What does the agreement between the parties look like upon dismissal? Dismissal by agreement of the parties. Sample agreement. Good aspects of the agreement between the parties for the employee
Dismissal by agreement is always the most profitable option for a subordinate and his boss who could not find common language when carrying out work activities, and want to complete the joint labor activity by mutual consent. In this case, the employer is obliged to pay the employee in full, as well as make additional payments to him, if this is provided for in the termination agreement itself. labor relations or other regulations organizations.
Mutual agreement
It is possible to end the employment relationship between a subordinate and his boss by mutual agreement only if both parties wish to do so. In the event that one of the parties does not agree to conclude such an agreement, its preparation will be impossible, and otherwise it will even be illegal.
Dismissal of a person on this basis also provides for corresponding payments. By agreement of the parties upon dismissal, which was agreed upon between the two parties, the employer pays his subordinate:
- money earned by the latter during the entire period of work;
- compensation for vacation if the employee was not on vacation;
- severance pay, if it is specified in the employment or collective agreement and is binding.
Additional payment
A mutual agreement on the dismissal of an employee is very good in that, along with all the payments due to the employee, the employer can provide in such an agreement an additional payment upon dismissal by mutual agreement.
Article 178 of the Labor Code provides for severance pay not only for those persons who leave the organization due to layoffs or liquidation, but also in cases where such monetary compensation is provided for by labor or collective agreement. TO this basis dismissal by agreement of the parties is also directly related to the payment of compensation, which is established by the employer independently or can be agreed upon even with the employee, so that the latter does not have any financial claims against the former employer.
Formalization of the agreement
Does not exist in the Labor Code a certain sample agreements on mutual termination of employment relations. Therefore, make up this agreement can be done in absolutely different ways, the main thing is that it be drawn up in writing and in duplicate, and in compliance with all necessary conditions. A sample of such an agreement can be found below.
On labor relations No. ____ dated ___ year
Tensnib LLC, represented by General Director _______, acting on the basis of a Power of Attorney, hereinafter referred to as “Employer” and _______, hereinafter referred to as “Employee”, have entered into this Agreement as stated below:
1. Terminate employment contract No. ___ of the year, on the basis of clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation.
2. Last working day ______.
3. The employer undertakes:
- pay wages for the entire period of work and monetary remuneration for vacation that was not used;
- pay a compensation benefit in the amount of 15,000 rubles;
- pay all the money to the employee on the last day of his work, and also hand over the employment record with a note of dismissal by mutual agreement.
4. By this agreement, the parties confirm the absence of mutual claims, which is certified by its signing.
5. The mutual agreement is drawn up in two copies, which each party receives in hand.
6. Signatures of the parties.
The main thing that an employee needs to know about the termination of the employment relationship in this case is that dismissal by agreement of the parties with payment of compensation is an agreement in which all points are determined by the parties independently, including the amount of payment of the compensation itself, which is not mandatory.
Positive aspects of dismissal by agreement
Everywhere has its pros and cons, but in a situation involving the termination of an employment relationship by mutual agreement, there are quite a lot of positive aspects.
For the employee, the advantages are as follows:
- the length of service will be considered continuous for a whole month from the date of dismissal;
- when registering with the employment authorities, the benefit will be slightly larger than when dismissing on the employee’s own initiative;
- in the event of a conflict with the employer, it is possible to disperse peacefully without mutual reproaches and disagreements.
There are also benefits for the employer:
- no approval is required from the trade union or the state labor inspectorate if the employee is a minor, and it is also possible to determine the deadline for dismissing a subordinate independently;
- the amount of payments upon dismissal by agreement of the parties is established by the employer independently, with the exception of mandatory amounts due to the employee;
- the most convenient way in the case when it is necessary to break up with an unnecessary employee and avoid unpleasant consequences.
Payment terms
Even in the case when the employment relationship is terminated due to the signing of an agreement on mutual consent of the two parties and sealed with the signatures of the subordinate and the employer, the latter must not forget that all cash, due to the employee, must be paid within the time limits specified by law.
Article 140 of the Labor Code provides for the payment of all money due to the employee on the last day of his work activity. of this employer. Accordingly, the same rule applies to the calculation of payments upon dismissal by agreement of the parties, which means that on the last day of the employee’s work activity specified in such an agreement, the employer must pay all the money he last earned.
If the employee was not on vacation, he is entitled to a cash payment for the vacation that he did not use.
Required payments
In the event of termination of the employment relationship, by agreement between the parties, the employer is obliged to pay the subordinate:
- salary for all time worked by the employee;
- compensation for vacation that was not used;
- severance pay, but only if this is regulated by an employment or collective agreement, which states that compensation payments upon dismissal by agreement of the parties are necessary and subject to execution by the employer.
Benefit amount
Citizens dismissed from the organization by agreement of the parties may be paid the appropriate severance pay, but only if this is specified in the employee’s employment contract or in the collective agreement of the entire organization. Moreover, the amount of severance pay may be completely different and not depend on the amount of other mandatory payments due to the employee upon his dismissal.
Additional payments to an employee upon dismissal by agreement of the parties are mainly the initiative of the employer himself, and it is made so that the employee retains good impression about the former boss and did not speak badly about him.
The amount of severance pay can be:
- fixed;
- in the amount of salary;
- made up of average wages.
In this case, what will matter is not even the amount itself, but the very fact of payment of benefits upon dismissal by agreement of the parties, which in the future will allow the employer not to lose its reputation and remain honest in the face of new employees.
