Dismissal by agreement of the parties, which gives the employee. To help the Labor Code: how is the dismissal by agreement of the parties. Format: simple written form

The best way graduation labor relations for the employer - 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

Labor Code offers approximately 40 options for ending 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% authorized capital owned by 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

1. 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).
2. 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).
3. 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, terminate the agreement and accept reverse solution The employee is not eligible because this document takes effect 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

1. 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.
2. 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.
3. 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

1. 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.
2. 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. Pick up the right words and the tactics of behavior will help the article electronic journal"General director".

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 acceptable to leave the resolution “I do not mind” 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 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, unlike the agreement, is approved by the Decree of the State Committee Russian Federation according to statistics No. 1 of January 5, 2004.

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

Step 4. 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 the appropriate entry in 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 the payment of compensation is provided for by collective, labor or additional agreement between the parties.

If, for some reason, an employee cannot receive cash 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 court.

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 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 internal documents at the request of the worker.

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.

AT 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, an agreement is formed a few days before 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 labor 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 when drafting a termination 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.

Amount wages for nine months (in this case, 27 thousand rubles) we divide 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. Upon termination of the employment relationship between the parties 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 their dismissal, 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. technical side while not being 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 liability 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.

All the more wrong when the rumors about the upcoming dismissal come from 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.. This usually refers to non-material indulgences that a person asks for: recommendations, free schedule work 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.

In this article, I want to talk in detail about dismissal by agreement of the parties, about the reasons and conditions for this type of dismissal. I will consider in detail the procedure for conducting the dismissal procedure by agreement of the parties and show what the agreement of the parties should contain upon dismissal.

The Labor Code (Labor Code of the Russian Federation) has about forty options for dismissing employees. But in the first place in the code put dismissal by agreement of the parties. This is due to the fact that the principle of freedom of contract is one of the main ones not only for labor law but also for the entire legal system as a whole.

However, as in any legal matter, there are some pitfalls here. This article is devoted to what the employee and the employer should know about this type of dismissal.

○ Dismissal by agreement of the parties.

✔ What does the Labor Code of the Russian Federation say about such a dismissal?

With regard to this type of dismissal, the Labor Code of the Russian Federation is extremely laconic. The entire article 78, which deals with dismissal by agreement of the parties, consists of exactly one phrase, stating that the employment contract can be terminated in this way at any time.

The only link to this article elsewhere in the Labor Code of the Russian Federation - this is Art. 349.4, according to which compensation, severance pay and other payments in case of such dismissal are not made for heads, deputies and chief accountants of municipal and public institutions, corporations and companies, as well as companies where more than half of the authorized capital belongs to the state or municipalities.

In fact, this means that with regard to dismissal by agreement of the parties employment contract the legislation leaves everything to the discretion of all the same parties, allowing them to independently determine the conditions for dismissal in the agreement.

✔ What could be the reasons?

The reasons why employees and employers go for this rather exotic form of layoffs can vary. As a rule, for an employee, such reasons will be:

• The desire to receive severance pay or other payments that may be provided for by the employment contract.
• In order not to be dismissed "under the article" - that is, for violation of discipline, the Labor Code of the Russian Federation or the regulations of the enterprise.
• Psychological pressure from the management of the organization (although usually in these cases the employee is required to quit on own will).

In turn, the dismissal by agreement of the parties is beneficial for the employer:

• If you need to get rid of a disloyal employee, even by paying him some amount, if he insists on it.
• If you do not want to follow the normal procedure for downsizing.
• If you need to fire a benefit worker who cannot be fired in the usual way.

The latter, it must be said, is completely illegal, and if the employee then goes to court or the prosecutor's office, he may well achieve reinstatement and payment for forced absenteeism.

As a rule, it is the employer who initiates the dismissal by agreement of the parties. An employee who does not want to continue labor activity at an enterprise, where it is much easier to quit of your own free will and persuade the management to fire him before the expiration of the two-week period of working out. However, the law does not prohibit the employee from applying to the employer with such an initiative.

✔ Necessary conditions for dismissal by agreement.

The most important of the conditions under which dismissal is carried out by agreement of the parties is its full voluntariness. By law, neither party has the right to force the other to enter into such an agreement.

