaterally. Mandatory elements:
- an indication of the reciprocity of the decision;
- details of the contract to be terminated;
- the last day of work of the dismissed person;
- the amount and conditions for calculating compensation (if any);
- details of the identity card of the departing employee;
- name of the organization and TIN of the head;
- signatures of both parties.
Publisher of the order on the basis of a signed agreement, familiarization of the employee under the signature in the usual manner.
Making an entry in the work book “Dismissed by agreement of the parties, clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation” or “The employment contract was terminated by agreement of the parties of clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation”.
On the day of departure - the calculation of the employee's wages, sick leave and compensation for vacation, if it was not used. Issuance of a work book and a copy of the order in the hands of a departing employee.

Possible compensation

If the amount of compensation upon dismissal by agreement of the parties is not written out in the employment contract, its appointment is the good will of the employer. But the agreement is for that and an agreement that it is possible to come to a mutual consensus on any issues, including the amount of severance payments.

The law does not limit the possible payments upon dismissal in any way, therefore, theoretically, an employee can ask the employer for any amount. Depending on how profitable it is for the latter to release the employee, a “trade” may occur, after which the parties will agree on an acceptable amount. Most often, it does not exceed the layoffs - three (maximum five) standard salaries.

In order to be able to claim the “output” amount, you need to ask the employer about it in writing. To do this, the departing writes an application with a request for the appointment of compensation to him. The following details are required in the application:

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

The employer may not satisfy the request for the claimed amount of compensation in whole or in part. The signing of the statement will take place only after reaching a consensus.

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

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

calculation of wages for hours worked;
compensation for unused vacation days;
allowances and bonuses, if they relied on the employment contract.