Benefit tax
Taxation of severance pay is not provided for by law only if its amount does not exceed three times the employee’s monthly earnings, otherwise the tax must be paid by the employer. Therefore, if the additional payment upon dismissal by agreement of the parties is a significantly larger amount than the monthly salary for three months, then personal income tax is subject to payment.
Algorithm of actions upon dismissal by mutual agreement
Correct and consistent dismissal of an employee by agreement of the parties is, first of all, time saving for the employee and employer who do not want to continue working together. Therefore, you need to do everything accurately, correctly and quickly.
First, you need to draw up the agreement itself on the termination of the labor relationship between the parties, including all the necessary conditions that will suit each party. An important question here is what kind of dismissal payments, by agreement of the parties, will be due to the employee upon termination of the employment relationship with him. To complete this procedure more quickly, this issue must be addressed first.
An agreement on dismissal by agreement of the parties can also be reached during an oral conversation, by writing an application by the employee addressed to the employer indicating the date of dismissal, after which the boss will put his signature on it and give it to the personnel department for execution. After this, an order will be written and an entry will be made in the labor record.
When issuing an order, the basis for dismissing an employee should only be a mutual agreement of the two parties; it would be illegal to specify other grounds in the order. That is why the employee, before signing the order, must read it carefully and then sign it.
All due payments upon dismissal by agreement of the parties, they are stated only in the agreement itself; their mention in the order is not allowed. The work book should contain the following entry: “Dismissed by agreement of the two parties, in accordance with clause 1 of part 1 of Article 77 of the Labor Code of the Russian Federation,” indicating the order number and the date of completion of the work record, which is confirmed by the signature of a personnel specialist and the seal of the organization.
Only after compliance with all the described formalities can it be considered this procedure dismissal is fully formalized.
Appealing agreements
After, by mutual agreement of the parties, the action employment contract completed, and all controversial issues between the employee and his former boss are resolved, situations often occur when, after a short time, many of the former employees begin to think that their dismissal was illegal, and this is even despite the fact that they themselves gave your consent to this.
Many of these citizens are dissatisfied precisely because payments by agreement of the parties upon dismissal on terms mutually beneficial for both parties turned out to be not as large as we would like, and in different ways they are trying to put pressure on the former employer to pay more money than has already been received. Based on this, appeals to the court begin.
An example from judicial practice
The employee suggested that the employer end their employment relationship because he was not satisfied with the salary and had already found another job. workplace, especially since we haven’t been getting along with our boss for a long time interpersonal relationships, to which the employer agreed. The employer drew up an agreement that stated the conditions under which dismissal would take place by agreement of the parties, what payments were due to the employee in this case, the latter agreed to everything and signed this agreement. As a result, it turned out that his employment contract stated a condition that upon dismissal, by agreement of the parties, he should be paid compensation in the amount of 15,000 rubles and no more, but the former boss paid only 11,000, with which the former employee agreed.
At the court hearing, the dismissed employee stated that he was forced to sign this agreement or was threatened with dismissal “under the article”, because the boss had long ago appointed another person to take his place, and persistently proved the fact that the dismissal was illegal. He also asked the court to reinstate him at work and to recover additional money from the employer to compensate him for moral damage.
The court, having examined the case materials and the agreement itself, having heard the testimony of witnesses, came to the conclusion that there were no violations of the rules labor law there was no action by the employer, all payments by agreement of the parties upon dismissal of the said employee were made to him, including the payment of benefits due under the agreement concluded with the former boss. Therefore, at the court hearing, the said citizen’s claims were completely denied.
The court also pointed out the fact that all employees on mutually beneficial terms are carried out by the employer on the basis of the law, which provides for the mandatory payment of wages and compensation for vacation and does not take into account in this case the strict payment of benefits.
Dismissal due to a reduction in the number of employees (clause 2 of Article 81 of the Labor Code of the Russian Federation) is a complex procedure. The employer needs to warn employees in advance, offer them another job, identify those who have pre-emptive right stay, report the layoff to the employment service, pay severance pay to those fired.
Labor legislation provides more simple ways separation from employees, in particular dismissal by agreement of the parties (clause 1 of article 77 of the Labor Code of the Russian Federation). It is important to note that dismissal on this basis excludes any pressure or coercion to terminate the employment relationship. If the employee does not agree to resign, this method of terminating the employment contract cannot be used.
Rule of Article 78 Labor Code states that an employment contract can be terminated at any time by agreement of the parties. What follows from this? Labor legislation does not directly indicate what conditions must be met by the employer and employee. We will try to determine them based on the content of other articles of Section III of the Labor Code.
Document flow upon dismissal by agreement of the parties
From the requirements of Part 1 of Article 67 and Article 72 of the Labor Code, it follows that both the employment contract itself and the agreement to change its conditions are drawn up in in writing in duplicate. The dismissal agreement is drawn up in the same way. But before concluding it, the parties must agree. Let's consider all stages of the dismissal procedure by agreement of the parties.
The employer is the initiator of dismissal
Let us assume that the initiator of termination of the employment contract is the employer. He must express his intention in a letter to the employee (see sample below). The document must indicate the basis for dismissal (by agreement of the parties) and its expected date.
Sample letter from employer regarding termination of employment contract
The employee does not agree
If the employee does not agree to terminate the employment contract on the terms proposed by the employer, he has the right to report this in a response letter and offer his own conditions (see sample below).
In order to avoid lengthy correspondence, it is more effective to sit down at the negotiating table and discuss all the nuances of terminating the employment contract.