Upon dismissal of his own free will, the employer has the right only to demand work for two weeks but cannot prevent an employee from resigning. When dismissed due to a reduction in staff or for committing an offense on the contrary, the employee cannot prevent the management of the enterprise from terminating the employment contract.

But if we are talking about the dismissal under Art. 78 of the Labor Code of the Russian Federation, both the employee and the employer have the right to vote, and without their mutual consent, dismissal cannot take place.

Otherwise, the law does not regulate the conditions under which such dismissal takes place. The parties may agree on a severance pay, but it is not mandatory.

Also, the employee and the employer can agree that some time may pass between the consent to dismissal and the dismissal order itself, but they can terminate the employment contract immediately.

✔ Instructions: the procedure and procedure for dismissal by agreement.

Since dismissal by agreement of the parties requires the consent of the parties, the dismissal procedure begins with the fact that the employer or employee takes the initiative to terminate the employment contract.

The law does not define who exactly can become the initiator, but sets a condition: all changes and additional agreements to the labor contract must be made in writing. Agreement on termination of the contract, this applies in full.

1. And so, it all starts with the fact that someone, an employee or an employer, in writing proposes to the other party to terminate the employment contract. For the worker it will be statement, dismissal by agreement of the parties for the employer begins with a business letter to the employee. The form of the application or letter is not established by law, the main thing is that the will of the party be expressed quite clearly. The next step is to express the consent of the other party. Again, it takes written form- but it is acceptable that it be expressed in putting on the original document the inscription "I agree", the date and signature of the other party.
2. With The next step is to draw up the actual termination agreement. What should be included in it will be discussed below. We only note that the terms of the agreement are highly dependent on the specific circumstances and working conditions of the dismissed employee.
3. P Once an agreement has been concluded, it can only be changed in the same manner in which it was concluded. The employee cannot stop working ahead of time, but the employer does not have the right to dismiss the departing employee earlier than specified in the agreement.
   This requirement not only directly follows from the law, but is also confirmed by the opinion of the Supreme Court of the Russian Federation (Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004), as well as the Constitutional Court of the Russian Federation (Determination No. ). In addition, unlike dismissal of one's own free will, upon dismissal by agreement of the parties, the employee cannot change his mind and withdraw the application - this requires that the employer is also not opposed to keeping the employment contract in effect.
   Therefore, when concluding an agreement, the employee and the employer must take the most responsible approach to determining its conditions.
4. AT the day specified in the agreement, the employer issues a dismissal order. Unlike the agreement, the form of the order is fixed by the Decree of the State Statistics Committee of Russia No. 1 of 01/05/2004. In this case, the unified form of the order to dismiss T-8 is used. According to federal law“On Accounting”, since 2012, organizations can create their own unified forms documentation, but usually most employers use the T-8 form.
5. P after the dismissal order is issued, the employee familiarizes himself with its contents against signature, and an appropriate entry is made in the work book. Then the worker is final settlement, he is given a work book in his hands - and after that the dismissal is considered to have taken place, and the employment relationship between the employee and the employer is completely terminated.

✔ Compensation and payments.

As a rule, upon dismissal by agreement of the parties, the question arises of additional payments to the employee.

However, the law does not provide for the obligation of the employer to pay compensation to the dismissed employee in this case.

However, no one forbids, when concluding a dismissal agreement, the parties to discuss additional payments due to the employee.

Moreover, since such an agreement can only be concluded by mutual agreement, the employee has the right to set such a condition and demand to pay him a severance pay.

All other payments upon dismissal by agreement of the parties are absolutely the same as upon dismissal for other reasons. The employee is entitled to:

• Salary for days worked per month.
• Compensation for unused vacation in accordance with Art. 127 of the Labor Code of the Russian Federation (including for previous years, if the employee was not on vacation).
  However, if the employee leaves before the end of the year for which he already received vacation, the paid vacation pay is withheld from the employee in proportion to the time actually worked.

○ What entry is made in the work book?

Upon dismissal by agreement of the parties, a record of dismissal is made in the work book.

At the same time, according to the instructions on filling out work books (approved by the Decree of the Ministry of Labor of the Russian Federation No. 69 of October 10, 2003), the entry should contain a reference to the general article on dismissal (Article 77 of the Labor Code of the Russian Federation), and not to Art. 78 of the Labor Code of the Russian Federation, which specifically refers to dismissal by agreement of the parties.