Sample employee response letter
Negotiations between employee and employer
As a rule, if it is necessary to dismiss a significant number of employees, negotiations are carried out not with each individual, but in the course of general meeting interested parties. Negotiations (meetings) can be conducted not only by general manager, but also any employee authorized by the administration, for example a HR specialist. It is desirable that during the negotiations the parties come to complete mutual understanding.
Based on the results of the negotiations, the text of the dismissal agreement is drawn up. Please note: even if the negotiations were held in the form of a meeting, and the conditions for terminating the employment contract were adopted for all those dismissed, the dismissal agreement is drawn up for each employee separately. The documents are signed by the head of the organization, and not by the employee who was authorized to negotiate.
We draw up an agreement to terminate the employment contract
After negotiations, having come to a mutually beneficial solution, the parties must record it in an agreement on termination of the employment contract (see sample below). This document must specify the basis for dismissal (agreement of the parties), the timing, and the amount of severance pay, if there is an agreement on its payment. We advise you to additionally discuss the fact that the amount of severance pay is final, cannot be changed or supplemented, and the parties do not have mutual claims against each other.
The agreement is drawn up in two copies, like the employment contract. In the case of large-scale layoffs, we recommend assigning a serial number to the agreements, which is then indicated in the text of the dismissal order in the “Base Document” column.
Order of dismissal
After the parties have signed an agreement to terminate the employment contract, the specialist personnel service you will have to draw up an order to terminate (terminate) the employment contract (see sample below). Unified order forms (No. T-8 and T-8a) were approved by Resolution of the State Statistics Committee of Russia dated January 05, 2004 No. 1. The wording of the grounds for dismissal will be as follows: termination of the employment contract by agreement of the parties (clause 1, part 1, article 77 of the Labor Code Russian Federation), and the basis document is an agreement to terminate the employment contract.
Sample agreement to terminate an employment contract
Entry in the work book
You need to make an entry in your work book: “The employment contract was terminated by agreement of the parties, paragraph 1 of part 1 of Article 77 of the Labor Code of the Russian Federation.” After making a notice of dismissal, the employee must familiarize himself with it and sign the work book. You can ask him to make a note “Acquainted” and put a signature below the personnel officer’s signature, or simply sign. After receiving work book the employee must also sign in the work book and their inserts in the form approved in Appendix No. 3 to Resolution No. 69, and on the last page of the personal card (unified form No. T-2 approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1) .
Sample entry in a work book
Payments to a dismissed employee and their taxation
Payments upon dismissal by agreement of the parties
Wages. Upon dismissal by agreement of the parties, the employee is entitled to pay wages, accrued inclusive of the last day of work.
. This payment is guaranteed by labor legislation (Part 1 of Article 127 of the Labor Code of the Russian Federation). It is calculated in the usual manner in accordance with the provisions of Articles 127 and 139 of the Labor Code.
Upon dismissal by agreement of the parties, the employee has the right to take leave with subsequent dismissal(Part 2 of Article 127 of the Labor Code of the Russian Federation). Let us remind you that providing such leave is not the employer’s obligation, but its right. Accordingly, if you provide a dismissed employee with vacation in full, taking into account all previously unused days, you will not have to pay compensation for unused vacation. Vacation pay will be paid instead.
The condition for granting leave with subsequent dismissal can be stated in the agreement on termination of the employment contract (see sample below).
Compensation. In addition to wages, the parties may provide for the payment of severance pay (Part 4 of Article 178 of the Labor Code of the Russian Federation), that is, compensation. The procedure for calculating this payment should be provided for in the collective agreement, labor agreement, regulations on remuneration, or recorded in the agreement on termination of the employment contract, if they are not provided for by the remuneration system.
Fragment of an agreement on termination of an employment contract
Taxation of payments to an employee upon dismissal by agreement of the parties
Personal income tax. If the employment relationship is terminated before the end of the calendar month, the date of actual receipt of income in the form of wages is recognized as the last day of work for which the income was accrued (clause 2 of Article 223 of the Tax Code of the Russian Federation).
Personal income tax on the income of a resigning employee must be paid to the budget:
No later than the day of receipt of funds from the bank or the day of transfer of money to his account;
No later than the day following the day of dismissal, if the payment is made from the proceeds received at the cash desk (clause 6 of Article 226 of the Tax Code of the Russian Federation).
Please note that the compensation amount is subject to personal income tax general procedure as income received from a source in the Russian Federation (subclause 10, clause 1, article 208 of the Tax Code of the Russian Federation).
Income tax. In relation to wage amounts, the provisions of paragraphs 1, 2 and 3 of Article 255 of the Tax Code apply. Payments accrued in accordance with these rules fully reduce the taxable base for income tax.
Compensation for unused vacation is recognized as labor costs that reduce the taxable base for income tax, based on paragraph 8 of Article 255 of the Tax Code.
WITH compensation the situation is more complicated. If this payment is not provided for by the enterprise’s remuneration system and is not guaranteed by an employment contract, it does not reduce the taxable base for income tax (clause 21 of Article 270 of the Tax Code of the Russian Federation).
If the amount of compensation is established by a collective (labor) agreement and is included in the enterprise’s remuneration system, it is recognized as part of labor costs that reduce the taxable base for income tax on the basis of paragraph 25 of Article 255 of the Tax Code. But its size must correspond to the criterion of economic justification of costs in accordance with paragraph 1 of Article 252 of the Tax Code. How to prove that the costs of paying compensation are economically justified? In our opinion, it is enough to reduce the amount of this payment in comparison with the severance pay guaranteed by labor legislation upon dismissal due to staff reduction (Part 1 of Article 178 of the Labor Code of the Russian Federation).
UST, pension contributions. Payments provided for by labor (collective) agreements, which reduce the taxable base for income tax, are subject to unified social tax (clause 1 of article 236 of the Tax Code of the Russian Federation) and pension contributions (clause 2 of article 10 Federal Law dated December 15, 2001 No. 167-FZ).
In the event that the payment does not reduce the taxable base for income tax (compensation outside the remuneration system), it is not subject to Unified Social Tax (clause 3 of Article 236 of the Tax Code of the Russian Federation) and pension contributions. Compensation for unused vacation is not subject to the Unified Tax (Subclause 2, Clause 1, Article 238 of the Tax Code of the Russian Federation).
Contributions for injuries. Contributions for injuries are not subject to accruals in favor of the employee, which are clearly named in the List of payments for which they are not accrued. insurance premiums to the Foundation social insurance Russian Federation (approved by Decree of the Government of the Russian Federation dated July 7, 1999 No. 765).
In paragraph 1 of this document Of the above payments, only monetary compensation for unused vacation is indicated. For the amount of wages (including all its components) and the amount of compensation (regardless of the source), contributions for injuries should be calculated (clause 3 of the Rules for the calculation, accounting and expenditure of funds for the implementation of compulsory social insurance against accidents at work and occupational diseases, approved by Decree of the Government of the Russian Federation dated March 2, 2000 No. 184).
Cancellation of an agreement to terminate an employment contract
If the intentions of the parties have changed: the employer has found an opportunity to keep the employee or the latter has found a convincing argument not to fire him, the agreement can be annulled only upon reaching mutual agreement. In this case, the initiator of cancellation must notify the other party about this in writing.
Sample application for cancellation of agreement
If the other party agrees with this proposal, it is necessary to cancel both the agreement to terminate the employment contract and the dismissal order. A sample cancellation order, which is issued in any form, is given below.
Sample agreement
Sample order for cancellation of dismissal order
No agreement. If the other party does not agree, the dismissal remains in effect and cannot be reversed. This is stated in paragraph 20 of the resolution Supreme Court RF dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”: “Annulment of an agreement regarding the period and grounds for dismissal is possible only with the mutual consent of the employer and employee.”
But a situation may arise when the person leaving begins to violate labor discipline. The employer will not be envied here - he will no longer have the right to fire the violator for other reasons.
Advantages of dismissal by agreement of the parties
As we see, dismissal by agreement of the parties in modern conditions beneficial to the employer. Let's summarize what has been said.
Everyone can take the initiative. Termination of an employment contract can be initiated by either party: both the employee and the employer. Such a dismissal suits both parties; it is a kind of compromise.
Cause. The initiator of termination of the employment contract is not obliged to explain the reason or indicate it in any documents.
The warning period is not defined. When dismissing by agreement of the parties, there is no need to comply with notice periods for dismissal, as is required, for example, when dismissing due to staff reduction. The parties themselves agree on the date last day work. For example, it could be the next business day.
The opinion of the trade union is not taken into account. The employer does not need to take into account the opinion of the trade union organization, and when dismissing a minor employee, the consent of the relevant state inspection Labor and the Commission for the Affairs of Minors and the Protection of Their Rights, since the requirements of Article 269 of the Labor Code apply only to dismissals at the initiative of the employer.
Probation period is not a hindrance. An employment contract may be terminated by agreement of the parties and during probationary period employee, and when concluding a fixed-term employment contract.
Any conditions. Upon dismissal by agreement of the parties, it is possible to determine special conditions termination of the employment contract, agree on the terms, size and procedure compensation payments(severance pay or compensation) and other circumstances.
Simple procedure. The parties can agree orally and draw up one document. Many active employees, not waiting for the dismissal deadline for layoffs and not wanting to have a record of layoffs in their work books, take compensation and begin searching new job. A record of dismissal by agreement of the parties does not spoil the work book. Such wording in the work book does not cause a negative reaction from the future employer, and in times of crisis characterizes the candidate with positive side as able to compromise and not conflict with the employer.
More unemployment benefits. In case of dismissal by agreement of the parties, and not by at will or for violation of labor discipline, the employee may receive a larger benefit. Unemployment benefits for those dismissed by agreement of the parties are established as a percentage of the average earnings calculated over the last three months at the last place of work (Clause 1, Article 30 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On Employment in the Russian Federation”). Note that employees dismissed of their own free will or for guilty actions can count on unemployment benefits calculated as a multiple of its minimum amount. For 2009, the minimum amount of unemployment benefits is 850 rubles, the maximum is 4900 rubles. (Resolution of the Government of the Russian Federation dated December 8, 2008 No. 915).
The fired person will not return. Cancellation of an agreement regarding the period and grounds for dismissal is possible only with mutual consent of the employer and employee. Neither the court nor the labor inspectorate in case of complaints former employee they won't support him.
Amount of severance pay. Upon dismissal by agreement of the parties, the amount of severance pay is determined by mutual agreement.
Note that dismissal by agreement of the parties (UPSS) has appeared in the Labor Code of the Russian Federation since 2001, and precedents for its use have taken place since 2002. However, this formulation of the legal basis for dismissal today has the most enforceable practice as a basis for dismissal. Moreover, it is, frankly speaking, preferred by both personnel officers and heads of commercial companies.
Hire contract form attribute
Dismissal by agreement of the parties (Article 77 of the Russian Labor Code) is often found in connection with the extension to Russian market labor contract form of employment. This form of contractual relations between employers and staff is an indispensable element of the market system.