The entry must contain an indication of the reason for dismissal and should not contain abbreviations. Therefore, the entry in the work book should look something like this: "Fired by agreement of the parties, part 1 of article 77 of the Labor Code of the Russian Federation."

○ What mistakes do employers make?

Dismissal by agreement of the parties is a rather rare procedure, so many employers make mistakes when concluding it. Consider the most common:

• The employer requires the employee to write a letter of resignation without fail. In fact, as already mentioned, this is not necessary: ​​the enterprise management can also take the initiative.
• The employer is trying to unilaterally change the conditions of dismissal: for example, he demands to work a few more days, submit a report, or tries to force the employee to do something else that was not mentioned in the agreement. This is absolutely illegal, the employee here will have the right to apply to the regulatory and supervisory authorities - and the employer risks getting a fine.
• Some employers frankly confuse dismissal of their own free will and by agreement of the parties. In this case, one can observe the following picture: the employee submits an application with a request to consider the issue of concluding a dismissal agreement, and the head of the enterprise puts a visa: “Dismiss at will.” In this case, if the employee then decides to protest the dismissal, he may well win the case in court and receive compensation for forced absenteeism. Therefore, the employer must always clarify what exactly the employee is offering: to quit of his own free will or to conclude an agreement to terminate the employment contract.

○ What should the employee pay attention to?

An employee leaving by agreement of the parties must not forget about some circumstances:

1. E If the initiative to dismiss comes from the employer, you can safely demand severance pay. At the same time, the amount is not limited either by the Labor Code of the Russian Federation or by any other act.
2. P When dismissed by agreement of the parties, working off is not required. You can quit any day, without waiting for a two-week period.
3. H o unlike dismissal of his own free will, the employee cannot withdraw the application and continue working. If the management does not agree, the dismissal will take place in any case.
4. With the notice of dismissal must be in writing - and it is highly desirable that two copies be drawn up. One of them the employee has the right to pick up. This will come in handy in case of possible disputes in the future.
5. H some employers prefer to prescribe possible conditions Terminations are written in the employment contract itself. This is not prohibited, but in this case, upon dismissal, you should read the contract as carefully as possible.
6. AT The termination agreement must clearly indicate the date of termination of the employment contract. After it, the employee has the right to stop working, however, to leave work ahead of time, the employer will be able to dismiss the employee not by agreement, but for absenteeism.
7. B The weather and other circumstances preventing work are not reflected in the date of dismissal. If at this point the employee was on sick leave, he will still be fired. The only difference is that in this case the work book will be issued to him after recovery or, with his consent, sent by mail.
8. H Finally, an entry must be made in the work book indicating paragraph 1 of Art. 77 of the Labor Code of the Russian Federation.

What is the basis for dismissal by agreement of the parties? What is the difference from dismissal at the initiative of the employee? Can the agreement be revoked? In what order can it be changed? What is the procedure for dismissal by agreement of the parties? Should the condition on the payment of severance pay be established by documents other than the agreement?

By virtue of Art. 78 of the Labor Code of the Russian Federation may be terminated at any time by agreement of its parties. And this is the only article of the Labor Code devoted to this ground for the dismissal of an employee - on the one hand, the most universal, and on the other, the most "insidious", primarily because its clear procedure has not been established. Nevertheless, guided by established practice (including judicial practice), at the moment it is possible to determine the basic rules and procedure for dismissal by agreement of the parties, which we will discuss in the article.

Agreement rules.

By and large, the procedure for dismissal by agreement of the parties is similar to that at the initiative of the employee, but there are still several differences. First of all, it is necessary to determine which document is the basis for dismissal. Article 78 of the Labor Code of the Russian Federation simply states that this is an agreement of the parties, its form is not indicated. That is, it can presumably be concluded orally.

In fact, so that disputes do not arise between the employee and the employer regarding such dismissal (they are not uncommon), the agreement, of course, must be in writing. It can actually look like an agreement, which is preferable, or like a statement from the employee if he initiated the dismissal. Moreover, unlike the employee's statement of dismissal of his own free will, this statement must contain:

• the reason for the termination of employment relations - by agreement of the parties;
• desired date of dismissal;
• the amount of compensation or other conditions of dismissal (if any);
• signatures of the employee and employer.

Let's present a sample statement that can be considered as an agreement.