Is this leadership justified in the labor market? Is the ease of interruption of the employment relationship inherent in this form of dismissal positive? This is a controversial issue. According to official statistics, the unemployed make up 2-3% of the total working population.
These data are objectively underestimated throughout the world. The fact is that not all unemployed people are registered at the labor exchange for various reasons. Therefore, it is a generally accepted fact that the data International organization labor are 4–5 times higher than official statistics on unemployment.
And the absolute leader in interrupting employment relationships is dismissal by consent of the parties. The features of this type of dismissal in the context of the existence of a labor market are more clearly visible in comparison with other forms of termination of employment relations.
By staff reduction and by agreement of the parties
It is well known that dismissal during staff reduction is a concomitant of economic crises and their consequences - optimization staffing structure organizations. Its legal basis (see paragraph 2 of Article 81 of the Russian Labor Code) is quite organizationally complex and labor-intensive.
The employer is obliged to warn the personnel being laid off in advance in advance and, in addition, offer candidates for dismissal an alternative full-time position(note that the existing staff is often characterized by a shortage of vacant positions).
It must also identify the personnel who are guaranteed by law a preferential right to remain on staff and exercise it. Therefore, some employers, optimizing their staff, try to replace “staff reduction” with “agreement of the parties,” achieving certain benefits for the company to the detriment of those being laid off.
Paragraph 1 of Article 77 of the Russian Labor Code offers a less organizationally involved method - dismissal by agreement of the parties. This method interruption of labor relations involves tight deadlines, joint regulation of the dismissal process by the company management and the employee. In this case, the administration is not required to comply with the above formalities and the participation of the trade union organization.
At your own request and by agreement of the parties
The absence of a period of mandatory service distinguishes the method we are studying from dismissal of one’s own free will, in which the application is written only by the employee himself.
In case of voluntary dismissal (UPSJ), such a statement is drawn up fourteen days before the agreed date of leaving work. During the above two weeks, the employee continues to perform his previous official duties. He also has the right to take leave for this period. However, even if the employee is on sick leave, the 14-day period will not be considered interrupted.
Dismissal by agreement of the parties is also significantly simplified in relation to the PSJ. First of all, the difference lies in the absence of a two-week work period - before the date of dismissal. The date of leaving work is negotiable, and the director also negotiates with the dismissed employee by mutual agreement some additional conditions. The employment relationship can be terminated on a date agreed upon in advance, even if the employee is on vacation or sick leave.
Legal differences between the two types of dismissals
Dismissal by agreement of the parties involves the procedure for terminating the employment contract between the employer and the employee in accordance with Article 78 of the Russian Labor Code. Employers most often use it in cases labor violations on the part of employees (absenteeism, appearance at the workplace in a state of intoxication, failure to comply with job responsibilities). However, even more often, this dismissal is initiated by the employees themselves. It, as you noticed, has similar features to voluntary dismissal. However, there are differences (see table 1)
Table 1. Comparative characteristics UPSS and UPSG
When analyzing the information contained in the table above, pay attention to the detail: challenge dismissal by agreement of the parties in unilaterally not possible (unlike UPSG). Under the UPSS, it was adopted jointly, and therefore ceases to operate by mutual agreement.
Dismissal cannot be prevented at the request of one of the parties. However, if it was carried out under the coercion of the employer, it can be challenged in court. In this case, the employee is reinstated to his previously held position with payment of average earnings for forced absence.
Payment of compensation
If there is dismissal by agreement of the parties, compensation for unused vacation must be paid to the employee. Besides her, he mandatory the accrued wages for the current month up to the last day of work are paid, as well as bonuses and various allowances taken into account in the organization’s wages (for length of service, qualifications). Then the employee receives a work book and a certificate of average monthly salary.
However, not only mandatory payments promise an employee dismissal by agreement of the parties. Compensation in the amount of one salary is often stipulated by the employer in organizational orders.
The law does not establish a specific framework for such payments, therefore, an agreement between the employer and employee may establish a negotiated amount of additional compensation.
It is no secret that this type of dismissal is more beneficial to the employer than to the employee. The motivation is well known: the employee cannot independently withdraw a written application, and the trade union, in turn, also cannot influence this process in any way.
Therefore, by an employee who has chosen dismissal by agreement of the parties, compensation must necessarily be considered as a section of the contract with the employer. Federal Law No. 330-FZ of November 21, 2011 established the procedure for assessing personal income tax compensation. In accordance with paragraph 8 of paragraph 3 of Article 217 of the Russian Tax Code, compensation not exceeding three employee salaries is exempt from taxation.
Article 178 of the Labor Code regulates the payment of such severance pay. According to it, provisions for its payment can be included in the collective labor agreement. The second option for regulating such compensation is stipulated directly in the documents that accompany a specific dismissal by agreement of the parties. At the same time, according to paragraph 3 of Article 217 of the Tax Code of the Russian Federation, personal income tax was not levied on severance pay not exceeding three salaries, and for the regions of the Far North - six salaries.
Registration of dismissal
The current practice of registering such dismissal does not provide for any standard documents. However, the preferred design option remains an agreement drawn up jointly by the employee and the employer. An indication of the desired legal consequences of termination of the employment relationship due to mutual agreement of the parties, an indication of the date accompany the dismissal by agreement of the parties. The payment of severance pay, the timing of the transfer of affairs and positions to the new employee are also negotiated. Let's imagine an example of the above agreement.