I don't mind. Director

HR Specialist Prikazova L. In MBUK "Central Library"

issue a dismissal on 01/20/2017. M. S. Knizhkina

To the accountant Kopeikina O. A. from the librarian

01/20/2017 to calculate L. M. Forlyarova

in accordance with labor

legislation.

01/18/2017, Knizhkina

Statement

I ask you to terminate the employment contract with me by agreement of the parties on the basis of clause 1, part 1, art. 77 of the Labor Code of the Russian Federation on January 20, 2017.

Forlyarova /L. M. Forlyarova/

If the employer agrees to dismissal by agreement of the parties, but he is not satisfied with the conditions specified in the application, for example, the date of dismissal, it is better to try to agree on them and reflect them in a separate agreement.

So, if the employer initiates the termination of the contract by agreement of the parties, he must send the employee a written proposal to conclude an agreement. Here is an example of such a proposal.

Municipal state-financed organization culture
"Central Library"

(MBUK "Central Library")

01/18/2017 To the librarian

ref. No. 3/k L. M. Forlyarova

OFFER

about termination of the employment contract

Dear Larisa Mikhailovna!

I ask you to consider the issue of terminating your employment contract No. 12/2014 dated 10/12/2014 in accordance with clause 1, part 1, art. 77 of the Labor Code of the Russian Federation by agreement of the parties on January 25, 2017 with payment of compensation in the amount of one salary. I ask you to report your decision in writing within three days from the date of receipt of this proposal.

Director of Knizhkina M.S. Knizhkina

Offer received. Forlyarova /L. M. Forlyarova/

If the employee agrees to the dismissal, he and the employer agree on the terms of dismissal and conclude an agreement. It must also indicate the grounds for termination of employment, the date and other conditions of dismissal.

The agreement is drawn up in two copies, signed by the employee and the employer, and one copy is handed over to the employee against signature. Let's give an example.

Agreement

about termination of the employment contract

dated 12.10.2014 No. 12/2014

Voronezh 20.01.2017

1. In accordance with Article 78 of the Labor Code of the Russian Federation, the Employee and the Employer agreed to terminate the employment contract dated 10/12/2014 No. 12/2014 by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation) on January 25, 2017.

3. On the last working day of the Employee, the Employer undertakes to issue a completed work book and make a full settlement with him.

4. On the last working day, the Employer undertakes to pay the Employee the wages due to him, compensation for unused vacations, additional monetary compensation in the amount of one salary, and the Employee undertakes to accept the specified amounts.

5. The parties have no mutual claims to each other.

6. This Agreement is made in two copies, having equal legal force, one for each of the Parties.

Employer: Employee:

20.01.2017 20.01.2017

We emphasize that the agreement on the part of the employer must be signed either by the head himself or by a person authorized by him, otherwise the court will recognize the dismissal as illegal.

In addition to observing the form of the agreement, the employer should strictly observe one more rule: it is unacceptable to force the employee to conclude an agreement to terminate the employment contract, since the main condition for such dismissal is the mutual voluntary will of the parties. And if the dismissed employee proves in court that he entered into such an agreement under the compulsion of the employer, he will be reinstated.

Cancellation policy.

The main difference between dismissal by agreement of the parties from dismissal at the request of the employee is the impossibility of revoking the agreement. We recall that according to Art. 80 of the Labor Code of the Russian Federation, before the expiration of the termination notice, the employee has the right to withdraw his application at any time, unless another employee is invited in writing to take his place.

The employer cannot refuse to fulfill the agreement or force the employee to continue working. By virtue of paragraph 20 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, if before dismissal one of the parties wants to cancel the agreement or change the term and grounds for dismissal, this cannot be done without the consent of the other sides. In such a case, the parties must enter into a new agreement that cancels the previous one in whole or in part. (We give an example on page .)

And here you should pay attention to the fact that you can terminate the employment contract by agreement of the parties with any employee: with a woman who has a child under the age of 3 years; with a single mother raising a disabled child under the age of 18 or a young child (under the age of 14); with another person raising these children without a mother; with a parent (other legal representative of the child) who is the sole breadwinner of a disabled child under the age of 18 or the sole breadwinner of a child under the age of 3 in a family raising 3 or more young children, if the other parent (other legal representative of the child) is not in labor relations; as well as pregnant women.

None of the employees of the listed categories, with the exception of pregnant women, can unilaterally refuse to fulfill the agreement. This conclusion follows from the Ruling of the RF Armed Forces dated 09/05/2014 No. 37-KG14-4, which states that the guarantee in the form of a ban on the dismissal of a pregnant woman at the initiative of the employer, provided for in Part 1 of Art. 261 of the Labor Code of the Russian Federation, is also applicable to relations arising from the termination of an employment contract by agreement of the parties. Moreover, this rule also applies if the employee did not know about her pregnancy at the time of signing the agreement.

If at the time of the annulment of the agreement the employer has already issued a dismissal order, it must be canceled by another order.

Agreement

on the annulment of the agreement on termination of the employment contract

dated 12.10.2014 No. 12/2014

Voronezh 01/23/2017

The Municipal Budgetary Institution of Culture "Central Library" represented by the director Marina Stanislavovna Knizhkina, acting on the basis of the Charter, hereinafter referred to as the Employer, on the one hand, and Forlyarova Larisa Mikhailovna, hereinafter referred to as the Worker, on the other hand, jointly referred to as the Parties, have concluded this agreement about the following.

1. The parties have come to an agreement to cancel the agreement dated 01/20/2017 on termination of the employment contract dated 10/12/2014 No. 12/2014.

2. This Agreement is made in two copies, having equal legal force, one for each of the Parties.

Employer: Employee:

Director Knizhkin /M. S. Knizhkina / Formulyarova /L. M. Forlyarova/

23.01.2017 23.01.2017

A copy of the agreement has been received. Forlyarova /L. M. Forlyarova/

Dismissal rules.

So, on the basis of an agreement, the employer issues an order. The order reflects the grounds for dismissal and the details of the agreement. The employee must be familiar with the order under the signature. The employee's refusal to sign the order cannot cancel the dismissal if an agreement has been concluded between the parties. Therefore, by virtue of Art. 84.1 of the Labor Code of the Russian Federation, in the case when the order to terminate the employment relationship cannot be brought to the attention of the employee or the employee refuses to read it under his signature, an appropriate entry is made on the order.

On the last day of work, it is issued to the dismissed person. If he refuses to receive it, the employer is obliged to send him a notification about the need to appear for a work book or agree to send it by mail. On the same last working day, the final settlement is made with the dismissed person, in particular, the payments provided for by the agreement are made.

note

Article 178 of the Labor Code of the Russian Federation establishes cases of payment of severance pay, in particular in case of staff reduction, conscription. At the same time, it was found that labor or collective agreement other cases of payment of severance pay may be envisaged, as well as their increased amounts.

Thus, if the employment or collective agreement provides for the payment of severance pay or compensation in cases of termination of the employment contract by agreement of the parties, then the employer is obliged to pay them.

When an employer refuses to pay compensation or severance pay, and their payment is established only by agreement, the opinions of judges differ. Some believe that such a refusal is lawful, since the payment of benefits or compensation, in addition to the agreement, should be provided for by an employment or collective agreement, others - that the refusal is unlawful, since the agreement on termination of the employment contract is part of it and may contain conditions that are not provided for by the contract.

In any case, when paying compensation to the employer, the provisions of Art. 349.3 of the Labor Code of the Russian Federation, which establishes a limit on the amount of severance benefits, compensations and other payments in connection with the termination of employment contracts for certain categories workers.

In particular, in agreements on termination of employment contracts in accordance with Art. 78 of the Labor Code of the Russian Federation with the heads of the organization, their deputies, chief accountants, it is not allowed to include conditions on the payment of severance pay, compensation and (or) the appointment of any other payments to these employees. At the same time, if the payment of compensations and severance benefits is provided for by an employment or collective agreement, they are paid, but their amount cannot exceed three times the average monthly earnings of these employees.

Question

If, before the date of dismissal, according to the agreement, the employee grossly violated labor discipline or changed his mind and wrote a letter of resignation of his own free will, on what basis can we fire him?

If the employer manages to complete the procedure for bringing to disciplinary responsibility before the date of dismissal specified in the agreement, then the employee can be dismissed on the appropriate grounds of Art. 81 of the Labor Code of the Russian Federation. As for dismissal of one's own free will, if the date indicated in the letter of resignation precedes the date indicated in another statement, then the employee will have to be dismissed under paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation after the expiration of the warning period. If not, then the employee is dismissed by agreement of the parties.