Agreement on termination of employment contract
The employer, Alfa-Trade LLC, represented by director Konstantin Borisovich Pavlov, acting on the basis of the charter, and the employee, merchandiser Marina Viktorovna Selezneva, have agreed that:
- The employment contract dated 02.21.2010 N 35 will be terminated by agreement of the parties.
- The employment contract is terminated on July 20, 2014.
- The employee is paid compensation in the amount of one official salary.
The agreement is drawn up in 2 copies with equal legal force, 1 for each party.
Director Print Pavlov Konstantin Borisovich
Worker Selezneva Marina Viktorovna
Initiator of dismissal - employee
However, the proposed registration method can often be preceded by writing a statement on the part of the employee or a corresponding appeal from the administration to him. However, there is no single sample of how to write a letter of resignation by agreement of the parties. Therefore, let us present an example of such a document.
Sample employee application
To the Director of Alfa-Trade LLC
Pavlov Konstantin Borisovich
Statement
I ask for your consent to terminate my employment contract from July 20, 2014, according to paragraph 1 of Art. 77 of the Labor Code (reason - by agreement of the parties).
I consider it appropriate to set the severance pay in the amount of two salaries.
Until I receive your consent in writing, I reserve the right to withdraw this application at any time.
Merchandiser Selezneva
Marina Viktorovna.
The agreement, as an option, may also be preceded by an appeal from the administration, initiating dismissal by agreement of the parties. The sample text is similar to that presented in the application.
Letter from the administration
Dear Marina Viktorovna!
We invite you to terminate the employment contract, guided by clause 1 of Art. 77 of the Labor Code (i.e. by agreement of the parties) from July 20, 2014
Compensation is established, according to the collective labor agreement, in the amount of two salaries.
Director
Pavlov K.B.
Drawing up a dismissal order
Based on the agreement, the head of the organization signs the corresponding order. Dismissal by agreement of the parties gains legal force at this moment. Often, together with this order, an order is issued for the acceptance and transfer of cases and for conducting an inventory.
Alfa-Trade LLC
07/20/2014 No. 15-k
Moscow
On the dismissal of Selezneva M.V.
FIRE:
Marina Viktorovna Selezneva, merchandiser, 07/20/2014 by agreement of the parties (Article 37 of the Labor Code).
The accounting department will pay M.V. Selezneva monetary compensation in the amount of three salaries.
Reason: statement of M.V. Selezneva dated July 15, 2014.
Director of Alfa-Trade LLC K.B. Pavlov
Selezneva M.V. has read and agreed with the order.
Through such an order, dismissal is carried out by agreement of the parties. The entry in the work book must necessarily mention paragraphs 1 of Part 1 of Article 77 of the Labor Code.
Should the wording “dismissal by agreement of the parties” be avoided when dismissing?
This question, of course, is controversial and associated with myths.
Myth No. 1: an employee dismissed by agreement of the parties is a violator of labor discipline.
Myth No. 2: an employee who terminates his employment relationship in this way is insufficiently qualified.
The reason for the emergence of these prejudices was the practice of employers to “lay off” negligent employees under Article 77 of the Labor Code. However, if the employee is confident in his qualifications, as well as in the fact that he will be hired immediately in another place, then these myths are insignificant. On the contrary, a person will be able to quickly get the expected job.
Conclusion
Is UPSS ideal in its existing form as a labor market tool? Based on macroeconomic patterns, its parameters (for example, non-participation of trade unions in its process) are incorrect when the level of unemployment is significant.
For such a market mechanism to fully operate in the labor market, ideally there needs to be a growing economy and a sufficient level of supply of competitive jobs. However, simplified organizational issues, accompanying the UPSS, in many cases are preferable for prompt termination of labor relations. This factor determines its widespread use.
A person dismissed by agreement of the parties should take into account that in some cases an incorrectly drawn up agreement and, accordingly, an order for dismissal by agreement of the parties may ignore payments or benefits due to him. Therefore, everything should be foreseen and taken into account.
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 for 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 can be terminated at any time by agreement of its parties. And this is the only article of the Labor Code devoted to this basis for dismissing 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. However, guided by established practice (including judicial practice), today it is possible to determine the basic rules and procedure for dismissal by agreement of the parties, which we will discuss in the article.
Rules for concluding an agreement.
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, you should 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 may look like an agreement itself, which is preferable, or like a statement from the employee if he initiated the dismissal. Moreover, unlike the employee’s statement of resignation at his own request, this statement must contain:
- the reason for termination of the employment relationship is by agreement of the parties;
- desired date of dismissal;
- amount of compensation or other conditions of dismissal (if any);
- signatures of the employee and employer.
Let us present a sample statement that can be considered as an agreement.
I don't mind. To the director
HR specialist L. Prikazova at the Central Library MBUK
formalize the dismissal on January 20, 2017. M. S. Knizhkina
To accountant O. A. Kopeikina from the librarian
01/20/2017 make calculations for L. M. Formularova
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 Labor Code of the Russian Federation January 20, 2017.
Formlyarova /L. M. Formlyarova /
If the employer agrees to dismissal by agreement of the parties, but 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 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 budgetary institution culture
"Central Library"(MBUK "Central Library")
01/18/2017 To the librarian
ref. No. 3/k L. M. Formularova
OFFER
on termination of the employment contract
Dear Larisa Mikhailovna!
I ask you to consider 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. Please inform me of your decision in writing within three days from the date of receipt of this proposal.