Question

Should we fire an employee by agreement of the parties if he is on sick leave?

If the employee fell ill on the date of termination of the employment contract, he still needs to be fired under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation, since this is not a dismissal at the initiative of the employer. Moreover, if you do not formalize the dismissal by the date specified in the agreement, the agreements to terminate the employment relationship are canceled automatically.

Summing up, we highlight the basic rules for dismissal by agreement of the parties:

1. The agreement must be concluded in writing, indicating the grounds for dismissal, the date of dismissal, the amount of compensation, if any (other conditions), and signed by the employee and the employer (other authorized employee).

2. The agreement is concluded only by mutual voluntary will of the parties.

3. The terms of the agreement must not contradict the provisions of the law.

4. The agreement cannot be revoked by the employee (unless the employee is pregnant), amended or canceled unilaterally - only by mutual agreement of the employee and the employer by concluding a separate agreement.

5. Upon dismissal, the dismissal procedure must be followed and the terms of the agreement must be met.

6. If an employee, having signed an agreement on termination of an employment contract, refuses to quit (did not sign an order, did not receive a work book), he is subject to dismissal and such dismissal is lawful.

7. If the employee is not fired on the day specified in the agreement, it will automatically be cancelled.

8. Before the date of dismissal, the employee may be dismissed on other grounds.

Before signing an agreement with the owner when terminating an employment contract, you need to know what such a procedure means and what consequences it can entail. Dismissal by agreement of the parties is a fairly peaceful basis for terminating an employment contract, which allows you to settle the end of mutual obligations between the employee and the employer.

This procedure is used in different situations and does not adversely affect the reputation of the employee and the enterprise. Dismissal on this basis allows you to terminate the relationship of the parties in as soon as possible and agree on conditions that will suit both the employer and the employee. This procedure is practiced when terminating an employment contract with employees who cannot be fired for other reasons without violating labor law. The correct sequence of actions in this process will minimize the risk of mutual claims, litigation and other unpleasant consequences.

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Legal basis and features of the type of dismissal

The Labor Code of the Russian Federation in article 78 gives the concept of dismissal on this basis. The legislation regulates the freedom of such relations, therefore, it is possible to terminate an employment contract by mutual agreement at any time, regardless of the period for which it was concluded. For the conclusion of an agreement, the will of both parties is required, but in most cases one person acts as the initiator.

To terminate the contract on this basis, it is only mandatory that the employee and the management of the enterprise agree on the main conditions. They have the right not to explain the motivation for this decision, since the legislation does not contain such requirements.

This procedure allows the parties to independently set the date of dismissal and conditions for participants in labor relations. The Labor Code provides enough freedom of action in this matter. He also leaves the procedure for concluding an agreement to the discretion of the employee and the employer, stipulating only general aspects of the procedure.

The legislation regarding dismissal on this basis contains only one imperative norm. It consists in prohibiting the payment of severance pay to general directors and their deputies, as well as chief accountants of enterprises, in authorized capital which the state's share is not less than 50 percent.

Features of dismissal by agreement of the parties in Russia are as follows:

• An already signed agreement can be changed only at the mutual desire of the parties. This is due to the bilateral nature of this dismissal. This feature is the main difference between this procedure and the dismissal of an employee of his own free will. This means that the employee will not be able to change their mind and cancel the agreement on their own.
• It allows you to terminate mutual obligations with an employee who is problematic to dismiss for other reasons.
• Allows you to independently set the date of resignation and exclude a two-week working off.
• It is rather problematic to challenge an agreement drawn up in accordance with the requirements of the law.
• Allows you to terminate the student contract.

Same this procedure allows the employee, upon agreement with the employer, to avoid dismissal on the grounds that may affect the reputation in the future.

Positive and negative sides

An employee may benefit from dismissal on this basis for the following reasons:

• No obligation to justify your decision.
• There is no need to notify the employer in advance. This means you can quit in one day.
• Possibility to exclude the obligation of two-week working off.
• The ability to use this basis in the presence of guilt on the part of the employee by agreement with the management.
• By agreement, you can leave yourself time to look for a new job.
• In case of liquidation of mutual obligations on this basis, the continuity of service is increased by a month.
• Opportunity to receive higher unemployment benefits.
• This basis does not negatively affect the reputation of the employee. On the contrary, in today's conditions new employer may consider the employee more loyal, and therefore able to meet halfway.

In spite of a large number of positive aspects, there are also disadvantages of this procedure:

• Cannot be canceled unilaterally, which means there is no way to change your decision to leave once the agreement is signed.
• Lack of union control.
• The absence of the obligation of the enterprise to pay severance pay, unless it is established by the terms of the contract for dismissal on this basis.
• It is quite difficult to challenge the agreement even if there is pressure from the employer, since it is very difficult to prove such influence on the employee in a lawsuit.

For the employer, there are the following positive aspects:

• The ability to terminate obligations with an objectionable employee without tangible consequences. For the employer, this also means the possibility of reducing the risk of valuable information being leaked when an employee who is entrusted with trade secrets is fired.
• Possibility to carry out the procedure without explanation of the reason.
• The ability to set the term and conditions of dismissal in agreement with the employee.
• Lack of trade union oversight of dismissals on this basis.
• The ability to terminate relations with an employee whose dismissal is problematic or impossible for other reasons.
• Lack of government oversight labor inspectorate upon dismissal of a minor.
• A simple procedure for the liquidation of labor relations.
• The ability to simplify the downsizing procedure using this basis, by agreement with the employee.

A negative point for the employer will be the possibility of reinstating a pregnant woman who did not know about her situation at the time of expressing her consent to quit and signing the agreement.

The procedure for the parties to labor relations upon dismissal

The legislation does not establish a special procedure for dismissal on this basis, but there is an established practice.

If the parties wish to terminate the employment contract, the parties must act as follows:

1. Notice to the other party.

   The employer or employee notifies the other participant of the desire to enter into such an agreement. It is advisable to formalize this stage with a written notice, in which significant points should be indicated, such as the date of dismissal, conditions and a declaration of will aimed at terminating mutual obligations.

2. Agreement of conditions.

   The parties agree on all conditions of dismissal.

3. Drawing up an agreement.

   The legislation does not contain special requirements for its form, therefore, it is practiced both in the form of a written document and in the form of an employee's application with a resolution of the head.

4. Issuing a notice of dismissal.
5. Fulfillment of all conditions of the agreement preceding the moment of termination of the employment contract.

   The employee and the employer fulfill all the terms of the agreement on which the agreement was reached. Such conditions may include the transfer of cases to another employee.

6. Registration of a work book.

   On the day of dismissal, an appropriate entry is made in the work book of the employee.

7. Payment.

   The employer makes a full settlement with the dismissed employee on his last working day.

At the same time, the procedure for dismissal of certain categories of workers may have its own characteristics. For example, upon termination of mutual obligations with CEO a meeting of the founders should be held, during which a decision on this issue should be adopted and recorded in a protocol.

Employee compensation payments

Before dismissal on this basis, it will be useful for an employee to know what they must pay for the termination of the contract. He can count on the following compensation:

• For days of unused vacation.
• Wages for each day, including the last.
• For termination of the contract, if such payments are provided for in it.

Important! If the parties establish any payments directly in the agreement itself, this entails the obligation of the employer to make them. The agreement cannot change the provisions of the main contract, so the employee has the right to rely only on receiving the funds specified in the original document. If the parties wish to establish an obligation to pay compensation, they should conclude that additional agreement, which will be an annex to the main contract.

The Tax Code allows you not to withhold personal income tax from all types of payments, with the exception of compensation for days of unused vacation. However this rule operates only within three average wages. All money transfers over this limit are subject to taxation in the general manner at a rate of 13 percent.

The employer is obliged to make a full settlement with the employee on the last day of the employment contract. If this day falls on a day off, the management of the enterprise needs to wait for the employee's request to pay the due funds, after which the calculation is made no later than the next day.

Documentation of the procedure

The parties should document the entire process to avoid potential litigation in the future. The employee, acting as the initiator of the procedure, can issue an expression of will in the form of a statement or a written notice to the employer. The legislation does not impose any specific requirements both on the form of such notification and on the form of the agreement itself.

The agreement may reflect any conditions within the framework of normative acts on which the parties have reached an agreement.

The text of the document can be drawn up in any form, but, based on practice, the following points should be indicated in it:

• The date the document was created.
• Party data.
• Employment contract details.
• Grounds for termination of relations with reference to the article and its part.
• The date on which the employee will be fired.
• terms agreed by the parties.

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