Director Knizhkina M. S. Knizhkina
Offer received. Formlyarova /L. M. Formlyarova /
If the employee agrees to be dismissed, he and the employer agree on the terms of the dismissal and enter into an agreement. It must also indicate the basis 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 given to the employee against signature. Let's give a sample.
Agreement
on termination of the employment contract
dated 10/12/2014 No. 12/2014
Voronezh 01/20/2017
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 October 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 Employee’s last working day, the Employer undertakes to issue a completed work book and make full payments to 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 against each other.
6. This Agreement is drawn up 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 manager himself or by a person authorized by him to do so, otherwise the court will declare the dismissal illegal.
In addition to observing the form of the agreement, the employer should strictly observe one more rule: it is unacceptable to force an employee to enter into an agreement to terminate the employment contract, since the main condition for such dismissal is the mutual voluntary expression of the will of the parties. And if the dismissed employee proves in court that he entered into such an agreement under duress from the employer, he will be reinstated.
Rules for cancellation of the agreement.
The main difference between dismissal by agreement of the parties and dismissal at the request of the employee is the impossibility of revoking the agreement. Let us remind you that according to Art. 80 of the Labor Code of the Russian Federation, before the expiration of the notice period for dismissal, an employee has the right to withdraw his application at any time, except for the case when 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 clause 20 of the Resolution 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 basis for dismissal, this will not be possible without the consent of the other sides. In this case, the parties must enter into a new agreement that cancels the previous one in whole or in part. (We give a sample on page .)
And here you should pay attention to the fact that it is possible to terminate an employment contract by agreement of the parties with any employee: with a woman who has a child under 3 years of age; 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 18 years of age or the sole breadwinner of a child under 3 years of age in a family raising 3 or more young children, if the other parent (other legal representative of the child) is not a member in labor relations; and also with a pregnant woman.
None of the workers 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 Armed Forces of the Russian Federation 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 upon 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 cancellation of the agreement the employer had already issued a dismissal order, it must be canceled by another order.
Agreement
on cancellation of the agreement to terminate the employment contract
dated 10/12/2014 No. 12/2014
Voronezh 01/23/2017
The municipal budgetary cultural institution "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 Larisa Mikhailovna Formlyarova, hereinafter referred to as the Employee, on the other hand, collectively referred to as the Parties, have entered into this agreement about the following.
1. The parties agreed to cancel the agreement dated January 20, 2017 on the termination of the employment contract dated October 12, 2014 No. 12/2014.
2. This Agreement is drawn up in two copies having equal legal force - one for each of the Parties.
Employer: Employee:
Director Knizhkina /M. S. Knizhkina / Formlyarova / L. M. Formlyarova /
23.01.2017 23.01.2017
A copy of the agreement has been received. Formlyarova /L. M. Formlyarova /
Dismissal rules.
So, based on the agreement, the employer issues an order. The order reflects the grounds for dismissal and details of the agreement. The employee must be familiar with the order upon signature. The employee’s refusal to sign the order cannot cancel the dismissal if an agreement is concluded between the parties. Therefore, by virtue of Art. 84.1 of the Labor Code of the Russian Federation, in the case where the order to terminate the employment relationship cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it and sign it, a corresponding entry is made on the order.
On the last day of work, it is issued to the person being dismissed. If he refuses to receive it, the employer is obliged to send him a notice of the need to appear for the 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, payments stipulated by the agreement are made.
Please 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 or conscription for military service. At the same time, it is established that an employment or collective agreement may provide for other cases of payment of severance pay, as well as establish their increased amounts.
Thus, if an 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, judges differ in their opinions. Some believe that such a refusal is legal, since the payment of benefits or compensation, in addition to the agreement, must be provided for by an employment or collective agreement, others believe that the refusal is unlawful, since the agreement to terminate 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, the employer must comply with the provisions of Art. 349.3 of the Labor Code of the Russian Federation, which establishes a limit on the amount of severance pay, compensation and other payments in connection with the termination of employment contracts for individual 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, and chief accountants, it is not allowed to include conditions on the payment of severance pay, compensation and (or) on the appointment of any other payments to these employees. At the same time, if the payment of compensation and severance pay is provided for by an employment or collective agreement, they are paid, but their amount cannot exceed three times the average monthly salary of the specified 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 grounds can we fire him?
If the employer manages to complete the procedure for bringing disciplinary liability before the date of dismissal specified in the agreement, then it is possible to dismiss the employee on the appropriate grounds of Art. 81 Labor Code of the Russian Federation. As for voluntary dismissal, if the date indicated in the resignation letter precedes the date indicated in another application, then the employee will have to be fired under clause 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation upon expiration of the warning period. If not, the employee is dismissed by agreement of the parties.
Question
Should we dismiss an employee by agreement of the parties if he is on sick leave?
If an employee falls ill on the date of termination of the employment contract, he still needs to be dismissed under clause 1, part 1, art. 77 of the Labor Code of the Russian Federation, since this is not dismissal at the initiative of the employer. Moreover, if you do not formalize your dismissal by the date specified in the agreement, the agreement to terminate the employment relationship will be canceled automatically.
To summarize, 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 expression of the 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), changed or canceled unilaterally - only by mutual consent of the employee and 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 to terminate the employment contract, refuses to resign (did not sign the 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 is automatically canceled.
8. Before the date of dismissal, the employee may be dismissed for another reason.
Agreement between the parties on dismissal - in many cases the only way part with an unsuitable employee without conflict. This type of termination of employment relationships often suits the employees themselves, because in the agreement the parties can agree on the payment of monetary compensation. Labor legislation does not establish strict requirements for the design and content of the agreement, however, when concluding it, you should adhere to the rules that have developed in practice.
By agreement of the parties, both a fixed-term employment contract and an employment contract concluded for a temporary period can be terminated at any time. certain period. To do this, one of the parties (employee or employer) makes a proposal to dismiss by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation). The initiative can be expressed orally or in writing (for example, a sample of a written proposal from an employer to an employee to dismiss by agreement of the parties is presented in the forms section on the website https://www.moedelo.org/Pro (Article 78 of the Labor Code of the Russian Federation, paragraph 20 of the Resolution Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004).
How to draw up an agreement?
The Labor Code does not indicate in what form an agreement to terminate an employment contract should be concluded (Article 78 of the Labor Code of the Russian Federation). Since Part 1 of Art. 67 of the Labor Code of the Russian Federation requires that an employment contract be concluded in writing, then the form of the agreement on its termination must be written.The agreement must be drawn up by analogy with an employment contract: in two copies, each of which is signed by the parties. One copy of the agreement must be given to the employee, the other will be kept by the employer. The employee must sign a copy of the agreement kept by the employer to receive his copy. For example, in this form: “I received a copy of the agreement. Signature, date” (Part 1 of Article 67 of the Labor Code of the Russian Federation).
What to include in the agreement?
The agreement of the parties on termination of the employment contract contains the following basic conditions:- an indication of the mutual desire of the employee and employer to terminate the employment contract by agreement of the parties. To do this, it is advisable to include in the agreement a separate clause stating that it was signed by the parties (employee and employer) voluntarily, on the basis of their free expression of will and without any coercion;
- details (date and number) of the employment contract that is being terminated;
- date of termination of the employment relationship (the employee’s last day of work).
You can also include in the agreement a condition on payment to the employee of monetary compensation for termination of the employment contract, its amount and other conditions. Payment of monetary compensation to an employee upon dismissal by agreement of the parties is not mandatory.(Article 78 of the Labor Code of the Russian Federation).
If issued annual leave with the subsequent dismissal of the employee by agreement of the parties (Part 1 of Article 127 of the Labor Code of the Russian Federation), it is advisable to include in the agreement a condition on granting the employee leave with subsequent dismissal.
The agreement must contain the same information that is indicated in the employment contract:
- date and place of conclusion of the agreement;
- surname, name, patronymic of the employee and the name of the employer who entered into the agreement;
- information about the employee’s identity documents;
- employer's tax identification number;
- information about the employer’s representative who signed the agreement and the basis on which he is vested with the appropriate powers;
- signatures of the parties to the employment contract (Part 1 of Article 57 of the Labor Code of the Russian Federation).
An employer or employee cannot unilaterally cancel or change an agreement concluded between them on termination of an employment contract. Cancellation (annulment) or change of the agreement is possible only with the mutual consent of the parties (clause 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004, Determination of the Constitutional Court of the Russian Federation No. 1091-О-О of October 13, 2009).
Comment - Often in practice the question arises: how long should it take from the moment the agreement to terminate the employment contract is signed until the employee is fired? The question arises due to the fact that in relation to voluntary dismissal, a certain period of notice (“working off”) is established for the employee - according to general rule- two weeks (Article 80 of the Labor Code of the Russian Federation). However, in a situation where a dismissal agreement is concluded between the parties, such a period is not defined.
The parties to the employment contract themselves set the date for termination of the employment relationship (last day of work). If the date of conclusion of the agreement and the last day of work do not coincide, then the working days between the date of conclusion of the agreement and the date of termination of the employment contract will be the time that the employee works before dismissal (for example, the date of conclusion of the agreement to terminate the employment contract is January 11, and the date of termination labor relations - January 17) (Article 78 of the Labor Code of the Russian Federation, paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004).
We formalize the dismissal
After signing the agreement to terminate the employment contract, a dismissal order is issued, which must be familiarized to the employee against signature. As a basis for dismissal, the order must indicate: “Agreement of the parties, paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation.” If the order cannot be brought to the attention of the employee (is absent, refuses to read it), a corresponding entry is made on it (Parts 1-2 of Article 84.1 of the Labor Code of the Russian Federation).The dismissal order is the primary accounting document and can be issued either by unified form(No. T-8 or No. T-8a), or in a form independently developed by the employer and approved in its accounting policy. The order form used must contain all the required details listed in Part 2 of Art. 9 of Federal Law No. 402-FZ of December 6, 2011
On the day of dismissal final payment is made to the employee, namely, he is paid:
- salary for hours worked not received by the day of dismissal;
- compensation for unused vacations (if any);
- compensation for termination of the employment contract (if such payment is provided for in the agreement) in the amount determined by the agreement.
Also on the day of dismissal you need issue the employee with a work book with a notice of dismissal, which is entered in column 3 of the “Work Information” section as follows: "The employment contract was terminated by agreement of the parties, paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation." A record of the reason for dismissal (termination of an employment contract) must fully comply with the wording of the Labor Code of the Russian Federation with reference to the relevant article, part and paragraph of the article. All words in the entry must be written in full, without abbreviations (paragraph 2, clause 1.1 of the Instructions, approved by Resolution of the Ministry of Labor of Russia No. 69 of October 10, 2003).
If on the day of termination of the employment contract the employee is absent from work, you must send him a notice by mail asking him to appear for his work book. From the moment the notification is sent, the employer is released from liability for the delay of the work book (parts 4-6 of article 84.1 of the Labor Code of the Russian Federation, clauses 12, 36, 41
